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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Filing Date: October 5, 2017
3 NO. S-1-SC-35780
4 STATE OF NEW MEXICO,
5 Plaintiff-Appellee,
6 v.
7 MARK R. ROMERO,
8 Defendant-Appellant.
9 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 10 George P. Eichwald, District Judge
11 McGarry Law Office 12 Kathleen A. McGarry 13 Glorieta, NM
14 for Appellant
15 Hector H. Balderas, Attorney General 16 Maris Veidemanis, Assistant Attorney General 17 Santa Fe, NM
18 for Appellee 1 DECISION
2 VIGIL, Justice.
3 {1} Mark Romero (Defendant) appeals his convictions of false imprisonment,
4 contrary to NMSA 1978, Section 30-4-3 (1963); felony murder, contrary to NMSA
5 1978, Section 30-2-1(A)(2) (1994); and kidnapping, contrary to NMSA 1978, Section
6 30-4-1(B) (2004). The trial court vacated the kidnapping conviction, the predicate
7 offense underlying the felony murder conviction. State v. Frazier, 2007-NMSC-032,
8 ¶¶ 1, 40, 142 N.M. 120, 164 P.3d 1 (holding that, for double jeopardy purposes, “the
9 predicate [offense] is always subsumed into a felony murder conviction”). We have
10 jurisdiction over the appeal pursuant to Rule 12-102(A)(1) NMRA.
11 {2} Defendant contends that the evidence was insufficient to support the
12 convictions and that the trial court abused its discretion during the direct examination
13 of a witness, Dennis Chavez (Chavez), who was present during the false
14 imprisonment. We reject these arguments. Because the issues are well-settled under
15 New Mexico law, we render a non-precedential decision affirming the convictions.
16 See Rule 12-405(B) NMRA.
17 I. BACKGROUND
18 {3} Defendant and his wife lived next door to Genevieve Jaramillo (Jaramillo) at
2 1 an apartment complex in Bernalillo, New Mexico. On the evening of July 30, 2011,
2 Genevieve Jaramillo was inside her apartment with Chavez and her boyfriend,
3 Francisco Landovazo (Victim). Chavez and Jaramillo had been visiting for several
4 hours.
5 {4} Suddenly, Defendant and Freddie Silva (Silva) entered Jaramillo’s apartment,
6 held a gun to her head, and told Jaramillo and Chavez to get on the floor. Defendant
7 handcuffed Victim and told him to get into the back of a truck. Defendant then drove
8 Victim to El Llanito, New Mexico.
9 {5} When they arrived in El Llanito, Victim was still in the truck. Defendant and
10 Silva discussed what to do next. Defendant started beating Victim with a baseball bat,
11 hitting Victim about five times. Silva warned Defendant that “[he was] going to get
12 blood everywhere.” According to Silva, “nothing was ever supposed to go that far.”
13 {6} Defendant asked Silva for a “rope or something.” Defendant retrieved a rope
14 from a nearby shed, wrapped it around Victim’s neck, and began to “choke” Victim.
15 Silva testified that Defendant continued to strangle Victim for roughly a minute, “until
16 he stopped moving.” Victim died “when [Defendant] choked him.” Defendant then
17 tied Victim up with a rope. Defendant later bragged about the killing to a corrections
18 officer, and told the officer that “if [Silva] would have kept his mouth shut, they both
3 1 would have got[ten] away with it.”
2 {7} Victim’s body was discovered in a remote location near Highway 550, hogtied
3 and bound in five different ways. The location of the body was consistent with Silva’s
4 testimony that, after the murder, he, Defendant, and Defendant’s wife drove west on
5 Highway 550 “to find somewhere to get rid of the body.” Security footage from the
6 Giant in San Ysidro depicts three vehicles entering the property at 3:42 a.m. The
7 security footage depicts Defendant’s wife exiting her car, messing with a gas pump,
8 and getting back into the vehicle.
9 {8} Silva testified that Defendant placed the body into the trunk of his wife’s car.
