                                                        I attest to the accuracy and
                                                         integrity of this document
                                                           New Mexico Compilation
                                                         Commission, Santa Fe, NM
                                                        '00'05- 16:12:53 2012.11.14
Certiorari Denied, November 1, 2012, No. 33,822
Certiorari Granted, November 2, 2012, No. 33,837

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-112

Filing Date: August 27, 2012

Docket No. 30,563

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

ANDREW TRUJILLO,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY
Matthew G. Reynolds, District Judge

Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM

for Appellee

Jacqueline Cooper, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

BUSTAMANTE, Judge.

{1}    Defendant Andrew Trujillo appeals his convictions for aggravated burglary,
aggravated battery, conspiracy to commit aggravated burglary, conspiracy to commit
aggravated battery, and kidnapping. Defendant argues that the Legislature did not intend to
punish as kidnapping restraint or movement that is merely incidental to another crime. We

                                            1
agree and reverse the kidnapping conviction. We also hold that the convictions for
conspiracy to commit aggravated burglary and conspiracy to commit aggravated battery
violate double jeopardy and, therefore, remand to the district court to vacate the lesser
conspiracy. We affirm all other convictions.

I.     BACKGROUND

{2}     Around 2:30 a.m. on November 6, 2008, Defendant and another man broke into the
home of Juaquin Lujan (Victim). The two men were armed with metal bars or wooden bats
and were wearing motorcycle clothing and helmets. Victim and his wife awoke to the sight
of the two men holding flashlights. Defendant began striking Victim with a metal bar.

{3}    Despite being outnumbered and unarmed, Victim fought back and was able to gain
the upper hand. Victim was on top of Defendant, hitting him, when Defendant restrained
Victim and called out to the other assailant for help. The other assailant began striking
Victim, allowing Defendant to get free and continue striking Victim. Both men continued
to beat Victim for some time before eventually leaving. The entire episode lasted
approximately two to four minutes.

{4}    Defendant was convicted of aggravated burglary, conspiracy to commit aggravated
burglary, aggravated battery, conspiracy to commit aggravated battery, kidnapping, and false
imprisonment. He was acquitted of child abuse, interference with communications, and
criminal damage to property.

II.    DISCUSSION

{5}     Defendant challenges his kidnapping conviction by arguing in the alternative that the
kidnapping statute simply does not encompass his conduct, or that there is insufficient
evidence to support the conviction, or that the conviction violated double jeopardy. In
addition, Defendant argues that (1) his convictions for both conspiracy to commit aggravated
burglary and conspiracy to commit aggravated battery constitute double jeopardy, (2) he
received ineffective assistance of counsel, (3) the court erred by excluding evidence related
to the back door of Victim’s home, (4) the court erred by forbidding questioning about
Victim’s alleged use or sale of drugs, (5) the court erred in denying his motion to disqualify
the prosecutor and the Seventh Judicial District Attorney’s Office, and (6) cumulative error
deprived him of his right to a fair trial. We address these arguments in the order they were
presented.

A.     Kidnapping

{6}      Defendant argues that “[t]he Legislature did not intend to punish restraint incidental
to an aggravated battery as kidnapping.” He argues further that the evidence supporting his
kidnapping conviction is insufficient because “it failed to establish a restraint beyond that
incidental to the aggravated battery.” In the factual context of this case, the arguments
constitute two sides of the same coin. That is, we conclude that the restraint described by
the testimony—a momentary grab in the middle of a fight—is as a matter of law insufficient


                                              2
to support a conviction for kidnapping. Put another way, we hold that the kidnapping statute
as a matter of law does not encompass the conduct described, even when the facts are viewed
in the light most favorable to the conviction.

{7}     Whether the Legislature intended restraint during an aggravated battery to be charged
as kidnapping is a question of statutory interpretation. “Our primary goal when interpreting
statutory language is to give effect to the intent of the [L]egislature.” State v. Torres, 2006-
NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. “We do this by giving effect to the plain
meaning of the words of statute,” State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240,
96 P.3d 801, except when doing so “render[s] the statute’s application absurd, unreasonable,
or unjust.” State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (internal
quotation marks and citation omitted). “Interpretation of a statute is an issue of law, not a
question of fact[,]” which we review de novo. Id.

{8}      In this case, applying the plain language would be “absurd, unreasonable, or unjust.”
Id. (internal quotation marks and citation omitted). Based on our review of the history and
purpose of our statute and similar statutes nationwide, as well as case law in this and other
jurisdictions, we conclude that the Legislature could not have intended to increase
Defendant’s punishment three- or six-fold (from three to nine or eighteen years) for conduct
that was merely incidental to another crime.

1.     New Mexico Cases

{9}     We begin by examining the case law cited by the parties because they argue that it
is controlling. Defendant cites State v. Vernon, 116 N.M. 737, 741, 867 P.2d 407, 411
(1993), State v. Crain, 1997-NMCA-101, ¶ 21, 124 N.M. 84, 946 P.2d 1095, and State v.
Pisio, 119 N.M. 252, 261-62, 889 P.2d 860, 869-70 (Ct. App. 1994), inter alia, for the
proposition that “New Mexico cases have recognized that the force involved in [a]
kidnapping charge should be more than incidental to and/or ‘separate and distinct’ from the
acts constituting another charged offense.” The State appears to agree and cites State v.
McGuire, 110 N.M. 304, 308, 795 P.2d 996, 1000 (1990), and State v. Corneau, 109 N.M.
81, 86, 781 P.2d 1159, 1164 (Ct. App. 1989), inter alia, as evidence that “New Mexico
courts have long held that a conviction of kidnapping or false imprisonment requires proof
of force or restraint beyond that inherent in any other crime, such as rape or robbery, of
which the defendant is also convicted.”

{10} Although we agree with both parties in essence, we disagree that the cases cited
control our decision on the question here. This is because these cases address the issue from
perspectives specific to the statutes at issue. For example, Crain, Pisio, McGuire, and
Corneau all dealt with the criminal sexual penetration (CSP) statute and double jeopardy
rights implicated in that statute. Similarly, the Vernon holding is limited in application to
the “held for service” element of the kidnapping statute, which is not a factor here. Because
these cases are distinguishable both on their facts and on their analyses, we decline to rely
on them. A brief review of these cases reveals why they are not controlling here.

{11}   The first set of cases pertains to convictions for kidnapping and CSP. The relevant


                                               3
portions of the CSP statute state:

               E.       Criminal sexual penetration in the second degree [CSP II]
       consists of all criminal sexual penetration perpetrated:

                      (1)     by the use of force or coercion on a child thirteen to
       eighteen years of age;

                     (2)     on an inmate confined in a correctional facility or jail
       when the perpetrator is in a position of authority over the inmate;

                       (3)     by the use of force or coercion that results in personal
       injury to the victim;

                       (4)    by the use of force or coercion when the perpetrator
       is aided or abetted by one or more persons;

                       (5)     in the commission of any other felony; or

                       (6)     when the perpetrator is armed with a deadly weapon.

               ....

               F.      Criminal sexual penetration in the third degree [CSP III]
       consists of all criminal sexual penetration perpetrated through the use of
       force or coercion not otherwise specified in this section.

