State v. Uribe-Vidal

                                                                   I attest to the accuracy and
                                                                    integrity of this document
                                                                      New Mexico Compilation
                                                                    Commission, Santa Fe, NM
                                                                   '00'05- 15:49:44 2018.01.23

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: September 14, 2017

Docket No. A-1-CA-34058

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

JUAN URIBE-VIDAL,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Elizabeth Ashton, Assistant Attorney General
Albuquerque, NM

for Appellee

L. Helen Bennett, P.C.
L. Helen Bennett
Albuquerque, NM

for Appellant

                                        OPINION

FRENCH, Judge.

{1}     This appeal stems from a jury verdict convicting Defendant Juan Uribe-Vidal of
eleven counts of aggravated assault upon a peace officer (deadly weapon), contrary to
NMSA 1978, Section 30-22-22(A)(1) (1971), and one count of aggravated battery upon a
peace officer (deadly weapon), contrary to NMSA 1978, Section 30-22-25(C) (1971).
Defendant raises four issues on appeal: (1) the State presented insufficient evidence to
sustain the convictions, (2) the convictions violate Defendant’s right to be free from double

                                             1
jeopardy, (3) defense counsel’s failure to present evidence proving Defendant’s innocence
violated Defendant’s right to effective assistance of counsel, and (4) Defendant’s sentence
constitutes cruel and unusual punishment. We affirm.

BACKGROUND

{2}     On November 23, 2012, officers from the Lea County Sheriff’s Office and the Hobbs
Police Department attempted to execute a search of Defendant’s residence pursuant to a
warrant. The officers were organized into two SWAT teams, one for a camper on the
property and one for a mobile home on the property. The officers arrived at Defendant’s
property in an armored patrol carrier and, upon exiting the vehicle, one SWAT team began
walking toward the camper and the other began walking toward the mobile home. Officer
Tovar was part of the SWAT team tasked with entering the camper. When that team was
close to the front door of the camper, another officer gave the command for Officer Tovar
to deploy a distractionary device, which would emit smoke and conceal their movement.
Immediately after Officer Tovar deployed the distractionary device, the officers—including
Officer Tovar—heard and saw gunfire coming from the camper. As soon as the officers
heard the shots, they tried to take cover behind a nearby tree and another vehicle parked on
Defendant’s property. When Officer Tovar took cover behind the vehicle, he discovered that
he had been shot in his right arm. He remained behind the vehicle until the firefight was
over, which lasted about twenty-one seconds and included the exchange of rounds fired from
the camper and several rounds fired by one of the officers in front of the camper. Once the
gunfire ceased, two officers helped get Officer Tovar back to the armed patrol carrier, and
the individuals inside the camper were ordered to come out. Defendant and six others were
arrested outside the camper.

{3}     Law enforcement seized from the camper various firearms, a grenade, a gas mask,
a bulletproof vest, and an explosive device. They also discovered a video surveillance system
inside the camper, which displayed the area in front of the camper where the SWAT teams
had assembled. All of the officers said they could not see who was firing at them from inside
the camper, but the gunfire appeared to come from the window and the doorway of the
camper.

{4}     Defendant was charged with thirteen counts of aggravated assault on a peace officer
(deadly weapon), one charge for each of the officers present that day, and one count of
aggravated battery on a peace officer (deadly weapon), for Officer Tovar, the officer who
was shot in the arm. Two counts of aggravated assault were dismissed by directed verdict
by the district court before being submitted to the jury. In addition to its substantive
instructions, the jury was also instructed on accessory liability. The jury found Defendant
guilty of eleven counts of aggravated assault on a peace officer and one count of aggravated
battery on a peace officer. Defendant was sentenced to a total of twenty years imprisonment,
minus 492 days credit for time served. Defendant appeals his convictions based on the
sufficiency of the evidence, double jeopardy, ineffective assistance of counsel, and cruel and
unusual punishment.

