October 22, 2019- State of New Mexico v. Rafael Lucero, No. A-1-CA-35407

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Odyssey.
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-35407	4
RAFAEL LUCERO,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY	7
Angie K. Schneider, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
John J. Woykovsky, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Bennett J. Baur, Chief Public Defender	14
J.K. Theodosia Johnson, Assistant Appellate Defender	15
Santa Fe, NM	16
for Appellant	17
MEMORANDUM OPINION	18
BOGARDUS, Judge.	19
{1} 	Defendant Rafael Lucero appeals his convictions for false imprisonment and	20
aggravated battery against a household member. Defendant makes two arguments	21
on appeal: (1) double jeopardy barred conviction for both offenses because the false	22
Court of Appeals of New Mexico
Filed 10/22/2019 9:38 AM

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imprisonment was incidental to the aggravated battery; and (2) there was insufficient	1
evidence to convict him of false imprisonment. Unpersuaded, we affirm.	2
BACKGROUND	3
{2} 	Given that the parties are familiar with the facts and details of this case, we	4
only briefly set forth pertinent facts and applicable law in this memorandum opinion,	5
reserving further discussion of specific facts where necessary to our analysis. See	6
Rule 12-405(B) NMRA (providing that appellate courts “may dispose of a case by	7
non-precedential 	order, 	decision 	or 	memorandum 	opinion” 	under 	certain	8
circumstances); State v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M. 218, 794 P.2d	9
361 (“[M]emorandum opinions are not meant to be cited as controlling authority	10
because such opinions are written solely for the benefit of the parties[, and s]ince the	11
parties know the detail of the case, such an opinion does not describe at length the	12
context of the issue decided[.]”).	13
{3} 	On the night in question, Victim, Defendant, and a third party were drinking	14
together, and the third party passed out prior to the incident. Victim testified that	15
Defendant said to Victim that they should go to the room because she had told	16
Defendant that morning that she would have sex with him, although she did not want	17
to do so. Victim and Defendant went to the room, and Defendant began hitting	18
Victim in the face, head, and chest. At some point, Victim blacked out, and when	19
she came to, she testified that Defendant had his knees on her shoulders and arms,	20

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making it impossible for her to get away. According to Victim’s testimony, prior to	1
blacking out, she had been wearing jeans; after coming to, she was no longer wearing	2
pants. Victim eventually told Defendant to get off of her because she had to use the	3
bathroom, and when she left to use the bathroom, she grabbed a phone to call 911.	4
Once Victim called 911, she was apparently able to go outside.	5
DISCUSSION	6
I. 	Defendant’s Convictions of False Imprisonment and Aggravated Battery	7
Do Not Violate Double Jeopardy	8
{4} 	On appeal, Defendant contends that the alleged false imprisonment was	9
incidental to the battery and that convicting Defendant of false imprisonment and	10
battery violated his right to be free from double jeopardy. In support of his argument,	11
Defendant relies on State v. Trujillo, 2012-NMCA-112, ¶ 1, 289 P.3d 238, wherein	12
this Court agreed with the defendant’s argument that the “Legislature did not intend	13
to punish as kidnapping restraint or movement that is merely incidental to another	14
crime.” However, we are not persuaded that the reasoning employed in Trujillo is	15
applicable in this case because Trujillo deals specifically and exclusively with the	16
offense of kidnapping, see id. ¶ 39, and in any case, the false imprisonment was	17
sufficiently separated in time and place from the battery on a household member	18
such that it was not incidental.1
19
1 Defendant notes that his reliance on Trujillo raises an issue that rests
somewhere between double jeopardy and sufficiency of the evidence. However,

