April 27, 2020- State of New Mexico v. Victor Dimas, No. A-1-CA-37009

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37009	4
VICTOR DIMAS,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Stanley Whitaker, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
Charles J. Gutierrez, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Bennett J. Baur, Chief Public Defender	14
Kathleen T. Baldridge, Assistant Appellate Defender	15
Santa Fe, NM	16
for Appellant	17
MEMORANDUM OPINION	18
BOGARDUS, Judge.	19
{1} 	Defendant Victor Dimas appeals from his convictions, following a jury trial	20
of involuntary manslaughter, contrary to NMSA 1978, Section 30-2-3(B) (1994);	21
false imprisonment, contrary to NMSA 1978, Section 30-4-3 (1963); tampering with	22
evidence, contrary to NMSA 1978, Section 30-22-5(B)(2) (2003); and conspiracy to	23
Court of Appeals of New Mexico
Filed 4/27/2020 11:58 AM

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tamper with evidence, contrary to NMSA 1978, Section 30-28-2(B)(3) (1979) and	1
Section 30-22-5(B)(2). Defendant’s arguments on appeal attack his involuntary	2
manslaughter and false imprisonment convictions. Defendant argues that there was	3
insufficient evidence for the involuntary manslaughter conviction, specifically	4
claiming that the State failed to prove Defendant did not act in defense of another.	5
Defendant also argues that double jeopardy barred conviction for both false	6
imprisonment and involuntary manslaughter: first because the false imprisonment	7
was incidental to the involuntary manslaughter, and second by applying a more	8
traditional double jeopardy analysis. Unpersuaded, we affirm.	9
BACKGROUND	10
{2} 	Because this is a memorandum opinion and the parties are familiar with the	11
facts and procedural history of this case, we set forth here only a brief overview of	12
the historical facts of this case. We include discussion of specific facts where	13
necessary to our analysis.	14
{3} 	On October 14, 2015, Defendant and his girlfriend, Mariah Esquibel, spent	15
the night at the trailer of Angela Trujillo. Trujillo, her teenaged son, her infant	16
daughter, and a woman named Gabriela Garcia also stayed in the trailer. Victim	17
Leroy Encinias had been at the trailer earlier, but did not spend the night.	18
{4} 	The next morning, Trujillo was sleeping when she heard banging on the front	19
door, followed by a window opening. Trujillo walked toward the living room and	20

3
saw Victim coming through the window. Trujillo grabbed a stick that was used as a	1
makeshift barricade for the front door and told Victim to get out. Victim was angry	2
and was screaming and yelling. A forensic pathology expert testified that Victim had	3
a high level of methamphetamine in his system.	4
{5} 	Victim walked toward Trujillo, grabbed the stick from her hands, and beat her	5
with it. Trujillo and Victim struggled, and Trujillo was thrown to the floor, where	6
Victim continued to scream at her. Trujillo screamed for help.	7
{6} 	Defendant was asleep when he heard Trujillo and Victim arguing, someone	8
being hit, and Trujillo’s teenaged son screaming for help. Defendant came out of the	9
bedroom and saw Trujillo and Victim fighting. Defendant saw Trujillo on her back,	10
on the floor, and Victim standing over her with a two by four in his hand, grabbing	11
her hair and hitting her. Defendant thought that Victim would send Trujillo to the	12
hospital or worse.	13
{7} 	Defendant freed Trujillo from Victim by placing him in a chokehold from	14
behind and instructed Victim to calm down. Victim was acting crazy, screaming,	15
yelling, and fighting. Trujillo started to hit Victim in the face. Defendant and Victim	16
fell to the floor.	17
{8} 	Defendant asked Esquibel to retrieve handcuffs from the bedroom. Esquibel	18
got the handcuffs, and Defendant put them on Victim. Esquibel then struck Victim	19
three times in the face and Defendant told her to stop. Defendant said that Trujillo	20

