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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 29,514
10 AARON A. RAMOS,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 13 Karen L. Parsons, District Judge
14 Gary K. King, Attorney General 15 Andrew S. Montgomery, Assistant Attorney General 16 Santa Fe, NM
17 for Appellee
18 Jacqueline L. Cooper, Acting Chief Public Defender 19 Carlos Ruiz de la Torre, Assistant Appellate Defender 20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 GARCIA, Judge.
24 Defendant appeals his misdemeanor conviction under the Family Violence 1 Protection Act, NMSA 1978, Section 40-13-6(D), (F) (2008), for violating a
2 temporary order of protection that prohibited contact with his ex-girlfriend, Andrea
3 Reed. Defendant contends that the district court’s refusal of his requested jury
4 instruction, which included the element that he “knowingly” violated the order of
5 protection, was reversible error. He also argues that if Section 40-13-6(D), (F) does
6 not include “knowingly” as an element, then it is void for vagueness, that the evidence
7 is insufficient to support his conviction; and that imposing a criminal penalty for
8 violation of an ex parte order of protection violates due process. We affirm.
9 BACKGROUND
10 The district court issued a temporary order of protection against Defendant on
11 October 31, 2008, upon a petition by Andrea Reed. The order prohibited Defendant
12 from going within one-hundred yards of Ms. Reed’s home, school, or workplace. The
13 order further prohibited Defendant from going within twenty-five yards of Ms. Reed
14 in a public place.
15 On Thursday, November 6, 2008, Defendant went to the Win, Place and Show
16 (WPS) bar in Ruidoso, where Defendant testified he and Ms. Reed had danced
17 “countless” times on Thursday nights. Defendant testified that he was not looking for
18 Ms. Reed or anyone else. Defendant was in the bar having a beer when he saw Ms.
2 1 Reed walk behind him and approach the bouncer. Defendant was concerned that Ms.
2 Reed would try to cause a scene, so he tried to “shield” himself from any kind of
3 “engagement” with Ms. Reed.
4 Ms. Reed testified that Defendant and she made eye contact. After Ms. Reed
5 realized that Defendant was not going to leave, Ms. Reed explained to the bouncer
6 that she had an order of protection against Defendant and requested the bouncer’s
7 assistance in asking Defendant to leave. The bouncer approached Defendant and
8 explained that Ms. Reed was present and wanted him to leave. Defendant testified
9 that he said to the bouncer, “Why do I have to leave? Why can’t she leave?”
10 Defendant told the bouncer that he did not think he should be required to leave since
11 he was just there and was “not messing with anybody.” The bouncer then informed
12 Defendant that Ms. Reed was talking about calling the police. Defendant admitted
13 that he told the bouncer, “Fuck her, she can call the cops. . . . I’m finishing my beer.”
14 Defendant testified that he finished his beer and then left.
15 Ms. Reed testified that Defendant did not leave until he realized that she had
16 called the police. After realizing that she was speaking to the police, Defendant
17 announced, “Okay, I’ll leave,” and then he left. The bouncer testified that Defendant
18 was about twelve to fifteen feet away from Ms. Reed while he was sitting at the bar.
3 1 The bouncer estimated that ten to fifteen minutes elapsed from the time Defendant
2 arrived to the time he left. He further testified that Defendant left after Ms. Reed
3 walked past Defendant dialing the number to the police department.
4 Defendant testified that he knew of the order of protection and had been served
5 with the order by a deputy sheriff. The sheriff also explained to Defendant that he was
6 serving him with an order of protection, that he could not call or contact Ms. Reed,
7 and that he was required to stay away from her. However, Defendant was at work and
8 too busy to read the order at the time it was served. Defendant testified that he did not
9 read the order until after the incident occurred. He further testified that he was not
10 aware of the twenty-five-yard restriction at the time of the incident. He said he did
11 not read the order earlier because “it wasn’t important to [him] because [he] wanted
12 her out of [his] life, and it was a good thing.” He knew that he was required to stay
13 away from Ms. Reed, stating, “It’s obvious; it’s a protective order.” He testified that,
14 in his opinion, “stay away” meant that he was not to take any initiative to contact her,
15 to call her, to write her, or to engage her. Defendant testified that he thought he
16 complied with the order at the time of the incident because he had no intent to contact
17 Ms. Reed and did not approach Ms. Reed at WPS. While Defendant was in jail, he
18 read the order of protection. He testified that the order “specifically says that the
4 1 twenty-five-yard stipulation is applicable in public places.” He further agreed that
2 WPS was a public place.
3 At trial, Defendant tendered two proposed jury instructions on the elements of
4 violating an order of protection. The first instruction defined criminal intent in
5 conformity with UJI 14-141 NMRA, which required the State to prove beyond a
6 reasonable doubt that Defendant acted intentionally when he committed the crime.