4
{5} 	“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. Cummings, 2018-NMCA-055, ¶ 6, 425 P.3d 745 (internal	5
quotation marks and citation omitted). “We generally apply a de novo standard of	6
review to the constitutional question of whether there has been a double jeopardy	7
violation.” Id.	8
{6} 	In the present matter, the relevant question is whether Defendant’s conviction	9
for 	false 	imprisonment 	and 	aggravated 	battery 	against 	a 	household 	member	10
constitutes multiple punishments for the same offense, i.e., whether Defendant’s	11
same conduct violated both statutes. “For the double jeopardy prohibition against	12
multiple punishments, there are two types of cases: (1) when a defendant is charged	13
with violations of multiple statutes for the same conduct, referred to as ‘double	14
description’ cases; and (2) when a defendant is charged with multiple violations of	15
the same statute based on a single course of conduct, referred to as ‘unit of	16
because the analysis regarding incidental restraint undertaken in Trujillo bears
striking resemblance to the unitary conduct analysis conducted for double jeopardy,
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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prosecution’ cases.” Id. ¶ 7. Defendant’s arguments raise only double description	1
issues.	2
{7} 	“For double description cases, we apply the two-part test set forth in Swafford	3
v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223: (1) whether the conduct	4
is unitary; and (2) if so, whether the Legislature intended to punish the offenses	5
separately.” State v. Simmons, 2018-NMCA-015, ¶ 25, 409 P.3d 1030. “When	6
determining whether [the d]efendant’s conduct was unitary, we consider whether	7
[the d]efendant’s acts are separated by sufficient indicia of distinctness.” State v.	8
DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61 (internal quotation	9
marks and citation omitted). “Conduct is unitary when not sufficiently separated by	10
time or place, and the object and result or quality and nature of the acts cannot be	11
distinguished.” State v. Silvas, 2015-NMSC-006, ¶ 10, 343 P.3d 616.	12
{8} 	We note that Trujillo applies strictly to the offense of kidnapping. See 2012-	13
NMCA-112, ¶ 39. Defendant argues that 	Trujillo 	should control this matter.	14
Defendant claims that “[b]oth the logical underpinnings of Trujillo’s incidental-	15
restraint limitation on kidnapping and the policy reasons behind it require extension	16
of the limitation on kidnapping to false imprisonment as well.” Defendant points out	17
that “[t]he only difference between kidnapping and false imprisonment is the mens	18
rea—not the actus reus.” However, this is quite a significant difference.	19

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{9} 	In Trujillo, we specifically emphasized that we were analyzing whether the	1
Legislature intended the defendant’s conduct in that case to constitute kidnapping.	2
Id. ¶ 42. Indeed, the approach this Court took in Trujillo was premised on the history	3
of the kidnapping statutes and the serious nature of that offense. See id. ¶¶ 23-30. In	4
Trujillo, we recognized that these considerations distinguish kidnapping from the	5
lesser included offense of false imprisonment. Id. ¶¶ 26-27, 29-30, 41. Therefore,	6
we are unpersuaded by Defendant’s argument that we should apply Trujillo to false	7
imprisonment under the factual landscape of the instant case.	8
{10} 	Nevertheless, 	we 	briefly 	address 	Defendant’s 	argument—that 	the 	false	9
imprisonment was incidental to the aggravated battery against a household member.	10
The jury was instructed to convict Defendant of false imprisonment if it found, in	11
pertinent part, that he “confined [Victim] against her will.” To convict Defendant of	12
aggravated battery against a household member, the jury was instructed that it must	13
find, in pertinent part, that “Defendant touched or applied force to [Victim] by	14
punching her in the forehead and beating her about her head and face area with a	15
closed fist” and Defendant “intended to injure [Victim].” Here, Defendant confined	16
Victim when he put his knees on her shoulders and arms and she was not able to get	17
away. This restraint occurred separately from the hitting episode, which was the	18
aggravated battery when Defendant beat her about the head and face area. This is	19
distinct from the confinement that occurred when Defendant held Victim down with	20

