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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 33,281

 5 ERIC KENNETH,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 William C. Birdsall, District Judge


 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   M. Victoria Wilson, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14   Jorge A. Alvarado, Chief Public Defender
15   Sergio Viscoli, Appellate Defender
16   David Henderson, Assistant Appellate Defender
17   Santa Fe, NM

18 for Appellant

19                                 MEMORANDUM OPINION

20 VANZI, Judge.
 1   {1}    By his own account, Defendant Eric Kenneth first saw Leilani Kohles (Victim),

 2 doing lunges in front of her car at a gas station in Shiprock, New Mexico, on the

 3 evening of November 9, 2011. Thirty to forty-five minutes later, he was tailing her on

 4 a stretch of highway outside of Farmington, New Mexico, flashing the high beams on

 5 his work truck to signal her to pull over. He would later testify that Victim was

 6 driving erratically, and his actions were motivated out of concern for public safety.

 7 But Defendant’s stated motive for stopping Victim was contested at trial and is in

 8 doubt.

 9   {2}    The events that followed resulted in criminal charges for impersonating a police

10 officer, kidnapping, aggravated battery, and criminal sexual contact with a deadly

11 weapon (CSC). A jury convicted Defendant on all counts except aggravated battery.

12 Defendant now appeals, asserting that (1) there was insufficient evidence that he

13 committed CSC while armed; (2) the jury instructions were inadequate, resulting in

14 fundamental error; and (3) trial counsel was ineffective in failing to request certain

15 instructions. We affirm. There are some factual disputes about the testimony below.

16 Because this is a memorandum opinion and because the parties are familiar with the

17 case, we address those disputes as they arise in connection with our analysis of the

18 issues on appeal.

19 I.       DISCUSSION

20 A.       Sufficiency of the Evidence

                                                2
 1   {3}   Defendant argues that the State failed to present sufficient evidence that he

 2 committed CSC “in the cab of his truck while armed with and through the use of a

 3 deadly weapon that was, at the time, locked in the trunk of [Victim’s] car.” The

 4 standard of review for sufficiency of the evidence is highly deferential. State v.

 5 Dowling, 2011-NMSC-016, ¶ 20, 150 N.M. 110, 257 P.3d 930. We view the evidence

 6 “in the light most favorable to the [s]tate, resolving all conflicts and making all

 7 permissible inferences in favor of the jury’s verdict.” Id.

 8   {4}   For Defendant to be found guilty of CSC, the State had to prove, in relevant

 9 part, that:

10         1.    [D]efendant touched or applied force to the unclothed [b]reasts of
11               [Victim] without [her] consent;
12         2.    [D]efendant was armed with and used a knife;
13         3.    [D]efendant’s act was unlawful[.]

14 The trial centered on the competing testimony of the only two witnesses at the scene:

15 Victim, who described a frightening roadside sexual assault, and Defendant, who

16 testified that any sexual contact was invited by Victim. The jury apparently credited

17 Victim’s version of events when it convicted Defendant on all counts except

18 aggravated battery. “Contrary evidence supporting acquittal does not provide a basis

19 for reversal because the jury is free to reject [the d]efendant’s version of the facts.”

20 State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.3d 829. Thus, we turn to

21 Victim’s testimony in our review for sufficient evidence that Defendant was armed


                                              3
 1 when he touched Victim’s unclothed breasts, and we “disregard all evidence and

 2 inferences to the contrary.” Id.

 3   {5}   In short, Victim testified that Defendant repeatedly flashed his lights to get her

 4 to pull over, and then he approached her driver side window. Defendant never actually

 5 told Victim he was a police officer, but his actions indicated that he was one. His

 6 white truck was similar to the police trucks driven in Victim’s home state of Texas,

 7 and any uniform and badge would have been concealed beneath Defendant’s heavy

 8 coat. Defendant asked Victim for her license and registration, and he asked whether

 9 she had been drinking. He ordered her to submit to a field sobriety test, and she

10 readily agreed, expecting that she would pass.