10 The carpet lining was later found to be missing from her car’s trunk. An expert
11 testified that “normally[,] that trunk lining is attached to the trunk floor.”
12 {9} The State introduced expert testimony that, on the night of the killing, there
13 were six or seven calls between Defendant’s wife’s cell phone and a phone subscribed
14 to Silva’s daughter.1 Both phones were in Bernalillo before going “off the grid,” and
15 “could have been in the same area.” Additional facts are included as relevant to the
16 analysis.
1 17 The expert witness, Russell Romero (Agent Romero), is a Special Agent for 18 the Federal Bureau of Investigation trained to approximate cell phone locations. The 19 State moved to qualify Agent Romero as an expert and Defendant did not object.
4 1 II. SUFFICIENCY OF THE EVIDENCE
2 A. Standard of Review
3 {10} “In reviewing whether there was sufficient evidence to support a conviction, we
4 resolve all disputed facts in favor of the State, indulge all reasonable inferences in
5 support of the verdict, and disregard all evidence . . . to the contrary.” State v. Largo,
6 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and citation omitted).
7 “[O]ur review never serves as a substitution for the jury’s fact-finding role.” State v.
8 Tafoya, 2012-NMSC-030, ¶ 36, 285 P.3d 604. However, “[i]t is our duty to determine
9 whether a jury could have found the essential facts to establish each element of the
10 crime beyond a reasonable doubt.” State v. Consaul, 2014-NMSC-030, ¶ 42, 332 P.3d
11 850 (internal quotation marks and citation omitted).
12 B. Evidence Supporting the False Imprisonment Conviction
13 {11} “False imprisonment consists of intentionally confining or restraining another
14 person without his [or her] consent and with knowledge that he [or she] has no lawful
15 authority to do so.” Section 30-4-3. To convict Defendant of false imprisonment, the
16 jury was instructed to find that (1) Defendant restrained and/or confined Jaramillo
17 against her will; (2) Defendant knew he had no authority to restrain or confine
18 Jaramillo; and (3) this happened in New Mexico on or about July 30, 2011. See UJI
5 1 14-401 NMRA. Silva testified that the incident occurred on July 30, 2011.
2 {12} We begin with the evidence supporting the restraint element. The jury could
3 have found that Defendant restrained or confined Jaramillo against her will based on
4 testimony that he grabbed her by the hair, held a gun to her head, and told her to get
5 to the ground. See State v. Corneau, 1989-NMCA-040, ¶¶ 12-14, 109 N.M. 81, 781
6 P.2d 1159 (holding that the restraint may rise “out of words, acts, gestures, or similar
7 means,” and need only last a brief time), cert. denied, Corneau v. State, 108 N.M. 668,
8 777 P.2d 907 (May 16, 1989). Defendant dragged Jaramillo across the room, an action
9 we have upheld as sufficient to support the restraint element. Id. Jaramillo was
10 shaking and crying and there was testimony that she, Chavez, and Victim were not
11 free to leave. This evidence was clearly enough for a jury to find that Defendant
12 restrained Jaramillo against her will.
13 {13} Next, we review the evidence that Defendant knew that he had no authority to
14 restrain Jaramillo. “[W]hen a defendant’s underlying acts are unlawful, it may be
15 inferred that the defendant knows, too, that he has no lawful authority to restrain the
16 victim in the commission of those unlawful acts.” State v. Barrera, 2002-NMCA-098,
17 ¶ 11, 132 N.M. 707, 54 P.3d 548. Defendant restrained Jaramillo in the commission
18 of a violent kidnapping and murder. Defendant did so by holding a gun to Jaramillo’s
6 1 head and dragging her by the hair, acts which could constitute assault or battery. See
2 NMSA 1978, § 30-3-1(B) (1963) (defining assault as “any unlawful act, threat or
3 menacing conduct which causes another person to reasonably believe that he is in
4 danger of receiving an immediate battery”); see also NMSA 1978, § 30-3-4 (1963)
5 (“Battery is the unlawful, intentional touching or application of force to the person of
6 another, when done in a rude, insolent or angry manner.”). Based on the unlawful
7 circumstances of the restraint, the jury could have found that Defendant knew he
8 lacked the authority to restrain Jaramillo.
