{ "id": 4242097, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Jennifer Ann ROMERO, Defendant-Appellant", "name_abbreviation": "State v. Romero", "decision_date": "2008-12-09", "docket_number": "No. 27,236", "first_page": "594", "last_page": "604", "citations": [ { "type": "official", "cite": "145 N.M. 594" }, { "type": "parallel", "cite": "203 P.3d 125" }, { "type": "parallel", "cite": "2009-NMCA-012" } ], "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": "2005-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2550283 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0659-01" ] }, { "cite": "111 N.M. 354", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715151 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "355" }, { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0354-01" ] }, { "cite": "2006-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2544827 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 22" }, { "page": "\u00b624" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0106-01" ] }, { "cite": "2007-NMCA-082", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669588 ], "weight": 11, "pin_cites": [ { "page": "\u00b6 7" }, { "parenthetical": "citation omitted" }, { "page": "\u00b6 7" }, { "page": "\u00b67" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0875-01" ] }, { "cite": "120 N.M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558970 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "279" }, { "page": "210" }, { "page": "279" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0274-01" ] }, { "cite": "96 N.M. 138", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577298 ], "weight": 8, "year": 1981, "pin_cites": [ { "page": "139-40" }, { "page": "1135-36" }, { "page": "141" }, { "page": "1137" }, { "page": "142" }, { "page": "1138" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0138-01" ] }, { "cite": "1999-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827383 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 19" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0438-01" ] }, { "cite": "2001-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352435 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0618-01" ] }, { "cite": "1998-NMCA-178", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827428 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0382-01" ] } ], "analysis": { "cardinality": 1083, "char_count": 34900, "ocr_confidence": 0.697, "pagerank": { "raw": 5.0224527892937805e-08, "percentile": 0.3162153469179091 }, "sha256": "3fe2b89520773c94f22544510d23824178f21556cda0a5bd94d5f7cb427f673d", "simhash": "1:b87c22e8fca02a72", "word_count": 5718 }, "last_updated": "2023-07-14T14:53:47.998828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "I CONCUR: MICHAEL D.", "BUSTAMANTE, Judge and RODERICK T. KENNEDY, Judge (specially concurring)." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Jennifer Ann ROMERO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} A jury found Defendant Jennifer Ann Romero guilty of the fourth-degree felony of custodial interference under NMSA 1978, Section 30-4-4(B) (1989). On appeal, Defendant argues that (1) the State failed to introduce evidence at her trial that was sufficient to support the jury\u2019s verdict, (2) the district court erred in refusing to give certain jury instructions that she requested, and (3) the district court erred in denying her motion for a new trial. Although we conclude that a minor correction in Defendant\u2019s judgment and sentence is necessary, we affirm Defendant\u2019s conviction.\nBACKGROUND\n{2} Following an adjudicatory hearing in children\u2019s court in August 2004, legal custody of Defendant\u2019s children, including her son Joseph, was temporarily transferred to the Children, Youth and Families Department (CYFD). Pursuant to the order that resulted from that hearing, Defendant was still able to have visitation with Joseph, but any such visitation \u201cremain[ed] in the discretion of CYFD.\u201d Joseph was subsequently placed in a foster home in Las Cruces. In April 2005, while still in the legal custody of CYFD, Joseph, then fifteen years old, ran away from his foster home. Initially, Joseph went to a friend\u2019s house in Las Cruces, where he stayed for six days. Joseph then took a bus to Ruidoso. Upon arriving in Ruidoso, Joseph went directly to the home in which his grandmother and Defendant lived.