State v. Tarango

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-38873
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ESPERANZA TARANGO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Donna J. Mowrer, District Judge
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
DUFFY, Judge.
{1} Defendant Esperanza Tarango appeals her convictions for kidnapping, contrary
to NMSA 1978, Section 30-4-1 (2003); residential burglary, contrary to NMSA 1978,
Section 30-16-3(A) (1971); and aggravated battery (great bodily harm), contrary to
NMSA 1978, Section 30-3-5(C) (1969). Defendant raises four issues on appeal: (1) her
convictions for kidnapping and aggravated battery violate double jeopardy; (2) there is
insufficient evidence to sustain her convictions; (3) the district court erred in admitting
video of Defendant’s interrogation; and (4) the State committed prosecutorial
misconduct by asking a detective the basis for the charges against Defendant. We
reverse Defendant’s convictions for aggravated battery and residential burglary, but
affirm her conviction for kidnapping.
DISCUSSION
I. The State’s Concessions
{2} Defendant contends that her convictions for kidnapping and aggravated battery
violate double jeopardy because her “convictions arose under separate statutes . . . but
are both based on the same conduct.” Defendant also contends that there is insufficient
evidence to sustain her conviction for residential burglary, on grounds that the State
failed to prove that she had the “intent to commit a theft” when entering Victim’s home.
The State concedes both points. While we are not bound to accept the State’s
concessions, State v. Palmer, 1998-NMCA-052, ¶ 12, 125 N.M. 86, 957 P.2d 71, we
accept them here and reverse Defendant’s convictions for aggravated battery and
residential burglary. We proceed to address the remainder of Defendant’s arguments in
relation to the remaining kidnapping conviction.
II. The Evidence Is Sufficient to Sustain Defendant’s Conviction
{3} Defendant challenges the sufficiency of the evidence to support her conviction,
arguing that the testimony of her co-defendants is “inheritably unreliable” and “should be
insufficient to sustain the conviction[] in this case.” Applying the well-established
standard of review set forth in State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M.
711, 998 P.2d 176, we reject Defendant’s argument for two reasons.
{4} First, the jury heard testimony from additional witnesses, including Victim, which
was sufficient in and of itself to sustain Defendant’s conviction. Defendant argues that
Victim’s testimony is not wholly reliable because he testified to smoking meth once a
month.1 However, “[t]he jury alone is the judge of the credibility of the witnesses and
determines the weight afforded to testimony.” State v. Candelaria, 2019-NMSC-004, ¶
45, 434 P.3d 297 (internal quotation marks and citation omitted); see also State v. Soliz,
1969-NMCA-043, ¶ 8, 80 N.M. 297, 454 P.2d 779 (“[T]he testimony of a single witness
is sufficient evidence for a conviction.”).
{5} Second, our Supreme Court held long ago that “a defendant may be convicted
on the uncorroborated testimony of an accomplice.” State v. Gutierrez, 1965-NMSC-
143, ¶ 4, 75 N.M. 580, 408 P.2d 503. To the extent that our courts have historically
recognized that accomplice testimony “should be viewed with suspicion,” State v.
Sarracino, 1998-NMSC-022, ¶ 14, 125 N.M. 511, 964 P.2d 72, we have also left
determinations of credibility and weight to the jury. See State v. Garcia, 2011-NMSC-
003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (“New Mexico appellate courts will not invade
1Defendant briefly mentions that Victim testified that Defendant hit him at the direction of one of her co-
defendants. To the extent Defendant offers this testimony to suggest that her co-defendants should not
be believed (i.e., that they sought to blame Defendant for a crime they directed), Victim’s testimony does
not undermine the fact that Defendant engaged in conduct sufficient to sustain her conviction.
the jury’s province as fact-finder by second-guessing the jury’s decision concerning the
credibility of witnesses, reweighing the evidence, or substituting its judgment for that of
the jury.” (alterations, internal quotation marks, and citation omitted)); see also
Candelaria, 2019-NMSC-004, ¶ 45. Defendant, for her part, called attention to the
reliability and credibility of her co-defendants’ testimony during cross-examination,
where defense counsel questioned those witnesses at length about the contours of their
plea agreements and highlighted for the jury that these witnesses each received less
time in exchange for their testimony. Nevertheless, it was well within the jury’s fact-
finding function to conclude that the testimony presented at trial was credible.
{6} Having reviewed the evidence presented at trial, we conclude that the testimony
offered by multiple witnesses was sufficient to support Defendant’s conviction beyond a
reasonable doubt, and we decline to disturb the jury’s verdict.
III. Admission of Defendant’s Interrogation Video Was Harmless Error
{7} Defendant next argues that the district court erred by admitting a video of her
police interrogation. During the interrogation, Defendant can be heard discussing a
recent conviction for possession of marijuana, and how that had caused issues with her
ability to see her son. Assuming without deciding that these portions of the video were
admitted in error, we conclude that any error was harmless.
{8} “Improperly admitted evidence is not grounds for a new trial unless the error is
determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110. To
determine if the error was harmful, we engage in a harmless error analysis, where “we
look to whether there is a reasonable probability that the error affected the verdict.”
