State v. Marquez

Opinion

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 30,565 5 BENEDICTO MARQUEZ, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Kenneth H. Martinez, District Judge

9 Gary K. King, Attorney General 10 James W. Grayson, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Jacqueline L. Cooper, Chief Public Defender 14 Will O’Connell, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Judge.

1 This case requires us to decide whether Defendant Benedicto Marquez’s 2 convictions for both first degree kidnapping and second degree criminal sexual 3 contact with a minor (CSCM II) violate Defendant’s double jeopardy rights, and 4 whether there was sufficient evidence to support Defendant’s conviction for 5 kidnapping. Defendant only appeals his conviction for kidnapping. We affirm. 6 BACKGROUND 7 Defendant’s convictions stem from an incident that occurred over the weekend 8 of July 13, 2007, when Victim was visiting Defendant for the weekend. Victim is 9 Defendant’s daughter, who was six years old at the time of the incident. At trial, 10 Victim’s testimony established the following facts: Victim spent Friday night at her 11 aunt’s house, and Defendant came to pick her up there the following morning. Victim 12 went with Defendant when he came to the door, and she got into his car. Victim 13 testified that she and Defendant were alone in the car and that while they were driving 14 home, Defendant pulled the car over to the side of the road. She testified that there 15 were no buildings around, they were out in the open, and no cars went by. Defendant 16 was sitting in the driver’s seat, and Victim was in the front passenger seat when 17 Defendant lifted Victim onto his lap and “put his private on [her] butt.” Prior to doing 18 this, Defendant had taken Victim’s pants off and pulled down his pants. Afterwards, 19 he told Victim to put her pants back on, and they continued to his house.

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1 Defendant also testified at trial and denied the allegations against him. He 2 stated that he, his girlfriend, and his other five children all drove together in a van to 3 pick Victim up from the aunt’s house and went directly home from there. Defendant 4 testified that he had never been alone in the car with Victim on that day or any other 5 day. 6 Defendant returned Victim to her mother the following day. Victim told her 7 mother that Defendant had “put his private in [her] butt[,]” and mother took Victim 8 to the hospital to be examined. The alleged sexual offense was officially reported at 9 Anna Kaseman Hospital, and law enforcement subsequently opened an investigation. 10 Defendant was convicted of first degree kidnapping, contrary to NMSA 1978, 11 Section 30-4-1(A)(4) (2003), and CSCM II, contrary to NMSA 1978, Section 30-9- 12 13(B)(1) (2003). On appeal, Defendant argues that (1) his rights against double 13 jeopardy were violated by his convictions for both kidnapping and CSCM, and (2) 14 there was insufficient evidence to support his conviction for kidnapping. We review 15 each argument in turn. 16 DISCUSSION 17 Double Jeopardy 18 Defendant argues that his convictions for kidnapping and CSCM violate his 19 right to be free from double jeopardy because the same acts form the basis for both

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1 convictions. “The New Mexico and United States Constitutions each contain a 2 prohibition that no person ‘be twice put in jeopardy’ for the same offense.” State v. 3 Armendariz, 2006-NMSC-036, ¶ 19, 140 N.M. 182, 141 P.3d 526 (citation omitted). 4 Whether Defendant’s double jeopardy rights have been violated is a constitutional 5 question that we review de novo. Id. 6 The double jeopardy clause provides three separate constitutional protections. 7 It provides protection from (1) a second prosecution for the same offense after 8 acquittal, (2) a second prosecution for the same offense after conviction, and (3) 9 multiple punishments for the same offense. Id. ¶ 20; State v. Montoya, 2011-NMCA- 10 074, ¶ 29, 150 N.M. 415, 259 P.3d 820. There are two types of cases within the 11 multiple punishment context: (1) “unit of prosecution” cases in which the defendant 12 has been convicted of multiple violations of the same statute, and (2) “double- 13 description” cases where the defendant has been convicted of violations of multiple 14 statutes. Armendariz, 2006-NMSC-036, ¶ 20. The protection against multiple 15 punishments based on double-description “prohibits charging a defendant with 16 violations of multiple statutes for the same conduct in violation of the Legislature’s 17 intent.” Montoya, 2011-NMCA-074, ¶ 30 (alteration, internal quotation marks, and 18 citation omitted). Because Defendant argues that his convictions for kidnapping and 19 CSCM violate his right to be free from double jeopardy based on his assertion that

