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

 2 Opinion Number: _______________

 3 Filing Date: August 13, 2015

 4 NOS. 33,255 & 33,078 (Consolidated)

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 CARLOS HERRERA,

 9       Defendant-Appellant.

10 Consolidated With

11 STATE OF NEW MEXICO,

12       Plaintiff-Appellee,

13 v.

14 DANIEL HERRERA,

15       Defendant-Appellant.


16 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
17 Douglas R. Driggers, District Judge

18 Hector H. Balderas, Attorney General
19 Yvonne M. Chicoine, Assistant Attorney General
20 Santa Fe, NM

21 for Appellee
1 Robert E. Tangora, L.L.C.
2 Robert E. Tangora
3 Santa Fe, NM

4 for Appellant Carlos Herrera

5 Jorge A. Alvarado, Chief Public Defender
6 Tania Shahani, Assistant Appellate Defender
7 Santa Fe, NM

8 for Appellant Daniel Herrera
 1                                      OPINION

 2 BUSTAMANTE, Judge.

 3   {1}   In these consolidated cases, Defendants Carlos and Daniel Herrera, brothers,

 4 appeal their convictions for kidnapping, aggravated assault, and conspiracy to commit

 5 kidnapping. We affirm.

 6 BACKGROUND

 7   {2}   Seventeen-year-old Samuel Brown (Brown) and his mother’s boyfriend, Joe

 8 Azure (Azure), went to Defendant Carlos Herrera’s (Carlos) apartment to meet with

 9 another person who would help Brown record Brown’s music. Defendant Daniel

10 Herrera (Daniel) was also at the apartment. Several other people were also present.

11 Brown and Azure sat at the kitchen counter to wait for the person with the recording

12 equipment. Within a few minutes, Carlos accused Azure and/or Brown of stealing

13 some of his cocaine. An argument ensued. Carlos left the kitchen briefly and returned

14 with Daniel, who picked up a kitchen knife. During the ensuing altercation, Daniel

15 held the knife at Brown’s throat. Carlos told Brown and Azure that they could not

16 leave the apartment until the cocaine was found and “yell[ed] and forc[ed] the door

17 shut as [Brown and Azure] were trying to open it.” Daniel told Brown that he was

18 going to kill Brown.
 1   {3}   At some point, Carlos made a phone call and within minutes a third man

 2 arrived. The parties refer to this man as “Zack.” Zack hit Azure over Azure’s left eye

 3 with a weapon that Azure initially thought was “a sidearm that an officer would

 4 carry.” Azure testified that later he concluded that the gun was “a BB gun or a pellet

 5 gun,” but that he “felt [they] were still in danger[.]” Azure required stitches to close

 6 the resulting injury. Then, while Zack brandished the gun, Carlos, Daniel, and Zack

 7 told Brown and Azure to turn out their pockets, strip to their underwear, and sit on

 8 the couch. Carlos, Daniel, and Zack searched Brown’s and Azure’s clothes for the

 9 cocaine and removed the money and identification they found. They copied down the

10 information on Azure’s identification and kept Brown’s student identification card,

11 as well as Azure’s money. Brown testified that Carlos punched Azure repeatedly in

12 the face while Brown sat on the couch and Daniel held the knife to Brown’s throat.

13 Azure fell into unconsciousness. When he awoke, he and Brown were told to leave

14 and warned not to call the police. They picked up their clothes and left without

15 putting them on. Brown testified that he and Azure were at Carlos’s apartment for at

16 least an hour and a half.

17   {4}   Carlos and Daniel were each indicted for two counts of kidnapping, two counts

18 of aggravated assault, and one count of conspiracy to commit kidnapping, one count

19 of armed robbery, and one count of aggravated battery. Carlos was also indicted for



                                              2
 1 one count of battery. After a jury trial, in which they were tried together, Carlos and

 2 Daniel were convicted of all charges except for aggravated battery and armed

 3 robbery.

