State v. Amaya

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 28,347 10 MARGARITO AMAYA, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 13 James Waylon Counts, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Max Shepherd, Assistant Attorney General 17 Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender 20 Carlos Ruiz de la Torre, Assistant Appellate Defender 21 Santa Fe, NM

22 for Appellant 23 MEMORANDUM OPINION 24 CASTILLO, Judge.

1 After the Memorandum Opinion was filed in this case, Defendant filed a motion 2 to supplement the record. We granted the motion and reviewed the supplemental 3 materials. The opinion filed on April 28, 2010, is withdrawn and the following 4 opinion is substituted therefor. 5 Following a jury trial, Defendant was convicted of kidnapping in violation of 6 NMSA 1978, Section 30-4-1 (2003), and criminal sexual penetration in the second 7 degree (CSP II) in violation of NMSA 1978, Section 30-9-11(E)(3) (2009). He 8 appeals those convictions. We affirm. 9 I. BACKGROUND 10 On October 31, 2005, Defendant locked his ex-wife (Victim) in his home, 11 threatened her with violence, and forced her to have intercourse causing Victim 12 significant physical injuries in the process. He was arrested shortly thereafter and 13 charged with kidnapping, CSP II, and battery against a household member. The 14 battery charge was later dismissed. Additional facts will be developed in the context 15 of the issues addressed herein. 16 Defendant’s first trial commenced on May 29, 2007, and resulted in a hung 17 jury. Defendant was retried on November 5 and 6, 2007 and was convicted of the 18 remaining charges. Defendant appeals his convictions. 19 II. DISCUSSION

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1 Defendant submits four arguments: (1) the district court erred in denying his 2 motion to dismiss for violation of his right to a speedy trial; (2) the district court erred 3 in allowing Officer Roberto Diaz (Diaz) to interpret statements made by Defendant 4 during interrogation; (3) the district court erred in denying Defendant’s motion to 5 suppress his statements during interrogation because he was not advised of his rights 6 as provided in Miranda v. Arizona, 384 U.S. 436, 479 (1966); and (4) the evidence 7 was insufficient to support his convictions. We address each in turn. 8 A. Speedy Trial 9 Defendant argues that the district court erred in denying his motion to dismiss 10 for violation of his right to a speedy trial. “The right to a speedy trial is a fundamental 11 right of the accused.” State v. Garza, 2009-NMSC-038, ¶ 10, 146 N.M. 499, 212 P.3d 12 387. The Sixth Amendment to the United States Constitution, which is applicable to 13 the states through the Fourteenth Amendment, provides:

14 “In all criminal prosecutions, the accused shall enjoy the right to 15 a speedy and public trial, by an impartial jury of the State and district 16 wherein the crime shall have been committed, which district shall have 17 been previously ascertained by law, and to be informed of the nature and 18 cause of the accusation; to be confronted with the witnesses against him; 19 to have compulsory process for obtaining witnesses in his favor, and to 20 have the Assistance of Counsel for his defence.”

21 Garza, 2009-NMSC-038, ¶ 10 (quoting U.S. Const. amend. VI). “Violation of the 22 speedy trial right is only determined through a review of the circumstances of a case,

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1 which may not be divorced from a consideration of the [s]tate and the defendant’s 2 conduct and the harm to the defendant from the delay.” Id. ¶ 13. “Accordingly, we 3 have adopted the balancing test created by the United States Supreme Court in Barker 4 [v. Wingo, 407 U.S. 514 (1972)].” Garza, 2009-NMSC-038, ¶ 13.

5 In Barker, the United States Supreme Court created a balancing test, in 6 which the conduct of both the prosecution and the defendant are 7 weighed. The Court identified four factors: (1) the length of delay, (2) 8 the reasons for the delay, (3) the defendant’s assertion of his right, and 9 (4) the actual prejudice to the defendant that, on balance, determines 10 whether a defendant’s right to a speedy trial has been violated.