7 Defendant’s second proposed instruction included as an element of the offense both
8 that he “knew about the order of protection” and that he “knowingly violated the order
9 of protection.” The district court refused Defendant’s proposed instruction requiring
10 that the violation of the order of protection have been “knowing.” The court did
11 instruct the jury, however, that the State was required to prove beyond a reasonable
12 doubt that Defendant “knew about the temporary order of protection” and that he
13 “acted intentionally when he committed the crime.” The jury found Defendant guilty
14 of violating the order of protection, and Defendant now appeals.
15 DISCUSSION
16 A. Jury Instructions
17 Defendant argues that the district court’s refusal of his requested jury
18 instruction, which included the element that he “knowingly violated the order of
5 1 protection,” was reversible error. “The propriety of jury instructions given or denied
2 is a mixed question of law and fact[,]” which we review de novo. State v. Lucero,
3 2010-NMSC-011, ¶ 11, 147 N.M. 747, 228 P.3d 1167 (internal quotation marks and
4 citation omitted).
5 “A jury instruction is proper, and nothing more is required, if it fairly and
6 accurately presents the law.” State v. Laney, 2003-NMCA-144, ¶ 38, 134 N.M. 648,
7 81 P.3d 591. “When a uniform jury instruction exists, that instruction must be used
8 without substantive modification.” State v. Caldwell, 2008-NMCA-049, ¶ 24, 143
9 N.M. 792, 182 P.3d 775. In the absence of a uniform jury instruction, this Court must
10 examine whether the jury instruction conforms to the language of the governing
11 statute. See State v. Doe, 100 N.M. 481, 483, 672 P.2d 654, 656 (1983) (“[I]f the jury
12 instructions substantially follow the language of the statute or use equivalent
13 language, then they are sufficient.”). Whether a crime requires a showing of intent is
14 a question of statutory construction. State v. Rowell, 121 N.M. 111, 114, 908 P.2d
15 1379, 1382 (1995). We begin our review by looking at the words selected by the
16 Legislature and the plain meaning of the language. See State v. Smile, 2009-NMCA-
17 064, ¶ 8, 146 N.M. 525, 212 P.3d 413, cert. quashed, 2010-NMCERT-006, 148 N.M.
18 584, 241 P.3d 182. When a statute contains language that is clear and unambiguous,
6 1 we give effect to it and refrain from further statutory interpretation. Id.
2 Section 40-13-6(D), (F) provides the following in pertinent part:
3 D. A peace officer shall arrest without a warrant and take into 4 custody a restrained party whom the peace officer has probable cause to 5 believe has violated an order of protection that is issued pursuant to the 6 Family Violence Protection Act . . . .
7 ....
8 F. A restrained party convicted of violating an order of 9 protection granted by a court under the Family Violence Protection Act 10 is guilty of a misdemeanor . . . .
11 There is no uniform jury instruction for violation of an order of protection.
12 Defendant requested an instruction requiring the State to prove that an order of
13 protection was issued; that it was in effect on November 6, 2008; that Defendant knew
14 about the order; and that Defendant “knowingly violated” the order. The district court
15 reasoned that absent an applicable uniform jury instruction, the elements instruction
16 should conform to the applicable statute. Defendant conceded that the statute did not
17 explicitly require that the conduct be “knowing,” but argued that without including
18 “knowingly” as an element, a person could be unfairly convicted for innocent conduct
19 such as passing the person going the other way on a public street or accidently running
20 into the person at a store. The district court determined that the statute does not
21 require proof of a “knowing” violation and therefore refused Defendant’s proposed
7 1 instruction.
2 Defendant then presented the district court with an alternative instruction,
3 suggesting that if the court would not allow his requested instruction requiring a
4 knowing violation, then the court should give an instruction stating that Defendant
5 “violated the order” along with the instruction on general criminal intent. The court
6 ultimately instructed the jury on the following elements of the offense:
7 1. A temporary order of protection was filed in the [d]istrict [c]ourt . . .;
8 2. The temporary order of protection was valid on November 6, 2008;
9 3. Defendant knew about the temporary order of protection;
10 4. [D]efendant violated the temporary order of protection;
11 5. This happened in New Mexico on or about the 6th day of November 12 2008.
