State v. Grubb

                                                         Office of the Director            New Mexico
                                                          10:11:49 2022.07.26              Compilation
                                                                        '00'06-            Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: October 1, 2019

No. A-1-CA-36177

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

JOSEPH A. GRUBB,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Jerry H. Ritter Jr., District Judge

Released for Publication January 21, 2020.

Hector H. Balderas, Attorney General
Santa Fe, NM
Lauren J. Wolongevicz, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Aja Oishi, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

M. ZAMORA, Chief Judge.

{1}    Defendant Joseph Grubb appeals his conviction for escape from jail, arguing that
the district court committed fundamental error by instructing the jury using the Uniform
Jury Instruction (UJI) that lists the essential elements for the crime of escape from an
inmate-release program. Defendant also argues that the evidence was insufficient to
support his conviction and that pre-indictment delay violated his due process rights.
Because the district court instructed the jury on a crime for which Defendant was never
charged, the district court committed fundamental error. Because Defendant’s other
arguments are without merit, we reverse for a new trial consistent with this opinion.

BACKGROUND

{2}    While on probation for a conviction in 2008, Defendant was arrested and charged
with drug-related crimes. As a result of those charges, the State sought to revoke
Defendant’s probation, and after holding a hearing on the matter on December 22,
2011, the district court revoked Defendant’s probation, granting him furlough until
December 31, 2011, when he was required to turn himself in to the custody of the Otero
County Detention Center. Defendant did not report on December 31, 2011, and instead
accumulated additional charges in two new cases under an alias, Deciderio Nieto. While
he remained in jail on those other charges, Defendant was indicted on one count of
escape from jail, and a jury convicted him. Defendant appeals his conviction for escape
from jail.

DISCUSSION

{3}    Defendant argues that the district court erred by improperly instructing the jury,
that the evidence was insufficient as a matter of law to support a conviction for escape
from jail under NMSA 1978, Section 30-22-8 (1963), that the district court improperly
admitted testimony regarding other cases, and that the pre-indictment delay in this case
violated his due process rights. We begin with Defendant’s arguments regarding jury
instructions and sufficiency of the evidence. Those arguments being dispositive of the
improper testimony argument, we need not address it. See State v. Mascareñas, 2000-
NMSC-017, ¶ 1, 

, 

 (declining to address appellant’s arguments
regarding improperly admitted evidence after concluding deficiencies in the jury
instructions warranted reversal). Last, we consider Defendant’s argument regarding pre-indictment delay.

I.    Jury Instructions

A.    Escape From Jail and Escape From an Inmate-Release Program

{4}    Defendant argues that the district court committed fundamental error by
instructing the jury using the UJI for escape from an inmate-release program rather than
escape from jail. “Escape from jail consists of any person who shall have been lawfully
committed to any jail, escaping or attempting to escape from such jail.” Section 30-22-8.
The UJI identifies the three essential elements present in Section 30-22-8 as follows:

             1.     The defendant was committed to jail;

              2.      The defendant either escaped from, or attempted to escape
      from[,] jail; and

             3.     This happened in New Mexico on or about [a specified date].
UJI 14-2221 NMRA. The UJI also provides, in a use note, that “[i]f the escape is from a
jail release program, use UJI 14-2228[ NMRA,]” which lists the six essential elements
for escape from an inmate-release program. UJI 14-2221 use note 1.

{5}      Escape from an inmate-release program is a crime established in NMSA 1978,
Section 33-2-46 (1980): “Any prisoner whose limits of confinement have been extended,
or who have been granted a visitation privilege under the inmate-release program, who
willfully fails to return to the designated place of confinement within the time prescribed,
with the intent not to return, is guilty of an escape.” Under the UJI, escape from an
inmate-release program consists of six elements:

               [a.]    The defendant was committed to _____________ (identify
       institution);
               [b.]    The defendant was released from _____________ (identify
       institution) to (describe purpose for release);
               [c.]   The defendant failed to return to confinement within the time
       fixed for the defendant’s return;
               [d.]    The defendant’s failure to return was willful, without sufficient
       justification or excuse;
               [e.]    The defendant intended not to return within the time fixed;
            [f.]   This happened in New Mexico on or about the ___ day of
       ________, ____.

