     This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule
     12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that
     this electronic decision may contain computer-generated errors or other deviations from the official
     paper version filed by the Supreme Court.

 1          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 Filing Date: March 23, 2015


 3 STATE OF NEW MEXICO,

 4          Plaintiff-Respondent,

 5 v.                                                                     NO. 33,548

 6 BENEDICTO MARQUEZ,

 7          Defendant-Petitioner.


 8 ORIGINAL PROCEEDING ON CERTIORARI
 9 Kenneth H. Martinez, District Judge


10 Jorge A. Alvarado, Chief Public Defender
11 William A. O’Connell, Assistant Appellate Defender
12 Santa Fe, NM

13 for Petitioner


14 Hector H. Balderas, Attorney General
15 James W. Grayson, Assistant Attorney General
16 Santa Fe, NM

17 for Respondent
 1                                     DECISION

 2 DANIELS, Justice.

 3   {1}   New Mexico caselaw establishes that a kidnapping conviction cannot be

 4 supported by restraint or movement that is merely incidental to another defined crime.

 5 Applying that principle to this case in which Defendant was convicted of both

 6 kidnapping and criminal sexual contact of a minor, and concluding that there also is

 7 insufficient evidence to support a conviction of kidnapping by deception, we reverse

 8 Defendant’s kidnapping conviction because it is unsupported by substantial evidence.

 9   {2}   Having considered the briefing, record, and applicable law in this case, we

10 conclude that there is no reasonable likelihood that a formal opinion would advance

11 New Mexico law. Acting within this Court’s discretion under Rule 12-405(B)(1)

12 NMRA to dispose of a case by order or decision rather than formal opinion where the

13 “issues presented have been previously decided,” we enter this decision.

14 I.      BACKGROUND

15   {3}   Defendant Benedicto Marquez was convicted of both second-degree criminal

16 sexual contact of a minor (CSCM) and first-degree kidnapping. The case related to

17 allegations by Defendant’s then-six-year-old daughter that Defendant sexually

18 assaulted her on the drive home from her babysitter’s house during a weekend when



                                             2
 1 she was in Defendant’s lawful custody.

 2   {4}   Defendant had custody of his daughter on alternating weekends, including the

 3 weekend of July 13- 15, 2007. Because Defendant was playing in a two-day softball

 4 tournament, he arranged for his daughter to stay overnight with a babysitter.

 5   {5}   The daughter testified at trial that after Defendant picked her up from the

 6 babysitter’s house to take her home on July 14, Defendant stopped his car on the side

 7 of the road at an undetermined location where there were no other cars or buildings

 8 and “put his private on [her] butt.” The daughter’s mother and grandmother testified

 9 that the daughter gave them similar accounts after the incident occurred. Although the

10 daughter was the only prosecution witness to give eyewitness testimony, the State

11 also introduced supporting testimony from the mother’s live-in boyfriend at the time

12 of the incident, as well as from pediatric sexual abuse specialist Dr. Renee Ornelas,

13 detective Adam Gaitan, and forensic scientist Catherine Dickey. The testimony from

14 these witnesses supported the State’s case that a sexual offense had been committed,

15 despite defense evidence to the contrary, but gave no insight about any other facts of

16 the interaction between Defendant and his daughter related to the sexual assault or

17 the ride home from the babysitter’s house.

18   {6}   The district court instructed the jury that in order to find Defendant guilty of



                                               3
 1 CSCM the State had to prove that Defendant “touched or applied force to [the

 2 daughter’s] unclothed buttocks,” that she was “12 years of age or younger,” that the

 3 “act was unlawful,” and that the incident took place in New Mexico on or between

 4 July 10 and 16, 2007. The court further instructed the jury that in order to find

 5 Defendant guilty of kidnapping the State had to prove that Defendant “took or

 6 restrained or confined or transported [the daughter] by force, intimidation or

 7 deception,” that he “intended to hold [the daughter] against [her] will to inflict death,

 8 physical injury or a sexual offense on [her],” and that the alleged incident took place

 9 in New Mexico on or between July 10 and 16, 2007. No instructions provided

10 guidance to the jury in determining whether the two charged offenses were separate.

