IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ________________
Filing Date: February 17, 2014
Docket No. 31,975 & 32,546 (Consolidated)
STATE OF NEW MEXICO,
Plaintiff-Appellant/Cross-Appellee,
v.
JESUS OSCAR DOMINGUEZ,
Defendant-Appellee/Cross-Appellant,
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge
Gary K. King, Attorney General
Yvonne M. Chicoine, Assistant Attorney General
Santa Fe, NM
for Appellant/Cross-Appellee
Jorge A. Alvarado, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Appellee/Cross-Appellant
OPINION
FRY, Judge.
{1} In this case, both Defendant and the State appeal following Defendant’s convictions
for kidnapping and second-degree criminal sexual penetration (CSP II). Defendant argues
that his convictions for kidnapping and CSP II violate double jeopardy, that the State
presented insufficient evidence for either conviction, and that the prosecutor committed
prosecutorial misconduct. Conversely, the State argues that the district court erred when it
modified Defendant’s conviction for first-degree kidnapping to second-degree kidnapping
because the jury was not given a special verdict form asking them to find whether Defendant
1
committed a sexual offense against Victim. Finding none of Defendant’s contentions
meritorious, we affirm his convictions. However, we conclude that the district court erred
in modifying Defendant’s conviction and remand to reinstate Defendant’s conviction for
first-degree kidnapping.
BACKGROUND
{2} Victim was home alone asleep with her young daughter when she was awoken by the
sound of knocking and noticed a man outside her bedroom window. Victim went to the front
door to see who was there and was confronted by Defendant, who asked whether her father-
in-law or her husband were home. After Victim told him that neither was home, Defendant
asked if she had a gas can he could borrow because he had run out of gas. Defendant waited
at the front door while Victim went to look for the gas can. When Victim told Defendant
that she did not have one, Defendant then asked if he could use her restroom. Victim
testified that although she did not know Defendant, she allowed him into the home because
she thought Defendant knew her father-in-law.
{3} Defendant entered Victim’s home and went to the bathroom. When Defendant
emerged from the bathroom, he pulled a gun from the pocket of his hooded sweatshirt.
Defendant put the gun to Victim’s head and told her he planned to rape her. Defendant
further threatened to kill Victim’s daughter if she did not comply. Defendant, however,
agreed to Victim’s requests that he wear a condom and not rape her in the living room
because it was adjacent to the room where her daughter was sleeping. While holding the gun
to Victim’s head, Defendant then followed Victim to the kitchen, where she retrieved a
condom, and to a second bedroom, where he vaginally raped Victim.
DISCUSSION
{4} We begin our analysis with Defendant’s contention that his convictions for
kidnapping and CSP II violate double jeopardy. Due to the similarity between Defendant’s
double jeopardy argument and his argument that there is insufficient evidence to support his
kidnapping conviction, our resolution of Defendant’s double jeopardy argument is largely
determinative of his insufficiency of the evidence argument. Indeed, in the context of
combined kidnapping and sexual offense convictions, these two areas of law have generated
considerable analytical overlap in our case law. See, e.g., State v. Allen, 2000-NMSC-002,
¶¶ 62, 67, 128 N.M. 482, 994 P.2d 728 (incorporating double jeopardy principles into
analysis of whether there was sufficient evidence to convict the defendant of kidnapping
where the defendant argued that the force used in the kidnapping was the same force used
in the attempted CSP). We therefore consider these contentions together.
I. Double Jeopardy and the Independent Factual Basis to Support Defendant’s
Conviction for Kidnapping
2
A. Double Jeopardy
{5} The State charged Defendant with CSP II on the basis of his use of a gun during the
CSP. See NMSA 1978, § 30-9-11(E)(6) (2009) (stating that CSP II includes CSP
perpetrated “when the perpetrator is armed with a deadly weapon”). The State also charged
Defendant with kidnapping, and the jury was instructed that the elements of kidnapping were
Defendant’s taking, restraint, confinement, or transportation of Victim “by force,
intimidation[,] or deception” and Defendant’s intending to “hold [Victim] against [her] will
to inflict a sexual offense on [her].” Because CSP II by definition includes “some force or
restraint,” State v. Crain, 1997-NMCA-101, ¶ 21, 124 N.M. 84, 946 P.2d 1095, Defendant
argues that the force or restraint associated with the CSP II is the same force or restraint
associated with kidnapping. Thus, he contends that his right to be free from double jeopardy
was violated when he was sentenced for both crimes.