UJI 14-2228. The use notes to the UJI provide that “[the escape from an inmate-release
program] instruction is also to be used for escape from jail.” UJI 14-2228 use note 1.

B.     Fundamental Error

{6}    The State argued to the district court that because this case fell “between certain
different kinds of escape,” the jury instruction needed to “be modified to require certain
things that maybe just escape from jail would not.” The State therefore sought to instruct
the jury using UJI 14-2228, escape from an inmate-release program, because it was
“factually closest” to the circumstances of the case. The district court instructed the jury
using a modified version of UJI 14-2228. The tendered instruction read as follows:

       For you to find [D]efendant guilty of escape from jail, the state must prove
       to your satisfaction beyond a reasonable doubt each of the following
       elements of the crime:

             1.      [D]efendant was committed to the Otero County Detention
       Center for transport to the New Mexico Department of Corrections;

              2.    [D]efendant was released from lawful custody or
       confinement for furlough purposes;
               3.    [D]efendant failed to return to lawful custody or confinement
       within the time fixed for the defendant’s return;

               4.      [D]efendant’s failure to return was willful, without sufficient
       justification or excuse;

              5.      [D]efendant intended not to return within the time fixed;

            6.    This happened in New Mexico on or about the 31st day of
       December, 2011.

Defendant did not object to the district court giving this instruction, and therefore failed
to preserve his argument that the district court erred in giving this instruction. See, e.g.,
State v. Jimenez, 

, 

 (“Because [the d]efendant failed
to object to the instructions given at trial, [the d]efendant failed to preserve this issue[.]”).

{7}     We review unpreserved assertions of error in a jury instruction for fundamental
error. State v. Stevens, 

, 

. In a fundamental error
analysis, we begin by considering whether reversible error exists, such that “the jury
instructions, taken as a whole, cause juror confusion by failing to provide the jurors with
an accurate rendition of the relevant law.” State v. Suazo, 

, 

 (alterations, internal quotation marks, and citations omitted); see State v.
Barber, 

, 

, 

 (noting that fundamental
error begins at the same place as our reversible error analysis by considering “whether
a reasonable juror would have been confused or misdirected by the jury instruction”). If
reversible error exists, we then review the entire record, “placing the jury instructions in
the context of the individual facts and circumstances of the case, to determine whether .
. . Defendant’s conviction was the result of a plain miscarriage of justice.” 

 (internal
quotation marks and citation omitted).

{8}    It is the district court’s duty to instruct the jury upon all questions of law essential
for a conviction of any crime with which the defendant is charged. Rule 5-608(A) NMRA;
see, e.g., State v. Lopez, 

, ¶ 10, 

, 

; Jackson
v. State, 

, ¶ 6, 

, 

. The failure to instruct the
jury on an essential element of the offense charged generally constitutes fundamental
error requiring reversal. Jackson, 

, ¶ 6 (concluding incorrect instruction
was fundamental error because it did not contain necessary elements of the crime); see
also State v. Samora, 

, 

 (“Fundamental error occurs
when jury instructions fail to inform the jurors that the State has the burden of proving
an essential element of a crime and we are left with no way of knowing whether the jury
found that element beyond a reasonable doubt.” (internal quotation marks and citation
omitted)).

{9}    Another type of fundamental error is one that takes from the defendant a right
that was “essential to his defense and [that] no court could or ought to permit him to
waive.” State v. Davis, 

, 

, 

 (internal
quotation marks and citation omitted); see 

 (reversing conviction where district court
instructed jury on negligent and intentional child abuse, but the defendant was not
charged with negligent child abuse), abrogated on other grounds by State v. Montoya,

, 

 (concluding that reckless child abuse was
lesser-included offense of intentional child abuse). One such right is the right to due
process, which requires that the state “provide reasonable notice of charges against a
person and a fair opportunity to defend; rights which may not be ignored or trivialized.”
Davis, 