 4 DISCUSSION

 5   {5}   On appeal, Carlos and Daniel (collectively, Defendants) make the same three

 6 arguments. First, they argue that the district court erred in denying their request for

 7 a jury instruction on kidnapping based on State v. Trujillo, 2012-NMCA-112, 289

 8 P.3d 238, cert. quashed, 2015-NMCERT-003, 346 P.3d 1163. Second, they argue that

 9 the convictions for aggravated assault and kidnapping violate their right to be free

10 from double jeopardy. Finally, they argue that there was insufficient evidence to

11 support their convictions for kidnapping, aggravated assault, and conspiracy. Carlos

12 does not challenge his conviction for battery.

13   {6}   As a preliminary matter, we first address the State’s contention that

14 Defendants’ kidnapping jury instruction argument was not preserved, and therefore,

15 “[t]his Court is precluded from considering the question.” “Generally, to preserve

16 error on a [district] court’s refusal to give a tendered instruction, the [a]ppellant must

17 tender a legally correct statement of the law.” State v. Jernigan, 2006-NMSC-003,

18 ¶ 10, 139 N.M. 1, 127 P.3d 537. “However, if the record reflects that the judge clearly

19 understood the type of instruction the [d]efendant wanted and understood the



                                               3
 1 tendered instruction needed to be modified to correctly state the law, then the issue

 2 is deemed preserved for appellate review.” Id. Here, the district court heard argument

 3 from both parties on the requested instruction and took a recess to examine it and

 4 Trujillo. In denying Defendants’ request, it ruled that “there [are] significant

 5 differences in the . . . facts of [Trujillo] . . . and this case.” We conclude that

 6 Defendants’ argument was sufficiently preserved in the district court for appellate

 7 review.

 8   {7}   However, Defendants failed to ensure that the requested instruction was

 9 included in the record proper nor was the substance of the requested instruction read

10 into the trial record. “It is . . . the general rule that an appellate court will decline to

11 review claims of error regarding jury instructions if the instructions are not contained

12 in the record on appeal.” G & G Servs., Inc. v. Agora Syndicate, Inc., 2000-NMCA-

13 003, ¶ 17, 128 N.M. 434, 993 P.2d 751; cf. Trujillo v. Baldonado, 1980-NMCA-184,

14 ¶¶ 3-4, 95 N.M. 321, 621 P.2d 1133 (considering the propriety of giving jury

15 instructions even though the instructions were not in the record because the

16 instructions given were the uniform jury instructions prescribed by rule). Although

17 they had an opportunity under Rule 12-209(C) NMRA to supplement the record,

18 Defendants failed to do so, even after the State pointed out the omission in its answer




                                                4
 1 brief. In the absence of the proposed instruction, any statements as to the propriety

 2 of the district court’s denial would be speculative and akin to an advisory opinion.1

 3   {8}   In any case, we agree with the district court that the facts here are readily

 4 distinguishable from those in Trujillo. In Trujillo, this Court held that “the Legislature

 5 did not intend to punish as kidnapping restraint or movement that is merely incidental

 6 to another crime.” 2012-NMCA-112, ¶ 1. There, the defendant restrained the victim

 7 during a two- to four-minute fistfight. Id. ¶ 3. We concluded that the defendant’s

 8 kidnapping conviction must be vacated, stating that, “the factual circumstances of

 9 [that] case . . . allowed us to determine as a matter of law that the Legislature did not

10 intend [the d]efendant’s conduct to constitute kidnapping.” Id. ¶ 42. We also observed

11 that the facts there did “not present a ‘close call.’ ” Id. ¶ 39.

12   {9}   Here, Brown testified that Carlos told him and Azure that they could not leave

13 until the cocaine was found and that Carlos prevented them from opening the door to

14 the apartment as they tried to leave. In addition, Brown testified that he and Azure

15 were prevented from leaving the apartment for between one and a half and two hours.

