State v. Pennington

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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. A-1-CA-35626 5 COURTNEY PENNINGTON, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 8 James M. Hudson, District Judge 9 10 11 12 Hector H. Balderas, Attorney General Santa Fe, NM John Kloss, Assistant Attorney General Albuquerque, NM 13 for Appellee 14 15 16 17 Bennett J. Baur, Chief Public Defender C. David Henderson, Appellate Defender MJ Edge, Assistant Appellate Defender Santa Fe, NM 18 for Appellant 19 MEMORANDUM OPINION 20 VIGIL, Judge. 2 1 {1} Defendant appeals her conviction following a bench trial for unlawful taking 2 of a motor vehicle in violation of NMSA 1978, Section 30-16D-1(A)(1) (2009). 3 We affirm. 4 BACKGROUND 5 {2} After returning from work, Officer Julian Torrez was unable to find an off- 6 road, kick-start Honda motorcycle he had bought for his son and parked by the side 7 of the yard. Officer Torrez searched for the motorcycle and found it in an alleyway 8 near his home. The motorcycle was lying down and had grass placed on it, as 9 though someone was trying to hide it. He then reported the incident to the police. 10 After another officer arrived, Officer Torrez heard the sound of several attempts to 11 kick start the motorcycle coming from the alleyway. Officer Torrez went to the 12 alleyway and saw Defendant, who was wearing a motorcycle helmet and gloves, 13 straddling the motorcycle, and attempting to kick start it. Officer Torrez identified 14 himself and ordered Defendant to stop, at which point she dropped the motorcycle 15 and attempted to leave on foot. Officer Torrez apprehended Defendant and placed 16 her under arrest. {3} At the conclusion of Defendant’s trial, the district court found 17 that “Defendant acted intentionally by picking the motorcycle up, straddling it, 18 moving it from where it was, and trying to start it. Her conduct is only consistent 19 with someone who is taking the motorcycle to move it to another 20 place. . . . Defendant took the motorcycle without Julian Torrez’s consent.” The 21 district court also concluded that the off-road motorcycle is a motor vehicle under 1 the Motor Vehicle Code, and found Defendant guilty of unlawful taking of a motor 2 vehicle. 3 DISCUSSION 4 {4} Defendant appeals, arguing (1) the unlawful taking of a motor vehicle 5 statute, in prohibiting the unlawful “taking,” also requires evidence of asportation; 6 (2) this off-road motorcycle is not a “vehicle” for purposes of the unlawful taking 7 of a motor vehicle statute; and (3) there is insufficient evidence to support her 8 conviction. We address each argument in turn. 9 1. 10 {5} “Taking” Defendant first argues that Section 30-16D-1’s use of the word “taking” 11 requires proof of asportation. This issue presents an issue of statutory construction. 12 “The meaning of language used in a statute is a question of law that we review de 13 novo.” Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, ¶ 16, 132 N.M. 382, 49 14 P.3d 61. “We first look to the ordinary and plain meaning of the language of a 15 statute, because the statutory text is the primary indicator of legislative intent.” 16 State v. Castillo, 2011-NMCA-046, ¶ 8, 149 N.M. 536, 252 P.3d 760 (internal 17 quotation marks and citation omitted). “Where the language of a statute is clear 18 and unambiguous, we must give effect to that language and refrain from further 19 statutory interpretation.” State v. Almanzar, 2014-NMSC-001, ¶ 14, 316 P.3d 183 20 (internal quotation marks and citation omitted). 1 {6} Defendant argues we should apply the logic of State v. Clark, 2000-NMCA- 2 052, 129 N.M. 194, 3 P.3d 689, to our interpretation of Section 30-16D-1. In 3 Clark, this Court incorporated the common-law requirement of asportation into the 4 larceny statute, requiring that “a stolen item be carried away.” Clark, 20005 NMCA-052, ¶ 12. Although the larceny statute did not include the common-law 6 requirement of asportation, see NMSA 1978, § 30-16-1 (1987, amended 2006) 7 (“Larceny consists of the stealing of anything of value that belongs to another.”), 8 this Court explained that “the Uniform Jury Instruction for larceny requires the 9 jury to find that . . . ‘the defendant took and carried away property belonging to 10 another[.]’ ” Clark, 2000-NMCA-052, ¶ 12 (quoting UJI 14-1601NMRA) 11 (alteration omitted). The Court further explained that “New Mexico case law has 12 interpreted its larceny statutes as incorporating the requirement that a stolen item 13 be carried away.” Id. 14 {7} Application of Clark’s reasoning to the unlawful taking of a motor vehicle 15 statute is inapposite. The two statutes are textually distinct. Whereas the larceny 16 statute prohibits “stealing,” the unlawful taking of a motor vehicle statute prohibits 17 “taking.” Compare § 30-16-1(A) (“Larceny consists of the stealing of anything of 18 value that belongs to another.” (emphasis added)) with § 30-16D-1(A) (“Unlawful 19 taking of a vehicle or motor vehicle consists of a person taking any vehicle or 20 motor vehicle as defined by the Motor Vehicle Code intentionally and without 21 consent of the owner.” (emphasis added)). Moreover, the Uniform Jury instructions 1 for the offenses recognizes this distinction. For a jury to find a defendant guilty of 2 larceny, the State must prove “[t]he defendant took and carried away” another’s 3 property. See UJI 14-1601. However, for a jury to find a defendant guilty of 4 unlawful taking of a motor vehicle, the State must prove “[t]he defendant took” a 5 vehicle. See UJI 14-1660 NMRA (emphasis added). The Uniform Jury Instruction 6 for unlawful taking of a motor vehicle does not contain language mirroring the 7 “carried away” requirement found in the larceny instruction. For these reasons, we 8 decline to extend Clark’s reasoning to the present case and we proceed to statutory 9 interpretation of Section 30-16D-1. 10 {8} The unlawful taking of a motor vehicle statute prohibits persons from 11 “taking any vehicle or motor vehicle . . . intentionally and without the consent of 12 the owner.” Section 30-16D-1(A). Webster’s Third New International Dictionary 13 defines “take” to mean “to get control into one’s hands or into one’s possession, 14 power, or control by force or stratagem[.]” Webster’s Third New Int’l Dictionary 15 2329 (unabr. ed. 2002). Similarly, Black’s Law Dictionary defines “take” as 16 “obtain[ing] possession or control, whether legally or illegally.” Black’s Law 17 Dictionary 1681 (10th ed. 2014). Additionally, Black’s Law Dictionary defines 18 “asportation” as “[t]he act of carrying away or removing (property or a person).” 19 Id. at 136. Based on the plain meaning of the term, we conclude “take,” for 20 purposes of the unlawful taking of a motor vehicle statute, does not include an 21 element of “carrying away,” i.e., asportation. Rather, the plain meaning of the term 1 indicates the Legislature’s intent is to prohibit the deprivation of another’s right to 2 immediate possession of one’s vehicle. Cf. State v. McGruder, 1997-NMSC-023, 3 ¶ 30, 123 N.M. 302, 940 P.2d 150 (noting that “[u]nlawful taking of a vehicle 4 primarily protects an owner’s right to immediate possession of an automobile”), 5 abrogated on other grounds by State v. Chavez, 2009-NMSC-035, ¶¶ 16, 47 n.1, 6 146 N.M. 434, 211 P.3d 891. 7 2. “Motor Vehicle” 8 Defendant next argues that Section 30-16D-1 does not apply to the {9} 9 motorcycle in this case because it protects solely “vehicles” and “motor vehicles,” 10 rather than “off-highway motor vehicles[.]” See § 30-16D-1(A) (stating that the 11 “[u]nlawful taking of a vehicle or motor vehicle consists of a person taking any 12 vehicle or motor vehicle as defined by the Motor Vehicle Code”). ] We note, 13 however, that the Legislature made no such distinction for purposes of Section 3014 16D-1, nor any other criminal offense listed in Article 16D. See NMSA 1978, 15 §§ 30-16D-1 to -6 (2009) (prohibiting unlawfully taking of a vehicle or motor 16 vehicle, embezzlement of a vehicle or motor vehicle, fraudulently obtaining a 17 vehicle or motor vehicle, receiving or transferring a stolen vehicle or motor 18 vehicle, injuring or tampering with a motor vehicle, and altering or changing the 19 engine or “other numbers” of a vehicle or motor vehicle). Nonetheless, this Court 20 has previously determined that off-highway motor vehicles are vehicles for 21 purposes of NMSA 1978, § 66-1-4.19(B) (2005, amended 2017) (defining 1 “vehicle” as “every device in, upon or by which any person or property is or may 2 be transported or drawn upon a highway, . . . except devices moved exclusively by 3 human power or used exclusively upon stationary rails or tracks”). See State v. 4 Natoni, 2012-NMCA-062, ¶ 14, 282 P.3d 769 (determining that an all-terrain 5 vehicle is a