9 {14} We reject Defendant’s contention that it was Silva who imprisoned Jaramillo,
10 and the evidence was therefore insufficient to support the false imprisonment
11 conviction. Independent of Silva’s actions, Defendant’s dragging Jaramillo across the
12 room with a gun to her head was sufficient to constitute false imprisonment.
13 Moreover, we have upheld convictions where the defendant was one of multiple
14 perpetrators. See, e.g., State v. Smith, 2001-NMSC-004, ¶¶ 4-5, 10, 130 N.M. 117, 19
15 P.3d 254. For example, in Smith, the defendant and two others shoved a stranger in
16 a car and drove him to a remote location. Id. ¶ 5. We held that the jury could have
17 reasonably determined that the defendant either confined the victim against his will
18 or helped or encouraged that to happen. Id. ¶ 10; see also State v. Muise,
7 1 1985-NMCA-090, ¶¶ 28-30, 103 N.M. 382, 707 P.2d 1192 (upholding a conviction
2 of false imprisonment when the defendant and her son acted together to halt and
3 disable a school bus), cert. denied, Muise v. State, 103 N.M. 287, 705 P. 2d 1138
4 (1985). In sum, there was sufficient evidence to uphold the false imprisonment
5 conviction in this case.
6 C. Evidence Supporting the Felony Murder Conviction
7 {15} A felony murder conviction requires proof that (1) the defendant committed or
8 attempted to commit a felony, of either the first degree or under circumstances or in
9 a manner dangerous to human life; (2) “the defendant caused the death of the victim
10 during the commission or attempted commission of the felony”; (3) “the defendant
11 intended to kill or knew that his or her acts created a strong probability of death or
12 great bodily harm.” See State v. Marquez, 2016-NMSC-025, ¶ 13, 376 P.3d 815.
13 1. Evidence supporting the predicate offense, kidnapping
14 {16} Defendant was charged with felony murder based on the predicate offense of
15 first-degree kidnapping. “Kidnapping is the unlawful taking, restraining, transporting
16 or confining of a person[] by force, intimidation[,] or deception, with intent . . . to
17 inflict death, physical injury[,] or a sexual offense on the victim.” Section 30-4-1(A).
18 To convict Defendant of kidnapping, the jury was instructed to find that (1) Defendant
8 1 took, restrained, or transported Victim by force; (2) intended to hold Victim against
2 his will, to inflict death or physical injury; and (3) this happened in New Mexico on
3 or about July 30, 2011. See UJI 14-403 NMRA.
4 {17} We begin with the evidence that Defendant took, restrained, or transported
5 Victim by force. “[T]he key to finding the restraint element in kidnapping . . . is to
6 determine the point at which the physical association . . . was no longer voluntary.”
7 State v. Jacobs, 2000-NMSC-026, ¶ 24, 129 N.M. 448, 10 P.3d 127. Here, Defendant
8 handcuffed Victim, told Victim to get in Defendant’s truck, and drove Victim to El
9 Llanito. The cell phones were in El Llanito during the relevant time frame. In addition,
10 a reasonable mind could have inferred that the taking was forceful because Defendant
11 was armed and caused Victim to yell and scream. Defendant did not protest when
12 Silva punched Victim. In total, this evidence was sufficient to find that Defendant
13 took, restrained, or transported Victim by force.
14 {18} With respect to Defendant’s intent to hold Victim against his will, “it is the
15 intent of [the] defendant which controls, and the determination as to whether this
16 intent was present is for the trier of the facts when [at] issue in the case.” State v.
17 Aguirre, 1972-NMSC-081, ¶ 35, 84 N.M. 376, 503 P.2d 1154. The jury found that
18 Defendant had the requisite intent. Its finding was supported by the fact that
9 1 Defendant initiated a plan to confront Victim, forced him into his truck, told Victim
2 they would “take him and talk to him,” and subsequently killed him.