16 Such a prolonged period of restraint is simply not incidental to or inherent in

17 aggravated assault under any of the tests described in Trujillo. See id. (applying three

          1
18          The Uniform Jury Instruction (UJI) Committee has proposed revisions to the
19 UJI for kidnapping based in part on the Trujillo holding. See Proposed Revisions to
20 the Uniform Jury Instructions for Criminal Cases, available at
21 https://nmsupremecourt.nmcourts.gov/rules (see Proposal 51).

                                               5
 1 tests for kidnapping to the facts in that case). The facts here thus do not present “[a]

 2 more complicated factual scenario” that must be submitted to the jury. See id. ¶ 42.

 3   {10}   Defendants’ remaining arguments are, for the most part, a variation on their

 4 first. Defendants argue in essence that there is insufficient evidence to support the

 5 kidnapping and aggravated assault convictions because either (1) there is no evidence

 6 of the force required for kidnapping beyond that which forms the basis for aggravated

 7 assault, or (2) there is insufficient evidence of the use of a deadly weapon required

 8 for aggravated assault beyond that which forms the basis for kidnapping. They argue,

 9 “Either way, whether the restraint was incidental to the assault, or if the assaults were

10 done in furtherance of the kidnapping, the evidence at most supports only one theory

11 or the other, and thus, can only sustain one conviction or the other.”2 Similarly,

12 Defendants argue that the conduct underlying the kidnapping and aggravated assault

13 convictions was “unitary [because] the same continuous struggle gave rise to the



            2
14           The jury was instructed that each Defendant could be found guilty of a crime
15   even if he did not commit the acts necessary for the crime if “[t]he defendant intended
16   that the crime be committed[,] . . . [t]he crime was committed[, and] . . . [t]he
17   defendant helped, encouraged[,] or caused the crime to be committed.” UJI 14-2822
18   NMRA. Thus, although only Daniel wielded the knife, it is possible the jury found
19   Carlos guilty of the charges related to the knife or found Daniel guilty of charges
20   based on Carlos’s conduct, based on an accessory theory. See State v. Bahney, 2012-
21   NMCA-039, ¶ 27, 274 P.3d 134 (“[A] person who aids or abets in the commission of
22   a crime is equally culpable and faces the same punishment as a principal.” (internal
23   quotation marks and citation omitted)). It is not clear whether the jury so found.
24   Neither Carlos nor Daniel makes an argument based on accessory liability.

                                               6
 1 aggravated assault and kidnapping convictions.” They maintain that the Legislature

 2 did not intend to impose multiple punishments for kidnapping and aggravated assault

 3 based on unitary conduct and that, therefore their convictions violate their right to be

 4 free of double jeopardy. See U.S. Const. amends. V and XIV, § 1; N.M. Const. art.

 5 II, § 15; State v. Armijo, 2005-NMCA-010, ¶ 15, 136 N.M. 723, 104 P.3d 1114

 6 (stating that in an analysis of double jeopardy, we ask “whether the conduct

 7 underlying the offenses is unitary, i.e., whether the same conduct violates both

 8 statutes” and then, if the conduct is unitary, “whether the [L]egislature intended to

 9 impose multiple punishments for the unitary conduct” (internal quotation marks and

10 citation omitted)).

11   {11}   We address these two arguments together because their resolution depends on

12 the same analysis: whether there is sufficient evidence of independent factual bases

13 for each conviction. “The test for sufficiency of the evidence is whether substantial

14 evidence of either a direct or circumstantial nature exists to support a verdict of guilty

15 beyond a reasonable doubt with respect to every element essential to a conviction.”

16 State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and

17 citation omitted). In reviewing the evidence, “we resolve all disputed facts in favor

18 of the [s]tate, indulge all reasonable inferences in support of the verdict, and disregard

19 all evidence and inferences to the contrary.” Id. (internal quotation marks and citation



                                               7
 1 omitted). Likewise, when reviewing whether conduct is unitary in the double

 2 jeopardy context, we “indulge in all presumptions in favor of the verdict.” State v.

