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Certiorari Denied, May 6, 2011, No. 32,951

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-071

Filing Date: March 16, 2011 

Docket No. 29,382

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

RICHARD LOPEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Denise Barela Shepherd, District Judge

Gary K. King, Attorney General

Santa Fe, NM

Francine A. Chavez, Assistant Attorney General

Albuquerque, NM

for Appellee

Robert E. Tangora, L.L.C

Robert E. Tangora

Albuquerque, NM

for Appellant

OPINION

WECHSLER, Judge.

{1} Defendant Richard Lopez appeals from the district court’s order of criminal

commitment, pursuant to NMSA 1978, Section 31-9-1.5(D) (1999). Defendant argues that

the district court erred by (1) finding that there was sufficient evidence that Defendant

inflicted great bodily harm while committing armed robbery, (2) concluding that armed
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robbery is a crime delineated in Section 31-9-1.5(D) permitting commitment, and (3)

denying Defendant presentence confinement credit for the period of detainment prior to the

commitment. Because armed robbery that results in the infliction of great bodily harm on

another person is a delineated crime under Section 31-9-1.5(D) and there was sufficient

evidence to support the district court’s finding that Defendant inflicted great bodily harm on

the victim while committing armed robbery, the district court did not err by ordering

Defendant’s commitment for twelve years. However, because Defendant was entitled to

presentence confinement credit for the period of detainment prior to the commitment in light

of our opinion in State v. Lopez, 2009-NMCA-112, 147 N.M. 279, 219 P.3d 1288, we

remand to the district court to modify the commitment period.

BACKGROUND

{2} A grand jury indicted Defendant on charges of armed robbery, contrary to NMSA

1978, Section 30-16-2 (1973), aggravated burglary with a deadly weapon, contrary to NMSA

1978, Section 30-16-4(A) (1963), and aggravated battery with a deadly weapon or,

alternatively, aggravated battery with great bodily harm, contrary to NMSA 1978, Section

30-3-5(A), (C) (1969). Before trial, the district court ordered a criminal commitment hearing

after finding that Defendant was incompetent to proceed to trial and still dangerous, pursuant

to Section 31-9-1.5(D). Section 31-9-1.5(D) permits a district court to criminally commit

a defendant in a locked, secured facility for a period of time equal to the maximum sentence

that could have been imposed had the defendant been convicted in a criminal proceeding.

The judge must find by clear and convincing evidence that the defendant committed a crime

specified in Section 31-9-1.5(D) and that the defendant is incompetent and dangerous.

{3} Prior to the commitment hearing, the parties stipulated to facts regarding the incident

forming the basis of the charges against Defendant, which we summarize as follows.

Defendant was staying with his girlfriend at the Ambassador Inn (hotel). During the stay, the

victim, who is a night clerk at the hotel, twice told Defendant, his girlfriend, and another

individual to refrain from drinking outside their room. Both times, Defendant and his

companions complied with the request. Early the next morning, Defendant approached the

victim in the hotel laundry room and asked for towels. The victim turned away to get the

towels, and when he turned to hand them to Defendant, Defendant struck him in the face

with a closed fist. As a result, the victim fell into an industrial-sized laundry basket, and

Defendant continued to strike him. The victim could not defend himself due to a congenital

birth defect that does not allow him to extend his hands. Defendant then picked up a hard,

plastic tube and beat the victim over the head with it until the victim “‘played dead.’”

Defendant took the keys to the hotel office from the victim and entered the hotel office.

Police later discovered that $46.81 was missing from the cash drawer inside the office.

Defendant was charged and arrested three weeks later. While being arrested, Defendant told

the arresting officers that he “recalled being in an altercation with an employee,” that he

“received a few dollars from the [hotel’s] cash drawer,” and spontaneously stated that “$40

was not worth it.”
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{4} Based on the preceding stipulated facts, the district court found, by clear and

convincing evidence, that Defendant committed armed robbery that resulted in great bodily

harm to the victim and both alternative counts of aggravated battery. The district court

concluded that both armed robbery and aggravated battery are crimes delineated for criminal

commitment pursuant to Section 31-9-1.5(D) and ordered Defendant’s commitment in a

locked, secure facility for three years for the aggravated battery and nine years for the armed

robbery. The district court denied Defendant presentence confinement credit for the period

of detainment prior to the criminal commitment.

SUFFICIENCY OF THE EVIDENCE

{5} Robbery requires the intent to take something of value from another person. See

State v. Nelson, 83 N.M. 269, 271, 490 P.2d 1242, 1244 (Ct. App. 1971) (holding that

robbery includes “the concept of criminal intent”); see also UJI 14-1621 NMRA (including

the intent to permanently deprive the victim of property as an element of armed robbery).

Section 31-9-1.5(D) only permits a district court to commit a defendant upon a finding by

clear and convincing evidence that the defendant committed a crime that “involves the

infliction of great bodily harm on another person,” and that the defendant was incompetent

and dangerous. As a result, to have committed Defendant, the district court must necessarily

have found that (1) Defendant inflicted great bodily harm on the victim during the

commission of the armed robbery, and therefore, (2) Defendant intended to steal the property

of the victim while he inflicted great bodily harm on the victim.

