{ "id": 1555194, "name": "STATE of New Mexico, Plaintiff-Appellee, v. David B. CARNES, Defendant-Appellant", "name_abbreviation": "State v. Carnes", "decision_date": "1981-11-03", "docket_number": "No. 5092", "first_page": "76", "last_page": "79", "citations": [ { "type": "official", "cite": "97 N.M. 76" }, { "type": "parallel", "cite": "636 P.2d 895" } ], "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": "90 N.M. 463", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871955 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0463-01" ] }, { "cite": "84 N.M. 376", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772710 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0376-01" ] }, { "cite": "83 N.M. 42", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332911 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0042-01" ] }, { "cite": "94 N.M. 771", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573095 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0771-01" ] }, { "cite": "634 P.2d 1298", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1577339 ], "opinion_index": 0, "case_paths": [ "/nm/96/0746-01" ] }, { "cite": "96 N.M. 740", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "91 N.M. 670", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571091 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0670-01" ] }, { "cite": "86 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2822980 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0556-01" ] }, { "cite": "90 N.M. 481", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871246 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0481-01" ] }, { "cite": "96 N.M. 366", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577324 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0366-01" ] }, { "cite": "93 N.M. 458", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568805 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/93/0458-01" ] }, { "cite": "82 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326487 ], "weight": 3, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0487-01" ] }, { "cite": "90 N.M. 744", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871724 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0744-01" ] }, { "cite": "92 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557080 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0001-01" ] }, { "cite": "52 L.Ed.2d 367", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "97 S.Ct. 1663", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1977, "opinion_index": 0 }, { "cite": "430 U.S. 973", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12162469, 12162438, 12162506, 12162538, 12162570, 12162445, 12162480, 12162453, 12162553, 12162460, 12162493, 12162526 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/430/0973-05", "/us/430/0973-01", "/us/430/0973-08", "/us/430/0973-10", "/us/430/0973-12", "/us/430/0973-02", "/us/430/0973-06", "/us/430/0973-03", "/us/430/0973-11", "/us/430/0973-04", "/us/430/0973-07", "/us/430/0973-09" ] }, { "cite": "89 N.M. 729", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866321 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0729-01" ] } ], "analysis": { "cardinality": 539, "char_count": 9806, "ocr_confidence": 0.791, "pagerank": { "raw": 1.0314349772709433e-07, "percentile": 0.5482439323682577 }, "sha256": "3409383df1216f6cc7e82b9ed30ff636bc23034c7360791acd38a2a8ef15ba82", "simhash": "1:a3f0d42ffd6c000f", "word_count": 1582 }, "last_updated": "2023-07-14T20:10:51.585150+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ and DONNELLY, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. David B. CARNES, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nConvicted of eleven felonies and one misdemeanor, defendant appeals. We (1) answer all but one issue summarily, and (2) discuss the failure of the trial court to define \u201chostage\u201d in connection with the kidnapping offenses.\nIssues Answered Summarily\n(a) Defendant escaped from the Sandoval County jail. In attempting to prove that this was an escape from the penitentiary, the State put on evidence to meet the statutory requirement that defendant had been lawfully committed to the penitentiary. See \u00a7 30-22-9, N.M.S.A.1978. A part of this evidence was testimony that defendant had two prior convictions resulting in consecutive nine-year sentences to the penitentiary, for a total of eighteen years. In claiming prejudice because the jury was informed of the length of his sentence, defendant overlooks the fact that the State was required to prove an unexpired commitment to the penitentiary and overlooks the fact that the trial court excluded testimony as to the nature of defendant\u2019s prior offenses \u2014 criminal sexual penetration. The trial court properly applied Evidence Rule 403 in its ruling admitting and excluding evidence directed to defendant\u2019s penitentiary commitment.