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1 they arise from the same conduct for different statutes, this is a double-description 2 case. Armendariz, 2006-NMSC-036, ¶ 20. 3 In double-description cases, we apply the Swafford test, first determining 4 whether the conduct underlying the offenses charged is unitary. Armendariz, 2006- 5 NMSC-036, ¶ 21. If we find it is unitary, we then proceed to the second part of the 6 test and analyze the relevant statutes to determine whether the Legislature intended 7 to punish the criminal offenses stemming from the unitary conduct separately. Id. 8 Accordingly, “double jeopardy bars a conviction if the conduct underlying the two 9 offenses is unitary and the Legislature has not indicated an intent to punish the same 10 conduct separately.” Montoya, 2011-NMCA-074, ¶ 30 (alteration, internal quotation 11 marks, and citation omitted); see Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 12 1233 (1991) (adopting the test in double-description multiple punishment cases). 13 Under Swafford, “if there was a basis for the jury to find factually distinct bases 14 for kidnapping and [CSCM], then the conduct is considered non-unitary.” Allen, 15 2000-NMSC-002, ¶ 70, 128 N.M. 482, 994 P.2d 728. “Conduct is not unitary if 16 sufficient indicia of distinctness separate the transaction into several acts.” Montoya, 17 2011-NMCA-074, ¶ 31 (internal quotation marks and citation omitted). “Sufficient 18 indicia of distinctness exist when one crime is completed before another, and also 19 when the conviction is supported by at least two distinct acts or forces, one which

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1 completes the first crime and another which is used in conjunction with the subsequent 2 crime.” Id. (internal quotation marks and citation omitted). Distinctness may also be 3 established by “looking to the quality and nature of the acts, the objects and results 4 involved, and the defendant’s mens rea and goals during each act.” State v. Saiz, 5 2008-NMSC-048, ¶ 30, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by 6 State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. “If the acts are 7 sufficiently separated, there is no multiple punishment concern, and therefore there 8 is no need to proceed to the next part” of the test regarding legislative intent. Id. ¶ 28. 9 In the instant case, Defendant contends that, other than the restraint which was 10 necessary to commit the CSCM, there was no evidence of restraint to support his 11 conviction for kidnapping. Thus, Defendant argues that the conduct from which his 12 convictions stem was unitary. Defendant asserts that our cases State v. Crain, 1997- 13 NMCA-101, ¶ 22, 124 N.M. 84, 946 P.2d 1095, and State v. Pisio, 119 N.M. 252, 14 262, 889 P.2d 860, 870 (Ct. App. 1994), in which we reversed the defendants’ 15 convictions for kidnapping and CSP II, control here and, therefore, his conviction for 16 kidnapping must similarly be vacated. We disagree, and for the reasons that follow, 17 we distinguish Crain and Pisio from Defendant’s case. 18 In Crain and Pisio, after examining the evidence in the record, we concluded 19 that the charged offenses of kidnapping and CSP II both arose out of the same act of

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1 force or physical restraint and, therefore, the conduct underlying each offense was 2 unitary. Crain, 1997-NMCA-101, ¶¶ 17, 22; Pisio, 119 N.M. at 261, 889 P.2d at 869. 3 In Crain, we reasoned that the underlying conduct was unitary where the defendant 4 committed CSP, and the force or restraint used during the act of CSP was the same 5 force or restraint used to prove kidnapping. 1997-NMCA-101, ¶¶ 17, 22. 6 Accordingly, the unitary conduct violated two statutory provisions under which the 7 defendant was charged. Id. ¶ 17. Similarly, in Pisio, we looked to the state’s theory 8 of kidnapping, as well as the time period and proximity in which the conduct 9 underlying both the offenses of kidnapping and CSP II occurred. 119 N.M. at 261, 10 889 P.2d at 869. There, we determined that the acts used to prove the kidnapping and 11 CSP II occurred within the same physical space and within a few minutes of each 12 other, and thus the conduct was unitary. Id. at 261-62, 889 P.2d at 869-70 (holding 13 that “the constitutional protection against double jeopardy precludes multiple 14 punishment for both the greater offense of CSP II, felony, and . . . kidnapping, when 15 the conduct is unitary”). Because we concluded that the conduct in both those cases 16 was unitary, we then continued with our analysis to determine whether the Legislature 17 intended to impose multiple punishments. Crain, 1997-NMCA-101, ¶ 18; Pisio, 119 18 N.M. at 261, 889 P.2d at 869.