 (internal quotation marks and citation omitted). Because
“[a] defendant in a criminal case is entitled to know what he is being charged with and to
be tried solely on those charges[, i]t is improper to instruct the jury as to a crime not
formally charged if that crime is not a lesser-included offense of the crime formally
charged.” Id. ¶ 8 (internal quotation marks omitted) (citing State v. Johnson, 1985-
NMCA-074, ¶¶ 25-26, 

, 

 (reversing negligent arson
conviction that was charged only as malicious or willful arson)). “Where the district court
submits an uncharged crime to the jury as a basis for conviction, it deprives a defendant
of his constitutional right to notice and the opportunity to prepare a defense.” Davis,

. As such, “[a]llowing [a d]efendant’s conviction to stand where
there is a possibility that he was convicted of a crime for which he was not charged
would result in a miscarriage of justice[,]” and a conviction for a crime with which the
defendant was not charged therefore constitutes a due process violation that amounts
to fundamental error. Id. ¶ 16; see State v. Leal, 

, ¶ 15, 

,

 (“A defendant may not be convicted of a crime for which he was not
charged or tried.”); Johnson, 

, ¶ 26 (noting that a criminal defendant “is
entitled to know what he is being charged with and to be tried solely on those charges,”
and that “[i]t is improper to instruct the jury as to a crime not formally charged).

C.     The District Court Committed Fundamental Error

{10} Section 30-22-8 and Section 33-2-46 define distinguishable offenses with
different essential elements and penalties. See State v. Trujillo, 

, ¶ 5,

, 

 (explaining that various escape statutes “differ as to the
nature of the authority under which the offender is confined” and the place from which
escape is made). The distinctions between the essential elements required for each
type of escape are clear in a comparison of UJI 14-2221 (escape from jail) and UJI 14-
2228 (escape from an inmate-release program). While the first element of UJI 14-2221
is similar to the first element UJI 14-2228 in that both require commitment, either to jail
or to an institution, escape from an inmate-release program contains three essential
elements that are entirely absent from the essential elements required for escape from
jail. UJI 14-2228 requires willfulness and an intent not to return, see State v. Rosaire,

, 

, 

 (establishing willfulness as an
essential element of escape from an inmate-release program), as well as a reason for
the prisoner’s release. See UJI 14-2228 comm. cmt. (“[T]he essential elements include
the specific reasons for the prisoner’s release.”). None of these elements are
comparable to the escape element required under UJI 14-2221 for escape from jail.
{11} Given the significant differences between essential elements of escape from jail
and escape from an inmate-release program, there is a significant probability that the
jury convicted Defendant based on a deficient understanding of the law regarding
escape from jail under Section 30-22-8. Furthermore, it is clear that the jury, while
instructed on release, willfulness, and intent, was never instructed on escape—an
essential element of escape from jail. Finally, the State did not charge Defendant with
escape from an inmate-release program and never intended to present escape from an
inmate-release program as a lesser-included offense of escape from jail. See Davis,

 (“A defendant is considered to be on notice to defend against
uncharged lesser-included offenses.”). Yet, the jury was instructed on that crime. A
crime for which he never received notice and was ultimately convicted. It is a basic tenet
of criminal law that “the charge must be appropriate and the prosecution must prove
each essential element of the crime as defined by statute.” Trujillo, 

, ¶
12 (emphasis added); see id. ¶ 13 (reversing the defendant’s conviction where he had
been charged under inapplicable statute). Defendant’s conviction and sentence, based
on the elements of a crime for which he was not charged must therefore be reversed.

D.     UJI 14-2221 and UJI 14-2228 Cannot Be Used Interchangeably

{12} On appeal, the State argues that UJI 14-2228 can be used instead of UJI 14-
2221 to instruct the jury on escape from jail, relying on the use note to UJI 14-2228 that
provides, “[t]his instruction is also to be used for escape from jail” as well. UJI 14-2228
use note 1. To the extent that this issue requires interpretation of the statutes
referenced in the Committee Commentary to UJI 14-2228, we apply a de novo review.
State v. Marshall, 

, 

, 

.