4
also struck Victim and Esquibel told her to stop, although Trujillo herself denied	1
striking 	Victim. 	Defendant 	then 	released 	Victim 	from 	the 	chokehold. 	Both	2
Defendant and Trujillo described Victim as conscious, alive, and not bleeding when	3
he was released from the chokehold. The chokehold lasted up to one minute.	4
Defendant maintained that he told Trujillo that she should call the police; Trujillo	5
denied that Defendant made this suggestion.	6
{9} 	Defendant and Esquibel left with some of their belongings, but returned after	7
two and one-half hours to retrieve additional belongings. Trujillo told them Victim	8
was dead. Defendant did not call the police. Defendant instead instructed his	9
girlfriend to leave Trujillo’s home in Victim’s truck.	10
{10} 	When Victim’s body was found, he was still handcuffed. As determined by	11
an autopsy, Victim’s death was caused by a combination of strangulation, blunt force	12
trauma, and physical restraint. The methamphetamine played a minor role in his	13
death.	14
DISCUSSION	15
I. 	Sufficiency of the Evidence	16
{11} 	On appeal, Defendant contends that there was insufficient evidence to support	17
involuntary manslaughter because the State failed to prove that Defendant’s restraint	18
of Victim was not undertaken in defense of another. In reviewing the sufficiency of	19
the 	evidence, 	“we 	determine 	whether 	substantial 	evidence, 	either 	direct 	or	20

5
circumstantial, exists to support a verdict of guilty beyond a reasonable doubt for	1
every essential element of the crime at issue.” State v. Brenn, 2005-NMCA-121, ¶ 4,	2
138 N.M. 451, 121 P.3d 1050. We view the evidence “in the light most favorable to	3
the verdict, resolving all conflicts, and indulging all permissible inferences to uphold	4
the conviction, and disregarding all evidence and inferences to the contrary, to	5
ensure that a rational jury could have found each element of the crime established	6
beyond a reasonable doubt.” State v. Verdugo, 2007-NMCA-095, ¶ 25, 142 N.M.	7
267, 164 P.3d 966.	8
{12} 	To convict Defendant of involuntary manslaughter, the State was required to	9
prove beyond a reasonable doubt that: (1) “[D]efendant choked and/or restrained	10
and/or struck [Victim]”; (2) “[D]efendant should have known of the danger involved	11
by [D]efendant’s actions”; (3) “[D]efendant acted with a willful disregard for the	12
safety of others”; (4) “[D]efendant’s act or acts caused the death of [Victim]”; (5)	13
“[D]efendant did not act in defense of another”; and (6) this happened in New	14
Mexico on or between October 15 and 17, 2015. See State v. Smith, 1986-NMCA-	15
089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (“Jury instructions become the law of the case	16
against which the sufficiency of the evidence is to be measured.”); see also UJI 14-	17
231 NMRA. Further, the jury was instructed that:	18
Evidence has been presented that [D]efendant killed [Victim]	19
while defending another.	20
The killing was in defense of another if:	21

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1. 	There was an appearance of immediate danger of death or	1
great bodily harm to Angela Trujillo as the result of [Victim] striking	2
and/or choking her with a piece of wood; and	3
2. 	[D]efendant 	believed 	that 	Angela 	Trujillo 	was 	in	4
immediate danger of death or great bodily harm from [Victim] and	5
killed [Victim] to prevent the death or great bodily harm; and	6
3. 	The apparent danger to Angela Trujillo would have caused	7
a reasonable person in the same circumstance to act as [D]efendant did.	8
The burden is on the State to prove beyond a reasonable doubt	9
that [D]efendant did not act in defense of another. If you have a	10
reasonable doubt as to whether [D]efendant acted in defense of another,	11
you must find [D]efendant not guilty.	12
See UJI 14-5172 NMRA.	13
{13} 	We conclude that the State presented sufficient evidence to meet its burden to	14
establish that Defendant did not act in defense of another. The killing was in defense	15
of another if there was “an appearance of immediate danger of death or great bodily	16
harm” to Angela Trujillo. Id. Furthermore, Defendant’s actions must have been	17
reasonable under the circumstances. See id. Here, sufficient evidence was presented	18
for the jury to conclude that Defendant’s actions were not reasonable. The State	19
presented evidence that Defendant put Victim in a chokehold for up to one minute,	20
and Victim died as a result of strangulation, blunt force trauma, and physical	21
restraint. A doctor from the Office of the Medical Investigator (OMI) testified that	22
Victim’s thyroid cartilage was fractured and nearly every type of muscle in Victim’s	23
neck was hemorrhaged. The doctor further testified that both injuries were consistent	24