11   {6}   But the sobriety test was never administered. Instead, Defendant walked Victim

12 to the passenger side of his truck, where he “frisked” her for weapons, feeling down

13 her legs and midsection, and eventually, reaching under her shirt and bra to fondle her

14 breasts. When Victim turned to tell Defendant to stop, he held a knife with a long,

15 serrated blade to her throat and pressed her hard against the passenger seat. The two

16 struggled over the knife while Victim begged for her life. She told Defendant that she

17 had a husband and kids. She told Defendant she did not want to die. She offered to

18 have sex with Defendant. They agreed to lock the knife in the trunk of Victim’s car.

19 They then returned to Defendant’s truck, Victim undressed, and Defendant fondled

20 her bare breasts a second time.

                                               4
 1   {7}   Defendant now asserts that “there is no rational view of the evidence that

 2 [Defendant] touched [Victim’s] unclothed breasts . . . while, at the same time, he was

 3 armed with and used a knife as charged in the second element[,]” because

 4 “[Defendant] no longer had possession of the knife.” In so arguing, Defendant

 5 somewhat artificially separates the use and display of the knife from its effect on

 6 Victim and the entire chain of events that followed. He thus “advances a fairly narrow

 7 interpretation of ‘armed with a deadly weapon.’ ” State v. Alvarez-Lopez, 2003-

 8 NMCA-039, ¶¶ 30-31, 133 N.M. 404, 62 P.3d 1286 (defining “armed” as “easily

 9 accessible and readily available for use” because that definition deters violence by

10 discouraging “having a deadly weapon available for use during a crime” (internal

11 quotation marks and citation omitted)), rev’d on other grounds, 2004-NMSC-030, 136

12 N.M. 309, 98 P.3d 699.

13   {8}   In any event, Defendant’s argument relies on the faulty assumption that the jury

14 convicted him of CSC based only on what he characterizes as an isolated incident of

15 fondling—which occurred in the cab of Defendant’s truck after the knife was locked

16 away. But it is equally likely that the jury convicted Defendant based on the initial

17 frisk at knife point. Victim specifically testified that, during the frisk, Defendant

18 “grabbed [her] breasts” and “continually fondled” her. He patted her down, feeling

19 “under [her] shirt, under [her] bra, and then . . . under the rim [of her bra], and then on



                                                5
 1 [her] breasts.” When she turned to resist, Defendant “pressed [her] body against the

 2 seat of his car, pulled a mask down [over his face], and held a knife to [her] throat.”

 3   {9}    Viewed in the light most favorable to the State, there was sufficient evidence

 4 for the jury to find that Defendant, armed with a knife, touched Victim’s bare breasts

 5 without her consent during the initial frisk and used the knife to cow her into

 6 submission when she resisted his touch. We are confident that these

 7 facts—independent of any further contact that occurred while the knife was locked in

 8 Victim’s trunk—are sufficient to support Defendant’s conviction for CSC. See State

 9 v. Salazar, 1997-NMSC-044, ¶ 32, 123 N.M. 778, 945 P.2d 996 (“[A] jury’s general

10 verdict will not be disturbed in such a case where substantial evidence exists in the

11 record supporting at least one of the theories of the crime presented to the jury.”).

12 B.       Jury Instructions

13   {10}   Defendant next argues that the district court committed fundamental error when

14 it did not sua sponte instruct the jury on the defenses of citizen’s arrest and self-

15 defense and when it did not issue an instruction on false imprisonment as a lesser

16 included offense to kidnapping. “The rule of fundamental error applies only if there

17 has been a miscarriage of justice, if the question of guilt is so doubtful that it would

18 shock the conscience to permit the conviction to stand, or if substantial justice has not

19 been done.” State v. Sutphin, 2007-NMSC-045, ¶ 16, 142 N.M. 191, 164 P.3d 72

20 (internal quotation marks and citation omitted). Fundamental error generally occurs

                                               6
 1 when the trial court fails to instruct the jury on an essential element, including

 2 unlawfulness, which is the element negated by self-defense. See State v. Benally,

 3 2001-NMSC-033, ¶¶ 18-20, 131 N.M. 258, 34 P.3d 1134. “However, fundamental

 4 error does not occur if the jury was not instructed on an element not at issue in the

 5 case.” Sutphin, 2007-NMSC-045, ¶ 16. Nor does it occur when, looking at the

 6 individual facts and circumstances, there is “no distinct possibility that the jury

 7 convicted [the d]efendant without finding all elements beyond a reasonable doubt.”