11 The jury convicted Defendant of both charges.

12   {7}   On appeal, Defendant did not challenge his CSCM conviction but argued that

13 his kidnapping conviction (1) was unsupported by sufficient evidence and (2)

14 violated his right against double jeopardy. In a divided opinion, a majority of the

15 three-judge Court of Appeals panel affirmed Defendant’s kidnapping conviction,

16 holding that “the jury could have reasonably found that the crime of kidnapping was

17 complete, though continuing, prior to Defendant’s commission of CSCM.” State v.

18 Marquez, No. 30,565, mem. op. at 12-13, 17 (N.M. Ct. App. Mar. 7, 2012)



                                               4
 1 (nonprecedential). We granted certiorari to review the Court of Appeals holding. See

 2 State v. Marquez, 2012-NMCERT-005, 294 P.3d 446.

 3 II.     DISCUSSION

 4 A.      Standard of Review

 5   {8}   When undertaking a sufficiency of the evidence analysis, we “determine

 6 whether substantial evidence of either a direct or a circumstantial nature exists to

 7 support a verdict of guilt beyond a reasonable doubt with respect to every element

 8 essential to a conviction.” State v. Dowling, 2011-NMSC-016, ¶ 20, 150 N.M. 110,

 9 257 P.3d 930 (internal quotation marks and citation omitted). In doing so, we “view

10 the evidence in the light most favorable to the State, resolving all conflicts and

11 indulging all permissible inferences in favor of the verdict.” State v. Reed, 2005-

12 NMSC-031, ¶ 14, 138 N.M. 365, 120 P.3d 447.

13 B.      Restraining the Victim While Committing Criminal Sexual Contact Does
14         Not Constitute a Separate Crime of Kidnapping

15   {9}   The New Mexico kidnapping statute provides,

16               Kidnapping is the unlawful taking, restraining, transporting or
17         confining of a person, by force, intimidation or deception, with intent:
18               (1) that the victim be held for ransom;
19               (2) that the victim be held as a hostage or shield and confined
20                      against his will;
21               (3) that the victim be held to service against the victim’s will;
22                      or

                                              5
 1               (4)   to inflict death, physical injury or a sexual offense on the
 2                     victim.

 3 NMSA 1978, § 30-4-1(A) (2003).

 4   {10}   Several months after a divided panel of the Court of Appeals filed the

 5 nonprecedential memorandum opinion affirming Defendant’s kidnapping conviction

 6 in this case, that Court issued its opinion in State v. Trujillo, 2012-NMCA-112, 289

 7 P.3d 238, cert. quashed, No. 33,837, 2015-NMCERT-003. We let Trujillo stand as

 8 precedent by our recent order quashing certiorari. In Trujillo, the Court undertook a

 9 thorough construction of Section 30-4-1, see id. ¶¶ 25-30, and a thorough review of

10 the caselaw in New Mexico and in other federal and state jurisdictions, noting that

11 New Mexico precedent is consistent with the majority view in other jurisdictions and

12 concluding that “the Legislature did not intend to punish as kidnapping restraints that

13 are merely incidental to another crime,” see id. ¶ 39. Accordingly, the Court reversed

14 a kidnapping conviction based solely on movements and restraints of a victim that

15 were incidental to the contemporaneous commission of an aggravated battery,

16 concluding that “the restraint [of the victim] was not longer or greater than that

17 necessary to achieve a battery—in fact, the restraint occurred within the period of the

18 battery, in the same general location, and there was no indication that Defendant

19 intended any other purpose than to continue battering Victim.” Id. ¶¶ 1, 39.


