State v. Vigil

                                                                        Office of the
                                                                            Director           New Mexico
                                                                                               Compilation
                                                                         2021.07.12            Commission
                                                                    '00'06- 10:12:07
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: March 3, 2021

No. A-1-CA-36921

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

FRANK VIGIL, JR.,
a/k/a FRANKIE VIGIL,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
J C Robinson, District Judge

Certiorari Denied, April 22, 2021, No. S-1-SC-38748. Released for Publication July 20,
2021.

Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

YOHALEM, Judge.

{1}      Defendant Frankie Vigil appeals his convictions for (1) use of a telephone “to
terrify, intimidate, threaten, harass, annoy or offend,” in violation of NMSA 1978, Section
30-20-12(A) (1967); and (2) “[b]ribery or intimidation of a witness[,]” in violation of NMSA
1978, Section 30-24-3(A)(2) (1997). Defendant challenges his convictions on three
grounds: (1) the evidence is insufficient to identify him as the perpetrator of either
offense; (2) his conviction of both offenses, allegedly for the same conduct, violates the
Double Jeopardy Clause of the United States Constitution; and (3) his due process
rights were violated by a delayed appeal. Unpersuaded, we affirm.

BACKGROUND

{2}    The following evidence was presented during Defendant’s trial pursuant to a
criminal information filed on April 19, 2017, charging Defendant with “[u]se of a
telephone to terrify, intimidate, threaten, harass, annoy or offend,” in violation of Section
30-20-12(A); and “[b]ribery or intimidation of a witness[,]” in violation of Section 30-24-
3(A)(2). Defendant and Victim are married, and have two children together. They
married in 2009, and have been separated since 2010.

{3}    Victim testified that Defendant broke the windshield of her car on December 1,
2016. Victim reported the incident to the police. The police came to Victim’s house to
investigate the broken windshield. Right after the police left, Victim received two
voicemails.

{4}     In the first voicemail, the caller tells Victim, “I’ve been at your house, and I’m still
here,” calls Victim a “rat bitch[,]” and threatens to kill her for ratting him out. Then, in the
second voicemail, the caller tells Victim, “I’ll get to you before they get to me
. . . because you are done you . . . nasty ass[.]” At trial, Victim identified Defendant as
the caller. Victim testified that she knew the caller was Defendant because she
recognized his voice; she recognized Defendant’s cell phone number on the voicemails;
the caller said he was directly outside her house; and the threats were made the same
day Defendant broke her windshield, just after the police left her house. Victim also
testified that Defendant was one of the few people who knew where she lived.

{5}    Defendant was prosecuted in the Silver City Magistrate Court for domestic
violence related to breaking Victim’s windshield. That case was set for trial on January
31, 2017, and Victim was subpoenaed as a witness. The day before Defendant’s trial,
on January 30, 2017, Victim received a telephone call from a blocked number. Victim
stated she knew the caller was Defendant because she recognized his voice, and
because she had been subpoenaed to testify at his trial the next day. The caller told
Victim that if she showed up to court the next day, he was going to hurt her. The caller
also told Victim that she knew he would beat the charge anyway, even if she testified
against him.

{6}    Despite the phone call, Victim appeared at magistrate court to testify at
Defendant’s trial on January 31, 2017. Victim stated she was scared to testify against
Defendant, but the subpoena said she could be prosecuted if she did not show up, so
she went to court despite being afraid. After arriving at magistrate court, Victim told
Sergeant Arthur Rascon, of the Silver City Police Department, about the call she
received on January 30, 2017, and about the voicemails she received on December 1,
2016. Victim played the voicemails for Sergeant Rascon, who recorded them on his
body cam. These voicemails were played at trial over Defendant’s objection as to lack
of authenticity and foundation.

{7}      At the close of the State’s case, a jury convicted Defendant of use of a telephone
to terrify, intimidate, threaten, harass, annoy or offend[,]” pursuant to Section 30-20-
12(A), occurring on or about December 1, 2016, through January 30, 2017, and
“[b]ribery or intimidation of a witness[,]” pursuant to Section 30-24-3(A)(2), occurring on
or about December 1, 2016, through January 30, 2017. This appeal followed.