NMSA 1978, § 30-9-11(E), (F) (2009) (emphasis added). Thus, if the elements of
kidnapping are met, CSP III (a third degree felony) may be elevated to CSP II (a second
degree felony) through Section 30-9-11(E)(5) (the “in the commission of any other felony”
element). The inquiry in these cases revolved around whether the force inherent in any CSP
could form the basis for a false imprisonment or kidnapping charge, which then, in turn,
could be used to support a CSP II charge. The appellate courts have held consistently that
the evidence of force used in kidnapping must be independent of the evidence of force used
in CSP.

{12} For example, in Corneau, the Court considered this issue vis á vis false
imprisonment. The Court considered whether the defendant could be convicted of CSP II
based on a predicate felony of false imprisonment when the same force or coercion
“necessary to establish CSP III constitutes the restraint necessary to prove false
imprisonment” and establishment of false imprisonment was used to elevate the charge to
CSP II. 109 N.M. at 85, 781 P.2d at 1163. The facts of that case were as follows: the
defendant offered to give the victim a ride home from a club. Id. at 84, 781 P.2d at 1162.
Instead, he drove to his home and went inside, while the victim waited in the car. Id. at 84-
85, 781 P.2d at 1162-63. After fifteen minutes, the victim went inside to use the bathroom,
and the defendant began drinking beer and making sexual advances. Id. at 85, 781 P.2d at
1163. When the victim asked whether he was going to take her home, the defendant replied,

                                              4
“You’re not going anywhere” and raped her after dragging her from the living room into the
bedroom. Id. at 85, 86, 781 P.2d at 1163, 1164. Afterward, he prevented her from leaving
both by locking the door and “verbal restraint.” Id. at 86, 781 P.2d at 1164. The defendant
argued that “since the same proof of force is required to establish CSP III as to establish false
imprisonment, to permit false imprisonment to elevate the act to CSP II effectively nullifies
the crime of CSP III.” Id. at 85, 781 P.2d at 1163. The Court agreed that “[o]rdinarily,
almost any act of CSP will involve a restraint or confinement that would constitute false
imprisonment.” Id. at 86, 781 P.2d at 1164. The Court concluded, however, that the facts
supported a finding of false imprisonment both before and after the CSP based on the fact
that the defendant told the victim “[she wasn’t] going anywhere” and dragged her to the
bedroom, then, following the rape, prevented her from leaving. Id. at 85, 87, 781 P.2d at
1163, 1165. The restraint before the CSP thus served as the predicate felony elevating CSP
III to CSP II, and the restraint after as the basis for a separate false imprisonment charge.
Id. at 86-87, 781 P.2d at 1164-65. The following year, our Supreme Court followed
Corneau’s approach under similar facts in McGuire, 110 N.M. at 308-09, 795 P.2d at 1000-
01, and concluded that there was no double jeopardy violation when there were independent
factual bases for the kidnapping and CSP convictions.

{13} In Pisio, the defendant was convicted of CSP II (felony) and kidnapping, among
other charges. 119 N.M. at 255, 889 P.2d at 863. In that case, the defendant invited the
victim into his apartment and she accepted. Id. After locking the door, they struggled and
he dragged her down the hall, where he raped her. Id. at 256, 889 P.2d at 864. He next told
her to dress, but after she had done so, prevented her from leaving and raped her again. Id.
The defendant argued that the district court erred in denying him an instruction on CSP III
as a lesser-included offense. Id. at 258-59, 889 P.2d at 866-67. The defendant was entitled
to the instruction if there was a reasonable view of the facts by which CSP III was the
highest offense the defendant could have committed. Id. at 259-60, 889 P.2d at 867-68. The
Court extended the Corneau holding to kidnapping stating, “unless there is force or coercion
beyond that inherent in almost every CSP, the proper charge is CSP III.” Pisio, 119 N.M.
at 259, 889 P.2d at 867.

{14} The Court then explained that “[t]he key to the restraint element in kidnapping is the
point at which [the v]ictim’s physical association with [the d]efendant was no longer
voluntary.” Id. at 260, 889 P.2d at 868. Since in Pisio that point occurred prior to the CSP,
the Court concluded that the defendant’s contention that no kidnapping had occurred and
that CSP III was the greatest possible charge was “not a reasonable view of the evidence.”
Id. The Pisio Court went on to reverse the kidnapping charge on double jeopardy grounds.
Id. at 262, 889 P.2d at 870. In doing so, it reasoned that the conduct underlying the CSP II
and the kidnapping was unitary. Id. The lesser-included analysis focused on whether a
reasonable jury could have concluded that there was insufficient force or deception to
support the predicate offense of kidnapping. Id. at 260, 889 P.2d at 868. In contrast, the
double jeopardy analysis focused on whether, once it is established that a kidnapping
occurred, the Legislature intended to punish both CSP aggravated by a predicate felony and
the predicate felony as separate charges. Id. at 262, 889 P.2d at 870. The Court concluded
that it did not and vacated the kidnapping conviction, but affirmed the CSP II conviction
(based on kidnapping as a predicate offense). Id.


                                               5
{15} In Crain, the Court considered convictions for CSP II (personal injury), CSP II
(felony), and kidnapping. 1997-NMCA-101, ¶ 7. The defendant and victim went together
to the defendant’s car after dancing in a nightclub. Id. ¶ 2. After talking and kissing in the
car, they had intercourse. Id. At trial, the parties disputed whether the encounter was
consensual, and the defendant was convicted. Id. ¶ 4. On appeal, the defendant argued that
the two CSP convictions and kidnapping conviction violated double jeopardy because they
“stem[med] from the same act of sexual intercourse and involve[d] the use of force or
physical violence as a common element.” Id. ¶ 17. The Court “conclude[d] that the
[L]egislature has not manifested a clear intent that [the d]efendant’s single act of sexual
intercourse with the victim could provide the basis for convicting him of both CSP II
(personal injury) and CSP II (commission of a felony).” Id. ¶ 20. It then vacated the
convictions for CSP II (felony) and kidnapping, based on insufficient evidence of kidnapping
because there was no evidence of force or deception. Id. ¶¶ 22, 36. The Court referred to
Corneau and stated,

       We . . . hold here that, just as CSP III cannot be charged as CSP II without
       some force or restraint occurring either before or after the sexual penetration
       without consent, so too kidnapping cannot be charged out of every CSP III
       without some force, restraint, or deception occurring either before or after
       the sexual penetration.

Crain, 1997-NMCA-101, ¶ 21 (emphasis added).

{16} These cases share a quality that distinguishes them from our case: there, the Court
necessarily had to consider whether there was a separate, predicate felony in order to
determine whether a charge of CSP II dependent on that felony was appropriate. Because
the charges of CSP II depended on a finding that the CSP was committed in “the commission
of a felony,” this question implicates a double jeopardy analysis. Consequently, these cases
are not dispositive of the issue here because a double jeopardy analysis is different from
analysis of whether the conduct itself is a crime under the statute.

{17} In addition to these CSP cases, several cases address the interplay between
kidnapping and murder where the defendant argues that there is insufficient evidence of
kidnapping when the force used was that necessary to accomplish murder. These cases fall
into three general categories: (1) those that challenge the “held for service” element of the
kidnapping statute, (2) those that challenge the sufficiency of the evidence, and (3) those that
challenge kidnapping convictions on double jeopardy grounds. Some of these cases address
both sufficiency of the evidence and double jeopardy.

