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State v. Allen12/1/1999
and when he began to restrain her with the rope. We believe the jury could have relied on either time in order to satisfy its obligation to find a kidnapping factually distinct from attempted CSP.
3. Elements of Murder in the Commission of Kidnapping
{72} We next review the evidence used to prove each element of the aggravating circumstance of murder in the commission of kidnapping. See § 31-20A-5(B). The trial court instructed the jury on the following elements of this aggravating circumstance:
1. The crime of kidnapping was committed;
2. [The victim] was murdered while defendant was committing the kidnapping;
3. The murder was committed with the intent to kill.
This jury instruction is patterned on UJI 14-7015 NMRA 1999.
{73} As noted in the committee commentary to UJI 14-7015 and in Henderson, 109 N.M. at 661, 789 P.2d at 609, the aggravating circumstance of murder in the commission of kidnapping does not follow automatically from a guilty verdict on the underlying offenses of kidnapping and murder. " stablishing the elements of an aggravating circumstance is not the same thing as establishing the elements of a crime." Id. at 661, 789 P.2d at 609.
{74} It would be possible to read Henderson as holding that Section 31- 20A-5(B) requires not only an intent to kill but also an intent to "kill in the commission of a kidnapping." 109 N.M. at 661, 789 P.2d at 609. However, we reject any inference in Henderson that Section 31- 20A-5(B) requires proof of a specific intent for the aggravating circumstance of murder in the commission of kidnapping. See Henderson, 109 N.M. at 665, 789 P.2d at 613. (Ransom, J., concurring in part, dissenting in part). The statutory reference was not an attempt to confine the aggravating circumstance of kidnapping to situations in which a jury could find a defendant had formed the specific intent to kidnap and then murder the victim. Rather, in addition to proving that the crime of kidnapping was committed, the aggravating circumstance of murder in the commission of kidnapping requires proof that "the murder was committed with intent to kill" and was committed "in the commission of . . . [kidnapping]." Section 31-20-A-5(B); accord UJI 14-7015. "Even if the jury has found the defendant guilty of a felony murder in the commission of a kidnapping, it must also find that the murder was committed with an intent to kill in order to find this aggravating circumstance." UJI 14-7015 committee commentary.
{75} We conclude that the State presented sufficient evidence to prove the elements of the aggravating circumstance of murder in the commission of kidnapping. The fact that all of the elements of the crime of kidnapping were satisfied before the murder occurred does not preclude a finding that the victim was murdered in the commission of kidnapping because, in this case, the evidence substantially supports a finding that "the kidnapping continued throughout the course of efendant's other crimes and until the time of the victim's death." McGuire, 110 N.M. at 309, 795 P.2d at 1001. In addition, a finding that Defendant committed the murder with the intent to kill can be inferred from the same evidence of intent upon which the jury relied to find Defendant guilty of first degree murder under Section 30-2-1(A)(1), which requires a "willful, deliberate and premeditated killing." Defendant has not challenged the sufficiency of the evidence that the killing was "willful, deliberate and premeditated," and we find no reasonable basis for doing so. Cf. Rojo, 1999-NMSC-001, 24 (reasoning that evidence concerning the method and motive for a killing was sufficient to
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