                                              6
 1   {11}   Although Trujillo did not involve restraints or confinements incidental to a

 2 sexual assault, it relied on New Mexico caselaw that did. See, e.g., id., ¶ 15 (quoting

 3 State v. Crain, 1997-NMCA-101, ¶ 21, 124 N.M. 84, 946 P.2d 1095, for the

 4 proposition that “‘kidnapping cannot be charged out of every [criminal sexual

 5 penetration charge] without some force, restraint, or deception occurring either before

 6 or after the sexual penetration’”). Subsequently, the Court of Appeals has applied

 7 Trujillo to review kidnapping convictions factually related to the commission of

 8 sexual offenses. See, e.g., State v. Dominguez, 2014-NMCA-064, ¶ 12, 327 P.3d

 9 1092; State v. Tapia, 2015-NMCA-___, ¶ 36, ___ P.3d ___ (No. 32,277, Feb. 17,

10 2015).

11   {12}   In Dominguez, the Court of Appeals upheld a conviction where the evidence

12 established that a separate kidnapping had occurred before the sexual assault of the

13 victim, including evidence that the defendant accosted the victim with a pistol and

14 moved her from room to room in her home with the gun held to her head before

15 sexually assaulting her. See 2014-NMCA-064, ¶¶ 3, 12. The Dominguez Court

16 distinguished Trujillo and concluded that the kidnapping had been completed when

17 the defendant held the victim at gunpoint in her living room before taking her around

18 the house and finally to the bedroom to begin the separate sexual assault and that the



                                              7
 1 restraints and movements supporting the kidnapping conviction were therefore not

 2 merely incidental to the commission of the sexual assault. See id.

 3   {13}   The facts in Tapia are more analogous to those in this case. In Tapia, the

 4 defendant was convicted of numerous counts of criminal sexual penetration and

 5 criminal sexual contact of his eight-year-old daughter and his four-year-old

 6 stepdaughter, and he also was convicted of multiple counts of kidnapping in

 7 connection with the assaults. The kidnapping charges were based on the defendant’s

 8 (1) lying on top of and restraining his victim during the course of the sexual assaults,

 9 (2) making his victim take off her clothes before he committed the sexual assaults,

10 and (3) making his victim go to a bedroom where he committed the sexual assaults.

11 See 2015-NMCA-___, ¶¶ 30-33. “[E]mploying the Trujillo analysis, [the Court]

12 determine[d] that the nature of Defendant’s incidental restraint [of his victims] did not

13 increase his culpability beyond that already inherent to any sexual assault.” Id., ¶ 31.

14 Lying on top of a victim and holding her while committing the sexual assault was not

15 a restraint that “was any longer or greater than that necessary to commit sexual

16 assault.” Id. The evidence “d[id] not establish that the restraint imposed increased [the

17 victim’s] risk of harm or the severity of the assault beyond that inherent to the

18 underlying crime.” Id. Making a victim take off her clothes and get on the bed for the



                                               8
 1 sexual assault to take place was “not the type of separate conduct that the Legislature

 2 intended to punish as kidnapping” in addition to the punishable sexual assault

 3 crimes.” Id., ¶ 32.

 4   {14}   As in Tapia, the conduct of Defendant in this case, while reprehensible and

 5 punishable as a felony sexual assault, did not also constitute an additional offense of

 6 kidnapping. At trial, the State relied on the daughter’s accounts that Defendant

 7 restrained or confined her when he put her on his lap and held her while he placed his

 8 penis against her buttocks. This restraint or confinement is the type of force

 9 contemplated by the crime of CSCM. See Section 30-9-13(A). The evidence offered

10 by the State does not show that Defendant restrained or confined the daughter at any

11 point prior to or following the sexual assault; instead, it establishes only that the

12 restraint or confinement relied on by the State was simply incidental to the sexual

13 assault itself.