{18} An example of the first category is found in Vernon, where the defendant was
convicted of first degree murder and kidnapping resulting in great bodily harm. 116 N.M.
at 738, 867 P.2d at 408. His conviction was based on the pre-1995 kidnapping statute, and
the applicable mens rea requirement at that time was the intent to hold the victim for service.
Id. at 739, 867 P.2d at 409. The Court reversed the conviction on the basis that there was
no “service” to which the victim was held because “[t]here was no . . . act or service done
by [the victim] for the purpose of assisting or benefitting [the defendant] and thus no
kidnapping.” Id. at 741, 867 P.2d at 411. The Court stated further that “the mere incidental

                                               6
restraint and movement of a victim which might occur during the course of a homicide are
not, standing alone, indicia of a true kidnapping.” Id. (internal quotation marks and citation
omitted). This theory “would allow the [prosecution] to convict a defendant of kidnapping
simply by proving that the defendant committed a murder and that the defendant moved the
victim.” Id. The Court held that “[t]he [L]egislature . . . did not intend that this scenario be
construed as kidnapping, as evidenced by the specific enumeration of elements in our
kidnapping statute.” Id. The opinion closed with explicit rejection of “the [prosecution’s]
contention that incidental movement in the course of a murder constitutes kidnapping.” Id.

{19} Although the Vernon holding has been followed in subsequent murder cases, those
opinions have been careful to recognize that the kidnapping statute was amended two years
after Vernon to add a fourth intent requirement: “to inflict death, physical injury or a sexual
offense on the victim.” NMSA 1978, § 30-4-1(A)(4) (1995) (amended 2003); see State v.
Rojo, 1999-NMSC-001, ¶ 27 n.1, 126 N.M. 438, 971 P.2d 829 (stating that “[s]ince [the
d]efendant was charged and convicted under the statute and jury instructions in effect prior
to these amendments, we do not consider whether the evidence would support a conviction
under the new definition of kidnapping”); State v. Baca, 120 N.M. 383, 393, 902 P.2d 65,
75 (1995) (acknowledging that the Vernon holding applied to the “[held] for service”
element of the pre-1995 statute and also analyzing the issue under that element). Vernon’s
holding thus is tied to the specific element of kidnapping at issue there and does not address
instances, like this case, in which Defendant is charged with “intent . . . to inflict death,
physical injury[,] or a sexual offense on the victim.” Section 30-4-1(A)(4).

{20} The Court in State v. Saiz, 2008-NMSC-048, ¶¶ 27-34, 144 N.M. 663, 191 P.3d 521,
abrogated on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d
783, addressed sufficiency of the evidence in the context of the defendant’s double jeopardy
arguments. The defendant claimed that his conviction for both kidnapping and murder
violated his right not to be prosecuted twice for the same conduct. See id. ¶ 27. Recognizing
that “[t]he essence of [the d]efendant’s argument is that the acts constituting the kidnapping
were not sufficiently distinct from the acts constituting the murder for two separate crimes
to have been committed[,]” the Court stated that “[t]his requires an examination of the trial
record to determine whether the evidence shows that [the d]efendant committed the acts
constituting the crime of kidnapping, in addition to committing separate acts constituting
first[]degree murder.” Id. ¶ 30. Citing McGuire, 110 N.M. at 309, 795 P.2d at 1001, and
State v. Jacobs, 2000-NMSC-026, ¶ 25, 129 N.M. 448, 10 P.3d 127, the Court held that
“there was substantial evidence supporting the jury’s finding of two separate crimes of
kidnapping and murder.” Saiz, 2008-NMSC-048, ¶ 34. Thus, the Saiz Court’s inquiry was
whether there was sufficient evidence of “independent factual bases” for two different
crimes. Id. ¶ 30 (internal quotation marks and citation omitted). Concluding that there was,
the Court found no unitary conduct under the Swafford double jeopardy analysis. Saiz,
2008-NMSC-048, ¶ 35; Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991)
(stating that the test for violation of double jeopardy has two parts: first, determination of
“whether the conduct underlying the offenses is unitary, i.e., whether the same conduct
violates both statutes[, and, if so, determination of] whether the [L]egislature intended to
create separately punishable offenses” through two different statutes addressing the same
unitary conduct).


                                               7
{21} Jacobs involved an analysis of whether there was sufficient evidence supporting a
kidnapping conviction. The defendant offered the victim a ride home from the mall with her
friends. 2000-NMSC-026, ¶ 5. After dropping off her friends, the defendant drove off with
the victim; she was discovered later that day semi-naked and dead from a gunshot wound to
the head. Id. ¶¶ 4-5. The defendant argued “that there was insufficient evidence to support
his conviction for kidnapping, [and] that there was no evidence of an intentional abduction
separate from that necessarily involved in the attempted [CSP] and murder.” Id. ¶ 21. The
Court rejected his argument, stating that “[a] rational jury could . . . have found that the
kidnapping, attempted [CSP], and the murder were separate acts constituting separate
crimes. [The Court] conclude[d] that there was sufficient evidence of an independent factual
basis for each guilty verdict on the charges of kidnapping, attempted [CSP], and murder.”
Id. ¶ 26. The conviction was affirmed. Id. ¶ 73.

{22} None of these cases addresses the fundamental question of whether the restraint or
movement falls within the kidnapping statute at all. Their analyses presume that the conduct
falls within the kidnapping statute and proceed to assess the evidence or whether the
Legislature intended to punish the same conduct under two statutes. In the factual context
of this case, the more appropriate analysis involves the preliminary question: Did the
Legislature intend to punish Defendant’s momentary restraint of Victim in the course of a
fight as kidnapping?

2.     The History of Kidnapping Statutes

{23} We turn to the statute itself and the context in which it developed. Early in this
century, lawmakers responded to “[a] wave of kidnappings, often by well-organized
gangs . . . culminating in the notorious kidnapping of the young child of national hero
Charles Lindbergh” by enacting statutes that were broadly worded and carried high
penalties. 3 Wayne R. LaFave, Substantive Criminal Law § 18.1(a), at 4, 5 (2d ed. 2003)
(“[By 1962], it could fairly be said that a great many kidnapping statutes combined severe
sanctions with extraordinarily broad coverage, to the effect that relatively trivial restraints
carried authorized sanctions of death or life imprisonment.” (internal quotation marks
omitted)). Indeed, in 1969, this Court construed the kidnapping statute extremely
broadly: “If there is an unlawful restraining or confining, the length of time involved in such
restraint or confinement is immaterial. If there is an unlawful taking, the distance the victim
is taken is not material.” State v. Clark (Clark I), 80 N.M. 91, 94, 451 P.2d 995, 998 (Ct.
App. 1969) (citations omitted), rev’d on other grounds by 80 N.M. 340, 455 P.2d 844 (1969)
(Clark II). This broad wording has resulted in “a crime that has eluded meaningful
definition.” John L. Diamond, Kidnapping: A Modern Definition, 13 Am. J. Crim. L. 1, 1
(1985). This is especially so in cases where a defendant is charged with kidnapping and
another crime against the person of another because “[v]irtually every assault, sexual assault,
robbery, and murder involves a slight degree of confinement or movement.” Karen Bartlett,
Hines 57: The Catchall Case to the Texas Kidnapping Statute, 35 St. Mary’s L.J. 397, 401
(2004); see Corneau, 109 N.M. at 86, 781 P.2d at 1164 (“Ordinarily, almost any act of CSP
will involve a restraint or confinement[.]”).

