                                                           I attest to the accuracy and
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                                                              New Mexico Compilation
                                                            Commission, Santa Fe, NM
                                                           '00'04- 13:58:15 2017.08.09

Certiorari Denied, May 31, 2017, No. S-1-SC-36449

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-052

Filing Date: April 5, 2017

Docket No. 34,651

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

BRANDON LOZOYA,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Angie K. Schneider, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Elizabeth Ashton, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

SUTIN, Judge.

{1}     Defendant Brandon Lozoya was charged and convicted by a jury of contributing to
the delinquency of a minor (CDM), in violation of NMSA 1978, Section 30-6-3 (1990), and
shoplifting, in violation of NMSA 1978, Section 30-16-20(A)(1) (2006). On appeal,
Defendant argues (1) that his convictions for CDM and shoplifting as an accessory violate

                                           1
double jeopardy; (2) alternatively, his conviction for CDM violates the plain language of
Section 30-16-20(C), under a statutory construction analysis; (3) the State failed to present
sufficient evidence of CDM; (4) the district court erred in failing to include knowledge of
age as an element in the CDM instruction; (5) the district court erred in allowing the State
to impeach Defendant with his prior conviction; and (6) the prosecutor committed
prosecutorial misconduct during closing argument. We hold that Defendant’s convictions
for CDM and shoplifting violate double jeopardy, and for the reasons stated in this opinion,
we reverse and remand with instructions to vacate the shoplifting conviction.

BACKGROUND

{2}     Defendant was at a house party in Alamogordo, New Mexico, when he was offered
a ride to Walmart to get more alcohol. He accepted the ride, and when he entered the
backseat of a female friend’s vehicle, he noticed that a third person, Child, was in the front
passenger seat. Defendant and Child had never met each other before. The three individuals
drove for approximately three to four minutes to Walmart. When they arrived, Defendant
and Child got out of the car, entered Walmart, and headed toward the alcohol section.

{3}      Defendant and Child dispute what was known to Defendant before entering Walmart
and while they were in Walmart’s alcohol section. Child testified that her intent when she
was dropped off at Walmart was to steal bottles of alcohol. She testified that she had
discussed her intent to shoplift with Defendant, and Defendant “looked out to see if anyone
was coming” while she shoplifted. According to Child, Defendant pointed out bottles of
alcohol that he wanted, but she instead only placed bottles she wanted in her purse. Child
testified that she told Defendant that she did not have any money. Child admitted that she
did not tell Defendant her age and admitted that she had never met Defendant before that
night.

{4}     Defendant testified that no one suggested stealing liquor and that he had no idea
Child intended to shoplift. According to Defendant, he did not know Child was shoplifting
until she had taken a second bottle. Defendant also testified that he had no idea how old
Child was and assumed she was twenty-one years old.

{5}     After Child placed two bottles of alcohol in her purse, Defendant and Child headed
toward the exit. They were stopped by a Walmart asset protection associate who asked that
they return the bottles. The associate testified that her observations made her believe that
Defendant and Child were there together, and she believed that Defendant was assisting
Child in picking out merchandise to steal. She further testified that Defendant asked her if
she would agree to not call the police if they returned the items. The items were returned,
and Child and Defendant left Walmart separately. The associate called the police, and Child
and Defendant were both apprehended by law enforcement.

{6}   For his role in the crime, Defendant was charged with shoplifting under $250 (a petty
misdemeanor) and CDM (a fourth degree felony). Prior to trial, Defendant moved to keep

                                              2
out the names or nature of his prior convictions for robbery and possession of cocaine if he
testified. The court deferred ruling at that time, but at trial denied the motion, finding that
the probative value for impeachment purposes outweighed any prejudicial effect. At trial,
Defendant testified in his own defense, and during direct examination, admitted he had
previously been convicted of robbery and possession of cocaine. On cross-examination, the
State further questioned Defendant about his prior convictions. He also questioned whether
Defendant was under the influence of illegal drugs on the night in question and asked
whether he had a sexual interest in Child.

