This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. 34,955 4 MICHAEL A. ROMERO, JR., 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 7 Albert J. Mitchell, Jr., District Judge 8 Hector H. Balderas, Attorney General 9 Laura E. Horton, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 172 SUTIN, Judge. 1
{1} In order to avoid arrest, Defendant, a passenger in his sister’s vehicle, took 2 command of the vehicle from his sister and began a high-speed chase when law 3 enforcement attempted to pull the vehicle over. We hold that Defendant was properly 4 convicted of unlawfully taking the vehicl e. We further hold that Defendant was 5 wrongfully convicted of battery on a hous ehold member but was nevertheless guilty 6 of the lesser included offense of simple battery. 7 BACKGROUND 8 {2} Defendant Michael A. Romero, Jr. called his sister, Tabitha Romero, asking for 9 a ride for himself and a friend. Tabitha, with her two young children, picked both up, 10 dropped Defendant’s fri end off, and drove to a convenience store for gas. Officer 11 Dennis Garcia, then with th e Tucumcari, New Mexico, Police Department, recognized 12 Defendant and knew he had anactive, outstanding warrant. The officer saw Tabitha’s 13 vehicle pulling into the convenience store with Defendant “sl ouched down” in the 14 front passenger seat. Moments later, Defendant was no longer visible in the front seat 15 as the vehicle pulled through the gas pump area. When the vehicle left the gas station, 16 the officer turned on his emergency equipment to conduct a traffic stop. The officer 17 then observed Defendant move from the back s eat to the front seat of the vehicle, and 183 he saw the passenger door “begin to crackopen.” The officer used his speaker to 1 instruct Defendant to remain in the vehi cle. The door closed, and the officer saw 2 Defendant move to the middle of the vehicl e, take control of the steering wheel, and 3 climb on top of Tabitha, who was driving. A high-speed chase ensued. 4 {3} The details of what occurred after leaving the convenience store came from 5 Tabitha. According to Tabitha, Defendant wanted her to keep driving and not stop, 6 and when she told Defendant to get out of the vehicle, Defendant refused. Defendant 7 moved into the driver’s side and placed hi s foot on Tabitha’s forcing her to accelerate, 8 whereupon Tabitha jumped into the back seat with her ch ildren, leaving Defendant to 9 drive. 10 {4} The officer lost sight of Tabitha’s vehi cle. Defendant parked the vehicle in a 11 driveway of a random house in Tabitha’s neighborhood and left on foot. Eventually, 12 Tabitha and her children were given a ride by Tabitha’s mo ther. The vehicle was later 13 discovered in a garage of an unoccupied home. 14 {5} Defendant was convicted of unlawfully taking a motor vehicle, in violation of 15 NMSA 1978, Section 30-16D-1(A) (2009). He was also convicted of battery upon a 16 household member, in violation of NMSA 1978, Section 30-3-15(A) (2008). 171 Defendant was also charged with two counts of child abuse but the jury hung 17 on those counts. 18 4 Defendant appeals both convictions. 1 Defendant contends that the State failed to prove 1 beyond a reasonable doubt that he unlawfully took the vehicle or that he committed 2 battery on a household member. 3 DISCUSSION 4 {6} We review for sufficiency of the evidence to support the convictions, State v. 5 Sanders , 1994-NMSC-043, ¶ 11, 117 N.M. 452, 872 P.2d 870, and we “view the 6 evidence in the light most favorable to the guilty verdict, indulging all reasonable 7 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. 8 Astorga , 2015-NMSC-007, ¶ 57, 343 P.3d 1245 (internal quotati on marks and citation 9 omitted). 10 {7} The unlawful taking of a motor vehicle consists of a person taking any motor 11 vehicle without the consent of the owner. See§ 30-16D-1. The vehicle was co-owned 12 by Tabitha and her former boy friend, Robert Unruh, and Defendant contends that he 13 cannot be convicted of unlawful taking abse nt either an amendment to the criminal 14 statute or enactment of a new statute that“addresses the unlawful taking of a jointly 15 owned vehicle where consent is split among the owners.” 