{13} While the use note allowing for UJI 14-2228 “to be used for escape from jail”
contains no conditional language, the use note for UJI 14-2221 allows for the use of UJI
14-2228 only if the escape is from a jail release program. UJI 14-2221 use note 1
(emphasis added). The seemingly contradictory language of these two provisions can
be reconciled through a consideration of the Committee Comments to UJI 14-2228,
which provide that an escape from custody is governed by Section 30-22-9 (escape
from the penitentiary) unless the prisoner is released for “one of the specific purposes
set forth in Section 33-2-44 or [NMSA 1978, Section] 33-2-45 [1975].” UJI 14-2228
comm. cmt.; Section 33-2-44 (allowing for release “to work at paid employment in
private business or in public employment, or to attend a school”); Section 33-2-45
(allowing for release to contact prospective employers, attend job or school interviews,
or for “any other reason consistent with pre-parole analysis and parole prediction, the
inmate-release program and the public interest”).

{14} If the release is for a purpose defined in Section 33-2-44 or Section 33-2-45, the
“inmate-release program” requirement is met, and the instruction for escape from an
inmate-release program is to be given. UJI 14-2228 comm. cmt. The committee
commentary to UJI 14-2228 therefore creates a system by which escape from a
penitentiary is the appropriate instruction to be given, unless there are specific facts that
would warrant giving the instruction for escape from an inmate-release program.
{15} Escape from jail under UJI 14-2221 follows a similar structure; an escape from
jail is analyzed according to the essential elements contained in UJI 14-2221, but when
the State can demonstrate the escape was made from a jail-release program, the use
notes to UJI 14-2221 indicate UJI 14-2228 should be used to properly instruct on the
essential elements of escape from a jail-release program. UJI 14-2221 use note 1
(stating that “[i]f the escape is from a jail[-]release program, use UJI 14-2228”).

{16} Reading the relevant statutes, UJIs, and use notes together as a whole, we
conclude that UJI 14-2228 was intended to be used when a prisoner escapes from a
release program initiated in a jail rather than a penitentiary. Inherent in our conclusion is
the distinction between a penitentiary and a jail, which the Legislature found relevant in
creating two separate offenses for escape from jail and escape from a penitentiary, see
State v. Najar, 

, ¶ 6, 

, 

 (stating that with
regard to jail and penitentiary, “the place or constructive place of incarceration depends
on the length of the sentence imposed”), but which the State virtually ignores when
arguing that UJI 14-2228 and 14-2221 can be used interchangeably. It makes little
sense to allow UJI 14-2228 to supplant UJI 14-2221 in cases involving escape from jail
in light of the inapposite elements required by the entirely different statutes. Compare
Section 33-2-46 (escape from an inmate-release program), with Section 30-22-8. Our
interpretation also comports with the plain language of Section 33-2-46, which
criminalizes an escape from an inmate-release program and identifies the components
of an escape from an inmate-release program generally, without specifying whether that
offense must arise from a release program originating in a jail or in a penitentiary.
Section 33-2-46.

{17} Finally, nothing in the record suggests that the circumstances of Defendant’s
alleged “release” rose to the level of an inmate-release program warranting use of UJI
14-2228. The modified version of UJI 14-2228 that was given to the jury in this case
identifies the reason for Defendant’s release as “furlough purposes.” However, furlough
is not one of the “specific purposes” for release authorized by statute, and “specific
reasons for the prisoner’s release” are an essential element for escape from an inmate-release program. UJI 14-2228 comm. cmt. (“Since this is a specific offense . . . the
essential elements include the specific reasons for the prisoner’s release. Unless the
prisoner is released for one of the specific purposes set forth in Section 33-2-44 or
[Section] 33-2-45[,] an escape from custody by the prisoner is governed by . . . [the]
escape from the penitentiary” statute); see Section 33-2-44 (listing work at paid
employment or school attendance as proper purposes); Section 33-2-45 (listing
“contacting prospective employers, attendance at job or school interviews or any other
reason consistent with pre-parole analysis and parole prediction, the inmate-release
program and the public interest”). Because the State did not assert or demonstrate that
Defendant was released pursuant to a designated “release program” during furlough,
there is no evidence to support the district court’s decision to instruct the jury on escape
from jail using UJI 14-2228 in lieu of 14-2221.

