{ "id": 4192028, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. DAVID RAMOS-ARENAS, Defendant-Appellant", "name_abbreviation": "State v. Ramos-Arenas", "decision_date": "2012-08-17", "docket_number": "No. 33,814; Docket No. 30,092", "first_page": "74", "last_page": "81", "citations": [ { "type": "official", "cite": "2012-NMCA-117" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2009-NMCA-055", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4244528 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0267-01" ] }, { "cite": "1999-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106506 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0454-01" ] }, { "cite": "2008-NMCA-006", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3783928 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0328-01" ] }, { "cite": "1999-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257653 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0368-01" ] }, { "cite": "596 F.3d 783", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4218138 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/f3d/596/0783-01" ] }, { "cite": "2009-NMSC-056", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245720 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 26" }, { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0351-01" ] }, { "cite": "111 N.M. 263", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715157 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "266", "parenthetical": "\"Because the [district] judge's observations of the proceedings are such a critical factor in determining whether the fairness of the trial will be affected, appellate courts review such rulings only for abuse of discretion.\"" }, { "page": "1085", "parenthetical": "\"Because the [district] judge's observations of the proceedings are such a critical factor in determining whether the fairness of the trial will be affected, appellate courts review such rulings only for abuse of discretion.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0263-01" ] }, { "cite": "2006-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2548696 ], "weight": 6, "year": 1990, "pin_cites": [ { "page": "\u00b6 50" }, { "page": "\u00b6 50" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0700-01" ] }, { "cite": "195 S.W.3d 876", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 8414394 ], "weight": 10, "year": 2006, "pin_cites": [ { "page": "878" }, { "page": "879" }, { "page": "881", "parenthetical": "internal quotation marks omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citations omitted" }, { "page": "881-82" } ], "opinion_index": 0, "case_paths": [ "/sw3d/195/0876-01" ] }, { "cite": "2012-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4190294 ], "pin_cites": [ { "page": "\u00b627" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0135-01" ] }, { "cite": "2001-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183136 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 32" }, { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0001-01" ] }, { "cite": "2008-NMCA-109", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4002210 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0655-01" ] }, { "cite": "2010-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248191 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0391-01" ] }, { "cite": "118 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563429 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "242" }, { "page": "853" }, { "page": "244" }, { "page": "855" }, { "page": "242" }, { "page": "853", "parenthetical": "stating that words are to be given their ordinary meaning unless the Legislature indicates otherwise" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0234-01" ] }, { "cite": "2007-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669085 ], "weight": 6, "pin_cites": [ { "page": "\u00b62" }, { "page": "\u00b6 9" }, { "page": "\u00b6 9" }, { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0817-01" ] } ], "analysis": { "cardinality": 999, "char_count": 23611, "ocr_confidence": 0.828, "pagerank": { "raw": 4.5046715916883656e-08, "percentile": 0.2823488936999802 }, "sha256": "3ae46f0e8258de39b55a338252f1ae97e871d51b53324c03c7a70d66db49479b", "simhash": "1:09c04df3848112aa", "word_count": 3836 }, "last_updated": "2023-07-14T14:46:09.531131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LINDA M. VANZI, Judge", "JAMES J. WECHSLER, Judge", "CYNTHIA A. FRY, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. DAVID RAMOS-ARENAS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nVANZI, Judge.