State v. Ramos

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: June 27, 2013
Docket No. 33,217
STATE OF NEW MEXICO,
Plaintiff-Respondent,
v.
AARON A. RAMOS,
Defendant-Petitioner.
ORIGINAL PROCEEDING ON CERTIORARI
Karen L. Parsons, District Judge
Bennett J. Baur, Acting Chief Public Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM
for Petitioner
Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Yvonne Marie Chicoine, Assistant Attorney General
Santa Fe, NM
for Respondent
OPINION
BOSSON, Justice.
{1} A jury convicted Aaron Ramos (Defendant) of the misdemeanor of violating an order
of protection. Defendant appeals because he was refused a jury instruction that would have
required the jury to find that he had “knowingly” violated the protection order. Our Court
of Appeals upheld the district court’s decision not to give the “knowingly” instruction,
noting the absence of any such word in the relevant statute and applying general principles
of statutory construction. For the reasons that follow, we read the language and structure of
1
the statute together with its legislative policy and purpose, and conclude that our Legislature
could only have intended to make the crime a “knowing” violation. Accordingly, it was
reversible error to deny Defendant’s requested instruction to that effect. We reverse and
remand for a new trial consistent with this Opinion.
BACKGROUND
{2} Andrea Reed, Defendant’s former girlfriend, obtained an ex parte temporary order
of protection (the order) against Defendant on October 31, 2008. Her authority for the order
was NMSA 1978, Section 40-13-4(A)(1) (2008) (“Upon the filing of a petition for order of
protection, the court shall . . . immediately grant an ex parte temporary order of protection
. . . if there is probable cause from the specific facts shown by the affidavit or by the petition
to give the judge reason to believe that an act of domestic abuse has occurred[.]”). Ms.
Reed’s reason for obtaining the order is not entirely clear from the record, but it appears to
involve Defendant having entered Ms. Reed’s home without her consent. Ms. Reed was
apparently upset about this, and she and Defendant had a heated conversation in which
Defendant allegedly stated, “What? You act like I’m gonna burn your house down.” Based
on these events, Ms. Reed obtained the order.
{3} The order explicitly prohibited Defendant from going within 25 yards of Ms. Reed
in a public place. The order also contained a provision prohibiting Ms. Reed from doing
“any affirmative act the purpose or effect of which is to cause respondent to violate this
order.” Regarding its enforcement, the order stated that “[i]f the respondent violates any part
of this order, the respondent may be charged with a crime, arrested, held in contempt of
court, fined or jailed.”
{4} A sheriff’s deputy personally served Defendant with the order at his workplace. At
this time, the deputy told Defendant to “just stay away from her.” Defendant testified that
to him this meant, “don’t call her, don’t write her, don’t go to talk to her, or engage her.”
In fact, Defendant was so confident of his understanding of what the order entailed that he
failed to read its contents. Additionally, Defendant testified that he told the deputy when he
received the order that this “[was] great, this is the best thing that could have happened.”
When asked what he believed a protective order meant, Defendant replied that it meant to
stay away from Ms. Reed. When asked why he did not read the order, Defendant stated that
its meaning was “obvious, it’s a protective order.”
{5} Both Defendant and Ms. Reed are dance instructors and they would often go to a
certain bar on Thursday nights to teach students how to dance in public with a live band. On
Thursday, November 6, 2008, Defendant went to this bar intending to meet one of his
students. Defendant arrived before his student and sat down at the bar and ordered a beer.
As it turns out, Ms. Reed was also at this bar with her dance students, seated twelve to
fifteen yards away from Defendant. Defendant testified that he did not see Ms. Reed when
he arrived at the bar.
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{6} After seeing Defendant, Ms. Reed approached the bouncer and told him about her
protective order against Defendant and asked for his assistance. The bouncer alerted
Defendant that Ms. Reed was in the bar and that she wanted him to leave. Defendant
refused, stating, “that’s her problem, I am going to drink my beer.” According to Defendant,
he also told the bouncer, “why can’t she leave, why do I need to leave?” and further, “why
am I having to leave, I’m not even messing with anybody at all, I’m just here.”
{7} The bouncer informed Ms. Reed what Defendant had said. When the bouncer
returned, he told Defendant that Ms. Reed was going to call the police. Defendant
responded, “F--- her, she can call the cops, I’m finishing my beer.” Nevertheless, when
Defendant saw Ms. Reed on the telephone, he grabbed his jacket, announced, “I’m outta
here,” and left for another bar across the street. All told, Defendant was at the bar for an
estimated ten to fifteen minutes.
{8} Defendant was arrested shortly thereafter at the bar across the street for violation of
the protective order pursuant to NMSA 1978, Section 40-13-6(D) (2008) (describing how
a peace officer shall act once presented with probable cause to believe a restrained party has
violated a protective order). The District Attorney charged Defendant with one count of
violation of a temporary restraining order.
{9} Defendant’s trial occurred on March 25, 2009. There is no uniform jury instruction
for a violation of a protective order. As such, Defendant proposed a jury instruction
requiring the jury to find that he knowingly violated the order of protection, which the court
denied.
{10} The jury found Defendant guilty, and he was sentenced to 364 days of incarceration
based partially upon the court’s perception of his attitude, lack of remorse, and as the judge
stated, that “[he] doesn’t get that what he does is wrong.” Defendant served 90 of those days
in the Lincoln County Detention Center with credit for time-served during his pre-sentence
confinement and the remaining 270 days on probation.
{11} The Court of Appeals affirmed Defendant’s conviction in a memorandum opinion.
State v. Ramos, No. 29,514, slip op. at 18 (N.M. Ct. App. Aug. 16, 2011). We granted
certiorari to consider the proper mens rea requirement for the crime of violating a protective
order. State v. Ramos, 2011-NMCERT-010, 289 P.3d 1254. Defendant preserved his
objection by tendering a correct jury instruction at trial, and thus we review this appeal for
reversible error. See State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134(“The standard of review we apply to jury instructions depends on whether the issue has
been preserved. If the error has been preserved we review the instructions for reversible
error.”).
DISCUSSION
{12} The Family Violence Protection Act, NMSA 1978, Sections 40-13-1 to -12 (1987)
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(as amended through 2010) contains the procedures for obtaining and enforcing protection
orders. See §§ 40-13-3 through - 6 (2008). Once a party has violated an order of protection,
Section 40-13-6(D) states that “[a] peace officer shall arrest without a warrant and take into
custody a restrained party whom the peace officer has probable cause to believe has violated
an order of protection that is issued pursuant to the Family Violence Protection Act . . . . ”
Section 40-13-6(F) states:
A restrained party convicted of violating an order of protection granted by a
court under the Family Violence Protection Act is guilty of a misdemeanor
and shall be sentenced in accordance with Section 31-19-1 NMSA 1978.