\n{3} The following day, Defendant and Joseph\u2019s grandmother attempted to return Joseph to his foster home in Las Cruces. However, according to Joseph\u2019s later testimony, they were unable to do so because Joseph refused to disclose the address of his foster home and also threatened that he would either run away again or do harm to himself if he were forced to return. As a result, Defendant and Joseph\u2019s grandmother permitted Joseph to stay with them at their home. A few days later, Defendant contacted the CYFD caseworker in charge of Joseph\u2019s case by telephone. Defendant relayed her frustration to the CYFD caseworker that she was not informed that Joseph had run away from his foster home and vehemently questioned the quality of Joseph\u2019s foster care. Apparently, Defendant did not tell the CYFD caseworker during that conversation that Joseph was then with her at her home in Ruidoso, and the telephone call ended when the CYFD caseworker abruptly hung up on Defendant in reaction to her aggressive tone. The next day, a police officer, at the insistence of the CYFD caseworker, went to the home of Defendant and Joseph\u2019s grandmother. The officer found Joseph at the home and took him into custody. Defendant and Joseph\u2019s grandmother were each subsequently charged with a violation of Section 3(M-4.\n{4} Defendant\u2019s jury trial commenced on November 21, 2005. At trial, the State offered the CYFD caseworker\u2019s testimony. The CYFD caseworker testified that she made no attempt to contact Defendant or Joseph\u2019s grandmother before Defendant contacted her by telephone. She also stated that in that telephone call, Defendant (1) expressed her resentment of the fact that CYFD took custody of Joseph, (2) relayed her concern that Joseph would run away again if he were forced to return to foster care, and (3) admitted that she had purchased the bus ticket for Joseph to return to Ruidoso. The CYFD caseworker later admitted on cross-examination that Defendant did not provide Joseph with any money to purchase the bus ticket from Las Cruces to Ruidoso.\n{5} After the State rested its case, Defendant\u2019s counsel expressed his intention of calling Joseph\u2019s grandmother to testify. However, soon thereafter, it came to light that Joseph\u2019s grandmother had elected not to testify. Instead, Joseph was called as Defendant\u2019s first witness. Joseph testified that because he was unhappy at his foster home, he decided to run away and stay at a friend\u2019s house in Las Cruces. He further testified that after a few days at his friend\u2019s house, his friend\u2019s mother purchased a bus ticket for him to Ruidoso. He stated that neither Defendant nor his grandmother was aware that he was planning on returning to their home in Ruidoso. Finally, Joseph testified that (1) Defendant and his grandmother encouraged him to return to his foster home but that he was unwilling to do so, (2) neither Defendant nor his grandmother attempted to hide from the authorities the fact that he was living at their home, and (3) there was no plan for him to stay at their home for an extended period of time.\n{6} After Defendant rested her case, the district court instructed the jury according to Section 30-4-4(C). Ultimately, the jury returned a verdict of guilty. About one month later, Defendant filed a motion for a new trial, arguing, among other things, that because Joseph\u2019s grandmother was then willing to testify, her testimony constituted \u201cnewly discovered evidence that was not available at trial due to her unavailability\u201d and made a new trial necessary. The district court denied that motion. In November 2006, Defendant was sentenced to eighteen months of probation for her fourth-degree felony conviction of \u201cCustodial Interference\u201d under Section 30-4-4(B). This appeal followed.\nCUSTODIAL INTERFERENCE AND UNLAWFUL INTERFERENCE\n{7} We begin our analysis by noting that it appears as if the district court erroneously noted in Defendant\u2019s judgment and sentence that she had been convicted of custodial interference under Section 30-4-4(B). Our review of the instructions given to the jury indicates that Defendant was actually convicted of unlawful interference under Section 3(M-4(C). Although custodial interference under Section 30-4-4(B) and unlawful interference under Section 30-4-4(C) share several crucial elements and are both fourth-degree felonies, they differ in at least two material ways. Subsection B requires proof that the defendant actually had a right to custody of the child at issue, whereas Subsection C requires proof that the defendant did not have such a right. Compare \u00a7 30-4-4(B) (including \u201chaving a right to custody of a child\u201d as an element of the crime of custodial interference), with \u00a7 3(M-4(C) (including \u201cnot having a right to custody\u201d of a child as an element of the crime of unlawful interference). In Defendant\u2019s case, the jury was instructed that it was required to find that Defendant \u201cdid not have the right to custody of Joseph.