                                              2
DISCUSSION

Sufficiency of the Evidence

{5}     Defendant asserts that there was insufficient evidence to support all of his
convictions because the testimony at trial only established that while Defendant owned the
property and was present in the camper during the firefight, he was on the floor, not near the
window or door from which the shots were fired. Defendant emphasizes the absence of
evidence proving that he possessed a gun during the firefight and notes that the DNA
evidence from one of the guns only established that Defendant handled the gun at some point
in time. Defendant argues it is therefore not reasonable to infer that he shot at the officers
outside. Defendant also notes the absence of ballistics tests that could have proven which
rounds were fired by the gun that Defendant allegedly handled during the firefight, and
argues the State made no effort to determine which of the guns caused Officer Tovar’s
injury. Therefore, Defendant argues the jury could only have speculated that Defendant
participated in the firefight based upon his presence in the camper.

{6}     “The sufficiency of the evidence is reviewed pursuant to a substantial evidence
standard.” State v. Treadway, 

, 

, 

. When
reviewing a challenge to the sufficiency of the evidence, we determine “whether substantial
evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond
a reasonable doubt with respect to every element essential to a conviction.” State v. Sutphin,

, ¶ 21, 

, 

. “[W]e must view the evidence in the
light most favorable to the guilty verdict, indulging all reasonable inferences and resolving
all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 

, 

, 

. “In our determination of the sufficiency of the evidence,
we are required to ensure that a rational jury could have found beyond a reasonable doubt
the essential facts required for a conviction.” State v. Duran, 

, 

, 

 (internal quotation marks and citation omitted). “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.” State v. Rojo, 

, 

,

.

{7}     The State argues it presented evidence sufficient to support Defendant’s convictions
because it proceeded on a theory of accessory liability and the evidence determined that
Defendant “watched, waited, encouraged, and caused” the criminal conduct. We agree. See
State v. King, 

, 

 (noting that “New Mexico long ago
abolished the distinction between accessory and principal liability” and “[t]he charge against
[the d]efendant as a principal include[s] a corresponding accessory charge, assuming the
evidence at trial supported the charge” (internal quotation marks omitted)). Where the
State’s theory of the case includes accomplice liability, the jury is accordingly instructed and
“[t]he sufficiency of the evidence is assessed against the jury instructions because they
become the law of the case.” State v. Quiñones, 

, 

, 

.

                                               3
{8}      Specifically, the State presented evidence showing that Defendant owned and was
inside the camper at the time of the firefight. The State also called as a witness the forensics
expert who ran various tests—cartridge casing comparison tests, bullet comparison tests, and
function tests—on the cartridge casings and firearms found inside the camper. Of the thirteen
firearms found within the camper and provided to the forensics expert for testing, he was
able to identify cartridge casings with the .45 caliber colt, the AR-15 caliber rifle, the .40
caliber glock, and the .40 caliber beretta pistol. The bullets that hit Officer Tovar matched
the .40 caliber beretta pistol found inside the camper. The State also presented the results of
DNA tests performed on several of the firearms. Defendant was not eliminated as a
contributor to the DNA found on the beretta pistol. The other six individuals inside the
camper were eliminated as contributors to the DNA mixture found on the magazine of the
beretta pistol, but there was no conclusion about Defendant being “a possible contributor.”
Defendant was also found to be a “major contributor” on another firearm, while everyone
else in the camper was eliminated, and Defendant was found to be “the source of the major
DNA profile” on another one of the many firearms found inside the camper.

{9}     From this, it was reasonable for the jury to infer that Defendant either shot at the
officers himself, or, given the presence of the surveillance system and the availability of
firearms and ammunition inside his camper, Defendant encouraged, helped, or caused others
to shoot at the officers. Despite the difficulty in proving which of the seven individuals
inside the camper actually shot the three guns, there was evidence sufficient to convict
Defendant as an agent of the crimes. See State v. Bahney, 

, 

 (noting that “we need only find sufficient evidence under one of the theories presented
to uphold [the d]efendant’s convictions,” and choosing “to address each of the . . . crimes
under the [s]tate’s theory of accessory liability”). Given all the evidence presented and the
alternative manner used to charge Defendant, as well as prove the State’s case at trial, we
conclude that sufficient evidence supports each of Defendant’s convictions.

