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                                                   integrity of this document
                                                     New Mexico Compilation
                                                   Commission, Santa Fe, NM
                                                  '00'05- 15:21:43 2012.12.18
Certiorari Denied, October 10, 2012, No. 33,814

     IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-117

Filing Date: August 17, 2012

Docket No. 30,092

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

DAVID RAMOS-ARENAS,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Lisa C. Schultz, District Judge

Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Santa Fe, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Eleanor Brogan, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                  OPINION

VANZI, Judge.




                                      1
{1} Defendant David Ramos-Arenas appeals from his convictions for one count
of false imprisonment, contrary to NMSA 1978, Section 30-4-3 (1963), and two
counts of impersonating a peace officer in violation of NMSA 1978, Section 30-27-
2.1 (1999). The central issue in this case is whether a federal border patrol agent is
a “peace officer” within the meaning of Section 30-27-2.1. We agree with the district
court that the statutory definition of “peace officer” includes the impersonation of
federal officials, and we affirm on that issue. We also conclude that the district court
did not abuse its discretion in denying Defendant’s motion for mistrial based on
prosecutorial misconduct. Finally, finding no error in the district court’s other
rulings, we affirm Defendant’s convictions.

BACKGROUND

{2} Defendant was charged with two counts of impersonating a peace officer
arising out of separate incidents in which he pretended to be a United States border
patrol agent. Officer George Bernal, a New Mexico State Police Officer, testified that
on February 24, 2008, he stopped a vehicle in which Defendant was a passenger.
Because the driver was cooperative and admitted that she had been speeding, the
officer decided to issue her a citation with a lower penalty assessment. While the
officer was speaking with the driver, Defendant told the officer that he was a border
patrol agent and that he worked in San Diego. The officer asked for Defendant’s
credentials—his badge and identification—but Defendant said that he did not have
them with him and that he had left them at home. Although he did not have his
credentials, based on the fact that Defendant “was a fellow law enforcement officer”
and because the driver was cooperative, the officer decided to “go ahead and just
make this a written warning.”

{3} On March 11, 2008, Defendant again impersonated a border patrol agent.
Lucy Jimenez, a victim’s advocate with the Las Cruces District Attorney’s Office,
testified that on that date, she was driving back to her office in the late morning after
dropping off a client, when she noticed a truck in her rear-view mirror moving toward
her. As she reached an intersection, the truck accelerated past Jimenez and blocked
her car from moving. Defendant, who was wearing a green border patrol shirt and
a silver badge on his belt, got out of the truck and approached Jimenez’s vehicle.
Jimenez lowered her window two to three inches. Defendant told Jimenez that she
had broken the law by “transporting illegal aliens” and asked for her identification.
Jimenez put her district attorney identification up to the window, and Defendant then
asked for Jimenez’s driver’s license. Jimenez became concerned because she did not
see a name tag on Defendant’s shirt, so she asked for his identification. Defendant
responded by asking again for her driver’s license and tapped on the window, telling


                                           2
Jimenez to put the window down. Defendant told Jimenez that he could “take [her]
in and . . . call others to come and they would take [her] in.” After Jimenez told
Defendant that she had to call her boss, the district attorney, Defendant returned to
his truck and backed out of the way, allowing Jimenez to leave.

{4}      Prior to trial, Defendant filed a motion to dismiss pursuant to Rule 5-601(B)
NMRA. He argued that the United States Border Patrol is a subdivision of the United
States Immigration and Customs Enforcement division of the federal Department of
Homeland Security and that the statutory definition of a peace officer is limited to
New Mexico state officials and officers. The district court denied Defendant’s
motion, and the case proceeded to trial. Defendant raised the issue again at the close
of trial and tendered a jury instruction that read in part that in order to convict him for
the crime of impersonating a peace officer, the jury had to find that Defendant
“pretended to be an officer of the State of New Mexico or any of its political
subdivisions.” The district court rejected the proposed instruction, and Defendant
was convicted by a jury on all counts.

DISCUSSION

{5} On appeal, we first address Defendant’s argument that the district court erred
in failing to dismiss the two counts of impersonating a peace officer in violation of
Section 30-27-2.1. Next, we consider Defendant’s contention that he should have
been granted a mistrial due to prosecutorial misconduct based on a statement the
prosecutor made in his closing argument. Finally, we resolve the other issues raised
by Defendant.