14   {15}   Because the evidence of unlawful restraint here is indistinguishable from the

15 evidence of force Defendant applied while committing CSCM, there is no

16 independent evidentiary basis to support Defendant’s separate kidnapping conviction

17 for the restraint that took place when Defendant stopped the car by the side of the

18 road to perpetrate the sexual assault.



                                              9
 1 C.       There Was Insufficient Evidence of Kidnapping by Deception

 2   {16}   During the appellate process, the State shifted its kidnapping theory to a

 3 different theory than the one relied on at trial involving transport and restraint in the

 4 car at the time of the sexual assault. Instead, relying on State v. Sanchez, 2000-

 5 NMSC-021, 129 N.M. 284, 006 P.3d 486, and State v. Laguna, 1999-NMCA-152,

 6 128 N.M. 345, 992 P.2d 896, the State proposed a kidnapping-by-deception theory

 7 accepted by two of the three Court of Appeals judges. See Marquez, No. 30,565,

 8 mem. op. at 11, 17. Essentially, the State now argues that Defendant kidnapped his

 9 daughter when he picked her up from the babysitter, that he intended to sexually

10 assault his daughter at that point, and that, although she voluntarily got into the car

11 at Defendant’s direction without physical coercion, she was deceived into doing so

12 because she was tricked into thinking she was going home with Defendant instead of

13 taking a ride to a sexual assault. Based on the facts that Defendant (1) picked his

14 daughter up from the babysitter’s house, (2) stopped at a location other than his home,

15 and (3) sexually assaulted her, the State contends that there was sufficient evidence

16 for the jury to determine that Defendant kidnapped his daughter by deception. The

17 Court of Appeals majority agreed. See id.

18   {17}   This Court has recognized that kidnapping by deception “can occur when an



                                              10
 1 association [between a victim and a defendant] begins voluntarily but the defendant’s

 2 actual purpose is other than the reason the victim voluntarily associated with the

 3 defendant.” State v. Jacobs, 2000-NMSC-026, ¶ 24, 129 N.M. 448, 10 P.3d 127;

 4 accord Sanchez, 2000-NMSC-021, ¶ 32; see also Laguna, 1999-NMCA-152, ¶¶ 2,

 5 13 (describing kidnapping by deception where the teenage victim consciously decided

 6 to associate with the offender under false pretenses). When the victim of kidnapping

 7 by deception is also the victim of a sexual assault, “the key to finding the restraint

 8 element in kidnapping, separate from that involved in [the sexual assault], is to

 9 determine the point at which the physical association between the defendant and the

10 victim was no longer voluntary.” Jacobs, 2000-NMSC-026, ¶ 24 (citing State v.

11 Pisio, 1994-NMCA-152, [¶ 30,] 119 N.M. 252, 889 P.2d 860). As used in Section 30-

12 4-1(A), the word deception “embodies either affirmative acts intended to delude a

13 victim or omissions that conceal the intent and purpose of an accused.” State v.

14 Garcia, 1983-NMCA-069, ¶ 15, 100 N.M. 120, 666 P.2d 1267 (citing the 1973 New

15 Mexico kidnapping statute, which defines kidnapping as “the unlawful taking,

16 restraining or confining of a person, by force or deception” for specified unlawful

17 purposes). In other words, in order to prove kidnapping by deception “the State was

18 required to” introduce evidence showing by “‘affirmative acts . . . or omissions’” that



                                             11
 1 the defendant engaged in deceptive conduct at the time the alleged kidnapping

 2 occurred. See Laguna, 1999-NMCA-152, ¶ 12 (quoting Garcia, 1983-NMCA-069,

 3 ¶ 15).

 4   {18}   In Jacobs, a kidnapping by deception occurred when the defendant offered a

 5 group of three teenagers a ride home, but after dropping off the first two as promised

 6 he took the eighteen-year-old female victim to a remote location where he sexually

 7 assaulted and murdered her. See 2000-NMSC-026, ¶¶ 4-6, 25. Focusing on the

 8 defendant’s conduct, the Jacobs Court concluded that the jury could have found that

 9 the victim’s association with the defendant was no longer voluntary when the

10 defendant (1) lied by offering the victim a ride home with another intent in mind, (2)

11 changed his intended destination from the victim’s house to the remote location, or

12 (3) walked the victim from his car to the arroyo where he murdered her. See id. ¶ 25.