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his knees. Again, Victim testified that, prior to blacking out, she had been wearing	1
jeans; after coming to, she was no longer wearing pants. This evidence supports a	2
theory that Victim was blacked out for enough time for Defendant to remove her	3
pants, further separating in time the initial aggravated battery from the false	4
imprisonment caused by Defendant confining Victim by using his knees on her	5
shoulders and arms. See State v. Armendariz, 2006-NMCA-152, ¶ 4, 140 N.M. 712,	6
148 P.3d 798 (explaining that, even in a de novo double jeopardy review, “[w]e	7
indulge in all presumptions in favor of the verdict when reviewing the facts” (internal	8
quotation 	marks 	and 	citation 	omitted)). 	Because 	discrete 	acts 	underlie 	the	9
convictions and because the offenses were completed at different points in time, the	10
restraint was not merely incidental to the battery and was therefore not unitary. See	11
Silvas, 	2015-NMSC-006, 	¶ 	10; 	DeGraff, 	2006-NMSC-011, 	¶ 	27 	(“In 	our	12
consideration of whether conduct is unitary, we have looked for an identifiable point	13
at which one of the charged crimes had been completed and the other not	14
committed.”).	15
{11} 	Because we conclude that Defendant’s conduct was not unitary, we need not	16
consider whether the Legislature intended false imprisonment to be a separately	17
punishable offense. See Silvas, 2015-NMSC-006, ¶ 9 (“Only if the first part of the	18
test is answered in the affirmative, and the second in the negative, will the [D]ouble	19

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[J]eopardy [C]lause prohibit multiple punishment in the same trial.” (internal	1
quotation marks and citation omitted)).	2
II. 	Defendant’s Conviction for False Imprisonment Was Supported by	3
Substantial Evidence	4
{12} 	In addition to his argument that the evidence was insufficient because the	5
restraint used for false imprisonment was incidental, Defendant contends that there	6
was insufficient evidence to support false imprisonment because the State failed to	7
prove that the restraint was against Victim’s will. It seems Defendant argues that	8
because Victim was blacked out and apparently awoke to Defendant confining her,	9
and because Defendant allowed her to get up to go to the bathroom, that it was	10
possible that the confinement did not occur without her permission. Defendant	11
additionally argues that he restrained Victim because she was attacking him and, as	12
a result, he suffered injuries. Defendant’s arguments are unpersuasive.	13
{13} 	“The test for sufficiency of the evidence is whether substantial evidence of	14
either a direct or circumstantial nature exists to support a verdict of guilty beyond a	15
reasonable doubt with respect to every element essential to a conviction.” State v.	16
Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and	17
citation omitted). Substantial evidence is “such relevant evidence as a reasonable	18
mind might accept as adequate to support a conclusion[.]” State v. Salgado, 1999-	19
NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation	20
omitted). Lastly, on appeal, we “view the evidence in the light most favorable to the	21

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guilty verdict, indulging all reasonable inferences . . . in favor of the verdict.” State	1
v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.	2
{14} 	We note that the jury was free to infer from the circumstances surrounding	3
Defendant’s restraint of Victim that the restraint was against Victim’s will. See State	4
v. Barrera, 2002-NMCA-098, ¶ 13, 132 N.M. 707, 54 P.3d 548 (“At a minimum,	5
[the d]efendant’s restraint of [the v]ictim in conjunction with his commission of	6
criminal acts of violence permit a reasonable jury inference that [the d]efendant	7
knew he had no such authority to restrain [the v]ictim.”). Furthermore, the fact that	8
Defendant let Victim go did not preclude the jury from determining that the restraint	9
was against Victim’s will, as “[t]he restraint need be for only a brief time.” State v.	10
Corneau, 1989-NMCA-040, ¶ 12, 109 N.M. 81, 781 P.2d 1159. Finally, to the extent	11
Defendant contends that he was acting in self-defense, the jury was free to reject his	12
version of events. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d	13
829 (“Contrary evidence supporting acquittal does not provide a basis for reversal	14
because the jury is free to reject [the d]efendant’s version of the facts.”). Based on	15
the facts articulated earlier in this opinion, we conclude that there is sufficient	16
evidence to support Defendant’s conviction for false imprisonment.	17
CONCLUSION	18
{15} 	For the foregoing reasons, we affirm.	19

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{16} 	IT IS SO ORDERED.	1
_____________________________	2
KRISTINA BOGARDUS, Judge	3
WE CONCUR:
______________________________	4
J. MILES HANISEE, Chief Judge	5
______________________________	6
ZACHARY A. IVES, Judge	7