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Certiorari Denied, October 10, 2012, No. 33,814

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-117

Filing Date: August 17, 2012

Docket No. 30,092

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

DAVID RAMOS-ARENAS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

Lisa C. Schultz, District Judge

Gary K. King, Attorney General

Andrew S. Montgomery, Assistant Attorney General

Santa Fe, NM 

for Appellee

Jacqueline L. Cooper, Chief Public Defender

Eleanor Brogan, Assistant Appellate Defender

Santa Fe, NM 

for Appellant

OPINION

VANZI, Judge.
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{1} Defendant David Ramos-Arenas appeals from his convictions for one count

of false imprisonment, contrary to NMSA 1978, Section 30-4-3 (1963), and two

counts of impersonating a peace officer in violation of NMSA 1978, Section 30-27-

2.1 (1999). The central issue in this case is whether a federal border patrol agent is

a “peace officer” within the meaning of Section 30-27-2.1. We agree with the district

court that the statutory definition of “peace officer” includes the impersonation of

federal officials, and we affirm on that issue. We also conclude that the district court

did not abuse its discretion in denying Defendant’s motion for mistrial based on

prosecutorial misconduct. Finally, finding no error in the district court’s other

rulings, we affirm Defendant’s convictions. 

BACKGROUND

{2} Defendant was charged with two counts of impersonating a peace officer

arising out of separate incidents in which he pretended to be a United States border

patrol agent. Officer George Bernal, a New Mexico State Police Officer, testified that

on February 24, 2008, he stopped a vehicle in which Defendant was a passenger.

Because the driver was cooperative and admitted that she had been speeding, the

officer decided to issue her a citation with a lower penalty assessment. While the

officer was speaking with the driver, Defendant told the officer that he was a border

patrol agent and that he worked in San Diego. The officer asked for Defendant’s

credentials—his badge and identification—but Defendant said that he did not have

them with him and that he had left them at home. Although he did not have his

credentials, based on the fact that Defendant “was a fellow law enforcement officer”

and because the driver was cooperative, the officer decided to “go ahead and just

make this a written warning.” 

{3} On March 11, 2008, Defendant again impersonated a border patrol agent.

Lucy Jimenez, a victim’s advocate with the Las Cruces District Attorney’s Office,

testified that on that date, she was driving back to her office in the late morning after

dropping off a client, when she noticed a truck in her rear-view mirror moving toward

her. As she reached an intersection, the truck accelerated past Jimenez and blocked

her car from moving. Defendant, who was wearing a green border patrol shirt and

a silver badge on his belt, got out of the truck and approached Jimenez’s vehicle.

Jimenez lowered her window two to three inches. Defendant told Jimenez that she

had broken the law by “transporting illegal aliens” and asked for her identification.

Jimenez put her district attorney identification up to the window, and Defendant then

asked for Jimenez’s driver’s license. Jimenez became concerned because she did not

see a name tag on Defendant’s shirt, so she asked for his identification. Defendant

responded by asking again for her driver’s license and tapped on the window, telling
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Jimenez to put the window down. Defendant told Jimenez that he could “take [her]

in and . . . call others to come and they would take [her] in.” After Jimenez told

Defendant that she had to call her boss, the district attorney, Defendant returned to

his truck and backed out of the way, allowing Jimenez to leave. 

{4} Prior to trial, Defendant filed a motion to dismiss pursuant to Rule 5-601(B)

NMRA. He argued that the United States Border Patrol is a subdivision of the United

States Immigration and Customs Enforcement division of the federal Department of

Homeland Security and that the statutory definition of a peace officer is limited to

New Mexico state officials and officers. The district court denied Defendant’s

motion, and the case proceeded to trial. Defendant raised the issue again at the close

of trial and tendered a jury instruction that read in part that in order to convict him for

the crime of impersonating a peace officer, the jury had to find that Defendant

“pretended to be an officer of the State of New Mexico or any of its political

subdivisions.” The district court rejected the proposed instruction, and Defendant

was convicted by a jury on all counts. 

DISCUSSION

{5} On appeal, we first address Defendant’s argument that the district court erred

in failing to dismiss the two counts of impersonating a peace officer in violation of

Section 30-27-2.1. Next, we consider Defendant’s contention that he should have

been granted a mistrial due to prosecutorial misconduct based on a statement the

prosecutor made in his closing argument. Finally, we resolve the other issues raised

by Defendant.

