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State v. Romero3/19/1998
APPEAL FROM THE DISTRICT COURT OF UNION COUNTY Peggy J. Nelson, District Judge
{1} We grant the State's motion for rehearing and substitute this opinion for the one filed February 20, 1998.
{2} This appeal is directed at two issues. First, we determine when the crime of criminal trespass is a lesser-included offense of aggravated burglary and justifies a separate jury instruction. Second, we examine the defense of diminished capacity due to intoxication with respect to the specific intent necessary to commit the crime of aggravated burglary and when an instruction on that defense is warranted. Because Defendant was wrongfully refused an instruction on both issues, we reverse his conviction of aggravated burglary and remand for a new trial.
BACKGROUND
{3} On two separate occasions, Defendant entered the trailer home of his ex-girlfriend, Marisa Cruz, against her wishes. The first time Defendant entered Cruz's home, she asked him to leave, but he refused. She threatened to call the police if he did not leave, and Defendant replied that he did not care. Cruz believed Defendant was drunk because usually, if she asked him to leave, he would do so. Cruz testified that Defendant wanted her to sleep with him and that he kept touching her. In time, Defendant passed out on a couch, and Cruz called the police.
{4} When Officer Sinclair arrived at the Cruz residence at approximately 2:11 a.m., Cruz told him that she wanted Defendant removed from her trailer. Officer Sinclair observed Defendant lying on a couch in the living room. He had to grab one of Defendant's arms to help Defendant up from the couch. Officer Sinclair testified that he needed assistance in removing Defendant from the Cruz residence because he believed that Defendant was under the influence of alcohol. With the assistance of another officer, Officer Sinclair placed Defendant in his police car. Officer Sinclair thought Defendant was drunk because he could smell alcohol and Defendant was unsteady on his feet. Although Officer Sinclair initially planned to place Defendant in a detoxification cell so that he could sober up, the officer changed his mind and decided to take Defendant home. Officer Sinclair testified that once he woke up Defendant and got him out into the front yard, Defendant "had pretty much come to and knew his whereabouts and seemed to be like he was under his own power to where could go ahead and take him to his house." Officer Sinclair drove Defendant to his mother's home approximately three blocks from the Cruz trailer. Defendant walked into his mother's residence "on his own power" and shut the door behind him.
{5} After Officer Sinclair and Defendant left, Cruz began to fall asleep on the couch. About fifteen minutes after Officer Sinclair had first removed Defendant from her home, Cruz was awakened by Defendant. Defendant had reentered her home and was sitting on the couch above her head and watching her. As soon as she opened her eyes, Defendant grabbed her. Defendant asked why Cruz had called the police, and the two began arguing and fighting. Defendant dragged Cruz through the kitchen into her bedroom as Cruz resisted and tried to fight him off. Defendant threw Cruz on the bed and began choking her. Defendant removed Cruz's shorts and grabbed her panties and tried to take them off. While trying to open Cruz's legs, Defendant had his thumbs pressed in her genital area. The two struggled on the bed for approximately two hours until Defendant passed out, and Cruz again called the police.
{6} Officer Montoya was dispatched to Cruz's residence at approximately 3:55 a.m. and responded to the call in about five minutes. When he arrived, Cruz told hi
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