                                                     I attest to the accuracy and
                                                      integrity of this document
                                                        New Mexico Compilation
                                                      Commission, Santa Fe, NM
                                                     '00'05- 16:44:53 2013.02.28
Certiorari Denied, January 29, 2013, No. 33,968
Certiorari Granted, February 8, 2013, No. 33,970

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-025

Filing Date: November 28, 2012

Docket No. 30,379

STATE OF NEW MEXICO,

       Plaintiff-Appellant/Cross-Appellee,

v.

GERARD B. PARVILUS,

       Defendant-Appellee/Cross-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Judge

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

for Cross-Appellee

Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM

for Cross-Appellant

                                      OPINION

FRY, Judge.

{1}     Defendant was convicted of second degree murder, kidnapping (one count of first
degree and one count of second degree), aggravated burglary, aggravated assault, and
interference with communications. Defendant entered his estranged wife’s apartment
without permission, kidnapped his wife’s paramour, and killed the paramour. Later,

                                          1
Defendant also kidnapped and assaulted his wife. On Defendant’s motion for judgment of
acquittal notwithstanding the verdict, the district court vacated the conviction for aggravated
burglary on the basis of a statute providing that “[n]either husband nor wife . . . can be
excluded from the other’s dwelling.” NMSA 1978, § 40-3-3 (1907). The State appeals from
this ruling, and Defendant cross-appeals, asserting several errors related to jury instructions,
sufficiency of the evidence, denial of a motion for mistrial, and the alleged unconstitutional
vagueness of our kidnapping statute. We affirm.

BACKGROUND

{2}     In March 2007, Defendant was a non-commissioned officer in the Air Force,
stationed in Korea. Defendant’s wife (Wife) was also in the Air Force and volunteered for
a temporary deployment in Kuwait, where she began an affair with Victim, a military police
officer. Wife ultimately admitted the affair to Defendant but told him that she was not going
to continue the relationship with Victim. Over a period of several months in late 2007 and
early 2008, Defendant and Wife discussed the possibility of getting divorced.

{3}     Wife returned to Alamogordo, New Mexico, in January 2008. Victim joined her
there, and they resumed their affair. In February 2008, Wife revealed to Defendant that she
had become pregnant with Victim’s child and that she had an abortion. A few days later,
Defendant went AWOL, flew from Korea to El Paso, Texas, and drove to Alamogordo,
where he checked into a motel.

{4}    The following day, Defendant bought a screwdriver and a box cutter to use in
breaking into Wife’s apartment, and he also purchased a handgun.1 Defendant drove to
Wife’s apartment and, leaving the handgun in the car, he crawled in through an open
window, whereupon he discovered Victim in the bathroom. Defendant retrieved a handgun
from a closet and confronted Victim. Defendant then bound Victim with duct tape and
proceeded to interrogate Victim. Following this conversation, Defendant cut the duct tape
from Victim.

{5}     Victim and Defendant drove to the motel where Defendant was staying and went to
Defendant’s room. According to Defendant’s testimony, Victim insisted on accompanying
him to the motel because he believed that Wife had lied to both Victim and Defendant. Also
according to Defendant, after the two men entered the motel room, Defendant placed the
guns and the knife on one of the beds and began to talk to Victim, whereupon Victim
grabbed one of the guns and pointed it at Defendant. Defendant testified that he feared he
was about to be shot, so he stabbed Victim to death.


       1
         Apparently the lease on the apartment was originally in the names of both Wife and
Defendant, but at some point prior to Defendant’s going AWOL, the apartment’s lessor,
Wife, and Defendant agreed that Defendant would be released from any obligations under
the lease.

                                               2
{6}     Defendant then returned to Wife’s apartment. Wife testified that when she arrived
at the apartment, Defendant accosted her and struck her in the head with a handgun, forced
her to drive to the motel, and showed her Victim’s body in the motel room. According to
Defendant, he accidentally hit Wife in the head with the gun and she voluntarily
accompanied him to the motel. Soon after, Defendant drove with Wife to the office of the
New Mexico State Police and turned himself in.