11 Id. (internal quotation marks and citation omitted). “These four factors are 12 interrelated and must be evaluated in light of other relevant circumstances in the 13 particular case. No one factor constitutes either a necessary or sufficient condition to 14 finding a deprivation of the right to a speedy trial.” State v. Johnson, 15 2007-NMCA-107, ¶ 5, 142 N.M. 377, 165 P.3d 1153 (internal quotation marks and 16 citation omitted). 17 The Barker “formulation necessarily compels courts to approach speedy trial 18 cases on an ad hoc basis” and requires them to reject “inflexible, bright-line 19 approaches to analyzing a speedy trial claim.” Garza, 2009-NMSC-038, ¶ 13 (internal 20 quotation marks and citation omitted). “On appeal, we give deference to the factual 21 findings of the district court; nevertheless, we are required to independently evaluate 22 the four Barker factors to ensure that the constitutional right has not been violated.”

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1 Johnson, 2007-NMCA-107, ¶ 5. 2 1. Length of delay 3 Appellate courts consider the length of delay for two reasons: (1) as “a 4 threshold inquiry that triggers the rest of the analysis” and (2) “as part of the balancing 5 test itself.” State v. Stock, 2006-NMCA-140, ¶ 13, 140 N.M. 676, 147 P.3d 885. In 6 this case, the State concedes that the delay was “presumptively prejudicial,” i.e., that 7 the delay crossed the triggering threshold and analysis of the remaining Barker factors 8 is required. Thus, we continue our inquiry. 9 “If a court determines that the length of delay is presumptively prejudicial, then 10 it should consider the length of delay as one of four factors in the analysis, none of 11 which alone are sufficient to find a violation of the right.” Garza, 2009-NMSC-038, 12 ¶ 23 (internal quotation marks and citation omitted). The district court did not address 13 how the length of delay in this matter should be weighed and neither Defendant nor 14 the State addressed this matter on appeal. To properly evaluate this factor, we must 15 first calculate the length of delay. See id. ¶ 24 (“[c]onsidering the length of delay as 16 one of the four Barker factors, the greater the delay the more heavily it will potentially 17 weigh against the [s]tate”). 18 The parties agree that Defendant’s arrest is the starting point of the delay and 19 that the date Defendant’s second trial commenced is its terminus. This period of delay

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1 is approximately two years. We next consider the extent to which this delay stretched 2 beyond the bare minimum required to trigger judicial examination of the claim. See 3 State v. Urban, 2004-NMSC-007, ¶ 20, 135 N.M. 279, 87 P.3d 1061 (noting that the 4 accused shows that the interval between accusation and trial has crossed the threshold 5 dividing ordinary from presumptively prejudicial delay, “the court must then consider 6 . . . the extent to which the delay stretches beyond the bare minimum needed to trigger 7 judicial examination of the claim” (internal quotation marks and citation omitted)). 8 This requires us to determine whether Defendant’s case should be categorized as 9 simple, intermediate or complex. 10 Defendant argues that this matter is either simple or intermediate. The State 11 does not specify the type of complexity, but argues that this may be an intermediate 12 case. The bare minimum required to trigger judicial examination of a simple case 13 under the pre-Garza guidelines is nine months. Salandre v. State, 111 N.M. 422, 428, 14 806 P.2d 562, 568 (1991), modified on other grounds by Garza, 2009-NMSC-038. 15 We examine this case under the pre-Garza guidelines because the charges in this 16 matter were filed before August 13, 2007. Garza, 2009-NMSC-038, ¶ 50. The bare 17 minimum for an intermediate case under the pre-Garza guidelines is twelve months. 18 Salandre, 111 N.M. at 428 n.3, 806 P.2d at 568 n.3. If we conclude this matter is 19 simple, the delay over the bare minimum is nine months. If we conclude this is an