Upon a second or subsequent conviction, an offender shall be sentenced to
a jail term of not less than seventy-two consecutive hours that shall not be
suspended, deferred or taken under advisement.
The penalty for a misdemeanor is a jail term of less than one year, or payment of a fine of
not more than $1000, or both. NMSA 1978, § 31-19-1(A) (1984).
{13} The statute does not specify any particular mental state or mens rea that a restrained
party must demonstrate to be found guilty of this misdemeanor. See § 40-13-6 (D) & (F).
The court gave the jury the following instruction regarding the elements of the offense:
For you to find the Defendant guilty of violating a temporary order of
protection as charged in Count 1, the State must prove to your satisfaction
beyond a reasonable doubt each of the following elements of the crime:
1. A temporary order of protection was filed in the District Court
of Lincoln County, N.M. for Cause Number DV 08-87;
2. The temporary order of protection was valid on November 6,
2008;
3. The Defendant knew about the temporary order of protection;
4. The defendant violated the temporary order of protection;
5. This happened in New Mexico on or about the 6th day of
November 2008.
{14} Defendant objected to this instruction, requesting that the jury be instructed that he
must have “knowingly violated the order of protection” in order for the jury to find him
guilty. (Emphasis added.) The district judge denied this request, reasoning that
“knowingly” was not specified in Section 40-13-6. Instead of including the “knowingly”
element in the instruction, the district judge granted Defendant’s alternative request to give
the jury the general criminal intent instruction consistent with UJI 14-141 NMRA. The
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general criminal intent instruction provided:
In addition to the other elements of Violation of Restraining Order, the state
must prove to your satisfaction beyond a reasonable doubt that the defendant
acted intentionally when he committed the crime. A person acts intentionally
when he purposely does an act which the law declares to be a crime, even
though he may not know that his act is unlawful. Whether the defendant
acted intentionally may be inferred from all of the surrounding
circumstances, such as the manner in which he acts, the means used, and his
conduct and any statements made by him.
(Emphasis added).
{15} The Court of Appeals agreed with the district court, holding that Section 40-13-6(D)
and (F) does not require a person to knowingly violate a restraining order. Ramos, No.
29,514, slip op. at 8. The Court focused on the language of the statute, reasoning that the
Legislature knows how to include the word “knowingly” in a statute and that its omission
from Section 40-13-6(D) and (F) was intentional. Id. at 9. The Court of Appeals held that
the general intent instruction sufficed, “absent a specific mens rea requirement in Section 40-
13-6(D), (F).” Id. at 10. For the reasons that follow, this is an accurate application of the law
generally, but not, we believe, in the specific context of Section 40-13-6.
{16} The State argues that no intent instruction—neither general nor specific—was
necessary, and we should treat violating an order of protection as a strict liability crime. We
disagree. It is well settled that, “[w]hen a criminal statute is silent about whether a mens rea
element is required, we do not assume that the [L]egislature intended to enact a no-fault or
strict liability crime.” Santillanes v. State, 115 N.M. 215, 218, 849 P.2d 358, 361 (1993).
Rather, “we presume criminal intent as an essential element of the crime unless it is clear
from the statute that the [L]egislature intended to omit the mens rea element.” Id.; see also
State v. Gonzalez, 2005-NMCA-031, ¶ 12, 137 N.M. 107, 107 P.3d 547 (“Since at least
1917, we have followed the common law that where an act is prohibited and punishable as
a crime, it is construed as also requiring the existence of a criminal intent.”). The State also
urges us to consider the law regarding contempt of court proceedings. Because Defendant
was not held in contempt of court, we decline to do so.
{17} Gonzalez is an instructive case. In that case, our Court of Appeals held that bringing
contraband into a jail was not a strict liability crime, and the jury needed to be instructed that
the accused had knowingly possessed contraband when he entered the jail. Gonzalez, 2005-
NMCA-031, ¶¶ 1, 18. Like the Family Violence Protection Act, the criminal statute in
Gonzalez was silent as to mental state. See id. ¶ 12; NMSA 1978, § 30-22-14(B) (1976).
Like the case before us, the jury in Gonzalez was only given the general intent instruction.
Gonzalez, 2005-NMCA-031, ¶ 7. Unlike the case before us, the accused did not request a
“knowing” instruction. Id. ¶ 19.
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{18} The State argued that this was a strict liability crime, but the Court of Appeals
disagreed, concluding that this offense “lack[ed] the essential characteristics of a strict
liability defense. It is not in the nature of a regulatory measure prescribing conduct which
seriously threatens public health or safety.” Id. ¶ 14. In determining whether the crime
encompassed a mental state, the Court of Appeals considered what mental state was required
for crimes of a similar nature. Id. ¶ 15. The Court of Appeals held that the general intent
instruction was insufficient and the failure to give a “knowing” instruction amounted to
fundamental error. Id. ¶ 26.
{19} We recognize that the Family Violence Protection Act is a civil statute without any
separate formulation as a criminal statute and no expression of mens rea. See generally New
Mexico Judicial Education Center, Inst. of Pub. Law, New Mexico Domestic Violence
Benchbook, pp. 2-1 to 2-9 (University of New Mexico School of Law 2005) [hereinafter
Benchbook]. But the Family Violence Protection Act is also a kind of hybrid, being both
civil and criminal in consequence. The Legislature created the provisions regarding orders
of protection in the Family Violence Protection Act to protect specific persons from
domestic abuse and to deter future conduct of the other party. See generally §§ 40-13-1
through -7. Typically, violations of court orders are handled with contempt-of-court
proceedings, which presumably could have been done here but was not. Yet, in its own
terms, a violation of an order of protection can result in either civil or criminal penalties, and
the party is specifically put on notice of that possibility.1 See § 40-13-6 (D) & (F); § 40-13-
5 (B) (“The order of protection shall contain a notice that violation of any provision of the
order constitutes contempt of court and may result in a fine or imprisonment or both.”).
{20} When punished criminally, violating an order of protection does not fit comfortably
within the norms of the ordinary criminal statute. A person can be convicted for doing a
prohibited act, “even if the conduct that violates the order of protection would not otherwise
be against the law.” Benchbook, supra, at p. 8-3. For example, in this case Defendant, being
found within 25 yards of Ms. Reed, committed an act which “would not otherwise be against
the law,” but for the protective order. This particular wrong resembles an act malum
prohibitum—or an act which in its nature is not intrinsically wrong, except for “the fact that
its commission is expressly forbidden by law.” State v. Taylor, 297 A.2d 216, 217 (N.J. Dis.