\u201d Because the jury found Defendant guilty, it necessarily found beyond a reasonable doubt that Defendant did not have such a right. Additionally, custodial interference under Section 30-4-4(B) includes a \u201cgood cause\u201d exception, but unlawful interference under Section 30-4-4(0) does not. Compare \u00a7 30-4-4(B) (requiring proof that the element of \u201cmaliciously taking, detaining, concealing or enticing away or failing to return\u201d the child at issue was committed \u201cwithout good cause\u201d), with \u00a7 30-4-4(C) (failing to include a good cause exception to the element of \u201cmaliciously taking, detaining, concealing or enticing away or failing to return\u201d the child at issue). The jury instructions in this case did not include reference to a good cause exception. Our review of the jury instructions therefore leads us to the conclusion that (1) the jury was instructed on unlawful interference, not custodial interference and (2) Defendant was convicted of unlawful interference, not custodial interference.\n{8} Despite the error included in Defendant\u2019s judgment and sentence, Defendant was initially charged with one count of unlawful interference under Section 30-4-4(C). However, as Defendant notes in her brief in chief, the record contains inconsistencies about whether she was being charged under Section 30-4-4(B) for custodial interference or Section 30-4-4(C) for unlawful interference. Defendant therefore argues that because she was under the erroneous impression that she was being charged for custodial interference under Section 30-4-4(B), she was effectively prevented from preparing a proper defense to the charge of unlawful interference under Section 30-4-4(C). According to Defendant, and without citation to any authority, such an error entitles her to a new trial.\n{9} Although we agree that the record reveals a number of inconsistencies as to which charge Defendant was facing before she was tried, we emphasize that (1) the jury was properly instructed pursuant to Section 30-4-4(0) and (2) the record and transcripts readily reveal that Defendant was well aware of the State\u2019s position that she did not have a right to custody of Joseph. Given the State\u2019s repeated assertion that Defendant did not have a right to custody of Joseph, a conviction under Section 30-4-4(B) would have been impossible. We therefore conclude that Defendant was convicted of unlawful interference under Section 30-4-4(C) and that any reference in the record to either custodial interference or Section 30-4-4(B) is erroneous. However, because any such error did not prejudice Defendant, a new trial is not necessary. See State v. Bonham, 1998-NMCA-178, \u00b6 23,126 N.M. 382, 970 P.2d 154 (\u201cFor error to be reversible, it must be prejudicial.\u201d), abrogated on other grounds by State v. Traeger, 2001-NMSC-022, \u00b6 20, 130 N.M. 618, 29 P.3d 518. Accordingly, we analyze this case with the understanding that Defendant was convicted of unlawful interference under Section 30-4-4(C), not custodial interference under Section 30-4-4(B).\nSUFFICIENCY OF THE EVIDENCE\n{10} Defendant argues that the evidence presented at trial was insufficient to support the jury\u2019s guilty verdict. \u201cIn reviewing the sufficiency of evidence used to support a conviction, we resolve all disputed facts in favor of the State, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary.\u201d State v. Rojo, 1999-NMSC-001, \u00b6 19, 126 N.M. 438, 971 P.2d 829. Our task on appeal is to determine whether \u201ca rational jury could have found beyond a reasonable doubt the essential facts required for a conviction.\u201d Id. (internal quotation marks and citation omitted). If so, we are required to affirm the conviction. Id.\n{11} In order to convict Defendant of unlawful interference under Section 30-4-4(C), the jury was instructed that it was required to find beyond a reasonable doubt the following elements: (1) that Defendant \u201cdid not have the right to custody of Joseph\u201d; (2) that Defendant \u201cmaliciously took, detained, concealed or enticed away Joseph\u201d; (3) that Defendant \u201cintended to detain or conceal Joseph ... permanently or for a protracted time from any person or agency having a right to custody of Joseph\u201d; (4) that Joseph \u201cwas under the age of 18\u201d; and (5) that the events in question happened in New Mexico in April 2005. Defendant asserts that several of those elements were not adequately supported by the evidence presented at trial, and we address each of her arguments in turn.\nA. Right to Custody\n{12} Defendant first contends that the State failed to prove that she did not have a \u201cright to custody\u201d of Joseph. See \u00a7 30^1-4(C). A \u201cright to custody\u201d is defined as \u201cthe right to physical custody or visitation of a child arising from ... a custody determination.\u201d Section 3(M-4(A)(5)(b). Defendant makes two arguments in support of her position that the State failed to prove this element of unlawful interference. First, Defendant relies on this Court\u2019s decision in State v. Sanders, 96 N.M. 138, 628 P.2d 1134 (Ct.App. 1981), for the proposition that because the State failed to show that the court orders awarding temporary legal custody to CYFD complied with Rule 10-350(A) NMRA, they \u201ccannot be used to prove that [Defendant] had been deprived of her legal right to custody.