Section 30-27-2.1 Applies to the Impersonation of Federal Officers

{6} “We review questions of statutory interpretation de novo.” State v. Moya,

2007-NMSC-027, ¶ 2, 141 N.M. 817, 161 P.3d 862 (internal quotation marks and

citation omitted). When interpreting a statute, our primary goal is to determine and

give effect to the Legislature’s intent. Id. ¶ 6. In doing so, we first look “to the words

the Legislature chose and the plain meaning of the language.” Id. “The words of a

statute, including terms not statutorily defined, should be given their ordinary

meaning absent clear and express legislative intention to the contrary.” State v.

Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994). We will “apply the plain

meaning of the statute unless the language is doubtful, ambiguous, or an adherence

to the literal use of the words would lead to injustice, absurdity, or contradiction, in

which case the statute is to be construed according to its obvious spirit or reason.”

State v. Tafoya, 2010-NMSC-019, ¶ 10, 148 N.M. 391, 237 P.3d 693 (internal
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quotation marks and citation omitted). We strictly construe penal statutes and “will

not extend punishment to cases not plainly within the statutory language used.” State

v. Littlefield, 2008-NMCA-109, ¶ 8, 144 N.M. 655, 190 P.3d 1150 (alteration,

internal quotation marks, and citation omitted). However, “[a] court should not

hobble statutory interpretation with the requirement that every circumstance meant

to be covered must be specifically mentioned in the statute.” Ogden, 118 N.M. at

244, 880 P.2d at 855. 

{7} Defendant argues that the Legislature limited the definition of “peace officer”

to New Mexico state officials and officers and that it did not intend for the statute to

include the impersonation of federal agents. Thus, Defendant contends, the charges

against him for impersonating a federal border patrol agent should have been

dismissed. The State asserts that the plain language of Section 30-27-2.1 evinces a

legislative intent to protect New Mexicans from the misuse of any appearance of

authority to maintain order or make arrests. For the following reasons, we agree with

the State. We begin with the text of the statute.

{8} Section 30-27-2.1(A), (C), provides, in relevant part,

A. Impersonating a peace officer consists of: 

(1) without due authority exercising or attempting to

exercise the functions of a peace officer; or 

(2) pretending to be a peace officer with the intent to deceive

another person.

. . . . 

C. As used in this section, “peace officer” means any public official

or public officer vested by law with a duty to maintain public order or

to make arrests for crime, whether that duty extends to all crimes or is

limited to specific crimes.

(Emphasis added.)

{9} As we have noted, Defendant argues that the definition of “peace officer” is

limited by the Legislature’s use of the term “public officer.” “Public officer” is

uniformly defined for purposes of the Criminal Code as “any elected or appointed

officer of the state or any of its political subdivisions[.]” NMSA 1978, § 30-1-12(I)
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(1963) (emphasis added). Thus, Defendant asserts, the definition of “public officer”

refers only to New Mexico state actors. The State does not take issue with

Defendant’s definition of “public officer.” However, the State points out that unlike

the uniform definition of “public officer,” no such definition exists for “public

official.” It argues that the term should, therefore, be interpreted in a way that reflects

legislative intent and according to its ordinary meaning. See Ogden, 118 N.M. at 242,

880 P.2d at 853 (stating that words are to be given their ordinary meaning unless the

Legislature indicates otherwise). 

{10} When interpreting a statute, we must interpret it “in its entirety, so that each

part of the statute is given meaning and no part is superfluous.” Moya, 2007-NMSC027, ¶ 9; State v. Javier M., 2001-NMSC-030, ¶ 32, 131 N.M. 1, 33 P.3d 1. Section

30-27-2.1(C) defines “peace officer” as “any public official or public officer.”

(Emphasis added.) See § 30-1-12(C); UJI 14-2216 NMRA. “As a rule of

construction, the word ‘or’ should be given its normal disjunctive meaning unless the

context of a statute demands otherwise.” Diamond v. Diamond, 2012-NMSC-022,

¶ 27, ___ P.3d ___ (internal quotation marks and citation omitted). Here, the use of

the disjunctive between “public official” and “public officer” makes clear that a

“peace officer” is not limited only to those defined as “public officers” under Section

30-2-12(I). With this guidance, we look to the ordinary meaning of “public official”

to determine if the term is limited to state officers. 