II.    Sufficiency of the Evidence
{18} We now turn to Defendant’s argument that the evidence was insufficient to
support his conviction in order to ascertain whether double jeopardy protections are
implicated by retrying Defendant. State v. Dowling, 

, 

, 

 (“If we find that sufficient evidence was presented at trial to support a
conviction, then retrial is not barred.”). Although Defendant’s sufficiency argument
focuses exclusively on the sufficiency of evidence according to UJI 14-2221’s two
elements, we must measure the sufficiency of the evidence against the instructions
given at trial, even where those instructions were erroneous. 1 See Dowling, 2011-
NMSC-016, ¶ 18; see also Rosaire, 

 (“[Appellate courts] . .
.review[] the evidence in light of the defective jury instruction given below[.]”). When
reviewing for sufficiency, we consider “whether substantial evidence of either a direct or
circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt
with respect to every element essential to a conviction.” State v. Comitz, 2019-NMSC-
011, ¶ 16, 

 (internal quotation marks and citation omitted). “Substantial
evidence is relevant evidence that a reasonable mind might accept as adequate to
support a conclusion.” 

 We view “the evidence in the light most favorable to the
[s]tate, resolving all conflicts and indulging all permissible inferences in favor of the
verdict.” State v. Romero, 

, ¶ 51, 

 (internal quotation
marks and citation omitted).

{19} The State presented a certified copy of an order, titled “order revoking probation
(commitment to the penitentiary),” in which the district court revoked Defendant’s
probation, sentenced him to two years and six months incarceration, and granted him
furlough until December 31, 2011. Based on this order, the jury could reasonably
conclude that Defendant was “committed to the Otero County Detention Center for
transport to the New Mexico Department of Corrections” when his probation was
revoked and he was sentenced to a term of incarceration and that Defendant was
“released from lawful custody or confinement for furlough purposes.”2 The State also
submitted the bench warrant issued for Defendant’s arrest after he failed to report to the
Otero County Detention Center on December 31, 2011, and a motion that the State filed
on January 20, 2012, seeking to enforce the probation revocation based on Defendant’s
failure to report as ordered on December 31, 2011. Based on this evidence, the jury
could reasonably conclude that Defendant “failed to return to lawful custody or
confinement within the time fixed” for his return.

{20} During trial, the jury also heard testimony that Defendant had twice been
arrested, once under an alias, Deciderio Nieto, and once based on a mistaken belief


1 Defendant also challenges the propriety of the modifications to UJI 14-2228 that were used in the given
instructions, and challenges whether the facts as alleged by the State are sufficient to constitute escape from jail.
However, we need not address those arguments because such analysis is unnecessary in light of our discussion of
UJI 14-2221 above and because we consider sufficiency in the context of the instructions actually given to the jury.
Dowling, 

.
2 The parties do not dispute that these events took place in Otero County, New Mexico. See UJI 14-2228 (requiring
that events took place in New Mexico); see generally State v. Carrillo, 

, 

(acknowledging that physical locations are proper subject of judicial notice and collecting cases allowing for judicial
notice of geographical locations).
that he was Deciderio Nieto—a misidentification that Defendant later encouraged. 3 The
State submitted, as evidence, an order granting the State’s motion to enforce the
probation revocation sentence, in which the district court noted that as of November
2014, Defendant was incarcerated as Deciderio Nieto in two other cases. From this
evidence, the jury could reasonably infer that Defendant’s use of the alias was intended
to deceive law enforcement and prevent them from returning him to custody, thereby
satisfying the requirement that the jury find Defendant’s failure to return was done
willfully and that Defendant intended not to return within the time fixed. See, e.g., State
v. Nozie, 

, 

, 

 (acknowledging that
“because an individual’s intent is seldom subject to proof by direct evidence, intent may
be proved by circumstantial evidence” (alteration, internal quotation marks, and citation
omitted)); State v. Hutchinson, 

, ¶ 33, 

, 

(“Intent, as an element of a crime, is seldom susceptible of proof by direct evidence, and
it may be inferred from a series of acts, occurrences and circumstances.”). We conclude
that the State presented sufficient evidence that, when taken in the light most favorable
to the State, adequately supports Defendant’s conviction under the instructions given to
the jury.