{6} “The Fifth Amendment of the United States Constitution prohibits double jeopardy
and is made applicable to New Mexico by the Fourteenth Amendment.” State v. Swick,
2012-NMSC-018, ¶ 10, 279 P.3d 747. This is a constitutional question of law that we
review de novo. Id.
{7} The double jeopardy clause provides three separate constitutional protections. It
provides protection from (1) “a second prosecution for the same offense after acquittal[,]”
(2) “a second prosecution for the same offense after conviction[,]” and (3) “multiple
punishments for the same offense.” State v. Montoya, 2011-NMCA-074, ¶ 29, 150 N.M.
415, 259 P.3d 820 (internal quotation marks and citation omitted). Within the multiple
punishment context—which is the analysis we are concerned with in this case—there are two
types of cases: (1) “unit-of-prosecution” cases, where the defendant has been convicted of
multiple violations of the same statute; and (2) “double-description” cases, where the
defendant has been convicted of violations of multiple statutes for the same conduct. Swick,
2012-NMSC-018, ¶ 10. Because Defendant argues that his convictions arise from the same
conduct but under different statutes, this is a double-description case. We analyze double-
description cases under the two-part test set forth in Swafford v. State, 1991-NMSC-043, 112
N.M. 3, 810 P.2d 1223. Under Swafford, we first consider whether the conduct underlying
the two convictions was unitary. Only if we conclude that the conduct was unitary do we
then consider whether the Legislature intended to punish the two crimes separately. Swick,
2012-NMSC-018, ¶ 11.
{8} “Conduct is not unitary if sufficient indicia of distinctness separate the transaction
into several acts.” Montoya, 2011-NMCA-074, ¶ 31 (internal quotation marks omitted).
“Distinctness” can be established by “looking to the quality and nature of the acts, the
objects and results involved, and the defendant’s mens rea and goals during each act.” State
v. Saiz, 2008-NMSC-048, ¶ 30, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds
by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.
{9} Relying on this Court’s decision in Montoya, Defendant argues that the conduct
3
supporting both convictions was unitary because the jury may have relied upon the fact that
Defendant used the same type of force—the gun—as the basis for both convictions.
Montoya, 2011-NMCA-074, ¶ 37 (“[U]nitary conduct occurs when the state bases its theory
of kidnap[p]ing on the same force used to commit CSP II . . . even though there were
alternative ways to charge the crime.”) In Montoya, the jury was given a general kidnapping
instruction, although two factual bases—one in violation of the defendant’s double jeopardy
rights—supported the conviction. Id. ¶¶ 38-39. We presumed the defendant’s conduct was
unitary because we were unable to determine from the record which of the alternative basis
for the defendant’s kidnapping charge was found by the jury to support the conviction. Id.
¶ 39; see State v. Foster, 1999-NMSC-007, ¶ 2, 126 N.M. 646, 974 P.2d 140 (“Under these
circumstances, we must reverse a conviction if one of the alternative bases for the conviction
provided in the jury instructions is legally inadequate because it violates a defendant’s
constitutional right to be free from double jeopardy.”), abrogated on other grounds by
Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. In analogizing to
Montoya, Defendant argues that because we are unable to determine whether his kidnapping
conviction rested on his use of the gun to restrain Victim or on his deceptive conduct in
entering her home, we must presume that the jury relied on a legally inadequate basis—the
gun—for both the kidnapping and CSP II.