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1 Unlike Crain and Pisio, in this case, the underlying conduct was not unitary. 2 Based on the elements of kidnapping that the State was required to prove, the State’s 3 theory on which it asked the jury to find Defendant guilty of kidnapping, and the 4 evidence presented to support the jury’s finding, we conclude that the jury could have 5 reasonably found that the conduct underlying Defendant’s conviction for kidnapping 6 was separate and distinct from the commission of CSCM. See Saiz, 2008-NMSC-048, 7 ¶ 30 (stating that the proper double jeopardy analysis is whether a jury could have 8 reasonably inferred independent factual bases for the charged offenses). Here, the 9 district court instructed the jury that in order to find Defendant guilty of kidnapping, 10 the State was required to prove each of the following elements of the crime beyond 11 a reasonable doubt:

12 1. [D]efendant took or restrained or confined or transported 13 [Victim] by force, intimidation[,] or deception; 14 2. [D]efendant intended to hold [Victim] against [Victim]’s 15 will to inflict death, physical injury[,] or a sexual offense on [Victim]; 16 3. This happened in New Mexico on or between the 10th day 17 of July, 2007 and the 16th day of July, 2007.

18 See UJI 14-403 NMRA. In addition, the jury was separately instructed that if it found 19 Defendant guilty of kidnapping, it then had to determine whether a sexual offense had 20 been committed against Victim. 21 In order to determine whether Defendant’s conviction for kidnapping was based 22 on restraint for the sole purpose of committing CSCM, we consider what the jury

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1 could reasonably have found under the facts of this case. See Montoya, 2011-NMCA- 2 074, ¶ 39 (concluding that the defendant’s conviction for kidnapping violated double 3 jeopardy where the state’s presentation and the jury instructions supported either 4 theory leaving this Court unable to determine from the record on which restraint the 5 jury based its finding of kidnapping). Our Supreme Court has explained that “the key 6 to finding the restraint element in kidnapping, separate from that involved in criminal 7 sexual penetration [or CSCM], is to determine the point at which the physical 8 association between the defendant and the victim was no longer voluntary.” State v. 9 Jacobs, 2000-NMSC-026, ¶ 24, 129 N.M. 448, 10 P.3d 127; accord State v. Allen, 10 2000-NMSC-002, ¶ 64; Pisio, 119 N.M. at 260, 889 P.2d at 868. We recognize that 11 “[a] kidnapping can occur when an association begins voluntarily but the defendant’s 12 actual purpose is other than the reason the victim voluntarily associated with the 13 defendant.” Jacobs, 2000-NMSC-026, ¶ 24; State v. Laguna, 1999-NMCA-152, ¶ 13, 14 128 N.M. 345, 992 P.2d 896. Generally, such cases involve the element of deception. 15 Jacobs, 2000-NMSC-026, ¶ 25. “Deception” as employed in our kidnapping statute 16 “necessarily implies that the victim be unaware that [he or] she was being kidnapped” 17 and “embodies either affirmative acts intended to delude a victim or omissions that 18 conceal the intent and purpose of an accused.” State v. Garcia, 100 N.M. 120, 124, 19 666 P.2d 1267, 1271 (Ct. App. 1983). “Because an individual’s intent is seldom

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1 subject to proof by direct evidence, intent may be proved by circumstantial evidence.” 2 Allen, 2000-NMSC-002, ¶ 65 (internal quotation marks and citation omitted); State 3 v. Gallegos, 2011-NMSC-027, ¶ 16, 149 N.M. 704, 254 P.3d 655. The evidence and 4 acts committed at a later point in a kidnapping may provide adequate support for the 5 jury to find that a defendant intended to hold the victim to commit a sexual offense 6 upon him or her, prior to actually committing that offense. Allen, 2000-NMSC-002, 7 ¶ 65. 8 For example, in State v. McGuire, where the defendant was convicted of both 9 kidnapping and CSP II, the evidence showed that the defendant first pushed the victim 10 into the backseat of her car, restraining her there, and later raped her. 110 N.M. 304, 11 306-07, 795 P.2d 996, 998-99 (1990). There, our Supreme Court reasoned that “the 12 operative fact to be inferred from the sexual assault as it related to the kidnapping 13 charge was the intent of [the] defendant when his victim first was subjected to 14 restraint.” Id. at 309, 795 P.2d at 1001. The Court held that the defendant’s 15 convictions did not arise out of unitary conduct because the jury could infer that the 16 defendant intended to commit CSP from the time he first restrained the victim, and 17 once he had restrained her, the crime of kidnapping was complete, though continuing 18 through the course of his other crimes. Id. Therefore, there was substantial evidence 19 presented for the jury to find an independent factual bases for each guilty verdict. Id.