\n{1} Defendant David Ramos-Arenas appeals from his convictions for one count of false imprisonment, contrary to NMSA 1978, Section 30-4-3 (1963), and two counts of impersonating a peace officer in violation of NMSA 1978, Section 30-27-2.1 (1999). The central issue in this case is whether a federal border patrol agent is a \u201cpeace officer\u201d within the meaning of Section 30-27-2.1. We agree with the district court that the statutory definition of \u201cpeace officer\u201d includes the impersonation of federal officials, and we affirm on that issue. We also conclude that the district court did not abuse its discretion in denying D efendant\u2019s motion for mistrial b ased on prosecutorial misconduct. Finally, finding no error in the district court\u2019s other rulings, we affirm Defendant\u2019s convictions.\nBACKGROUND\n{2} Defendant was charged with two counts of impersonating a peace officer arising out of separate incidents in which he pretended to be a United States border patrol agent. Officer George Bernal, a New Mexico State Police Officer, testified that on February 24,2008, he stopped a vehicle in which Defendant was a passenger. Because the driver was cooperative and admitted that she had been speeding, the officer decided to issue her a citation with a lower penalty assessment. While the officer was speaking with the driver, Defendant told the officer that he was a border patrol agent and that he worked in San Diego. The officer asked for Defendant\u2019s credentials \u2014 his badge and identification \u2014 but D efendant said that he did not have them with him and that he had left them at home. Although he did not have his credentials, based on the fact that Defendant \u201cwas a fellow law enforcement officer\u201d and because the driver was cooperative, the officer decided to \u201cgo ahead and just make this a written warning.\u201d\n{3} On March 11, 2008, Defendant again impersonated a border patrol agent. Lucy Jimenez, a victim\u2019s advocate with the Las Cruces District Attorney\u2019s Office, testified that on that date, she was driving back to her office in the late morning after dropping off a client, when she noticed a truck in her rear-view mirror moving toward her. As she reached an intersection, the truck accelerated past Jimenez and blocked her car from moving. Defendant, who was wearing a green border patrol shirt and a silver badge on his belt, got out of the truck and approached Jimenez\u2019s vehicle. Jimenez lowered her window two to three inches. Defendant told Jimenez that she had broken the law by \u201ctransporting illegal aliens\u201d and asked for her identification. Jimenez put her district attorney identification up to the window, and Defendant then asked for Jimenez\u2019s driver\u2019s license. Jimenez became concerned because she did not see a name tag on Defendant\u2019s shirt, so she asked for his identification. Defendant responded by asking again for her driver\u2019s license and tapped on the window, telling Jimenez to put the window down. Defendant told Jimenez that he could \u201ctake [her] in and . . . call others to come and they would take [her] in.\u201d After Jimenez told Defendant that she had to call her boss, the district attorney, Defendant returned to his truck and backed out of the way, allowing Jimenez to leave.\n{4} Prior to trial, Defendant filed a motion to dismiss pursuant to Rule 5-601(B) NMRA. He argued that the United States Border Patrol is a subdivision of the United States Immigration and Customs Enforcement division of the federal Department of Homeland Security and that the statutory definition of a peace officer is limited to New Mexico state officials and officers. The district court denied Defendant\u2019s motion, and the case proceeded to trial. Defendant raised the issue again at the close of trial and tendered a jury instruction that read in part that in order to convict him for the crime of impersonating a peace officer, the jury had to find that Defendant \u201cpretended to be an officer of the State of New Mexico or any of its political subdivisions.\u201d The district court rejected the proposed instruction, and Defendant was convicted by a jury on all counts.\nDISCUSSION\n{5} On appeal, we first address Defendant\u2019s argument that the district court erred in failing to dismiss the two counts of impersonating a peace officer in violation of Section 30-27-2.1. Next, we consider Defendant\u2019s contention that he should have been granted a mistrial due to prosecutorial misconduct based on a statement the prosecutor made in his closing argument. Finally, we resolve the other issues raised by Defendant.\nSection 30-27-2.1 Applies to the Impersonation of Federal Officers\n{6} \u201cWe review questions of statutory interpretation de novo.\u201d State v. Moya, 2007-NMSC-027, \u00b62, 141 N.M. 817, 161 P.3d 862 (internal quotation marks and citation omitted). When interpreting a statute, our primary goal is to determine and give effect to the Legislature\u2019s intent. Id. \u00b6 6. In doing so, we first look \u201cto the words the Legislature chose and the plain meaning of the language.