\n(b) Testimony as to defendant\u2019s commitment was by an assistant district attorney. Permitting this assistant to testify was not error; the assistant\u2019s participation in the trial was only as a witness. State v. Martinez, 89 N.M. 729, 557 P.2d 578 (Ct.App.1976), cert. denied, 430 U.S. 973, 97 S.Ct. 1663, 52 L.Ed.2d 367 (1977).\n(c)After escaping, defendant, by threats while armed with a sharpened prong from a pitchfork, took control of the automobile occupied by Corrine Gallegos and her two-year-old daughter, Natalie. Defendant drove the car to Valencia County and held Corrine and Natalie prisoners, in various hiding places, for most of the day. They escaped while defendant was getting gasoline for the car.\nTwo of defendant\u2019s convictions were for aggravated assault upon Corrine and Natalie. Defendant\u2019s challenge to the sufficiency of the evidence for these convictions and the venue of these offenses is without merit. Reviewing the evidence pursuant to State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978), the evidence is substantial that an aggravated assault occurred, as to both victims, during defendant\u2019s avoidance of two men who approached defendant\u2019s hiding place in Lover\u2019s Lane in Valencia County.\nTwo of defendant\u2019s convictions were for kidnapping of Corrine and Natalie. These convictions involved the \u201chostage\u201d aspect of our kidnapping statute. Defendant incorrectly asserts there was no evidence that they were held hostage. The evidence sustains the inference that Corrine and Natalie were held as security for the forbearance of officers attempting to recapture defendant, an escaped felon. See definition of \u201chostage,\u201d subsequently in this opinion.\n(d) The offenses involving Corrine and Natalie occurred on April 8, 1980. On the evening of April 9, 1980, defendant pushed his way into the home of Dora Ortega in Valencia County. Defendant does not challenge the sufficiency of the evidence as to his conviction of several offenses involving Dora, as the victim.\nWhile in Dora\u2019s home, defendant tied and gagged Dora and her daughter Debbie, who promptly attempted to loosen these bonds. Defendant took Debbie from her home while armed with what appeared to be a screwdriver, holding on to her by the loosened gag. He pulled her hair when she fell near a ditch and, as Debbie escaped, defendant told Debbie: \u201c \u2018You\u2019re going to die now.\u2019 \u201d The evidence supports defendant\u2019s conviction of aggravated assault on Debbie. The evidence also permits the inference that defendant held Debbie hostage as security for the forbearance of officers seeking defendant\u2019s recapture; thus, there is substantial evidence to support defendant\u2019s conviction of kidnapping Debbie.\n(e) Defendant was subsequently captured at a campground. He was charged with aggravated assault upon two peace officers. The assault allegedly occurred during the recapture. Defendant, seeking to establish that these two charges did not occur in Valencia County, attempted to extract favorable venue answers from a witness. The witness, in turn, attempted to explain his answers. This resulted in two exchanges between counsel and the trial court, in which the trial court remarked that the witness was not giving the answers that counsel wanted, but the witness was giving his best answer in accordance with the witness\u2019s ability. In each exchange, the trial court stated that the witness could explain his answers.\nThe remarks by the trial court were within the trial court\u2019s authority under Evidence Rule 611(a) to control the manner of interrogating witnesses and to protect a witness from harassment. The trial court stated to counsel that the problem was one of communication between counsel and the witness. The trial court explained to the jury that the testimony went to the boundary lines between Valencia and Torrance Counties, that this involved a legal issue which was not for the jury to decide. The trial court also told the jury that anything said by either counsel or the trial court was not to be held against defendant \u201cin all fairness to him.\u201d The jury acquitted defendant of these two charges. The trial court\u2019s remarks did not deny defendant a fair trial, nor did such remarks constitute a basis for a mistrial. Compare State v. Blakley, 90 N.M. 744, 568 P.2d 270 (Ct.App.1977). The evidence supports a finding of proper venue.