A-1-CA-37443 | Omnilex

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico

Filed 7/14/2020 12:46 PM
STATE OF NEW MEXICO, :

Plaintiff-Appellee, — .
Mark Reynok Ss
V. No. A-1-CA-37443

RAFAEL GONZALEZ-PARRA,

a/k/a RAFAEL GONZALES-PARRA

a/k/a RAFAEL ORTIZ GONZALEZ,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alisa A. Hart, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
John Kloss, Assistant Attorney General
Albuquerque, NM
for Appellee
Stalter Law LLC
Kenneth H. Stalter
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
HANISEE, Chief Judge.
a3} Rafael Gonzalez-Parra (Defendant) appeals from his convictions of second-

degree murder (firearm enhancement), contrary to NMSA 1978, Section 30-2-1(B)

(1994), first-degree kidnapping (firearm enhancement), contrary to NMSA 1978,

Section 30-4-1(A) (2003), and conspiracy to commit kidnapping, contrary to NMVSA
1978, Sections 30-28-2 (1979) and 30-4-1(A). On appeal, Defendant argues there
was insufficient evidence to support his convictions, and the district court erred in
failing to order a separate trial for Defendant from that of his co-defendants, Eder
Ortiz-Parra and Edwin Ortiz-Parra. We affirm.

BACKGROUND

Q; On the evening of August 8, 2016, Defendant met Carlos Almazan-Avila and
co-defendants for dinner at a food truck in southeast Albuquerque. After dinner,
Defendant drove his Ford Taurus, with Almazan-Avila as his passenger, and
followed the co-defendants, driving a Dodge Charger, to a nearby house, which was
approximately a five-minute drive from where they met for dinner. The co-
defendants told Almazan-Avila that they wanted to “talk to a guy” at the house.
When the four men arrived at the house, there was a car in the driveway which co-
defendants parked behind, preventing it from leaving. There were four people in the
car in the driveway: Daniel Chumacero (Victim), Mirna Rodriguez-Gutierrez,
Victim’s girlfriend, and Rodriguez-Gutierrez’s two children. Witnesses offered
conflicting evidence as to who was directly involved in getting Victim out of the car,
but one witness’s testimony established that the co-defendants removed Victim from
his car and brought Victim inside the house, leaving Rodriguez-Gutierrez and the

children alone in the vehicle. While the co-defendants escorted Victim into the

house, Defendant and Almazan-Avila approached the passenger side of the car
blocked in the driveway and asked Rodriguez-Gutierrez for her phone. While
conflicting evidence was presented regarding whether it was Defendant or Almazan-
Avila who initially asked for Rodriguez-Gutierrez’s phone, Almazan-Avila testified
that he took possession of the phone after their interaction with Rodriguez-Gutierrez.
Next, Defendant and Almazan-Avila headed towards the house after the co-
defendants, but before they reached the front door they heard multiple gunshots
coming from inside the house. After Defendant and Almazan-Avila heard the
gunshots, the co-defendants ran out of the house, guns in hand, fleeing the scene in
the Charger, and Defendant and Almazan-Avila likewise fled in Defendant’s Taurus.
Defendant then dropped off Almazan-Avila at his house, and Almazan-Avila
testified that on their way there, the two talked about how neither of them knew
“what it was [the co-defendants] were going to do.” Victim was pronounced dead at
the scene. Defendant was subsequently arrested on March 22, 2017, and a jury trial

for Defendant and co-defendants commenced on February 20, 2018.! Prior to trial,

‘Our Supreme Court recently affirmed the convictions and sentences of the
co-defendants who were each convicted of the following: two counts of first-degree,
willful and deliberate murder, contrary to Section 30-2-1(A)(1); one count of
conspiracy to commit first-degree murder, contrary to Section 30-28-2 and Section
30-2-1(A)(1); one count of kidnapping with a firearm enhancement, contrary to
Section 30-4-1 and NMSA 1978, Section 31-18-16 (1993, amended 2020); and two
counts of attempted first-degree willful and deliberate murder with firearm
enhancements, contrary to NMSA 1978, Section 30-28-1 (1963) and Section 30-2-
1(A)(1). State v. Ortiz-Parra, No. S-1-SC-37109, dec. ¥§ 1-2 (N.M. Sup. Ct. May

Defendant moved to sever his trial from that of the co-defendants, and the district
court denied his motion.