{24} The drafters of the Model Penal Code (MPC) reacted to the broad coverage of these
statutes “by drafting a kidnapping provision which was itself limited to conduct of a most

                                              8
serious nature” that “has had considerable influence upon subsequent legislative action in
this area.” LaFave, supra, § 18.1(a), at 5 (including New Mexico among states on which
the MPC has had an influence). The MPC provision was necessary “to restrict the scope of
kidnapping, as an alternative or cumulative treatment of behavior whose chief significance
is robbery or rape, because the broad scope of this overlapping offense has given rise to
serious injustice.” Model Penal Code § 212.1, cmt. 1, at 13 (Tentative Draft No. 11, 1960).
In the most egregious cases, “[t]he criminologically non-significant circumstance that the
victim was detained or moved incident to the crime determines whether the offender lives
or dies.” Id. at 14. The MPC’s solution was “to define an aggravated offense of kidnapping
which shall consist of removal or confinement involving substantial isolation of the victim
where the duration of the isolation, the intention of the kidnapper, or other circumstance,
makes the behavior specially terrifying and dangerous.” Id. at 15. Thus, the MPC
kidnapping provision focuses on limiting kidnapping to crimes in which the restraint or
movement results in a high risk of harm to the victim. LaFave, supra, § 18.1(a), at 5. The
MPC kidnapping provision reads:

       A person is guilty of kidnapping if he unlawfully removes another from his
       place of residence or business, or a substantial distance from the vicinity
       where he is found, or if he unlawfully confines another for a substantial
       period in a place of isolation, with any of the following purposes:

       (a)     to hold for ransom or reward, or as a shield or hostage; or

       (b)     to facilitate commission of any felony or flight thereafter; or

       (c)     to inflict bodily injury on or to terrorize the victim or another; or

       (d)     to interfere with the performance of any governmental or political
               function.

Model Penal Code § 212.1 (1962). Although New Mexico has not adopted the MPC’s
version wholesale, our statute shares some key features with the MPC.

{25} New Mexico’s statute evolved in the context of these developments in kidnapping
jurisprudence nationwide. Our kidnapping statute dates to 1913. See NMSA 1953, § 40-25-
2 (Vol. 6, 1954); 1913 N.M. Laws, ch. 41, § 2. In the early days, three different statutes
addressed three types of kidnapping: kidnapping (1) of a child under twelve, NMSA 1953,
§ 40-25-1 (Vol. 6); (2) for ransom, NMSA 1953, § 40-25-3 (Vol. 6); and (3) “with intent to
cause [the victim] to be sent or taken out of this state, or to be secretly confined within the
same against his will.” Section 40-25-2. The latter crime did not require a specific intent.
See id.

{26} In 1963, these statutes were repealed in favor of a new construction that substantially
reformulated the law of kidnapping and formed the basis of the current law. See NMSA
1953, § 40A-4-1 (Vol. 6, Repl., 1964); 1963 N.M. Laws, ch. 303, § 4-1). This amendment
was consistent with the national trend toward creation of a single kidnapping statute and a
separate statute addressing restraints that do not rise to the level of kidnapping. See LaFave,

                                              9
supra, § 18.1(a), at 5. The 1963 law created three crimes: (1) kidnapping, (2) criminal use
of ransom, and (3) false imprisonment. See § 40A-4-1; NMSA 1953, § 40A-4-2 (Vol. 6,
Repl., 1964); NMSA 1953, § 40A-4-3 (Vol. 6, Repl., 1964). Through this reformulation, the
Legislature created a system with gradated punishments depending on the severity of the
crime. See §§ 40A-4-1 to -3. The criminal use of ransom and false imprisonment statutes
have remained unchanged since 1963. See NMSA 1978, §§ 30-4-2, -3 (1963). False
imprisonment is the “intentional[] confining or restraining another person without his
consent and with knowledge that [the kidnapper] has no lawful authority to do so.” Section
30-4-3. This definition of false imprisonment is very similar to the MPC definition in that
it requires knowledge that there is no lawful authority for the restraint, but it does not require
any specific intent. See Model Penal Code § 212.3 (2001); LaFave, supra, § 18.3(b), at 40.
In New Mexico, false imprisonment is a fourth degree felony, although the MPC and the
majority of other states classify it as a misdemeanor. See § 30-4-3; Model Penal Code §
212.3; LaFave, supra, § 18.3(b), at 41. Criminal use of ransom, punishable as a third degree
felony, allows punishment for “knowingly receiving, possessing, concealing[,] or disposing
of any portion of money or other property which has at any time been delivered for the
ransom of a kidnap[p]ed person.” Section 30-4-2.

{27} The 1963 amendment also consolidated what had been three types of kidnapping into
one. In contrast to false imprisonment, the kidnapping statute required specific intent by the
kidnapper to confine the victim against his will or to hold the victim for ransom, as a
hostage, or for service against his will. See § 40A-4-1; Clark II, 80 N.M. at 343, 455 P.2d
at 847 (“Merely to confine or restrain against a person’s will without the requisite intention
is not kidnapping.”). The 1963 kidnapping law redefined the prohibited acts as “the
unlawful taking, restraining[,] or confining of a person, by force or deception.” Section
40A-4-1. In addition, it made kidnapping a capital felony, unless “the jury so specifies[,]”
or when the victim was “freed without having had great bodily harm inflicted upon him by
his captor” or, in a bench trial, the court believes “the death penalty is not warranted.” Id.

{28} In 1973, the penalty for kidnapping was reduced from a capital offense to a first
degree felony, and the intent requirements were rephrased into three categories such that the
kidnapper must intend “that the victim: (1) be held for ransom; (2) as a hostage, confined
against his will; or (3) be held to service against the victim’s will.” 1973 N.M. Laws, ch.
109, § 1(A). The 1995 amendments broadened the definition of prohibited conduct slightly
to include transporting victims through the use of intimidation in addition to force or
deception, but also limited the statute’s application by adding a fourth intent
requirement: “to inflict death, physical injury[,] a sexual offense on the victim.” 1995 N.M.
Laws, ch. 84, § 1(A)(4). The 2003 amendment reflects further recognition of the interplay
between kidnapping and sexual assault. This amendment allows reduction to a second
degree felony only when the victim is voluntarily released “in a safe place and [the
kidnapper] does not inflict physical injury or a sexual offense upon the victim.” 2004 N.M.
Laws (1st S.S.), ch. 1, § 2(B) (emphasis added). The current statute reads:

               A.      Kidnapping is the unlawful taking, restraining, transporting
        or confining of a person, by force, intimidation[,] deception, with intent:

                        (1)     that the victim be held for ransom;

                                               10
                     (2)     that the victim be held as a hostage or shield and
       confined against his will;

                       (3)     that the victim be held to service against the victim’s
       will; or

                       (4)     to inflict death, physical injury[,] a sexual offense on
       the victim.

               B.      Whoever commits kidnapping is guilty of a first degree
       felony, except that he is guilty of a second degree felony when he voluntarily
       frees the victim in a safe place and does not inflict physical injury or a sexual
       offense upon the victim.