 8 Id. ¶ 20 (omission, internal quotation marks, and citation omitted).

 9 C.       Citizen’s Arrest

10   {11}   Relying on State v. Johnson, Defendant argues that we must reverse his

11 conviction for kidnapping because the district court did not submit an instruction on

12 citizen’s arrest to the jury. 1996-NMSC-075, ¶¶ 19-20, 122 N.M. 696, 930 P.2d 1148.

13 Citing State v. Slayton, the State counters, in part, that “citizen’s arrest was not a

14 legally valid defense because ‘citizens’ arrests for DWI are not legal.’ ” 2009-NMSC-

15 054, ¶ 26, 147 N.M. 340, 223 P.3d 337.

16   {12}   “The citizen’s arrest defense is based on a person’s common-law right to arrest

17 for a breach of the peace committed in his presence, as well as for a felony.”Johnson,

18 1996-NMSC-075, ¶ 7 (internal quotation marks and citation omitted). In Johnson, our

19 Supreme Court noted that some states have “enacted statutes that placed greater

20 restrictions on the right of citizen’s arrest in an attempt to discourage intermeddlers

                                               7
 1 in the exercise of law enforcement.” Id. ¶ 15 (internal quotation marks and citation

 2 omitted). Since the Court in Johnson believed that “[t]here ha[d] been no changes in

 3 the New Mexico law of citizen’s arrest either by statute or at common law,” it applied

 4 the century-old, common law requirements for the defense from Territory v.

 5 McGinnis, 1900-NMSC-019, 10 N.M. 269, 61 P. 208, overruled on other grounds by

 6 State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782. Johnson, 1996-

 7 NMSC-075, ¶¶ 14-15.

 8   {13}   In the traffic context, this Court relied on Johnson when we upheld a deputy

 9 marshal’s traffic stop conducted outside of his jurisdictional territory as an exercise

10 of the private right to make a citizen’s arrest. See State v. Arroyos, 2005-NMCA-086,

11 ¶¶ 5-9, 137 N.M. 769, 115 P.3d 232, overruled by Slayton, 2009-NMSC-054. But

12 Arroyos was subsequently overruled precisely because “the common law right to

13 citizen’s arrest for suspected violations of the Motor Vehicle Code and other

14 misdemeanor motor vehicle laws has been abrogated by the Legislature.” Slayton,

15 2009-NMSC-054, ¶ 26 (citing NMSA 1978, § 66-8-124(A) (2007) (“No person shall

16 be arrested for violating the Motor Vehicle Code . . . or other law relating to motor

17 vehicles . . . except by a commissioned, salaried peace officer who, at the time of

18 arrest, is wearing a uniform clearly indicating the peace officer’s official status.”)).

19   {14}   Thus, a statutory limit to the defense of a citizen’s arrest that was not found in

20 Johnson was subsequently found in Slayton and, as such, “citizens’ arrests for DWI

                                                8
 1 are not legal.” Slayton, 2009-NMSC-054, ¶ 26. In light of Section 66-8-124(A) and

 2 the surrounding provisions of the Motor Vehicle Code, all cases suggesting “that a

 3 private citizen . . . may make a citizen’s arrest for suspected violations of motor

 4 vehicle laws,” were overruled. Slayton, 2009-NMSC-054, ¶ 26. We therefore reject

 5 any contention that the district court committed fundamental error when it did not

 6 issue a defense that has been abrogated by the Legislature under the specific

 7 circumstances presented here. Simply put, citizen’s arrest was not at issue as a matter

 8 of law.