{7}    Following a trial, the jury found Defendant guilty of second degree murder, two
counts of kidnapping, aggravated burglary, aggravated assault, and interference with
communications. Defendant moved for a judgment of acquittal notwithstanding the verdict,
arguing in part that his entry into Wife’s apartment was not unauthorized, as required by the
burglary statute, because Section 40-3-3 provides that neither spouse can exclude the other
from the spouse’s dwelling. The district court agreed and vacated Defendant’s conviction
for aggravated burglary. The State appeals from this determination, and Defendant cross-
appeals, raising several other issues.

DISCUSSION

1.     The State’s Appeal

{8}     The State argues that the district court improperly vacated Defendant’s conviction
for aggravated burglary. In order to find Defendant guilty of aggravated burglary, the jury
had to find, among other elements, that Defendant’s entry into Wife’s apartment was
unauthorized. See NMSA 1978, § 30-16-4 (1963) (stating that “[a]ggravated burglary
consists of the unauthorized entry of any . . . dwelling” when the person is either armed with
a deadly weapon, arms himself with a deadly weapon once inside, or commits a battery on
a person in the place entered). The district court determined that Defendant’s entry into
Wife’s apartment was not unauthorized in light of Section 40-3-3, titled “Separation of
property; admission to dwelling of spouse[,]” which states: “Neither husband nor wife has
any interest in the property of the other, but neither can be excluded from the other’s
dwelling.”

{9}     “Statutory interpretation is an issue of law, which we review de novo.” State v.
Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. “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 [a] statute, unless this leads to an absurd or
unreasonable result.” State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801.

{10} We have no case law explaining the Legislature’s intent in 1907 when it enacted
Section 40-3-3, but the State surmises that it was an aspect of the married women’s property
statutes that were enacted in most states in the late nineteenth and early twentieth centuries
as “part of a national campaign to sweep away the common law web of limitations and
disabilities which had entangled a married woman’s rights to own and dispose of property.”

                                              3
See Jane M. Keenan, Comment, The End of an Era: A Review of the Changing Law of
Spousal Burglary, 39 Duq. L. Rev. 567, 570 (2001) (internal quotation marks and citation
omitted). This supposition is bolstered by the fact that at the same time it enacted Section
40-3-3, our Legislature enacted several other statutes addressing the issue of married
women’s property rights. See, e.g., NMSA 1978, § 40-2-1 (1907) (stating that “[h]usband
and wife contract toward each other obligations of mutual respect, fidelity and support”);
NMSA 1978, § 40-2-2 (1907) (explaining contract rights of husband and wife); NMSA
1978, §§ 40-2-4 to -7 (1907, as amended through 1973) (explaining execution and recording
of marriage settlement and separation contracts); NMSA 1978, §§ 40-2-8 to -9 (1907)
(describing the extent to which husband and wife can contract to alter their legal relationship
and consideration for such a contract); NMSA 1978, § 40-3-1 (1907) (stating that “[t]he
property rights of husband and wife are governed by this chapter”); NMSA 1978, § 40-3-2
(1907) (stating how husband and wife may hold property).

{11} If the State is correct in theorizing that Section 40-3-3 was enacted as part of broader
legislation addressing the property rights of married women, this theory does not aid us
much in determining whether the statute has the effect of limiting the reach of our criminal
burglary statutes when the burglar and the burglary victim are married to each other. If we
focus on the statute’s language, it appears that its reach is fairly broad. First, the statute does
not appear to contemplate preservation of one “marital home” from which neither spouse can
be excluded. Instead, the statute states that neither husband nor wife “can be excluded from
the other’s dwelling.” Id. (emphasis added). This language suggests that, even if husband
and wife maintain separate residences, neither can exclude the other spouse. Second, there
are no limitations of any kind placed on this blanket prohibition against exclusion. As a
result, estrangement of the spouses or the many forms of having possession of a residence
appear to have no impact on the prohibition.

{12} Through the lens of this sweeping prohibition against spousal exclusion, we consider
the burglary statutes and our courts’ interpretation of those statutes. Our Supreme Court
recently discussed at length the history and purpose of our existing burglary statutes in State
v. Office of the Public Defender, ex rel. Muqqddin, 2012-NMSC-029, 285 P.3d 622. The
Court noted that New Mexico case law has stated that “the purpose of our burglary statute
is to protect possessory rights with respect to structures and conveyances, and to define
prohibited space.” Id. ¶ 40 (internal quotation marks and citations omitted). The Court
stated that “[c]hief among the possessory interests that burglary is designed to protect is the
right to exclude.” Id. ¶ 41 (emphasis added). The Court went on to state that “[t]his right
to exclude has been described as perhaps the most fundamental of all property interests.”
Id. (internal quotation marks and citation omitted).

