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State v. Fernandez4/14/1994
ON FOR NEW TRIAL
A. Preservation
The procedure for filing a motion for a new trial is set forth under SCRA 1986, 5-614 (Repl. 1992). Under that rule, a motion for new trial based on grounds other than newly discovered evidence "shall be made within ten (10) days after verdict or finding of guilty or within such further time as the court may fix during the ten (10) day period." SCRA 5-614(C). Defendant was found guilty of the charges on November 19, 1992. Defendant's claim of inconsistent verdicts was first raised in an "Amended Motion For A New Trial" filed in district court on December 28, 1992. Defendant fails to assert, and the record does not indicate, that the district court extended the ten-day time limit for filing a motion for new trial as set forth in SCRA 5-614(C). See § 12-213(A)(3) (requiring that contentions of an appellant must indicate how an issue has been preserved in the court below). It does not appear therefore that Defendant properly preserved this issue for review.
B. Merits
Even if we consider Defendant's argument, it lacks merit. Defendant argues the jury's guilty verdict on the intimidation count and not guilty verdict on the DWI charge "are inconsistent, indicating jury confusion." The jury was instructed that the elements for the offenses of DWI and intimidation of a witness are separate and distinct under New Mexico law. Inconsistent verdicts are those which are so contrary to each other that the basis upon which each verdict was reached cannot be determined. ) (Sutin, J., specially Concurring). We perceive no such problem here.
In order to establish that Defendant intimidated Romo, the State merely had to prove that the purpose of the threat or intimidation was to prevent Romo from testifying was adequate. Furthermore, even if the acquittal on the DWI charge was irreconcilable with the conviction for intimidating a witness, we would not be required to set aside the conviction; we review the verdict of conviction, not the verdict of acquittal. See ), cert. denied, 80 N.M. 198, 453 P.2d 219 (1969). As we pointed out, there is ample evidence to support that conviction.
VI. THE JURY WAS PROPERLY INSTRUCTED
The instruction on the intimidation offense presented to the jury reads as follows:
For you to find the defendant guilty of intimidation of a witness, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. David Fernandez threatened or intimidated David Romo.
2. At the time of the threat or intimidation, David Romo was a witness, or a
person likely to become a witness, in a judicial or administrative proceeding.
3. The purpose of the threat or intimidation was to prevent David Romo from testifying to any fact, or to abstain from testifying.
4. This happened in New Mexico between December 4, 1991 and January 7, 1992.
The record further indicates that the court also gave Uniform Jury Instruction 14-141, the required instruction on general criminal intent.
The instruction given to the jury concerning intimidation of a witness states, "The purpose of the threat or intimidation was to prevent David Romo from testifying to any fact, or to abstain from testifying." We believe this language conveyed the notion that the State had to prove Defendant intended that Romo not testify to some fact or that Romo not testify at all. Webster's Third New International Dictionary 1847 (1966) ("purpose" defined as an intended object, effect, or result). Moreover, the instruction
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