{10} Regardless of which alternative the jury relied on, we conclude that Defendant’s
conduct was not unitary because either alternative—kidnapping by deception or by
force—was factually distinct from the conduct supporting the CSP II conviction. See State
v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (“The proper analytical
framework [for determining unitary conduct] is whether the facts presented at trial establish
that the jury reasonably could have inferred independent factual bases for the charged
offenses.” (internal quotation marks and citation omitted)). The crime of kidnapping is
complete when the defendant, with the requisite intent, restrains the victim, even though the
restraint continues through the commission of a separate crime. State v. McGuire, 1990-
NMSC-067, ¶ 10, 110 N.M. 304, 795 P.2d 996 (“Once [the] defendant restrained the victim
with the requisite intent to hold her for service against her will, he had committed the crime
of kidnapping, although the kidnapping continued throughout the course of [the] defendant’s
other crimes[.]”). “[T]he key to finding the restraint element in kidnapping, separate from
that involved in criminal sexual penetration, is to determine the point at which the physical
association between the defendant and the victim was no longer voluntary.” State v. Jacobs,
2000-NMSC-026, ¶ 24, 129 N.M. 448, 10 P.3d 127. Even assuming the factual basis for
Defendant’s kidnapping conviction was the use of the gun, the kidnapping was complete,
and therefore factually distinct, when Defendant, stating his intention to rape Victim, pulled
the gun from his clothing. See id. ¶ 25 (holding that crimes of kidnapping and attempted
CSP were factually distinct where “the . . . kidnapping was complete before . . . the act of
attempted criminal sexual penetration”); Montoya, 2011-NMCA-074, ¶ 31 (“Sufficient
indicia of distinctness exist when one crime is completed before another[.]” (internal
quotation marks and citation omitted)). At this point, the association between Defendant and
Victim was no longer voluntary, and it was not until Defendant moved Victim to the back
bedroom that he used the gun to restrain her during the CSP. That Defendant used the same
4
type of force to restrain Victim during the kidnapping and during the CSP does not create
unitary conduct out of the independent and factually distinct bases for these crimes. See
Allen, 2000-NMSC-002, ¶ 70 (“[I]f there was a basis for the jury to find factually distinct
bases for kidnapping [and] attempted CSP, . . . then the conduct is considered non-unitary.”).
{11} Because we conclude that Defendant’s conduct was not unitary, we do not proceed
to the second part of the Swafford analysis. Being non-unitary, Defendant’s convictions do
not violate double jeopardy.
B. Sufficiency of the Evidence for Kidnapping
{12} For these same reasons, we reject Defendant’s contention that the force used to
convict Defendant of kidnapping was incidental to the CSP II. See State v. Trujillo, 2012-
NMCA-112, ¶ 39, 289 P.3d 238 (concluding that evidence of a restraint incidental to an
aggravated battery was insufficient to support a conviction for kidnapping), cert. granted,
2012-NMCERT-011, 297 P.3d 1227. We emphasize that it is not the same type of force that
is material to the determination of whether the restraint supporting the kidnapping conviction
was incidental to the separate crime. Instead, we must determine whether the force used
during the other crime, in this case CSP II, is the only evidence of force supporting both the
kidnapping conviction and the separate offense. Montoya, 2011-NMCA-074, ¶ 38
(“[B]ecause some force or restraint is involved in every sexual penetration without consent,
kidnap[p]ing cannot be charged out of every CSP without a showing of force or restraint
separate from the CSP.”); State v. Pisio, 1994-NMCA-152, ¶ 38, 119 N.M. 252, 889 P.2d
860 (“[F]orce or coercion exerted prior to the [sexual offense] itself will support a conviction
for kidnapping[.]”). As we concluded above, there was evidence of independent uses of
force and intimidation before the CSP that supported Defendant’s kidnapping conviction.
See Allen, 2000-NMSC-002, ¶ 67 (“When there is evidence that the perpetrator forcibly
abducted the victim before attempting sexual penetration or continued to use force or
restraint after the sex act was completed, . . . we have rejected the proposition that the
kidnapping is indistinguishable from the sex offense.”). Under no reading of Trujillo would
Defendant’s force and intimidation in effectuating the initial restraint supporting the
kidnapping conviction be considered “merely incidental” to the CSP II as a matter of law,
see 2012-NMCA-112, ¶ 6, nor was it the type of force “necessarily involved” in every CSP.