13 In addition, the court instructed the jury that the State was required to prove beyond
14 a reasonable doubt that Defendant acted intentionally when he committed the crime
15 pursuant to UJI 14-141.
16 We are not persuaded that Section 40-13-6(D), (F) requires that a person
17 knowingly violate an order of protection. The statute does not contain any language
18 stating that the defendant must “knowingly” violate the order. See § 40-13-6(D)
19 (providing that “[a] peace officer shall arrest . . . a restrained party whom the peace
8 1 officer has probable cause to believe has violated an order of protection”); see also §
2 40-13-6(F) (providing that a person “convicted of violating an order of protection . .
3 . is guilty of a misdemeanor”). Furthermore, “[w]e will not read into a statute
4 language which is not there, especially when it makes sense as it is written.” State v.
5 Hubble, 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 579. The Legislature knows
6 how to include the word “knowingly.” See, e.g., NMSA 1978, § 30-3A-3(A) (2009)
7 (stating that “[s]talking consists of knowingly pursuing a pattern of conduct”); see
8 also State v. Wilson, 2010-NMCA-018, ¶ 12, 147 N.M. 706, 228 P.3d 490 (holding
9 that use of the term “knowingly” in NMSA 1978, Section 30-31-20(B), (C) (2006),
10 required specific knowledge that the drug trafficking would occur within a drug-free
11 school zone), cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055. We
12 therefore conclude that the Legislature intended to omit the word “knowingly” in
13 Section 40-13-6(D), (F), and we will not read such an element into the statute. See
14 State v. Katrina G., 2007-NMCA-048, ¶ 17, 141 N.M. 501, 157 P.3d 66 (reasoning
15 that when the Legislature knew how to include something, and did not, we assume the
16 choice was deliberate); see also Smile, 2009-NMCA-064, ¶ 8 (stating that when the
17 Legislature’s language is clear and unambiguous we will refrain from further
18 interpretation). As a result, we conclude that Section 40-13-6(D), (F) does not require
9 1 that a violation of a protection order have been “knowing.” Instead, the district court
2 properly instructed the jury regarding general criminal intent, absent a specific mens
3 rea requirement in Section 40-13-6(D), (F). See State v. Gonzalez, 2005-NMCA-031,
4 ¶¶ 12-13, 137 N.M. 107, 107 P.3d 547 (reasoning that where criminal statute lacks a
5 mens rea requirement, it is construed as requiring general criminal intent absent
6 legislative intent to the contrary).
7 Furthermore, given Defendant’s testimony, he would not be entitled to his
8 requested instruction. Defendant’s defense was that he did not know his conduct was
9 wrong based on his own deliberate ignorance and failure to read what the order of
10 protection actually required, combined with his speculative assumptions about what
11 the order prohibited. Defendant admitted that he had not read the order of protection
12 prior to the incident even though it was in his possession and contained a twenty-five-
13 yard restriction for public places. He only decided to actually read the order when he
14 was in jail. Defendant also testified that he was entitled to speculate that he had
15 complied with the order despite his knowledge that it was a protective order and he
16 had not read it.
17 Ignorance of the law is no defense, and a person who is purposely ignorant may
18 not claim he or she had no knowledge. See State v. Rivera, 2009-NMCA-132, ¶ 37,
10 1 147 N.M. 406, 223 P.3d 951 (stating that ignorance of the law is no defense); see also
2 Stevenson v. Louis Dreyfus Corp., 112 N.M. 97, 100, 811 P.2d 1308, 1311 (1991)
3 (stating that “[o]ne who intentionally remains ignorant is chargeable in law with
4 knowledge” (internal quotation marks and citation omitted)); accord State v. Sanders,
5 96 N.M. 138, 140, 628 P.2d 1134, 1136 (Ct. App. 1981). Consequently, Defendant
6 was not entitled to remain deliberately ignorant of the order’s contents and then
7 substitute his own opinion of what was required in order to argue that he did not
8 “knowingly” violate the order of protection.