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1 intermediate case, the delay over the bare minimum is twelve months. We need not 2 decide the issue because under either circumstance, this factor weighs against the 3 State. See Johnson, 2007-NMCA-107, ¶ 8 (holding that an eleven-month delay over 4 the bare minimum weighs against the state); State v. Plouse, 2003-NMCA-048, ¶ 43, 5 133 N.M. 495, 64 P.3d 522 (holding that a six-month delay beyond the bare minimum 6 weighs against the state). 7 2. Reasons For the Delay 8 “Closely related to length of delay is the reason the government assigns to 9 justify the delay.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and 10 citation omitted). “The reasons for a period of the delay may either heighten or 11 temper the prejudice to the defendant caused by the length of the delay.” Id. (internal 12 quotation marks and citation omitted). To properly evaluate this factor, we examine 13 the cause of the delay throughout the proceedings in segments. See, e.g., State v. 14 Lopez, 2009-NMCA-127, ¶ 23, 147 N.M. 364, 223 P.3d 361. We evaluate the reasons 15 for delay and weight attributable to each reason, keeping in mind that the state has the 16 duty to make a good faith and diligent effort to bring a defendant to trial. State v. 17 Laney, 2003-NMCA-144, ¶ 17, 134 N.M. 648, 81 P.3d 591. 18 We begin our evaluation using the date of October 31, 2005, when Defendant 19 was arrested. A stipulated order of continuance was entered on May 22, 2006.

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1 Pursuant to that order, and subsequent stipulations, the parties agreed to continuances 2 through February 15, 2007. The State concedes that the time period of six months and 3 twenty-two days between Defendant’s arrest and the entry date of the stipulated order 4 of continuance weighs against it. However, the eight months and twenty-four days 5 between the entry of the stipulated continuance order and the date through which the 6 parties stipulated to continuances weighs neutrally. See State v. Downey, 2007- 7 NMCA-046, ¶ 40, 141 N.M. 455, 157 P.3d 20 (weighing trial delay neutrally where 8 “both the prosecutor and defense counsel stated they had agreed to an additional 9 extension through the last day set for trial”), rev’d on other grounds, 10 2008-NMSC-061, 145 N.M. 232, 195 P.3d 1244. 11 The next period of delay is the time between the date the stipulated 12 continuances terminated on February 15, 2007, and Defendant’s first trial on May 29, 13 2007. The State concedes that this three month and thirteen day period also weighs 14 against it. 15 Defendant’s first trial resulted in a hung jury. The second trial commenced on 16 November 5, 2007. The delay between Defendant’s first and second trial was five 17 months and seven days. As our rules allow the State six months to retry a Defendant 18 following a mistrial, this delay weighs neutrally. See Rule 5-604(B)(3) NMRA 19 (“Time limits for commencement of trial. The trial of a criminal case or habitual

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1 criminal proceeding shall be commenced six (6) months after whichever of the 2 following events occurs latest: . . . if a mistrial is declared or a new trial is ordered by 3 the trial court, the date such order is filed[.]”). See State v. O’Neal, 2009-NMCA-020, 4 ¶ 21, 145 N.M. 604, 203 P.3d 135 (filed 2008) (delays caused by no fault of the 5 parties are not weighed against either party). 6 To summarize, ten months of the twenty-four month delay in this matter weighs 7 against the State. Defendant has not argued that these ten months of delay were 8 intentional. The delay is merely negligent. Therefore, this ten-month period of delay 9 weighs only slightly against the State. See State v. Wilson, 2010-NMCA-018, ¶ 31, 10 147 N.M. 706, 228 P.3d 490 (“The second type [of delay], negligent or administrative 11 delay, is to be weighted less heavily but nevertheless should be considered and is 12 assigned a weight based on its protractedness.” (internal quotation marks and citation 13 omitted)). The remaining delay, fourteen months, weighs neutrally and does not count 14 against either party. 15 3. Assertion of the Right 16 “[D]efendant’s assertion of or failure to assert his right to a speedy trial is one 17 of the factors to be considered in an inquiry into the deprivation of the right.” Garza, 18 2009-NMSC-038, ¶ 31 (internal quotation marks and citation omitted). “[W]e assess 19 the timing of the defendant’s assertion and the manner in which the right was asserted