{11} The ordinary meaning of a public official is “[o]ne who holds or is invested

with a public office; a person elected or appointed to carry out some portion of a

government’s sovereign powers.” Black’s Law Dictionary 1195 (9th ed. 2009).

Accordingly, “public official” has a broader meaning than “public officer.” Further,

it is clear that the power to carry out some portion of the state’s sovereign powers

includes the power to maintain order or make arrests. See § 30-27-2.1(C) (providing

that a “peace officer” is one who is “vested by law with a duty to maintain public

order or to make arrests for crime”). By giving “public official” its ordinary meaning

and recognizing its distinction from a “public officer,” we avoid a redundant result

that would otherwise be rendered mere surplusage. See Moya, 2007-NMSC-027, ¶ 9;

Javier M., 2001-NMSC-030, ¶ 32. Consequently, based on the plain language of the

statute, the terms “public official” and “public officer” are not synonymous, and the

definition of “public official” is not limited to “any elected or appointed officer of the

state or any of its political subdivisions.” And because border patrol agents are

vested with the authority to maintain order and make arrests, Defendant’s

impersonation of a border patrol agent falls within the conduct proscribed by the

statute. See § 30-27-2.1.
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{12} Our conclusion here is consistent with at least one other court’s interpretation

of a similar legislative provision. In Rice v. State, 195 S.W.3d 876, 878 (Tex. Ct.

App. 2006), the defendant appealed his conviction of impersonating a public servant

and possession of cocaine. In that case, a Texas state trooper had pulled the

defendant over for unregistered license plates. Id. The defendant, who was wearing

a department of corrections uniform with a patch that read “State of Louisiana,” told

the officer that he worked for the department of corrections and that he had been to

Texas to pick up a prisoner. Id. at 879. The officer sensed that “something was not

right” and, after additional backup arrived, found cocaine in the trunk of the car. Id.

On appeal, the defendant conceded that he had held himself out as “an official of the

[s]tate of Louisiana” but argued that the Texas penal code (code) prohibiting such

conduct applies only when the person represents that he is an official of the state of

Texas. Id. at 881 (internal quotation marks omitted). Under the Texas code, a person

commits an offense if he “impersonates a public servant.” Id. (internal quotation

marks and citation omitted). The code defines a “public servant” as “an officer,

employee, or agent of government[,]” and “[g]overnment” means “the state.” Id.

(internal quotation marks and citations omitted). Noting that the code does not define

“the state,” the Texas appellate court looked to the legislature’s purpose in enacting

the legislation. Id. The primary purpose of the code, the court stated, was clear:

“[T]he general public should not be placed at risk of submitting to the pretended

authority of an individual impersonating an agent of a ‘government unit,’ regardless

of whether the individual is impersonating a Texas officer, employee, or agent or a

Louisiana officer, employee, or agent.” Id. Consequently, the scope of the code was

not limited only to individuals impersonating officers of the state of Texas, and the

defendant’s conviction was upheld. Id. at 881-82. 

{13} The Texas court’s interpretation of its penal code comports with our

understanding of the legislative purpose behind Section 30-27-2.1. The principal

objective of our statutory provision is to protect the public from being harmed or

deceived into believing a person is a peace officer and has the authority to act in an

official capacity, when in fact, there is no such authority to do so. See § 30-27-2.1;

see also Moya, 2007-NMSC-027, ¶ 16 (stating that the “language of penal statutes

should be given a reasonable or common sense construction consonant with the

objects of the legislation, and the evils sought to be overcome should be given special

attention” (internal quotation marks and citation omitted)). Moreover, to construe the

statute as Defendant suggests would lead to an absurd result. Accordingly, we

conclude that Section 30-27-2.1 is not limited to only those persons impersonating

public officials of the State of New Mexico but includes impersonating public

officials of other states and the federal government. The district court properly
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denied Defendant’s Rule 5-601(B) motion to dismiss and correctly refused

Defendant’s tendered jury instruction as an incorrect statement of the law. 