{7}      During closing argument, the prosecutor remarked, “What is a twenty-seven-year-old
man doing with a fifteen-year-old girl and another young lady in the car . . . ? Well, nothing
good I expect.” He also referenced the fact that a condom packet was found in Defendant’s
pocket after he was apprehended and searched by law enforcement, suggested that alcohol,
minors, and condoms were “[n]ot a recipe for a good ending[,]” and pleaded to the jury
“[d]on’t allow him to do this to our children.” According to the prosecutor, “[Defendant]
went there with one purpose. To get booze and to have some fun that night. You can infer
the rest.” The prosecutor also mentioned, “regarding [the] issue of credibility,” Defendant’s
prior convictions, and categorized him as a “two-time felon.” Defendant was convicted on
both counts, and this appeal followed.

DISCUSSION

I.     Double Jeopardy

{8}     We begin by analyzing Defendant’s claim that his CDM and shoplifting convictions
violate double jeopardy and that this Court must vacate one of his convictions. Because we
ultimately reverse Defendant’s shoplifting conviction on double jeopardy grounds, we need
not and do not separately address his statutory construction argument that appears to rely
almost entirely on the logic and case law set forth in his double jeopardy argument.

{9}      “The Fifth Amendment of the United States Constitution prohibits double jeopardy
and is made applicable to New Mexico by the Fourteenth Amendment.” State v. Swick,
2012-NMSC-018, ¶ 10, 279 P.3d 747; see U.S. Const. amends. V & XIV, § 1. The right to
be free from double jeopardy protects, in relevant part, “against multiple punishments for the
same offense.” State v. Montoya, 2011-NMCA-074, ¶ 29, 150 N.M. 415, 259 P.3d 820
(internal quotation marks and citation omitted). The specific type of multiple punishment
case we are dealing with here, where Defendant was convicted of crimes under two separate
statutes,

       is categorized as a double[]description case, which prohibits charging a
       defendant with violations of multiple statutes for the same conduct in
       violation of the Legislature’s intent. In such a case, double jeopardy bars a
       conviction if the conduct underlying the two offenses is unitary and the
       Legislature has not indicated an intent to punish the same conduct separately.

                                              3
Id. ¶ 30 (alterations, internal quotation marks, and citations omitted). A double jeopardy
challenge is a constitutional question of law that the appellate courts review de novo. Swick,
2012-NMSC-018, ¶ 10.

{10} The parties agree that the conduct underlying the CDM conviction and the shoplifting
conviction was unitary and that, under a double description analysis, a double jeopardy
violation exists. However, the parties disagree about which conviction should be vacated.
Defendant argues that the CDM charge must be vacated because according to Section 30-16-
20(C), “[a]n individual charged with a violation of this section shall not be charged with a
separate or additional offense arising out of the same transaction[,]” and thus, the Legislature
intended to bar punishment for CDM in cases, such as this, where CDM and shoplifting
arose out of the same transaction. Defendant also argues that “[t]o the extent the reach of this
statute is ambiguous, the rule of lenity applies” and that the Court should therefore vacate
his CDM conviction as opposed to his shoplifting conviction. See State v. Santillanes, 2001-
NMSC-018, ¶ 34, 130 N.M. 464, 27 P.3d 456 (“The rule of lenity counsels that criminal
statutes should be interpreted in the defendant’s favor when insurmountable ambiguity
persists regarding the intended scope of a criminal statute.” (internal quotation marks and
citation omitted)).

{11} The State argues that under double jeopardy jurisprudence the shoplifting conviction,
a petty misdemeanor that carries a lesser punishment, must be vacated, while the CDM
conviction, a felony, must stand. See State v. Montoya, 2013-NMSC-020, ¶ 55, 306 P.3d 426
(“[W]here one of two otherwise valid convictions must be vacated to avoid violation of
double jeopardy protections, we must vacate the conviction carrying the shorter sentence.”);
State v. Lee, 2009-NMCA-075, ¶ 16, 146 N.M. 605, 213 P.3d 509 (“When double jeopardy
exists, the offense carrying the lesser punishment is to be vacated.”). Defendant
acknowledges that “typically the lesser conviction is vacated when both violate double
jeopardy” but he asserts that the language in the shoplifting statute indicates that the
Legislature intended only that shoplifting be charged.