Double Jeopardy

{10} Defendant argues that the jury’s separate guilty verdicts for one count of aggravated
assault and one count of aggravated battery, both involving Officer Tovar as the victim,
violated the Double Jeopardy Clause. Whether separate convictions violate double jeopardy
is “a question of law, which we review de novo.” State v. Saiz, 

, 

, 

, abrogated on other grounds by State v. Belanger, 2009-NMSC-
025, ¶ 36 n.1, 

, 

. The Double Jeopardy Clause prohibits the
imposition of multiple punishments for the same offense. Swafford v. State, 1991-NMSC-
043, ¶ 6, 

, 

. “There are two types of multiple punishment cases: (1)
unit of prosecution cases, in which an individual is convicted of multiple violations of the
same criminal statute; and (2) double[]description cases, in which a single act results in
multiple convictions under different statutes.” State v. Branch, 

, 

, cert. granted, 2016-NMCERT-_____, _____ P.3d _____ (No. A-1-CA- 35,951,
July 28, 2016). Defendant’s argument involves separate statutes, raising a double description
issue.

                                               4
{11} Our courts have established a two-part test for determining whether convictions
under different criminal statutes violate the Double Jeopardy Clause. Swafford, 1991-
NMSC-043, ¶¶ 25-26. First, we determine “whether the conduct underlying the offense[] is
unitary, i.e., whether the same conduct violates both statutes.” Id. ¶ 25. “Whether conduct
is unitary depends upon whether the two events are sufficiently separated by either time or
space as well as the quality and nature of the acts or the objects and results involved.” State
v. Meadors, 

, ¶ 36, 

, 

 (omission, internal
quotation marks, and citation omitted). “[I]f the conduct is separate and distinct, [the] inquiry
is at an end.” Swafford, 

, ¶ 28. If the conduct is unitary, we must then
consider “whether the [L]egislature intended to create only alternative means of prosecution
or separately punishable offenses.” State v. Cowden, 

, ¶ 6, 

,

.

{12} Defendant maintains that the conduct resulting in harm to Officer Tovar was unitary
because there was “no temporal distinction between the gun shots resulting in the alleged
assaults experienced by the officers, and the shot that hit Officer Tovar’s arm[,]” and “[t]he
only physical distinction was that Officer Tovar was touched while none of the other officers
were.” Defendant relies on State v. Montoya, 

, 

,
concluding that the same shots, fired at the same time, establish both charges, and “where
both convictions were premised on the unitary act of shooting [the victim,]” one must be
vacated. Id. ¶ 54.

{13} The State argues that Defendant’s conduct was not unitary because the State’s case
was based on a theory of accessory liability, which involved multiple perpetrators.
Defendant’s convictions for aggravated assault and aggravated battery against Officer Tovar
could be based on Defendant’s commission of the crimes, or it could have been based on
accessory liability for having assisted the individual inside the camper who did in fact fire
the shot that struck Officer Tovar.

{14} We conclude that the conduct is unitary. We examine four cases where our courts
have concluded one perpetrator shooting one firearm constitutes unitary conduct. In Branch,
the defendant pointed a firearm at two people who were standing directly next to one another
and fired a single shot, striking only one of the two victims. 

. The jury
convicted him of aggravated battery with a deadly weapon (for the victim who was shot) and
aggravated assault with a deadly weapon (for the victim who was not shot but reasonably
believed the defendant would batter her as well). Id. ¶¶ 1-2. We concluded that the firing of
a single shot was unitary conduct. Id. ¶ 22.

{15} In Cowden, the defendant was one of several defendants involved in “an incident in
which [the d]efendant and others shot at Santa Fe police officers,” and only one officer was
shot. 