165 {8} We see no sound basis for Defendant’s argument. Unruh signed an affidavit that 1 he did not give consent to Defendant in this circumstance. And Tabitha’s testimony 2 supplies the evidence necessary to provebeyond a reasonable doubt that Defendant 3 did not have her consent to take command of the vehicle as he did. Specifically, at no 4 point did Tabitha’s testimony or any other evidence in the record, including Officer 5 Garcia’s testimony, indicate that she gave Defendant permission to possess her 6 vehicle. To the contrary, the eviden ce indicates that Defendant eventually 7 commandeered the vehicle, at one point sitti ng on his sister and forcibly pressing her 8 foot into the accelerator. Wetherefore affirm Defendant ’s conviction for unlawfully 9 taking Tabitha’s vehicle. 10 {9} The conviction for battery on a househol d member cannot stand. Battery on a 11 household member consists of “the unlawfu l, intentional touchi ng or application of 12 force to the person of a household member, when done in a rude, insolent or angry 13 manner.” Section 30-3-15(A). The jury was improperly instructed that “household 14 member means . . . family member, incl uding a relative.” In 2010, however, which 15 antedated the circumstances here, the defi nition of “household member” was changed 16 to “a spouse, former spouse, parent, presen t or former stepparent, present or former 17 parent in-law, grandparent, gr andparent-in-law, a co-parent of a child or a person with 186 whom a person has had a continuing personal relati onship.” NMSA 1978, § 30-3- 1 11(A) (2010); seeUJI 14-370 NMRA. 2 {10} Furthermore, the phrase “continuing personal relationship” in Section 30-3- 3 11(B) means “a dating or intimate relati onship.” The relations hip between Defendant 4 and his sister Tabitha does not meet th e applicable definition. We hold that 5 Defendant’s conviction for battery on a household member was not supported by the 6 evidence, and we reverse that conviction. 7 {11} The State asks this Court to remand for imposition of a sentence of simple 8 battery, on the ground that the evidence supports such a conviction. See State v. 9 Haynie , 1994-NMSC-001, ¶ 4, 116 N.M. 746, 867 P.2d 416 (stating that “appellate 10 courts have the authority to remand a case for entry of judgment on the lesser included 11 offense . . . when the evid ence does not support the offense for which the defendant 12 was convicted but does support a lesser included offense”). 13 {12} Case law indicates, however, that sucha remand is not permitted when the 14 lesser included offense was not submitted by the State at trial and the defendant was 15 not in a position to defend agains t the lesser included offense. See State v. Villa , 2004- 16 NMSC-031, ¶¶ 9-14, 136 N.M. 367, 98 P.3d 1017. To avoid that case law, the State 17 argues that Defendant never questioned the conviction ba sed on whether Tabitha fit 18 the definition of “household member,” but instead questioned only whether Defendant 197 touched Tabitha in a rude, insolent, or angry manner. Defendant does not dispute this 1 and concedes that Tabitha was not a household member as defined by law. The State 2 argues that Villais therefore not applicable in this instance and seeks remand for 3 imposition of a simple battery sentence. 4 {13} We agree with the State that remand is in order. Defendant never contested 5 whether Tabitha was a household member, and he thus necessarily defended only on 6 the ground that he did not commit battery. Defendant therefore had every opportunity 7 to defend against the crime of simple battery. 8 {14} Defendant contends that there was in sufficient evidence to convict him of 9 simple battery. We defer to th e jury’s determination as to the elements of the crime 10 and do not second-guess juries on factual issues. See State v. Notah-Hunter , 2005- 11 NMCA-074, ¶ 13, 137 N.M. 597, 113 P.3d 867 (“ The reviewing court does not weigh 12 the evidence or substitute its judgment for th at of the fact-finder as long as there is 13 sufficient evidence to support the verdict.” (alteration, in ternal quotation marks, and 14 citation omitted)). In this case, it is proper for this Court to remand to the district court 15 with instructions to impose a senten ce based on simple battery upon Tabitha. 16 CONCLUSION 178 {15} We affirm Defendant’s conviction for unlawful taking of a motor vehicle. We 1 reverse Defendant’s conviction for battery upon a household member and remand with 2 instructions to impose a sentence ba sed on conviction of simple battery. 3 {16} IT IS SO ORDERED. 4

__________________________________ 5 JONATHAN B. SUTIN, Judge 6

WE CONCUR: 7

_______________________________ 8 JAMES J. WECHSLER, Judge 9

_______________________________ 10 J. MILES HANISEE, Judge 11