Section 30-27-2.1 Applies to the Impersonation of Federal Officers

{6} “We review questions of statutory interpretation de novo.” State v. Moya,
2007-NMSC-027, ¶ 2, 141 N.M. 817, 161 P.3d 862 (internal quotation marks and
citation omitted). When interpreting a statute, our primary goal is to determine and
give effect to the Legislature’s intent. Id. ¶ 6. In doing so, we first look “to the words
the Legislature chose and the plain meaning of the language.” Id. “The words of a
statute, including terms not statutorily defined, should be given their ordinary
meaning absent clear and express legislative intention to the contrary.” State v.
Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994). We will “apply the plain
meaning of the statute unless the language is doubtful, ambiguous, or an adherence
to the literal use of the words would lead to injustice, absurdity, or contradiction, in
which case the statute is to be construed according to its obvious spirit or reason.”
State v. Tafoya, 2010-NMSC-019, ¶ 10, 148 N.M. 391, 237 P.3d 693 (internal


                                            3
quotation marks and citation omitted). We strictly construe penal statutes and “will
not extend punishment to cases not plainly within the statutory language used.” State
v. Littlefield, 2008-NMCA-109, ¶ 8, 144 N.M. 655, 190 P.3d 1150 (alteration,
internal quotation marks, and citation omitted). However, “[a] court should not
hobble statutory interpretation with the requirement that every circumstance meant
to be covered must be specifically mentioned in the statute.” Ogden, 118 N.M. at
244, 880 P.2d at 855.

{7} Defendant argues that the Legislature limited the definition of “peace officer”
to New Mexico state officials and officers and that it did not intend for the statute to
include the impersonation of federal agents. Thus, Defendant contends, the charges
against him for impersonating a federal border patrol agent should have been
dismissed. The State asserts that the plain language of Section 30-27-2.1 evinces a
legislative intent to protect New Mexicans from the misuse of any appearance of
authority to maintain order or make arrests. For the following reasons, we agree with
the State. We begin with the text of the statute.

{8}    Section 30-27-2.1(A), (C), provides, in relevant part,

       A.     Impersonating a peace officer consists of:

              (1)    without due authority exercising or attempting to
              exercise the functions of a peace officer; or

              (2)   pretending to be a peace officer with the intent to deceive
              another person.

              ....

       C.     As used in this section, “peace officer” means any public official
       or public officer vested by law with a duty to maintain public order or
       to make arrests for crime, whether that duty extends to all crimes or is
       limited to specific crimes.

(Emphasis added.)

{9} As we have noted, Defendant argues that the definition of “peace officer” is
limited by the Legislature’s use of the term “public officer.” “Public officer” is
uniformly defined for purposes of the Criminal Code as “any elected or appointed
officer of the state or any of its political subdivisions[.]” NMSA 1978, § 30-1-12(I)


                                           4
(1963) (emphasis added). Thus, Defendant asserts, the definition of “public officer”
refers only to New Mexico state actors. The State does not take issue with
Defendant’s definition of “public officer.” However, the State points out that unlike
the uniform definition of “public officer,” no such definition exists for “public
official.” It argues that the term should, therefore, be interpreted in a way that reflects
legislative intent and according to its ordinary meaning. See Ogden, 118 N.M. at 242,
880 P.2d at 853 (stating that words are to be given their ordinary meaning unless the
Legislature indicates otherwise).

{10} When interpreting a statute, we must interpret it “in its entirety, so that each
part of the statute is given meaning and no part is superfluous.” Moya, 2007-NMSC-
027, ¶ 9; State v. Javier M., 2001-NMSC-030, ¶ 32, 131 N.M. 1, 33 P.3d 1. Section
30-27-2.1(C) defines “peace officer” as “any public official or public officer.”
(Emphasis added.) See § 30-1-12(C); UJI 14-2216 NMRA. “As a rule of
construction, the word ‘or’ should be given its normal disjunctive meaning unless the
context of a statute demands otherwise.” Diamond v. Diamond, 2012-NMSC-022,
¶ 27, ___ P.3d ___ (internal quotation marks and citation omitted). Here, the use of
the disjunctive between “public official” and “public officer” makes clear that a
“peace officer” is not limited only to those defined as “public officers” under Section
30-2-12(I). With this guidance, we look to the ordinary meaning of “public official”
to determine if the term is limited to state officers.