\u201d Second, Defendant argues that even if those orders were valid, her retention of \u201cparental rights\u201d and limited visitation rights, which were expressly subject to CYFD\u2019s discretion, must lead to a result that she retained a right to custody under Section 30-4-4(A)(5)(b).\n{13} In Sanders, the defendant was convicted of custodial interference, under a former version of the custodial interference statute, after he took his young child to Texas following a district court\u2019s oral ruling that temporarily awarded custody of the child to the Department of Human Services. Sanders, 96 N.M. at 139-40, 628 P.2d at 1135-36. On appeal, the defendant argued that because no written order awarding custody to the Department of Human Services was ever entered, he could not be punished for custodial interference. Id. at 141, 628 P.2d at 1137. We agreed, concluding that the \u201cdefendant\u2019s legal right to custody of the child did not end until entry of, and the giving of, notice of a judgment in compliance with Rule 62(a),\u201d which is now codified as Rule 10-350(A) (requiring that a \u201cjudgment and disposition in abuse and neglect proceedings\u201d be written and filed and that the clerk give notice of its entry and disposition to the interested parties). Sanders, 96 N.M. at 142, 628 P.2d at 1138. Unlike Sanders, in this case, written orders temporarily granting legal custody of Joseph to CYFD were entered and filed in the district court. Furthermore, given the telephonic approval of the orders by Defendant\u2019s attorney, there is no reason to assume that Defendant was not given adequate notice of the district court\u2019s judgments. We therefore find no merit in Defendant\u2019s argument that the orders temporarily granting legal custody of Joseph to CYFD \u2014 which were written, entered, and filed in the district court \u2014 did not comply with Rule 10-350(A), thereby requiring reversal under Sanders.\n{14} With respect to Defendant\u2019s argument that she retained a right to custody as a result of her natural parental rights and the provisions in the court orders that allowed her visitation with Joseph subject to CYFD\u2019s discretion, we also disagree. The district court orders clearly state that CYFD was temporarily granted legal custody of Joseph and that visitation between Defendant and Joseph was to \u201cremain in the discretion of CYFD.\u201d Defendant argues that those provisions left her with a \u201climited\u201d right to custody under Section 30-4-4(A)(5)(b). However, our reading of the order indicates that Defendant was denied any right to legal or physical custody of Joseph and that she was granted no absolute or enforceable right to visitation. CYFD retained complete discretion regarding any visitation that Defendant would be permitted to have with Joseph. As a result, Defendant did not have any \u201cright to custody\u201d under Section 30-4-4(A)(5)(b). We therefore conclude that the evidence presented to the jury was sufficient to support its conclusion that Defendant \u201cdid not have the right to custody of Joseph.\u201d\nB. Maliciously Took, Detained, Concealed, or Enticed Away\n{15} Next, Defendant contends that she did not maliciously take, detain, conceal, or entice away Joseph. In addressing Defendant\u2019s argument, we first consider whether sufficient evidence was presented at trial to support the jury\u2019s conclusion that Defendant took, detained, concealed, or enticed away Joseph.\n{16} We initially note that we agree with Defendant that the evidence presented at trial tends to prove that Joseph left his foster home and made his way to Defendant\u2019s home in Ruidoso on his own volition. The crux of the first question before us therefore becomes whether Defendant violated Section 30-l-4(C) by allowing Joseph to stay with her at her home after he arrived. The State argues that a rational jury could have found beyond a reasonable doubt that Defendant detained or concealed Joseph before the police took him into custody, and we agree. This Court has previously stated that the word \u201cdetaining,\u201d as used in Section 30-4-4, may be defined as \u201ckeeping in custody,\u201d State v. Luckie, 120 N.M. 274, 279, 901 P.2d 205, 210 (Ct.App. 1995), and the jury in this case was so specifically instructed. The jury was also instructed, without objection from Defendant\u2019s counsel, that the word \u201cconceal\u201d may be defined as \u201cto hide or to keep secret.