{13} The Court’s focus on the right to exclude dovetails with Section 40-3-3 insofar as
Section 40-3-3 appears to eliminate either spouse’s right to exclude the other spouse from
the first spouse’s dwelling. Therefore, the plain language of Section 40-3-3 appears to
render inter-spousal burglary an impossibility. Applied to the facts in this case, Section 40-
3-3 prohibited Wife from excluding Defendant from her apartment and, consequently, his

                                                4
entry into her apartment, even with felonious purpose, did not constitute burglary as a matter
of law. It was a legal impossibility for his entry to be deemed “unauthorized” as required
by our burglary statutes.

{14} The State argues against this conclusion and relies for support on a New Mexico case
and several cases from other jurisdictions. None of these cases persuade us that our reading
of Section 40-3-3 is wrong.

{15} The State first relies on State v. Rubio, which involved a defendant charged with
breaking and entering his girlfriend’s apartment. 1999-NMCA-018, ¶¶ 1-2, 126 N.M. 579,
973 P.2d 256. The defendant argued that he had the authority to be in his girlfriend’s
apartment and, therefore, that he did not commit an “unauthorized entry” as required by the
statute criminalizing breaking and entering. Id. ¶¶ 5-6 (internal quotation marks omitted).
He further argued that the instruction given to the jury erroneously stated that an element of
the crime was “entry without permission” rather than the statutory language of “unauthorized
entry.” Id. ¶¶ 4-5 (internal quotation marks omitted). This Court concluded that because the
defendant and his girlfriend maintained separate apartments, the defendant paid no rent on
the girlfriend’s apartment, and there was no evidence that the defendant had a key to the
girlfriend’s apartment, he did not have “blanket authority to enter the apartment,” and any
authority he may have had “was freely revocable” by the girlfriend. Id. ¶¶ 2, 9.
Consequently, the district court’s failure to instruct the jury on “unauthorized entry” was not
reversible error. Id. ¶ 16 (internal quotation marks omitted).

{16} The State argues that the present case is similar to Rubio in that both the burglary
statutes and the breaking and entering statute seek to protect possessory interests rather than
ownership interests. As a result, even if Section 40-3-3 protects some sort of property
interest Defendant might have had in Wife’s apartment, the State argues, Wife’s possessory
interest in the apartment was distinct and was protected by the burglary statutes. The State
bolsters its argument by noting that the apartment’s lessor, Wife, and Defendant agreed to
release Defendant from the lease’s obligations sometime before the events surrounding
Victim’s murder.

{17} We are not persuaded that Rubio is relevant to this case. The defendant and the
victim in Rubio were not married, so Section 40-3-3 had no impact on this Court’s analysis.
Section 40-3-3 injects into the case before us a factor not present in Rubio, which is the
statutory prohibition against one spouse excluding the other from a spousal dwelling.
Further, Section 40-3-3 makes no distinction between title to and possession of a spousal
dwelling, which is the distinction Rubio relied on. For the same reasons, we are not
persuaded by the Colorado case on which the State relies. See People v. Johnson, 906 P.2d
122, 124, 126 (Colo. 1995) (en banc) (reversing the dismissal of burglary and trespass
charges against the defendant who had entered his estranged wife’s separately leased
apartment, but not involving a non-exclusion statute such as Section 40-3-3).

{18}   The State more appropriately relies on a case from Ohio and one from California,

                                              5
both of which are states that currently have or once had statutory provisions similar to
Section 40-3-3. In State v. Lilly, the Ohio Supreme Court addressed the impact of a non-
exclusion statute on the prosecution of one spouse for the burglary of the other spouse’s
residence. 717 N.E.2d 322, 325 (Ohio 1999). The Ohio statute, like New Mexico’s Section
40-3-3, provides that “[n]either husband nor wife has any interest in the property of the
other” and that “[n]either can be excluded from the other’s dwelling.” Ohio Rev. Code Ann.
§ 3103.04 (1953). The only difference is that the Ohio statute provides an exception to the
exclusion prohibition when a spouse has obtained a court order allowing exclusion. Id. The
court in Lilly concluded that the statute did not preclude burglary by one spouse of the other
spouse’s residence for two primary reasons. First, the non-exclusion statute was in a
domestic relations chapter of the Ohio code, and the Court determined that the statute “was
intended to address property ownership rights of married persons, matters of a civil nature,”
and “not meant to be enforced criminally.” 717 N.E.2d at 326. Second, “the purpose of
[the] burglary law is to protect the dweller” such that “custody and control, rather than legal
title, is dispositive.” Id. at 327. Because the defendant had no right of custody or control
over his estranged wife’s separately leased residence, the jury could reasonably find that the
defendant trespassed in the wife’s apartment, where trespass was an element of the crime of
burglary. Id. at 325, 327-28.

