 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                       NO. 29,156

 5 PATRICIA SIPES,

 6        Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
 8 John W. Pope, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Susan Roth, Assistant Appellate Defender, NM

14 for Appellant

15                              MEMORANDUM OPINION

16 KENNEDY, Judge.

17        Defendant is appealing from a district court judgment and sentence entered after

18 a jury found Defendant guilty of second degree murder, kidnapping, and aggravated

19 arson. We issued a calendar notice proposing to affirm, and Defendant has responded

20 with a memorandum in opposition. We affirm.

21 IMPLIED ACQUITTAL
 1        Defendant continues to argue that her conviction for second degree murder was

 2 barred under the implied acquittal doctrine. Among other charges, Defendant was

 3 indicted on first degree murder [RP 1], and the jury was instructed on second degree

 4 murder as a lesser-included offense. [RP 90] At the first trial a jury acquitted

 5 Defendant on some of the charges, but announced that it was deadlocked on others,

 6 and a mistrial was declared. After the jury was discharged, the State filed a motion

 7 to clarify the jury verdict, in that it was under the impression that the jury had

 8 acquitted Defendant of first degree murder, but had deadlocked on second degree

 9 murder. [RP 135] The motion indicated that the jury had not been polled on this

10 issue, and that the State and defense counsel wanted to recall the jury to clarify the

11 matter. [RP 135] The jury was reconvened, after which the district court issued an

12 order of mistrial stating that Defendant had been acquitted of first degree murder and

13 the jury had deadlocked on second degree murder. [RP 139]

14        On appeal from the second trial, which resulted in Defendant’s conviction for

15 second degree murder and other crimes, Defendant argued in her docketing statement

16 that it was reversible error for the jury not to have been questioned as to any

17 agreement “with respect to the lesser included offenses” of Count 1. [DS 11]

18 Defendant’s argument was based on her claim that the jury was only questioned as to

19 first degree murder, where they informed the court that they had indeed acquitted

20 Defendant on this charge, but no questions were allegedly asked of the second degree

21 murder charge. [DS 12] Defendant’s memorandum in opposition is likewise

22 predicated on the view that it is unclear whether the jury deadlocked on second degree

                                             2
 1 murder; however, as set forth below, we conclude that there was no implicit acquittal

 2 in this case.

 3        As we observed in our calendar notice, we will presume that the district court

 4 erred in reassembling the jury nearly three months after it had been discharged. [RP

 5 135, 138] See State v. Rodriguez, 2006-NMSC-018, ¶¶ 3-7, 139 N.M. 450, 134 P.3d

 6 737 (discussing presumption of prejudice once the jury has been removed from

 7 control of the court). Nevertheless, we do not find it necessary to rely on the jury’s

 8 delayed clarification of its verdict. Defendant’s argument that the State could not

 9 retry her on the second degree murder charge is that the lack of clarification in the

10 verdict in the first trial resulted in an “implied acquittal,” because the district court

11 failed to question the jury with respect to each alternative offense, as required by Rule

12 5-611(D) NMRA. Defendant’s argument on appeal has been predicated on the claim

13 that the jurors “were never asked as to their decision with respect to the lesser

14 included offenses of second degree murder or manslaughter.” [DS 12 - emphasis

15 added] However, the jury was not instructed on manslaughter, but instead Count 1

16 provided for only two alternatives: first degree murder or second degree murder. [RP

17 84, 86-90] The jury received a stepdown instruction on Count 1. [RP 93] The record

18 indicates that the jury in the first trial announced that it was deadlocked with respect

19 to Count 1. [RP 154, No. 3] Under the implied acquittal doctrine, “failing to ascertain

20 a deadlock as to each level of the charge that the jury is deliberating requires dismissal

21 of all but the least of the lesser included charges submitted to the jury.” State v.

22 Fielder, 2005-NMCA-108, ¶ 12, 138 N.M. 244, 118 P.3d 752. As applied here, this

                                               3
 1 means that the State could retry Defendant on second degree murder because it was

 2 the least of the offenses instructed on Count 1. In addition, we do not believe that

 3 Defendant suffered any prejudice from the failure to poll the jury on Count 1, because,

 4 in light of the announced deadlock, deadlock on the second degree murder charge was

 5 the most favorable result of any inquiry. See State v. Garcia, 2005-NMCA-042, ¶ 22,

 6 137 N.M. 315, 110 P.3d 531 (concluding “that, in cases in which first and second

 7 degree murder charges are submitted to the jury, a district court need only inquire

 8 whether the jury has truly deadlocked on the greater offense of first degree murder”).