 3 Urioste, 2011-NMCA-121, ¶ 19, 267 P.3d 820 (internal quotation marks and citation

 4 omitted).

 5   {12}   The jury was instructed that, in order to convict Defendants for kidnapping, it

 6 must find that “[Defendants] restrained or confined [Brown and Azure] by force,

 7 intimidation[,] deception; [and Defendants] intended to hold [Brown and Azure]

 8 against [their] will[] to inflict physical injury or for the purpose of making the

 9 victim[s] do something or . . . keeping the victim[s] from doing something[.]” See UJI

10 14-403 NMRA; NMSA 1978, § 30-4-1 (2003). “The crime of kidnapping is complete

11 when the defendant, with the requisite intent, restrains the victim, even though the

12 restraint continues through the commission of a separate crime.” State v. Dominguez,

13 2014-NMCA-064, ¶ 10, 327 P.3d 1092, cert. denied, 2014-NMCERT-005, 326 P.3d

14 1111.

15   {13}   The premise behind Defendants’ argument is that it was only the brandishing

16 and use of the knife that prevented Brown and Azure from leaving Carlos’s

17 apartment. They contend that “[t]he evidence at trial established that in order to

18 recover Carlos’[s] belongings, Daniel held the knife to Brown’s throat. That action,

19 in essence, also served to prevent Brown [and] Azure from leaving. ”But this premise



                                               8
 1 ignores the other evidence already discussed, to wit, that Carlos shouted at Brown and

 2 Azure, told them they couldn’t leave until his property was found, and pushed the

 3 door shut when they tried to open it. The jury could have found that kidnapping was

 4 complete, but continuing, at that point. There was also testimony that Carlos and

 5 Daniel prevented Brown and Azure from leaving the apartment for at least an hour

 6 and a half and that they made Brown and Azure sit on the couch while they searched

 7 for the cocaine. This testimony is sufficient to support the kidnapping verdicts.

 8   {14}   Moreover, the jury could reasonably have concluded that Brown and Azure

 9 were confined in the apartment by force or intimidation when Carlos told Brown and

10 Azure that they couldn’t leave, yelled at them, and closed the door when they tried

11 to leave, conduct that is independent of and distinct from Daniel’s wielding of the

12 knife. See Urioste, 2011-NMCA-121, ¶ 28 (holding that there was no unitary conduct

13 where “the jury could reasonably have inferred an independent factual basis for all

14 three of [the d]efendant’s convictions” and stating that “we do not second-guess the

15 factual conclusions of a jury”). Since the conduct underlying the two charges was not

16 unitary, our double jeopardy analysis is concluded. State v. Contreras, 2007-NMCA-

17 045, ¶ 20, 141 N.M. 434, 156 P.3d 725 (“If the conduct is not unitary, then the

18 inquiry is at an end and there is no double jeopardy violation.” (internal quotation

19 marks and citation omitted)).



                                             9
 1   {15}   As to aggravated assault, the jury was instructed that the following elements

 2 must be met:

 3                 1.       [Defendants] brandished a knife [or] held a knife to the
 4          throat of . . . Brown;

 5                 2.    [Defendants’] conduct caused [Brown or Azure] to believe
 6          [Defendants were] about to intrude on [their] bodily integrity or personal
 7          safety by touching or applying force to [them] in a rude, insolent[,] or
 8          angry manner; [and]

 9                3.    A reasonable person in the same circumstances as [Brown
10          or Azure] would have had the same belief[.]

11 See UJI 14-305 NMRA; NMSA 1978, § 30-3-2(A) (1963). Brown and Azure testified

12 that, after Carlos retrieved him from another room in the apartment, Daniel held the

13 knife at Brown’s throat. Brown testified that Daniel told Brown that he was going to

14 kill Brown. He further testified that Daniel held the knife at his throat while he was

15 sitting on the couch in his underwear and while Azure was being punched by Carlos.