Id. ¶ 21; see State v. Corneau, 1989-NMCA-040, ¶ 11, 109 N.M. 81, 781 P.2d 1159
(concluding that “[e]vidence exist[ed] in the record to support a finding by the jury that the
underlying felony of false imprisonment was separate and apart from any false imprisonment
necessarily involved in almost every act of CSP”). We thus conclude that there was
sufficient evidence of force and intimidation, independent of the force used during the CSP,
to support Defendant’s kidnapping conviction.
II. Modification of Defendant’s Conviction
{13} The uniform jury instructions necessary to convict a defendant of first-degree
kidnapping are split into two instructions. See UJI 14-403 NMRA Use Note 1 (stating that
5
where first-degree kidnapping is in issue, UJI 14-6018 NMRA must also be given). UJI 14-
403 contains the essential elements of the offense, while UJI 14-6018 contains specific
interrogatories asking whether the jury finds that the defendant did not voluntarily free the
victim or whether the defendant inflicted physical harm or committed a sexual offense upon
the victim. If the jury answers any of these questions in the affirmative—assuming it also
found the essential elements were met—the defendant is guilty of first degree kidnapping.
See UJI 14-6018 Use Note 1 (“The defendant may be found guilty of first degree kidnapping
if the jury answers any or all of the above questions, ‘yes.’ If none of the questions is
answered ‘yes,’ the defendant is guilty of second degree kidnapping.”).
{14} Following Defendant’s convictions for CSP II and kidnapping, the district court
initially orally sentenced Defendant to eighteen years for first-degree kidnapping. See
NMSA 1978, § 31-18-15(A)(3) (2007) (providing for eighteen-year sentences for first-
degree felonies). Defendant refused to approve the judgment and sentencing order and
instead filed a motion to quash the sentence. Defendant argued that because the jury had not
been given the kidnapping special verdict form, the kidnapping jury instruction submitted
to the jury was only sufficient to convict him of second-degree kidnapping. See UJI 14-403
(kidnapping essential elements jury instruction); UJI 14-6018 (special verdict form for
kidnapping). The district court ultimately agreed with Defendant and concluded that the
special verdict form is mandatory in all first-degree kidnapping cases. State v. Gallegos,
2009-NMSC-017, ¶¶ 17-18, 146 N.M. 88, 206 P.3d 993. The court therefore reduced
Defendant’s conviction to second-degree kidnapping because the jury did not find, pursuant
to the special verdict form, that Defendant committed a sexual offense against Victim.
{15} On appeal, the State’s argument is two-fold. First, the State argues that to the extent
the special verdict form required the jury to find that Defendant committed a sexual offense
against Victim in order to convict him of first-degree kidnapping, the special verdict form
is in conflict with our kidnapping statute. Second, the State argues that because the jury
independently found Defendant guilty of CSP II, they had necessarily found the facts needed
to convict Defendant of first-degree kidnapping regardless of the omission of the special
verdict form. We agree with the State’s second contention that it was error for the district
court to modify Defendant’s conviction because the jury specifically found that Defendant
committed a sexual offense against Victim. We therefore reverse the district court’s
modification of Defendant’s sentence.
