{ "id": 2870795, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Mike Paul ARMIJO, Defendant-Appellant", "name_abbreviation": "State v. Armijo", "decision_date": "1977-06-28", "docket_number": "No. 2937", "first_page": "614", "last_page": "619", "citations": [ { "type": "official", "cite": "90 N.M. 614" }, { "type": "parallel", "cite": "566 P.2d 1152" } ], "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": "85 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770406 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0537-01" ] }, { "cite": "564 P.2d 1000", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2873426 ], "opinion_index": 0, "case_paths": [ "/nm/90/0436-01" ] }, { "cite": "82 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326487 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0487-01" ] }, { "cite": "89 N.M. 162", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865738 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0162-01" ] }, { "cite": "43 L.Ed.2d 432", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1975, "opinion_index": 0 }, { "cite": "95 S.Ct. 1339", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1975, "opinion_index": 0 }, { "cite": "420 U.S. 955", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11658208, 11658113, 11658181, 11658157, 11658132, 11658141, 11658239 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/420/0955-06", "/us/420/0955-01", "/us/420/0955-05", "/us/420/0955-04", "/us/420/0955-02", "/us/420/0955-03", "/us/420/0955-07" ] }, { "cite": "86 N.M. 388", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824364 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0388-01" ] }, { "cite": "87 N.M. 397", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2832226 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/87/0397-01" ] }, { "cite": "90 N.M. 260", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2873074 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/90/0260-01" ] }, { "cite": "87 N.M. 394", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831770 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0394-01" ] }, { "cite": "80 N.M. 340", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356710 ], "weight": 5, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0340-01" ] } ], "analysis": { "cardinality": 528, "char_count": 12460, "ocr_confidence": 0.815, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08524879249716875 }, "sha256": "e424a142930298cae68fe28e4719d7e9e292f626571e306fcb044270d6a57fe7", "simhash": "1:d740eb959121c6d9", "word_count": 2023 }, "last_updated": "2023-07-14T21:34:48.706767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Mike Paul ARMIJO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant appeals his convictions of kidnapping and CSP II (Criminal sexual penetration in the second degree). We reverse each conviction, discussing: (1) false imprisonment as a lesser offense included within the kidnapping charge, and (2) amendment of the CSP II charge after the evidence was closed.\nFalse Imprisonment as a Lesser Included Offense Within the Kidnapping Charge\nThe indictment charged kidnapping by holding the victim to service against the victim\u2019s will. Section 40A-4-l(A), N.M.S. A.1953 (2d Repl. Vol. 6, Supp.1975) reads: \u201cA. Kidnaping is the unlawful taking, restraining or confining of a person, by force or deception, with intent that the victim:\n\u201c(1) be held for ransom;\n\u201c(2) as a hostage, confined against his will; or\n\u201c(3) be held to service against the victim\u2019s will.\u201d\nAlthough this statute was amended in 1973, the definition of kidnapping by \u201cholding to service\u201d is the same as that set forth in State v. Clark, 80 N.M. 340, 455 P.2d 844 (1969).\nSection 40A-4-3, N.M.S.A.1953 (2d Repl. Vol. 6) defines false imprisonment. It reads:\n\u201cFalse imprisonment consists of intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so.\n\u201cWhoever commits false imprisonment is guilty of a fourth degree felony.\u201d\nDefendant requested that the jury be instructed on false imprisonment as a lesser included offense within the kidnapping charge. The request was refused.\nFor false imprisonment to be a lesser offense included within kidnapping by holding to service, the false imprisonment must be necessarily included in the kidnapping charge. State v. Medina, 87 N.M. 394, 534 P.2d 486 (Ct.App.1975). For a lesser offense to be necessarily included, the greater offense cannot be committed without also committing the lesser. State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App.1977). Whether an offense is a necessarily included lesser offense is determined by looking to the offense charged in the indictment. State v. Sandoval, supra.\nThe State asserts that kidnapping by holding to service can be committed without committing false imprisonment. It contends that false imprisonment requires that a victim be confined against his will and such is not a requirement of kidnapping by holding to service. It relies on State v. Clark, supra.