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1 Here, the State consistently presented its theory of kidnapping in its opening 2 and closing statements:

3 [Defendant] is charged with kidnapping for transporting her for the 4 purpose of committing a sexual offense upon her. Kidnapping [does not] 5 mean that you have to go on a high-speed chase away from police, and 6 they are chasing you, and you are kidnapping them. Look at the way [it 7 is] defined: If you keep them for sexual purposes . . . Daddy was picking 8 her up. They were going to Daddy’s house. But you know what? He 9 did something along the way[.]

10 We understand the State’s argument to be that Victim went with Defendant willingly 11 because she was unaware that he intended to commit a sexual offense on her. See 12 Garcia, 100 N.M. at 124, 666 P.2d at 1271 (stating that in a kidnapping by deception 13 if the deceit is successful “the induced travel from one place to another will usually 14 appear consensual” (internal quotation marks and citation omitted)). On appeal, the 15 State contends that at the point Defendant put Victim in the car and drove away from 16 the aunt’s house, the kidnapping was complete, though continuing. The State asserts 17 that the jury could reasonably infer that the kidnapping was complete at that time from 18 the evidence that Defendant drove to a location other than his stated destination where 19 he committed the sexual offense on Victim. We agree. 20 Defendant correctly notes that our courts have reversed kidnapping convictions 21 on double jeopardy grounds where there is no evidence that the force or restraint used 22 to support the kidnapping charge was factually distinct from that used to perpetrate

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1 the sexual offense. However, we have rejected the proposition that kidnapping is 2 indistinguishable from the sex offense when there is evidence that the perpetrator 3 abducted the victim prior to attempting the sexual contact. Allen, 2000-NMSC-002, 4 ¶ 67; Crain, 1997-NMCA-101, ¶ 21 (clarifying that “kidnapping cannot be charged 5 out of every CSP III without some force, restraint, or deception occurring either before 6 or after the sexual penetration”). Here, we disagree with Defendant’s contention that 7 the evidence of restraint used to kidnap Victim was the same restraint necessary to 8 touch or apply force to her unclothed buttocks in the commission of CSCM. See 9 Jacobs, 2000-NMSC-026, ¶¶ 25-26 (disagreeing with the defendant’s assertion that 10 the same restraint used to kidnap the victim was necessarily the same as that used for 11 attempted CSP when the facts in the record supporting a finding that the crime of 12 kidnapping was complete though continuing before the act of CSP began). We 13 conclude that Defendant’s argument that there was no evidence of restraint other than 14 that used to actually commit the CSCM rests on a too narrow view of the evidence 15 presented. 16 Based on the evidence presented at trial—that Defendant alone picked up 17 Victim, that she got in his car and while they were driving home, Defendant pulled the 18 car over to the side of the road, there were no buildings around, they were out in the 19 open, and no cars went by—and the State’s theory of the case, we hold that the jury

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1 could have reasonably found that the crime of kidnapping was complete, though 2 continuing, prior to Defendant’s commission of CSCM on Victim. Specifically, when 3 Defendant drove to a location other than his stated destination and committed a sexual 4 offense on Victim, the jury could have reasonably inferred that Defendant kidnapped 5 Victim by deception when he picked her up from her aunt’s house with an intent other 6 than taking her directly home. See id. ¶ 25 (“The jury could have found that [the 7 d]efendant kidnapped the victim by deception when he initially offered her a ride 8 home from the mall with another intent in mind.”); McGuire 110 N.M. at 309, 795 9 P.2d 1001 (holding that the jury could infer that the defendant had the requisite intent 10 at the time of the initial restraint from evidence of the sex offense committed later in 11 the kidnapping). The jury could also have found that Victim was restrained by 12 deception when Defendant altered their route home and drove to the location where 13 he committed the sexual offense on her. Jacobs, 2000-NMSC-026, ¶ 25 (concluding 14 that the jury could have reasonably found the defendant restrained the victim by 15 deception when he changed their intended destination and drove to where she was 16 eventually killed); Allen, 2000-NMSC-002, ¶ 68 (concluding that kidnapping was 17 factually distinct from attempted CSP where the jury could have found that the 18 defendant restrained the victim in his vehicle when he drove away from their stated 19 destination and towards the area where he committed attempted CSP and murdered