{19} The California case relied on by the State focused on the alleged burglar’s intent in
entering the residence in question. See People v. Sears, 44 Cal. Rptr. 330, 336 (1965),
overruled on other grounds by People v. Cahill, 20 Cal. Rptr. 2d 582 (1993) (in bank). In
Sears, the California Supreme Court cited the non-exclusion statute, which has since been
repealed, see West’s Ann. Cal. Civ. Code § 5102 (1994), but did not discuss it. Sears, 44
Cal. Rptr. at 336. The court in Sears stated simply that “[o]ne who enters a room or building
with the intent to commit a felony is guilty of burglary even though permission to enter has
been extended to him personally or as a member of the public. The entry need not constitute
a trespass.” Id. (citation omitted). Because the defendant in Sears had the intent to commit
an assault when he entered what had been his home before he separated from his wife, the
court had no difficulty rejecting the defendant’s contrary argument. Id.

{20} Although the State does not cite a later California case, People v. Davenport, 268
Cal. Rptr. 501 (Ct. App. 1990), it is instructive because, unlike the California Supreme Court
in Sears, the California Court of Appeal actually addressed California’s non-exclusion
statute. That statute, like New Mexico’s Section 40-3-3, provided, “[N]either husband nor
wife has any interest in the separate property of the other, but neither can be excluded from
the other’s dwelling.” Cal. Civ. Code § 5102; see Davenport, 268 Cal. Rptr. at 503. The
court in Davenport rejected the defendant’s argument that the non-exclusion statute
precluded his conviction for burglarizing the residence in which his estranged wife was
living. Id. at 502, 505. In doing so, the court relied on case law interpreting the non-
exclusion statute as relating to “the marital right of the spouses to occupy the family home”
and on the holding in Sears. Davenport, 268 Cal. Rptr. at 503-04 (internal quotation marks
and citation omitted). Thus, to the extent the defendant in Davenport had any right of entry
under the non-exclusion statute, it was “qualified to a lawful purpose.” Id. at 505.

                                              6
{21} Although the results in these cases from Ohio and California seem “correct” in the
moral sense, we are not persuaded by their rationale. With respect to the Ohio Supreme
Court’s rationale in Lilly, we see nothing in Section 40-3-3 indicating that it applies only in
the civil context, nor has the State cited any authority stating that civil statutes cannot
circumscribe criminal statutes. And, as we have already mentioned, our burglary statutes’
purpose in protecting possessory rights rather than ownership rights leads us squarely into
the wall created by the exclusion proscription of Section 40-3-3. Our burglary statutes
protect the possessory right to exclude, and Section 40-3-3 dictates that spouses have no
such right. See Office of the Pub. Defender, 2012-NMSC-029, ¶ 41 (explaining that “[c]hief
among the possessory interests that burglary is designed to protect is the right to exclude”).
As for the California cases, according to the court in Sears, unauthorized entry is not even
an element of burglary in California as it is in New Mexico. The Sears court stated that even
a person entering a building with permission can be guilty of burglary if that person has the
intent to commit a felony. Sears, 44 Cal. Rptr. at 336. As a result, we cannot square the
California cases’ reasoning with our burglary statutes’ requirement of unauthorized entry,
particularly where the effect of our non-exclusion statute is to immunize an otherwise
unauthorized entry.

{22} More importantly, the Ohio and California courts, as a matter of policy, appear to
have simply brushed aside the non-exclusion statutes. In our view, it is not our role to
dictate what constitutes sound public policy because that is a matter best left to the
Legislature. See Torres v. State, 119 N.M. 609, 612, 894 P.2d 386, 389 (1995) (explaining
that “it is the particular domain of the [L]egislature, as the voice of the people, to make
public policy” and that “[c]ourts should make policy . . . only when the body politic has not
spoken”). If the Legislature wants to limit the reach of Section 40-3-3, it can amend or
repeal it.