, ¶ 2. The defendant was crouched behind the victim’s van, pointed
his gun at the victim, and upon seeing one another, discharged one shot. Id. ¶ 3. The state
conceded the conduct was unitary and we agreed. Id. ¶ 5. This Court cited to State v.
Gonzales, 

, 

, 

, overruled on other grounds by

                                               5
State v. Montoya, 

, 

, in support of our conclusion. Cowden,

, ¶ 5.

{16} In Gonzales, the defendant was convicted of shooting into an occupied motor vehicle
and first degree murder. 

, ¶ 1. The victim was a passenger in a truck and
was killed by shots fired into the truck while the driver drove past the residence of the
defendant. Id. ¶ 2. Our Supreme Court concluded the conduct was unitary: “the facts
presented at trial established that [the] defendant fired multiple gun shots into [the] truck in
rapid succession. Because the shots were not separated by either time or space, [our Supreme
Court agreed] with the trial court that [the] defendant committed one criminal act.” Id. ¶ 8
(internal quotation marks omitted).

{17} In Montoya, our Supreme Court was asked to determine whether the defendant could
be punished for both voluntary manslaughter and shooting at a motor vehicle resulting in
great bodily harm. 

, ¶ 28. The defendant shot at a vehicle driving by his
residence, and the driver of the vehicle died of multiple gunshot wounds. Id. ¶ 7. As in
Gonzales, the state conceded that “[the d]efendant’s act of shooting the driver of the
[vehicle] was the common factual basis for both the shooting into the motor vehicle and the
voluntary manslaughter convictions, and his culpable conduct was therefore ‘unitary.’ ”
Montoya, 

. Our Supreme Court agreed that the conduct was unitary,
citing Gonzales for the proposition that “the firing of multiple gun shots into the victim’s
vehicle in rapid succession constituted unitary criminal conduct[.]” Montoya, 2013-NMSC-
020, ¶ 30 (alteration, internal quotation marks, and citation omitted).

{18} In summary, in Branch and Cowden, one perpetrator shot at more than one person
only one time. This conduct was unitary. In Gonzales and Montoya, one perpetrator shot at
more than one person, but did so many times. This conduct was also deemed unitary. Here,
as in Gonzales and Montoya, Defendant shot at or, under a theory of accessory liability,
encouraged others to shoot at more than one person many times. Based on this Court and our
Supreme Court precedent, we conclude that Defendant’s conduct was unitary, “[b]ut because
this is a double[]description case, where the same conduct results in multiple convictions
under different statutes, we must go further before our analysis is complete.” Montoya, 2013-
NMSC-020, ¶ 30 (internal quotation marks and citation omitted).

{19} We turn to the legal question, “whether the [L]egislature intended to create separately
punishable offenses.” Swafford, 

, ¶ 25. “Determinations of legislative
intent, like double jeopardy, present issues of law that are reviewed de novo, with the
ultimate goal of such review to be facilitating and promoting the [L]egislature’s
accomplishment of its purpose.” Montoya, 

 (alterations, internal
quotation marks, and citation omitted). “When . . . the statutes themselves do not expressly
provide for multiple punishments, we begin by applying the rule of statutory construction
from Blockburger v. United States, 

 . . . (1932), to determine whether each
provision requires proof of a fact that the other does not.” Branch, 

.


                                               6
{20} For double jeopardy claims involving statutes that are vague and unspecific or
written with many alternatives, we do not “apply a strict elements test in the abstract; rather,
we look to the state’s trial theory to identify the specific criminal cause of action for which
the defendant was convicted,” and we examine the charging documents and the jury
instructions presented. Id. ¶ 23. “If the statutes survive Blockburger, we examine other
indicia of legislative intent[,]” and “we must identify the particular evil sought to be
addressed by each offense.” Branch, 

 (internal quotation marks and
citations omitted). “Statutes directed toward protecting different social norms and achieving
different policies can be viewed as separate and amenable to multiple punishments.”
Swafford, 

, ¶ 32.