{11} The ordinary meaning of a public official is “[o]ne who holds or is invested
with a public office; a person elected or appointed to carry out some portion of a
government’s sovereign powers.” Black’s Law Dictionary 1195 (9th ed. 2009).
Accordingly, “public official” has a broader meaning than “public officer.” Further,
it is clear that the power to carry out some portion of the state’s sovereign powers
includes the power to maintain order or make arrests. See § 30-27-2.1(C) (providing
that a “peace officer” is one who is “vested by law with a duty to maintain public
order or to make arrests for crime”). By giving “public official” its ordinary meaning
and recognizing its distinction from a “public officer,” we avoid a redundant result
that would otherwise be rendered mere surplusage. See Moya, 2007-NMSC-027, ¶ 9;
Javier M., 2001-NMSC-030, ¶ 32. Consequently, based on the plain language of the
statute, the terms “public official” and “public officer” are not synonymous, and the
definition of “public official” is not limited to “any elected or appointed officer of the
state or any of its political subdivisions.” And because border patrol agents are
vested with the authority to maintain order and make arrests, Defendant’s
impersonation of a border patrol agent falls within the conduct proscribed by the
statute. See § 30-27-2.1.



                                            5
{12} Our conclusion here is consistent with at least one other court’s interpretation
of a similar legislative provision. In Rice v. State, 195 S.W.3d 876, 878 (Tex. Ct.
App. 2006), the defendant appealed his conviction of impersonating a public servant
and possession of cocaine. In that case, a Texas state trooper had pulled the
defendant over for unregistered license plates. Id. The defendant, who was wearing
a department of corrections uniform with a patch that read “State of Louisiana,” told
the officer that he worked for the department of corrections and that he had been to
Texas to pick up a prisoner. Id. at 879. The officer sensed that “something was not
right” and, after additional backup arrived, found cocaine in the trunk of the car. Id.
On appeal, the defendant conceded that he had held himself out as “an official of the
[s]tate of Louisiana” but argued that the Texas penal code (code) prohibiting such
conduct applies only when the person represents that he is an official of the state of
Texas. Id. at 881 (internal quotation marks omitted). Under the Texas code, a person
commits an offense if he “impersonates a public servant.” Id. (internal quotation
marks and citation omitted). The code defines a “public servant” as “an officer,
employee, or agent of government[,]” and “[g]overnment” means “the state.” Id.
(internal quotation marks and citations omitted). Noting that the code does not define
“the state,” the Texas appellate court looked to the legislature’s purpose in enacting
the legislation. Id. The primary purpose of the code, the court stated, was clear:
“[T]he general public should not be placed at risk of submitting to the pretended
authority of an individual impersonating an agent of a ‘government unit,’ regardless
of whether the individual is impersonating a Texas officer, employee, or agent or a
Louisiana officer, employee, or agent.” Id. Consequently, the scope of the code was
not limited only to individuals impersonating officers of the state of Texas, and the
defendant’s conviction was upheld. Id. at 881-82.

{13} The Texas court’s interpretation of its penal code comports with our
understanding of the legislative purpose behind Section 30-27-2.1. The principal
objective of our statutory provision is to protect the public from being harmed or
deceived into believing a person is a peace officer and has the authority to act in an
official capacity, when in fact, there is no such authority to do so. See § 30-27-2.1;
see also Moya, 2007-NMSC-027, ¶ 16 (stating that the “language of penal statutes
should be given a reasonable or common sense construction consonant with the
objects of the legislation, and the evils sought to be overcome should be given special
attention” (internal quotation marks and citation omitted)). Moreover, to construe the
statute as Defendant suggests would lead to an absurd result. Accordingly, we
conclude that Section 30-27-2.1 is not limited to only those persons impersonating
public officials of the State of New Mexico but includes impersonating public
officials of other states and the federal government. The district court properly



                                          6
denied Defendant’s Rule 5-601(B) motion to dismiss and correctly refused
Defendant’s tendered jury instruction as an incorrect statement of the law.