 9 Because Defendant’s state and federal constitutional arguments in her memorandum

10 in opposition erroneously presume confusion in the first verdict, without disputing the

11 basic facts set forth above, we conclude that there was no implied acquittal of second

12 degree murder.

13 SUFFICIENCY

14        Defendant continues to challenge the sufficiency of the evidence to support her

15 convictions for kidnapping and aggravated arson. [MIO 12] A sufficiency of the

16 evidence review involves a two-step process. Initially, the evidence is viewed in the

17 light most favorable to the verdict. Then the appellate court must make a legal

18 determination of “whether the evidence viewed in this manner could justify a finding

19 by any rational trier of fact that each element of the crime charged has been

20 established beyond a reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887

21 P.2d 756, 760 (1994) (internal quotation marks and citation omitted).

22        In order to support the conviction for kidnapping (principal or accessory), the

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 1 evidence had to show that Defendant took, restrained, confined or transported Victim,

 2 against Victim’s will, to inflict death or physical injury. [RP 96] See UJI 14-403

 3 NMRA. Defendant is specifically challenging the lack of evidence of intent. [MIO

 4 13] A defendant’s knowledge or intent generally presents a question of fact for a jury

 5 to decide. See State v. Wasson, 1998-NMCA-087, ¶ 12, 125 N.M. 656, 964 P.2d 820.

 6        Here, even under Defendant’s self-defense claim, which the jury rejected, she

 7 became aware of Victim’s presence in the vehicle while she and Angel Esquibel were

 8 driving off in Victim’s vehicle to burn it. [MIO 2] Jessica Casavos testified in the

 9 second trial that Defendant was the one who lit the car on fire. [DS 5-6] Although

10 Defendant is challenging the credibility of this testimony by referring to prior

11 testimony by Casavos [DS 14-15], this was a conflict to be resolved by the factfinder.

12 See State v. Roybal, 115 N.M. 27, 30, 846 P.2d 333, 336 (Ct. App. 1992). The jury

13 could buttress this evidence with Defendant’s acknowledged preparation of wiping

14 down the vehicle, in that at a minimum she was an accessory to kidnapping. [DS 7]

15 We therefore rely on the facts as stated in the memorandum in opposition, and in more

16 detail in the docketing statement, to conclude that sufficient evidence was presented

17 to support the kidnapping conviction.

18        In order to support the conviction for aggravated arson, the evidence had to

19 show that Defendant set fire to Victim’s vehicle, causing Victim to sustain an injury


                                             5
 1 creating a high probability of death. [RP 102] See UJI 14-1706 NMRA. Based on

 2 the evidence referred to above, we believe that the jury could reasonably conclude

 3 that, even if Defendant had not been the one who lit the fire, her actions supported the

 4 conviction as an accessory.

 5 INEFFECTIVE ASSISTANCE

 6        Pursuant to State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App.

 7 1985), Defendant contends that she received ineffective assistance of counsel. [MIO

 8 14] This Court will not decide an ineffective assistance of counsel claim on direct

 9 appeal unless a defendant makes a prima facie showing that counsel was incompetent

10 and the incompetence resulted in prejudice to the defense. See State v. Richardson,

11 114 N.M. 725, 727, 845 P.2d 819, 821 (Ct. App. 1992).

12        Here, Defendant is claiming that defense counsel should have made a timely

13 objection to the district court’s failure to direct the jury to clarify their decision with

14 respect to the deadlock over Count 1. [MIO 14-15] However, as we explained above,

15 the only benefit to Defendant would have been to clarify that the deadlock was over

16 second degree murder, with an acquittal on first degree murder. Because Defendant

17 was never re-tried on first degree murder, there was no prejudice from counsel’s

18 inaction.

19 CUMULATIVE ERROR


                                                6
 1          Defendant continues to raise a cumulative error claim. [MIO 16] “The doctrine

 2 of cumulative error requires reversal when a series of lesser improprieties throughout

 3 a trial are found, in aggregate, to be so prejudicial that the defendant was deprived of

 4 the constitutional right to a fair trial.” State v. Duffy, 1998-NMSC-014, ¶ 29, 126

 5 N.M. 132, 967 P.2d 807. When there is no error, “there is no cumulative error.” State

 6 v. Aragon, 1999-NMCA-060, ¶ 19, 127 N.M. 393, 981 P.2d 1211. Because we hold

 7 that there was no multiple error, we hold that the cumulative error doctrine does not

 8 apply.

 9          For the reasons set forth above, we affirm.

10          IT IS SO ORDERED.


11                                          ___________________________________
12                                          RODERICK T. KENNEDY, Judge




13 WE CONCUR:



14 ___________________________
15 ROBERT E. ROBLES, Judge



                                               7
1 ___________________________
2 TIMOTHY L. GARCIA, Judge




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