Ct. 1972). This is not a crime malum in se—or a crime exhibiting an “evil mind,” such as
an inherently immoral act like rape or murder. See Santillanes, 115 N.M. at 222, 849 P.2d
at 365; see also Black’s Law Dictionary 1045 (9th ed. 2009).
{21} Unlike a malum in se criminal statute in which a person should know of inherently
unlawful conduct and anticipate its consequences, a party restrained by a protective order
1
The temporary order of protection standard Form 4-963 NMRA provides under
“ENFORCEMENT OF ORDER” that “[i]f the respondent violates any part of this order,
the respondent may be charged with a crime, arrested, held in contempt of court, fined or
jailed.”
6
has to be told that certain otherwise lawful conduct now constitutes a crime; i.e., going
within 25 yards of the other party in a public place. Accordingly, the Legislature provided
a mandatory notice provision in Section 40-13-6(A), instructing that all orders of protection
“shall be personally served upon the restrained party, unless the restrained party or the
restrained party’s attorney was present at the time the order was issued.” Mandatory service
of the order of protection provides the restrained party with knowledge that certain actions
will be considered criminal, even actions that would not otherwise be considered criminal
in other circumstances. Thus notice, and the knowledge that comes with it, would seem to
be an integral part of the crime and the legislative intent behind it.
{22} In other contexts, we have required a knowledge instruction when statutes are
otherwise silent on a particular mental state regarding the identity of the victim. In State v.
Nozie, 2009-NMSC-018, ¶ 30, 146 N.M. 142, 207 P.3d 1119, we held that knowledge that
a victim was a peace officer was an essential element of the crime of aggravated battery on
a peace officer. We reasoned that there was no clear legislative intent to omit this mens rea
requirement from the statute and that imposing liability on someone who did not know the
victim’s identity defeated the “‘specific deterrent purpose expressed by the statute.’” Id.(quoting State v. Morey, 427 A.2d 479, 483 (Me. 1981)). We also reasoned that the
heightened punishment for battering a peace officer supported the knowledge requirement.
Nozie, 2009-NMSC-018, ¶ 30; see also State v. Valino, 2012-NMCA-105, ¶¶ 15, 17, 287
P.3d 372 (holding that even though statute contained no mental state regarding knowledge
of the victim’s identity, knowledge that a victim is a health care worker is an essential
element of the crime of battery on a health care worker).
{23} We can draw certain parallels here. First, as previously discussed, we see no clear
legislative intent to omit any mens rea from Section 40-13-6(D) & (F). See Nozie, 2009-
NMSC-018, ¶ 30. Second, just as knowledge of the victim’s identity was an essential
element in both Nozie and Valino, here knowledge that a restrained party’s conduct is
endangering or affecting a specific person—the protected party—is imperative. The
deterrent purpose of the protective order could only be served by knowledge of who is being
protected, just like the deterrent purpose of the battery on a peace officer statute. See id.Orders of protection are “powerful tool[s] to reduce violence against current or former
intimates[,]” and orders of protection “play a critical role as part of a comprehensive plan
designed to protect victims from continuing violence in the home.” Benchbook, supra, at
pp. 2-1, 2-2.
{24} The need for a “knowing” violation is perhaps best illustrated by a common- sense
example. The restraining order in this case prohibited Defendant from being in a public
place within 25 yards of the protected party. Without knowledge being part of the crime,
then a violation could occur, however innocently, at any public place such as a shopping
center or an entertainment venue, without one party even being aware of the other’s
presence. The general intent instruction given in this case requires only an intentional
act—e.g., the act of going to a store—even though he may not know that his act is unlawful.
Prosecution for that kind of a violation would not serve the deterrent purpose of the Family
7
Violence Protection Act. See generally § 40-13-2(D) (defining domestic abuse to include
protecting persons from physical harm, severe emotional distress, harassment, etc.).
{25} We acknowledge that the other “knowing” cases cited herein—Gonzalez, Nozzie,
Valino—all derive from felonies, and the severity of the crime is one factor our courts have
weighed in favor of requiring a knowing violation. In the case before us, of course,
Defendant was convicted of a misdemeanor and sentenced to less than a year in jail. That
said, we conclude that under the particular circumstances of this crime, a “knowing”
violation is most consistent with the policy behind the Family Violence Protection Act and
the intent of the Legislature.2
{26} A knowing violation in this instance required proof that the accused knew of (1) the
protective order and (2) Ms. Reed’s presence within 25 yards in the same location. With
respect to the first element—knowledge of the restraining order—a restrained party has
knowledge of the order when he receives personal service of the order of protection. See
Maso v. N.M. Taxation & Revenue Dep’t, 2004-NMSC-028, ¶ 13, 136 N.M. 161, 96 P.3d
286 (“[W]here circumstances are such that a reasonably prudent person should make
inquiries, that person is charged with knowledge of the facts reasonable inquiry would have
revealed.”) (internal quotation marks and citation omitted).
{27} At trial, some significance was made about the fact that Defendant did not actually
read the details of the order and was therefore unaware of its 25-yard stipulation. The
defense argued that because of this, the State presented no evidence that Defendant actually
knew he had to stay 25 yards away from Ms. Reed. Defendant’s position borders on the
2
The dissent claims that half of states nationwide do not impose a knowing
requirement. But the law from various states differs so dramatically, a majority rule is
difficult to discern. For instance, many of the states cited by the dissent impose a willful
requirement, which we interpret to be a mental state at least as culpable as knowing. See,
e.g., Wyo. Stat. Ann. § 35-21-105(c) (2008) (“The [protective] order shall contain notice that
willful violation of any provision of the order constitutes a crime as defined by W.S. 6-4-404,
can result in immediate arrest and may result in further punishment.” (emphasis added));
R.I. Gen. Laws Ann. § 12-29-4(a)(3) (2001). In other states, protective orders are structured
in such a specific way that the accused cannot violate them with any less culpable mental
state than knowing. See, e.g., Gerlack v. Roberts, 952 P.2d 84, 86-87 (Or. Ct. App. 1998)
(holding that defendant’s coming within 150 feet of petitioner at a video store did not violate
protective order because the video store was not specifically designated in the order). Our
research indicates that at least one state cited by the dissent explicitly requires a knowing
violation by statute. Ind. Code Ann. § 35-46-1-15.1 (as amended through 2010) (“A person
who knowingly or intentionally violates: (1) a protective order to prevent domestic or family
violence . . . commits invasion of privacy, a Class A misdemeanor.” (emphasis added)).
Thus, we conclude that the views expressed in this opinion do reflect those of a number of
our sister states that have grappled with similar issues.