\u201d The evidence presented at trial showed that Defendant allowed Joseph to stay with her in her home and that she never informed either the police or CYFD that he was doing so. As such, and in light of the definitions that were given, a rational jury could have concluded that Defendant either detained or concealed Joseph. Defendant argues that it could not have been determined that she detained Joseph simply because she \u201cdid not throw her son out of her house upon his arrival there.\u201d However, we agree with the State that a jury could reasonably have concluded that Defendant kept Joseph in her custody without informing the authorities until the police arrived to return him to CYFD, thus detaining him. Defendant additionally argues that because (1) she allowed Joseph to go to public places and (2) she placed the telephone call to the CYFD caseworker, a rational jury could not have concluded that she concealed Joseph.\n{17} With respect to the first argument, the fact that Joseph was not physically hidden in Defendant\u2019s house does not necessarily lead to the conclusion that he was not hidden from CYFD or that his location was not kept secret from CYFD. With respect to the second argument, Defendant admits that although she placed a telephone call to the CYFD caseworker a few days after Joseph arrived at her home, she never informed anyone at CYFD or any other authority figure that Joseph was living with her. Therefore, based on the evidence presented at trial, we cannot say that a rational jury could not have concluded that Defendant concealed or detained Joseph under Section 30-4-4(C).\n{18} Having so concluded, we must next determine if a rational jury could have concluded that Defendant acted maliciously in detaining or concealing Joseph. In Luckie, we stated that the term \u201cmaliciously,\u201d as used in Section 3CM-4, may be defined as \u201cintending to do a wrongful act.\u201d Luckie, 120 N.M. at 279, 901 P.2d at 210. As we discussed above, the evidence presented at trial indicates that Defendant was aware of the fact that CYFD had legal custody of Joseph. Therefore, by making the decision not to inform the authorities that Joseph had run away from his foster home and was staying with her, a rational jury could have concluded that Defendant acted maliciously by intending to do the wrongful act of detaining or concealing Joseph, thereby depriving CYFD of its court-ordered legal custody of Joseph. To the extent that Defendant argues that there were factors that tend to mitigate the wrongfulness of her actions, that question was for the jury to decide, and apparently it rejected Defendant\u2019s arguments.\nC. Intent to Detain or Conceal Permanently or for a Protracted Period of Time\n{19} Finally, Defendant contends that insufficient evidence was presented at her trial to support the jury\u2019s conclusion that she intended to detain or conceal Joseph permanently or for a protracted period of time. The jury was instructed that the term \u201cprotracted\u201d may be defined as \u201cdraw[n] out in time, prolonged],\u201d and Defendant did not object to that definition. Although Defendant emphasizes that she \u201cdid not surrender her son voluntarily insofar as she did not drive him to CYFD or the police station and turn him over to the authorities,\u201d she maintains that the four days that Joseph stayed with her at her home \u201ccannot be characterized as \u2018protracted\u2019 under New Mexico law.\u201d\n{20} Specifically, Defendant relies on Section 30 \u2014 4\u20144(G), which states that a charge of unlawful interference \u201cmay be dismissed if the person voluntarily returns the child within fourteen days after taking, detaining or failing to return the child in violation of this section.\u201d Defendant argues that Section 30-4^t(G) \u201craise[s] a strong possibility that the legislature did not intend for any violation lasting less than the fourteen day amnesty window to be regarded as taking place over a protracted period of time.\u201d We disagree with Defendant\u2019s reading of Section 30-4-4(G), which requires the voluntary return of the child within fourteen days of the offender\u2019s failure to return the child. As Defendant concedes that she \u201cdid not surrender her son voluntarily\u201d or \u201cturn him over to the authorities,\u201d her argument fails. We also note that Section 30-4-4(G) permits but does not require a dismissal of a felony charge if the person possessing the child returns the child within the period. Even had Defendant complied with the statute, any decision to dismiss would still be squarely within a prosecutor\u2019s discretion.