The District Court Did Not Abuse Its Discretion When It Denied Defendant’s
Motion for Mistrial

{14} Defendant argues that a statement made by the State in its closing argument
amounted to prosecutorial misconduct and that the district court erred in denying his
motion for mistrial. During the course of the trial, Defendant’s employer and others
testified that Defendant told them he had previously been enrolled in the Border
Patrol Academy (Academy) and that he left due to the death of his father or a death
in the family. In fact, Defendant was withdrawn from the Academy due to
inappropriate conduct. At the end of his closing argument, the prosecutor discussed
Defendant’s credibility and, in particular, Defendant’s claims that he left the
Academy because of the death of his father, stating,

       [R]ationalization is something important to [Defendant], he can
       rationalize the death of his father to get a job. The death of his father.
       He could have said, “No, I left it because my ankle was hurting in the
       Border Patrol. My knee got hurt . . .” He had to kill his father. He had
       to say because of his father’s death. “My father’s death [led] me to
       leave.” This is a person who will rationalize.

After the prosecutor concluded his closing and before the jury retired, defense
counsel asked to approach the bench and moved for a mistrial on the ground’s that
prosecutor’s comment, “[h]e had to kill his father,” was said only to inflame the jury.
The court denied the motion.

{15} On appeal Defendant argues that the prosecutor’s comments in his closing
argument created a prejudicial effect on the jury’s verdict and deprived him of his
constitutional rights to due process and a fair trial. He asserts specifically that “the
jury could have convicted him because it thought he was a bad person who deserved
to be punished.” Thus, Defendant argues, the only remedy for the prosecutorial
misconduct was a mistrial, and the district court abused its discretion in denying the
motion.

{16} Where the error is preserved, “[w]e review a [district] court’s denial of a
motion for mistrial on the basis of remarks made in closing argument for an abuse of
discretion.” State v. Fry, 2006-NMSC-001, ¶ 50, 138 N.M. 700, 126 P.3d 516; State
v. Reynolds, 111 N.M. 263, 266, 804 P.2d 1082, 1085 (Ct. App. 1990) (“Because the


                                           7
[district] judge’s observations of the proceedings are such a critical factor in
determining whether the fairness of the trial will be affected, appellate courts review
such rulings only for abuse of discretion.”). Our task is to determine “whether the
relative weight of the error meets the threshold required to reverse a conviction.”
State v. Sosa, 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 348. Although the
State contends that Defendant’s objection was not timely, and thus not preserved, the
result here would be the same regardless of whether we review under an abuse of
discretion or fundamental error standard. For this reason, we assume without
deciding that Defendant’s objection was timely and review the district court’s denial
of his motion for mistrial for an abuse of discretion. “Because [district] judges are
in the best position to assess the impact of any questionable comment, we afford them
broad discretion in managing closing argument.” Id. ¶ 25. We will find that a district
court has abused its discretion when it acted in an “obviously erroneous, arbitrary, or
unwarranted manner.” Fry, 2006-NMSC-001, ¶ 50 (internal quotation marks and
citation omitted).

{17} The question on appeal is whether Defendant was deprived of a fair trial by
the prosecutor’s statement, “[h]e killed his father.” See id. To answer this question,
“we review the comment in context with the closing argument as a whole . . . so that
we may gain a full understanding of the comments and their potential effect on the
jury.” Id. (internal quotation marks and citation omitted). “[T]he general rule is that
an isolated comment made during closing argument is not sufficient to warrant
reversal.” Sosa, 2009-NMSC-056, ¶ 29 (internal quotation marks and citation
omitted). Our review of the transcripts establishes that the prosecutor’s comment that
Defendant “killed his father” was isolated. Put in context, it is evident that the
prosecutor was attacking Defendant’s credibility and that he was doing so by
reminding the jury that Defendant had lied about why he left the border patrol
academy. The prosecutor’s choice of phrasing could have been better. However,
attorneys are afforded “reasonable latitude in their closing statements,” and rebuttal
in particular is responsive and “not always capable of the precision that goes into
prepared remarks.” Id. ¶¶ 24-25. Given this latitude, the context in which the
statement was made, and the evidence of guilt offered against Defendant, we cannot
see a substantial likelihood that the statement prejudiced the jury so as to deny him
a fair trial. The district court did not abuse its discretion in denying Defendant’s
motion for mistrial.