\u201d Id. \u201cThe words of a statute, including terms not statutorily defined, should be given their ordinary meaning absent clear and express legislative intention to the contrary.\u201d State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994). We will \u201capply the plain meaning of the statute unless the language is doubtful, ambiguous, or an adherence to the literal use of the words would lead to injustice, absurdity, or contradiction, in which case the statute is to be construed according to its obvious spirit or reason.\u201d State v. Tafoya, 2010-NMSC-019, \u00b6 10, 148 N.M. 391, 237 P.3d 693 (internal quotation marks and citation omitted). We strictly construe penal statutes and \u201cwill not extend punishment to cases not plainly within the statutory language used.\u201d State v. Littlefield, 2008-NMCA-109, \u00b6 8, 144 N.M. 655, 190 P.3d 1150 (alteration, internal quotation marks, and citation omitted). However, \u201c[a] court should not hobble statutory interpretation with the requirement that every circumstance meant to be covered must be specifically mentioned in the statute.\u201d Ogden, 118 N.M. at 244, 880 P.2d at 855.\n{7} Defendant argues that the Legislature limited the definition of \u201cpeace officer\u201d to New Mexico state officials and officers and that it did not intend for the statute to include the impersonation of federal agents. Thus, Defendant contends, the charges against him for impersonating a federal border patrol agent should have been dismissed. The State asserts that the plain language of Section 30-27-2.1 evinces a legislative intent to protect New Mexicans from the misuse of any appearance of authority to maintain order or make arrests. For the following reasons, we agree with the State. We begin with the text of the statute.\n{8} Section 30-27-2.1(A), (C), provides, in relevant part,\nA. Impersonating a peace officer consists of:\n(1) without due authority exercising or attempting to exercise the functions of a peace officer; or\n(2) pretending to be a peace officer with the intent to deceive another person.\nC. As used in this section, \u201cpeace officer\u201d means any public official or public officer vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes.\n(Emphasis added.)\n{9} As we have noted, Defendant argues that the definition of \u201cpeace officer\u201d is limited by the Legislature\u2019s use of the term \u201cpublic officer.\u201d \u201cPublic officer\u201d is uniformly defined for purposes of the Criminal Code as \u201cany elected or appointed officer of the state or any of its political subdivisions^.]\u201d NMSA 1978, \u00a7 30-1-12(1) (1963) (emphasis added). Thus, Defendant asserts, the definition of \u201cpublic officer\u201d refers only to New Mexico state actors. The State does not take issue with Defendant\u2019s definition of \u201cpublic officer.\u201d However, the State points out that unlike the uniform definition of \u201cpublic officer,\u201d no such definition exists for \u201cpublic official.\u201d It argues that the term should, therefore, be interpreted in a way that reflects legislative intent and according to its ordinary meaning. See Ogden, 118 N.M. at 242, 880 P.2d at 853 (stating that words are to be given their ordinary meaning unless the Legislature indicates otherwise).\n{10} When interpreting a statute, we must interpret it \u201cin its entirety, so that each part of the statute is given meaning and no part is superfluous.\u201d Moya, 2007-NMSC-027, \u00b6 9; State v. Javier M., 2001-NMSC-030, \u00b6 32, 131 N.M. 1, 33 P.3d 1. Section 30-27-2.1(C) defines \u201cpeace officer\u201d as \u201cany public official or public officer.\u201d (Emphasis added.) See \u00a7 30-1-12(C); UJI 14-2216 NMRA. \u201cAs a rule of construction, the word \u2018or\u2019 should be given its normal disjunctive meaning unless the context of a statute demands otherwise.\u201d Diamond v. Diamond, 2012-NMSC-022, \u00b627, ___P.3d__(internal quotation marks and citation omitted). Here, the use of the disjunctive between \u201cpublic official\u201d and \u201cpublic officer\u201d makes clear that a \u201cpeace officer\u201d is not limited only to those defined as \u201cpublic officers\u201d under Section 30-2-12(1). With this guidance, we look to the ordinary meaning of \u201cpublic official\u201d to determine if the term is limited to state officers.\n{11} The ordinary meaning of a public official is \u201c[o]ne who holds or is invested with a public office; a person elected or appointed to carry out some portion of a government\u2019s sovereign powers.\u201d Black\u2019s Law Dictionary 1195 (9th ed. 2009). Accordingly, \u201cpublic official\u201d has a broader meaning than \u201cpublic officer.