\n{21} The question of how long Defendant planned to allow Joseph to live with her at her home was therefore one for the jury to decide. Apparently the jury came to the conclusion that Defendant, despite the evidence presented that she initially attempted to return Joseph to his foster home and later contacted the CYFD caseworker by telephone, intended to allow Joseph to live with her for a drawn out or prolonged period of time. As the State argues, evidence was presented at trial that Defendant strongly believed that Joseph did not belong in foster care and that she never actually informed any authority figure that Joseph was living with her. Taking that evidence into account, we conclude that a rational jury could have determined that Defendant intended to detain Joseph or conceal his location from CYFD permanently or for a prolonged period of time. See Rojo, 1999-NMSC-001, \u00b6 19, 126 N.M. 438, 971 P.2d 829 (\u201cContrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject [the defendant's version of the facts.\u201d).\nJURY INSTRUCTIONS\n{22} Having concluded that sufficient evidence was presented at trial to support the jury\u2019s verdict, we next address Defendant\u2019s argument that the district court erred in failing to instruct the jury in several distinct ways. \u201cWe review the refusal of a jury instruction de novo, as a mixed question of law and fact.\u201d State v. Emmons, 2007-NMCA-082, \u00b6 7, 141 N.M. 875, 161 P.3d 920. A \u201c[djefendant is entitled to a jury instruction that supports his theory of the case, but only when that theory is supported by the evidence presented at trial.\u201d Id. (citation omitted). A defendant\u2019s showing on appeal that he or she was entitled to a jury instruction that was not given at trial constitutes reversible error. Id.\nA. Section 30-4-4(B) and Good Cause\n{23} Defendant first contends that the district court erred in failing to instruct the jury \u201cin accordance with Section 30-4-4(B),\u201d including an instruction explaining its \u201cgood cause\u201d exception. See \u00a7 30-4-4(B) (requiring a showing that a defendant who is charged with custodial interference had custody of a child and maliciously took, detained, concealed, enticed away, or failed to return the child \u201cwithout good cause and with the intent to deprive permanently or for a protracted time another person also having a right to custody of that child\u201d); see also State v. Munoz, 2006-NMSC-005, \u00b6 22, 139 N.M. 106, 129 P.3d 142 (considering the propriety of a \u201cgood cause\u201d instruction given in a ease in which the defendant faced a charge of custodial interference under Section 30-4-4(B)). In addressing this argument, we reiterate our conclusion that Defendant was charged with and tried for unlawful interference under Section 30-4-4(C), not custodial interference under Section 30-4-4(B), and note that our legislature chose not to include a good cause exception in Section 30-4-4(C). As such, we fail to see the merit in Defendant\u2019s argument that the jury should have been instructed according to Section 30-4-4(B) or the good cause element included therein. See \u00a7 30-4-4(C) (failing to include the good cause element that is included in Section 30-4-4(B)). Even if we concluded that Defendant was, as she argues, charged with violations of both Section 30^1 \u2014 4(B) and Section 30-4-4(0), our result would be the same. As we explain above, the children\u2019s court orders introduced into evidence at trial established that Defendant did not have a right to custody of Joseph under Section 30-4-4(A)(5)(b). As such, any theory concerning Section 30-4-4(B), which requires as one of its elements proof beyond a reasonable doubt that the defendant actually had a right to custody of the child in question, was not supported by the evidence presented at trial and did not warrant a jury instruction. See Emmons, 2007-NMCA-082, \u00b6 7, 141 N.M. 875,161 P.3d 920.\nB. Provision of Definitions\n{24} Defendant also argues that the district court erred in failing to provide the jury with definitions of several terms bearing upon the jury instruction pertaining to Section 30^4-4(C). Specifically, Defendant contends that the district court should have granted her requests to include an instruction specifically defining the terms \u201cphysical custody,\u201d \u201cright to custody,\u201d and \u201ccustody determination.\u201d\n{25} In Munoz, our Supreme Court stated, in considering the propriety of a defendant\u2019s conviction for custodial interference under Section 30-4-4(B), that \u201c[w]here the issue is the failure to instruct on a term or word having a common meaning, there is no error in refusing an instruction defining the word or term.\u201d Munoz, 2006-NMSC-005, \u00b624, 139 N.M. 106, 129 P.3d 142 (internal quotation marks and citation omitted). With respect to the term \u201cright to custody,\u201d Defendant argues that \u201cits meaning within the statute differed from its potential use elsewhere\u201d and that the district court therefore \u201cshould have provided a definition for the term.\u201d However, Defendant offers no explanation regarding how the term did not have a common meaning and therefore required the district court to provide a definition in the jury instructions. In any event, the district court explicitly permitted the jury to request definitions of confusing words or terms included in the instructions during its deliberations, and the jury specifically requested definitions for the words \u201cconcealed,\u201d \u201cprotracted,\u201d and \u201cdetained.