\nState v. Clark, supra, states:\n\u201c. . . [I]t is not necessary that he be confined against his will when the purpose of the taking, restraining or confining is that the victim be held to service against his will. Merely to confine or restrain against a person\u2019s will without the requisite intention is not kidnapping. . This is false imprisonment under \u00a7 40A-4-3, supra, when done with knowledge of an absence of authority.\u201d\nThe above quotation, taken in context, appears in a discussion of the three methods of kidnapping defined in the then applicable statute. Two of the three methods required that the victim be confined against his will; the third method \u2014 by holding to service \u2014 did not require a confining against the victim\u2019s will. That is what was meant in the first sentence of the above quotation.\nKidnapping by holding to service is not defined in terms of \u201cconfined against his will\u201d; it is defined in terms of a taking, restraining or confining by force or deception. Section 40A-4-l(A), supra. False imprisonment is not defined in terms of \u201cconfined against his will\u201d; it is defined in terms of confining or restraining the victim without his consent. Section 40A-4-3, supra. When one is confined by force or deception, one is confined without consent. The confining or restraining necessary for kidnapping by holding to service cannot be committed without also committing the confining or restraining necessary for false imprisonment.\nKidnapping by holding to service requires an \u201cunlawful\u201d taking, restraining or confining. Section 40A-4-l(A), supra. False imprisonment requires that the person doing the confining or restraining know that he has no \u201clawful\u201d authority to do so. One cannot commit the \u201cunlawful\u201d action required for kidnapping by holding to service without also committing the confining or restraining with knowledge of no \u201clawful\u201d authority that is false imprisonment.\nWe hold, on the basis of the statutory language, that false imprisonment is a lesser offense necessarily included in kidnapping by holding to service. The distinction between these two offenses is whether the defendant intended to hold the victim to service against the victim\u2019s will. State v. Clark, supra.\nIf there is some evidence tending to establish the lesser offense, defendant is entitled to an instruction on the lesser offense. State v. Wingate, 87 N.M. 397, 534 P.2d 776 (Ct.App.1975). The State asserts that under the evidence in this case, the only justifiable verdicts were conviction of kidnapping or acquittal. See State v. Vigil, 86 N.M. 388, 524 P.2d 1004 (Ct.App.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975). The correctness of this contention depends on whether there is evidence tending to show an absence of intent to hold the victim to service against his will.\nDefendant\u2019s version of the events of the night in question was that no crime occurred; that defendant went with the victim to the victim\u2019s home because the victim had not repaid money allegedly borrowed from defendant, and subsequently scuffled with the victim in a restaurant because of a threat made by the victim. The jury could, and did, reject defendant\u2019s testimony that no force or deception was involved in the relationship between defendant and the victim. Still, the jury could have determined, from defendant\u2019s testimony, that the force or deception by defendant was without the intent to hold the victim to service against his will. While defendant\u2019s version of the facts may seem incredible, nevertheless it was evidence tending to show an absence of the requisite intent.\nThe trial court erred in refusing the requested instruction on false imprisonment as a lesser offense included within the kidnapping charge. See State v. Wingate, supra.\nAmendment to the CSP Charge After the Evidence Was Closed\nSection 40A-9-21(B), N.M.S.A.1953 (2d Repl. Vol. 6, Supp.1975) states five methods of committing CSP II. Three of the methods are pertinent to this issue. Section 40A-9-21(B), supra, reads:\n\u201cB. Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated:\n* * * * * *\n\u201c(2) by the use of force or coercion which results in personal injury to the victim;\n* * * * * *\n\u201c(4) in the commission of any other felony; or\n\u201c(5) when the perpetrator is armed with a deadly weapon.\u201d\nAnother statute pertinent to this issue is the applicable definition of \u201cpersonal injury\u201d. Section 40A-9-20(C), N.M.S.A.1953 (2d Repl. Vol. 6, Supp.1975) states:\n\u201cC. \u2018personal injury\u2019 means bodily injury to a lesser degree than great bodily harm and includes, but is not limited to, disfigurement, mental anguish, chronic or recurrent pain, pregnancy or disease or injury to a sexual or reproductive organ^]\u201d\nThe indictment charged defendant with CSP II by engaging in anal intercourse while armed with a deadly weapon, in violation of \u00a7 40A-9-21(B)(5), supra. This specific charge limited the State to establishing the facts supporting the one method of CSP II charged in the indictment. State v. Trivitt, 89 N.M. 162, 548 P.2d 442 (1976); State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971).