13   {19}   Similarly, the New Mexico Court of Appeals held that a kidnapping by

14 deception occurred when an adult male defendant lied to a fourteen-year-old male

15 victim by telling the victim he knew the victim’s sister when he did not, offered to

16 give the victim a ride to the victim’s girlfriend’s house, and instead sexually assaulted

17 the victim. Laguna, 1999-NMCA-152, ¶¶ 2-3, 17. Looking at the defendant’s

18 affirmative conduct, the Court of Appeals concluded in Laguna that the jury could



                                              12
 1 have found the victim’s association with the defendant was not voluntary because the

 2 defendant deceived the victim at the point when he lured the victim into the car by

 3 lying about knowing the victim’s sister and offering to give the victim a ride while

 4 concealing his intent to sexually assault the victim. See id. ¶ 17.

 5   {20}   Earlier, the New Mexico Court of Appeals in Garcia held that a kidnapping by

 6 deception occurred when an eighteen-year-old male defendant offered to give a ride

 7 on his shoulders to an unrelated three-year-old female victim and then took her to a

 8 nearby arroyo where he raped her. See 1983-NMCA-069, ¶¶ 2-3, 16, 18. The Court

 9 of Appeals focused on the defendant’s affirmative and deceptive conduct, making

10 himself appear friendly to the victim by placing and carrying her on his shoulders in

11 order to delude her about his intentions before taking her to a secluded area and

12 raping her, and held that “[t]he record contains adequate evidence of kidnapping by

13 deception.” See id. ¶¶ 14-16.

14   {21}   Unlike any prior case involving a theory of kidnapping by deception that has

15 come before the New Mexico appellate courts, this case does not involve a voluntary

16 association between two adult strangers, as in Jacobs, or between two unrelated

17 persons with a purported common acquaintance, as in Laguna, or even between a

18 child and an unrelated adult stranger, as in Garcia. Rather, this case involves a parent



                                              13
 1 with lawful custody of his own child. And of greatest importance is that no evidence

 2 in the record supports the State’s speculative theory that Defendant deceived his

 3 daughter at the time he routinely picked her up from the babysitter, as he was

 4 scheduled to do, or that he made any deceptive representations to his daughter before

 5 he headed toward home.

 6   {22}   By contrast, in Jacobs, Laguna, and Garcia, there was proof that the victims

 7 initially associated with the defendants willingly because the defendants lied to or

 8 deceived the victims in order to coerce their voluntary association. See Jacobs, 2000-

 9 NMSC-026, ¶¶ 4-5 (coercing a voluntary association by promising a ride home);

10 Laguna, 1999-NMCA-152, ¶ 2 (coercing a voluntary association by pretending to

11 know the victim’s sister); Garcia, 1983-NMCA-069, ¶¶ 2, 14 (coercing a voluntary

12 association by playfully befriending the young child-victim; defining the term deceit

13 as “any trick, collusion, contrivance, false representation, or underhanded practice,

14 used to defraud another,” and further defining “‘deception’” as “to take unawares,

15 ensnare, mislead, delude or practice deceit”). In short, evidence that shows deceptive

16 conduct by the defendant’s affirmative acts or omissions is necessary in order to

17 support a conviction for kidnapping by deception.

18   {23}   The State relies on State v. Fry, 2006-NMSC-001, ¶ 30, 138 N.M. 700, 126



                                             14
 1 P.3d 516; State v. Allen, 2000-NMSC-002, ¶ 75, 128 N.M. 482, 994 P.2d 728; and

 2 State v. McGuire, 1990-NMSC-067, ¶ 10, 110 N.M. 304, 795 P.2d 996, to argue that

 3 a jury could determine that a kidnapping by deception occurred when Defendant

 4 “unlawfully confined [his daughter] in his car at [the babysitter’s] house with the

 5 intent to commit a sexual offense.” The State’s reliance on these cases is misplaced.