{21} Defendant provides no argument about the legislative-intent prong. The State argues
that the statutory elements of the two crimes are different and address two different social
evils: the assault charge required proof of the threat of harm to Officer Tovar; the battery
charge required proof that Officer Tovar was injured. Furthermore, the State points out that
the assault statute addresses the victim’s fear and mental anguish, while the battery statute
addresses the ensuing physical harm to the victim, two distinct social evils.

{22} We are guided on this issue by our recent opinion in Branch. There, we concluded
that the crimes of aggravated assault and aggravated battery address societal harms separate
and distinct from one another—placing another in fear versus physically injuring
another—and therefore survive Blockburger. We consider the conclusion reached in
Branch—that multiple harms can arise from a single gunshot—may also be applied in a case
where multiple shots were fired that ultimately produced two distinct harms to a single
officer, an assault and a battery. Here, the charging document specifically identified
Subsection (1) of Section 30-22-22(A), the subsection prohibiting any unlawful assaulting
or striking of a peace officer with a deadly weapon. The jury instruction required the jury
to find, among other things, that “[D]efendant’s conduct threatened the safety of [Officer]
Tovar[,]” and “[D]efendant acted in a rude, insolent or angry manner[.]” It appears that the
State proceeded under the “threat” prong of the aggravated assault statute. The State also
charged Defendant under Section 30-22-25(C), the section of our aggravated battery statute
that makes its commission against a peace officer a third degree felony if it is committed
with a deadly weapon such that great bodily harm or death may be inflicted. While some of
the elements of the two crimes overlap, each crime requires proof of at least one element that
the other does not—assault requires threatening or menacing conduct; battery requires
physical injury to the victim. One offense is not subsumed within the other, and Blockburger
alone does not preclude the possibility of punishment under both the aggravated assault
statute and the aggravated battery statute. See Branch, 

.

{23} Next, we look to the history, language, and subject of the statutes, and identify the
particular evil addressed by each statute. See Montoya, 

. “[T]he social
evils proscribed by different statutes must be construed narrowly[.]” Swafford, 1991-NMSC-
043, ¶ 32. We have previously determined that aggravated assault under NMSA, 1978,
Section 30-3-1(B) (1963) and aggravated battery under NMSA, 1978, Section 30-3-5(A)

                                               7
(1969), address different social evils, albeit in a situation where the victim was not a peace
officer. See Branch, 

 (explaining that the aggravated battery statute,
Section 30-3-5(A), “protects against the social evil that occurs when one person intentionally
physically attacks and injures another[,]” but “[t]he culpable act under Section 30-3-1(B),
on the other hand, is one that causes apprehension or fear” (internal quotation marks and
citation omitted)). Though we now analyze Sections 30-22-22 and 30-22-25, the analysis is
the same because the State pursued Defendant’s aggravated assault charges based upon
Officer Tovar’s separate fear of harm during this firefight where multiple shots were fired.
Again, here, “the harm related to assault is mental harm; assaults put persons in fear. The
harm related to battery is physical harm; batteries actually injure persons.” Branch, 2016-
NMCA-071, ¶ 28 (alteration, internal quotation marks, and citation omitted). In Branch, we
upheld convictions for aggravated assault and aggravated battery under a double jeopardy
analysis, where the defendant pointed a gun at two victims and fired one shot, striking only
one of the victims. Id. ¶¶ 1, 64. We affirm Defendant’s convictions for aggravated assault
and aggravated battery upon one police officer because both distinct social harms arose when
multiple shots were fired at the officers and caused them all to hide behind a tree and a
vehicle in fear of being hit by a bullet, including Officer Tovar who was both fearful of
being struck and then actually struck by one of the bullets. As a result, we conclude that
Defendant’s convictions for aggravated assault and aggravated battery against Officer Tovar
do not violate Defendant’s right to be free from double jeopardy. See id. ¶ 29.

Ineffective Assistance of Counsel

{24} Defendant argues defense counsel failed to introduce evidence establishing his
innocence, thereby violating his constitutional right to effective assistance of counsel.
Specifically, Defendant argues trial counsel “erred by failing to present any defense, and by
failing to adequately investigate and challenge evidence presented, particularly the evidence
that no gun shot residue test was performed on [Defendant].”