{12} In evaluating that essential issue of whether we should vacate the shoplifting
conviction or the CDM conviction, we are persuaded that the appellate courts’ general
practice of vacating the conviction carrying the shorter sentence in cases where double
jeopardy protections have been violated is the proper approach here. In support of this
approach of vacating the conviction with the lesser punishment, our Supreme Court has held
that “[a]s a matter of separation of powers, it is the exclusive prerogative of the Legislature,
the law-making branch of our representative democracy, to determine relative seriousness
and punishment for criminal offenses.” Montoya, 2013-NMSC-020, ¶ 56. Moreover, “as a
matter of policy, it would be unacceptable for us to hold that where a person’s criminal
conduct would have violated either of two statutes, a defendant can escape liability for the
one carrying the greater punishment by committing the crime in such a manner as to also
violate the statute carrying the lesser penalty.” Id.

{13}   We further note that the approach of vacating the conviction carrying the lesser

                                               4
punishment has also been utilized specifically in the context of Section 30-16-20(C). In State
v. Ramirez, 2008-NMCA-165, 145 N.M. 367, 198 P.3d 866, this Court considered whether
to vacate a shoplifting conviction or a burglary conviction when it was determined that the
two convictions violated the language of Section 30-16-20(C). The Ramirez Court stated that
Section 30-16-20(C) evidenced a legislative intent that shoplifters not be “charged with
multiple crimes arising from a single instance of shoplifting” and that:

       The prohibition on additional charges means the shoplifting charges were
       null when brought. It is for the [prosecution] to decide which charges to bring
       based upon the circumstances. Here, the [prosecution] chose burglary.
       Adding two charges of shoplifting in violation of the statutory limitation on
       additional charges was explicitly prohibited by the plain language of Section
       30-16-20(C). Therefore, we vacate [the d]efendant’s convictions for two
       counts of shoplifting and remand to the district court for resentencing.

Ramirez, 2008-NMCA-165, ¶¶ 16-17.

{14} Finally, the rule of lenity does not assist Defendant in his proposition that this Court
should vacate the CDM conviction as opposed to the shoplifting conviction. The rule of
lenity applies in cases where there is “insurmountable ambiguity” regarding legislative
intent, and it “does not apply to a determination of which conviction to vacate as a result of
impermissible multiple punishments.” Santillanes, 2001-NMSC-018, ¶¶ 33, 34.

{15} In sum, we are not persuaded that the Legislature intended Section 30-16-20(C) to
apply in double jeopardy circumstances to require the shoplifting conviction to stand and the
other conviction to be vacated. Because our common law guides us to vacate the lesser
offense and because the rule of lenity does not apply, we vacate the shoplifting conviction
as opposed to the CDM conviction.

II.    Sufficiency of the Evidence

{16} Defendant next argues that the State failed to present sufficient evidence of CDM.
Specifically, he argues that (1) one of the alternatives in the jury instruction that Defendant
“allowed [Child] to shoplift” was legally inadequate under the statutory definition of the
crime, and (2) the State was required to prove and failed to prove that he knew Child was
under the age of eighteen.

{17} When reviewing claims of insufficient evidence, we “resolve all disputed facts in
favor of the [prosecution], indulge all reasonable inferences in support of the verdict, and
disregard all evidence and inferences to the contrary.” State v. Smith, 2016-NMSC-007, ¶ 19,
367 P.3d 420 (internal quotation marks and citation omitted). We then determine “whether
the evidence, viewed in this manner, could justify a finding by any rational trier of fact that
each element of the crime charged has been established beyond a reasonable doubt.” State
v. Sanders, 1994-NMSC-043, ¶ 11, 117 N.M. 452, 872 P.2d 870. The issues of whether

                                              5
Defendant allowed Child to shoplift was legally adequate under the statute and whether the
State was required to prove that Defendant knew Child was a minor are legal issues that
require statutory construction for which our review is de novo. See, e.g., State v. Neatherlin,
2007-NMCA-035, ¶ 8, 141 N.M. 328, 154 P.3d 703 (“The issue of whether [the d]efendant’s
mouth is a deadly weapon is one of law, applying law to the facts and requiring statutory
construction; our review is de novo.” (internal quotation marks and citation omitted)).