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1 [and] . . . accord weight to the frequency and force of the defendant’s objections to the 2 delay.” Id. ¶ 32 (internal quotation marks and citation omitted). 3 At the hearing on the speedy trial motion, the district court concluded that 4 Defendant did little to assert the right. We agree. The first time Defendant expressly 5 asserted the right was November 2, 2007, five months after his first trial and days 6 before his second trial. The district court also concluded that Defendant asserted the 7 right by opposing the State’s request for a rule extension. We disagree with this 8 conclusion. Although we held in State v. Marquez, 2001-NMCA-062, ¶ 22, 130 N.M. 9 651, 29 P.3d 1052, that opposition to a rule extension based on speedy trial grounds 10 is an assertion of the right, we did so because the right to a speedy trial was asserted 11 as the basis for that opposition. Here, Defendant did not cite the right to a speedy trial 12 in his motion opposing the rule extension and, thus, there is nothing on which to base 13 an assertion of the right. 14 We conclude that Defendant first asserted the right days before his second trial, 15 at the very end of the twenty-four months of delay. Accordingly, we hold that this 16 factor weighs against Defendant. See Downey, 2007-NMCA-046, ¶ 44 (holding 17 assertion of right factor against the defendant where the defendant “first asserted his 18 right to a speedy trial when he filed a motion to dismiss . . . eleven days prior to trial 19 and thirty months after . . . arrest”).

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1 4. Prejudice 2 As evidence of prejudice, Defendant points to the fact that he was detained for 3 eighteen months before trial—the time between the date of his arrest on October 31, 4 2005, and April 16, 2007. He also argues that upon release, his liberty was restricted 5 because he was required to live with his son and was subject to the standard conditions 6 of release. We assign weight to the fact that a criminal defendant is detained before 7 trial only if the pretrial incarceration is “undue.” Garza, 2009-NMSC-038, ¶ 35. 8 “[T]he length of incarceration, whether the defendant obtained release prior to trial, 9 and what prejudicial effects the defendant has shown as a result of the incarceration” 10 are considered. Id. 11 While the length of incarceration is significant, Defendant was released prior 12 to trial. We are unpersuaded that the conditions of release were unduly onerous or 13 that the six months Defendant was subject to those conditions was unreasonably 14 prolonged. Furthermore, Defendant has not specifically identified any prejudicial 15 effects flowing from his detention or from his conditions of release. Loss of a job, 16 disruption of family life, and the inability to carry out the activities required to prepare 17 a defense are examples of such effects. Id. ¶ 35. There is no evidence that Defendant, 18 who is elderly, was working when he was detained. Defendant does not claim his 19 family life was jeopardized. Although Defendant claims the detention compromised

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1 his ability to prepare for trial and that he suffered anxiety, he claims that his defense 2 was compromised in a manner he cannot “prove” or “identify,” and he has done 3 nothing to specify any details of his alleged anxiety. Such assertions are insufficiently 4 particularized. See id. (“without a particularized showing of prejudice, we will not 5 speculate as to the impact of pretrial incarceration on a defendant or the degree of 6 anxiety a defendant suffers”). 7 Based on the foregoing, we hold Defendant has not demonstrated a 8 particularized showing of prejudice. As a result, this factor does not weigh in his 9 favor. 10 5. Balancing the Four Factors 11 The length of delay beyond the presumptive period weighs in Defendant’s 12 favor. Ten of the twenty-four months of delay are attributable to the State, so this 13 factor weighs slightly against the State. The assertion of the right weighs against 14 Defendant, and he has not demonstrated prejudice. Under these circumstances, we 15 reject Defendant’s assertion that his right to a speedy trial was violated. See id. ¶ 40 16 (“[The d]efendant failed to show prejudice, and the other factors do not weigh heavily 17 in [the d]efendant’s favor. . . . [W]e cannot conclude that [the d]efendant’s right to a 18 speedy trial was violated.”). 19 B. Diaz’s Testimony