\u201d Further, it is clear that the power to carry out some portion of the state\u2019s sovereign powers includes the power to maintain order or make arrests. See \u00a7 30-27-2.1(C) (providing that a \u201cpeace officer\u201d is one who is \u201cvested by law with a duty to maintain public order or to make arrests for crime\u201d). By giving \u201cpublic official\u201d its ordinary meaning and recognizing its distinction from a \u201cpublic officer,\u201d we avoid a redundant result that would otherwise be rendered mere surplusage. See Moya, 2007-NMSC-027, \u00b6 9; Javier M., 2001-NMSC-030, \u00b6 32. Consequently, based on the plain language of the statute, the terms \u201cpublic official\u201d and \u201cpublic officer\u201d are not synonymous, and the definition of \u201cpublic official\u201d is not limited to \u201cany elected or appointed officer of the state or any of its political subdivisions.\u201d And because border patrol agents are vested with the authority to maintain order and make arrests, Defendant\u2019s impersonation of a border patrol agent falls within the conduct proscribed by the statute. See \u00a7 30-27-2.1.\n{12} Our conclusion here is consistent with at least one other court\u2019s interpretation of a similar legislative provision. In Rice v. State, 195 S.W.3d 876, 878 (Tex. Ct. App. 2006), the defendant appealed his conviction of impersonating a public servant and possession of cocaine. In that case, a Texas state trooper had pulled the defendant over for unregistered license plates. Id. The defendant, who was wearing a department of corrections uniform with a patch that read \u201cState of Louisiana,\u201d told the officer that he worked for the department of corrections and that he had been to Texas to pick up a prisoner. Id. at 879. The officer sensed that \u201csomething was not right\u201d and, after additional backup arrived, found cocaine in the trunk of the car. Id. On appeal, the defendant conceded that he had held himself out as \u201can official of the [s]tate of Louisiana\u201d but argued that the Texas penal code (code) prohibiting such conduct applies only when the person represents that he is an official of the state of Texas. Id. at 881 (internal quotation marks omitted). Under the Texas code, a person commits an offense if he \u201cimpersonates a public servant.\u201d Id. (internal quotation marks and citation omitted). The code defines a \u201cpublic servant\u201d as \u201can officer, employee, or agent of government^]\u201d and \u201c[government\u201d means \u201cthe state.\u201d Id. (internal quotation marks and citations omitted). Noting that the code does not define \u201cthe state,\u201d the Texas appellate court looked to the legislature\u2019s purpose in enacting the legislation. Id. The primary purpose of the code, the court stated, was clear: \u201c[T]he general public should not be placed at risk of submitting to the pretended authority of an individual impersonating an agent of a \u2018government unit,\u2019 regardless of whether the individual is impersonating a Texas officer, employee, or agent or a Louisiana officer, employee, or agent.\u201d Id. Consequently, the scope of the code was not limited only to individuals impersonating officers of the state of Texas, and the defendant\u2019s conviction was upheld. Id. at 881-82.\n{13} The Texas court\u2019s interpretation of its penal code comports with our understanding of the legislative purpose behind Section 30-27-2.1. The principal objective of our statutory provision is to protect the public from being harmed or deceived into believing a person is a peace officer and has the authority to act in an official capacity, when in fact, there is no such authority to do so. See \u00a7 30-27-2.1; see also Moya, 2007-NMSC-027, \u00b6 16 (stating that the \u201clanguage of penal statutes should be given a reasonable or common sense construction consonant with the objects of the legislation, and the evils sought to be overcome should be given special attention\u201d (internal quotation marks and citation omitted)). Moreover, to construe the statute as Defendant suggests would lead to an absurd result. Accordingly, we conclude that Section 30-27-2.1 is not limited to only those persons impersonating public officials of the State of New Mexico but includes impersonating public officials of other states and the federal government. The district court properly denied Defendant\u2019s Rule 5-601(B) motion to dismiss and correctly refused Defendant\u2019s tendered jury instruction as an incorrect statement of the law.\nThe District Court Did Not Abuse Its Discretion When It Denied Defendant\u2019s Motion for Mistrial\n{14} Defendant argues that a statement made by the State in its closing argument amounted to prosecutorial misconduct and that the district court erred in denying his motion for mistrial. During the course of the trial, Defendant\u2019s employer and others testified that Defendant told them he had previously been enrolled in the Border Patrol Academy (Academy) and that he left due to the death of his father or a death in the family. In fact, Defendant was withdrawn from the Academy due to inappropriate conduct. At the end of his closing argument, the prosecutor discussed Defendant\u2019s credibility and, in particular, Defendant\u2019s claims that he left the Academy because of the death ofhis father, stating,\n[Rationalization is something important to [Defendant], he can rationalize the death ofhis father to get a job. The death ofhis father. He could have said, \u201cNo, I left it because my ankle was hurting in the Border Patrol. My knee got hurt. . .