3 2. Evidence that Defendant caused the death of Victim
4 {19} Next, we review the evidence of a causal relationship between the death and the
5 felony. See State v. Harrison, 1977-NMSC-038, ¶¶ 10-11, 90 N.M. 439, 564 P.2d
6 1321, superseded on other grounds as stated in Tafoya v. Baca, 1985-NMSC-067, ¶
7 17, 103 N.M. 56, 702 P.2d 1001. The death must be caused by “those acts of [the]
8 defendant or his accomplice initiating and leading to the homicide without an
9 independent force intervening.” Harrison, 1977-NMSC-038, ¶ 11. In this case, there
10 was ample evidence that Victim died as a result of Defendant’s acts. Silva testified
11 that Victim died when Defendant “choked” him with a rope. The doctor who
12 performed the autopsy confirmed that Victim died as a result of strangulation and
13 four-point restraint. Together, this evidence was sufficient to support the finding that
14 Victim died as a result of Defendant’s actions.
15 {20} Defendant contends that the State failed to prove that he “personally” killed
16 Victim. We disagree. The jury was free to reject this version of events. See State v.
17 Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence
18 supporting acquittal does not provide a basis for reversal because the jury is free to
10 1 reject [the d]efendant’s version of the facts.”). Moreover, Defendant overlooks that
2 he could be liable for the acts of a person with whom he shares a common plan. See
3 Harrison, 1977-NMSC-038, ¶ 11 (“[C]ausation consists of those acts of [the]
4 defendant or his accomplice initiating and leading to the homicide.”); see also State
5 v. O’Kelly, 2004-NMCA-013, ¶ 45, 135 N.M. 40, 84 P.3d 88 (assuming that a
6 defendant could be liable for felony murder when the killer was an accomplice).
7 Because there was sufficient evidence that Defendant caused the death of Victim, this
8 argument fails.
9 3. Evidence of Defendant’s intent to kill
10 {21} Finally, we review the evidence that Defendant had the intent to kill. State v.
11 Ortega, 1991-NMSC-084, ¶ 25, 112 N.M. 554, 817 P.2d 1196 (limiting the scope of
12 felony murder liability to intentional killings), abrogated on other grounds by Kersey
13 v. Hatch, 2010-NMSC-020, ¶¶ 17-18, 148 N.M. 381, 237 P.3d 683. To sustain a
14 felony murder conviction, the State must prove that Defendant possessed, at a
15 minimum, the mens rea required to sustain a conviction of second-degree murder,
16 “knowledge that the defendant’s acts create a strong probability of death or great
17 bodily harm.” Ortega, 1991-NMSC-084, ¶ 25 (internal quotation marks and citation
18 omitted); see also § 30-2-1(B) (identifying the mens rea for second-degree murder).
11 1 {22} In this case, there was ample evidence that the killing was intentional. Cf. State
2 v. Duran, 2006-NMSC-035, ¶ 8, 140 N.M. 94, 140 P.3d 515 (“Deliberate intent may
3 be inferred from the particular circumstances of the killing as proved by the State
4 through the presentation of physical evidence.”). Prior to the strangulation, Silva and
5 Defendant “said a few words more or less deciding what [they] were going to do.”
6 They paused to retrieve a rope. Cf. State v. Gonzales, No. 35,291, dec. ¶ 4 (N.M. Sup.
7 Ct. Feb. 11, 2016) (non-precedential) (construing the defendant’s retrieval and
8 preparation of a weapon as evidence of deliberate intent). Defendant then wrapped the
9 rope around Victim’s neck and strangled him until he stopped moving. Defendant held
10 the rope around Victim’s neck for about a minute, enough time for Defendant to
11 realize that his actions posed a great risk of harm.