III.    Pre-indictment Delay Did Not Violate Defendant’s Due Process Rights

{21} We next address Defendant’s argument that pre-indictment delay violated his
right to due process. See State v. Akers, 

, 

, 

 (addressing additional argument because, if meritorious, it would give the
defendant greater relief); State v. Lewis, 

, ¶ 10, 

, 

 (“The Due Process Clause requires dismissal of the charges if it is shown that
the pre[-]indictment delay [violated the defendant’s due process.]”). After Defendant’s
failure to report on December 31, 2011, the State filed a motion on January 20, 2012,
seeking enforcement of the sentence imposed at the revocation hearing. The State took
no further action in the case until October 22, 2014, when it filed an indictment against
Defendant. Defendant argues that although the State possessed the necessary
evidence to bring charges against him for nearly two years, it withheld charges against
him in order to keep him in custody during that time.

{22} In determining whether pre-indictment delay denied a defendant the right to
procedural due process, “we conduct an independent review of the record and the law.”
State v. Palmer, 

, 

, 

 (internal quotation
marks and citation omitted). To establish the denial of due process through pre-indictment delay, the defendant must show “prejudice to his or her defense as a result
of the delay,” and must demonstrate that “the state intentionally caused the delay in
order to gain a tactical advantage.” State v. Fierro, 

, 

 (internal quotation marks and citation omitted).



3 Although Defendant challenges the admissibility of this testimony, we need not address that argument here
because even assuming it was improperly admitted, we include improperly admitted evidence in our analysis of
sufficiency. State v. Cofer, 

, 

, 

.
{23} A defendant claiming error as a result of pre-indictment delay “must be able to
show definite and not speculative prejudice.” Gonzales v. State, 

, ¶ 8,

, 

 (internal quotation marks and citation omitted). Defendant
argues that the pre-indictment delay prejudiced his defense by depriving him of the
possibility of concurrent sentencing. Defendant relies on Zurla v. State, 1990-NMSC-
011, ¶ 23, 

, 

 which identified the “loss of the possibility of
serving concurrent sentences” as an aspect of prejudice in the context of speedy trial.
While Defendant’s reliance on Zurla is not directly on point, the prejudice prong
referenced in Zurla has been applicable to our case law concerning delay. See State v.
Lopez, 

, 

 (discussing delay in sentencing); see, e.g.,
State v. Garcia, 

, ¶ 42, 

 (addressing delay at the appellate
stage of a case). Nevertheless, we are unpersuaded by the application of Zurla to this
case.

{24} Defendant argues that he was prejudiced because “he spent the entire time in
State custody, and lost the possibility of [receiving] concurrent sentences.” Even if a lost
possibility of serving concurrent sentences amounts to prejudice for purposes of a due
process analysis, which we do not decide, Defendant’s argument that he may have
been able to prevail upon the district court to run his sentences concurrently is entirely
speculative, and is therefore insufficient to establish prejudice here. See State v.
Maddox, 

, 

, 

 (rejecting claim of
prejudice in lost opportunity to serve sentences concurrently “because it is speculative
as to how the district court may choose to exercise its discretion in sentencing”),
abrogated on other grounds by State v. Garza, 

, 

, 

.

{25} Because Defendant has failed to demonstrate prejudice to his defense, we need
not proceed to the second prong of the test and consider whether Defendant made a
prima facie showing that the State “knew or should have known delay was working a
tactical disadvantage on [D]efendant.” Gonzales, 

, ¶ 10.

CONCLUSION

{26}   We reverse and remand for proceedings consistent with this opinion.

{27}   IT IS SO ORDERED.

M. MONICA ZAMORA, Chief Judge

WE CONCUR:

JULIE J. VARGAS, Judge

JACQUELINE R. MEDINA, Judge