\nFailure to Define Hostage\nThere were three kidnapping charges\u2014 Corrine, Natalie and Debbie. Defendant was convicted of each charge. The kidnapping instruction as to each charge was in accordance with U.J.I.Crim. 4.02 (Judicial Pamphlet 19, Cum.Supp.1981). Each kidnapping charge was defined to include a requirement that defendant intended to hold the victim \u201cas a hostage against her will.\u201d\nThe approved criminal jury instructions do not include a definition of hostage, and do not provide that the term should not be defined. Defendant requested an instruction defining \u201chostage\u201d in accordance with State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971):\n[T]he unlawful taking, restraining or confining of a person with the intent that the person, or victim, be held as security for the performance, or forbearance, of some act by a third person.\nThere is no issue as to the legal correctness of this requested instruction. We have held the evidence was sufficient to raise a factual issue as to the victims being held as hostages.\nThe trial court refused the requested instruction; defendant asserts this was error. Defendant contends he did not receive a fair trial because without a definition of the term \u201chostage,\u201d the jury could not properly determine whether the victims had, in fact, been held as hostages. The State answers that the trial court \u201cwas not required to give a definition or amplification instruction.\u201d\nThree rules, as to refusing a requested instruction, are involved in this issue.\n(a) The failure to instruct the jury on the definition or the amplification of the elements of an offense is not error when there has been a failure to request such an instruction. State v. Stephens, 93 N.M. 458, 601 P.2d 428 (1979); State v. Ervin, 96 N.M. 366, 630 P.2d 765 (Ct.App.1981); State v. Padilla, 90 N.M. 481, 565 P.2d 352 (Ct.App.1977). This rule is not applicable because defendant requested an instruction defining \u201chostage\u201d.\n(b) Where there is no instruction defining an element of a criminal offense, and that element is not adequately covered by the instructions given, compare State v. Gonzales, 86 N.M. 556, 525 P.2d 916 (Ct.App.1974), overruled on other grounds, State v. Bender, 91 N.M. 670, 579 P.2d 796 (1978), we have held that it would be error to refuse a requested instruction which was a proper definition. In State v. Marquez, 96 N.M. 740, 634 P.2d 1298 (Ct.App.1981), we held it would have been error to refuse a legally correct definition of \u201cmental disease\u201d as used in the approved instruction on the insanity defense. In State v. Ruiz, 94 N.M. 771, 617 P.2d 160 (Ct.App.1980), the trial court refused a requested instruction which would have told the jury how it was to determine whether the defendant was competent to give a statement. We reversed because the issue was not otherwise covered in the instructions. Common to these two cases is that technical terms were involved. \u201cHostage\u201d is not a technical term.\n(c) Where 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. The refusal of a requested instruction defining \u201centrusted\u201d was not error. State v. Moss, 83 N.M. 42, 487 P.2d 1347 (Ct.App.1971). The failure to define \u201cheld to service against the victim\u2019s will\u201d was not error. State v. Aguirre, 84 N.M. 376, 503 P.2d 1154 (1972). We point out that it would not have been error to have given the requested instruction which correctly defined \u201chostage\u201d. State v. Griego, 90 N.M. 463, 564 P.2d 1345 (Ct.App.1977). That is not the issue in this case. The issue is the refusal to give the requested instruction. There was no error because \u201chostage\u201d is not a technical term; jurors could properly apply the common meaning of hostage, see State v. Crump, supra, and the application of the common meaning did not prejudice defendant.\nThe judgment and sentences are affirmed.\nIT IS SO ORDERED.\nLOPEZ and DONNELLY, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Mary Lou Carson, Tierra Amarilla, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Heidi Topp Brooks, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "636 P.2d 895\nSTATE of New Mexico, Plaintiff-Appellee, v. David B. CARNES, Defendant-Appellant.\nNo. 5092.\nCourt of Appeals of New Mexico.\nNov. 3, 1981.\nMary Lou Carson, Tierra Amarilla, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Heidi Topp Brooks, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0076-01", "first_page_order": 106, "last_page_order": 109 }