 6 While Fry, Allen, and McGuire support the proposition that a jury may infer the intent

 7 element of kidnapping from the fact that a sexual assault or a murder subsequently

 8 took place, the cases do not support the proposition that the jury may infer the

 9 deception element. See Fry, 2006-NMSC-001, ¶ 30 (“[A] rational jury could

10 reasonably conclude from the evidence that Defendant lured the victim into his car

11 by deception with the intent to inflict a sexual offense on the victim.” (emphasis

12 added)); Allen, 2000-NMSC-002, ¶ 75 (“[A] finding that Defendant committed the

13 murder with the intent to kill can be inferred from the same evidence of intent upon

14 which the jury relied to find Defendant guilty of first degree murder.” (emphasis

15 added)); McGuire, 1990-NMSC-067, ¶ 10 (“Defendant cites no cases that hold the

16 jury cannot infer, from evidence of acts committed at some later point during the

17 commission of a kidnapping, that the necessary criminal intent existed at the time the

18 victim first was restrained. Viewed in this manner, the evidence provides substantial



                                             15
 1 support for an inference that defendant intended to commit criminal sexual

 2 penetration from the moment of the abduction.” (emphasis added)). In this case, there

 3 is no evidence of either deceptive conduct or deceptive intent at the time Defendant

 4 left the babysitter’s house for what would have been an uneventful routine trip home

 5 if he had not later stopped and committed the sexual assault. And even though the

 6 State has argued that the jury could have concluded that Defendant took some detour

 7 rather than stopping along the regular route, our search of the record finds no

 8 evidence to support such a speculation.

 9   {24}   The argument that this record could support a conviction and sentence for the

10 serious felony of kidnapping by deception is not only inconsistent with New Mexico

11 law, it has significant troubling implications. We agree with the observation of the

12 dissenting opinion in the Court of Appeals in this case that, under such a kidnapping-

13 by-deception theory, if Defendant had committed the sexual assault after arriving

14 home instead of stopping along the way home, he also would have been guilty of

15 kidnapping by deception by picking up his daughter without telling her he was going

16 to commit a sexual assault on her after arriving home. Marquez, No. 30,565, mem.

17 op. at 22 (Vigil, J., dissenting). And his crime of kidnapping would have been

18 committed under such a theory as soon as he and his daughter drove away in the car



                                              16
 1 from the babysitter’s house, whether or not he ever actually committed the sexual

 2 assault. The result of such reasoning from the kind of evidence in the record before

 3 us, as the Marquez dissent noted, would be that “every time a parent has committed

 4 [a sexual assault] on his . . . child, the parent will have also separately committed

 5 kidnapping by deception,” no matter where the parent had committed the sexual

 6 assault offense. Id. at 23. We decline to create such an extraordinary anomaly in our

 7 law.

 8 III.     CONCLUSION

 9   {25}   There was insufficient evidence in the record to support any theory that would

10 justify a separate conviction of kidnapping, whether by force, restraint, or deception.

11 Accordingly, we reverse Defendant’s kidnapping conviction and remand to the

12 district court for entry of an amended judgment and sentence in accordance with this

13 decision.

14   {26}   IT IS SO ORDERED.



15                                            __________________________________
16                                            CHARLES W. DANIELS, Justice




                                              17
1 WE CONCUR:



2 ___________________________________
3 BARBARA J. VIGIL, Chief Justice



4 ___________________________________
5 PETRA JIMENEZ MAES, Justice



6 ___________________________________
7 RICHARD C. BOSSON, Justice



8 ___________________________________
9 EDWARD L. CHÁVEZ, Justice




                                  18
