State v. Sivils

538 P.3d 126

STATE of New Mexico, Plaintiff-Appellee,

v.Crystal SIVILS, Defendant-Appellant.

No. A-1-CA-39045

Court of Appeals of New Mexico.

Filing Date: August 30, 2023

Raúl Torrez, Attorney General, Laurie Blevins, Assistant Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant

IVES, Judge.

{1} After a jury trial, Defendant Crystal Dawn Sivils was convicted of conspiracy to commit bringing contraband into a jail. See NMSA 1978, § 30-28-2 (1979) (conspiracy); NMSA 1978, § 30-22-14(B) (2013) (bringing contraband into a jail). On appeal, Defendant argues that (1) fundamental error occurred in the manner the jury was instructed on the elements of the offense; and (2) there was insufficient evidence to support her conviction.¹ As to the first argument, we agree with Defendant. The district court gave the jury an instruction on the offense of conspiracy that deviated from the applicable uniform instruction, UJI 14-2810 NMRA, and the given instruction omitted essential elements of the offense. We conclude that this instruction was erroneous, and although Defendant did not object to it at trial, we reverse Defendant's conviction under the doctrine of fundamental error. As a result, we consider Defendant's sufficiency claim for the purpose of determining whether principles of double jeopardy bar retrial. Defendant argues, and the State agrees, that we should measure the evidence against the actual essential elements of conspiracy, rather than erroneous instructions given at trial. On this legal question, we believe some tension exists within New Mexico precedent and between a New Mexico precedent and a precedent of the United States Supreme Court. Because the parties have not addressed that tension, we decline to resolve the legal question, and we instead assume without deciding that the parties are correct. Measuring the evidence against the actual elements of conspiracy, we conclude that the evidence sufficed and that retrial is therefore permissible.

BACKGROUND

{2} At trial, the State adduced evidence of the following facts. On the morning of April 11, 2017, a detective with the Lovington Police Department was using the men's restroom at the Lovington Magistrate Court when he spotted what appeared to be a "white balloon" in the courthouse urinal. Upon further investigation, the officer discovered that the interior of this balloon contained a variety of pills, what appeared to be marijuana, a handcuff key, some matches, and an unidentified "squishy substance." Later lab analysis confirmed that the contents included marijuana and methamphetamine.

{3} The investigating officer suspected that the balloon was likely a "dead drop," which is an item dropped off in a specific location by one person for later pickup by another person. To identify potential recipients of the balloon, another officer investigated whether any people who were incarcerated had been scheduled to appear in the Lovington Magistrate Court around the time the contraband was discovered. That officer found that, on the morning the balloon was found, two men being housed at the Lea County Detention Center had attended hearings. Although neither had asked to use the restroom, law enforcement officers reviewed recent phone calls made by these two men to look for "any suspicious conversations between those two inmates [and] other outside people." The officers determined that one of the men, Aaron Gutierrez, had spoken with Defendant in the days before and after the balloon was discovered. At the time of these conversations, Defendant and Mr. Gutierrez were engaged to be married.

{4} Two such recorded conversations, one of a jail call and another of a jail visit, were admitted into evidence. In the first conversation, Mr. Gutierrez said that someone would be calling Defendant to "give [her] a rundown on some stuff" about which Defendant "already kn[e]w," to which Defendant answered, "Yeah." Mr. Gutierrez then told Defendant that this caller would "tell [her] everything," including "how it's going to go, how you do it, where to do it." In the same conversation, Mr. Gutierrez told Defendant that she would need to "borrow [a friend's] baby" so that Defendant could "go to the men's room for [Mr. Gutierrez]," or get "somebody that can do it." In the second conversation, which was recorded the day after the contraband was found in the urinal, Defendant talked to Mr. Gutierrez about some gold or red "balloons" that she had ordered "for [a] wedding," and said, "I think something happened to the order, it didn't go through."

{5} When interviewed by investigating officers, Defendant confirmed that after speaking to Mr. Gutierrez, she had received a phone call and subsequently picked up a "package" from a third party—the girlfriend of a man who was incarcerated with Mr. Gutierrez. She was told by this third party to get someone to put this package in the men's restroom at the Lovington Magistrate Court. However, despite these acknowledgements, Defendant told the interviewing officer that she did not know the contents of the package, nor did she know why Mr. Gutierrez wanted her to meet with the third party.