{23} We appreciate the policy concerns underlying the courts’ decisions in Lilly and
Davenport—concerns that may well motivate our Legislature to clarify the impact it intends
Section 40-3-3 to have on the crime of burglary. Inter-spousal burglary commonly leads to
domestic violence. See, e.g., State v. O’Neal, 721 N.E.2d 73, 77-78 (Ohio 2000) (describing
a defendant breaking into estranged wife’s separately leased residence and then shooting his
wife and injuring his son); Sears, 44 Cal. Rptr. at 333 (describing husband entering
estranged wife’s residence, injuring wife, and killing wife’s daughter); see also 39 Duq. L.
Rev. 567 (describing numerous cases of inter-spousal burglary culminating in domestic
violence). Some may be troubled that because of Section 40-3-3, the mere fact of marriage
provides immunity to someone who burglarizes the residence of an estranged spouse.
However, it is for the Legislature to determine whether to amend the statute to eliminate this
immunity.

2.     Defendant’s Cross-Appeal

{24} In his cross-appeal, Defendant makes five arguments for reversal of his convictions:
(1) the district court erroneously refused to give Defendant’s requested instruction on the

                                              7
definition of sufficient provocation in connection with the crime of voluntary manslaughter,
(2) there was insufficient evidence supporting Defendant’s conviction for first degree
kidnapping, (3) the kidnapping statute is unconstitutionally vague and therefore void, (4) the
district court’s failure to provide the jury with use instructions for the special verdict forms
constitutes fundamental error, and (5) the district court should have granted Defendant a
mistrial when jurors saw him arrive at court in a sheriff’s vehicle.

a.      Instruction on Sufficient Provocation

{25} The district court instructed the jury on the elements of voluntary manslaughter,
including the explanation that “[t]he difference between second degree murder and voluntary
manslaughter is sufficient provocation.” Defendant tendered an instruction defining
sufficient provocation according to UJI 14-222 NMRA, which states:

       “Sufficient provocation” can be any action, conduct or circumstances which
       arouse anger, rage, fear, sudden resentment, terror or other extreme emotions.
       The provocation must be such as would affect the ability to reason and to
       cause a temporary loss of self control in an ordinary person of average
       disposition. The “provocation” is not sufficient if an ordinary person would
       have cooled off before acting.

Defendant’s tendered instruction added the following language, which is not part of UJI 14-
222: “A series of events over a considerable period of time may constitute sufficient
provocation.” As authority supporting this addition, Defendant cited State v. Benavidez, 94
N.M. 706, 616 P.2d 419 (1980). The district court refused Defendant’s requested instruction
and instead instructed the jury according to UJI 14-222. Defendant argues that the district
court’s refusal of his tendered instruction was reversible error. He maintains that the
additional language, supported by Benavidez, would have explained to the jury that events
over a period of time could constitute provocation and that without this language, the jury
was allowed to speculate.

{26} Because Defendant preserved this issue by tendering the desired instruction, we
review for reversible error. State v. Cabezuela, 2011-NMSC-041, ¶ 21, 150 N.M. 654, 265
P.3d 705. “Reversible error arises if . . . a reasonable juror would have been confused or
misdirected.” Id. ¶ 22 (alteration in original) (internal quotation marks and citation omitted).
Juror confusion or misdirection may arise from an instruction “which, through omission or
misstatement, fail[s] to provide the juror with an accurate rendition of the relevant law.” Id.
(internal quotation marks and citation omitted).

{27} We are not persuaded that Benavidez supports the additional instruction language
sought by Defendant. In Benavidez, our Supreme Court concluded that there was enough
evidence of sufficient provocation to support an instruction on voluntary manslaughter. 94
N.M. at 708, 616 P.2d at 421. The Court cited evidence of the victim’s conduct, which
apparently occurred long before the defendant killed the victim, that constituted evidence

                                               8
of sufficient provocation. Id. However, there is nothing in the case suggesting that anything
other than the UJI instruction was requested or necessary.