DISCUSSION

I. Sufficient Evidence Supports Defendant’s Convictions

433 Defendant argues there was insufficient evidence to support his convictions
for second-degree murder, kidnapping, and conspiracy to commit kidnapping,
specifically contending that the State only presented evidence that Defendant was
“present outside the house when the shootings occurred.” “The test for sufficiency
of the evidence is whether substantial evidence of either a direct or circumstantial
nature exists to support a verdict of guilty beyond a reasonable doubt with respect to
every element essential to a conviction.” State v. Montoya, 2015-NMSC-010, § 52,
345 P.3d 1056 (internal quotation marks and citation omitted). We “view the
evidence in the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.” State
v. Cunningham, 2000-NMSC-009, § 26, 128 N.M. 711, 998 P.2d 176. We disregard
all evidence and inferences that support a different result. See State v. Rojo, 1999-
NMSC-001, 7 19, 126 N.M. 438, 971 P.2d 829. “Our appellate courts will not invade

the jury’s province as fact-finder by second-guessing the jury’s decision concerning

28, 2020) (non-precedential); State v. Ortiz-Parra, No. S-1-SC-37093, dec. § 1, 5,
43 (N.M. Sup. Ct. May 28, 2020) (non-precedential).

the credibility of witnesses, reweighing the evidence, or substituting its judgment for
that of the jury.” State v. Gwynne, 2018-NMCA-033, 4 49, 417 P.3d 1157 (internal
quotation marks and citation omitted).

4 “The jury instructions become the law of the case against which the
sufficiency of the evidence is to be measured.” State v. Holt, 2016-NMSC-011, § 20,
368 P.3d 409 (alterations, internal quotation marks, and citation omitted). Before
addressing the specific jury instructions for each of the crimes for which Defendant
was charged and convicted, we note that the jury was additionally instructed on
accessory liability, which specified that Defendant could be “found guilty of a crime
even though [D]efendant did not do the acts constituting the crime,” so long as the
jury found that (1) “[D]efendant intended that another person commit the [charged]
crime[s]”; (2) “[aJnother person committed the crime[s]”’; and (3) “[D]efendant
helped, encouraged, or caused the crime[s] to be committed.” (Emphasis added.)
This instruction is central to our resolution of Defendant’s appeal, given that the
State presented no evidence that Defendant, himself, directly committed any of the
charged crimes. Our review, then, focuses on the sufficiency of the evidence
supporting Defendant’s convictions as an accessory to the events that transpired.

{5} Per its instructions, in order to convict Defendant of second-degree murder,
the jury had to find under an accessory theory of liability that: (1) “[D]efendant killed

[Victim]”; (2) “[D]efendant knew that his acts created a strong probability of death

or great bodily harm to [Victim] or any other human being”; and (3) “[D]efendant
did not act as a result of sufficient provocation[.|” The State presented evidence
through witness testimony that, while conflicting in some respects, established the
following: (1) Defendant met the co-defendants and Almazan-Avila prior to
following the co-defendants to the nearby house where they eventually found Victim
in the driveway; (2) Defendant, along with Almazan-Avila, approached the
passenger side of Victim’s vehicle where they retrieved Rodriguez-Gutierrez’s
phone; (3) according to Rodriguez-Gutierrez’s testimony, four people, who were
armed with two guns, “showed up and told [Victim] to get out” of the car parked in
the driveway; (4) Defendant along with the co-defendants escorted Victim from the
car to the house where gunfire soon erupted; (5) Defendant fled the scene with
Almazan-Avila and co-defendants; and (6) as a result of gunshot wounds, Victim
died.

{6 Recognizing that conflicting testimony was presented at trial—namely that
Rodriguez-Gutierrez testified that four individuals approached the vehicle in the
driveway and that all three except Almazan-Avila escorted Victim into the house
while Almazan-Avila testified that both he and Defendant approached the vehicle in
the driveway while only the co-defendants escorted Victim out of the car and into
the house—we emphasize that “[c]lonflicts in the evidence, even within the

testimony of a witness, are to be resolved by the fact[-]finder at trial.” State v. Jason

L., 2000-NMSC-018, 4 10, 129 N.M. 119, 2 P.3d 856. Based on the testimony
presented, even if a jury were to believe that Defendant was not inside the house
during the shootings, a jury could reasonably infer from testimony that Defendant
intended that co-defendants kill Victim and that Defendant “helped, encouraged, or
caused” such killing to occur. See State v. Duran, 2006-NMSC-035, § 7, 140 N.M.
94, 140 P.3d 515 (“Intent is subjective and is almost always inferred from other facts
in the case, as it is rarely established by direct evidence.” (internal quotation marks
and citation omitted)); Rojo, 1999-NMSC-001, 4 19 (“Contrary evidence supporting
acquittal does not provide a basis for reversal because the jury is free to reject [an
alternative] version of the facts.’’). To this end, the jury was presented with testimony
that Defendant arrived at the house where the murder took place along with the co-
defendants who shot Victim, assisted in removing Victim from the car he was in and
blocking that car from departing the driveway, assisted in acquiring Rodriguez-
Gutierrez’s phone—the means by which she might have alerted law enforcement to
the events she witnessed—and was either inside or proceeding into the house when
the fatal shots were fired. As well, Defendant immediately fled the premises along
with the co-defendants and Almazan-Avila. On this record, we conclude that
Defendant’s conviction for second-degree murder was supported by sufficient

evidence.