The District Court Did Not Abuse Its Discretion When It Denied Defendant’s

Motion for Mistrial

{14} Defendant argues that a statement made by the State in its closing argument

amounted to prosecutorial misconduct and that the district court erred in denying his

motion for mistrial. During the course of the trial, Defendant’s employer and others

testified that Defendant told them he had previously been enrolled in the Border

Patrol Academy (Academy) and that he left due to the death of his father or a death

in the family. In fact, Defendant was withdrawn from the Academy due to

inappropriate conduct. At the end of his closing argument, the prosecutor discussed

Defendant’s credibility and, in particular, Defendant’s claims that he left the

Academy because of the death of his father, stating,

[R]ationalization is something important to [Defendant], he can

rationalize the death of his father to get a job. The death of his father.

He could have said, “No, I left it because my ankle was hurting in the

Border Patrol. My knee got hurt . . .” He had to kill his father. He had

to say because of his father’s death. “My father’s death [led] me to

leave.” This is a person who will rationalize.

After the prosecutor concluded his closing and before the jury retired, defense

counsel asked to approach the bench and moved for a mistrial on the ground’s that

prosecutor’s comment, “[h]e had to kill his father,” was said only to inflame the jury.

The court denied the motion. 

{15} On appeal Defendant argues that the prosecutor’s comments in his closing

argument created a prejudicial effect on the jury’s verdict and deprived him of his

constitutional rights to due process and a fair trial. He asserts specifically that “the

jury could have convicted him because it thought he was a bad person who deserved

to be punished.” Thus, Defendant argues, the only remedy for the prosecutorial

misconduct was a mistrial, and the district court abused its discretion in denying the

motion. 

{16} Where the error is preserved, “[w]e review a [district] court’s denial of a

motion for mistrial on the basis of remarks made in closing argument for an abuse of

discretion.” State v. Fry, 2006-NMSC-001, ¶ 50, 138 N.M. 700, 126 P.3d 516; State

v. Reynolds, 111 N.M. 263, 266, 804 P.2d 1082, 1085 (Ct. App. 1990) (“Because the
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[district] judge’s observations of the proceedings are such a critical factor in

determining whether the fairness of the trial will be affected, appellate courts review

such rulings only for abuse of discretion.”). Our task is to determine “whether the

relative weight of the error meets the threshold required to reverse a conviction.”

State v. Sosa, 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 348. Although the

State contends that Defendant’s objection was not timely, and thus not preserved, the

result here would be the same regardless of whether we review under an abuse of

discretion or fundamental error standard. For this reason, we assume without

deciding that Defendant’s objection was timely and review the district court’s denial

of his motion for mistrial for an abuse of discretion. “Because [district] judges are

in the best position to assess the impact of any questionable comment, we afford them

broad discretion in managing closing argument.” Id. ¶ 25. We will find that a district

court has abused its discretion when it acted in an “obviously erroneous, arbitrary, or

unwarranted manner.” Fry, 2006-NMSC-001, ¶ 50 (internal quotation marks and

citation omitted). 

{17} The question on appeal is whether Defendant was deprived of a fair trial by

the prosecutor’s statement, “[h]e killed his father.” See id. To answer this question,

“we review the comment in context with the closing argument as a whole . . . so that

we may gain a full understanding of the comments and their potential effect on the

jury.” Id. (internal quotation marks and citation omitted). “[T]he general rule is that

an isolated comment made during closing argument is not sufficient to warrant

reversal.” Sosa, 2009-NMSC-056, ¶ 29 (internal quotation marks and citation

omitted). Our review of the transcripts establishes that the prosecutor’s comment that

Defendant “killed his father” was isolated. Put in context, it is evident that the

prosecutor was attacking Defendant’s credibility and that he was doing so by

reminding the jury that Defendant had lied about why he left the border patrol

academy. The prosecutor’s choice of phrasing could have been better. However,

attorneys are afforded “reasonable latitude in their closing statements,” and rebuttal

in particular is responsive and “not always capable of the precision that goes into

prepared remarks.” Id. ¶¶ 24-25. Given this latitude, the context in which the

statement was made, and the evidence of guilt offered against Defendant, we cannot

see a substantial likelihood that the statement prejudiced the jury so as to deny him

a fair trial. The district court did not abuse its discretion in denying Defendant’s

motion for mistrial. 