Section 30-4-1.

{29} This review of the kidnapping statute yields several observations. Our kidnapping
statute has never limited kidnapping to cases in which the victim is moved. Rather,
throughout its history the Legislature has maintained the word “confined.” This indicates
that the Legislature intended to broaden the statute’s application beyond the common law
crime of kidnapping. See LaFave, supra, § 18.1(a), at 4. The amendments to the statute,
however, reflect a trend toward greater specificity in the elements of kidnapping,
demonstrated by the distinction between kidnapping and false imprisonment in 1963 and the
addition of intent requirements in that and subsequent amendments. Even though the
prohibited acts remain broadly defined, the evolution of the intent requirements has the
effect of limiting the conduct that falls within the statute. Finally, the gradated system of
penalties indicates that the Legislature recognized the special harm caused by movement or
isolation of a victim with the specified intent and sought to distinguish it from restraint
without that intent. See Model Penal Code § 212.1, cmt. 3 (Tentative Draft No. 11, 1960).

{30} The current graded penalties indicate that the Legislature considers kidnapping a
serious crime that requires severe consequences. First degree kidnapping carries a sentence
of eighteen years. See § 30-4-1(B); NMSA 1978, § 31-18-15(A)(3) (2007). Even second
degree kidnapping carries a relatively high sentence—nine years. See § 30-4-1(B); § 31-18-
15(A)(6). In contrast, false imprisonment carries a sentence of eighteen months. See § 30-4-
3; § 31-18-15(A)(10). Furthermore, battery, a crime in which restraint of a victim is often
inherent, is a misdemeanor. See NMSA 1978, § 30-3-4 (1963). Even aggravated battery is
only a third degree felony with a sentence of three years. See NMSA 1978, § 30-3-5 (1969);
§ 31-18-15(A)(9).

3.     The Majority Position

{31} With this history in mind, we turn to an examination of cases in other jurisdictions.
“The majority view is that kidnapping statutes do not apply to unlawful confinements or
movements ‘incidental’ to the commission of other felonies.” Frank J. Wozniak, Ann.,
Seizure or Detention for Purpose of Committing Rape, Robbery, or Other Offense as
Constituting Separate Crime of Kidnapping, 39 A.L.R. 5th 283, § 2[a] (1996); see LaFave,

                                              11
supra, § 18.1(b), (c), at 10-11, 18 (stating that in statutes that include the word “confine”
without definition, “[s]ome courts adhere to the minority position that the absence of any
such qualifying words . . . means that a kidnapping conviction may be had even though the
confinement was very brief and closely connected to commission of the underlying
offense”); State v. Salamon, 949 A.2d 1092, 1119 (Conn. 2008) (listing jurisdictions
following the majority and minority positions).

{32} Those following the majority have developed three tests for whether a restraint or
movement is “incidental” to other crimes. Laura Hunter Dietz, 1 Am. Jur. 2d Abduction &
Kidnapping § 10 (2012). Under the first test, the court must determine “whether the
confinement, movement, or detention was merely incidental to the accompanying felony or
whether it was significant enough, in and of itself, to warrant independent prosecution.” Id.;
see, e.g., Salamon, 949 A.2d at 1121 (explaining the “various relevant factors” to be
considered by the jury). In contrast, the second test focuses on “whether the detention or
movement substantially increased the risk of harm over and above that necessarily present
in the accompanying felony.” Dietz, supra; see, e.g., People v. Daniels, 459 P.2d 225, 238
(Cal. 1969) (in bank) (explaining the exclusion of “the movements of the victim are merely
incidental to the commission of the robbery and do not substantially increase the risk of harm
over and above that necessarily present in the crime of robbery itself”). The third test
applies when the restraint or movement was done to “facilitate the commission of another
crime,” an element in some states’ statutes. Dietz, supra; see, e.g., Kan. Stat. Ann. § 21-
5408(a)(2) (2011). It requires that the restraint or movement not “be slight, inconsequential,
and merely incidental to the other crime” or “be the kind inherent in the nature of the other
crime.” Dietz, supra. Finally, under this test, the restraint or movement “must have some
significance independent of the other crime, in that it makes the other crime substantially
easier to commit or substantially lessens the risk of detection.” Dietz, supra; see, e.g., State
v. Buggs, 547 P.2d 720, 723 (Kan. 1976). Salamon, Daniels, and Buggs illustrate the
development of the majority view and these tests.

{33} In Salamon, the victim was walking up a flight of stairs when the defendant “grabbed
her by the back of the neck[,]” causing the victim to fall down. 949 A.2d at 1101, 1121. The
defendant held her down while the victim struggled. See id. at 1121. “[W]hen she persisted
in screaming and fighting to extricate herself, he punched her once in the mouth and
attempted to thrust his fingers down her throat.” Id. The victim was held on the ground for
“at least five minutes.” Id. The defendant argued, like Defendant here, “that the legislature
did not intend for the enhanced penalties available upon convictions of kidnapping to apply
when the restraint involved in the kidnapping is incidental to the commission of another
crime or crimes.” Id. at 1102-03 (footnote omitted). The Connecticut court agreed. Id. at
1117.

{34} After reviewing the history of kidnapping legislation nationwide and the trends
discussed above, the court concluded:

       Our legislature, in replacing a single, broadly worded kidnapping provision
       with a gradated scheme that distinguishes kidnappings from unlawful
       restraints by the presence of an intent to prevent a victim’s liberation,
       intended to exclude from the scope of the more serious crime of kidnapping

                                              12
       and its accompanying severe penalties those confinements or movements of
       a victim that are merely incidental to and necessary for the commission of
       another crime against that victim.

Id. The test for whether the restraint was “incidental” is whether “a defendant [intended] to
prevent the victim’s liberation for a longer period of time or to a greater degree than that
which is necessary to commit the other crime.” Id. This test presents a factual question. Id.
at 1121. Thus, “when the evidence reasonably supports a finding that the restraint was not
merely incidental to the commission of some other, separate crime, the ultimate factual
determination must be made by the jury.” Id. at 1120-21; accord State v. White, 362 S.W.3d
559, 578 (Tenn. 2012) (agreeing with the Salamon court that the question of whether
restraint or movement is incidental to another crime must be determined by a properly
instructed jury).

{35} Ultimately, the court reversed the kidnapping conviction and remanded for a new
trial in which the jury would “be instructed that, if it finds that the defendant’s restraint of
the victim was merely incidental to the defendant’s commission of another crime against the
victim,” it could not convict for kidnapping. Salamon, 949 A.2d at 1122. This holding was
required because, based on the facts of the case, a reasonable juror could find that the
restraint was not incidental to the assault. See id. at 1122 n.34. The court distinguished the
Salamon facts from State v. Sanseverino, 949 A.2d 1156 (2008), which it decided the same
day using the principles outlined in Salamon. Salamon, 949 A.2d at 1122 n.34. In that case,
the defendant followed a woman into a back room of a bakery, “pushed her against the wall,”
and sexually assaulted her. Sanseverino, 949 A.2d at 1161. He then let her go. Id. Having
determined “that, because no reasonable juror could find that the restraint [the defendant]
had imposed on [the victim] was not incidental to the commission of the sexual assault
against [the victim],” the court determined that the defendant should be acquitted of
kidnapping. Salamon, 949 A.2d at 1122 n.34.