 9 D.       Self-Defense

10   {15}   Defendant next challenges his conviction for aggravated assault with a deadly

11 weapon. He now asserts that he was entitled to a self-defense instruction that he did

12 not request because his testimony tended to negate the unlawfulness element of that

13 offense. “[W]hen the jury instructions have not informed the jury that the [s]tate had

14 the burden to prove an essential element, such as unlawfulness or an absence of self-

15 defense, convictions have been reversed for fundamental error.” State v. Swick, 2012-

16 NMSC-018, ¶ 55, 279 P.3d 747. In evaluating Defendant’s contention, we first look

17 to the facts adduced at trial to determine whether self-defense was actually at issue.

18 Sutphin, 2007-NMSC-045, ¶¶ 16, 20.

19   {16}   “A defendant is not entitled to a self-defense instruction unless it is justified by

20 sufficient evidence on every element of self-defense.” State v. Rudolfo, 2008-NMSC-

                                                 9
 1 036, ¶ 17, 144 N.M. 305, 187 P.3d 170. One of the elements of self-defense (non-

 2 deadly force) requires that: “The defendant was in fact put in fear of immediate bodily

 3 harm and [ ___ ] because of that fear[.]” UJI 14-5181 NMRA. The Use Notes for the

 4 uniform jury instruction provide that the bracketed space is to be filled in with a

 5 description of “the act of [the] defendant; e.g. ‘struck Richard Roe,’ ‘choked Richard

 6 Roe.’ ” See Use Note 3. Defendant argues on appeal that his testimony at trial

 7 “supported a reasonable doubt that [he] struggled over the knife in the apprehension

 8 that he otherwise would be attacked.” But Defendant was not convicted of aggravated

 9 assault with a deadly weapon for struggling over the knife. To find Defendant guilty

10 on that count, the jury was specifically tasked to find, in pertinent part, that

11 “[D]efendant tried to touch or apply force to [Victim], by holding a knife to her

12 throat” and that he did so in “a rude, insolent or angry manner[.]” Thus, returning to

13 the uniform jury instruction and its Use Note, a proper instruction on self-defense to

14 the charge of aggravated assault with a deadly weapon in this case would read

15 something along the lines of: “[D]efendant was in fact put in fear of immediate bodily

16 harm and [held a knife to Victim’s throat] because of that fear[.]”

17   {17}   There was no evidence at trial that Defendant held a knife to Victim’s throat in

18 fear of immediate bodily harm. Defendant testified that he never intended to harm

19 victim; he never held a knife to Victim’s throat; he never threatened her with a knife;

20 and, in fact, his knife remained sheathed during the whole encounter. The defense

                                               10
 1 strategy at trial revolved entirely—and unsuccessfully—around discrediting Victim,

 2 who defense counsel portrayed at closing argument as a “drama queen” and a

 3 sadomasochist who was “a little into excitement.”

 4   {18}   According to Defendant’s version of events, Victim flirted with him after he

 5 pulled her over. He believed that Victim was “playing a game with [him]” when he

 6 felt “under her blouse,” and “into her breast area.” Victim then inexplicably “flipped

 7 out” and lunged for Defendant’s sheathed knife that was resting between the seats of

 8 his truck. Defendant, now fearing for his life, grabbed Victim’s hand to stop her from

 9 unsheathing the blade and cutting him. They reached a stalemate in the struggle for

10 the knife and eventually agreed to lock it in Victim’s trunk.

11   {19}   We conclude that the district court’s failure to instruct the jury on self-defense

12 was not fundamental error (or error at all) because self-defense to the charge of

13 aggravated assault with a deadly weapon was not actually at issue. Rudolfo, 2008-

14 NMSC-036, ¶ 17 (“A defendant is not entitled to a self-defense instruction unless it

15 is justified by sufficient evidence on every element of self-defense.”); Sutphin, 2007-

16 NMSC-045, ¶ 16 (“[F]undamental error does not occur if the jury was not instructed

17 on an element not at issue in the case.”). There were exactly two versions of events

18 at trial, and neither suggested that Defendant held a knife to Victim’s throat in self-

19 defense. Either Defendant innocently struggled with Victim over a blade that was

