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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
UBALDO RODRIGUEZ,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY, Angie K.
Schneider, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, for Appellee
Bennett J. Baur, Chief Public Defender,
J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for
Appellant
MICHAEL E. VIGIL, Judge. WE CONCUR: EMIL
J. KIEHNE, Judge, DANIEL J. GALLEGOS, Judge
{1} Defendant Ubaldo
Rodriguez has appealed from multiple convictions for trafficking, as well as
possession of a firearm by a felon. We issued a notice of proposed summary
disposition in which we proposed to uphold the convictions. Defendant has filed
a memorandum in opposition. After due consideration, we remain unpersuaded by
the assertions of error. We therefore affirm.
{2} The relevant
background information was previously set forth. We will avoid undue reiteration
here, and focus instead on the content of the memorandum in opposition.
{3} Defendant continues
to challenge the sufficiency of the evidence, specifically arguing that his own
testimony should be said to have established objective entrapment as a matter
of law. [MIO 5] This would have required Defendant to conclusively demonstrate
that police conduct exceeded the standards of proper investigation.
See
State v. Mendoza,
2016-NMCA-002, ¶ 14,
363 P.3d 1231 (“Objective entrapment
may be held to exist as a matter of law when the district court determines that
“as a matter of law the police conduct exceeded the standards of proper
investigation.” (alterations, internal quotation marks, and citation omitted).
In this case, the undisputed facts merely established that police used a
confidential informant to facilitate one purchase by an undercover agent, who
subsequently made two more purchases from Defendant. This does not constitute
objective entrapment.
See State v. Vallejos,
1997-NMSC-040, ¶ 22,
123 N.M. 739,
945 P.2d 957 (observing that objective entrapment is “reserved
for only the most egregious circumstances,” and is not indicated simply because
the police participate “in a crime they are investigating” or use “deception to
gain the confidence of suspects” (internal quotation marks and citation
omitted)). We therefore remain unpersuaded that Defendant was entitled to
dismissal of the charges as a matter of law.
{4} Defendant’s
argument appears to be largely premised upon the theory that he was the victim of
a circular transaction. [MIO 1, 5] However, as we previously observed,
Defendant’s testimony was effectively controverted by the undercover officer’s
conflicting account of the transactions, the circumstances of which did not
suggest circularity. [CN 2-3] Accordingly, neither the district court nor the
jury were required to accept Defendant’s version of the incidents.
See State
v. Shirley,
2007-NMCA-137, ¶¶ 27-29,
142 N.M. 765,
170 P.3d 1003 (observing
that while circular transactions amount to entrapment, a defendant’s testimony
to this effect need not be believed). We therefore reject Defendant’s first
assertion of error.
{5} Defendant also
continues to argue that the jury instructions were flawed. [MIO 5-8] However,
we remain of the opinion that the district court properly utilized the
applicable UJIs.
See State v. Ortega,
2014-NMSC-017, ¶ 32,
327 P.3d 1076
(“Uniform jury instructions are presumed to be correct.”);
Jackson v. State,
1983-NMSC-098, ¶ 5,
100 N.M. 487,
672 P.2d 660 (“When a uniform jury instruction
is provided for the elements of a crime, generally that instruction must be
used without substantive modification.”).
{6} Defendant contends
that the uniform instructions should have been modified, to incorporate the
absence of entrapment in the elements instructions. [MIO 6-8] However, the
entrapment defense does not effectively alter the elements or create an issue
as to the lawfulness of Defendant’s actions; it merely raised the question
whether Defendant’s unlawful actions should be excused.
See State v.
Percival,
2017-NMCA-042, ¶¶ 11, 17,
394 P.3d 979 (discussing the
distinction between defenses that effectively negate essential elements, and
defenses that effectively excuse intentional criminal conduct because of the
surrounding circumstances; and indicating that this distinction similarly
explains why unlawfulness is not a necessary element in relation to the latter
class of defenses). As a result, we remain unpersuaded that modification of the
essential elements instruction was required.
{7} We are similarly
unpersuaded that our Supreme Court’s subsequent modification of the use notes
associated with the defense of duress requires a different result, [MIO 5-6]
particularly in light of its failure to similarly modify the use notes
associated with entrapment. Had our Supreme Court intended such an alteration
with respect to the uniform jury instructions on entrapment, we assume it would
have explicitly done so. Of course, if we are mistaken in this, our Supreme
Court is in the best position to take corrective action.
See State v. Wison,
1994-NMSC-009, ¶ 4,
116 N.M. 793,
867 P.2d 1175 (indicating that although this
Court “is
not precluded from considering error in jury instructions” in
some cases, our Supreme Court is vested with the ultimate authority to “amend,
modify, or abolish uniform jury instructions”).
{8} Accordingly, for
the reasons stated above and in the notice of proposed summary disposition, we
affirm.
DANIEL J. GALLEGOS, Judge