8
frivolous. Defendant’s failure to read the contents of the order is no defense. See Stevenson
v. Louis Dreyfus Corp., 112 N.M. 97, 100, 811 P.2d 1308, 1311 (1991) (“One who
intentionally remains ignorant is chargeable in law with knowledge.” (internal quotation
marks and citations omitted)). Therefore, knowledge of the contents of the order of
protection was imputed to Defendant as a matter of law upon proof of service.
{28} To be clear, when we state that a party must knowingly violate an order of protection,
we do not mean that the party must act with a conscious or wilful desire to defy the
protective order. We mean only that in this context the general criminal intent instruction
is not enough, because “general intent is only the intention to make the bodily movement
which constitutes the act which the crime requires.” Wayne R. LaFave, Substantive
Criminal Law § 5.2(e) (2d ed. 2003), at 355 (internal quotation marks and citation omitted).
Additionally, “[k]nowledge and intent are separate, not synonymous, elements.” State v.
Hargrove, 108 N.M. 233, 236, 771 P.2d 166, 169 (1989) (holding that the general criminal
intent instruction was not “sufficient to instruct the jury that knowledge of the prohibited
blood relationship is an essential element of [the crime of] incest”). We have previously set
forth the two elements of knowledge—the protective order and the presence of the protected
party within the protected zone—and the State need prove no more than that to sustain a
conviction.
{29} Our interpretation of Section 40-13-6 (D) and (F) should not deter the State from
enforcing orders of protection through criminal sanctions. For example, if a restrained party
were to claim he did not knowingly violate an order of protection because he believed he
was 30 yards away from the protected party instead of 25, that would be a question for the
jury to determine, no different from similar offenses. In most cases, knowing that the
prohibited party was within the protected zone of the protected party, at least after a warning,
should be sufficient to prove a knowing violation.
The District Court’s Rejection of the Requested Instruction Requires a New Trial.
{30} The evidence in this case supports Defendant’s conviction under the instructions that
were given. Defendant knew about the protective order based on personal service. For the
purpose of determining whether there should be a new trial we evaluate the sufficiency of
the evidence under the instructions given. We do not evaluate the sufficiency of evidence
for instructions that were not given to the jury. See State v. Dowling, 2011-NMSC-016, ¶
18, 150 N.M. 110, 257 P.3d 930 (“We review Defendant’s [sufficiency] claim under the
erroneous instruction provided to the jury at trial.”). The issue of Defendant’s knowing
violation will be a question for the jury to consider on remand.
{31} Defendant, like any accused, was fairly entitled to a jury instruction that accurately
described the essential elements of the crime and what the State would have to prove for a
conviction. Any accused is entitled to such an instruction even if he does not ask for it. See
State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991) (“[F]ailure to instruct the
jury on the essential elements of an offense constitutes fundamental error. Where
9
fundamental error is involved, it is irrelevant that the defendant was responsible for the error
by failing to object to an inadequate instruction[.]”). And here, Defendant unquestionably
did ask for the correct instruction.
{32} Because Defendant objected to the jury instruction tendered at trial, we review his
conviction for reversible error. Benally, 2001-NMSC-033, ¶ 12. “A jury instruction which
does not instruct the jury upon all questions of law essential for a conviction of any crime
submitted to the jury is reversible error.” State v. Parish, 118 N.M. 39, 44, 878 P.2d 988,
993 (1994) (internal quotation marks and citations omitted). To determine if a defect in a
jury instruction amounts to reversible error, we must determine whether a reasonable jury
could have been confused or misdirected by the jury instruction. Id. at 42, 878 P.2d at 991(“Reversible error arises if . . . a reasonable juror would have been confused or
misdirected.”).
{33} The general intent instruction given in this case could have confused and misdirected
the jury notwithstanding the evidence of Defendant’s guilt. Under the facts of this case and
the instructions given, the jury could have convicted Defendant on either of two theories.
First, the jury could have convicted Defendant appropriately based on Defendant’s
knowledge of the restraining order and knowledge of Ms. Reed’s presence. But the jury
could also have convicted Defendant based on a lesser showing. The general intent
instruction as given allowed the jury to convict for something far less—merely the
intentional act of entering and staying at the bar, “even though he may not know that his act
is unlawful.” We have no way of knowing what was in the jury’s mind because the
instructions allowed for either. See Gonzalez, 2005-NMCA-031, ¶ 23 (holding that the
general intent instruction “was not sufficient to instruct the jury that Defendant’s knowledge
of the cocaine he brought into the Detention Center is an essential element [of the crime] of
bringing contraband into a jail”). Accordingly, failure to instruct the jury of a knowing
violation constituted reversible error. Under the circumstances we have no choice but to
reverse and remand for a new trial.
{34} Finally, consistent with this Opinion, we recognize that there should be a uniform
jury instruction for this crime. We request that the rules committee develop a uniform jury
instruction reflecting that a restrained party must knowingly violate an order of protection.
CONCLUSION
{35} We reverse Defendant’s conviction of one count of violating an order of protection
and remand for a new trial.
{36} IT IS SO ORDERED.
____________________________________
RICHARD C. BOSSON, Justice
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WE CONCUR:
____________________________________
EDWARD L. CHÁVEZ, Justice
____________________________________
CHARLES W. DANIELS, Justice
____________________________________
BARBARA J. VIGIL, Justice
PETRA JIMENEZ MAES, Chief Justice
(dissenting).
MAES, Chief Justice (dissenting).
{37} In imposing a “knowing” requirement for proof of a violation of a restraining order,
the majority holds that the general intent instruction is insufficient because it only requires
the intention to make a bodily movement that constitutes the act required by the crime. The
rationale behind the majority’s addition of a “knowing” requirement to NMSA 1978, Section
40-13-6(D) (2008) is the fear of the possibility that a person could be charged with violating
a restraining order by merely being in the same vicinity as a protected party, without
knowledge of their presence. I respectfully dissent because the general intent instruction
given in this case was sufficient to address the concerns of the majority and the definition
of the “knowing” requirement set forth by the majority is unclear and appears to be simply
one of awareness. I adopt the jury instructions discussion of the Court of Appeals’
Memorandum Opinion. I offer the following thoughts to supplement my rationale for
dissenting.
{38} The new standard is now a “knowing” violation which requires proof that the accused
knew of (1) the protective order and (2) the protected party’s presence in the same location.
