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State v. Romero

Court of Appeals of New Mexico

January 24, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
MICHAEL A. ROMERO, JR., Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY Albert J. Mitchell, Jr., District Judge

          Hector H. Balderas, Attorney General Laura E. Horton, 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.

          MEMORANDUM OPINION

          JONATHAN B. SUTIN, Judge.

         {1} In order to avoid arrest, Defendant, a passenger in his sister's vehicle, took command of the vehicle from his sister and began a high-speed chase when law enforcement attempted to pull the vehicle over. We hold that Defendant was properly convicted of unlawfully taking the vehicle. We further hold that Defendant was wrongfully convicted of battery on a household member but was nevertheless guilty of the lesser included offense of simple battery.

         BACKGROUND

         {2} Defendant Michael A. Romero, Jr. called his sister, Tabitha Romero, asking for a ride for himself and a friend. Tabitha, with her two young children, picked both up, dropped Defendant's friend off, and drove to a convenience store for gas. Officer Dennis Garcia, then with the Tucumcari, New Mexico, Police Department, recognized Defendant and knew he had an active, outstanding warrant. The officer saw Tabitha's vehicle pulling into the convenience store with Defendant "slouched down" in the front passenger seat. Moments later, Defendant was no longer visible in the front seat as the vehicle pulled through the gas pump area. When the vehicle left the gas station, the officer turned on his emergency equipment to conduct a traffic stop. The officer then observed Defendant move from the back seat to the front seat of the vehicle, and he saw the passenger door "begin to crack open." The officer used his speaker to instruct Defendant to remain in the vehicle. The door closed, and the officer saw Defendant move to the middle of the vehicle, take control of the steering wheel, and climb on top of Tabitha, who was driving. A high-speed chase ensued.

         {3} The details of what occurred after leaving the convenience store came from Tabitha. According to Tabitha, Defendant wanted her to keep driving and not stop, and when she told Defendant to get out of the vehicle, Defendant refused. Defendant moved into the driver's side and placed his foot on Tabitha's forcing her to accelerate, whereupon Tabitha jumped into the back seat with her children, leaving Defendant to drive.

         {4} The officer lost sight of Tabitha's vehicle. Defendant parked the vehicle in a driveway of a random house in Tabitha's neighborhood and left on foot. Eventually, Tabitha and her children were given a ride by Tabitha's mother. The vehicle was later discovered in a garage of an unoccupied home.

         {5} Defendant was convicted of unlawfully taking a motor vehicle, in violation of NMSA 1978, Section 30-16D-1(A) (2009). He was also convicted of battery upon a household member, in violation of NMSA 1978, Section 30-3-15(A) (2008). Defendant appeals both convictions.[1] Defendant contends that the State failed to prove beyond a reasonable doubt that he unlawfully took the vehicle or that he committed battery on a household member.

         DISCUSSION

         {6} We review for sufficiency of the evidence to support the convictions, State v. Sanders, 1994-NMSC-043, ¶ 11, 117 N.M. 452, 872 P.2d 870, and we "view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Astorga, 2015-NMSC-007, ¶ 57, 343 P.3d 1245 (internal quotation marks and citation omitted).

         {7} The unlawful taking of a motor vehicle consists of a person taking any motor vehicle without the consent of the owner. See § 30-16D-1. The vehicle was co-owned by Tabitha and her former boyfriend, Robert Unruh, and Defendant contends that he cannot be convicted of unlawful taking absent either an amendment to the criminal statute or enactment of a new statute that "addresses the unlawful taking of a jointly owned vehicle where consent is split among the owners."

         {8} We see no sound basis for Defendant's argument. Unruh signed an affidavit that he did not give consent to Defendant in this circumstance. And Tabitha's testimony supplies the evidence necessary to prove beyond a reasonable doubt that Defendant did not have her consent to take command of the vehicle as he did. Specifically, at no point did Tabitha's testimony or any other evidence in the record, including Officer Garcia's testimony, indicate that she gave Defendant permission to possess her vehicle. To the contrary, the evidence indicates that Defendant eventually commandeered the vehicle, at one point ...


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