20 sheathed “the whole time,” as Defendant suggested, or he “pressed [her] body against

                                                11
 1 the seat of his car, pulled a mask down [over his face], and held a knife to [her]

 2 throat[,]” as Victim testified—and as the jury apparently found. “We will not fragment

 3 the testimony to such a degree as to distort it in order to construct a view of the

 4 evidence which would support the giving of the instruction.” State v. Gaitan, 2002-

 5 NMSC-007, ¶ 24, 131 N.M. 758, 42 P.3d 1207 (alteration, internal quotation marks,

 6 and citation omitted). We will certainly not do so in the limited context of

 7 fundamental error review.

 8   {20}   Since Defendant apparently wanted the jury to believe that he never held a knife

 9 to Victim’s throat, it is unsurprising that defense counsel did not ask for a jury

10 instruction that would have stated, in part, that “[D]efendant acted in self-defense

11 if . . . [he] was in fact put in fear of immediate bodily harm and [held a knife to

12 Victim’s throat] because of that fear[.]” UJI 14-5181. The district court had no

13 obligation to sua sponte instruct the jury on a defense that was inconsistent with

14 Defendant’s own testimony and with the general defense strategy at trial.

15 E.       False Imprisonment

16   {21}   Defendant argues that it was fundamental error not to instruct the jury on false

17 imprisonment as a lesser included offense to kidnapping. Failure to give a lesser

18 included offense instruction is reversible error when (1) the lesser offense is included

19 in the greater offense, (2) there is evidence tending to establish the lesser offense, (3)

20 that evidence establishes that the lesser offense was the highest degree of the crime

                                               12
 1 committed, and (4) the defendant requested the instruction. State v. Jernigan, 2006-

 2 NMSC-003, ¶ 21, 139 N.M. 1, 127 P.3d 537.

 3   {22}   The first two prongs are readily satisfied. False imprisonment is “intentionally

 4 confining or restraining another person without his consent and with knowledge that

 5 he has no lawful authority to do so.” NMSA 1978, § 30-4-3 (1963). Kidnapping is

 6 “the unlawful taking, restraining, transporting or confining of a person, by force,

 7 intimidation or deception, with intent . . . to inflict death, physical injury[,] or a sexual

 8 offense on the victim.” NMSA 1978, § 30-4-1(A)(4) (2003). For our purposes, the

 9 specific intent to inflict a sexual offense on the victim is the element that separates

10 kidnapping from false imprisonment, making “false imprisonment . . . a subset of

11 kidnapping.” State v. Sotelo, 2013-NMCA-028, ¶ 12, 296 P.3d 1232. It is undisputed

12 that there was sufficient evidence to convict Defendant of either crime.

13   {23}   With respect to the third prong, Defendant argues that there is a rational view

14 of the evidence that Defendant restrained Victim because he wanted to see if she was

15 driving while impaired and not because he initially intended to commit a sexual

16 offense. According to Defendant, the jury could have believed his testimony about his

17 motive for the stop and still convicted him of CSC based on his subsequent decision

18 “to make sexual overtures” towards Victim. This view of the evidence, Defendant

19 asserts, would establish that false imprisonment was the highest degree of the crime



                                                13
 1 committed because Defendant did not form the specific intent to commit a sexual

 2 offense until “after he had already restrained [Victim’s] freedom of travel[.]”

 3   {24}   Defendant’s argument is unpersuasive. The offense of kidnapping “continues

 4 until the victim has been released from confinement.” State v. Hutchison, 1983-

 5 NMSC-029, ¶ 32, 99 N.M. 616, 661 P.2d 1315. For instance, our Supreme Court has

 6 held that “[a] conviction for kidnapping with the intent to hold for services is

 7 sufficient if the kidnapper rapes the victim during the course of the abduction[,]” and

 8 “[i]t is immaterial whether or not the intent to rape existed at the beginning of the act.”

 9 Id. Assuming, for the purposes of evaluating Defendant’s argument, that the jury

10 could have rationally found that he committed the unlawful restraint necessary for

11 false imprisonment when he pulled Victim over, that restraint plainly continued at

12 least until Defendant touched Victim’s unclothed breast during the initial frisk.