DISCUSSION

I.      The Evidence Identifying Defendant as the Caller Is Sufficient to Support
        Defendant’s Convictions

{8}    Defendant challenges each of his convictions, claiming that the State failed to
prove beyond a reasonable doubt that Defendant was the person who telephoned
Victim on December 1, 2016, leaving two voicemail messages on her cell phone, and
who called and spoke to Victim on January 30, 2017.1 Because admissibility of the
telephone calls is not contested on appeal, we review the sufficiency of the evidence to
support the jury’s decision.

{9}    “The test for sufficiency of the evidence is 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. Montoya, 2015-
NMSC-010, ¶ 52, 

 (internal quotation marks and citation omitted).
“Substantial evidence means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” State v. Storey, 

,

 (alterations, internal quotation marks, and citation omitted). We “view the
evidence in the light most favorable to the state, resolving all conflicts therein and
indulging all permissible inferences therefrom in favor of the verdict.” 

 (internal
quotation marks and citation omitted). Next, we determine “whether the evidence,
viewed in this manner, could justify a finding by any rational trier of fact that each
element of the crime charged has been established beyond a reasonable doubt.” 

(internal quotation marks and citation omitted). “[W]e do not weigh the evidence or
substitute our judgment for that of the fact finder so long as there is sufficient evidence
to support the verdict. Montoya, 

 (alterations, internal quotation
marks, and citation omitted).

{10} “Jury instructions become the law of the case against which the sufficiency of
the evidence is to be measured.” State v. Garcia, 

, 384 P.3d


1Defendant objected to the admission of the telephone recording on the grounds of lack of foundation
and authentication. See Rule 11-901(A) NMRA (to authenticate a document the proponent of the
evidence shall “produce evidence sufficient to support a finding that the item is what the proponent claims
it is”). However, Defendant does not challenge on appeal the district court’s decision allowing the
recording to be played for the jury, nor does he claim on appeal that Victim’s testimony was improperly
admitted into evidence. Therefore, we limit our analysis accordingly.
1076 (alteration, internal quotation marks, and citation omitted). The instruction given
the jury on the elements of use of a telephone to “terrify, intimidate, threaten, harass,
annoy or offend” required the State to prove beyond a reasonable doubt:

       1.     [D]efendant telephoned [Victim] to threaten her with physical harm;

       2.     [D]efendant intended to terrify, intimidate, threaten, harass, annoy
              or offend [Victim]; [and]

       3.     This happened in New Mexico on or about December 1,
              2016[,]through January 30, 2017.

{11} The jury was instructed that to convict Defendant of “[b]ribery or intimidation of a
witness” the State had to prove beyond a reasonable doubt:

       1.     [Victim] was a witness in a judicial proceeding;

       2.     [D]efendant knowingly intimidated or threatened [Victim] for the
              purpose of causing [Victim] to abstain from testifying in the judicial
              proceeding; [and]

       3.     This happened in New Mexico on or about December 1, 2016[,]
              through January 30, 2017.

{12} The primary evidence at trial identifying Defendant as the person who called
Victim on December 1, 2016, and January 30, 2017, was the testimony of Victim. Victim
testified that she was confident that the caller on both December 1, 2016, and January
30, 2017, who left the voicemail messages and who she spoke to on a relative’s phone,
was Defendant. She reported being familiar with Defendant’s voice from the many years
they had been married. As to the December 1, 2016, voicemails, Victim testified that, in
addition to recognizing Defendant’s voice, she recognized the telephone number as
Defendant’s cell phone number.