A.      Legal Adequacy of Alternatives

{18} Defendant argues that the first alternative in the CDM jury instruction that Defendant
allowed Child to shoplift is “legally inadequate” and not within the statutory definition of
the crime. “[A] conviction under a general verdict must be reversed if one of the alternative
bases of conviction is legally inadequate and it is impossible to tell which ground the jury
selected.” State v. Downey, 2008-NMSC-061, ¶ 40, 145 N.M. 232, 195 P.3d 1244 (internal
quotation marks and citation omitted). Defendant points to New Mexico civil case law,
recognizing that “[a]s a general rule, an individual does not have a duty to control the acts
of a third party in the absence of a duty imposed by statute or recognized as a result of a
special relationship that exists between a defendant and the tortfeasor.” Tercero v. Roman
Catholic Diocese, 2002-NMSC-018, ¶ 25, 132 N.M. 312, 48 P.3d 50; see Johnstone v. City
of Albuquerque, 2006-NMCA-119, ¶ 7, 140 N.M. 596, 145 P.3d 76 (“To impose a duty, a
relationship must exist that legally obligates [the d]efendant to protect [the p]laintiff’s
interest. Absent such a relationship, there exists no general duty to protect others from
harm.” (citation omitted)); see also Romero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-
059, ¶ 7, 146 N.M. 520, 212 P.3d 408 (recognizing that “absent a special relationship, there
is no duty to protect others from harm caused by criminal acts of third persons”). Defendant
argues that, as a “virtual stranger” to Child, he had no responsibility for Child or her actions,
and it was not his responsibility to stop her from shoplifting. Defendant asserts that because
he had no duty to Child, any omission or failure to act is legally inadequate to prove CDM.

{19} In response, the State argues that the CDM conviction was based on legally adequate
alternatives. It asserts that, given the definition of “allow” as provided in Black’s Law
Dictionary, the jury could have found Defendant guilty by determining that Defendant
“committed an act of showing approval for or consenting to[] the shoplifting.” The State also
disagrees with Defendant’s portrayal of himself as a stranger to Child. The State agrees that
a stranger should not be charged with CDM if merely in the presence of a minor but argues
that Defendant and Child were not strangers.

{20} We are unpersuaded by Defendant’s arguments that he had no duty to Child and thus
the State’s theory of his guilt predicated on the fact that he “allowed Child to shoplift” was
legally inadequate. There was sufficient evidence for a jury to conclude that Defendant and
Child were acquainted to a degree that they were not strangers or “virtual strangers.”

{21} In this case, Child testified that she had driven to Walmart with Defendant and had
discussed her shoplifting with him. Defendant “looked out to see if anyone was coming”

                                               6
while she shoplifted. Child testified that she told Defendant that she did not have any money.
The asset protection associate at Walmart testified that Defendant and Child appeared to be
working together, and she believed that Defendant was assisting Child in picking out
merchandise. Child and Defendant left Walmart separately but were ultimately apprehended
together by law enforcement. Given the facts of this case, we decline to conclude that the
alternative of allowing Child to shoplift fails to come within the statutory definition of the
crime or that it is beyond the intended reach of the statute, as argued by Defendant. See
Griffin v. United States, 502 U.S. 46, 59 (1991) (indicating that “[j]urors are not generally
equipped to determine whether . . . the action in question . . . fails to come within the
statutory definition of the crime”). Child’s testimony provided sufficient evidence to convict
Defendant of CDM.

B.     Knowledge of Child’s Age

{22} Defendant also argues that the State failed to present sufficient evidence that
Defendant knew Child was under eighteen. He argues that CDM is not a strict liability
offense and asserts that the State should have been required to prove that he knew Child was
under eighteen as an essential element of CDM. In an attempt to bolster his position,
Defendant points to CDM cases where the charged adult had reason to know the age of the
child. See, e.g., State v. Trevino, 1993-NMSC-067, ¶ 2, 116 N.M. 528, 865 P.2d 1172
(stating that the child was a fourteen-year-old child employed by the defendant); State v.
Cuevas, 1980-NMSC-101, ¶ 4, 94 N.M. 792, 617 P.2d 1307 (stating that the defendant, who
was a teacher, attended a party with minors from school and demonstrated drinking alcohol),
overruled on other grounds by State v. Pitts, 1986-NMSC-011, 103 N.M. 778, 714 P.2d 582;
State v. Webb, 2013-NMCA-027, ¶ 2, 296 P.3d 1247 (stating that the defendant picked up
her daughter and daughter’s friends from middle school); State v. Dietrich, 2009-NMCA-
031, ¶¶ 59-60, 145 N.M. 733, 204 P.3d 748 (stating that the child was released twice to the
defendant from a youth detention facility); State v. Stone, 2008-NMCA-062, ¶ 5, 144 N.M.
78, 183 P.3d 963 (stating that the defendant bought alcohol for his fifteen-year-old daughter
and her friends).