{28} We do not read the holding in Benavidez as a requirement to instruct a jury that
events over a period of time can constitute sufficient provocation. Furthermore, the
instruction given in this case did not rule out the notion that sufficient provocation could
arise from events occurring over a period of time. In addition, our Supreme Court has not
seen fit to change UJI 14-222 in the thirty-two years since Benavidez was decided. We
therefore fail to see how the instruction given could have confused or misled the jury. See
UJI Crim. General Use Note NMRA (stating that “when a uniform instruction is provided
for the elements of . . . a defense . . . , the uniform instruction must be used without
substantive modification or substitution”).

b.     Sufficiency of Evidence Supporting Kidnapping Conviction

{29} In order to convict Defendant of first degree kidnapping, the jury had to find beyond
a reasonable doubt:

              1.      [D]efendant took, restrained, confined, or transported [Victim]
       by force, intimidation or deception;

                2.      [D]efendant intended to hold [Victim] against [Victim’s] will:
       to inflict death or . . . physical injury on [Victim]

                       OR

                     for the purpose of making [V]ictim do something or for the
       purpose of keeping [V]ictim from doing something;

              3.       [D]efendant was not suffering from a mental disease or
       disorder at the time the offense was committed to the extent of being
       incapable of forming the intention to hold [Victim] to inflict death or
       physical injury or for the purpose of making [V]ictim do something or for the
       purpose of keeping [V]ictim from doing something.

              4.     This happened in New Mexico on or about the 22nd day of
       February, 2008.

The jury could have reduced the conviction to second degree kidnapping by finding that
Defendant “voluntarily free[d V]ictim in a safe place and [did] not inflict physical injury or
a sexual offense upon [V]ictim.” NMSA 1978, § 30-4-1(B) (2003). However, the jury
answered special verdict questions and unanimously found against Defendant on the
elements of freeing Victim in a safe place without physical injury. The commission of a
sexual offense was not at issue.

                                              9
{30} Defendant argues that there was insufficient evidence that he failed to free Victim
in a safe place because he released Victim from the duct tape at Wife’s apartment and there
was no evidence that Victim was injured by the restraint up to that point. Defendant further
argues that there was no indication that he restrained Victim in any way after that. He notes
that security camera photos at the motel show Defendant entering his motel room ahead of
Victim.

{31} In reviewing for sufficiency of the evidence, we consider whether substantial
evidence exists to support a verdict of guilty beyond a reasonable doubt with respect to every
element of the crime charged. State v. Godoy, 2012-NMCA-084, ¶ 16, 284 P.3d 410. “We
review the evidence in the light most favorable to the verdict, resolving all conflicts and
indulging all reasonable inferences in favor of the verdict.” Id. (internal quotation marks and
citation omitted).

{32} Although Defendant testified that he freed Victim from the duct tape because he no
longer had a “problem” with him, that Victim insisted on driving Defendant to the motel, and
that Defendant did not force Victim to go to the motel, the jury was free to reject this
testimony. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829
(“Contrary evidence supporting acquittal does not provide a basis for reversal because the
jury is free to reject [the d]efendant’s version of the facts.”).

{33} There was other substantial evidence supporting the conviction for kidnapping.
Defendant was armed with a knife and two guns when he and Victim left Wife’s apartment,
the surveillance photos show Defendant with his hands in his pockets when he and Victim
entered the motel room, and Victim left his watch and his wallet at the apartment. From this
evidence, the jury could reasonably infer that Victim did not leave the apartment and
accompany Defendant to the motel willingly because he feared that Defendant might use one
of the handguns if he tried to escape. This inference was buttressed by Wife’s testimony that
Defendant was armed with the same guns when he later forced her to accompany him to the
motel and that she did not try to escape from Defendant when they subsequently drove to the
police station because she was afraid Defendant would shoot her.

c.     Alleged Vagueness of the Kidnapping Statute

{34} Defendant argues that the kidnapping statute as amended in 2003 is
unconstitutionally vague and therefore should be deemed void. Specifically, Defendant
claims that the 2003 amendment, which replaced “great bodily harm” with “physical injury,”
turned all kidnappings and false imprisonments into first degree kidnapping because
“physical injury” is not defined. The current form of the statute provides:

              A.      Kidnapping is the unlawful taking, restraining, transporting
       or confining of a person by force, intimidation or 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 or 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. The 2003 amendment substituted “physical injury or a sexual offense” for
“great bodily harm” in Subsection B.