{6} Defendant argues that there was insufficient evidence in the stipulated facts to

support a finding that Defendant intended to commit armed robbery at the time that great

bodily harm was inflicted on the victim. This Court reviews the sufficiency of the evidence

for an order of commitment under Section 31-9-1.5(D) using a test that parallels the test for

substantial evidence in reviewing a criminal conviction. See State v. Taylor, 2000-NMCA072, ¶ 18, 129 N.M. 376, 8 P.3d 863. We determine whether there is direct or circumstantial

evidence to support a verdict of guilty with respect to every element essential to conviction.

Id. We review the evidence in the light most favorable to the prevailing party, resolving all

conflicts and permissible inferences in its favor. Id. We will not substitute our judgment for

that of the district court and only determine whether “any rational fact finder could have

found . . . the essential facts required” for conviction. State v. Adonis, 2008-NMSC-059, ¶

12, 145 N.M. 102, 194 P.3d 717 (emphasis, internal quotation marks, and citation omitted).

{7} While there is no direct evidence as to the time that Defendant formed the intent to

commit robbery, circumstantial evidence can be sufficient to support a finding of intent. See

State v. Durant, 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7 P.3d 495 (recognizing that

“[i]ntent can rarely be proved directly and often is proved by circumstantial evidence”). The

stipulated facts indicate that Defendant committed the battery on the victim and that

immediately after the victim “played dead,” Defendant took the keys to the hotel office.

Defendant did not leave the laundry room between the battery and the taking of the keys.

The stipulated facts also indicate that Defendant admitted “receiv[ing] a few dollars” from

the cash drawer and that he spontaneously told the arresting officer that “$40 was not worth

it.” While this statement is not a direct admission, it can be interpreted as circumstantial
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evidence that Defendant committed the battery on the victim with the intent to rob him. The

close temporal proximity between the battery and the taking of the keys, along with the

statement to the officer, is sufficient circumstantial evidence to support a finding that

Defendant formed the intent to commit the robbery before or during the time he committed

the battery on the victim. 

{8} While Defendant implies in his brief in chief that he may have had other reasons for

committing the battery aside from intent to commit robbery, such as that he was upset that

the victim had previously told Defendant and his friends to refrain from drinking in public,

we decline to disturb the judgment of the factfinder and reweigh the evidence. See State v.

Juan, 2010-NMSC-041, ¶ 33, 148 N.M. 747, 242 P.3d 314. The factfinder is free to reject

a defendant’s version of events. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319

(1988).

GREAT BODILY HARM UNDER SECTION 31-9-1.5(D)

{9} Defendant further argues that the district court erred in finding that armed robbery

is a crime for which a defendant can be committed because Section 31-9-1.5(D) only permits

commitment of a defendant who commits a felony containing the infliction of great bodily

harm as an element necessary for conviction. Our review of Section 31-9-1.5(D) is a

question of statutory interpretation that we review de novo. See Villa v. City of Las Cruces,

2010-NMCA-099, ¶ 12, 148 N.M. 668, 241 P.3d 1108 (“Statutory construction calls for de

novo review.”), cert. denied, 2010-NMCERT-009, 149 N.M. 49, 243 P.3d 753.

{10} In interpreting a statute, our primary objective is to give effect to the Legislature’s

intent. State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064. In determining

legislative intent, we first look to the language used and give effect to the plain meaning of

that language. Id. Under the plain meaning rule, if the plain meaning of the statute is clear

and unambiguous, we refrain from any further statutory interpretation. State v. Rivera, 2004-

NMSC-001, ¶ 10, 134 N.M. 768, 82 P.3d 939. Moreover, when the statute at issue is

complete and makes sense as written, we do not read into the statute any words that are not

in the statutory language. Burroughs v. Bd of Cnty. Comm’rs of Cnty. of Bernalillo, 88 N.M.

303, 306, 540 P.2d 233, 236 (1975).

{11} We must determine whether the Legislature intended “a felony that involves the

infliction of great bodily harm” in Section 31-9-1.5(D) to mean that the felony must contain

infliction of great bodily harm as an element necessary for conviction. (Emphasis added.)

The question hinges on the meaning the Legislature intended by the term “involves.” In

determining the plain meaning of statutory language, we are aided by the dictionary

definition. See Battishill v. Farmers Alliance Ins. Co., 2006-NMSC-004, ¶ 8, 139 N.M. 24,

127 P.3d 1111 (“We . . . hold that the common and ordinary meaning . . . may be ascertained

from a dictionary.”). “Involve” is defined as “to oblige to become associated.” Webster’s

Third New International Dictionary 1191 (Unabridged 1993). “Associated” is defined as

“closely connected, joined, or united with another.” Id. at 132. Using these definitions as

a guide, the plain meaning of Section 31-9-1.5 is that it allows for confinement of defendants

who commit felonies closely connected, joined, or united with the infliction of great bodily
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harm.