{13} Victim also testified to the circumstances surrounding the December 1, 2016,
voicemails. She testified that Defendant had appeared at her home on the afternoon of
December 1, 2016. An altercation occurred, and Defendant broke the windshield on her
car. Victim testified that she called the police, who came to her house that same
afternoon to investigate the broken windshield, and once police left she received a call
from a number she recognized as Defendant’s cell phone number. When she did not
answer, Defendant left a voicemail, and then called back and left a second voicemail.
The voicemails stated that the caller was near Victim’s house, and accused Victim of
“ratting [him] out.” Victim’s description of the content of the voicemails was confirmed by
the bodycam recording made by Sergeant Rascon from Victim’s cell phone. Although
the recording was not completely clear, the tone of the call and enough of the content to
confirm Victim’s testimony was audible. The content of the call was consistent with
Victim’s testimony that Defendant had been at her home when he broke her windshield,
and was likely nearby watching the police arrive and then leave.
{14} Victim’s familiarity with Defendant’s voice far exceeded the familiarity from just a
few previous phone calls that we have found sufficient to identify a voice. See State v.
Padilla, 

, ¶ 5, 

, 

 (stating a “witness need not
be an expert in voice identification to testify as to the identity of the defendant[,]” the
witness needs only “some basis for comparison of the accused’s voice with the voice
which he or she identifies as the accused’s” (internal quotation marks and citation
omitted)); see also State v. Romero, 

, ¶ 43, 

 (citing with
approval federal cases finding identification of the caller sufficient where the witness
heard a caller’s voice only two or three times before making an identification). Victim
corroborated her voice identification of Defendant, both identifying Defendant’s cell
phone number, and describing the content of the calls as consistent with events
involving Defendant, which occurred just before Defendant’s calls. See Romero, 2019-
NMSC-007, ¶ 43 (relying on voice identification together with circumstantial evidence of
the defendant’s identity). We therefore hold that the evidence was sufficient to identify
Defendant as the person who left the December 1, 2016, voicemails on Victim’s cell
phone.

{15} With regard to the January 30, 2017, phone call, Victim again testified that she
was familiar with Defendant’s voice and recognized the voice on the phone as
Defendant’s even though he was calling from a blocked number. Victim testified that the
caller threatened to harm her if she testified the next day. Victim was not aware of
anyone other than Defendant who knew she had been subpoenaed to testify the next
day, or who would have an interest in preventing her from testifying. See State v.
Roybal, 

, ¶ 13, 

, 

 (“The caller’s message
itself during the telephone conversation may provide evidence of the caller’s identity.”),
overruled on other grounds by State v. Tollardo, 

, ¶ 37 n.6, 

. The identification of Defendant’s voice by a witness who was familiar with that
voice, and the content of the call; which indicated that the caller was aware that Victim
was scheduled to testify the next day, and that the caller had an interest in her not
testifying, together are sufficient to support the jury’s conclusion that Defendant was the
caller. We therefore hold that the evidence was sufficient to identify Defendant as the
person who made all three telephone calls at issue.

II.    Because Defendant’s Conduct Was Not Unitary, There Was No Double
       Jeopardy Violation

{16} Defendant contends that his separate convictions for use of a telephone to
“terrify, intimidate, threaten, harass, annoy or offend,” contrary to Section 30-20-12(A),
and “[b]ribery or intimidation of a witness,” contrary to Section 30-24-3(A)(2), violate the
Double Jeopardy Clause of the Fifth Amendment of the United States Constitution
because they result in multiple punishments for the same conduct. We disagree.

{17} “A double jeopardy challenge presents a question of constitutional law, which we
review de novo.” State v. Torres, 

, 

. The double
jeopardy clause of the Fifth Amendment of the United States Constitution, made
applicable to the states by the Fourteenth Amendment, “protects against multiple
punishments for the same offense.” Swafford v. State, 

, ¶ 6, 

, 

. Defendant does not argue that the New Mexico Constitution affords
greater rights than the Fifth Amendment, so we review Defendant’s claim only pursuant
to the federal right. See State v. Sena, 

, 

 (reviewing
double jeopardy claims only pursuant to the Fifth Amendment when the defendant does
not argue that the New Mexico Constitution affords greater protections than the United
States Constitution). There are two types of multiple punishment cases: (1) a unit-ofprosecution claim, where an individual is convicted for multiple violations under the
same statute for a single course of conduct; and (2) a double-description claim, where
an individual is convicted for violating different statutes for a single course of conduct.