ty A similar analysis follows regarding Defendant’s convictions of kidnapping
and conspiracy to commit kidnapping. In order to convict Defendant of kidnapping,
the jury had to find that (1) “[D]efendant took [Victim] by force, intimidation, or
deception; by ordering him out of his car and walking him into the residence”; (2)
“[D]efendant’s act was unlawful”; (3) “[D]efendant intended to inflict death or
physical injury on [Victim]’; (4) “[t]he taking of [Victim] was not slight,
inconsequential, or merely incidental to the commission of . . . second[-]degree
murder’; and (5) “[D]efendant inflicted physical injury upon [Victim] during the
course of the kidnapping], |’’ again under an accessory liability theory. Our review,
then, focuses on whether the State presented sufficient evidence that Defendant
intended as an accessory for co-defendants to take Victim by force, intimidation, or
deception and helped, encouraged, or caused the crimes to be committed.

33 To reiterate, the jury heard testimony that Defendant, along with co-
defendants, extracted Victim from the car and escorted him into the house
immediately prior to the shootings. The jury also heard, however, that Defendant
stayed outside with Almazan-Avila, approaching the vehicle in the driveway and
gaining possession of Rodriguez-Gutierrez’s phone while the co-defendants
escorted Victim inside. Again, the conflicting nature of such testimony is
inconsequential for the purpose of our analysis. See Jason L., 2000-NMSC-018,

10. We conclude that Defendant’s role was no less instrumental in accomplishing

the kidnapping than his co-defendants, even if their guilt is derived from direct
action. Evidence was presented that Defendant participated directly in the removal
of Victim from his car after it had been blocked in the driveway. Defendant then
either went in the house, when Victim was taken by force, or assisted in depriving
Rodriguez-Gutierrez of the means by which she could communicate with law
enforcement. Emphasizing that intent is subjective and may be inferred from other
facts, we conclude that the evidence was sufficient to support Defendant’s
conviction of kidnapping. Rojo, 1999-NMSC-001, 4 19.

(93 Finally, in order to convict Defendant of conspiracy to commit kidnapping,
the jury had to find that (1) “[D]efendant and another person by words or acts agreed
together to commit kidnapping”; and (2) “[D]efendant and the other person intended
to commit kidnapping[.|’ At trial, the jury heard testimony from Almazan-Avila that
prior to meeting Defendant for dinner at the food truck, the co-defendants visited
Almazan-Avila at his home and asked him to accompany them later to “go talk to
some guys.” Almazan-Avila testified that he agreed to go with the co-defendants,
despite not knowing why they wanted him to accompany them. The co-defendants
drove Almazan-Avila to the food truck where they would eventually meet
Defendant. When asked whether meeting Defendant at the food truck was planned,
Almazan-Avila responded, “I think [the co-defendants] had . . . spoken to

[Defendant] about [meeting] there,” and testified that it did not seem like a

coincidence that Defendant met them at the food truck. Almazan-Avila also testified,
however, that after the shootings, he and Defendant told each other that neither of
them knew “what [the co-defendants] were going to do.”

4103} “Conspiracy consists of knowingly combining with another for the purpose of
committing a felony[.]” Section 30-28-2(A). “An overt act is not required and the
crime of conspiracy is complete when the felonious agreement is reached. The jury
may therefore infer the existence of an agreement based on the defendant’s conduct
and surrounding circumstances.” State v. Torres, 2018-NMSC-013, 4 50, 413 P.3d
467 (internal quotation marks and citations omitted). “Conspiracy is seldom
susceptible of direct proof and is usually established by inference from the conduct
of the parties. A formal agreement need not be proved; a mutually implied
understanding is sufficient to establish the conspiracy.” /d. (internal quotation marks
and citation omitted).

4113 Under these standards, and despite evidence to the contrary, a jury could
reasonably infer that Defendant had an agreement with the co-defendants to join
them at the food truck and accompany them to the house where Victim was killed.
Such evidence may be sufficient on its own to support Defendant’s conviction of
conspiracy to commit kidnapping, but two pieces of testimony, albeit contradictory,
further demonstrate the sufficiency of the evidence presented: Rodriguez-Gutierrez

testified that Defendant joined co-defendants in escorting Victim out of the car and

