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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                    NO. A-1-CA-36023
 5
 6 ANDREW BALDONADO,

 7          Defendant-Appellant.

 8 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 9 John A. Dean, Jr., District Judge

10 Hector H. Balderas, Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender
14 J.K. Theodosia Johnson, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 GARCIA, Judge.

19   {1}    Andrew Baldonado (Defendant) argues that there was insufficient evidence to

20 support his conviction for false imprisonment because his acts of restraining or
 1 confining the victim were merely incidental to the crime of criminal sexual contact

 2 (CSC). [DS 3] This Court’s second calendar notice proposed to conclude that there

 3 was sufficient evidence to support the conviction for false imprisonment based on the

 4 additional facts asserted in the State’s memorandum in opposition. Defendant filed a

 5 memorandum in opposition and motion to amend the docketing statement to add two

 6 issues. Not persuaded by Defendant’s arguments, we deny the motion to amend and

 7 affirm.

 8   {2}   Defendant continues to challenge the sufficiency of evidence to support false

 9 imprisonment. [MIO 9-11] He argues that there was insufficient evidence for the jury

10 to find that he confined or restrained the victim by the use of force separate from the

11 force inherent in the commission of CSC. [Id. 11] See State v. Corneau,

12 1989-NMCA-040, ¶ 11, 109 N.M. 81, 781 P.2d 1159 (recognizing that there must be

13 evidence to support a finding that the act of false imprisonment “was separate and

14 apart from any false imprisonment necessarily involved in almost every act of

15 [Criminal Sexual Penetration]”). Defendant asserts that the force of grabbing the

16 victim’s ankles and legs was incidental to the force used to commit CSC. [Id. 11]

17 However, Defendant disregards our reliance on the fact that, in combination with that

18 force and restraint, Defendant locked the door after he entered the room. [Id. 10-11]

19 The memorandum in opposition does not otherwise dispute the evidence relied upon

20 in the second calendar notice. See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107

                                              2
 1 N.M. 421, 759 P.2d 1003 (stating that a party responding to a summary calendar

 2 notice must come forward and specifically point out errors of law and fact),

 3 superseded by statue on other grounds as stated in State v. Harris, 2013-NMCA-031,

 4 297 P.3d 374.

 5   {3}   Defendant also argues that there was evidence, by way of his statement to

 6 police and testimony at trial, that the entire encounter was consensual. [MIO 11]

 7 Defendant contends that if it was consensual, the jury could not have found that he

 8 restrained or confined the victim against her will. [Id.] However, “the jury is free to

 9 reject Defendant’s version of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126

10 N.M. 438, 971 P.2d 829; see also State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M.

11 686, 986 P.2d 482 (recognizing that it is for the fact finder to resolve any conflict in

12 the testimony of the witnesses and to determine where the weight and credibility lie).

13 Because Defendant has not asserted any facts, law, or argument to persuade us that our

14 second notice of proposed disposition was erroneous, we affirm his conviction for

15 false imprisonment. See State v. Boyer, 1985-NMCA-029, ¶ 11, 103 N.M. 655, 712

16 P.2d 1 (recognizing that “where defendant is the appellant . . . all presumptions are in

17 favor of the judgment below . . . and the defendant bears the burden of demonstrating

18 error”).

19   {4}   Defendant moves to amend the docketing statement with two issues: (1)

20 whether the jury instruction for CSC omitted a crucial element of unlawfulness; and

                                              3
 1 (2) whether the State failed to present sufficient evidence to prove CSC. [DS 1] In

 2 cases assigned to the summary calendar, this Court will grant a motion to amend the

 3 docketing statement to include additional issues if the motion (1) is timely, (2) states

 4 all facts material to a consideration of the new issues sought to be raised, (3) explains

 5 how the issues were properly preserved or why they may be raised for the first time

 6 on appeal, (4) demonstrates just cause by explaining why the issues were not

 7 originally raised in the docketing statement, and (5) complies in other respects with

 8 the appellate rules. See State v. Rael, 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100

 9 N.M. 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that

10 are not viable, even if they allege fundamental or jurisdictional error. See State v.

11 Moore, 1989-NMCA-073, ¶¶ 36-51, 109 N.M. 119, 782 P.2d 91, superceded by rule

12 on other grounds as recognized in State v. Salgado, 1991-NMCA-044, 112 N.M. 537,

13 817 P.2d 730.

14   {5}   Defendant argues that his conviction for CSC must be reversed because the

15 State failed to present sufficient evidence and because the jury instruction for CSC

16 failed to require a finding of unlawfulness—a critical element. [MIO 6-8, 12]

17 Substantial evidence claims can be raised for the first time on appeal. State v. Stein,

18 1999-NMCA-065, ¶ 9, 127 N.M. 362, 981 P.2d 295. Defendant acknowledges that

19 counsel did not object to the alleged deficiencies with the jury instruction and raises

20 it pursuant to fundamental error. [Id. 8] However, we note that Defendant has not

                                               4
 1 demonstrated just cause for amending the docketing statement by explaining why

 2 these issues were not originally raised in the docketing statement. See Rael, 1983-

 3 NMCA-081, ¶¶ 7-8. Nevertheless, we determine them to be non-viable for the reasons

 4 that follow.