{18} Defendant claims that he engaged in a single course of conduct, beginning with
his two December 1, 2016 voicemails, and continuing with his January 30, 2017
telephone call, and that his conviction under both Section 30-20-12(A), and Section 30-
24-3(A)(2) for this single course of conduct violates his Fifth Amendment protection
against double jeopardy. This is therefore a double-description case. Double-description
claims are subject to a two-part analysis. Swafford, 

, ¶ 25. We first
determine whether the conduct is “unitary”; conduct is “unitary” if the same conduct
violates both statutes. 

 Only if the conduct is unitary do we then proceed to the
second part of the test. Sena, 

. The second part focuses on
“whether the [L]egislature intended to create separately punishable offenses.” 

(internal quotation marks and citation omitted). “[O]nly when (1) the conduct is unitary
and (2) it is determined that the Legislature did not intend multiple punishments” do we
hold that double jeopardy protects against multiple punishments. 

{19} During the pendency of this appeal, our Supreme Court clarified the analysis
applied to determine whether conduct is unitary. See id. ¶ 42. At issue in Sena was the
proper application of the Foster presumption. Sena, 

 In State v. Foster,
our Supreme Court held that, in determining whether the conduct prohibited by two
statutes is unitary, we must first examine how the jury was instructed on each offense to
determine whether the jury could have relied on the same conduct to convict of both
offenses. 

, 

, 

, abrogated on other
grounds by Kersey v. Hatch, 

, 

, 

. Our
Supreme Court held that, in performing this analysis, “we must presume that a
conviction under a general verdict requires reversal if the jury is instructed on an
alternative basis for the conviction that would result in double jeopardy, and the record
does not disclose whether the jury relied on this legally inadequate alternative.” 

 The
Foster presumption, therefore, requires that we begin our analysis of whether
Defendant’s conduct was unitary by examining the jury instructions, and where the jury
is offered alternative bases for conviction, we must presume that the jury relied on the
alternative that leads to a double jeopardy violation. See Sena, 

, ¶¶ 54-
55.

{20} The jury instructions for use of a telephone to terrify, intimidate, threaten, harass,
annoy or offend given in this case required the State to prove, in relevant part, that: (1)
“[Defendant] telephoned [Victim] to threaten her with physical harm”; (2) “[Defendant]
intended to terrify, intimidate, threaten, harass, annoy or offend [Victim]”; and (3) “This
happened . . . on or about December 1, 2016 through January 30, 2017.” (Emphasis
added.) The jury instructions for bribery or intimidation of a witness required the State to
prove, in relevant part, that: (1) “[D]efendant knowingly intimidated or threatened
[Victim] for the purpose of causing [Victim] to abstain from testifying in the judicial
proceeding”; and (2) “This happened . . . on or about December 1, 2016 through
January 30, 2017.” (Emphasis added.) The Foster presumption requires us to presume
that the jury convicted Defendant for use of a telephone to threaten Victim based on
finding that Defendant intended to “intimidate or threaten” Victim because intimidating or
threatening a victim are the bases for conviction which the two offenses have in
common, and are therefore most likely to result in a double jeopardy violation. See
Sena, 

 (applying the Foster presumption by assuming the jury
relied on the alternative common to the offenses).

{21} The next step in determining whether a defendant’s conduct was unitary is to
evaluate whether the jury relied on the same conduct in convicting a defendant of each
crime. Our Supreme Court clarified in Sena that “Foster does not require a further
presumption that the same conduct was then relied upon by the jury in convicting [the
d]efendant of each crime[.]” Sena, 

. Rather, assuming under
Foster that the same alternative was relied on by the jury (here the alternative of intent
to threaten or intimidate), we then must determine whether the jury reasonably could
have based each of a defendant’s convictions on separate conduct. See Sena, 2020-
NMSC-011, ¶ 54. If there were two events separated by time or space, or events
separated by other indicia of distinctness, the Foster presumption is rebutted. Evidence
that one crime was completed before the other occurred conclusively rebuts the Foster
presumption and establishes that the conduct on which the convictions were based is
not unitary. See Sena, 

 (holding that the Foster presumption
was rebutted when the evidence supported that the defendant committed three
separate and distinct crimes, each completed before another began, even though the
crimes occurred close in time and location); State v. DeGraff, 

,

, 

 (holding that when considering whether conduct is unitary,
“we have looked for an identifiable point at which one of the charged crimes had been
completed and the other not yet committed”).