{16} Our kidnapping statute defines kidnapping as “the unlawful taking, restraining,
transporting or confining of a person, by force, intimidation or deception, with intent . . . to
inflict . . . a sexual offense on the victim.” NMSA 1978, § 30-4-1(A)(4) (2003). Subsection
B states that “[w]hoever commits kidnapping is guilty of a first[-] degree felony, except that
he is guilty of a second[-]degree felony when he . . . does not inflict . . . a sexual offense
upon the victim.” Section 30-4-1(B). The kidnapping essential elements uniform jury
instruction substantially tracks the elements that the kidnapping statute defines as a first-
degree kidnapping. See UJI 14-403. Thus, it would appear that where the jury in this case
found that Defendant restrained Victim by force or deception with the intent to inflict a
6
sexual offense upon her, Defendant was found guilty of first-degree kidnapping. It would
also stand to reason, based on our kidnapping statute as written, that only if the jury found
that Defendant did not actually commit the intended sexual offense could his offense
constitute second-degree kidnapping.1
{17} Nevertheless, we must take into account the UJI use notes and recent statements by
our Supreme Court. UJI 14-403 requires that UJI 14-6018 also be given where first-degree
kidnapping is in issue. UJI 14-403 (stating in Use Note 1 that “[i]f first[-]degree kidnapping
is an issue, Instruction 14-6018 NMRA is also given); State v. Barber, 2004-NMSC-019, ¶
10 n.1, 135 N.M. 621, 92 P.3d 633 (recognizing that use notes are binding authority).
Similarly, Use Note 1 of 14-6018 requires the instruction to “be used if there is an issue . .
. as to whether the defendant committed a sexual offense upon the victim.” The committee
commentary to UJI 14-403, which, unlike use notes, are not binding authority, further states
that “[t]his instruction is for the crime of second[-]degree felony kidnapping where the
victim is freed without great bodily harm having been inflicted.”2 See Barber, 2004-NMSC-
019, ¶ 10 n.1 (stating that committee commentaries are not binding authority). Our Supreme
Court has relied on this language, albeit in dicta, to conclude that the elements in UJI 14-403
only “establish the offense of second-degree kidnapping.” Gallegos, 2009-NMSC-017, ¶
13; see UJI 14-6018 Use Note 1 (stating that if the jury answers no to the question of
whether the defendant committed a sexual offense upon the victim, in addition to other
interrogatories, “the defendant is guilty of second[-] degree kidnapping”). Given that use
notes constitute binding authority and that our Supreme Court has indicated that a conviction
under the elements of UJI 14-403 only establishes a second-degree kidnapping, we
understand the district court’s reluctance to adjudicate Defendant guilty of first-degree
kidnapping in the absence of specific findings by the jury that Defendant committed a sexual
offense against Victim pursuant to the special verdict form. See UJI 14-6018.
{18} While we understand the importance of providing mandatory uniform jury
instructions, see UJI-Criminal, General Use Note (stating that “[w]hen a uniform instruction
is provided for the elements of a crime, a defense or a general explanatory instruction on
evidence or trial procedure, the uniform instruction must be used without substantive
modification or substitution”), we cannot conclude that failure to give a mandatory
instruction automatically results in reversal or modification of an otherwise valid conviction.
Indeed, our Supreme Court has recognized before that the failure to give a jury instruction,
described as mandatory by the use note, does not automatically require reversal. State v.
1
More specifically, the jury would have to find that Defendant did not release Victim
in a safe place and did not commit the sexual offense or otherwise physically harm Victim.
Section 30-4-1(B).
2
Arguably, the committee commentary is intended to mean that where the victim was
freed without great bodily harm having been inflicted, this instruction should serve as the
jury instruction for second-degree kidnapping.
7
Doe, 1983-NMSC-096, ¶ 10, 100 N.M. 481, 672 P.2d 654 (“We hold that the failure to give
[the jury instruction] does not automatically require reversal solely because the [u]se [n]ote
provides that it must be given[.]”). Instead, it is the failure to give a mandatory instruction
on the law essential for a conviction that constitutes reversible error. See id. ¶ 6; State v.
Otto, 1982-NMCA-149, ¶ 6, 98 N.M. 734, 652 P.2d 756. In these circumstances, we look
to the jury instructions as a whole to determine whether the jury was properly instructed on
the elements of the crime. See Doe, 1983-NMSC-096, ¶ 10.
{19} As we discussed above, in order to convict Defendant of kidnapping, the jury was
required to find that Defendant (1) took, restrained, confined, or transported Victim, (2) by
force, intimidation, or deception, and (3) with the intention to inflict a sexual offense on her.