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1 her). We conclude there was sufficient evidence of restraint by deception prior to 2 Defendant’s commission of CSCM. 3 As we have discussed above, based on the State’s theory of kidnapping and the 4 evidence in the record that supports it, the jury could reasonably find a separate factual 5 basis for each guilty verdict. Therefore, we hold that, unlike Crain and Pisio, the 6 conduct underlying Defendant’s convictions here was not unitary. Because 7 Defendant’s convictions do not stem from unitary conduct, the protection against 8 double jeopardy is inapplicable, and thus our analysis is at an end. See Montoya, 9 2011-NMCA-074, ¶ 34 (holding that when “the conduct is not unitary . . . the 10 evaluation of this crime ends”); Allen, 2000-NMSC-002, ¶ 70. 11 Sufficiency of the Evidence 12 Defendant also asserts that because there was no evidence of restraint beyond 13 that necessary to commit CSCM, there was insufficient evidence presented to the jury 14 to support his conviction for kidnapping. In reviewing the sufficiency of the evidence 15 in a criminal case, “we first view the evidence in the light most favorable to the state, 16 resolving all conflicts and indulging all permissible inferences in favor of the verdict.” 17 Gallegos, 2011-NMSC-027, ¶ 15 (alterations, internal quotation marks, and citations 18 omitted). Then “we must determine whether substantial evidence, either direct or 19 circumstantial, exists to support a verdict of guilty beyond a reasonable doubt for

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1 every element essential to a conviction.” Jacobs, 2000-NMSC-026, ¶ 22; Gallegos, 2 2011-NMSC-027, ¶ 15. Appellate courts “do not search for inferences supporting a 3 contrary verdict or re-weigh the evidence.” State v. Graham, 2005-NMSC-004, ¶ 13, 4 137 N.M. 197, 109 P.3d 285. We recognize that the jury’s fundamental role is that 5 of fact finder and that it is the “responsibility of the courts to ensure the jury’s 6 decisions are supportable by evidence in the record, rather than mere guess or 7 conjecture.” Gallegos, 2011-NMSC-027, ¶ 15. 8 As we have noted above, based on the evidence presented at trial, the jury could 9 have found that Defendant was guilty of kidnapping beyond a reasonable doubt. See 10 State v. Fry, 2006-NMSC-001, ¶ 29-30, 138 N.M. 700, 126 P.3d 516 (holding that the 11 evidence was sufficient to uphold the defendant’s conviction for kidnapping). 12 To the extent Defendant asserts that the jury could not have found evidence of 13 kidnapping prior to the commission of the sexual offense against Victim because she 14 was in parental custody, we disagree. Defendant cites Wilborn v. Superior Court of 15 Humboldt County, 337 P.2d 65 (Cal. 1959) (In Bank), as support for this proposition. 16 In Wilborn, the petitioner sought a writ of prohibition from the court after being 17 charged with “child-stealing.” Id. at 65. A child-stealer was defined as a “person who 18 maliciously, forcibly, or fraudulently takes or entices away any minor child with intent 19 to detain and conceal such child from its parent, guardian, or other person having the

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1 lawful charge of such child[.]” Id. at 66 (internal quotation marks and citation 2 omitted). Wilborn is not applicable or persuasive here because the elements and 3 purpose of the California statute are distinct and have a different purpose from the 4 requirements of our kidnapping statute. See id.; § 30-4-1(A); see also State v. 5 Gamlen, 2009-NMCA-073, ¶ 15, 146 N.M. 668, 213 P.3d 818 (“It is well established 6 that cases are not authority for propositions not considered.”). Defendant does not 7 point us to any New Mexico cases that provide a parental exception to kidnapping, nor 8 has the Legislature expressly provided for one. See § 30-4-1. The jury was therefore 9 able to fairly consider at what point while Victim was in Defendant’s parental custody 10 that Defendant’s conduct became unlawful so as to support his conviction for 11 kidnapping. 12 To the extent Defendant argues that this Court should adopt a judicial test for 13 determining whether confinement or movement can give rise to a kidnapping 14 conviction where another offense has also occurred and to limit the circumstances in 15 which kidnapping may be charged when another offense is also charged, we decline 16 to do so. Defendant’s conviction for kidnapping rests on facts that are adequately 17 distinct from those supporting Defendant’s conviction for CSCM, and the Legislature 18 and our precedent provide us with sufficient direction to make this determination.