12 {23} The method of killing, strangulation, gives rise to an inference that Defendant
13 had the intent to kill. Cf. State v. Smith, 2016-NMSC-007, ¶ 22, 367 P.3d 420 (noting
14 that a prolonged method of killing raises an inference of deliberate intent). In addition,
15 Victim’s body was discovered with a long, yellow rope around the neck, wrists, and
16 ankles; a white rope and coaxial cable around the neck; and a black and white scarf
17 around the ankles. The numerous and complicated bindings were evidence of overkill,
18 i.e., excessive injury. Cf. Smith, 2016-NMSC-007, ¶ 22 (describing numerous stab
12 1 wounds as evidence of overkill and deliberation). Defendant later “bragged” to a
2 corrections officer about the killing and hoped to get away with the charges. The jury
3 could have interpreted these statements as evidence that the killing was intentional.
4 Cf. Duran, 2006-NMSC-035, ¶ 9 (holding that the jury could have interpreted the
5 defendant’s attitude toward the deceased as evidence of deliberation). Based on this
6 evidence, a reasonable mind could have found that Defendant not only knew that his
7 actions created a probability of death but deliberately killed Victim.
8 {24} In sum, the State proved the elements of the predicate offense, kidnapping; a
9 causal relationship between the kidnapping and death; and that the killing was
10 intentional. See Marquez, 2016-NMSC-025, ¶ 13 (describing the elements necessary
11 to sustain a felony murder conviction). This was sufficient evidence to support the
12 felony murder conviction.
13 III. IMPEACHMENT OF DENNIS CHAVEZ
14 {25} Last, Defendant argues that the trial court abused its discretion during the direct
15 examination of Chavez. Specifically, Defendant argues (1) it was error for the trial
16 court to permit the use of leading questions on its own witness; and (2) the trial court
17 erred by allowing Chavez to read from his prior statement in refreshing recollection.
18 We conclude that it was within the trial court’s discretion to allow the examination to
13 1 proceed in this manner.
3 {26} We review the trial court’s decision to admit evidence for abuse of discretion.
4 State v. Macias, 2009-NMSC-028, ¶ 16, 146 N.M. 378, 210 P.3d 804, overruled on
5 other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. “A trial
6 court abuses its discretion when it exercises its discretion based on a misunderstanding
7 of the law.” Macias, 2009-NMSC-028, ¶ 16 (internal quotation marks and citation
8 omitted). “An abuse of discretion occurs when the ruling is clearly against the logic
9 and effect of the facts and circumstances of the case.” State v. Sutphin, 1988-NMSC-
10 031, ¶ 18, 107 N.M. 126, 753 P.2d 1314 (citation omitted).
11 B. Manner of Questioning
12 {27} During his direct examination, Chavez repeatedly stated that he could not
13 remember the details of the incident and gave contradictory statements regarding key
14 facts of the case. For example, Chavez initially denied that he had ever been to the
15 apartments and claimed that he and Jaramillo were free to go during the false
16 imprisonment. Chavez later testified that he was at the apartments during the false
17 imprisonment and that he was not free to leave.
18 {28} Defense counsel objected to the use of leading questions. The trial court noted
14 1 that Chavez was not answering the questions and declared him to be hostile, thus
2 permitting the use of leading questions. In addition, the State sought to “refresh”
3 Chavez’ recollection using the prior statement Chavez gave to Lieutenant Mills.
4 {29} The trial court noted that Defendant was giving Chavez “a pretty good stare
5 down” during the questioning and appeared to be nodding in approval of Chavez’
6 testimony. Chavez claimed that his memory of the incident was adversely affected by
7 drug and alcohol use and subsequent psychiatric treatment.
8 C. The Trial Court Did Not Abuse its Discretion by Permitting the Use of 9 Leading Questions
10 {30} Under Rule 11-611(C) NMRA, leading questions may be used on direct
11 examination when necessary to develop the witness’s testimony. See State v. Orona,
12 1979-NMSC-011, ¶¶ 28, 30, 92 N.M. 450, 589 P.2d 1041 (noting that the use of
13 leading questions may be appropriate on direct examination when a witness is
14 immature, timid, or frightened).
