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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-38873

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ESPERANZA TARANGO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY

Donna J. Mowrer, District Judge

Hector H. Balderas, Attorney General

Maris Veidemanis, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

DUFFY, Judge. 

{1} Defendant Esperanza Tarango appeals her convictions for kidnapping, contrary 

to NMSA 1978, Section 30-4-1 (2003); residential burglary, contrary to NMSA 1978, 

Section 30-16-3(A) (1971); and aggravated battery (great bodily harm), contrary to 

NMSA 1978, Section 30-3-5(C) (1969). Defendant raises four issues on appeal: (1) her 

convictions for kidnapping and aggravated battery violate double jeopardy; (2) there is 

insufficient evidence to sustain her convictions; (3) the district court erred in admitting 

video of Defendant’s interrogation; and (4) the State committed prosecutorial 

misconduct by asking a detective the basis for the charges against Defendant. We 
reverse Defendant’s convictions for aggravated battery and residential burglary, but 

affirm her conviction for kidnapping.

DISCUSSION

I. The State’s Concessions 

{2} Defendant contends that her convictions for kidnapping and aggravated battery 

violate double jeopardy because her “convictions arose under separate statutes . . . but 

are both based on the same conduct.” Defendant also contends that there is insufficient 

evidence to sustain her conviction for residential burglary, on grounds that the State 

failed to prove that she had the “intent to commit a theft” when entering Victim’s home. 

The State concedes both points. While we are not bound to accept the State’s 

concessions, State v. Palmer, 1998-NMCA-052, ¶ 12, 125 N.M. 86, 957 P.2d 71, we 

accept them here and reverse Defendant’s convictions for aggravated battery and 

residential burglary. We proceed to address the remainder of Defendant’s arguments in 

relation to the remaining kidnapping conviction.

II. The Evidence Is Sufficient to Sustain Defendant’s Conviction

{3} Defendant challenges the sufficiency of the evidence to support her conviction, 

arguing that the testimony of her co-defendants is “inheritably unreliable” and “should be 

insufficient to sustain the conviction[] in this case.” Applying the well-established 

standard of review set forth in State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 

711, 998 P.2d 176, we reject Defendant’s argument for two reasons. 

{4} First, the jury heard testimony from additional witnesses, including Victim, which 

was sufficient in and of itself to sustain Defendant’s conviction. Defendant argues that 

Victim’s testimony is not wholly reliable because he testified to smoking meth once a 

month.1 However, “[t]he jury alone is the judge of the credibility of the witnesses and 

determines the weight afforded to testimony.” State v. Candelaria, 2019-NMSC-004, ¶ 

45, 434 P.3d 297 (internal quotation marks and citation omitted); see also State v. Soliz, 

1969-NMCA-043, ¶ 8, 80 N.M. 297, 454 P.2d 779 (“[T]he testimony of a single witness 

is sufficient evidence for a conviction.”).

{5} Second, our Supreme Court held long ago that “a defendant may be convicted 

on the uncorroborated testimony of an accomplice.” State v. Gutierrez, 1965-NMSC143, ¶ 4, 75 N.M. 580, 408 P.2d 503. To the extent that our courts have historically 

recognized that accomplice testimony “should be viewed with suspicion,” State v. 

Sarracino, 1998-NMSC-022, ¶ 14, 125 N.M. 511, 964 P.2d 72, we have also left 

determinations of credibility and weight to the jury. See State v. Garcia, 2011-NMSC003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (“New Mexico appellate courts will not invade 

 

1Defendant briefly mentions that Victim testified that Defendant hit him at the direction of one of her codefendants. To the extent Defendant offers this testimony to suggest that her co-defendants should not 

be believed (i.e., that they sought to blame Defendant for a crime they directed), Victim’s testimony does 

not undermine the fact that Defendant engaged in conduct sufficient to sustain her conviction. 
the jury’s province as fact-finder by second-guessing the jury’s decision concerning the 

credibility of witnesses, reweighing the evidence, or substituting its judgment for that of 

the jury.” (alterations, internal quotation marks, and citation omitted)); see also

Candelaria, 2019-NMSC-004, ¶ 45. Defendant, for her part, called attention to the 

reliability and credibility of her co-defendants’ testimony during cross-examination, 

where defense counsel questioned those witnesses at length about the contours of their 

plea agreements and highlighted for the jury that these witnesses each received less 

time in exchange for their testimony. Nevertheless, it was well within the jury’s factfinding function to conclude that the testimony presented at trial was credible. 

{6} Having reviewed the evidence presented at trial, we conclude that the testimony 

offered by multiple witnesses was sufficient to support Defendant’s conviction beyond a 

reasonable doubt, and we decline to disturb the jury’s verdict.

III. Admission of Defendant’s Interrogation Video Was Harmless Error

{7} Defendant next argues that the district court erred by admitting a video of her 

police interrogation. During the interrogation, Defendant can be heard discussing a 

recent conviction for possession of marijuana, and how that had caused issues with her 

ability to see her son. Assuming without deciding that these portions of the video were 

admitted in error, we conclude that any error was harmless.

{8} “Improperly admitted evidence is not grounds for a new trial unless the error is 

determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110. To 

determine if the error was harmful, we engage in a harmless error analysis, where “we 

look to whether there is a reasonable probability that the error affected the verdict.”

