FROM THE DISTRICT COURT OF QUAY COUNTY Albert J. Mitchell,
Jr., District Judge
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.
JONATHAN B. SUTIN, Judge.
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.
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.
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.
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
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. 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
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).
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."
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 ...