There Is No Showing of Prosecutorial Vindictiveness; Defendant’s Double
Jeopardy Rights Were Not Violated; and Defendant’s Objection to an In-Court
Identification Was Not Preserved



                                          8
{18} Prior to trial at issue here, Defendant had been tried in both state and federal
court on charges arising out of the same conduct. In the first state case, Defendant
was tried on the charge of impersonating an officer with regard to the March 11, 2008
incident. That trial ended in a mistrial. In the federal case, Defendant was tried and
convicted for the February 24, 2008 incident. See United States v. Ramos-Arenas,
596 F.3d 783 (10th Cir. 2010). Before he was re-tried in state court, the State
amended the criminal information to include a second count for impersonating a
peace officer based on the February 24, 2008 incident.

{19} Defendant argues that the amendment of the criminal information to include
the count based on the February 24, 2008 incident was a result of prosecutorial
vindictiveness. He also contends that being charged in state court for the February
24, 2008 incident after he had already been convicted for it in federal court violated
his right to be free from double jeopardy. He raised these issues in a pretrial motion
to dismiss and argues that the district court erred in denying that motion. We address
each of these points in turn.

{20} A defendant’s claim of prosecutorial vindictiveness presents a mixed question
of fact and law. State v. Brule, 1999-NMSC-026, ¶ 6, 127 N.M. 368, 981 P.2d 782.
Here, the facts are not in dispute, so our review is purely de novo. See id. “Our focus
in analyzing a claim of prosecutorial vindictiveness is on whether the prosecutor has
done an act that would not have occurred but for hostility or punitive animus toward
the defendant because [the defendant] exercised a specific legal right.” Id. ¶ 10
(alteration, internal quotation marks, and citation omitted). As the basis for
Defendant’s claim, Defendant asserts that the prosecutor amended the criminal
information because the prosecutor failed to obtain a conviction against defendant in
his first trial in state court. Defendant does not identify a specific legal right that he
exercised nor does he argue that the prosecutor’s amendment to the criminal
information was in response to the exercise of a specific legal right. Defendant has
not established the basis for a claim of prosecutorial vindictiveness, and the district
court’s denial of his motion was proper.

{21} Defendant also contends that the district court erred in refusing to dismiss the
February 24, 2008 charge because it was added to the criminal information after he
had been convicted in federal court for that crime. This, he asserts, violated his right
to be free from double jeopardy. It is well established that where a defendant’s
conduct constitutes “a criminal offense within the geographical authority of more
than one sovereign, each sovereign may prosecute regardless of what the other has
done.” State v. Glascock, 2008-NMCA-006, ¶ 24, 143 N.M. 328, 176 P.3d 317
(internal quotation marks and citation omitted). This is true where, as here,


                                            9
Defendant was prosecuted for the violation of both state and federal law. See id. ¶¶
23-25. Defendant’s right to be free from double jeopardy was not violated by the
addition of the charge and his convictions in both the federal and state courts.

{22} Finally, we address Defendant’s argument that the district court erred when it
denied his motion to suppress a witness’s photo identification of him prior to the first
trial. Defendant now claims that the admission of the witness’s identification of him
at his second trial was reversible error. However, Defendant concedes that he did not
renew his motion to exclude the witness’s in-court identification at his second trial,
nor did he object at trial when the witness identified him in court. Defendant failed
to preserve this argument for appeal, and we do not consider it here. State v. Varela,
1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280; State v. Balenquah, 2009-
NMCA-055, ¶ 18, 146 N.M. 267, 208 P.3d 912.

CONCLUSION

{23} For the reasons set forth above, we affirm Defendant’s convictions.

{24} IT IS SO ORDERED.


____________________________________
                                 LINDA M. VANZI, Judge

WE CONCUR:

___________________________________
JAMES J. WECHSLER, Judge

___________________________________
CYNTHIA A. FRY, Judge

Topic Index for State v. Ramos-Arenas, No. 30,092

APPEAL AND ERROR
Standard of Review

CONSTITUTIONAL LAW
Double Jeopardy
Due Process


                                          10
CRIMINAL LAW
False Imprisonment
Impersonating an Officer

CRIMINAL PROCEDURE
Closing Argument
Double Jeopardy
Mistrial

STATUTES
Interpretation
Legislative Intent
Rules of Construction




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