\u201d He had to kill his father. He had to say because ofhis father\u2019s death. \u201cMy father\u2019s death [led] me to leave.\u201d This is a person who will rationalize.\nAfter the prosecutor concluded his closing and before the jury retired, defense counsel asked to approach the bench and moved for a mistrial on the ground\u2019s that prosecutor\u2019s comment, \u201c[h]e had to kill his father,\u201d was said only to inflame the jury. The court denied the motion.\n{15} OnappealDefendant argues that the prosecutor\u2019s comments in his closing argument created a prejudicial effect on the jury\u2019s verdict and deprived him of his constitutional rights to due process and a fair trial. He asserts specifically that \u201cthe jury could have convicted him because it thought he was a bad person who deserved to be punished.\u201d Thus, Defendant argues, the only remedy for the prosecutorial misconduct was a mistrial, and the district court abused its discretion in denying the motion.\n{16} Where the error is preserved, \u201c[w]e review a [district] court\u2019s denial of a motion for mistrial on the basis of remarks made in closing argument for an abuse of discretion.\u201d State v. Fry, 2006-NMSC-001, \u00b6 50, 138 N.M. 700, 126 P.3d 516; State v. Reynolds, 111 N.M. 263, 266, 804 P.2d 1082, 1085 (Ct. App. 1990) (\u201cBecause the [district] judge\u2019s observations of the proceedings are such a critical factor in determining whether the fairness of the trial will be affected, appellate courts review such rulings only for abuse of discretion.\u201d). Our task is to determine \u201cwhether the relative weight ofthe error meets the threshold required to reverse a conviction.\u201d State v. Sosa, 2009-NMSC-056, \u00b6 26, 147 N.M. 351, 223 P.3d 348. Although the State contends that Defendant\u2019s objection was not timely, and thus not preserved, the result here would be the same regardless of whether we review under an abuse of discretion or fundamental error standard. For this reason, we assume without deciding that Defendant\u2019s objection was timely and review the district court\u2019s denial of his motion for mistrial for an abuse of discretion. \u201cBecause [district] judges are in the best position to assess the impact of any questionable comment, we afford them broad discretion in managing closing argument.\u201d Id. \u00b6 25. We will find that a district court has abused its discretion when it acted in an \u201cobviously erroneous, arbitrary, or unwarranted manner.\u201d Fry, 2006-NMSC-001, \u00b6 50 (internal quotation marks and citation omitted).\n{17} The question on appeal is whether Defendant was deprived of a fair trial by the prosecutor\u2019s statement, \u201c[h]e killed his father.\u201d See id. To answer this question, \u201cwe review the comment in context with the closing argument as a whole ... so that we may gain a full understanding of the comments and their potential effect on the jury.\u201d Id. (internal quotation marks and citation omitted). \u201c[T]he general rule is that an isolated comment made during closing argument is not sufficient to warrant reversal.\u201d Sosa, 2009-NMSC-056, \u00b6 29 (internal quotation marks and citation omitted). Our review of the transcripts establishes that the prosecutor\u2019s comment that Defendant \u201ckilled his father\u201d was isolated. Put in context, it is evident that the prosecutor was attacking Defendant\u2019s credibility and that he was doing so by reminding the jury that Defendant had lied about why he left the border patrol academy. The prosecutor\u2019s choice ofphrasing could have been better. However, attorneys are afforded \u201creasonable latitude in their closing statements,\u201d and rebuttal in particular is responsive and \u201cnot always capable of the precision that goes into prepared remarks.\u201d Id. \u00b6\u00b6 24-25. Given this latitude, the context in which the statement was made, and the evidence of guilt offered against Defendant, we cannot see a substantial likelihood that the statement prejudiced the jury so as to deny him a fair trial. The district court did not abuse its discretion in denying Defendant\u2019s motion for mistrial.