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1 Diaz was asked to conduct Defendant’s interrogation because Defendant speaks 2 only Spanish and Diaz is fluent in Spanish. At Defendant’s trial, Diaz testified as to 3 his recollection of Defendant’s statements during the interrogation. Diaz testified that 4 Defendant admitted to having intercourse with Victim and admitted biting her. 5 Defendant contends that the district court erred in allowing Diaz to testify in 6 English as to statements Defendant made in Spanish during the custodial interrogation 7 and cites three grounds challenging the admissibility of Diaz’s testimony. “Admission 8 of evidence is entrusted to the discretion of the trial court, and rulings of the trial 9 judge will not be disturbed absent a clear abuse of discretion.” State v. Worley, 100 10 N.M. 720, 723, 676 P.2d 247, 250 (1984). 11 First, Defendant asserts that Diaz’s testimony was inconsistent with the official 12 English transcription of the interrogation. Diaz testified as to his understanding of 13 what Defendant said. The jury was able to review the official English transcription 14 of the interview and was free to reject Diaz’s testimony in whole or in part. See State 15 v. Verdugo, 2007-NMCA-095, ¶ 25, 142 N.M. 267, 164 P.3d 966 (“[I]t is for the fact 16 finder to evaluate the weight of the evidence, to assess the credibility of the various 17 witnesses, and to resolve any conflicts in the evidence.”). The district court did not 18 abuse its discretion in this regard. 19 Second, Defendant claims that permitting Diaz to interpret his statements

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1 violated the Court Interpreters Act, NMSA 1978, §§ 38-10-1 through 8 (1985) (the 2 Act). The Act states that “if a non-English speaking person who is a principal party 3 in interest or a witness has requested an interpreter, the appointing authority shall 4 appoint . . . an interpreter certified pursuant to the Court Interpreters Act to interpret 5 or to translate the proceedings to him and to interpret or translate his testimony.” 6 Section 38-10-3(A). Officer Diaz was not interpreting the proceedings under the Act. 7 He was testifying in English as to what he understood Defendant said in Spanish 8 during the interrogation. This does not implicate or violate the Act. 9 Third, Defendant argues that the district court should have suppressed Diaz’s 10 testimony because Diaz was not serving as a neutral interpreter. As discussed, Diaz 11 was not acting as Defendant’s interpreter. Defendant’s citation to State v. Cervantes, 12 814 P.2d 1232 (Wash. Ct. App. 1991) is equally unpersuasive. There, the court of 13 appeals of Washington held that the police may not use a co-defendant as an 14 interpreter while interrogating a defendant at a crime scene for the obvious reason that 15 the co-defendant may not honestly and accurately convey information. Id. at 1234-35. 16 The present matter is plainly distinguishable from Cervantes. We reject the foregoing 17 contentions and hold that the district court did not err in permitting Diaz to testify as 18 to statements Defendant made in Spanish during the interrogation. 19 C. Miranda

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1 On appeal, Defendant argues that because his Miranda warning was inadequate, 2 his post-arrest statements to Diaz should have been suppressed. The adequacy of 3 Miranda warnings is a question of law that we review de novo. See Verdugo, 2007- 4 NMCA-095, ¶ 12. Although at trial Defendant made his motion to suppress as an 5 objection to the admission of State’s Exhibit 26, during the argument on the motion, 6 Defendant made it clear that he was challenging the adequacy of the Miranda 7 warnings. Exhibit 26 is the official English transcription of Diaz’s interrogation of 8 Defendant. State’s Exhibit 26 was not made part of the record proper and neither was 9 the recording of the interrogation. Accordingly, we originally issued a memorandum 10 opinion in which we held that we could not review Defendant’s arguments concerning 11 the district court’s ruling on the issue of suppression because of the deficiencies in the 12 record proper. 13 After our Memorandum Opinion was filed, Defendant filed a motion to 14 supplement the record with the addition of Exhibit 26 and the recording of the 15 interrogation. We granted that motion and agreed to review the merits of Defendant’s 16 claim regarding the suppression issue. We turn now to that issue. 17 According to Defendant, Exhibit 26 shows that the Miranda warnings Diaz 18 gave Defendant in Spanish varied from the standard warnings. As we explained, 19 Defendant brought this to the district court’s attention and objected to the exhibit