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1 CONCLUSION 2 For the reasons set forth above, we affirm Defendant’s conviction for 3 kidnapping. 4 IT IS SO ORDERED.

5 __________________________________ 6 LINDA M. VANZI, Judge

7 I CONCUR:

8 _________________________________ 9 J. MILES HANISEE, Judge

10 MICHAEL E. VIGIL, Judge (dissenting).

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1 VIGIL, Judge (dissenting). 2 The effect of the Majority Opinion is that whenever a parent with legal care, 3 custody, and control of his child commits a sexual offense upon the child, an 4 irrebuttable presumption is created as a matter of law that the child was taken, 5 restrained, or confined by deception. The consequence is that the parent is thereby 6 rendered guilty of not only the sexual offense, but also the first degree felony of 7 kidnapping. I respectfully submit that the irrebuttable presumption violates due 8 process, and that under the circumstances, a child six years of age is not deceived, as 9 a matter of law. Since the majority disagrees, I dissent. 10 By virtue of the elements instruction submitted to the jury, Defendant was 11 convicted of first degree kidnapping, contrary to Section 30-4-1(A)(4). The 12 instruction states:

13 For you to find the defendant guilty of kidnapping as charged in 14 Count 2, the state must prove to your satisfaction beyond a reasonable 15 doubt each of the following elements of the crime:

16 1. The defendant took or restrained or confined or transported 17 [Child] by force, intimidation or deception;

18 2. The defendant intended to hold [Child] against [Child’s] 19 will to inflict death, physical injury or a sexual offense on [Child];

20 3. This happened in New Mexico on or between the 10th day 21 of July, 2007 and the 16th day of July, 2007.

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1 The majority correctly notes that in Crain and Pisio the same act of force or 2 physical restraint was used to commit the kidnapping and CSP offenses, and therefore, 3 double jeopardy prohibited a conviction and punishment for both offenses. Majority 4 Opinion, pp. 6-7. In order to avoid the result of these cases, the majority focuses on 5 whether the restraint to commit kidnapping was accomplished other than by means of 6 force or physical restraint. Majority Opinion, pp. 7-8. 7 Using Jacobs as its guide, the majority notes that the point at which a physical 8 association between a defendant and a victim is no longer voluntary constitutes a 9 restraint for kidnapping that is separate from a restraint to commit CSCM. Majority 10 Opinion pp. 8-10. This is a valid statement for an adult—or even a teenager. 11 However, the case before us presents us with a father who had legal care, custody, and 12 control of his six-year-old daughter. The Opinion fails to address whether such a 13 child is legally capable of withholding consent to associate with her father or to 14 prescribe the conditions under which she will associate with her father. In fact, the 15 Opinion assumes such a child is legally capable of making such decisions. 16 Continuing, the Opinion then focuses on the element of deception as a basis for 17 concluding that a victim’s consent to associate with a defendant can be involuntary. 18 Majority Opinion, pp. 9-10. Again, the six-year-old child in this case had no legal

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1 basis, whether she was deceived or not, for withholding consent to go with her father 2 for the weekend. 3 The majority accepts the State’s argument that “Victim went with Defendant 4 willingly because she was unaware that he intended to commit a sexual offense on 5 her.” Majority Opinion, p. 11. The majority then makes an analytical jump and 6 concludes that the child was deceived the moment Defendant picked her up and drove 7 to a location other than his home, and the kidnapping offense was complete. The 8 majority therefore concludes kidnapping by deception was perpetrated, and double 9 jeopardy does not prohibit a conviction and sentence for both kidnapping and CSCM 10 because deception is not an element of CSCM. 11 No evidence was presented at trial that the child was deceived about being taken 12 to any specific destination. She was simply being picked up by her father to spend the 13 weekend with him, wherever he chose to spend the weekend. Furthermore, the 14 majority assumes, without any evidence, that the six-year-old child in this case was 15 deceived about her destination because she was not taken directly to her father’s 16 house. I respectfully submit that a child this age cannot withhold or condition her 17 consent to going with her parent.