{23} The State argues that knowledge of the age of Child need not be proved for a CDM
conviction. The State looks to other states that have concluded CDM does require knowledge
but that the mental state only applies to the act of contributing to the delinquency not to the
child’s age. See, e.g., Gorman v. People, 19 P.3d 662, 667 (Colo. 2000) (en banc) (holding
that “the culpable mental state of ‘knowingly’ [in Colorado’s CDM statute] does not apply
to the statute’s age element”). The State asserts that the purpose of the statute is to protect
children who may be “led astray” and that including knowledge of the child’s age as an
element of CDM “would require [that] the child, the individual the statute inten[d]s to
protect, hold some sort of responsibility to the adult to provide information as to his or her
age.” According to the State, that would be an absurd consequence and would undermine the
purpose of the statute. Additionally, the State argues that even if this Court determines that
the prosecution was required to prove that Defendant knew Child was under the age of
eighteen, any potential prejudice was cured by the mistake of fact instruction that was given

                                              7
to the jury.

{24} The specific question of whether New Mexico’s CDM statute requires proof that the
charged adult knew the child’s age is an issue of first impression. This Court has previously
held that “where the [prosecution] seeks to convict a defendant of CDM for causing or
encouraging a minor to refuse to obey the reasonable and lawful command or direction of
the minor’s parent . . . the [prosecution] must prove . . . that the defendant knew or by the
exercise of reasonable care should have known of such command or direction.” State v.
Romero, 2000-NMCA-029, ¶ 31, 128 N.M. 806, 999 P.2d 1038. Romero, however, did not
address knowledge of the child’s age as an essential element. We also note that the CDM
cases cited by Defendant, in which the charged adult had reason to know the age of the child,
do not assist this Court because knowledge of the child’s age in those cases was not the issue
on appeal. See Fernandez v. Farmers Ins. Co., 1993-NMSC-035, ¶ 15, 115 N.M. 622, 857
P.2d 22 (stating that generally “cases are not authority for propositions not considered”
(internal quotation marks and citation omitted)).

{25} Although this Court has not specifically addressed the issue now before us on appeal,
we have considered whether proof of criminal intent is generally required as an essential
element of CDM. State v. Gunter, 1974-NMCA-132, ¶ 4, 87 N.M. 71, 529 P.2d 297. In
Gunter we stated that “[a] reading of the statute indicates the [L]egislature did not intend that
criminal intent be an element of the offense of [CDM].” Id. ¶ 5. In support of that
conclusion, we noted that “[i]nfants have generally been a favored class for special
protection in New Mexico” and held that the Legislature intended to make the commission
of CDM a crime without regard to intent. Id. ¶¶ 6-7. Gunter is instructive. And our Supreme
Court “has tacitly approved . . . that the [CDM] statute is constitutional although it imposes
criminal sanctions for acts committed without criminal intent.” Pitts, 1986-NMSC-011, ¶ 11.

{26} It is well established that “the intent of the Legislature in enacting [the CDM statute,]
Section 30-6-3 and its predecessors was to extend the broadest possible protection to
children, who may be led astray in innumerable ways. In order to realize this legislative
purpose, [the appellate courts] have consistently rejected narrow constructions of the statute
that would limit its usefulness in protecting children.” Id. ¶ 10; see also Cuevas, 1980-
NMSC-101, ¶ 12 (“[T]he purpose of our contributing statute is to protect children from
harmful adult conduct.”); State v. McKinley, 1949-NMSC-010, ¶ 13, 53 N.M. 106, 202 P.2d
964 (holding that the purpose of a predecessor CDM statute was “to protect the youth of our
state from those evil and designing persons who would lead them astray, and [the appellate
courts] are not disposed to in any way impair its usefulness by giving any narrow or strained
construction to any of its plain and obvious provisions” (internal quotation marks and
citation omitted)).

{27} Given the purpose of the CDM statute, we decline to narrowly construe the statute
or limit its application by imposing a knowledge requirement as requested by Defendant. We
conclude that CDM does not require proof that the offending adult know the age of the child
to whose delinquency the adult contributed. Because we hold that CDM does not require

                                               8
proof that the offending adult know the at-issue child’s age, we need not address Defendant’s
argument that failure to provide a knowledge-of-age element to the jury instruction
constituted error.