into the house, and Almazan-Avila testified, to the contrary, that when the co-
defendants escorted Victim out of the car and into the house, Defendant stayed
outside of the house with Almazan-Avila while the two took possession of
Rodriguez-Gutierrez’s phone prior to the shootings. Despite the contradictions
therein, either of these two pieces of evidence could allow a reasonable juror to infer
that Defendant and co-defendants, by words or acts, agreed together to kidnap
Victim, and that Defendant and co-defendants intended to kidnap Victim because,
again, even the act of taking Rodriquez-Gutierrez’s phone could be viewed as an
attempt to prevent her from calling the authorities. See Rojo, 1999-NMSC-001, § 19
(“Contrary evidence supporting acquittal does not provide a basis for reversal
because the jury is free to reject [an alternative] version of the facts.”); see also
Torres, 2018-NMSC-013, 4 50 (“A formal agreement need not be proved; a mutually
implied understanding is sufficient to establish the conspiracy.” (internal quotation
marks and citation omitted)); Duran, 2006-NMSC-035, § 7 (“Intent is subjective and
is almost always inferred from other facts in the case, as it is rarely established by
direct evidence.” (internal quotation marks and citation omitted)). We therefore hold
that sufficient evidence supported Defendant’s convictions.

II. The District Court Did Not Err in Denying Defendant’s Motion to Sever
4123} Defendant argues the district court erred in denying Defendant’s motion to

sever. We review the dental of a motion for severance for abuse of discretion. State

v. Armijo, 1997-NMCA-080, 4 7, 123 N.M. 690, 944 P.2d 919. “Even when the trial
court abuses its discretion in failing to sever charges, appellate courts will not reverse
unless the error actually prejudiced the defendant.” State v. Gallegos, 2007-NMSC-
007, | 18, 141 N.M. 185, 152 P.3d 828.

13} Defendant contends that because Defendant and co-defendants had
conflicting defenses, the district court should have granted Defendant’s motion to
sever. “To obtain a severance on the grounds of conflicting defenses between co-
defendants, it must be demonstrated that the conflict is so prejudicial that the
defenses are irreconcilable and the jury will unjustifiably infer that the conflict alone
demonstrates the guilt of both.” State v. Segotta, 1983-NMCA-054, § 32, 100 N.M.
18, 665 P.2d 280, rev’d on other grounds, 1983-NMSC-092, 100 N.M. 498, 672
P.2d 1129. “Separate trials are required only when the defenses of the defendants
are so antagonistic that a fair trial can be assured only by a severance and defendants
are deprived of the opportunity to present effective defenses.” /d. “The mere fact
that one defendant seeks to escape conviction by placing guilt upon a co-defendant,
however, is not sufficient grounds for a severance.” /d.

143 Defendant’s briefing on this issue focuses solely on the testimony of
Almazan-Avila, asserting that such testimony “was the State’s case,” as Almazan-
Avila was the only witness to identify the co-defendants and Defendant by sight.

Defendant argues that because Almazan-Avila’s testimony “inculpated” the co-

defendants while “exculpating’” Defendant, all three defendants were “forced . . . to
pursue conflicting defenses[,]” and further contends that “[b]ecause the jury lacked
evidence from which to infer [Defendant’s] guilt, it must have improperly relied on
the inconsistencies in defense theories.” We disagree. Defendant fails to account for
Rodriguez-Gutierrez’s testimony, which—along with Almazan-Avila’s—provided
evidence from which we already held that the jury could reasonably infer
Defendant’s guilt. Further, Defendant fails to specify how he was actually prejudiced
by the district court’s denial of his motion to sever. See Gallegos, 2007-NMSC-007,
4 18; see also State v. Garcia, 2011-NMSC-003, § 16, 149 N.M. 185, 246 P.3d 1057
(“Defendant bears the burden of establishing that he was actually prejudiced by a
failure to sever.”). While Defendant’s briefing expounds upon the problematic
implications of defendants who face conflicting defenses at a joint trial, Defendant
fails to specify how he was actually prejudiced by the district court’s denial of his
motion to sever, and we will not assume such arguments for him. See Llane
Photography, LLC v. Willock, 2013-NMSC-040, 4 70, 309 P.3d 53 (“We will not
review unclear arguments, or guess at what a party’s arguments might be.”
(alteration, internal quotation marks, and citation omitted)). Moreover, even though
Almazan-Avila’s testimony suggested that the co-defendants fired the fatal bullets,
such does not render Almazan-Avila’s testimony exculpatory to Defendant. Rather,

under the State’s theory of accessory liability, the testimony incriminated Defendant

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along with the co-defendants. Consequently, at best Defendant is left with a
circumstance where he sought to direct guilt upon the co-defendants, a defense
which is not irreconcilable to the degree that mandates severance. Segotta, 1983-
NMCA-054, ¥ 32. Accordingly, we cannot conclude the district court abused its
discretion in denying Defendant’s motion to sever.

CONCLUSION

415} For these reasons, we affirm Defendant’s convictions.

6 IT ISSO ORDERED.

J. MILES HANISEE, Chief Judge

WE CONCUR:

Anema PK. tale.
UELINE R. MEDINA, Judge

July 14, 2020- State of New Mexico v. Rafael Gonzalez-Parra, No. A-1-CA-37443

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