State v. Astorga, 2015-NMSC-007, ¶ 43, 343 P.3d 1245. “Reviewing courts are to
evaluate all of the circumstances surrounding the error, including examining the error
itself, the source of the error, the emphasis on the error, and whether the error was
cumulative or introduced new facts.” State v. Hernandez, 2017-NMCA-020, ¶ 20, 388
P.3d 1016. “To put the error in context, we often look at the other, non-objectionable
evidence of guilt, not for a sufficiency-of-the-evidence analysis, but to evaluate what role
the error played at trial.” State v. Leyba, 2012-NMSC-037, ¶ 24, 289 P.3d 1215.
{9} Defendant contends that the video “unquestionably painted [her] in an
unflattering light” and because the State played the video during closing, there was a
reasonable probability the video contributed to the verdict. However, the portions of the
video that Defendant objects to were played only once during trial, and were not
replayed during closing, though other portions of the interrogation were. Our
independent review of the record reveals that the admission of the video did not play a
significant role at trial. First, the most inculpatory evidence came from the testimony of
Victim and the co-defendants. Victim and both co-defendants testified that the entire
incident was because Defendant could not find either her backpack or a pouch in the
backpack, and there is no dispute that Defendant was present throughout the entire
incident. Further, Victim testified that he believed Defendant tied his hands behind his
back, while Victim and a co-defendant testified that Defendant hit Victim with an object.
{10} Because the video testimony to which Defendant objects was brief, was not
emphasized, and was minor in the context of the evidence introduced in support of the
kidnapping charge, we cannot conclude that there was a reasonable probability that the
error affected the verdict. We, therefore, hold that any error admitting the video was
harmless.
IV. The State’s Line of Questioning Did Not Amount to Prosecutorial
Misconduct
{11} Defendant contends the State committed prosecutorial misconduct by eliciting
testimony from a deputy about why he charged Defendant with kidnapping. While
Defendant objected to this line of questioning, she did not object on prosecutorial
misconduct grounds. Our review of this issue is for fundamental error. State v. Trujillo,
2002-NMSC-005, ¶ 52, 131 N.M. 709, 42 P.3d 814.
{12} For prosecutorial misconduct to rise to the level of fundamental error, the conduct
must have been “so egregious” and have “had such a persuasive and prejudicial effect
on the jury’s verdict that the defendant was deprived of a fair trial.” State v. Allen, 2000-
NMSC-002, ¶ 95, 128 N.M. 482, 944 P.2d 728 (internal quotation mark and citation
omitted). “As with any fundamental error inquiry, we will upset a jury verdict only (1)
when guilt is so doubtful as to shock the conscience, or (2) when there has been an
error in the process implicating the fundamental integrity of the judicial process.” State
v. Sosa, 2009-NMSC-056, ¶ 35, 147 N.M. 351, 223 P.3d 348.
{13} During direct examination, the State asked the investigating deputy, “without
commenting on the law,” why he charged Defendant. In the deputy’s responses, he
provided a brief and general overview of the facts that led to his charging
determinations. For example, when questioned about the charges, the deputy stated he
charged Defendant with kidnapping because of the “physical evidence and the
statements of [Victim] and what Detective Meeks learned during his interviews.” He
stated that he charged her with aggravated battery because of the “severity of the
injuries” and “the manner in which those injuries were inflicted,” and that he charged her
with residential burglary because “[Victim’s] residence had its door kicked in and had
the inside gone through, like someone intended to rob it.” Eliciting such testimony,
Defendant argues, constitutes prosecutorial misconduct because the testimony
“suggested to the jury that the investigating officers had reviewed the evidence and
found [Defendant] guilty so the jury should trust their expertise and do so as well.” See
State v. Ashley, 1997-NMSC-049, ¶ 18, 124 N.M. 1, 946 P.2d 205 (“A prosecutor may
not imply that guilt has been determined by a judicial officer.”).
{14} Based on our review of the record, we cannot conclude the State’s questioning
had a persuasive and prejudicial effect requiring us to overturn Defendant’s convictions.
See Allen, 2000-NMSC-002, ¶ 95. The testimony elicited by the prosecutor referenced
properly admitted evidence and not personal opinions unrelated to such evidence, and
importantly, did not touch upon the ultimate issue of the case. Further, the testimony
elicited was not later highlighted by the State and amounts to an “isolated, minor
impropriety.” Id. While we understand Defendant’s concern that the officer’s testimony
toed the line of improper vouching, in context, we are not persuaded that the
prosecutor’s line of questioning was prejudicial enough to deprive Defendant of a fair
trial. We conclude that any error resulting from this line of questioning does not rise to
the level of fundamental error.
CONCLUSION
{15} For the foregoing reasons, we reverse Defendant’s convictions for aggravated
battery and residential burglary and remand to the district court with instructions to
vacate both convictions. We otherwise affirm Defendant’s kidnapping conviction.
{16} IT IS SO ORDERED.
MEGAN P. DUFFY, Judge
WE CONCUR:
SHAMMARA H. HENDERSON, Judge
KATHERINE A. WRAY, Judge