13   {25}   Defendant testified that he took Victim to the passenger side of his truck to

14 “check her for weapons” knowing that he had no legal authority to do so, and Victim

15 testified that she complied with Defendant’s orders because she thought he was a

16 police officer. Thus, having necessarily concluded that Defendant formed the intent

17 to commit CSC (a sexual offense) at some point during Victim’s continuing restraint,

18 no rational jury could have simultaneously concluded that Defendant never formed

19 the specific intent that distinguishes kidnapping from false imprisonment.



                                               14
 1   {26}   We also cannot ignore the fact that Defendant’s assertion of fundamental error

 2 is inherently suspect given the fourth prong of our lesser included offense test, which

 3 requires that Defendant requested the instruction. See Jernigan, 2006-NMSC-003,

 4 ¶ 21. While some of the self-defense cases discussed above have recognized an

 5 exception to preservation requirements when a court fails to instruct the jury on an

 6 essential element of an offense that is factually at issue, our courts “have declined to

 7 apply the doctrine of fundamental error to a defendant’s choice of whether to have the

 8 jury instructed on lesser included offenses.” State v. Foster, 1999-NMSC-007, ¶ 54,

 9 126 N.M. 646, 974 P.2d 140. We cannot locate a prior case, and Defendant has not

10 cited one that has ever reversed a trial court for failing to issue an unrequested, lesser

11 included offense instruction.

12   {27}   In fact, the cases typically consider the decision not to request such an

13 instruction to be an “ ‘all-or-nothing’ trial strategy” which will not be second guessed

14 on appeal. State v. Villa, 2004-NMSC-031, ¶ 14, 136 N.M. 367, 98 P.3d 1017; State

15 v. Boeglin, 1987-NMSC-002, ¶ 14, 105 N.M. 247, 731 P.2d 943 (“[T]he defendant is

16 free to make strategic choices regarding the manner in which he will or will not avail

17 himself of procedural safeguards afforded by the law, and he generally will be bound

18 by those choices.”). False imprisonment is a fourth degree felony with a potential

19 penalty of eighteen months imprisonment, see NMSA 1978, § 31-18-15(A)(10)

20 (2007), and Defendant would have a perfectly valid tactical incentive not to want the

                                               15
 1 jury instructed on that offense. His testimony challenged the intent required for

 2 kidnapping, and, had the jury believed him, he would have been acquitted. An “ill-

 3 advised strategic decision is not the stuff of which fundamental error is made.” State

 4 v. Foxen, 2001-NMCA-061, ¶ 12, 130 N.M. 670, 29 P.3d 1071. Even if there was

 5 some rational view of the evidence in which Defendant could have been convicted of

 6 false imprisonment and not kidnapping, we would not find fundamental error under

 7 these circumstances.

 8 F.       Ineffective Assistance of Counsel

 9   {28}   Defendant’s final argument is that his right to effective assistance of counsel

10 was violated when trial counsel failed to request the jury instructions discussed above.

11 To make a prima facie case of ineffective assistance of counsel, a defendant must

12 show that (1) counsel’s performance fell below that of a reasonably competent

13 attorney; and (2) the defendant was prejudiced by the deficient performance. State v.

14 Cordova, 2014-NMCA-081, ¶ 9, 331 P.3d 980. Defense counsel is “presumed

15 competent.” State v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127.

16   {29}   Since we have concluded that the evidence at trial would not have warranted

17 any of the jury instructions discussed in this Opinion, trial counsel’s failure to request

18 those instructions was neither deficient nor prejudicial.

19 II.      CONCLUSION

20   {30}   Defendant’s convictions are affirmed.

                                               16
1   {31}   IT IS SO ORDERED.

2                               __________________________________
3                               LINDA M. VANZI, Judge

4 WE CONCUR:

5 _________________________________
6 JAMES J. WECHSLER, Judge

7 _________________________________
8 M. MONICA ZAMORA, Judge




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