\nAfter the evidence was concluded and the instructions were being settled, the State requested, and the trial court proposed to instruct on three methods of CSP II\u2014(a) force or coercion resulting in personal injury, (b) in the commission of any other felony, and (c) while armed with a deadly weapon. See subparagraphs B(2), B(4) and B(5) quoted above.\nDefendant objected that the proposed instruction went beyond the issues in the case. The State agreed. The State then proposed that the indictment be amended to include the two additional methods for committing CSP II which were covered in the proposed instruction. The amendment was granted over defendant\u2019s objection, and the jury was instructed on three methods of committing CSP II.\nOne of defendant\u2019s objections was that the amendment was untimely. This objection was properly overruled. Under Rule of Criminal Procedure 7(c), the court may allow the indictment to be amended \u201cat any time\u201d to conform to the evidence.\nDefendant also objected that he was prejudiced by the amendment. The State\u2019s response was that evidence supporting the two additional methods came in without objection from defendant. On appeal, defendant correctly points out that this evidence was admissible in connection with the kidnapping charge and, thus, any objection to this evidence would have been useless. We do not consider this argument further because it was not presented to the trial court.\nBefore the trial court, defendant contended that he had not been charged with CSP II by force or coercion resulting in personal injury and had not prepared to defend such a charge. This contention is also argued on appeal.\nRule of Criminal Procedure 7(c) states: \u201cIf the court finds that the defendant has been prejudiced by an amendment, the court may postpone the trial or grant such other relief as may be proper under the circumstances.\u201d Rule of Criminal Procedure 7(d) states that no appeal, based on the evidentiary variance (because of which an amendment was granted) \u201cshall be sustained unless it is affirmatively shown that the defendant was in fact prejudiced thereby in his defense on the merits.\u201d\nThe State asserts that prejudice has not been affirmatively shown. It points out that there has been no change in the offense charged. That is true, but the amendment enlarged the indictment to charge the offense had been committed by three methods rather than one. See State v. Wilburn, (Ct.App.) 90 N.M. -, 564 P.2d 1000, decided May 3, 1977. The State contends that defendant\u2019s \u201csole defense was that he had committed none of the acts charged\u201d and such a defense was as applicable to the two additional methods as to the one method charged prior to the amendment. The State seems to be saying that the defense would not have been different if the defense had been given notice of the two additional methods charged by the amendment. This is no more than speculation on the State\u2019s part.\nPrejudice affirmatively appears in this record. The amendment added a charge of CSP II by force or coercion which results in personal injury to the victim. Section 40A-9 \u2014 21(B)(2), supra. \u201cPersonal injury\u201d is defined in the statute. Section 40A-9-20(C), supra. While evidence of personal injury was relevant to \u201cforce or coercion\u201d of the kidnapping charge, personal injury or the extent thereof was not a matter directly in issue on any of the charges on which defendant was tried, including the two charges of which he was acquitted. At trial, defendant had no reason to defend against \u201cpersonal injury\u201d as defined in \u00a7 40A-9-20(C). To permit the jury to convict on the basis of action resulting in personal injury, by adding this charge after the evidence was concluded in a trial where personal injury was not in issue, is prejudice.\nThe State asserts that amendment should not be held to be error because defendant did not request a continuance. A continuance to obtain additional evidence could not have resolved the question of prejudice. To counter the prejudice resulting from injecting personal injury into the case after the evidence was concluded, defendant would have needed to cross-examine all witnesses who testified concerning the victim\u2019s condition both during the events in question and after they were concluded.\nThe record in this case shows the jury was permitted to convict defendant of CSP II by a method that had not been tried. This error requires reversal of this conviction. See State v. Villa, 85 N.M. 537, 514 P.2d 56 (Ct.App.1973).\nThe judgment and sentences are reversed. The cause is remanded for a new trial on the indictment as amended.\nIT IS SO ORDERED.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Theodore E. Lauer, Lauer & Lauer, Santa Fe, for defendant-appellant.", "Toney Anaya, Atty. Gen., Suzanne Tanner, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "566 P.2d 1152\nSTATE of New Mexico, Plaintiff-Appellee, v. Mike Paul ARMIJO, Defendant-Appellant.\nNo. 2937.\nCourt of Appeals of New Mexico.\nJune 28, 1977.\nTheodore E. Lauer, Lauer & Lauer, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Suzanne Tanner, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0614-02", "first_page_order": 650, "last_page_order": 655 }