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State v. Perea9/9/1999
{1} Defendant appeals his felony conviction under NMSA 1978, § 30-24- 3(A)(3) (1997), which prohibits bribery or intimidation of a witness. Defendant was also convicted of misdemeanor criminal sexual contact but was acquitted of the other felony and misdemeanor charges brought against him. On appeal he challenges the jury instructions given on intimidating a witness, the constitutionality of Section 30-24-3(A)(3), and the sufficiency of the evidence to support his conviction for intimidating a witness. We conclude that there was fundamental error in the jury instruction and reverse and remand for a new trial on Defendant's conviction for intimidating a witness. Because Defendant would be entitled to a dismissal of the charge of intimidating a witness if we were to find in his favor regarding the constitutionality of the statute and the sufficiency of the evidence, we also address these issues and, finding no error, affirm.
Factual and Procedural Background
{2} The facts giving rise to this case involve a domestic dispute. Although acknowledging there was an argument, Defendant's theory of the case was that the victim fabricated and exaggerated Defendant's actions as alleged in the grand jury indictment against him. In particular, Defendant disputed whether he held a knife to the victim's throat, hit her on the head, threw the phone at her, threw a box of hangers at her, reached inside her blouse, bra, and sweatpants looking for money, or lifted her while his fingers were cupped inside her vagina.
{3} The evidence of intimidating a witness was the victim's testimony that, during the course of an altercation between Defendant and herself, Defendant twice told her to call the police, "He kept telling me to call the police. He kept calling -- he kept picking up the phone receiver and calling me a stupid bitch, `Call 911, stupid bitch, call them. You won't live to see it. I'll kill you.'" Later she testified, "And he's still raging at me, and he kept insisting that I call 911, call the police, and everything like that." The victim also testified that "He told me that if I called the police at that or any other time, that he would kill me." In response to a question about whether Defendant made any statements to the victim about what would happen to her job if she called the police, she testified that Defendant told her he would make her lose her job. The only other witnesses were a friend of the victim and police officers. Defendant did not testify.
{4} In addition to the charges for which he was convicted, Defendant had been charged but acquitted of several other felonies, namely, criminal sexual penetration, false imprisonment, aggravated assault against a household member (deadly weapon), and of one misdemeanor charge of aggravated battery against a household member. The trial court granted Defendant's motion for a directed verdict on the felony aggravated battery against a household member (deadly weapon) charge. After the jury returned guilty verdicts on the misdemeanor criminal sexual contact and felony threatening a witness charges, Defendant filed a motion to vacate the conviction or for a new trial. This motion was denied and the judgment and sentence was entered shortly thereafter.
Section 30-24-3 and Case Law
{5} Section 30-24-3(A) states in part:
A. Bribery or intimidation of a witness consists of any person knowingly:
(3) intimidating or threatening any person or giving or offering to give anything of value to any person with the intent to keep the person from truthfully reporting to a law enforcement officer or any agency of government that is responsible for enforcing criminal laws informati
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