9 The weakness of Defendant’s position is highlighted by Defendant’s admission
10 that after reading the order, he realized that the twenty-five-yard restriction was
11 clearly stated in the order and that WPS was clearly a public place. Under the present
12 facts, Defendant’s proposed instruction regarding an inapplicable defense would have
13 constituted a misstatement of law and injected a false issue. See State v. Nieto, 2000-
14 NMSC-031, ¶ 17, 129 N.M. 688, 12 P.3d 442 (stating that a requested instruction that
15 presented an inapplicable defense was properly denied because it was a misstatement
16 of law). Given that Defendant’s theory of his lack of a knowing violation was based
17 on his own failure to read the order, the district court properly refused to permit
18 Defendant to parlay his self-imposed ignorance into a defense.
11 1 Defendant further contends that if we do not recognize that Section 40-13-6(D),
2 (F) contains knowledge as an element, innocent violations will result in unwarranted
3 criminal punishment. Specifically, Defendant asserts that, without knowledge as an
4 element, a person subject to an order of protection could be unfairly convicted for
5 passing someone in a car going the other way on a busy public street, or for
6 accidentally running into someone at a store. These abstract situations are
7 distinguishable from the facts in this case, where Defendant intentionally chose to
8 remain ignorant of the order’s requirements and refused to leave WPS even after he
9 was informed that Ms. Reed wanted him to leave pursuant to the order of protection.
10 A defendant is not entitled to an instruction that is not supported by the evidence. See
11 State v. Nozie, 2007-NMCA-131, ¶ 6, 142 N.M. 626, 168 P.3d 756 (reasoning that a
12 defendant is only entitled to jury instructions that are supported by sufficient
13 evidence). As a result, we decline to consider whether an instruction that a defendant
14 did not violate an order could conceivably be warranted in some other factual
15 scenario.
16 Finally, Defendant argues that not requiring that a violation of a protection
17 order be knowing invites absurd results, such as requiring Defendant to immediately
18 exit WPS upon becoming aware of Ms. Reed’s presence, leaving his beer unfinished.
12 1 However, Defendant fails to persuade us that leaving a beer unfinished in order to
2 comply with an order of protection is an absurd result, and we decline to address his
3 argument further.
4 As a result, we affirm the district court’s denial of Defendant’s requested
5 instruction requiring that Defendant must have knowingly violated the order of
6 protection.
7 B. Void for Vagueness
8 Defendant argues that if Section 40-13-6(D), (F) does not include “knowingly”
9 as an element, then it is unconstitutionally void for vagueness. Specifically,
10 Defendant contends that absent a requirement that a violation be committed
11 “knowingly,” the statute does not give fair notice of what constitutes a violation. We
12 consider this argument although it was not raised below. See State v. Laguna, 1999-
13 NMCA-152, ¶ 23, 128 N.M. 345, 992 P.2d 896 (reviewing a defendant’s argument
14 that a statute was void for vagueness despite the lack of preservation). “We review
15 a vagueness challenge de novo in light of the facts of the case and the conduct which
16 is prohibited by the statute.” Smile, 2009-NMCA-064, ¶ 17 (internal quotation marks
17 and citation omitted).
18 A statute is void for vagueness if it fails to give persons of ordinary intelligence
13 1 a fair opportunity to determine whether their conduct is prohibited, or if it fails to
2 provide minimum guidelines for the reasonable judge, jury, prosecutor, or police
3 officer to enforce the statute without subjective and ad hoc application. State v.
4 Jacquez, 2009-NMCA-124, ¶ 6, 147 N.M. 313, 222 P.3d 685. Statutes are presumed
5 to be constitutional, and Defendant bears the burden of establishing that the statute is
6 unconstitutional. Smile, 2009-NMCA-064, ¶ 17. Furthermore, if the statute clearly
7 applies to Defendant’s conduct, then there is no constitutional problem. See Laguna,
8 1999-NMCA-152, ¶ 24.
9 Defendant has failed to demonstrate that Section 40-13-6(D), (F) is
10 unconstitutionally vague on either ground. First, Defendant fails to demonstrate that
11 the statute did not give him a fair opportunity to determine whether his conduct was
12 prohibited. See Jacquez, 2009-NMCA-124, ¶ 6. According to Defendant’s own
13 testimony, the only reason that he was not aware of the twenty-five-yard restriction
14 was that he did not read the order of protection. After reading the order while he was
15 in jail, however, Defendant testified that the twenty-five-yard restriction was clearly
16 stated in the order and that WPS was a public place. Defendant further testified that
17 even before reading the order, it was “obvious” that a protective order required him
18 to stay away from Ms. Reed. As a result, by Defendant’s own admission, the statute
14 1 gave him a fair opportunity to determine that his conduct was prohibited.