{36} The second test developed out of a case in which two defendants entered the victims’
homes under pretext then forced them to move from room to room within the home in order
to rob and rape them. See Daniels, 459 P.2d at 227-28. The question before the court was
whether such movement was within the prohibitions of the California kidnapping statute.
See id. at 229, 234. The court noted that earlier cases setting forth the rule that “[i]t is the
fact, not the distance, of forcible removal which constitutes kidnap[p]ing in this state” had
already been overruled in favor of a rule that “[w]here the movement is [i]ncidental to the
alleged assault, [the statute] should not have application, as the [l]egislature could not
reasonably have intended that such [i]ncidental movement be a taking from one part of the
county to another” because “[s]uch a holding could result in a rule that every assault could
also be prosecuted for kidnapping under [the statute], as long as the slightest movement was
involved.” Id. at 229, 231-32 (internal quotation marks and citations omitted). Essentially,
California had already adopted the first test to exclude restraint or movement incidental to
the other crime. In Daniels, the court reiterated that exclusion and grafted onto it
another—“those . . . movements of the victim . . . [that] do not substantially increase the risk
of harm over and above that necessarily present in the [other] crime” itself. Id. at 238; see
Diamond, supra, at 5-15. The addition of the second prong—increased risk of
harm—addresses the fact that some restraints or movements of victims “reac[h] a form of

                                              13
terrifying and dangerous aggression not otherwise adequately punished.” Model Penal Code
§ 212.1, cmt. 1; see Comment, Room-to-Room Movement: A Risk Rationale for Aggravated
Kidna[p]ping, 11 Stan. L. Rev. 554, 555 (1959) (cited in Daniels, 459 P.2d at 238). Under
this test, the court held “that the brief movements which [the] defendants . . . compelled their
victims to perform in furtherance of robbery were merely incidental to that crime and did not
substantially increase the risk of harm otherwise present.” Daniels, 459 P.2d at 238. Thus,
they did not constitute kidnapping, and the convictions were vacated. Id.

{37} In Buggs, 547 P.2d at 732, the Supreme Court of Kansas adopted the third test.
Diamond, supra, at 24-27. The statute in that state included as a mens rea element the intent
“[t]o facilitate flight or the commission of any crime.” Buggs, 547 P.2d at 729 (internal
quotation marks and citation omitted). While acknowledging that the “statute . . . requir[es]
no particular distance of removal, nor any particular time or place of confinement[,]” and “it
is still the fact, not the distance, of a taking (or the fact, not the time or place, of
confinement) that supplies a necessary element of kidnapping[,]” the court went on to
analyze the differences between the first and third tests. Id. at 730-31. The Buggs court
stated, “a kidnapping statute is not reasonably intended to cover movements and
confinements which are slight and ‘merely incidental’ to the commission of an underlying
lesser crime.” Id. at 730. In contrast, when the charge rests on whether the restraint or
movement “facilitated” another crime, the court found the “merely incidental” test
insufficient because facilitation requires “some significant bearing on making the
commission of the crime ‘easier’ as, for example, by lessening the risk of detection.” Id.
Therefore, they could not “agree that merely because a taking ‘facilitates’ another crime it
must necessarily be ‘merely incidental’ to the other crime. Whether a taking substantially
‘facilitates’ another crime or whether it is ‘merely incidental’ are two different things. The
same taking cannot be both.” Id. at 731. Therefore, the Buggs court developed a test
specific to instances in which that aspect of the statute applied, to wit: in addition to being
more than incidental to the other crime, the restraint or movement cannot be “of the kind
inherent in the nature of the other crime” and “[m]ust have some significance independent
of the other crime in that it makes the other crime substantially easier of commission or
substantially lessens the risk of detection.” Id. at 723. As examples, the court stated:

        A standstill robbery on the street is not a kidnapping; the forced removal of
        the victim to a dark alley for robbery is. The removal of a rape victim from
        room to room within a dwelling solely for the convenience and comfort of
        the rapist is not a kidnapping; the removal from a public place to a place of
        seclusion is. The forced direction of a store clerk to cross the store to open
        a cash register is not a kidnapping; locking him in a cooler to facilitate escape
        is.

Id. at 731.

{38} The basic question to which each of these tests is directed is whether the restraint or
movement increases the culpability of the defendant over and above his culpability for the
other crime. See Note, A Rationale of the Law of Kidnapping, 53 Colum. L. Rev. 540, 557
(1953); State v. Niemeyer, 782 A.2d 658, 670 (Conn. 2001) (McDonald, C.J., concurring)
(“[T]he guiding principle is whether the restraint was so much the part of another substantive

                                               14
crime that the substantive crime could not have been committed without such acts and that
independent criminal responsibility may not fairly be attributed to them.” (internal quotation
marks and citation omitted)). In 1953, the Columbia Law Review wrote that the harm
addressed by kidnapping statutes is the additional danger to the victim by transportation or
confinement.

               A salient consideration is that virtually all conduct within the scope
       of kidnapping law is punishable under some other criminal provision: e.g.,
       extortion, homicide, assault, rape, robbery, statutory rape, contributing to the
       delinquency of a minor, sex perversion and compulsory prostitution.
       Consequently, the practical effect of kidnapping law is to permit the
       imposition of additional sanctions when one of these other crimes is
       accompanied by a detention and asportation. Kidnapping law, therefore, is
       defensible only if an asportation or detention significantly increases the
       dangerousness or undesirability of the defendant’s behavior.

A Rationale of the Law of Kidnapping, supra, at 556. In other words, the severe penalties
for kidnapping are acceptable only when there is culpability for increased danger to the
victim. See Vernon, 116 N.M. at 741, 867 P.2d at 411 (citing with approval People v.
Wesley, 365 N.W.2d 692, 710 (Mich. 1984) (Levin, J., dissenting), in which the dissent
states that to elevate second degree murder to first degree based on movement of the victim
“aggravates the degree of the offense where there is no additional culpability”).

4.     The Legislature Did Not Intend to Punish Defendant’s Conduct as Kidnapping

{39} We conclude from this examination of the purpose and interpretation of our and other
states’ kidnapping statutes that the Legislature did not intend to punish as kidnapping
restraints that are merely incidental to another crime. While we find the Salamon, Daniels,
and Buggs tests for determining just what conduct is “incidental” to another crime
informative, it is unnecessary to adopt a specific test to resolve the issue here because
Defendant’s conduct fails to constitute kidnapping under any of these tests. The facts here
do not present a “close call.” Applying the Salamon test, it is clear that the restraint was not
longer or greater than that necessary to achieve a battery—in fact, the restraint occurred
within the period of the battery, in the same general location, and there was no indication
that Defendant intended any other purpose than to continue battering Victim. In addition,
under the Daniels test, the brief restraint did not subject Victim to substantially greater risk
of harm. This was a struggle between two people to gain the upper hand—although
Defendant held Victim and called to his co-conspirator to hit Victim, Defendant always
intended that the two of them would beat Victim, so the restraint was not an effort to
increase the harm to Victim. Furthermore, the restraint did not increase the length or
severity of the attack because their intent to batter him existed throughout the episode and
was not changed by the restraint. In addition, the entire episode began and ended within a
relatively short period. Finally, to the extent that the State argues that Defendant’s restraint
was intended to facilitate a battery by his co-conspirator, and thus fits within the Buggs test,
this argument is untenable both because our statute is unlike Kansas’ statute and because the
facts do not support it.