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1 citing Miranda. The district court admitted Exhibit 26 over this objection. 2 “Under Miranda, [p]rior to any questioning, the person must be warned that he 3 has [(1)] a right to remain silent, [(2)] that any statement he does make may be used 4 as evidence against him, and [(3)] that he has a right to the presence of an attorney, 5 either retained or appointed.” State v. Perry, 2009-NMCA-052, ¶ 13, 146 N.M. 208, 6 207 P.3d 1185 (first alteration in original) (internal quotation marks and citation 7 omitted). However, Miranda warnings are only necessary if a defendant is in police 8 custody at the time of the interrogation. State v. Snell, 2007-NMCA-113, ¶ 10, 142 9 N.M. 452, 166 P.3d 1106. Here, there is no dispute that Defendant was in custody at 10 the time he was questioned by Diaz. 11 “The defendant may waive [his or her Miranda] rights, provided that the waiver 12 is made voluntarily, knowingly, and intelligently, [b]ut unless and until such warnings 13 and waiver are demonstrated by the prosecution at trial, no evidence obtained as a 14 result of interrogation can be used against him.” Verdugo, 2007-NMCA-095, ¶ 13 15 (alteration in original) (internal quotation marks and citation omitted). “That means 16 the Miranda rights can only be waived by a defendant [a]fter such warnings have 17 been given.” Verdugo, 2007-NMCA-095, ¶ 13 (alteration in original) (internal 18 quotation marks and citation omitted). “Statements or admissions elicited contrary 19 to the requirements of Miranda are subject to suppression on motion of the

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1 defendant.” State v. Salazar, 1997-NMSC-044, ¶ 60, 123 N.M. 778, 945 P.2d 996. 2 Defendant’s contention on appeal is that Diaz failed to accurately recite the 3 required warnings. The English translation of Exhibit 26 indicates that Diaz issued 4 Defendant the following warnings in Spanish:

5 You have the right not to say anything, or to remain silent. What you 6 say may be used against me. You also have the right to speak with an 7 attorney, have him present with you. If you don’t, if you don’t have 8 money to, to pay an attorney, one, the court will, will give you one 9 without, without, uh, with no cost. Also, you have the right to speak 10 with me and not have an attorney here. You also have the right to speak 11 with me and, and answer whatever question, uh, that you want. You also 12 have the right to stop answering questions to speak with your attorney. 13 Do you understand?

14 It is apparent, based on Exhibit 26, that Defendant was given the requisite warnings. 15 He was told that he: (1) had the right to remain silent; (2) that he had the right to have 16 an attorney present, either retained or appointed; and (3) that his statements could be 17 used against him. 18 Although the English translation indicates that Defendant was told that his 19 statements could be “used against me,” referring to Diaz, this appears to be merely a 20 scrivener’s error in the transcription. It should have been formulated to say that 21 Defendant’s statements could be used against him. There is no issue in this regard. 22 Defendant does not argue the absence of the Miranda warnings, but rather that 23 the warnings given varied from the standard warnings and were, therefore, deficient.

