State v. Romero

2009 NMCA 12, 2009 NMCA 012, 203 P.3d 125, 145 N.M. 594
CourtNew Mexico Court of Appeals
DecidedDecember 9, 2008
Docket27,236
StatusPublished
Cited by12 cases

This text of 2009 NMCA 12 (State v. Romero) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Romero, 2009 NMCA 12, 2009 NMCA 012, 203 P.3d 125, 145 N.M. 594 (N.M. Ct. App. 2008).

Opinions

OPINION

WECHSLER, Judge.

{1} A jury found Defendant Jennifer Ann Romero guilty of the fourth-degree felony of custodial interference under NMSA 1978, Section 30-4-4(B) (1989). On appeal, Defendant argues that (1) the State failed to introduce evidence at her trial that was sufficient to support the jury’s verdict, (2) the district court erred in refusing to give certain jury instructions that she requested, and (3) the district court erred in denying her motion for a new trial. Although we conclude that a minor correction in Defendant’s judgment and sentence is necessary, we affirm Defendant’s conviction.

BACKGROUND

{2} Following an adjudicatory hearing in children’s court in August 2004, legal custody of Defendant’s children, including her son Joseph, was temporarily transferred to the Children, Youth and Families Department (CYFD). Pursuant to the order that resulted from that hearing, Defendant was still able to have visitation with Joseph, but any such visitation “remain[ed] in the discretion of CYFD.” Joseph was subsequently placed in a foster home in Las Cruces. In April 2005, while still in the legal custody of CYFD, Joseph, then fifteen years old, ran away from his foster home. Initially, Joseph went to a friend’s house in Las Cruces, where he stayed for six days. Joseph then took a bus to Ruidoso. Upon arriving in Ruidoso, Joseph went directly to the home in which his grandmother and Defendant lived.

{3} The following day, Defendant and Joseph’s grandmother attempted to return Joseph to his foster home in Las Cruces. However, according to Joseph’s later testimony, they were unable to do so because Joseph refused to disclose the address of his foster home and also threatened that he would either run away again or do harm to himself if he were forced to return. As a result, Defendant and Joseph’s grandmother permitted Joseph to stay with them at their home. A few days later, Defendant contacted the CYFD caseworker in charge of Joseph’s case by telephone. Defendant relayed her frustration to the CYFD caseworker that she was not informed that Joseph had run away from his foster home and vehemently questioned the quality of Joseph’s foster care. Apparently, Defendant did not tell the CYFD caseworker during that conversation that Joseph was then with her at her home in Ruidoso, and the telephone call ended when the CYFD caseworker abruptly hung up on Defendant in reaction to her aggressive tone. The next day, a police officer, at the insistence of the CYFD caseworker, went to the home of Defendant and Joseph’s grandmother. The officer found Joseph at the home and took him into custody. Defendant and Joseph’s grandmother were each subsequently charged with a violation of Section 3(M-4.

{4} Defendant’s jury trial commenced on November 21, 2005. At trial, the State offered the CYFD caseworker’s testimony. The CYFD caseworker testified that she made no attempt to contact Defendant or Joseph’s grandmother before Defendant contacted her by telephone. She also stated that in that telephone call, Defendant (1) expressed her resentment of the fact that CYFD took custody of Joseph, (2) relayed her concern that Joseph would run away again if he were forced to return to foster care, and (3) admitted that she had purchased the bus ticket for Joseph to return to Ruidoso. The CYFD caseworker later admitted on cross-examination that Defendant did not provide Joseph with any money to purchase the bus ticket from Las Cruces to Ruidoso.

{5} After the State rested its case, Defendant’s counsel expressed his intention of calling Joseph’s grandmother to testify. However, soon thereafter, it came to light that Joseph’s grandmother had elected not to testify. Instead, Joseph was called as Defendant’s first witness. Joseph testified that because he was unhappy at his foster home, he decided to run away and stay at a friend’s house in Las Cruces. He further testified that after a few days at his friend’s house, his friend’s mother purchased a bus ticket for him to Ruidoso. He stated that neither Defendant nor his grandmother was aware that he was planning on returning to their home in Ruidoso. Finally, Joseph testified that (1) Defendant and his grandmother encouraged him to return to his foster home but that he was unwilling to do so, (2) neither Defendant nor his grandmother attempted to hide from the authorities the fact that he was living at their home, and (3) there was no plan for him to stay at their home for an extended period of time.

{6} After Defendant rested her case, the district court instructed the jury according to Section 30-4-4(C). Ultimately, the jury returned a verdict of guilty. About one month later, Defendant filed a motion for a new trial, arguing, among other things, that because Joseph’s grandmother was then willing to testify, her testimony constituted “newly discovered evidence that was not available at trial due to her unavailability” and made a new trial necessary. The district court denied that motion. In November 2006, Defendant was sentenced to eighteen months of probation for her fourth-degree felony conviction of “Custodial Interference” under Section 30-4-4(B). This appeal followed.

CUSTODIAL INTERFERENCE AND UNLAWFUL INTERFERENCE

{7} We begin our analysis by noting that it appears as if the district court erroneously noted in Defendant’s judgment and sentence that she had been convicted of custodial interference under Section 30-4-4(B). Our review of the instructions given to the jury indicates that Defendant was actually convicted of unlawful interference under Section 3(M-4(C). Although custodial interference under Section 30-4-4(B) and unlawful interference under Section 30-4-4(C) share several crucial elements and are both fourth-degree felonies, they differ in at least two material ways. Subsection B requires proof that the defendant actually had a right to custody of the child at issue, whereas Subsection C requires proof that the defendant did not have such a right. Compare § 30-4-4(B) (including “having a right to custody of a child” as an element of the crime of custodial interference), with § 3(M-4(C) (including “not having a right to custody” of a child as an element of the crime of unlawful interference). In Defendant’s case, the jury was instructed that it was required to find that Defendant “did not have the right to custody of Joseph.” Because the jury found Defendant guilty, it necessarily found beyond a reasonable doubt that Defendant did not have such a right. Additionally, custodial interference under Section 30-4-4(B) includes a “good cause” exception, but unlawful interference under Section 30-4-4(0) does not. Compare § 30-4-4(B) (requiring proof that the element of “maliciously taking, detaining, concealing or enticing away or failing to return” the child at issue was committed “without good cause”), with § 30-4-4(C) (failing to include a good cause exception to the element of “maliciously taking, detaining, concealing or enticing away or failing to return” the child at issue). The jury instructions in this case did not include reference to a good cause exception. Our review of the jury instructions therefore leads us to the conclusion that (1) the jury was instructed on unlawful interference, not custodial interference and (2) Defendant was convicted of unlawful interference, not custodial interference.

{8} Despite the error included in Defendant’s judgment and sentence, Defendant was initially charged with one count of unlawful interference under Section 30-4-4(C).

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Bluebook (online)
2009 NMCA 12, 2009 NMCA 012, 203 P.3d 125, 145 N.M. 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-romero-nmctapp-2008.