See UJI 14-403. For CSP II, the jury was asked whether Defendant caused Victim to engage
in sexual intercourse while armed with a firearm. Neither party disputes that the jury was
properly instructed on the essential elements of these offenses and returned affirmative
findings. However, in order to convict of first-degree kidnapping, according to the special
verdict form, the jury was required to further find that Defendant committed a sexual offense
upon Victim. See UJI 14-6018 (Question 3) (“Do you unanimously find beyond a
reasonable doubt that the defendant committed a sexual offense upon [the victim]?”). Here,
the jury unquestionably found beyond a reasonable doubt that Defendant committed a sexual
offense against Victim when it returned a guilty verdict on CSP II. This is all that is required
under UJI 14-6018 to establish first-degree kidnapping. See UJI 14-6018 Use Note 1
(“Kidnapping is a second[-]degree offense unless the state meets its burden under Section
30-4-1(B) of proving that the defendant . . . [inflicted] a sexual offense upon the victim.”).
Therefore, because the jury instructions as a whole properly instructed the jury on the
essential elements of first-degree kidnapping and the jury found Defendant guilty of
kidnapping and CSP II, the district court erred in modifying Defendant’s conviction. See
State v. Torrez, 2013-NMSC-034, ¶ 10, 305 P.3d 944 (“[A] district court has a mandatory
duty to enter a judgment and sentence consistent with the jury’s verdict.”).
III. Prosecutorial Misconduct
{20} Defendant argues that he was deprived of a fair trial due to prosecutorial misconduct.
Defendant’s contentions can be grouped into two categories: (1) that during closing
argument the prosecutor vouched for the credibility of Victim’s testimony and, both
explicitly and by inference, argued that Defendant was lying; and (2) that the prosecutor
made inappropriate references to the CODIS system, thereby indicating that Defendant may
have had prior convictions. We address these issues in turn.
A. Closing Argument
{21} Defendant points to what he contends are multiple instances of improper statements
by the prosecutor during closing argument. After the prosecutor stated that it was the jury’s
duty to determine the credibility of witnesses, the prosecutor stated that she would point out
indicators that would help the jury decide that “[Victim] is not lying to you, and she’s telling
8
you the truth about what happened.” This included highlighting Victim’s emotions while
on the stand, the consistency of Victim’s statements, and the absence of motive for Victim
to be untruthful in her account of the events. Defendant also emphasizes the prosecutor’s
arguments that Defendant’s version of events “[did] not make sense.”
{22} Trial judges are afforded broad discretion in managing closing arguments because
they are in the best position to assess the impact of allegedly improper statements by
counsel. State v. Sosa, 2009-NMSC-056, ¶ 25, 147 N.M. 351, 223 P.3d 348. We therefore
review for abuse of discretion and will only find reversible error in the “most exceptional
circumstances.” See id.
{23} Prosecutors are permitted to comment on the veracity of witnesses so long as the
statements are based on the evidence—not personal opinion—and are not intended to incite
the passion of the jury. See State v. Aguilar, 1994-NMSC-046, ¶ 22, 117 N.M. 501, 873
P.2d 247 (“Prosecutors may comment on witness’s veracity as long as personal opinion is
not expressed and as long as the comments are not intended to incite the passion of the jury.”
(internal quotation marks and citation omitted)); State v. Pennington, 1993-NMCA-037, ¶¶
27, 29, 115 N.M. 372, 851 P.2d 494 (stating that it is permissible to highlight evidence that
supports a witness’s credibility). However, a prosecutor cannot vouch “for the credibility
of a witness, either by invoking the authority and prestige of the prosecutor’s office or by
suggesting the prosecutor’s special knowledge.” Pennington, 1993-NMCA-037, ¶ 27.