vehicle under Section 66-1-4.19(B)); see also NMSA 1978, § 66-36 1001.1(E) (2009) (defining “off-highway motor vehicle[,]” in pertinent part, as “a 7 motor vehicle designed by the manufacturer for operation exclusively off the 8 highway or road includ[ing an] (1) “all-terrain vehicle,” . . . (2) “off-highway 9 motorcycle”, [and] (3) “snowmobile’ ”); cf. State v. Bernard, 2015-NMCA-089, 10 ¶¶ 3, 18, 31, 37, 355 P.3d 831 (affirming the defendant’s convictions for receiving 11 or transferring stolen vehicles or motor vehicles under Section 30-16D-4(A) due to 12 his possession of a snowmobile and two all-terrain vehicles). Therefore, for 13 purposes of Section 30-16D-1, this motorcycle qualifies as a vehicle. The 14 motorcycle is also a motor vehicle. See NMSA 1978, § 66-1-4.11(H) (2007, 15 amended 2015) (defining “motor vehicle” as “every vehicle that is self-propelled 16 and every vehicle that is propelled by electric power obtained from batteries or 17 from overhead trolley wires, but not operated upon rails”); State v. Richardson, 18 1992-NMCA-041, ¶ 5, 113 N.M. 740, 832 P.2d 801 (reasoning “that a ‘motor 19 vehicle’ is but a subset or subgroup of the larger category ‘vehicle’ ”). We 20 therefore reject Defendant’s argument. 21 3. Sufficiency of the Evidence 1 {10} Having defined both “taking” and “motor vehicle,” we now turn to whether 2 there was sufficient evidence to support Defendant’s convictions under those 3 definitions. “In reviewing the sufficiency of the evidence, we must view the 4 evidence in the light most favorable to the guilty verdict, indulging all reasonable 5 inferences and resolving all conflicts in the evidence in favor of the verdict.” State 6 v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (internal quotation marks and 7 citation omitted). “In that light, the Court determines whether any rational trier of 8 fact could have found the essential elements of the crime beyond a reasonable 9 doubt.” Id. (internal quotation marks and citation omitted). “Contrary evidence 10 supporting acquittal does not provide a basis for reversal because the [finder of 11 fact] is free to reject [the d]efendant’s version of the facts.” State v. Rojo, 199912 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “It is the role of the fact[-]finder to 13 judge the credibility of witnesses and determine the weight of evidence.” State v. 14 Hughey, 2007-NMSC-036, ¶ 16, 142 N.M. 83, 163 P.3d 470. “Challenges to the 15 sufficiency of the evidence supporting a conviction that raise an issue of statutory 16 interpretation are subject to . . . de novo review.” State v. Montano, 2018-NMCA17 047, ¶ 9, 423 P.3d 1, cert. granted, 2018-NMCERT-___ (No. S-1-SC-37021, July 18 24, 2018). 19 {11} Here, there was sufficient evidence to support Defendant’s conviction. 20 Officer Julian Torrez testified that an off-road, kick-start Honda motorcycle was 21 missing from where it was placed in his yard. He later located the motorcycle in an 1 alleyway, and saw Defendant straddling the motorcycle, attempting to kick start it. 2 This is sufficient evidence to establish that Defendant exercised control over the 3 motorcycle, thereby unlawfully taking the motor vehicle. See State v. Platero, 4 2017-NMCA-083, ¶ 13, 406 P.3d 557, cert. denied, 2017-NMCERT-___ (No. S-15 SC-36627, Sept. 26, 2017) (stating that “corpus delicti may be proved by direct or 6 circumstantial evidence”); State v. Sanchez, 1982-NMCA-105, ¶ 8, 98 N.M. 428, 7 649 P.2d 496 (concluding that “[p]ossession of recently stolen property constitutes 8 circumstantial evidence connecting [the] defendant with the taking of a vehicle”), 9 overruled on other grounds by State v. Belanger, 2009-NMSC-025, ¶ 37, 146 N.M. 10 357, 210 P.3d 783; cf. State v. Sims, 2010-NMSC-027, ¶ 33, 148 N.M. 330, 236 11 P.3d 642 (holding that to determine whether an individual is in actual physical 12 control of a vehicle, the fact-finder may consider several factors including 13 “[w]hether the vehicle was running[,] . . . the ignition was on[, and w]here and in 14 what position the driver was found in the vehicle[.]”). 15 CONCLUSION 16 {12} The judgment and sentence are affirmed. 17 {13} IT IS SO ORDERED. 18 19 20 WE CONCUR: _____________________________ MICHAEL E. VIGIL, Judge 1 ___________________________ 2 STEPHEN G. FRENCH, Judge 3 ___________________________ 4 DANIEL J. GALLEGOS, Judge

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