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1 According to Defendant, the warnings were deficient because Diaz instructed 2 Defendant that he had the right to speak with Diaz without an attorney and answer any 3 questions Defendant wished to answer, thus confusing the total explanation of 4 Miranda rights. 5 “The warnings required by Miranda . . . deal with substance, not form,” State 6 v. Briggs, 81 N.M. 581, 581, 469 P.2d 730, 730 (Ct. App. 1970), and the events 7 surrounding the questioning of a defendant are probative as to the adequacy of the 8 warnings. Salazar, 1997-NMSC-044, ¶ 61. Even though Diaz told Defendant that he 9 had the right to speak with Diaz without an attorney present, and despite the fact that 10 this instruction is inconsistent with the warning issued to Defendant that he had the 11 right to remain silent, the record reflects that Defendant understood that he did not 12 have to answer Diaz’s questions and could remain silent. This understanding was 13 specifically articulated by Defendant during the interrogation. When asked by Diaz 14 about the circumstances of his divorce from one of his other ex-wives, Defendant 15 responded “[w]ell you say that, that if I don’t want to answer a question . . . I don’t 16 answer it, right? I’m not going to answer it, okay?” 17 As noted above, the adequacy of the warnings may be gleaned from the 18 circumstances surrounding the questioning. The circumstances in this case indicate 19 that the Miranda warnings issued by Diaz were adequate. Accordingly, we reject

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1 Defendant’s argument that the district court erred in denying his motion to suppress. 2 D. Sufficiency of the Evidence 3 Defendant argues that the evidence presented was insufficient to support his 4 convictions for kidnapping and CSP II. With respect to kidnapping, Defendant claims 5 that no evidence was presented showing he prevented Victim’s “liberation for a longer 6 period of time or to a greater degree than that which was necessary to commit CSP II.” 7 The jury was instructed that to convict Defendant of kidnapping, it was required 8 to find that

9 1. [Defendant] restrained or confined [Victim] by force, 10 intimidation or deception; 11 2. [Defendant] intended to hold [Victim] against [Victim’s] 12 will to inflict death, physical injury or a sexual offense on [Victim]; 13 3. This happened in New Mexico on or about the 31st day of 14 October 2005.

15 To convict Defendant of CSP II, the jury was instructed it was required to find that

16 1. [Defendant] caused [Victim] to engage in sexual 17 intercourse; 18 2. [Defendant] caused the insertion of his penis into the vagina 19 of [Victim] through the use of physical force or physical violence; 20 3. [Defendant’s] acts resulted in personal injury to [Victim]; 21 4. This happened in New Mexico on or about the 31st day of 22 October 2005.

23 The jury was not required to find, as Defendant contends, that Victim was restrained 24 for a longer period of time than necessary to commit CSP II in order to convict 25 Defendant for kidnapping. Defendant’s argument that they were required to do so is

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1 without merit. 2 Defendant cites State v. Crain, 1997-NMCA-101, 124 N.M. 84, 946 P.2d 1095, 3 and State v. Pisio, 119 N.M. 252, 889 P.2d 860 (Ct. App. 1994), to support his claim 4 that the evidence was insufficient to support the kidnapping conviction. These cases 5 involve double jeopardy and the charges of kidnapping and CSP. Crain, 6 1997-NMCA-101, ¶ 1; Pisio, 119 N.M. at 255, 889 P.2d at 863. We fail to see how 7 these authorities are relevant to Defendant’s claim that the evidence was insufficient 8 to support his kidnapping conviction. 9 “We reject as unworthy of extended discussion Defendant’s cursory argument 10 that the evidence was insufficient” to prove he was physically capable of committing 11 CSP II and that his version of the events should have prevailed at trial. State v. 12 Flores, 2010-NMSC-002, ¶ 16, 147 N.M. 542, 226 P.3d 641. Diaz testified that 13 Defendant admitted having intercourse with Victim and admitted biting her. Victim 14 testified that Defendant locked her in his home against her will, threatened her, forced 15 her to have intercourse with him using physical force, and she received injuries in the 16 process. This Court “does not substitute its judgment for that of the jury: [c]ontrary 17 evidence supporting acquittal does not provide a basis for reversal because the jury 18 is free to reject [the d]efendant’s version of the facts.” State v. Riley, 19 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and

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1 citation omitted). 2 CONCLUSION 3 For the foregoing reasons, we affirm. 4 IT IS SO ORDERED.

5 ________________________________ 6 CELIA FOY CASTILLO, Judge

7 WE CONCUR:

8 __________________________________ 9 LINDA M. VANZI, Judge

10 __________________________________ 11 TIMOTHY L. GARCIA, Judge