{24} The prosecutor’s statements regarding Victim’s veracity do not run afoul of these
prohibitions. The prosecutor did not personally vouch for Victim’s credibility, either by
insinuations of special knowledge or by virtue of her role as prosecutor. See State v. Paiz,
2006-NMCA-144, ¶ 55, 140 N.M. 815, 149 P.3d 579 (stating that vouching involves either
“invoking the authority and prestige of the prosecutor’s office or suggesting the prosecutor’s
special knowledge” (internal quotation marks and citation omitted)). She instead focused
on specific indicators presented to the jury throughout the trial as evidence of the
truthfulness of Victim’s account. See State v. Calvillo, 1990-NMCA-046, ¶ 18, 110 N.M.
114, 792 P.2d 1157 (“A prosecutor may make comments about the evidence, and is given
latitude in [her] closing argument, in which [she] may discuss inferences which can be drawn
from the evidence.”).
{25} Furthermore, the prosecutor’s statements regarding the veracity of Defendant’s story
do not constitute misconduct. Defendant and Victim were the only witnesses to the event,
and each testified to conflicting accounts. Where a case essentially revolves around “which
of two conflicting stories is true, a party may reasonably infer, and thus argue, that the other
side is lying.” Aguilar, 1994-NMSC-046, ¶ 23. And where the defendant has testified,
“[t]he [s]tate has a right to inquire into and comment upon the credibility of the defendant
as a witness.” State v. Hoxsie, 1984-NMSC-027, ¶ 6, 101 N.M. 7, 677 P.2d 620, overruled
on other grounds by Gallegos v. Citizens Ins. Agency, 1989-NMSC-055, 108 N.M. 722, 779
P.2d 99; see State v. Rojo, 1999-NMSC-001, ¶ 56, 126 N.M. 438, 971 P.2d 829 (stating that
“[t]he prosecutor may comment on the credibility of defense witnesses” including the
9
defendant himself (internal quotation marks and citation omitted)). Defendant makes no
further argument that, beyond questioning the credibility of his story, the prosecutor’s
statements were intended to incite prejudice toward Defendant. See Aguilar, 1994-NMSC-
046, ¶ 22. We accordingly find no prosecutorial misconduct in regard to these statements.
B. Reference to CODIS
{26} Defendant was identified by DNA left at the scene. The DNA was run through the
CODIS system and provided a positive match to Defendant. On appeal, Defendant concisely
argues that “[t]he prosecutor, as described in the facts, also made inappropriate references
to CODIS.” Defendant makes no further argument as to why references to CODIS were
inappropriate. In fact, upon reviewing Defendant’s facts section, we found no reference to
statements by the prosecutor regarding the CODIS system. We are thus unaware of what
“inappropriate references” Defendant is referring to, and we will not search the record to find
facts to support this argument. Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200
P.3d 104 (“We will not search the record for facts, arguments, and rulings in order to support
generalized arguments.”).
IV. Evidence Supporting Defendant’s CSP II Conviction
{27} Pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982 and State
v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, Defendant argues that there was
insufficient evidence to support his conviction for CSP II because he testified that he was
in a consensual sexual relationship with Victim and there was no clear evidence introduced
to establish that he forced Victim to engage in sexual intercourse.
{28} “The reviewing court does not weigh the evidence or substitute its judgment for that
of the fact finder as long as there is sufficient evidence to support the verdict.” State v.
Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds by
Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. In order to convict
Defendant of CSP II, the jury was required to find that Defendant caused Victim to engage
in sexual intercourse and that he was armed with and used a gun. The jury chose to accept
Victim’s testimony that Defendant held a gun to her head while forcing her to engage in
sexual intercourse. Thus, regardless of Defendant’s contrary testimony, there was sufficient
evidence to support his conviction. See Rojo, 1999-NMSC-001, ¶ 19 (“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.”).
CONCLUSION
{29} For the foregoing reasons, we reverse the district court’s modification of Defendant’s
conviction and remand to reinstate Defendant’s conviction for first degree kidnapping. We
affirm Defendant’s remaining convictions.
10
{30} IT IS SO ORDERED.
____________________________________
CYNTHIA A. FRY, Judge
WE CONCUR:
____________________________________
MICHAEL D. BUSTAMANTE, Judge
____________________________________
LINDA M. VANZI, Judge
11