III.   Evidence of Defendant’s Prior Conviction

{28} The appellate courts “review the admission of evidence under an abuse of discretion
standard and will not reverse in the absence of a clear abuse.” State v. Sarracino, 1998-
NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. Unless this Court concludes that the district
court’s ruling was clearly untenable or not justified by reason, we will not hold that the
district court abused its discretion. See State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438,
971 P.2d 829.

{29} Defendant argues that the district court erred in allowing the State to impeach him
with his prior robbery conviction. He argues that his prior robbery conviction was not a
crime of dishonesty, and even if it was, its probative value was weakened by its remoteness
because it occurred almost ten years prior. He also argues that the State sought to include
evidence of his prior conviction for improper propensity purposes—i.e., to portray
Defendant as a person who steals. He argues that admission of his prior conviction was used
as substantive evidence of guilt and that admission of the prior conviction deprived
Defendant of a fair trial.

{30} The State responds that the district court properly admitted evidence of Defendant’s
prior robbery conviction. It argues that when Defendant took the stand in his own defense,
subjecting himself to cross-examination, the prosecution appropriately seized the opportunity
to question his credibility under Rule 11-609 NMRA. The State agrees that the crimes of
robbery and shoplifting/CDM are similar in nature but argues that evidence of Defendant’s
prior conviction should not be prohibited based solely on the similarity of the crime. The
State also argues that the fact Defendant’s prior conviction occurred almost ten years prior
does not impact its admissibility because Rule 11-609(B) only limits admission if more than
ten years has elapsed. Finally, the State argues that the district court properly weighed the
probative value of the evidence of Defendant’s prior conviction and correctly determined
that any prejudice was substantially outweighed.

{31} Rule 11-609(A)(1)(b) allows for impeachment of a witness by evidence of a criminal
conviction. Rule 11-609(A)(1)(b) states that when

       attacking a witness’s character for truthfulness by evidence of a criminal
       conviction[] for a crime that, in the convicting jurisdiction, was punishable
       by death or by imprisonment for more than one . . . year the evidence must
       be admitted in a criminal case in which the witness is a defendant, if the
       probative value of the evidence outweighs its prejudicial effect to that
       defendant[.]


                                             9
Thus, because Defendant chose to act as a witness and testify on his own behalf, his
character for truthfulness could be impeached by evidence of his prior convictions, so long
as the evidence’s probative value outweighed its prejudicial effect. Rule 11-609(B) further
limits the use of a prior criminal conviction, but only applies if “more than ten . . . years have
passed since the witness’s conviction or release from confinement for it, whichever is later.”
Because the ten-year limitation did not apply to Defendant’s conviction, the State was not
limited by Rule 11-609(B).

{32} We conclude that the district court did not abuse its discretion in holding that
evidence of Defendant’s prior robbery conviction was admissible as impeachment evidence.
Defendant chose to testify in his defense, and his version of the incident conflicts with the
version of the State’s witnesses. Defendant’s credibility was placed at issue, and we cannot
say that the probative value for impeachment purposes failed to outweigh its prejudicial
effect. Defendant denied involvement in Child’s shoplifting scheme and denied knowing
Child’s age. Child, however, testified that she informed Defendant of her plan and that
Defendant acted as her lookout. Thus, Defendant’s credibility was a central issue. “Under
such circumstances, it became more, not less, compelling to explore all avenues which
would shed light on which of the two witnesses was to be believed.” State v. Trejo, 1991-
NMCA-143, ¶ 15, 113 N.M. 342, 825 P.2d 1252 (internal quotation marks and citation
omitted).

{33} Although Defendant’s robbery conviction and the shoplifting conviction could be
considered similar in some respects and “convictions for the same crime should be admitted
sparingly[,] . . . evidence of a prior offense is not prohibited for impeachment purposes
solely on the basis of its similarity with the presently charged crime.” Id. ¶ 12 (citation
omitted). We reject Defendant’s argument that his robbery conviction should not have been
admitted under Rule 11-609 because it was a crime of violence, as opposed to a crime of
dishonesty. This Court has specifically held that robbery is a crime that involves dishonesty.
See State v. Day, 1978-NMCA-018, ¶ 38, 91 N.M. 570, 577 P.2d 878 (“[R]obbery may not
be a crime involving deceit, that is, false statement. However, it clearly involves theft, which
is dishonesty.”). As this Court noted in Trejo, “[w]hen an accused takes the witness stand
he is in the same position as any other witness. He is not entitled to have his testimony
falsely cloaked with reliability by having his credibility protected against the truth-searching
process of cross-examination.” 1991-NMCA-143, ¶ 15 (internal quotation marks and citation
omitted).