The majority states that this “knowing” requirement should not deter the State from
enforcing orders of protection through criminal sanctions and gives the following example:
“if a restrained party were to claim he did not knowingly violate an order of protection
because he believed he was 30 yards away from the protected party instead of 25, that would
be a question for the jury to determine[.]” This example describes almost exactly what a jury
is asked to do using the general intent instruction, which was given in this case. The general
intent instruction given pursuant to UJI 14-141 NMRA stated:
[T]he state must prove to your satisfaction beyond a reasonable doubt that the
defendant acted intentionally when he committed the crime. A person acts
intentionally when he purposely does an act which the law declares to be a
crime, even though he may not know that his act is unlawful. Whether the
defendant acted intentionally may be inferred from all of the surrounding
11
circumstances, such as the manner in which he acts, the means used, and his
conduct and any statements made by him.
The majority, however, emphasizes the first prong of the general intent instruction, while
ignoring the second prong. Although the instruction requires a showing that the defendant
made a bodily movement that constituted the act of the crime, such as entering a bar, the
second prong of the general intent instruction requires more. A jury must also infer from the
surrounding circumstances whether the defendant acted intentionally, meaning that he acted
with intent to violate the restraining order. This second sentence accomplishes what the
majority attempts to accomplish by adopting a “knowing” requirement.
{39} The primary concern of protecting a defendant from frivolous prosecution resulting
from the act of entering a location, without knowledge of the victim’s presence, can be
sufficiently addressed by providing the jury with a general intent instruction consistent with
UJI 14-141, as the court did in this case. After the jury found that all of the elements of the
crime existed, it was able to use the testimony presented in court to determine that Defendant
intentionally violated the order by staying in the bar after he became aware of Ms. Reed’s
presence. In this case, Defendant’s statements and actions made it clear that he was
apathetic to Ms. Reed’s presence and intentionally remained at the bar, in violation of the
order, to finish his beer.
{40} The second prong of the general intent instruction would allow for a jury to come to
the opposite conclusion as well. For example, a defendant enters a bar without knowledge
of the protected party’s presence. While the defendant is drinking a beer, the protected party
calls the police to report a violation of the order. Police arrive and arrest the defendant,
although the defendant never had knowledge of the protected party’s presence. The jury
would be able to evaluate all of these facts at trial, and when given the general intent
instruction could determine whether the defendant intentionally violated the restraining
order, or was merely enjoying a beer. Imposing an unclear “knowing” requirement does not
supplement the general intent instruction and may cause trial courts to treat it as a mens rea
requirement, forcing the state to delve into a defendant’s state of mind. Instead, with the
general intent instruction, both parties’ interests remain protected.
{41} Moreover, abstaining from imposing a “knowing” requirement into Section 40-13-
6(D) would be consistent with the national trend to protect victims from recurring domestic
violence. Over the past twenty years, all fifty states have enacted laws intended to rein in
domestic violence. David M. Zlotnick, Empowering the Battered Woman: The Use of
Criminal Contempt Sanctions to Enforce Civil Protection Orders, 56 Ohio St. L.J. 1153,
1158 (1995). Despite these efforts, police estimate that for each of the more than one million
domestic violence crimes reported each year, three more go unreported. Id. In all, there are
an estimated 1.8 to 4 million incidents of domestic violence each year. Zlotnick, supra at
1159.
{42} Nationwide, half of the states do not impose a “knowing” requirement for a violation
12
of a temporary restraining order.3 Logically, this makes sense. If the state had to prove
knowledge on the part of every defendant for every violation, conviction rates would likely
plummet and animosity between defendant and victim would increase, as well as the
likelihood of another incident. A recent study involving over 750 women from various
jurisdictions nationwide revealed that nearly 60% of women reported violations of protection
orders. TK Logan, PhD & Robert Walker, MSW, LCSW, Civil Protective Order
Effectiveness: Justice or Just a Piece of Paper?, 25 Violence and Victims 332, 333 (2010).
The potential effect of imposing a “knowing” requirement to prove a violation is, in all
likelihood, extremely dangerous considering most of the reported violations occur within the
first three months after the issuance of an order. Christopher T. Benitez, MD, Dale E.
McNiel, PhD & Renée L. Binder, MD, Do Protection Orders Protect?, 38 J. Am. Acad.
Psychiatry L. 376, 382 (2010). Additionally, psychological abuse nearly quadruples during
the period of a temporary restraining order. Id. In order to protect against re-abuse, our law
should not make it more difficult to prosecute violations of protective orders. Eventually,
if it becomes clear that it is difficult to punish a defendant for violating a restraining order
because of failure to prove intent, victims will become less likely to report violations, the
deterrent effect decreases, and the purpose of obtaining a protective order becomes moot.
Ultimately, this result conflicts with the overall goal of protecting and supporting the
public’s well-being.
{43} Accordingly, imposing a “knowing” requirement is contrary to the national trend of
protecting victims and deterring domestic violence. It is imperative for future litigants to
have a clear understanding of what is required to prove a violation. The general intent
instruction sufficiently protects both parties’ interests and therefore I would affirm the Court
of Appeals’ holding and adopt the jury instructions discussion regarding the imposition of
a knowledge requirement in the attached Memorandum Opinion.
___________________________________
PETRA JIMENEZ MAES, Chief Justice
3
State statutes regarding protective orders that do not require a knowing violation:
Ala. Code § 13A-6-143 (1975); Alaska Stat. Ann. § 18.66.130 (2013); Ariz. Rev. Stat. Ann.
§ 13-3602 (2013); Conn. Gen. Stat. Ann. § 46b-15 (2013); D.C. Code § 16-1031 (2013);
Idaho Code Ann. § 39-6312 (1999); Ind. Code Ann. § 31-15-5-1 (2003); Iowa Code Ann.
§ 664A.7 (2007); La. Rev. Stat. Ann. §46:2137 (1999); Me. Rev. Stat. tit. 19-A, § 4011
(2011); Md. Code Ann., Fam. Law § 4-508.1 (2011); Mich. Comp. Laws Ann. § 764.15b
(2002); Minn. Stat. Ann. § 260C.405 (2008); Mo. Ann. Stat. § 455.085 (2011); N.Y. Fam.
Ct. Act § 846-a (2013); N.D. Cent. Code Ann. § 14-07.1-06 (2011); Ohio Rev. Code Ann.
§ 2919.27(A)(1) (2010); Or. Rev. Stat. Ann. § 107.720(4) (2012); 23 Pa. Cons. Stat. Ann.
§ 6114 (2006); R.I. Gen. Laws Ann. §12-29-4 (2001); S.C. Code Ann. § 16-25-20 (2008);
S.D. Codified Laws § 25-10-13 (2011); VA Code Ann § 16.1-253.2 (2012); Vt. Stat. Ann.
tit. 15 § 1108 (2010); Wyo. Stat. Ann. § 35-21-105(c)(2008).