16 Other than their argument that the factual basis for the aggravated assault conviction

17 is the same as that for the kidnapping convictions which we have already addressed,

18 Defendants argue only that there was no evidence that a reasonable person in Azure’s

19 position would feel threatened when Daniel held the knife to Brown’s throat. We

20 disagree. See State v. Arrendondo, 2012-NMSC-013, ¶ 14, 278 P.3d 517 (stating that

21 to convict for assault “the [prosecution’s] evidence must satisfy both a subjective and

22 an objective standard”). Azure testified that he and Carlos were “yelling back and

                                               10
 1 forth at each other” about the missing cocaine and that they continued arguing while

 2 Daniel held the knife to Brown’s throat. He also testified that he was “maybe about

 3 five, six feet” from Brown when Daniel first appeared with the knife and held it to

 4 Brown’s throat. Brown testified that later Carlos punched Azure repeatedly in the face

 5 while Brown sat on the couch and Daniel held the knife to Brown’s throat. These

 6 facts alone, not to mention others already outlined, are sufficient to support the jury’s

 7 finding that a reasonable person in either victim’s position would believe that his

 8 bodily integrity was threatened by Daniel’s use of the knife. See State v. Phillips,

 9 2000-NMCA-028, ¶ 14, 128 N.M. 777, 999 P.2d 421 (stating that “the jury was free

10 to use [its] common sense to look through testimony and draw inferences from all the

11 surrounding circumstances” (internal quotation marks and citation omitted)).

12   {16}   In summary, we conclude that Defendants’ convictions for kidnapping and

13 aggravated assault are (1) supported by the evidence and (2) based on independent

14 factual bases such that Defendants’ double jeopardy rights are not implicated.

15   {17}   Finally, Defendants argue that there was insufficient evidence presented to

16 support their convictions for conspiracy to commit kidnapping. “Conspiracy consists

17 of knowingly combining with another for the purpose of committing a felony within

18 or without this state.” NMSA 1978, § 30-28-2(A) (1979). A conspiracy may be

19 formed by words or acts. UJI 14-2810(1) NMRA. “In order to be convicted of



                                              11
 1 conspiracy, the defendant must have the requisite intent to agree and the intent to

 2 commit the offense that is the object of the conspiracy.” State v. Trujillo, 2002-

 3 NMSC-005, ¶ 62, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citation

 4 omitted). “The agreement need not be verbal, but may be shown to exist by acts [that]

 5 demonstrate that the alleged co-conspirator knew of and participated in the scheme.”

 6 Id. A conspiracy “may be established by circumstantial evidence.” Id.

 7   {18}   Here, Brown and Azure testified that after the argument started, Carlos went

 8 into another room and returned with Daniel, who shortly thereafter picked up a knife

 9 and held it to Brown’s throat. They testified that both Carlos and Daniel made them

10 strip to their underwear and sit on the couch. Finally, both Carlos and Daniel, along

11 with Zack, searched Brown’s and Azure’s clothes for the cocaine and removed the

12 money and identification they found. Viewed in the light most favorable to the

13 verdict, this testimony supports an inference that Carlos and Daniel worked together

14 to confine Brown and Azure in the apartment. We conclude that the evidence is

15 sufficient to support the convictions for conspiracy to commit kidnapping.

16 CONCLUSION

17   {19}   Because Defendants failed to include their requested jury instruction on

18 kidnapping in the record proper, we decline to address their arguments on that issue.

19 We conclude that there was sufficient evidence to support Defendants’ convictions



                                             12
1 for kidnapping, aggravated assault, and conspiracy to commit kidnapping, and that

2 none of the convictions violates the prohibition against double jeopardy. We affirm

3 all of Defendants’ convictions.

4   {20}   IT IS SO ORDERED.



5
6                                       MICHAEL D. BUSTAMANTE, Judge

7 WE CONCUR:


8 __________________________________
9 JONATHAN B. SUTIN, Judge


10 __________________________________
11 J. MILES HANISEE, Judge




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