 5   {6}   Defendant challenges the sufficiency of evidence to convict him of CSC on the

 6 basis that he testified every sexual act that he and the victim engaged in was

 7 consensual in nature. [MIO 12] “When a defendant challenges a conviction on

 8 sufficiency of evidence grounds, we view testimony and resolve inferences from the

 9 evidence in the light most favorable to the jury’s verdict.” State v. Baca,

10 1990-NMCA-123, ¶ 25, 111 N.M. 270, 804 P.2d 1089. Although Defendant testified

11 it was consensual, the victim testified that Defendant forced himself on her and raped

12 her. [MIO 3; DS 2] This Court “view[s] the evidence in the light most favorable to the

13 guilty verdict, indulging all reasonable inferences and resolving all conflicts in the

14 evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128

15 N.M. 711, 998 P.2d 176. We also disregard all evidence and inferences that support

16 a different result. See Rojo, 1999-NMSC-001, ¶ 19. We therefore conclude that there

17 was sufficient evidence to support Defendant’s conviction for CSC.

18   {7}   Defendant also argues that his conviction for CSC should be reversed because

19 the jury instruction failed to include the necessary element of unlawfulness as required

20 by the jury instruction for CSC. [MIO 6-8] See UJI 14-909 NMRA. Defendant relies

                                              5
 1 on State v. Parish, 1994-NMSC-073, 118 N.M. 39, 878 P.2d 988, for his contention

 2 that the inclusion of an unlawfulness instruction immediately following the instruction

 3 for CSC does not cure the fact that the jury did not have to find Defendant’s act was

 4 unlawful beyond a reasonable doubt. [MIO 5] In Parish, the defendant argued that the

 5 jury instruction for manslaughter, which is statutorily defined as an “unlawful killing,”

 6 failed to instruct the jury on the necessary element of unlawfulness for the crime of

 7 involuntary manslaughter, where the self-defense was raised. Id. ¶ 5; see also NMSA

 8 1978, § 30-2-3(A) (1994) (“Manslaughter is the unlawful killing of a human being

 9 without malice.”). Defendant argues that UJI 14-132 and -909 NMRA, demonstrate

10 the Supreme Court’s approval of a jury instruction for the defense of consent in sexual

11 contact cases that parallels the self-defense instruction issue in Parish. [MIO 6] See

12 UJI 14-132 (defining unlawfulness, in part, as being without consent); UJI 14-909,

13 Use Note (providing that unlawfulness element should be included in the elements “if

14 the evidence raises a genuine issue of the unlawfulness of the defendant’s actions”).

15   {8}   “We review jury instructions to determine whether a reasonable juror would

16 have been confused or misdirected by the jury instructions.” State v. Montoya,

17 2003-NMSC-004, ¶ 23, 133 N.M. 84, 61 P.3d 793. Here, the jury was instructed with

18 the definition of “unlawful” immediately following the jury instruction for CSC, and

19 it expressly instructed that “in addition to the other elements of Criminal Sexual

20 Contact as charged in Count Three, the state must prove beyond a reasonable doubt

                                               6
 1 that the act was unlawful.” [MIO 6] Following Parish, this Court held that although

 2 “it is fundamental error not to instruct the jury on either the element of unlawfulness

 3 or the defense that makes a defendant’s actions lawful in a manner so that the jury

 4 understands that it is the state’s burden to prove unlawfulness or disprove the defense

 5 beyond a reasonable doubt, . . . it is sufficient if it is in the defense instruction, even

 6 if not in the elements instruction, provided that no other instruction causes the defense

 7 instruction to be confusing or meaningless.” State v. Armijo, 1999-NMCA-087, ¶ 26,

 8 127 N.M. 594, 985 P.2d 764. This is consistent with the notion that “[w]e consider

 9 jury instructions as a whole, not singly.” See Montoya, 2003-NMSC-004, ¶ 23. We

10 therefore conclude that Defendant has not demonstrated fundamental error. See State

11 v. Sutphin, 2007-NMSC-045, ¶ 16, 142 N.M. 191, 164 P.3d 72 (stating that

12 “fundamental error does not occur if the jury was not instructed on an element not at

13 issue in the case” or if “there can be no dispute that the omitted element was

14 established”).

15   {9}    Accordingly, for the reasons stated in our second notice of proposed disposition

16 and herein, we deny Defendant’s motion to amend the docketing statement and affirm.

17   {10}   IT IS SO ORDERED.


18                                           __________________________________
19                                           TIMOTHY L. GARCIA, Judge



                                                7
1 WE CONCUR:



2 _________________________________
3 STEPHEN G. FRENCH, Judge



4 _________________________________
5 EMIL KIEHNE, Judge




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