13
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v. NO. 29,514
AARON A. RAMOS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Karen L. Parsons, District Judge
Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Santa Fe, NM
for Appellee
Jacqueline L. Cooper, Acting Chief Public Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
GARCIA, Judge.
Defendant appeals his misdemeanor conviction under the Family Violence Protection
Act, NMSA 1978, Section 40-13-6(D), (F) (2008), for violating a temporary order of
protection that prohibited contact with his ex-girlfriend, Andrea Reed. Defendant contends
that the district court’s refusal of his requested jury instruction, which included the element
that he “knowingly” violated the order of protection, was reversible error. He also argues
that if Section 40-13-6(D), (F) does not include “knowingly” as an element, then it is void
for vagueness, that the evidence is insufficient to support his conviction; and that imposing
a criminal penalty for violation of an ex parte order of protection violates due process. We
affirm.
BACKGROUND
14
The district court issued a temporary order of protection against Defendant on
October 31, 2008, upon a petition by Andrea Reed. The order prohibited Defendant from
going within one-hundred yards of Ms. Reed’s home, school, or workplace. The order
further prohibited Defendant from going within twenty-five yards of Ms. Reed in a public
place.
On Thursday, November 6, 2008, Defendant went to the Win, Place and Show (WPS)
bar in Ruidoso, where Defendant testified he and Ms. Reed had danced “countless” times
on Thursday nights. Defendant testified that he was not looking for Ms. Reed or anyone
else. Defendant was in the bar having a beer when he saw Ms. Reed walk behind him and
approach the bouncer. Defendant was concerned that Ms. Reed would try to cause a scene,
so he tried to “shield” himself from any kind of “engagement” with Ms. Reed.
Ms. Reed testified that Defendant and she made eye contact. After Ms. Reed realized
that Defendant was not going to leave, Ms. Reed explained to the bouncer that she had an
order of protection against Defendant and requested the bouncer’s assistance in asking
Defendant to leave. The bouncer approached Defendant and explained that Ms. Reed was
present and wanted him to leave. Defendant testified that he said to the bouncer, “Why do
I have to leave? Why can’t she leave?” Defendant told the bouncer that he did not think he
should be required to leave since he was just there and was “not messing with anybody.”
The bouncer then informed Defendant that Ms. Reed was talking about calling the police.
Defendant admitted that he told the bouncer, “Fuck her, she can call the cops. . . . I’m
finishing my beer.” Defendant testified that he finished his beer and then left.
Ms. Reed testified that Defendant did not leave until he realized that she had called
the police. After realizing that she was speaking to the police, Defendant announced, “Okay,
I’ll leave,” and then he left. The bouncer testified that Defendant was about twelve to fifteen
feet away from Ms. Reed while he was sitting at the bar. The bouncer estimated that ten to
fifteen minutes elapsed from the time Defendant arrived to the time he left. He further
testified that Defendant left after Ms. Reed walked past Defendant dialing the number to the
police department.
Defendant testified that he knew of the order of protection and had been served with
the order by a deputy sheriff. The sheriff also explained to Defendant that he was serving
him with an order of protection, that he could not call or contact Ms. Reed, and that he was
required to stay away from her. However, Defendant was at work and too busy to read the
order at the time it was served. Defendant testified that he did not read the order until after
the incident occurred. He further testified that he was not aware of the twenty-five-yard
restriction at the time of the incident. He said he did not read the order earlier because “it
wasn’t important to [him] because [he] wanted her out of [his] life, and it was a good thing.”
He knew that he was required to stay away from Ms. Reed, stating, “It’s obvious; it’s a
protective order.” He testified that, in his opinion, “stay away” meant that he was not to take
any initiative to contact her, to call her, to write her, or to engage her. Defendant testified
that he thought he complied with the order at the time of the incident because he had no
15
intent to contact Ms. Reed and did not approach Ms. Reed at WPS. While Defendant was
in jail, he read the order of protection. He testified that the order “specifically says that the
twenty-five-yard stipulation is applicable in public places.” He further agreed that WPS was
a public place.
At trial, Defendant tendered two proposed jury instructions on the elements of
violating an order of protection. The first instruction defined criminal intent in conformity
with UJI 14-141 NMRA, which required the State to prove beyond a reasonable doubt that
Defendant acted intentionally when he committed the crime. Defendant’s second proposed
instruction included as an element of the offense both that he “knew about the order of
protection” and that he “knowingly violated the order of protection.” The district court
refused Defendant’s proposed instruction requiring that the violation of the order of
protection have been “knowing.” The court did instruct the jury, however, that the State was
required to prove beyond a reasonable doubt that Defendant “knew about the temporary
order of protection” and that he “acted intentionally when he committed the crime.” The
jury found Defendant guilty of violating the order of protection, and Defendant now appeals.
DISCUSSION
A. Jury Instructions
Defendant argues that the district court’s refusal of his requested jury instruction,
which included the element that he “knowingly violated the order of protection,” was
reversible error. “The propriety of jury instructions given or denied is a mixed question of
law and fact[,]” which we review de novo. State v. Lucero, 2010-NMSC-011, ¶ 11, 147
N.M. 747, 228 P.3d 1167 (internal quotation marks and citation omitted).
“A jury instruction is proper, and nothing more is required, if it fairly and accurately
presents the law.” State v. Laney, 2003-NMCA-144, ¶ 38, 134 N.M. 648, 81 P.3d 591.
“When a uniform jury instruction exists, that instruction must be used without substantive
modification.” State v. Caldwell, 2008-NMCA-049, ¶ 24, 143 N.M. 792, 182 P.3d 775. In
the absence of a uniform jury instruction, this Court must examine whether the jury
instruction conforms to the language of the governing statute. See State v. Doe, 100 N.M.
481, 483, 672 P.2d 654, 656 (1983) (“[I]f the jury instructions substantially follow the
language of the statute or use equivalent language, then they are sufficient.”). Whether a
crime requires a showing of intent is a question of statutory construction. State v. Rowell,
121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). We begin our review by looking at the
words selected by the Legislature and the plain meaning of the language. See State v. Smile,
2009-NMCA-064, ¶ 8, 146 N.M. 525, 212 P.3d 413, cert. quashed, 2010-NMCERT-006,
148 N.M. 584, 241 P.3d 182. When a statute contains language that is clear and
unambiguous, we give effect to it and refrain from further statutory interpretation. Id.Section 40-13-6(D), (F) provides the following in pertinent part:
16
D. A peace officer shall arrest without a warrant and take into
custody a restrained party whom the peace officer has probable cause to
believe has violated an order of protection that is issued pursuant to the
Family Violence Protection Act . . . .
....
F. A restrained party convicted of violating an order of
protection granted by a court under the Family Violence Protection Act is
guilty of a misdemeanor . . . .