2 Second, the statute is not so lacking in standards that its enforcement would be
3 subjective and ad hoc. See Jacquez, 2009-NMCA-124, ¶ 6. The fact that a statute is
4 written in general terms and that it then must be applied on a case-by-case basis does
5 not establish that it is unconstitutionally vague. See State v. Fleming, 2006-NMCA-
6 149, ¶ 5, 140 N.M. 797, 149 P.3d 113 (stating that mere room in a statute for the
7 exercise of charging discretion does not establish that a statute is void for vagueness);
8 State v. Larson, 94 N.M. 795, 796, 617 P.2d 1310, 1311 (1980) (stating that a statute
9 is not unconstitutionally vague just because some marginal cases could be
10 hypothesized in which doubts might arise). Furthermore, Defendant’s conduct in
11 refusing to leave WPS after he was informed that Ms. Reed wanted him to leave
12 pursuant to the order of protection constituted a clear violation of the statute. As a
13 result, we conclude that Defendant has failed to demonstrate that Section 40-13-6(D),
14 (F) is unconstitutionally vague. See Laguna, 1999-NMCA-152, ¶ 24 (reasoning that
15 if a statute clearly applies to a person’s conduct, then it is not unconstitutionally
16 vague).
17 C. Sufficiency of the Evidence
18 Defendant argues that the evidence is insufficient to support his conviction
15 1 because the violation was not intentional. Specifically, he contends that he left WPS
2 “soon after” he became aware that Ms. Reed was present and that he did not attempt
3 to approach Ms. Reed or contact her in any way.
4 In reviewing the sufficiency of the evidence, we analyze “whether direct or
5 circumstantial substantial evidence exists and supports a verdict of guilt beyond a
6 reasonable doubt with respect to every element essential for conviction.” State v.
7 Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86. “We determine whether
8 a rational factfinder could have found that each element of the crime was established
9 beyond a reasonable doubt.” Id. Furthermore, “we must view the evidence in the
10 light most favorable to the guilty verdict, indulging all reasonable inferences and
11 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,
12 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.
13 Defendant does not dispute that a temporary order of protection was filed; that
14 the order was valid on November 6, 2008; that he knew about the order of protection
15 and initially refused to leave WPS even after being informed that Ms. Reed wanted
16 him to leave pursuant to the order; that he violated the order by going within twenty-
17 five yards of Ms. Reed in a public place; and that the alleged incident happened in
18 New Mexico on or about November 6, 2008. As a result, there was sufficient
16 1 evidence for the jury to find that Defendant intentionally violated the protection order.
2 To the extent that Defendant argues that his testimony supported his belief that
3 he was in compliance with the order, the jury was free to reject his version of the
4 incident. See State v. Trujillo, 2002-NMSC-005, ¶ 31, 131 N.M. 709, 42 P.3d 814
5 (reasoning that a factfinder may reject the defendant’s version of an incident); see also
6 State v. Neal, 2008-NMCA-008, ¶ 19, 143 N.M. 341, 176 P.3d 330 (“The test is not
7 whether substantial evidence would support an acquittal, but whether substantial
8 evidence supports the verdict actually rendered.”). We hold that sufficient evidence
9 supported the jury’s finding that Defendant intentionally violated the order of
10 protection.
11 D. Due Process
12 Defendant argues that punishing him criminally based on an ex parte order of
13 protection violates due process. Defendant does not state how he preserved this issue
14 below, or why this issue need not be preserved, and therefore we decline to address
15 it. See State v. Dombos, 2008-NMCA-035, ¶ 21, 143 N.M. 668, 180 P.3d 675
16 (declining to address the defendant’s due process arguments on appeal where the
17 defendant did not preserve them); see also State v. Torres, 2005-NMCA-070, ¶ 34,
18 137 N.M. 607, 113 P.3d 877 (stating that this Court will not address issues
17 1 unsupported by argument and authority). As a result, we conclude that Defendant
2 failed to preserve his due process claim.
3 CONCLUSION
4 For the foregoing reasons, we affirm Defendant’s conviction and sentence.
5 IT IS SO ORDERED.
6 ______________________________ 7 TIMOTHY L. GARCIA, Judge
8 WE CONCUR:
9 _________________________________ 10 MICHAEL D. BUSTAMANTE, Judge
11 _________________________________ 12 CYNTHIA A. FRY, Judge