There Is No Showing of Prosecutorial Vindictiveness; Defendant’s Double

Jeopardy Rights Were Not Violated; and Defendant’s Objection to an In-Court

Identification Was Not Preserved
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{18} Prior to trial at issue here, Defendant had been tried in both state and federal

court on charges arising out of the same conduct. In the first state case, Defendant

was tried on the charge of impersonating an officer with regard to the March 11, 2008

incident. That trial ended in a mistrial. In the federal case, Defendant was tried and

convicted for the February 24, 2008 incident. See United States v. Ramos-Arenas,

596 F.3d 783 (10th Cir. 2010). Before he was re-tried in state court, the State

amended the criminal information to include a second count for impersonating a

peace officer based on the February 24, 2008 incident. 

{19} Defendant argues that the amendment of the criminal information to include

the count based on the February 24, 2008 incident was a result of prosecutorial

vindictiveness. He also contends that being charged in state court for the February

24, 2008 incident after he had already been convicted for it in federal court violated

his right to be free from double jeopardy. He raised these issues in a pretrial motion

to dismiss and argues that the district court erred in denying that motion. We address

each of these points in turn.

{20} A defendant’s claim of prosecutorial vindictiveness presents a mixed question

of fact and law. State v. Brule, 1999-NMSC-026, ¶ 6, 127 N.M. 368, 981 P.2d 782.

Here, the facts are not in dispute, so our review is purely de novo. See id. “Our focus

in analyzing a claim of prosecutorial vindictiveness is on whether the prosecutor has

done an act that would not have occurred but for hostility or punitive animus toward

the defendant because [the defendant] exercised a specific legal right.” Id. ¶ 10

(alteration, internal quotation marks, and citation omitted). As the basis for

Defendant’s claim, Defendant asserts that the prosecutor amended the criminal

information because the prosecutor failed to obtain a conviction against defendant in

his first trial in state court. Defendant does not identify a specific legal right that he

exercised nor does he argue that the prosecutor’s amendment to the criminal

information was in response to the exercise of a specific legal right. Defendant has

not established the basis for a claim of prosecutorial vindictiveness, and the district

court’s denial of his motion was proper.

{21} Defendant also contends that the district court erred in refusing to dismiss the

February 24, 2008 charge because it was added to the criminal information after he

had been convicted in federal court for that crime. This, he asserts, violated his right

to be free from double jeopardy. It is well established that where a defendant’s

conduct constitutes “a criminal offense within the geographical authority of more

than one sovereign, each sovereign may prosecute regardless of what the other has

done.” State v. Glascock, 2008-NMCA-006, ¶ 24, 143 N.M. 328, 176 P.3d 317

(internal quotation marks and citation omitted). This is true where, as here,
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Defendant was prosecuted for the violation of both state and federal law. See id. ¶¶

23-25. Defendant’s right to be free from double jeopardy was not violated by the

addition of the charge and his convictions in both the federal and state courts. 

{22} Finally, we address Defendant’s argument that the district court erred when it

denied his motion to suppress a witness’s photo identification of him prior to the first

trial. Defendant now claims that the admission of the witness’s identification of him

at his second trial was reversible error. However, Defendant concedes that he did not

renew his motion to exclude the witness’s in-court identification at his second trial,

nor did he object at trial when the witness identified him in court. Defendant failed

to preserve this argument for appeal, and we do not consider it here. State v. Varela,

1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280; State v. Balenquah, 2009-

NMCA-055, ¶ 18, 146 N.M. 267, 208 P.3d 912. 

CONCLUSION

{23} For the reasons set forth above, we affirm Defendant’s convictions. 

{24} IT IS SO ORDERED.

____________________________________

LINDA M. VANZI, Judge

WE CONCUR:

___________________________________

JAMES J. WECHSLER, Judge

___________________________________

CYNTHIA A. FRY, Judge

Topic Index for State v. Ramos-Arenas, No. 30,092

APPEAL AND ERROR

Standard of Review

CONSTITUTIONAL LAW

Double Jeopardy

Due Process
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CRIMINAL LAW

False Imprisonment

Impersonating an Officer

CRIMINAL PROCEDURE

Closing Argument

Double Jeopardy

Mistrial

STATUTES

Interpretation

Legislative Intent

Rules of Construction