There is no uniform jury instruction for violation of an order of protection. Defendant
requested an instruction requiring the State to prove that an order of protection was issued;
that it was in effect on November 6, 2008; that Defendant knew about the order; and that
Defendant “knowingly violated” the order. The district court reasoned that absent an
applicable uniform jury instruction, the elements instruction should conform to the
applicable statute. Defendant conceded that the statute did not explicitly require that the
conduct be “knowing,” but argued that without including “knowingly” as an element, a
person could be unfairly convicted for innocent conduct such as passing the person going
the other way on a public street or accidently running into the person at a store. The district
court determined that the statute does not require proof of a “knowing” violation and
therefore refused Defendant’s proposed instruction.
Defendant then presented the district court with an alternative instruction, suggesting
that if the court would not allow his requested instruction requiring a knowing violation, then
the court should give an instruction stating that Defendant “violated the order” along with
the instruction on general criminal intent. The court ultimately instructed the jury on the
following elements of the offense:
1. A temporary order of protection was filed in the [d]istrict [c]ourt . . .;
2. The temporary order of protection was valid on November 6, 2008;
3. Defendant knew about the temporary order of protection;
4. [D]efendant violated the temporary order of protection;
5. This happened in New Mexico on or about the 6th day of November 2008.
In addition, the court instructed the jury that the State was required to prove beyond a
reasonable doubt that Defendant acted intentionally when he committed the crime pursuant
to UJI 14-141.
We are not persuaded that Section 40-13-6(D), (F) requires that a person knowingly
violate an order of protection. The statute does not contain any language stating that the
defendant must “knowingly” violate the order. See § 40-13-6(D) (providing that “[a] peace
officer shall arrest . . . a restrained party whom the peace officer has probable cause to
believe has violated an order of protection”); see also § 40-13-6(F) (providing that a person
17
“convicted of violating an order of protection . . . is guilty of a misdemeanor”). Furthermore,
“[w]e will not read into a statute language which is not there, especially when it makes sense
as it is written.” State v. Hubble, 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 579. The
Legislature knows how to include the word “knowingly.” See, e.g., NMSA 1978, § 30-3A-
3(A) (2009) (stating that “[s]talking consists of knowingly pursuing a pattern of conduct”);
see also State v. Wilson, 2010-NMCA-018, ¶ 12, 147 N.M. 706, 228 P.3d 490 (holding that
use of the term “knowingly” in NMSA 1978, Section 30-31-20(B), (C) (2006), required
specific knowledge that the drug trafficking would occur within a drug-free school zone),
cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055. We therefore conclude
that the Legislature intended to omit the word “knowingly” in Section 40-13-6(D), (F), and
we will not read such an element into the statute. See State v. Katrina G., 2007-NMCA-048,
¶ 17, 141 N.M. 501, 157 P.3d 66 (reasoning that when the Legislature knew how to include
something, and did not, we assume the choice was deliberate); see also Smile, 2009-NMCA-
064, ¶ 8 (stating that when the Legislature’s language is clear and unambiguous we will
refrain from further interpretation). As a result, we conclude that Section 40-13-6(D), (F)
does not require that a violation of a protection order have been “knowing.” Instead, the
district court properly instructed the jury regarding general criminal intent, absent a specific
mens rea requirement in Section 40-13-6(D), (F). See State v. Gonzalez, 2005-NMCA-031,
¶¶ 12-13, 137 N.M. 107, 107 P.3d 547 (reasoning that where criminal statute lacks a mens
rea requirement, it is construed as requiring general criminal intent absent legislative intent
to the contrary).
Furthermore, given Defendant’s testimony, he would not be entitled to his requested
instruction. Defendant’s defense was that he did not know his conduct was wrong based on
his own deliberate ignorance and failure to read what the order of protection actually
required, combined with his speculative assumptions about what the order prohibited.
Defendant admitted that he had not read the order of protection prior to the incident even
though it was in his possession and contained a twenty-five-yard restriction for public places.
He only decided to actually read the order when he was in jail. Defendant also testified that
he was entitled to speculate that he had complied with the order despite his knowledge that
it was a protective order and he had not read it.
Ignorance of the law is no defense, and a person who is purposely ignorant may not
claim he or she had no knowledge. See State v. Rivera, 2009-NMCA-132, ¶ 37, 147 N.M.
406, 223 P.3d 951 (stating that ignorance of the law is no defense); see also Stevenson v.
Louis Dreyfus Corp., 112 N.M. 97, 100, 811 P.2d 1308, 1311 (1991) (stating that “[o]ne who
intentionally remains ignorant is chargeable in law with knowledge” (internal quotation
marks and citation omitted)); accord State v. Sanders, 96 N.M. 138, 140, 628 P.2d 1134,
1136 (Ct. App. 1981). Consequently, Defendant was not entitled to remain deliberately
ignorant of the order’s contents and then substitute his own opinion of what was required in
order to argue that he did not “knowingly” violate the order of protection.
The weakness of Defendant’s position is highlighted by Defendant’s admission that
after reading the order, he realized that the twenty-five-yard restriction was clearly stated in
18
the order and that WPS was clearly a public place. Under the present facts, Defendant’s
proposed instruction regarding an inapplicable defense would have constituted a
misstatement of law and injected a false issue. See State v. Nieto, 2000-NMSC-031, ¶ 17,
129 N.M. 688, 12 P.3d 442 (stating that a requested instruction that presented an
inapplicable defense was properly denied because it was a misstatement of law). Given that
Defendant’s theory of his lack of a knowing violation was based on his own failure to read
the order, the district court properly refused to permit Defendant to parlay his self-imposed
ignorance into a defense.
Defendant further contends that if we do not recognize that Section 40-13-6(D), (F)
contains knowledge as an element, innocent violations will result in unwarranted criminal
punishment. Specifically, Defendant asserts that, without knowledge as an element, a person
subject to an order of protection could be unfairly convicted for passing someone in a car
going the other way on a busy public street, or for accidentally running into someone at a
store. These abstract situations are distinguishable from the facts in this case, where
Defendant intentionally chose to remain ignorant of the order’s requirements and refused to
leave WPS even after he was informed that Ms. Reed wanted him to leave pursuant to the
order of protection. A defendant is not entitled to an instruction that is not supported by the
evidence. See State v. Nozie, 2007-NMCA-131, ¶ 6, 142 N.M. 626, 168 P.3d 756 (reasoning
that a defendant is only entitled to jury instructions that are supported by sufficient
evidence). As a result, we decline to consider whether an instruction that a defendant did
not violate an order could conceivably be warranted in some other factual scenario.