\u201d The jury did not, however, request a definition for the term \u201cright to custody.\u201d We therefore infer from the jury\u2019s failure to request a definition that the term was adequately explained in closing arguments and that the jury was not confused as to its meaning.\n{26} Moreover, with respect to the terms \u201cphysical custody\u201d and \u201ccustody determination,\u201d the instruction actually given to the jury did not include either of those terms. Accordingly, and in light of the fact that the jury instruction given accurately reflected the language included in Section 30-4r-4(C), we fail to see the relevance of providing the jury with definitions of those terms.\nC. Duress\n{27} Defendant also argues that the district court erred in refusing to provide the jury with an instruction on the defense of duress. As Defendant explains in her brief in chief, a successful duress defense requires a showing \u201c(1) that the defendant committed the crime under threats; (2) that the defendant feared immediate great bodily harm to himself or another person if he did not commit the crime; and (3) that a reasonable person would have acted in the same way under the circumstances.\u201d State v. Duncan, 111 N.M. 354, 355, 805 P.2d 621, 622 (1991).\n{28} Defendant\u2019s argument is premised on the contention that because Joseph mentioned the possibility that he would do harm to himself if he were forced to return to foster care, Defendant acted reasonably in committing the crime of unlawful interference. However, although evidence was presented at trial that Joseph gave Defendant and his grandmother \u201cthe impression\u201d that he might do harm to himself if forced to return to foster care, none was presented that Defendant reasonably feared that Joseph was in immediate danger of great bodily harm and that Defendant therefore felt forced to commit the crime of unlawful interference. Therefore, we cannot say that the district court erred in refusing to instruct the jury on Defendant\u2019s duress defense. See Emmons, 2007-NMCA-082, \u00b67, 141 N.M. 875,161 P.3d 920.\nMOTION FOR A NEW TRIAL\n{29} Finally, Defendant argues that the district court erred in denying her motion for a new trial based on the \u201cnewly discovered evidence\u201d of the testimony of Joseph\u2019s grandmother.\nA motion for a new trial on grounds of newly-discovered evidence will not be granted unless the newly-discovered evidence fulfills all of the following requirements:\n1) it will probably change the result if a new trial is granted; 2) it must have been discovered since the trial; 3) it could not have been discovered before the trial by the exercise of due diligence; 4) it must be material; 5) it must not be merely cumulative; and 6) it must not be merely impeaching or contradictory.\nState v. Garcia, 2005-NMSC-038, \u00b6 8, 138 N.M. 659, 125 P.3d 638 (internal quotation marks and citation omitted).\n{30} In support of her argument, Defendant states that Joseph\u2019s grandmother, who elected not to testify at Defendant\u2019s trial, would have testified at a second trial that (1) she gave Joseph permission to stay at her home, (2) Defendant unsuccessfully attempted to return Joseph to his foster home, (3) Joseph threatened to run away again or do harm to himself if forced to return to his foster home, (4) Defendant encouraged Joseph to return to his foster home and \u201ccommitted no overt act to get him to remain \"with her at the expense of CYFD,\u201d and (5) Defendant did not know that Joseph was planning to run away from his foster home to be with her. In response, the State contends that because the new evidence upon which Defendant relies \u201csimply duplicates trial evidence already offered,\u201d it must be deemed \u201ccumulative, immaterial, and unlikely to change the result of the trial.\u201d We agree with the State. We fail to see how any of the testimony that would be offered by Joseph\u2019s grandmother at a second trial would provide anything but cumulative evidence to reinforce the evidence that was offered at Defendant\u2019s first trial. Indeed, Defendant argues in her brief in chief that the anticipated testimony of Joseph\u2019s grandmother would simply serve to \u201cbolster the arguments of the defense in every respect.\u201d We therefore conclude that the district court did not err in denying Defendant\u2019s motion for a new trial.