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State v. Grubb

Court of Appeals of New Mexico

October 1, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JOSEPH A. GRUBB, Defendant-Appellant.

          Appeal From the District Court of Otero County Jerry H. Ritter Jr., District Judge.

          Hector H. Balderas, Attorney General Santa Fe, N.M. Lauren J. Wolongevicz, Assistant Attorney General Albuquerque, N.M. for Appellee

          Bennett J. Baur, Chief Public Defender Aja Oishi, Assistant Appellate Defender Santa Fe, N.M. for Appellant

          OPINION

          M. Monica Zamora, Chief Judge.

         {¶1} Defendant Joseph Grubb appeals his conviction for escape from jail, arguing that the district court committed fundamental error by instructing the jury using the Uniform Jury Instruction (UJI) that lists the essential elements for the crime of escape from an inmate-release program. Defendant also argues that the evidence was insufficient to support his conviction and that pre-indictment delay violated his due process rights. Because the district court instructed the jury on a crime for which Defendant was never charged, the district court committed fundamental error. Because Defendant's other arguments are without merit, we reverse for a new trial consistent with this opinion.

         BACKGROUND

         {¶2} While on probation for a conviction in 2008, Defendant was arrested and charged with drug-related crimes. As a result of those charges, the State sought to revoke Defendant's probation, and after holding a hearing on the matter on December 22, 2011, the district court revoked Defendant's probation, granting him furlough until December 31, 2011, when he was required to turn himself in to the custody of the Otero County Detention Center. Defendant did not report on December 31, 2011, and instead accumulated additional charges in two new cases under an alias, Deciderio Nieto. While he remained in jail on those other charges, Defendant was indicted on one count of escape from jail, and a jury convicted him. Defendant appeals his conviction for escape from jail.

         DISCUSSION

         {¶3} Defendant argues that the district court erred by improperly instructing the jury, that the evidence was insufficient as a matter of law to support a conviction for escape from jail under NMSA 1978, Section 30-22-8 (1963), that the district court improperly admitted testimony regarding other cases, and that the pre-indictment delay in this case violated his due process rights. We begin with Defendant's arguments regarding jury instructions and sufficiency of the evidence. Those arguments being dispositive of the improper testimony argument, we need not address it. See State v. Mascarenas, 2000-NMSC-017, ¶ 1, 129 N.M. 230, 4 P.3d 1221 (declining to address appellant's arguments regarding improperly admitted evidence after concluding deficiencies in the jury instructions warranted reversal). Last, we consider Defendant's argument regarding pre-indictment delay.

         I. Jury Instructions

         A. Escape From Jail and Escape From an Inmate-Release Program

         {¶4} Defendant argues that the district court committed fundamental error by instructing the jury using the UJI for escape from an inmate-release program rather than escape from jail. "Escape from jail consists of any person who shall have been lawfully committed to any jail, escaping or attempting to escape from such jail." Section 30-22-8. The UJI identifies the three essential elements present in Section 30-22-8 as follows:

1. The defendant was committed to jail;
2. The defendant either escaped from, or attempted to escape from[, ] jail; and
3. This happened in New Mexico on or about [a specified date].

UJI 14-2221 NMRA. The UJI also provides, in a use note, that "[i]f the escape is from a jail release program, use UJI l4-2228[ NMRA, ]" which lists the six essential elements for escape from an inmate-release program. UJI 14-2221 use note 1.

         {¶5} Escape from an inmate-release program is a crime established in NMSA 1978, Section 33-2-46 (1980): "Any prisoner whose limits of confinement have been extended, or who have been granted a visitation privilege under the inmate-release program, who willfully fails to return to the designated place of confinement within the time prescribed, with the intent not to return, is guilty of an escape." Under the UJI, escape from an inmate-release program consists of six elements:

1. The defendant was committed to __ (identify institution);
2. The defendant was released from __ (identify institution) to (describe ...

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