                                              15
{40} Since the State does not dispute the proximity in location and time, the State relies
instead on intent to distinguish the kidnapping from the battery. See Clark II, 80 N.M. at
343, 455 P.2d at 847 (“Merely to confine or restrain against a person’s will without the
requisite intention is not kidnapping.”). Essentially, the State asks us to conclude that
Defendant completed a battery upon Victim and then formed a separate intent to restrain
Victim (who was in fact on top of Defendant at this point) in order to facilitate a separate
battery upon Victim by the other assailant. We find this argument without merit. In
convicting Defendant of conspiracy to commit aggravated battery, the jury found that
Defendant and the other assailant “agreed together to commit [a]ggravated [b]attery.” Thus,
Defendant’s intent was unchanging throughout the encounter—he intended, along with his
co-conspirator, to batter Victim. The request for help does not reflect a sudden change in
intent from battery to kidnapping; it reflects that Defendant had always intended that the
fight would be two against one. Similarly, the restraint also does not reflect a sudden change
in Defendant’s intent, but rather a prudent defensive measure Defendant adopted when the
battery began to go awry.

{41} Finally, we note that, in this case, a conviction for kidnapping would increase
Defendant’s sentence three fold—from three to nine years—because he held Victim for a
short time during a fight. (Although Victim was not released without physical injury so as
to meet the definition of second degree kidnapping, Defendant was nevertheless charged and
sentenced as if this was a second degree kidnapping instead of first degree.) The Legislature
could not have intended this result. See State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981)
(concluding that the “substantial disparity between sentences” for kidnapping and sexual
abuse indicated that “the legislature intended the kidnapping statute to be applicable only to
those situations in which confinement or removal definitely exceeds that which is merely
incidental to the commission of sexual abuse”). The kidnapping conviction must be
overturned.

{42} We emphasize that the factual circumstances of this case have allowed us to
determine as a matter of law that the Legislature did not intend Defendant’s conduct to
constitute kidnapping. Obviously not all cases will be so clear. As always, facts matter.
Here, for example, if the Victim had been restrained and under restraint moved outside his
home, we would have a more complicated and closer question. A more complicated factual
scenario would present a jury question—submitted under appropriate instructions—as to
whether the restraint involved was merely incidental to the other crime.

{43} Finally, our holding today does not conflict with Clark I, in which this Court held
that the duration of confinement or distance of movement is immaterial to a kidnapping
charge, nor does it preclude conviction for kidnapping based on minimal movement or short
confinement. See 80 N.M. at 94, 451 P.2d at 998. This is because our holding does not
depend only on the amount of time Defendant held Victim. “[I]ncidental movement is not
solely a matter of measuring feet and inches.” State v. Green, 616 P.2d 628, 635 (1980) (en
banc). Rather, whether the restraint or movement is incidental depends on “the facts of each
case, in light of the totality of surrounding circumstances. This characterization is as much
a consideration of the relation between the restraint and the [other crime] as it is a measure
of the precise distance moved or place held.” Id.


                                             16
{44} Because we reverse the kidnapping conviction, there is no need to address
Defendant’s double jeopardy arguments regarding kidnapping.

B.     Double Jeopardy and the Conspiracy Convictions

{45} Defendant was convicted of two conspiracies: conspiracy to commit aggravated
burglary and conspiracy to commit aggravated battery. He argues that this violated his
double jeopardy rights. The State concedes that there was evidence of only one conspiracy
to commit multiple crimes. Although we are not bound by this concession, we agree.

{46} In State v. Gallegos, our Supreme Court held that New Mexico’s conspiracy statute
carries “a rebuttable presumption that multiple crimes are the object of only one,
overarching, conspiratorial agreement subject to one . . . punishment set at the highest crime
conspired to be committed.” 2011-NMSC-027, ¶ 55, 149 N.M. 704, 254 P.3d 655. The
Court identified a number of factors that might overcome this presumption, including where
the conspiracies occurred, overlap in when the conspiracies occurred, overlap in who
conspired, and whether the acts charged and the role played by the defendant in the alleged
conspiracies were similar. Id. ¶ 42. As the State explains,

       [G]uilty verdicts on both conspiracy charges required the jury to find that
       both conspiracies took place at the same time and place between Defendant
       and another person. There is no indication that the “other person” of each
       instruction was not the same person. The objects of both conspiracies were
       inseparable, as the aggravated burglary was done with intent to commit the
       aggravated battery. Defendant’s roles in each charged conspiracy were
       likewise inseparable, being part of one concerted action. . . . The presumption
       that there was but a single conspiracy is not overcome.

This analysis is correct. On remand the district court is instructed to vacate Defendant’s
conviction of the lesser conspiracy, conspiracy to commit aggravated battery.

C.     Ineffective Assistance

{47} Defendant argues that his attorney’s failure to subpoena critical witnesses was
ineffective assistance requiring a new trial. “To state a case of ineffective assistance of
counsel, [d]efendant must show that (1) counsel’s performance was deficient, and (2) the
deficient performance prejudiced the defense.” Garcia v. State, 2010-NMSC-023, ¶ 30, 148
N.M. 414, 237 P.3d 716 (internal quotation marks and citation omitted). With respect to the
first prong, “[a]n appellate court will not second-guess counsel’s strategic judgment unless
the conduct does not conform with an objective standard of reasonableness.” State v.
Garcia, 2011-NMSC-003, ¶ 33, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and
citation omitted). “The decision whether to call a witness is a matter of trial tactics and
strategy within the control of trial counsel.” State v. Orosco, 113 N.M. 789, 797, 833 P.2d
1155, 1163 (Ct. App. 1991). “We review claims of ineffective assistance of counsel de
novo.” Garcia, 2011-NMSC-003, ¶ 33.



                                             17
{48} Whether we will address an ineffective assistance claim on direct appeal depends on
the completeness of the record. “If facts necessary to a full determination are not part of the
record, an ineffective assistance claim is more properly brought through a habeas corpus
petition, although an appellate court may remand a case for an evidentiary hearing if the
defendant makes a prima facie case of ineffective assistance.” State v. Roybal, 2002-NMSC-
027, ¶ 19, 132 N.M. 657, 54 P.3d 61. In the instant case, trial counsel moved for a new trial.
The motion was based in part on the argument that he had been ineffective. This motion
provides sufficient information upon which to decide the issue.

{49} In the motion for a new trial, counsel states that one reason that he did not object
“that Defendant might not get a fair trial without the crucial testimony of both [o]fficers”
was that he “did not believe that Defendant could possibly be convicted in spite of the
absence of the [o]fficers.” This admission by itself is fatal to his claim that his assistance
was ineffective. The assertion simultaneously admits that counsel made an informed
decision not to take further steps to try to secure the testimony of the officers and admits that
counsel did not believe that the officers’ testimony would have made a difference in this
case. We accept as true counsel’s statement that he made a tactical decision not to pursue
the officers’ testimony and conclude that his assistance was not ineffective.

D.      Officer Testimony

{50} Defendant argues that the district court abused its discretion by excluding testimony
or recordings from officers responding to the 911 call to the effect that damage done to
Victim’s back door had occurred prior to the night of the break-in. Even assuming that the
exclusion of this evidence was error, we conclude that any error was harmless.