Finally, Defendant argues that not requiring that a violation of a protection order be
knowing invites absurd results, such as requiring Defendant to immediately exit WPS upon
becoming aware of Ms. Reed’s presence, leaving his beer unfinished. However, Defendant
fails to persuade us that leaving a beer unfinished in order to comply with an order of
protection is an absurd result, and we decline to address his argument further.
As a result, we affirm the district court’s denial of Defendant’s requested instruction
requiring that Defendant must have knowingly violated the order of protection.
B. Void for Vagueness
Defendant argues that if Section 40-13-6(D), (F) does not include “knowingly” as
an element, then it is unconstitutionally void for vagueness. Specifically, Defendant
contends that absent a requirement that a violation be committed “knowingly,” the statute
does not give fair notice of what constitutes a violation. We consider this argument although
it was not raised below. See State v. Laguna, 1999-NMCA-152, ¶ 23, 128 N.M. 345, 992
P.2d 896 (reviewing a defendant’s argument that a statute was void for vagueness despite
the lack of preservation). “We review a vagueness challenge de novo in light of the facts of
the case and the conduct which is prohibited by the statute.” Smile, 2009-NMCA-064, ¶ 17
(internal quotation marks and citation omitted).
19
A statute is void for vagueness if it fails to give persons of ordinary intelligence a fair
opportunity to determine whether their conduct is prohibited, or if it fails to provide
minimum guidelines for the reasonable judge, jury, prosecutor, or police officer to enforce
the statute without subjective and ad hoc application. State v. Jacquez, 2009-NMCA-124,
¶ 6, 147 N.M. 313, 222 P.3d 685. Statutes are presumed to be constitutional, and Defendant
bears the burden of establishing that the statute is unconstitutional. Smile, 2009-NMCA-064,
¶ 17. Furthermore, if the statute clearly applies to Defendant’s conduct, then there is no
constitutional problem. See Laguna, 1999-NMCA-152, ¶ 24.
Defendant has failed to demonstrate that Section 40-13-6(D), (F) is unconstitutionally
vague on either ground. First, Defendant fails to demonstrate that the statute did not give
him a fair opportunity to determine whether his conduct was prohibited. See Jacquez, 2009-
NMCA-124, ¶ 6. According to Defendant’s own testimony, the only reason that he was not
aware of the twenty-five-yard restriction was that he did not read the order of protection.
After reading the order while he was in jail, however, Defendant testified that the twenty-
five-yard restriction was clearly stated in the order and that WPS was a public place.
Defendant further testified that even before reading the order, it was “obvious” that a
protective order required him to stay away from Ms. Reed. As a result, by Defendant’s own
admission, the statute gave him a fair opportunity to determine that his conduct was
prohibited.
Second, the statute is not so lacking in standards that its enforcement would be
subjective and ad hoc. See Jacquez, 2009-NMCA-124, ¶ 6. The fact that a statute is written
in general terms and that it then must be applied on a case-by-case basis does not establish
that it is unconstitutionally vague. See State v. Fleming, 2006-NMCA-149, ¶ 5, 140 N.M.
797, 149 P.3d 113 (stating that mere room in a statute for the exercise of charging discretion
does not establish that a statute is void for vagueness); State v. Larson, 94 N.M. 795, 796,
617 P.2d 1310, 1311 (1980) (stating that a statute is not unconstitutionally vague just
because some marginal cases could be hypothesized in which doubts might arise).
Furthermore, Defendant’s conduct in refusing to leave WPS after he was informed that Ms.
Reed wanted him to leave pursuant to the order of protection constituted a clear violation of
the statute. As a result, we conclude that Defendant has failed to demonstrate that Section
40-13-6(D), (F) is unconstitutionally vague. See Laguna, 1999-NMCA-152, ¶ 24 (reasoning
that if a statute clearly applies to a person’s conduct, then it is not unconstitutionally vague).
C. Sufficiency of the Evidence
Defendant argues that the evidence is insufficient to support his conviction because
the violation was not intentional. Specifically, he contends that he left WPS “soon after” he
became aware that Ms. Reed was present and that he did not attempt to approach Ms. Reed
or contact her in any way.
In reviewing the sufficiency of the evidence, we analyze “whether direct or
circumstantial substantial evidence exists and supports a verdict of guilt beyond a reasonable
20
doubt with respect to every element essential for conviction.” State v. Kent, 2006-NMCA-
134, ¶ 10, 140 N.M. 606, 145 P.3d 86. “We determine whether a rational factfinder could
have found that each element of the crime was established beyond a reasonable doubt.” Id.Furthermore, “we 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, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.
Defendant does not dispute that a temporary order of protection was filed; that the
order was valid on November 6, 2008; that he knew about the order of protection and
initially refused to leave WPS even after being informed that Ms. Reed wanted him to leave
pursuant to the order; that he violated the order by going within twenty-five yards of Ms.
Reed in a public place; and that the alleged incident happened in New Mexico on or about
November 6, 2008. As a result, there was sufficient evidence for the jury to find that
Defendant intentionally violated the protection order.
To the extent that Defendant argues that his testimony supported his belief that he
was in compliance with the order, the jury was free to reject his version of the incident. See
State v. Trujillo, 2002-NMSC-005, ¶ 31, 131 N.M. 709, 42 P.3d 814 (reasoning that a
factfinder may reject the defendant’s version of an incident); see also State v. Neal, 2008-
NMCA-008, ¶ 19, 143 N.M. 341, 176 P.3d 330 (“The test is not whether substantial
evidence would support an acquittal, but whether substantial evidence supports the verdict
actually rendered.”). We hold that sufficient evidence supported the jury’s finding that
Defendant intentionally violated the order of protection.
D. Due Process
Defendant argues that punishing him criminally based on an ex parte order of
protection violates due process. Defendant does not state how he preserved this issue below,
or why this issue need not be preserved, and therefore we decline to address it. See State v.
Dombos, 2008-NMCA-035, ¶ 21, 143 N.M. 668, 180 P.3d 675 (declining to address the
defendant’s due process arguments on appeal where the defendant did not preserve them);
see also State v. Torres, 2005-NMCA-070, ¶ 34, 137 N.M. 607, 113 P.3d 877 (stating that
this Court will not address issues unsupported by argument and authority). As a result, we
conclude that Defendant failed to preserve his due process claim.
CONCLUSION
For the foregoing reasons, we affirm Defendant’s conviction and sentence.
IT IS SO ORDERED.
____________________________________
TIMOTHY L. GARCIA, Judge
21
WE CONCUR:
____________________________________
MICHAEL D. BUSTAMANTE, Judge
____________________________________
CYNTHIA A. FRY, Judge
22