{6} When Defendant testified, she did not dispute receiving the box from the third party, or that she was told to get the package into the men's room. However, she denied any knowledge about what was "going on," and stated that her comments during the second conversation regarding balloons pertained to decorative balloons for her upcoming wedding with Mr. Gutierrez. She also denied any knowledge of the contents of the package itself, and stated that never saw a "balloon"—only a box.

{7} The jury found Defendant guilty of conspiracy to commit bringing contraband into a jail. She appeals.

DISCUSSION

I. The Jury Instructions Are Fundamentally Erroneous

{8} Defendant contends that fundamental error occurred because the jury received an instruction on the offense of conspiracy that did not include the essential elements of the offense. Specifically, Defendant argues that when the district court instructed the jury on the elements of conspiracy to commit bringing contraband into a jail, it departed from the applicable uniform instruction, UJI 14-2810, and instead gave a "hybrid instruction" that incorporated aspects of the crime of conspiracy as well as the conspiracy's target offense of bringing contraband into a jail. Relying on the doctrine of fundamental error, Defendant argues that the error in the instruction warrants reversal even though Defendant failed to object to the instruction at trial. See Rule 12-321(B)(2)(c) NMRA (stating that an appellate court may, in its discretion, consider a claim of fundamental error for the first time on appeal). We agree for the reasons that follow.

{9} Fundamental error exists if it would "shock the [court's] conscience" to affirm the conviction, State v. Barber , 2004-NMSC-019, ¶ 14, 135 N.M. 621, 92 P.3d 633, either because of "the obvious innocence of the defendant," id. ¶ 16, or because "a mistake in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused." Id. ¶ 17. As our Supreme Court recognized over a century ago, the fundamental error doctrine requires an appellate court to perform a difficult and often high-stakes inquiry. See State v. Garcia , 1914-NMSC-065, ¶¶ 17-21, 19 N.M. 414, 143 P. 1012 (opinion upon rehearing). On the one hand, we must consider the judiciary's imperative to protect fundamental rights (even when claims of error have not been preserved). See id. ¶ 18. On the other hand, we must not invoke the doctrine "in aid of strictly legal, technical, or unsubstantial claims." Id. ¶ 19.

{10} As it pertains to jury instructions, fundamental error analysis follows two steps. State v. Ocon , 2021-NMCA-032, ¶ 7, 493 P.3d 448. First, we determine whether error occurred. See id. Thus, our review "begins at the same place as our analysis for reversible error." Barber , 2004-NMSC-019, ¶ 19, 92 P.3d 633. Our task is to "determine whether a reasonable juror would have been confused or misdirected by the jury instruction." Id. Importantly, "juror confusion or misdirection may stem not only from instructions that are facially contradictory or ambiguous, but from instructions which, through omission or misstatement, fail to provide the juror with an accurate rendition of the relevant law." State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134.

{11} If we conclude that the jury instruction was erroneous, we move to step two, asking whether that error was fundamental. Ocon , 2021-NMCA-032, ¶ 8, 493 P.3d 448. The scope of this analysis is broad: we "review the entire record, placing the jury instructions in the context of the individual facts and circumstances of the case, to determine whether the [d]efendant's conviction was the result of a plain miscarriage of justice." Barber , 2004-NMSC-019, ¶ 19, 92 P.3d 633 (internal quotation marks and citation omitted). The "failure to instruct the jury on an essential element, as opposed to a definition, ordinarily is fundamental error." Id. ¶ 20 (emphasis added); see State v. Osborne , 1991-NMSC-032, ¶ 38, 111 N.M. 654, 808 P.2d 624. However, not every failure to instruct on an essential element amounts to fundamental error. State v. Orosco , 1992-NMSC-006, ¶ 17, 113 N.M. 780, 833 P.2d 1146. Under two exceptions to the general rule, which we discuss below, the omission of an essential element does not amount to fundamental error. See Ocon , 2021-NMCA-032, ¶¶ 9-12, 493 P.3d 448.

{12} In Defendant's case, this analysis leads us to conclude that the jury instruction at issue was erroneous because its omission of essential elements would be misleading or confusing to a reasonable juror, and that the error here is fundamental because neither of the exceptions applies. We explain our rationale for each conclusion in turn.

A....