\nCONCLUSION\n{31} We conclude that (1) sufficient evidence was presented at trial to support the jury\u2019s verdict, (2) the district court did not err in refusing to give some of the jury instructions that Defendant requested, and (3) the district court did not err in denying Defendant\u2019s motion for a new trial. We therefore affirm. In doing so, we also remand to the district court to correct Defendant\u2019s judgment and sentence to reflect the fact that she was convicted of unlawful interference under Section 30-4-4(C), as opposed to custodial interference under Section 30-4-4(B).\n{32} IT IS SO ORDERED.\nI CONCUR: MICHAEL D.\nBUSTAMANTE, Judge and RODERICK T. KENNEDY, Judge (specially concurring).", "type": "majority", "author": "WECHSLER, Judge." }, { "text": "KENNEDY, Judge\n(specially concurring).\n{33} I concur in this case; the law is clear, and Defendant participated in the circumstances just perfectly to justify her conviction. It is the role of the caseworker\u2019s antipathy toward working with Defendant, apparently mutual, and its effect on the development of the facts in this case that creates a subplot worthy of note.\n{34} Joseph had been gone from CYFD custody for about ten days. The CYFD caseworker was informed by Joseph\u2019s foster mother of his running away on the day it happened. Though she expected Joseph to come back to Defendant\u2019s home, the caseworker never tried to contact Defendant to inform her of his disappearance or inquire whether Defendant had seen him, preferring to wait to see if he showed up in Lincoln County. The caseworker never sent the police to Defendant\u2019s house until after Defendant called her.\n{35} Some three or four days after Joseph got to Defendant\u2019s home, she called the CYFD caseworker. Rather than use the chance to ascertain whether Joseph had acted per her expectation, the caseworker\u2019s testimony about the conversation was that Defendant was blaming her and CYFD for Joseph running away but \u201cwas not taking responsibility for why her children came into custody.\u201d Since Defendant was also being abusive, the caseworker told her to come for a meeting to discuss the matter and \u201cpolitely hanged up\u201d on Defendant. The caseworker stated that she had not called Defendant because she had a hard time locating Defendant in the past; yet both Defendant and Joseph were at the address to which the caseworker unhesitatingly sent the police that evening.\n{36} Three things happened as a result of Defendant\u2019s contacting the caseworker. The caseworker terminated the conversation when she tired of Defendant\u2019s complaining about both the fact and quality of CYFD\u2019s custody of Joseph without Defendant\u2019s ever stating that Joseph was with her; the caseworker sent the police over to Defendant\u2019s house; and the caseworker lied in court about Defendant admitting in the conversation that she had supplied the money for Joseph\u2019s bus ticket from Las Cruces to Ruidoso when she knew the funds came from other sources.\n{37} Defendant\u2019s telephone call to the caseworker was no occasion for the caseworker to worry about Defendant\u2019s taking responsibility for the causes of her children being in CYFD custody. To pick that issue as a first recollection is tellingly a bureaucrat\u2019s reaction. A mother taking responsibility for bad parenting is of secondary concern to the acute situation of a child missing from State custody. A child has been missing for ten days, his mother knows about it, and the caseworker can interject sufficiently to tell the mother to come down to the office. The caseworker has no concern to force the question of whether the mother knows of her child\u2019s whereabouts and just remembers that mom doesn\u2019t understand that she\u2019s not a good mother overall.\n{38} Defendant had Joseph at her house for four days and violated the law in doing so. She has a history with CYFD\u2019s removal of Joseph and is likely a very unresponsive and hard person to work with when it comes to her parenting skills. That is no excuse for an agent of the State not to work pre-emptively with the mother in a situation like this. Here, despite the caseworker assuming that Joseph would come back to his mother, the person administering the terms of Joseph\u2019s State custody did nothing for a week to ascertain Joseph\u2019s whereabouts or try to notify his mother of her son\u2019s absence.", "type": "concurrence", "author": "KENNEDY, Judge" } ], "attorneys": [ "Gary K. King, Attorney General, Andrea Sassa, Assistant Attorney General, Santa Fe, NM, for Appellee.", "Hugh W. Dangler, Chief Public Defender, Mary A. Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2009-NMCA-012\n203 P.3d 125\nSTATE of New Mexico, Plaintiff-Appellee, v. Jennifer Ann ROMERO, Defendant-Appellant.\nNo. 27,236.\nCourt of Appeals of New Mexico.\nDec. 9, 2008.\nCertiorari Granted, No. 31,489, Granted Feb. 3, 2009.\nGary K. King, Attorney General, Andrea Sassa, Assistant Attorney General, Santa Fe, NM, for Appellee.\nHugh W. Dangler, Chief Public Defender, Mary A. Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0594-01", "first_page_order": 628, "last_page_order": 638 }