State v. Astorga, 2015-NMSC-007, ¶ 43, 343 P.3d 1245. “Reviewing courts are to 

evaluate all of the circumstances surrounding the error, including examining the error 

itself, the source of the error, the emphasis on the error, and whether the error was 

cumulative or introduced new facts.” State v. Hernandez, 2017-NMCA-020, ¶ 20, 388 

P.3d 1016. “To put the error in context, we often look at the other, non-objectionable 

evidence of guilt, not for a sufficiency-of-the-evidence analysis, but to evaluate what role 

the error played at trial.” State v. Leyba, 2012-NMSC-037, ¶ 24, 289 P.3d 1215.

{9} Defendant contends that the video “unquestionably painted [her] in an 

unflattering light” and because the State played the video during closing, there was a 

reasonable probability the video contributed to the verdict. However, the portions of the 

video that Defendant objects to were played only once during trial, and were not 

replayed during closing, though other portions of the interrogation were. Our 

independent review of the record reveals that the admission of the video did not play a

significant role at trial. First, the most inculpatory evidence came from the testimony of 

Victim and the co-defendants. Victim and both co-defendants testified that the entire 

incident was because Defendant could not find either her backpack or a pouch in the 

backpack, and there is no dispute that Defendant was present throughout the entire 

incident. Further, Victim testified that he believed Defendant tied his hands behind his 

back, while Victim and a co-defendant testified that Defendant hit Victim with an object. 
{10} Because the video testimony to which Defendant objects was brief, was not 

emphasized, and was minor in the context of the evidence introduced in support of the 

kidnapping charge, we cannot conclude that there was a reasonable probability that the 

error affected the verdict. We, therefore, hold that any error admitting the video was 

harmless.

IV. The State’s Line of Questioning Did Not Amount to Prosecutorial 

Misconduct

{11} Defendant contends the State committed prosecutorial misconduct by eliciting 

testimony from a deputy about why he charged Defendant with kidnapping. While 

Defendant objected to this line of questioning, she did not object on prosecutorial 

misconduct grounds. Our review of this issue is for fundamental error. State v. Trujillo, 

2002-NMSC-005, ¶ 52, 131 N.M. 709, 42 P.3d 814.

{12} For prosecutorial misconduct to rise to the level of fundamental error, the conduct 

must have been “so egregious” and have “had such a persuasive and prejudicial effect 

on the jury’s verdict that the defendant was deprived of a fair trial.” State v. Allen, 2000-

NMSC-002, ¶ 95, 128 N.M. 482, 944 P.2d 728 (internal quotation mark and citation 

omitted). “As with any fundamental error inquiry, we will upset a jury verdict only (1) 

when guilt is so doubtful as to shock the conscience, or (2) when there has been an 

error in the process implicating the fundamental integrity of the judicial process.” State 

v. Sosa, 2009-NMSC-056, ¶ 35, 147 N.M. 351, 223 P.3d 348. 

{13} During direct examination, the State asked the investigating deputy, “without 

commenting on the law,” why he charged Defendant. In the deputy’s responses, he 

provided a brief and general overview of the facts that led to his charging 

determinations. For example, when questioned about the charges, the deputy stated he 

charged Defendant with kidnapping because of the “physical evidence and the 

statements of [Victim] and what Detective Meeks learned during his interviews.” He 

stated that he charged her with aggravated battery because of the “severity of the 

injuries” and “the manner in which those injuries were inflicted,” and that he charged her 

with residential burglary because “[Victim’s] residence had its door kicked in and had 

the inside gone through, like someone intended to rob it.” Eliciting such testimony, 

Defendant argues, constitutes prosecutorial misconduct because the testimony 

“suggested to the jury that the investigating officers had reviewed the evidence and 

found [Defendant] guilty so the jury should trust their expertise and do so as well.” See 

State v. Ashley, 1997-NMSC-049, ¶ 18, 124 N.M. 1, 946 P.2d 205 (“A prosecutor may 

not imply that guilt has been determined by a judicial officer.”). 

{14} Based on our review of the record, we cannot conclude the State’s questioning 

had a persuasive and prejudicial effect requiring us to overturn Defendant’s convictions. 

See Allen, 2000-NMSC-002, ¶ 95. The testimony elicited by the prosecutor referenced 

properly admitted evidence and not personal opinions unrelated to such evidence, and 

importantly, did not touch upon the ultimate issue of the case. Further, the testimony 

elicited was not later highlighted by the State and amounts to an “isolated, minor 
impropriety.” Id. While we understand Defendant’s concern that the officer’s testimony 

toed the line of improper vouching, in context, we are not persuaded that the 

prosecutor’s line of questioning was prejudicial enough to deprive Defendant of a fair 

trial. We conclude that any error resulting from this line of questioning does not rise to 

the level of fundamental error.

CONCLUSION

{15} For the foregoing reasons, we reverse Defendant’s convictions for aggravated 

battery and residential burglary and remand to the district court with instructions to 

vacate both convictions. We otherwise affirm Defendant’s kidnapping conviction. 

{16} IT IS SO ORDERED.

MEGAN P. DUFFY, Judge

WE CONCUR:

SHAMMARA H. HENDERSON, Judge

KATHERINE A. WRAY, Judge