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with 	strangulation. 	On 	cross-examination, 	Defendant 	admitted 	that 	he 	was	1
“squeezing pretty hard” when he choked Victim. This evidence is sufficient to allow	2
a reasonable jury to conclude Defendant’s actions were unreasonable under the	3
circumstances.	4
{14} 	Furthermore, the jury heard evidence that Trujillo did not appear injured	5
following the incident. Trujillo’s cousin testified that she gave Trujillo a ride on the	6
date of the incident, following the incident, and did not see any injuries to Trujillo.	7
A deputy also testified that, when he met with Trujillo when she was reporting a	8
home invasion, he did not notice anything in particular about her physical condition.	9
The jury reasonably could have concluded that while Victim and Trujillo were	10
having some kind of physical disagreement, the lack of any injuries to Trujillo	11
indicated that the incident did not support an appearance of death or great bodily	12
harm.	13
{15} 	We also note that jurors heard evidence that Defendant left the scene without	14
calling the police and instructed his girlfriend to leave Trujillo’s home in Victim’s	15
truck. It is possible that the jurors took these facts into account as evidence of	16
consciousness of guilt when they concluded that Defendant did not act in defense of	17
another. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829	18
(“Contrary evidence supporting acquittal does not provide a basis for reversal	19
because the jury is free to reject Defendant’s version of the facts.”). Based on the	20

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facts articulated herein, we conclude that there is sufficient evidence to support a	1
finding that Defendant did not act in defense of another.	2
II. 	Double Jeopardy	3
{16} 	In addition to his argument that the evidence was insufficient because the	4
restraint used was in defense of another, Defendant contends that the false	5
imprisonment was incidental to the involuntary manslaughter, and that convicting	6
Defendant of false imprisonment and involuntary manslaughter violated his right to	7
be free from double jeopardy. In support of his argument, Defendant relies on State	8
v. Trujillo, 2012-NMCA-112, ¶ 39, 289 P.3d 238, which held that the “Legislature	9
did not intend to punish as kidnapping restraints that are merely incidental to another	10
crime.” We disagree with Defendant’s contentions. Trujillo deals specifically and	11
exclusively with the offense of kidnapping. Defendant has not persuaded us that	12
under the circumstances here Trujillo should be extended to the offense of false	13
imprisonment, and in any case, the false imprisonment was sufficiently separated in	14
time and place from the involuntary manslaughter such that it was not incidental.	15
See id. ¶¶ 34, 39.1
16
1 Defendant’s reliance on Trujillo raises an issue that rests somewhere between
double 	jeopardy 	and 	sufficiency. 	However, 	because 	the 	incidental 	analysis
conducted in Trujillo bears striking resemblance to the unitary conduct analysis
conducted for double jeopardy, and to the extent Defendant is raising both a
sufficiency claim based on incidental conduct and a double jeopardy claim, we
resolve both within our double jeopardy analysis.

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{17} 	The Double Jeopardy Clause “has been held to incorporate a broad and	1
general collection of protections against several conceptually separate kinds of harm:	2
(1) a second prosecution for the same offense after acquittal, (2) a second	3
prosecution for the same offense after conviction, and (3) multiple punishments for	4
the same offense.” State v. Montoya, 2013-NMSC-020, ¶ 23, 306 P.3d 426 (internal	5
quotation marks and citation omitted). We apply a de novo standard of review to the	6
constitutional question of whether there has been a double jeopardy violation. State	7
v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77. In the present	8
matter, 	the 	relevant 	question 	is 	whether 	Defendant’s 	conviction 	for 	false	9
imprisonment and involuntary manslaughter constitutes multiple punishments for	10
the same offense, i.e., whether Defendant’s same conduct violated both statutes. For	11
the double jeopardy prohibition against multiple punishments, there are two types of	12
cases: (1) when a defendant is charged with violations of multiple statutes for the	13
same conduct, referred to as “double description” cases; and (2) when a defendant	14
is charged with multiple violations of the same statute based on a single course of	15
conduct, referred to as “unit of prosecution” cases. State v. DeGraff, 2006-NMSC-	16
011, ¶ 25, 139 N.M. 211, 131 P.3d 61. Defendant’s arguments raise only a double	17
description challenge.	18
{18} 	For “double description” challenges, we apply the two-part test set forth in	19
Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223: we must	20

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determine (1) whether the conduct is unitary; and if it is, (2) whether the Legislature	1
intended to punish the offenses separately. “When determining whether [the	2
d]efendant’s conduct was unitary, we consider whether [the d]efendant’s acts are	3
separated by sufficient indicia of distinctness.” DeGraff, 2006-NMSC-011, ¶ 27	4
(internal quotation marks and citation omitted). “Conduct is unitary when not	5
sufficiently separated by time or place, and the object and result or quality and nature	6
of the acts cannot be distinguished.” State v. Silvas, 2015-NMSC-006, ¶ 10, 343 P.3d	7
616.	8
{19} 	Defendant argues that Trujillo should control this matter. We note that Trujillo	9
applies strictly to the offense of kidnapping, see 2012-NMCA-112, ¶ 39, and has	10
never been applied to false imprisonment. Defendant claims that “[b]oth the logical	11
underpinnings of Trujillo’s incidental-restraint limitation on kidnapping and the	12
policy reasons behind it require extension of the limitation on kidnapping to false	13
imprisonment as well.” Defendant points out that the “only difference between	14
kidnapping and false imprisonment is the mens rea—not the actus reus.”	15
{20} 	In Trujillo, we specifically emphasized that we were analyzing whether the	16
Legislature intended the defendant’s conduct in that case to constitute kidnapping.	17
Id. ¶ 42. Indeed, the approach this Court took in Trujillo was premised on the history	18
of the kidnapping statutes and the serious nature of that offense. Id. ¶¶ 23-30. In	19
Trujillo, we recognized that the foregoing considerations distinguish kidnapping	20