{25} “We review claims of ineffective assistance of counsel de novo.” Bahney, 2012-
NMCA-039, ¶ 48. In order to establish a prima facie case of ineffective assistance of counsel
on appeal, Defendant “must demonstrate that his counsel’s performance fell below that of
a reasonably competent attorney and that he was prejudiced by his counsel’s deficient
performance.” State v. Perez, 

, 

, 

.

{26} Defendant makes no citation to the record or the trial proceedings showing counsel’s
failure to investigate and challenge evidence presented. Contrary to Defendant’s assertion,
the record reflects that defense counsel questioned technicians about the State’s failure to
perform the gun shot residue tests during trial, specifically inquiring about why the case
agent chose not to perform gun shot residue tests on Defendant’s palms after the incident and
asking questions that made it clear gun shot residue tests, unlike DNA tests, are conclusive
evidence of a person firing a firearm. Defense counsel also highlighted the absence of gun
shot residue tests during closing argument. We cannot conclude that defense counsel’s
performance fell below that of a reasonably competent attorney. See Lytle v. Jordan,

                                              8


, 

, 

 (“[J]udicial review of the effectiveness
of counsel’s performance must be highly deferential, and courts should recognize that
counsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” (internal quotation marks and
citation omitted)); see also State v. Roybal, 

, 

, 

 (stating that an appellate court presumes that counsel’s performance “fell within a wide
range of reasonable professional assistance” (internal quotation marks and citation omitted)).

{27} Defendant has failed to establish a prima facie case of ineffective assistance of
counsel. However, Defendant may bring an ineffective assistance of counsel claim in a
habeas proceeding. See Saiz, 

 (noting that a defendant “may pursue
habeas corpus proceedings on [the ineffective assistance of counsel] issue in the future if he
is ever able to provide evidence to support his claims”); see also State v. Martinez, 1996-
NMCA-109, ¶ 25, 

, 

 (stating that if the record does not establish
a prima facie case of ineffective assistance of counsel, the defendant must pursue the claim
in a habeas corpus proceeding).

Cruel and Unusual Punishment

{28} Defendant maintains that it was cruel and unusual punishment to sentence him to
twenty years imprisonment where there exists no direct evidence of his participation in the
firefight. To the extent that Defendant’s argument can be construed as a challenge to the
sufficiency of the evidence supporting his convictions based on the lack of direct evidence
that Defendant himself shot a firearm, we have previously addressed this issue and held that
the State presented evidence sufficient to support Defendant’s convictions. We also note that
Defendant did not preserve his cruel and unusual punishment claim at sentencing. See State
v. Chavarria, 

, 

, 

 (“[A] sentence authorized
by statute, but claimed to be cruel and unusual punishment under the state and federal
constitutions, does not implicate the jurisdiction of the sentencing court and, therefore, may
not be raised for the first time on appeal.”). Furthermore, Defendant does not dispute that his
sentence is within the range allowed by statute. See State v. Gardner, 

, 

, 

 (“Regardless of what mitigating evidence [the d]efendant
presented, the statutory scheme does not require the trial court to depart from the basic
sentence.”). Since Defendant’s sentence in this case “was authorized by statute, [his] cruel
and unusual punishment claim may not be raised for the first time on appeal.” Chavarria,

. We conclude there is no fundamental error necessitating reversal of
Defendant’s convictions and sentence, and therefore, we do not reach the merits of
Defendant’s cruel and unusual punishment claim.

CONCLUSION

{29}   We affirm all of Defendant’s convictions.

{30}   IT IS SO ORDERED.

                                              9
                                    ____________________________________
                                    STEPHEN G. FRENCH, Judge

WE CONCUR:

____________________________________
LINDA M. VANZI, Chief Judge

____________________________________
TIMOTHY L. GARCIA, Judge




                                   10