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1 The cases relied upon by the majority to support its conclusion are 2 distinguishable. The majority relies on Garcia to support its conclusion that 3 substantial evidence supports an inference that the child in this case was deceived. 4 Majority Opinion p. 11. In Garcia, an eighteen-year-old stranger was boxing with a 5 friend in the yard of the apartments where the three-year-old victim lived. 100 N.M. 6 at 122, 666 P.2d at 1269. He gave the victim a ride on his shoulders, whereupon he 7 took her toward an arroyo near the apartments, and committed CSP. Id. at 124, 666 8 P.2d at 1271. This case is clearly distinguishable. Defendant was not a stranger, but 9 a father who clearly had legal care, custody, and control of his child. Building on 10 Garcia, the majority then cites to McGuire for its conclusion that the kidnapping in 11 this case was complete when Defendant drove away from the aunt’s house with his 12 child. Majority Opinion, pp. 10-11. McGuire involved the kidnapping of an adult 13 victim, and the facts were as follows:

14 Defendant, according to Martin’s testimony, walked up to [the 15 victim] as she was sitting in her car outside the apartments and forced his 16 way into the car. He pulled [the victim] from the front seat, slapped her, 17 and forced her into the back. Defendant, Martin testified, then climbed 18 in on top of his victim and told his brother to drive. As they proceeded 19 East on I-40, defendant bound [the victim’s] hands and feet and gagged 20 her mouth with duct tape. He then raped her.

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1 110 N.M. at 307, 795 P.2d at 999. Thus, our Supreme Court concluded, “Once [the] 2 defendant restrained the victim with the requisite intent to hold her for service against 3 her will, he had committed the crime of kidnapping[.]” Id. at 309, 795 P.2d at 1001. 4 In my view, McGuire is not applicable to the facts before us in this case. 5 The majority refers to the State’s rebuttal closing argument, Majority Opinion, 6 p. 11, to assert that the State’s theory was that the child was kidnapped by deception. 7 The argument without the deletions was:

8 Ladies and gentlemen, the evidence shows that this man did this. 9 This man put his penis in his daughter’s butt. He kept her there. 10 Kidnapping doesn’t mean that you have to go on a high-speed chase 11 away from police, and they are chasing you, and you are kidnapping 12 them. Look at the way it’s defined: If you keep them for sexual 13 purposes. This little girl trusted him. Of course, she went with him 14 willingly. Daddy was picking her up. They were going to Daddy’s 15 house. But you know what? He did something along the way that she 16 will never forget. She was six years old. She has got a lot of living to 17 do, and she will never forget that.

18 (Emphasis added.) Rather than a theory of deception, the argument points to a theory 19 of “keeping” the child by force or physical restraint. 20 Under the majority’s reasoning stated in the opinion, Majority Opinion, p. 11; 21 pp. 12-14, even if Defendant drove his child home and committed CSCM, he would 22 have kidnapped her by deception because she was not going to the house to have 23 CSCM perpetrated upon her. This reasoning results in an impermissible, irrebuttable

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1 presumption of deceit, an essential element of kidnapping. See State v. Jones, 88 2 N.M.110, 112, 537 P.2d 1006, 1008 (Ct. App. 1975). Thus, every time a parent has 3 committed CSCM on his or her six-year-old child, the parent will have also separately 4 committed kidnapping by deception, because it is irrebuttably presumed that the child 5 did not consent to the CSCM. Furthermore, double jeopardy is not violated by a 6 conviction and sentence of both crimes. 7 No New Mexico precedent exists for the result reached by the majority in this 8 case, and I am unaware of any precedent from any other state which does. Unlike the 9 majority, I do not agree that the evidence supports a legal conclusion that the child 10 was actually deceived into going with Defendant, her father, and I am unwilling to 11 presume she was deceived as a matter of law. In my view, the same act of force or 12 physical restraint was used to commit the kidnapping and CSCM offense, and double 13 jeopardy prohibits a conviction for both offenses. Since the majority disagrees, I 14 dissent.

15 __________________________________ 16 MICHAEL E. VIGIL, Judge