{51} When a district court makes an evidentiary error not implicating a defendant’s
constitutional rights, “we employ the non-constitutional standard for the harmless error
analysis.” State v. Branch, 2010-NMSC-042, ¶ 15, 148 N.M. 601, 241 P.3d 602, overruled
on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. An error is harmful
when, looking at the totality of the circumstances, there is a “reasonable . . . probability[]
that impermissible evidence contributed to a defendant’s conviction.” Tollardo, 2012-
NMSC-008, ¶ 43; see State v. Barr, 2009-NMSC-024, ¶ 53, 146 N.M. 301, 210 P.3d 198
(explaining that constitutional errors are reviewed under the “reasonable possibility”
standard and non-constitutional errors are reviewed under the less stringent “reasonable
probability” standard), overruled on other grounds by Tollardo, 2012-NMSC-008, ¶ 37.

{52} Looking at the totality of the circumstances in this case, there is no reasonable
probability that the exclusion of officer statements that the damage to the door was pre-
existing contributed to Defendant’s convictions. Defendant’s aggravated battery conviction
was supported by the testimony of Victim, Victim’s wife, and Victim’s child. Additionally,
the aggravated burglary conviction, which required that Defendant enter Victim’s house
armed and with the intent to commit the battery, was supported by the same testimony.
Evidence regarding the door was not in any way relevant to the elements of these crimes.
In addition, a picture of the door was admitted into evidence from which the jury could draw
its own conclusions. Under these circumstances, we cannot conclude that there is a


                                               18
reasonable probability that the result was affected by the exclusion of this evidence.

E.      Exclusion of Questions About Drug Use and Sales

{53} Defendant also contends that the district court abused its discretion by ruling that
Defendant could not attempt to elicit information about Victim’s involvement with drugs,
either as a user or a seller. The district court excluded this under Rule 11- 404(A) NMRA
as unfairly prejudicial. Defendant’s theory appears to be that such evidence would have
tended to prove that Victim had a motive to steal, and in particular, to frame Defendant in
order to fraudulently file suit against him in order to obtain a money judgment.

{54} We review the decision to exclude evidence for abuse of discretion. State v.
Martinez, 2008-NMSC-060, ¶ 10, 145 N.M. 220, 195 P.3d 1232. “An abuse of discretion
occurs when a ruling is clearly contrary to the logical conclusions demanded by the facts and
circumstances of the case.” Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d
153. Defendant proffered testimony that Victim and his wife once had a methamphetamine
problem and that Defendant had recently seen numerous cars making short stops at Victim’s
house. He desired to introduce this to show that Victim was using or selling drugs and that,
therefore, he was untruthful and likely to initiate fraudulent civil lawsuits. But the probative
value of this evidence, if any, is far outweighed by the prejudice to Victim of being
portrayed as a drug user or drug dealer. See State v. Rael, 117 N.M. 539, 542-43, 873 P.2d
285, 288-89 (Ct. App. 1994) (holding that evidence that a defendant sold drugs was unduly
prejudicial when the defendant was charged only with being a felon in possession of a
firearm). Here, Defendant’s theory, not the district court’s ruling, is contrary to logical
conclusions demanded by the facts of the case; therefore, we cannot say that the district court
abused its discretion in excluding this evidence.

F.      Motion to Disqualify Seventh Judicial District Attorney’s Office

{55} Pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967),
Defendant argues that a new trial is warranted based on the district court’s erroneous denial
of his motion to recuse the prosecutor and the entire Seventh Judicial District Attorney’s
Office. When reviewing motions to disqualify, we must decide whether legal or factual
questions are at issue. State v. Juan, 2010-NMSC-041, ¶ 31, 148 N.M. 747, 242 P.3d 314.
We review legal issues de novo, but defer to the district court’s judgment when factual
questions are involved. Id.

{56} In order to disqualify a prosecutor, Defendant must make “a showing of particular
circumstances that justifies an inference of a disqualifying interest.” State v. Gonzales,
2005-NMSC-025, ¶ 34, 138 N.M. 271, 119 P.3d 151. Bias is one such disqualifying interest.
See id. ¶ 39. “The personal bias that is disqualifying, however, is a bias that creates an
opportunity for conflict or other improper influence on professional judgment. There must
be a basis in fact for a determination such bias exists.” Id.

{57} “[A] defendant’s conduct will almost never be sufficient to disqualify a member of
the prosecution team, unless the crime being prosecuted was committed against the


                                              19
prosecuting attorney or someone else involved in the prosecution.” Id. ¶ 29. For example,
in State v. Robinson, this Court found no disqualifying interest preventing an assistant
district attorney from prosecuting a defendant for CSP when that defendant had later
solicited the murder of that attorney. 2008-NMCA-036, ¶ 25, 143 N.M. 646, 179 P.3d 1254.


{58} Defendant’s motion was heard on December 15, 2009. Defendant did not introduce
any evidence, but counsel asserted that Defendant’s wife had written letters to the
disciplinary board and to the prosecutor’s supervisor, and that the prosecutor had initiated
a federal investigation into Defendant’s wife for stalking. The district court denied the
motion, comparing it to a case where a judge was not disqualified from hearing the case of
a defendant who had made death threats against the judge. Defendant has not made a factual
record for his motion; however, assuming his assertions are true, we conclude as a matter of
law that Robinson required that his motion be denied. In Robinson, a defendant’s death
threats against a prosecutor were insufficient to disqualify the prosecutor. Id. Here,
Defendant’s wife allegedly wrote two letters and possibly made herself the target of a
separate stalking prosecution. Even assuming any of this is true, and assuming that
Defendant’s wife’s actions can be imputed to Defendant, we conclude that these actions fall
far below the facts that were not disqualifying in Robinson.

G.      Cumulative Error

{59} Finally, Defendant asserts without explanation that the cumulative impact of non-
reversible irregularities is so prejudicial that he was deprived of his right to a fair trial. We
disagree. The cumulative error doctrine is strictly applied and may not be successfully
invoked if the record as a whole demonstrates that a defendant received a fair trial. State v.
Trujillo, 2002-NMSC-005, ¶ 63, 131 N.M. 709, 42 P.3d 814. “Because we have vacated all
convictions for which we found error, and there is otherwise no error to accumulate, we
conclude that the defendant received a fair trial and that the doctrine is not applicable in this
case.” Id.

III.    CONCLUSION

{60} For the foregoing reasons, we affirm all of Defendant’s convictions except for the
kidnapping and conspiracy to commit aggravated battery convictions. On remand, the
district court is instructed to vacate these convictions.

{61}    IT IS SO ORDERED.

                                                ____________________________________
                                                MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge


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____________________________________
LINDA M. VANZI, Judge

Topic Index for State v. Trujillo, No. 30,563

APPEAL AND ERROR
Cumulative Error
Harmless Error
Remand
Standard of Review

ATTORNEYS
Effective Assistance of Counsel


CONSTITUTIONAL LAW
Double Jeopardy

CRIMINAL LAW
Burglary
Conspiracy
Kidnaping

CRIMINAL PROCEDURE
Double Jeopardy
Lesser Included Offense

EVIDENCE
Exclusion of Evidence

STATUTES
Interpretation
Legislative Intent




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