{35} We review void-for-vagueness claims under a de novo standard. State v. Greenwood,
2012-NMCA-017, ¶ 39, 271 P.3d 753, cert. denied, 2012-NMCERT-001, __ P.3d __. “A
strong presumption of constitutionality underlies each legislative enactment, and the party
challenging constitutionality has the burden of proving a statute is unconstitutional beyond
all reasonable doubt.” Id. (internal quotation marks and citation omitted). To determine
whether a statute is unconstitutionally vague, we consider: “(1) whether the statute gives fair
notice to persons of ordinary intelligence as to the conduct it prohibits, and (2) whether the
statute sets standards and guidelines sufficient to avoid arbitrary and discriminatory
enforcement.” Id. ¶ 40.

{36} As an aside, we note that Defendant mentions equal protection and strict scrutiny in
his brief, but he does not explain or flesh out any contention that the kidnapping statute
violates equal protection. We therefore decline to consider such an argument, to the extent
that Defendant has attempted to make one. See Headley v. Morgan Mgmt. Corp.,
2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076. (explaining that the appellate court
“will not review unclear arguments, or guess at what [a party’s] arguments might be”).

{37} As for his void-for-vagueness argument, Defendant does not provide any explanation
for why he thinks the term “physical injury” fails to provide notice to an ordinary person as
to what conduct is being prohibited. Instead, he simply asserts in conclusory fashion that
the term allows law enforcement, prosecutors, and fact finders “to engage in arbitrary and
discriminatory enforcement of the statute.” State v. Laguna, 1999-NMCA-152, ¶ 26, 128
N.M. 345, 992 P.2d 896 (stating the standard for assessing whether a statute is
unconstitutionally vague).

{38} We fail to see how a person of ordinary intelligence would not understand what
“physical injury” means. A rational juror would understand that the law intends a greater

                                              11
punishment for a kidnapper who fails to release his or her victim in a safe place without
inflicting physical injury. We have already concluded that substantial evidence supported
the jury’s view that Defendant failed to release Victim without physical injury; Victim’s
death caused by Defendant clearly falls within the definition of “physical injury.” See id.
¶ 24 (stating that an appellate court reviews a void-for-vagueness challenge “in light of the
facts of the case and the conduct which is prohibited by the statute” (internal quotation
marks and citation omitted)). The statute is not unconstitutionally vague.

d.      Failure to Provide Jury With Instructions for Special Verdict Forms

{39} Because there was an issue as to whether Defendant voluntarily released Victim in
a safe place without inflicting physical injury, the district court provided the jury with
special verdict forms asking the following:

                Do you unanimously find beyond a reasonable doubt that [D]efendant
        did not voluntarily free [Victim] in a safe place?

                                                        ______ (Yes or No)

                                                        _______________
                                                        Foreperson

                Do you unanimously find beyond a reasonable doubt that [D]efendant
        inflicted physical injury upon [Victim]?

                                                        ______ (Yes or No)

                                                        ________________
                                                        Foreperson

These questions were consistent with UJI 14-6018 NMRA, and the jury answered each
question in the affirmative.

{40} However, the district court failed to provide the jury with the use instructions that,
according to UJI 14-6018, precede the special verdict questions. The State tendered the
preliminary instructions, but apparently due to an oversight, the instructions never made it
into the jury’s packet. Those instructions tell the jury that if it finds the defendant guilty of
kidnapping, then it must determine whether the defendant voluntarily freed the victim,
whether the defendant inflicted physical injury on the victim, or, in appropriate
circumstances, whether the defendant committed a sexual offense. The instructions also tell
the jury that in order to answer “yes” to any question, the state must prove the factors beyond
a reasonable doubt. Id.

{41}    At trial, Defendant did not object to the district court’s failure to provide the jury

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with these instructions. Therefore, he argues that the court’s failure constituted fundamental
error requiring reversal of his kidnapping convictions. See Rule 12-216(B)(2) NMRA
(stating that despite a lack of preservation, the reviewing court can consider, among other
matters, fundamental error or fundamental rights of a party).