{22} In this case, the jury reasonably could have found an independent factual basis
for each offense. The threatening phone calls that formed the basis of the convictions
occurred almost two months apart. See Swafford, 

, ¶ 28 (holding that
“[i]f two events are sufficiently separated by . . . time . . . then it is a fairly simple task to
distinguish the acts”). Defendant’s conduct in using a telephone to leave two voicemails
on December 1, 2016, threatening to harm Victim was alone sufficient to convict
Defendant of use of a telephone to intimidate or threaten Victim, contrary to Section 30-
20-12(A). His conduct on January 30, 2017, in phoning Victim, a witness in a judicial
proceeding, to intimidate or threaten her for the purpose of causing her to abstain from
testifying, is alone sufficient to convict Defendant of bribery or intimidation of a witness,
contrary to Section 30-24-3(A)(2).
{23} Having concluded that Defendant’s conduct in committing the crime of using a
telephone to intimidate or threaten, and his conduct in intimidating or threatening Victim
for the purpose of causing her to abstain from testifying in a judicial proceeding was not
unitary, there was no double jeopardy violation. See Sena, 

(holding that where a defendant’s conduct in committing two crimes is not unitary, “there
[is] no double jeopardy violation.”).

III.   Defendant’s Due Process Rights Were Not Violated Based on Appellate
       Delay

{24} Defendant next argues, relying on State v. Franklin, 

, 

, 

, and State v. Boyer, 

, 

, 

,
that his due process rights were violated by his delayed appeal. We disagree.

{25} “[D]ue process protects a criminal defendant against inordinate delay in direct
appeal proceedings.” State v. Garcia, 

, ¶ 40, 

. Not every
delay, however, violates due process. Id. ¶ 41. In the context of a delayed appeal, due
process rights are evaluated based on notions of “fairness and prejudice.” Id. ¶ 44.

{26} Evaluating whether an appellate delay violates due process requires a two-step
process. See id. ¶ 46. First, we “evaluate the impact of the appeal period on the
appellant.” (internal quotation marks and citation omitted). Specifically, we evaluate
whether the impact of the delayed appeal has been prejudicial. Id. Only if the impact
has been prejudicial do we then proceed to the second step: “whether the relationship
between (a) the nature and severity of the prejudice and (b) the government’s alleged
responsibility for it by delaying the appeal, warrants dismissal of the information or
indictment under the Fifth Amendment.” Id. (internal quotation marks and citation
omitted).

{27} In determining the prejudicial impact of the delay on appellant, we focus on two
types of prejudice: “(1) prejudice to a defendant’s ability to assert his or her arguments
on appeal, and (2) prejudice to a defendant’s right to defend him or herself in the event
of retrial or resentencing.” Id. Defendant concedes that neither of these types of
prejudice applies. Defendant solely argues that if successful in his assertion of his
arguments on appeal, he will have unnecessarily languished in prison because of the
appellate delay. Defendant, however, fails to explain how this impacts his ability to
assert his arguments on appeal, or at retrial or resentencing, the type of prejudicial
impact cognizable under the Fifth Amendment. In any event, Defendant’s arguments on
appeal were not successful, and thus, Defendant has failed to point to any possible
prejudice. Therefore, we hold that his due process rights were not violated.

CONCLUSION

{28}   We affirm.

{29}   IT IS SO ORDERED.
JANE B. YOHALEM, Judge

WE CONCUR:

JACQUELINE R. MEDINA, Judge

BRIANA H. ZAMORA, Judge