15 {31} The trial court’s permitting the use of leading questions was not clearly against
16 the facts and circumstances of the case. See Sutphin, 1988-NMSC-031, ¶ 18 (defining
17 an abuse of discretion). The trial court acknowledged that Defendant was staring
18 menacingly at Chavez. In addition, the trial court heard testimony that Jaramillo was
19 unwilling to appear and that Defendant threatened to kill Silva’s girlfriend in
15 1 retaliation for his testimony. The trial court could have reasonably permitted the use
2 of leading questions if it determined that Chavez was frightened or intimidated.
3 Orona, 1979-NMSC-011, ¶ 28. Under these facts and circumstances, the trial court
4 did not abuse its discretion in permitting the use of leading questions.
5 D. The Trial Court Could Have Reasonably Permitted the Witness to Read 6 from the Prior Statement for Impeachment Purposes
7 {32} The trial court could have reasonably permitted the witness to read from his
8 prior statement for impeachment purposes. See State v. Martinez, 1982-NMCA-053,
9 ¶ 8, 98 N.M. 27, 644 P.2d 541 (noting that a party could have introduced evidence of
10 an inconsistency under Rule 613(b) when a witness claimed she could not remember
11 the alleged inconsistency). Rule 11-613(B) NMRA permits a party to impeach a
12 witness with extrinsic evidence of the witness’s prior inconsistent statement when the
13 witness has the opportunity to explain or deny the statement and is subject to cross
14 examination. See, e.g., State v. Dominguez, 2007-NMSC-060, ¶¶ 18-19, 142 N.M.
15 811, 171 P.3d 750, holding modified on other grounds by State v. Garcia, 2011-
16 NMSC-003, ¶ 22, 149 N.M. 185, 246 P.3d 1057. In Dominguez, for example, the
17 defendant argued that the trial court erred by permitting the impeachment without
18 establishing the time, place, and circumstances that the statement was made. Id. ¶¶ 15-
19 17. We rejected the defendant’s argument, holding that such formalities are not
16 1 required when “the witness [has] an opportunity to explain and the opposite party an
2 opportunity to examine on the statement, with no specification of any particular time
3 or sequence.” Id. ¶¶ 18-19 (internal quotation marks and citation omitted).
4 {33} Both of those conditions were met in this case. Chavez was subject to cross
5 examination and had ample opportunity to clarify his testimony. Given the numerous
6 inconsistencies in Chavez’ testimony, the trial court could have reasonably permitted
7 the use of the statement for impeachment. See Martinez, 1982-NMCA-053, ¶ 8 (“Once
8 the [witness] testified she did not remember the alleged inconsistent answer,
9 [opposing counsel] could have introduced evidence of an inconsistency pursuant to
10 Evidence Rule 613(b).”). It was within the trial court’s discretion to determine that use
11 of the statement was appropriate to impeach Chavez’ frequent claims that he could not
12 remember the incident. See id.
13 {34} We acknowledge that there may have been some confusion regarding whether
14 the statement was used to impeach or refresh recollection. The trial court, however,
15 could have permitted impeachment without regard to the sequence of questioning. See
16 Dominguez, 2007-NMSC-060, ¶¶ 15-19 (rejecting the argument that the trial court
17 abused its discretion by permitting the State to read prior statements into evidence
18 “without first asking questions and then using the transcript to impeach”). It was not
17 1 an abuse of discretion to allow the examination to proceed in this manner. See id. ¶ 19.
2 IV. CONCLUSION
3 {35} We conclude that there was sufficient evidence to uphold Defendant’s
4 convictions, and reject Defendant’s contention that the trial court abused its discretion
5 during the questioning of a witness. We therefore affirm.
6 {36} IT IS SO ORDERED.
7 ______________________________ 8 BARBARA J. VIGIL, Justice
9 WE CONCUR:
10 ___________________________________ 11 JUDITH K. NAKAMURA, Chief Justice
12 ___________________________________ 13 PETRA JIMENEZ MAES, Justice
14 ___________________________________ 15 EDWARD L. CHÁVEZ, Justice
18 1 ___________________________________ 2 CHARLES W. DANIELS, Justice