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from the lesser included offense of false imprisonment. Id. ¶¶ 26-27, 29-30, 41. In	1
light of our analysis in Trujillo, we do not find Defendant’s argument that we should	2
apply Trujillo to false imprisonment persuasive. Regardless, for the reasons that	3
follow in our double description analysis, we conclude that, under the factual	4
landscape of the instant case, the restraint used to support the false imprisonment	5
conviction was distinct from, and not merely incidental to, the restraint used to	6
support the involuntary manslaughter conviction. Thus, even if Trujillo applied to	7
false imprisonment, which we do not so hold today, Trujillo is inapposite to the facts	8
at issue here.	9
{21} 	Proceeding now with our unitary conduct analysis, the jury was instructed to	10
convict Defendant of false imprisonment if it found, in pertinent part, that he	11
restrained or confined Victim against his will and he knew he had no such authority	12
to do so. See UJI 14-401 NMRA. To convict Defendant of involuntary manslaughter,	13
the jury was instructed that it must find, in pertinent part, that Defendant “choked	14
and/or restrained and/or struck [Victim,]” should have known of the danger	15
involved, and acted with willful disregard for the safety of others; Defendant’s	16
actions caused the death of Victim; and Defendant did not act in defense of another.	17
UJI 14-231.	18
{22} 	Here, the State has consistently argued that Defendant’s convictions do not	19
violate double jeopardy because the restraint of the chokehold, supporting the	20

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conviction for involuntary manslaughter, was separate from the restraint of the	1
handcuffs, supporting the conviction for false imprisonment. These acts were	2
separated by sufficient indicia of distinctness for this Court to conclude that	3
Defendant’s conduct was not unitary. The object and result of both restraints was	4
different. The initial chokehold, which was the strangulation that led, at least in part,	5
to Defendant’s death, was part of a physical struggle between Defendant and Victim.	6
Separately, Defendant used handcuffs, which prevented Victim from struggling any	7
further or from defending himself against the blows from Defendant and/or the other	8
participants. In fact, the handcuffs were still on Victim’s body when he was found.	9
Handcuffs allowed Defendant to restrain Victim indefinitely, whereas the object of	10
the chokehold was to strangle Victim, which was a cause of Victim’s death. The	11
restraints occurred separately and distinctly. See State v. Armendariz, 2006-NMCA-	12
152, ¶ 4, 140 N.M. 712, 148 P.3d 798 (explaining that, even in a de novo double	13
jeopardy review, “[w]e indulge in all presumptions in favor of the verdict when	14
reviewing the facts” (internal quotation marks and citation omitted)). Because	15
discrete acts underlie the convictions, see DeGraff, 2006-NMSC-011, ¶ 27, and	16
because the objects and results can be distinguished, see Silvas, 2015-NMSC-006,	17
¶ 10, the two restraints were not merely incidental to the false imprisonment and	18
were therefore also not unitary.	19

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{23} 	Because we conclude that the conduct supporting the false imprisonment	1
conviction 	was 	not 	unitary 	with 	the 	conduct 	supporting 	the 	involuntary	2
manslaughter, 	we 	need 	not 	consider 	whether 	the 	Legislature 	intended 	false	3
imprisonment to be a separately punishable offense. See id. ¶ 9 (“Only if the first	4
part of the test is answered in the affirmative, and the second in the negative, will	5
the [D]ouble [J]eopardy [C]lause prohibit multiple punishment in the same trial.”	6
(internal quotation marks and citation omitted)).	7
CONCLUSION	8
{24} 	For the foregoing reasons, we affirm.	9
{25} 	IT IS SO ORDERED.	10
_____________________________	11
KRISTINA BOGARDUS, Judge	12
WE CONCUR:	13
___________________________	14
JULIE J. VARGAS, Judge	15
___________________________	16
JENNIFER L. ATTREP, Judge	17