{12} A felony can be closely connected, joined, or united with the infliction of great

bodily harm even when the felony does not contain the infliction of great bodily harm as an

element necessary for conviction, such as in this case in which a felony is committed in a

manner that results in great bodily harm to another. To require that the infliction of great

bodily harm be an element of the felony requires us to equate “involves” with a phrase such

as “contains as an element.” Such a reading would require this Court to add words not

specifically stated in Section 31-9-1.5(D) and place a limitation not found in the text of the

statute. We decline to do so. See Burroughs, 88 N.M. at 306, 540 P.2d at 236 (recognizing

that this Court “will not read into a statute or ordinance language which is not there,

particularly if it makes sense as written”). If the Legislature had intended great bodily harm

to be a necessary element of the underlying felony before criminal commitment can be

imposed, the Legislature could have drafted the statute using such language. Cf. State v.

Ordunez, 2010-NMCA-095, ¶ 8, 148 N.M. 620, 241 P.3d 621 (stating that if “the Legislature

intended to extend the district court’s jurisdiction beyond a defendant’s probation period, it

certainly could have done so”), cert. granted, 2010-NMCERT-010, 149 N.M. 65, 243 P.3d

1147.

{13} While this Court may deviate from the plain meaning of a statute when the plain

meaning leads to results that are “absurd, unreasonable, or contrary to the spirit of the

statute,” we believe that our reading of Section 31-9-1.5 furthers the legislative purpose

behind the New Mexico Mental Illness and Competency Code (NMMIC). See Martinez v.

Cornejo, 2009-NMCA-011, ¶ 11, 146 N.M. 223, 208 P.3d 443 (internal quotation marks and

citation omitted). The NMMIC provides for the “confinement of dangerous, incompetent

defendants,” State v. Trujillo, 2009-NMSC-012, ¶ 15, 146 N.M. 14, 206 P.3d 125, and

thereby promotes the state’s interest in protecting the community from dangerous

individuals. See State v. Rotherham, 122 N.M. 246, 262, 923 P.2d 1131, 1147 (1996). In

fulfilling this purpose, the Legislature “intended to include, not exclude, the most serious

crimes involving the most dangerous defendants.” Taylor, 2000-NMCA-072, ¶ 14.

Commitment for felonies committed in a manner that results in great bodily harm to another

person furthers the community protection purpose to a much greater extent than if criminal

commitment were limited to only those felonies containing the infliction of great bodily

harm as an element. Because the Legislature intended the delineation of crimes in Section

31-9-1.5(D) to be inclusive and because the plain meaning furthers the purpose of the

NMMIC, we see no reason to deviate from the plain meaning of Section 31-9-1.5(D) and

read into it a requirement that the felony must contain the infliction of great bodily harm, an

element necessary for conviction in order for a court to commit a defendant. 

PRESENTENCE CONFINEMENT CREDIT

{14} Defendant lastly argues that he was entitled to presentence confinement credit toward

his commitment period under NMSA 1978, Section 31-20-12 (1977). Section 31-20-12

provides that a “person held in official confinement on suspicion or charges of the

commission of a felony shall . . . be given credit for the period spent in presentence

confinement against any sentence finally imposed for that offense.” The district court found
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that Defendant was not entitled to presentence confinement credit because the district court

did not convict Defendant of a criminal offense and did not impose a criminal sentence. In

other words, the district court found that Section 31-20-12 does not require presentence

confinement credit to apply to commitment pursuant to Section 31-9-1.5(D), because

commitment under Section 31-9-1.5(D) is not a criminal conviction. However, this Court

has recently determined, and the State concedes, that presentence confinement credit should

be credited to criminal commitment under Section 31-9-1.5(D) to the same extent the

confinement would have been credited against a sentence for a criminal conviction. See

Lopez, 2009-NMCA-112, ¶ 10. We therefore remand to the district court to modify

Defendant’s commitment period for the time spent in detention prior to the commitment. 

CONCLUSION

{15} Because Section 31-9-1.5(D) allows criminal commitment of a defendant who

commits a felony in a manner that results in great bodily harm to another person, and the

evidence was sufficient to support a finding that Defendant inflicted great bodily harm on

the victim during the commission of an armed robbery, we uphold the district court’s order

detaining defendant for twelve years. However, because the district court erred in

concluding that Defendant was not entitled to presentence confinement credit, we remand

to the district court to modify Defendant’s commitment period granting credit for the time

spent in detention prior to commitment.

{16} IT IS SO ORDERED.

______________________________________

JAMES J. WECHSLER, Judge

WE CONCUR:

______________________________________

CELIA FOY CASTILLO, Chief Judge

______________________________________

LINDA M. VANZI, Judge

Topic Index for State v. Lopez, Docket No. 29,382

CL CRIMINAL LAW

CL-RB Robbery

CA CRIMINAL PROCEDURE

CA-CM Credit for Time Served

ST STATUTES
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ST-IP Interpretation

ST-LI Legislative Intent