IV.     Prosecutorial Misconduct

{34} Finally, Defendant argues that the prosecutor committed prosecutorial misconduct
during closing argument in making improper propensity arguments, mischaracterizing the
evidence, and arguing in a manner designed to appeal to sentiment and passion by painting
Defendant as a sexual predator of children when no evidence supported that characterization.
Specifically, Defendant notes the following statements by the prosecutor: Defendant was a
“two-time felon”; the questioning of Defendant’s motives for being “with a fifteen-year-old

                                               10
girl and another young lady”; “[d]on’t allow him to do this to our children”; and that the jury
could “infer the rest” after noting, “Alcohol. Minors. Two females. Condoms. Not a recipe
for a good ending.” Not having objected at the time of the comments, Defendant argues that
the prosecutor’s misconduct resulted in fundamental error, and he requests that this Court
reverse his convictions which, he asserts, were the result of an unfair trial.

{35} The State argues that the comments made by the prosecutor in his closing argument
were “few and far between” and “a far cry from persistent or egregious.” It argues that the
prosecutor could comment on the credibility of Defendant’s testimony during closing.
Additionally, the State argues that the prosecution’s argument regarding Defendant’s intent
to continue partying was based on properly admitted evidence and thus did not constitute
prosecutorial misconduct.

{36} When, as in this case, no claim of prosecutorial misconduct was raised at trial, this
Court reviews for fundamental error. See State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M.
482, 994 P.2d 728. “Prosecutorial misconduct rises to the level of fundamental error when
it is so egregious and had such a persuasive and prejudicial effect on the jury’s verdict that
the defendant was deprived of a fair trial.” Id. (internal quotation marks and citation
omitted). “Fundamental error occurs when prosecutorial misconduct in closing statements
compromises a defendant’s right to a fair trial, and [the appellate courts] will reverse a
conviction despite defense counsel’s failure to object.” State v. Sosa, 2009-NMSC-056, ¶ 35,
147 N.M. 351, 223 P.3d 348. To determine whether Defendant was deprived of a fair trial,
the appellate courts “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.” State v. Fry, 2006-NMSC-001, ¶ 50, 138 N.M. 700, 126 P.3d 516 (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).

{37} Upon reviewing the record, we conclude that the prosecutor’s closing argument,
when evaluated as a whole, did not deprive Defendant of a fair trial. We conclude that the
prosecutor’s statements regarding Defendant’s criminal history referenced properly admitted
evidence and did not constitute improper propensity evidence. The prosecutor’s mention of
Defendant’s history was not the primary focus of the State’s closing argument, and we
cannot say that it clearly impacted the jury’s verdict. Although we see no misconduct
regarding the prosecutor’s portrayal of Defendant as a two-time felon, we can see no
legitimate reason why the prosecutor would attempt to impute meaning to the fact that
Defendant had a condom in his pocket, or why the prosecutor would indicate that alcohol,
minors, and condoms were “[n]ot a recipe for a good ending.” The prosecutor’s clear attempt
to portray Defendant as a sexual predator was unnecessary and improper.

{38} Despite our view that the prosecutor acted improperly when making certain
comments, we cannot conclude that the isolated comments that occurred over the course of
the prosecutor’s more than twenty-five-minute closing were “so egregious and had such a

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persuasive and prejudicial effect on the jury’s verdict that the defendant was deprived of a
fair trial[,]” thus giving rise to fundamental error. Allen, 2000-NMSC-002, ¶ 95 (internal
quotation marks and citation omitted).

CONCLUSION

{39} For the foregoing reasons, we reverse and remand with instructions to vacate
Defendant’s shoplifting conviction, and we affirm Defendant’s CDM conviction.

{40}   IT IS SO ORDERED.

                                              ____________________________________
                                              JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
LINDA M. VANZI, Chief Judge

____________________________________
JAMES J. WECHSLER, Judge




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