{42} Fundamental error occurs only in “cases with defendants who are indisputably
innocent, and cases in which a mistake in the process makes a conviction fundamentally
unfair notwithstanding the apparent guilt of the accused.” State v. Barber, 2004-NMSC-019,
¶ 17, 135 N.M. 621, 92 P.3d 633. When the alleged error involves jury instructions, we first
consider “whether a reasonable juror would have been confused or misdirected by the jury
instruction.” Id. ¶ 19. We consider the claim of error “in the context of jury instructions as
a whole.” State v. Reed, 2005-NMSC-031, ¶ 55, 138 N.M. 365, 120 P.3d 447.

{43} Defendant’s perfunctory argument is that the failure to include the preliminary
instructions meant that “the jury had no basis to understand what purpose[] [the special
verdict forms] served.” We are not persuaded that the absence of the preliminary
instructions resulted in the jury’s confusion regarding the special verdict forms. The
prosecutor discussed the special verdict forms in her closing argument and explained that
in connection with kidnapping, the jury would have to decide whether Defendant voluntarily
freed Victim and Wife. The questions on the special verdict forms were self-explanatory.
In addition, the jury understood the forms well enough to distinguish between the alleged
kidnappings of Victim and Wife because the jury answered “no” in response to the question,
“Do you unanimously find beyond a reasonable doubt that [D]efendant did not voluntarily
[release Wife] in a safe place?” We conclude that the absence of the preliminary instructions
to the special verdict forms did not constitute fundamental error.

e.     Propriety of Mistrial

{44} Early in the trial, defense counsel moved for a mistrial on the ground that four jurors
had seen Defendant arrive at the courthouse seated in the back of a police car. The district
court denied the motion, and Defendant asserts that this was error. The district court’s ruling
on a motion for a mistrial is addressed to the court’s sound discretion and will not be
disturbed absent a showing of abuse of discretion. State v. Fry, 2006-NMSC-001, ¶ 52, 138
N.M. 700, 126 P.3d 516.

{45} The district court relied on State v. Holly, 2009-NMSC-004, 145 N.M. 513, 201 P.3d
844 in denying Defendant’s motion. In that case, the defendant failed to preserve the issue
but argued on appeal that he was prejudiced when a member of the jury may have seen him
in handcuffs. Id. ¶ 40. Reviewing the argument for fundamental error, this Court concluded
that there was no such error because it was unclear whether the juror actually saw the
defendant in handcuffs and whether the exposure was “anything more than inadvertent or
insignificant.” Id. ¶ 42 (internal quotation marks omitted).

{46}   In this case, as in Holly, no evidence was introduced establishing that any jurors

                                              13
actually saw Defendant in the police car and, if they did see Defendant, there is no indication
that the exposure was not inadvertent. Although Holly was decided under a fundamental
error standard, we have additional case law reviewing similar claims under an abuse of
discretion standard and holding that inadvertent exposure to a defendant in handcuffs did not
prejudice the defendant. See, e.g., State v. Mills, 94 N.M. 17, 21-22, 606 P.2d 1111, 1115-16
(Ct. App. 1980) (affirming denial of mistrial motion where the defendant was inadvertently
seen by jurors in handcuffs); State v. Gomez, 82 N.M. 333, 334, 481 P.2d 412, 413 (Ct. App.
1971) (affirming denial of motions to strike jury panel and for mistrial where jurors saw the
defendant in handcuffs before trial and during recess). Moreover, it would certainly be no
surprise to jurors that someone accused of murder would be in custody. We fail to see how
seeing Defendant in the back of a police car prejudiced him to the extent necessary to
warrant a mistrial.

CONCLUSION

{47}   For the foregoing reasons, we affirm the judgment of the district court.

{48}   IT IS SO ORDERED.

                                               ____________________________________
                                               CYNTHIA A. FRY, Judge

WE CONCUR:

____________________________________
MICHAEL E. VIGIL, Judge

____________________________________
J. MILES HANISEE, Judge
Topic Index for State v. Parvilus, No. 30,379

APPEAL AND ERROR
Cross Appeal
Fundamental Error
Standard of Review
Substantial or Sufficient Evidence

CONSTITUTIONAL LAW
Vague or Overbroad

CRIMINAL LAW
Assault
Breaking and Entering
Burglary

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Homicide
Kidnaping
Provocation
Voluntary Manslaughter

CRIMINAL PROCEDURE
Mistrial

DOMESTIC RELATIONS
Domestic Relations, General

JURY INSTRUCTIONS
Criminal Jury Instruction
Failure to Give or Request

STATUTES
Interpretation
Legislative Intent
Vagueness




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