\nThere Is No Showing of Prosecutorial Vindictiveness; Defendant\u2019s Double Jeopardy Rights Were Not Violated; and Defendant\u2019s Objection to an In-Court Identification Was Not Preserved\n{18} Prior to trial at issue here, Defendant had been tried in both state and federal court on charges arising out of the same conduct. In the first state case, Defendant was tried on the charge of impersonating an officer with regard to the March 11, 2008 incident. That trial ended in a mistrial. In the federal case, Defendant was tried and convicted for the February 24, 2008 incident. See United States v. Ramos-Arenas, 596 F.3d 783 (10th Cir. 2010). Before he was re-tried in state court, the State amended the criminal information to include a second count for impersonating a peace officer based on the February 24, 2008 incident.\n{19} D efendant argues that the amendment of the criminal information to include the count based on the February 24, 2008 incident was a result of prosecutorial vindictiveness. He also contends that being charged in state court for the February 24, 2008 incident after he had already been convicted for it in federal court violated his right to be free from double jeopardy. He raised these issues in a pretrial motion to dismiss and argues that the district court erred in denying that motion. We address each of these points in turn.\n{20} A defendant\u2019s claim of prosecutorial vindictiveness presents a mixed question of fact and law. State v. Brule, 1999-NMSC-026, \u00b6 6, 127 N.M. 368, 981 P.2d 782. Here, the facts are not in dispute, so our review is purely de novo. See id. \u201cOur focus in analyzing a claim of prosecutorial vindictiveness is on whether the prosecutor has done an act that would not have occurred but for hostility or punitive animus toward the defendant because [the defendant] exercised a specific legal right.\u201d Id. \u00b6 10 (alteration, internal quotation marks, and citation omitted). As the basis for Defendant\u2019s claim, Defendant asserts that the prosecutor amended the criminal information because the prosecutor failed to obtain a conviction against defendant in his first trial in state court. Defendant does not identify a specific legal right that he exercised nor does he argue that the prosecutor\u2019s amendment to the criminal information was in response to the exercise of a specific legal right. Defendant has not established the basis for a claim of prosecutorial vindictiveness, and the district court\u2019s denial of his motion was proper.\n{21} Defendant also contends that the district court erred in refusing to dismiss the February 24, 2008 charge because it was added to the criminal information after he had been convicted in federal court for that crime. This, he asserts, violated his right to be free from double jeopardy. It is well established that where a defendant\u2019s conduct constitutes \u201ca criminal offense within the geographical authority of more than one sovereign, each sovereign may prosecute regardless of what the other has done.\u201d State v. Glascock, 2008-NMCA-006, \u00b6 24, 143 N.M. 328, 176 P.3d 317 (internal quotation marks and citation omitted). This is true where, as here, Defendant was prosecuted for the violation of both state and federal law. See id. \u00b6\u00b6 23-25. Defendant\u2019s right to be free from double jeopardy was not violated by the addition of the charge and his convictions in both the federal and state courts.\n{22} Finally, we address Defendant\u2019s argument that the district court erred when it denied his motion to suppress a witness\u2019s photo identification of him prior to the first trial. Defendant now claims that the admission of the witness\u2019s identification of him at his second trial was reversible error. However, Defendant concedes that he did not renew his motion to exclude the witness\u2019s in-court identification at his second trial, nor did he object at trial when the witness identified him in court. Defendant failed to preserve this argument for appeal, and we do not consider it here. State v. Varela, 1999-NMSC-045, \u00b6 25, 128 N.M. 454, 993 P.2d 1280; State v. Balenquah, 2009-NMCA-055, \u00b6 18, 146 N.M. 267, 208 P.3d 912.\nCONCLUSION\n{23} For the reasons set forth above, we affirm Defendant\u2019s convictions.\n{24} IT IS SO ORDERED.\nLINDA M. VANZI, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nCYNTHIA A. FRY, Judge", "type": "majority", "author": "VANZI, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Andrew S. Montgomery, Assistant Attorney General Santa Fe, NM for Appellee", "Jacqueline L. Cooper, Chief Public Defender Eleanor Brogan, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, October 10, 2012,\nNo. 33,814\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2012-NMCA-117\nFiling Date: August 17, 2012\nDocket No. 30,092\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. DAVID RAMOS-ARENAS, Defendant-Appellant.\nGary K. King, Attorney General Andrew S. Montgomery, Assistant Attorney General Santa Fe, NM for Appellee\nJacqueline L. Cooper, Chief Public Defender Eleanor Brogan, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0074-01", "first_page_order": 90, "last_page_order": 97 }