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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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. 30,938 4 ABEL ACEVES RODRIGUEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 7 Gary Jeffreys, District Judge 8 Gary K. King, Attorney General 9 Yvonne M. Chicoine, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jacqueline L. Cooper, Chief Public Defender 13 Mary Barket, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 FRY, Judge. 18 Defendant Abel Aceves Rodriguez appeals his conviction of first degree 19 kidnapping and attempted second degree crimin al sexual contact of a minor (CSCM). 202 Defendant alleges six errors on appeal. Ho wever, since we agree with Defendant that 1 his restraint of the child was incidentalto the attempted CSCM and therefore not 2 sufficient to support a conviction for kidnapping, we need not consider all of the 3 issues raised by Defendant. We further agree with the State that the jury was 4 improperly instructed on the elements of second degree CSCM (CSCM II) and that 5 Defendant’s conviction for attempted CSCM II must be v acated and replaced with a 6 conviction for CSCM in the third degree (C SCM III). Finally, wereject Defendant’s 7 argument that there was insufficient evid ence to support a conviction for attempted 8 CSCM. Accordingly, we reverse Defendant’s conviction for kidnapping and remand 9 to the district court for entry of judgment of guilt for attempted CSCM III and 10 resentencing. 11 BACKGROUND 12 The charges arose from an incident in which Defendant restrained a twelve13 year-old boy in an alley and attempted tounlawfully touch the child contrary to 14 NMSA 1978, Section 30-9-13 (2003). Becau se this is a memorandum opinion and 15 because the parties are familiar with the procedural history and facts of the case, we 16 reserve further discussion of pertinent facts for our analysis. 17 DISCUSSION 18 Defendant’s Restraint of the Child Does Not Support a Conviction for 19 Kidnapping 203 Defendant argues both that(1) the Legislature did not intend to punish as 1 kidnapping any restraint that is incidental to the commission of another offense, and 2 (2) the evidence was insufficient to support a conviction for kidnapping because the 3 State failed to establish a restraint beyond that incidental to the commission of the 4 attempted CSCM. This Court recently agreed with Defe ndant’s first argument. State 5 v. Trujillo , 2012-NMCA-____, ¶ 39, ___ P.3d ___ (No. 30,563, Aug. 27, 2012). 6 Therefore, the question before us is Defendant’s second argument—whether the 7 evidence, viewed in the light most favorable to the verdict, see State v. Gipson , 2009- 8 NMCA-053, ¶ 4, 146 N.M. 202, 207 P. 3d 1179, was sufficient to support a 9 determination that the restrain t in this case was more than incidental to the crime of 10 attempted CSCM. As we did in Trujillo , we conclude as a matter of law that 11 Defendant’s conduct fails to constitute kidnapping. See 2012-NMCA-___, ¶ 42. 12 In Trujillo , the defendant’s convictions fo r kidnapping and aggravated battery 13 arose out of actions he took in simultaneous ly restraining and b eating the victim with 14 the assistance of another person. Id. ¶¶ 2-4. On appeal, the defendant argued that 15 there was insufficient evidence to support a conviction for kidnapping where the 16 restraint that formed the basis of the kidnapping conviction was incidental to the 17 actions he took in furtherance of the aggravated battery. Id. ¶ 6. This Court, in 18 reviewing the history of our kidnapping statute and case law from other jurisdictions, 194 held that “the Legislature did not intend to punish as kidnapping restraints that are 1 merely incidental to another crime.” Id. ¶ 39. 2 In reaching this holding, we aligned New Mexico with the majority position 3 that “kidnapping statutes do not apply to unlawful confinements or movements 4 incidental to the commission of other felonies.” Id. ¶ 31 (internal quotation marks and 5 citation omitted). While we declined in Trujillo to explicitly adopt any of the three 6 major tests currently being employed by courts in determining whether a restraint or 7 confinement is incidental to other crimes, we emphasized that the essence of the tests 8 was whether “the restraint or movement increas[ed] the culpability of the defendant 9 over and above his culpabilityfor the other crime.” Id. ¶ 38; see also id. (stating that 10 “the severe penaltie s for kidnapping are acceptable only when there is culpability for 11 increased danger to the victim”). We further stated that this determination “depends 12 on the facts of each case, in light of the totality of [the] circumstances.” Id. ¶ 43 13 (internal quotation marks and citation omitte d). Therefore, incases such as Trujillo 14 where the factual circumstances so clearly evidence an incidental restraint or 15 movement, we can determine as a matter of law that the restraint or movement did not 16 constitute kidnapping. Id. 42. More complicated factual situations, however, present 17 a question for the jury as to whether the movement was merely incidental. Id. 185 In this case, testimony at trial indicates that the child was walking down an alley 1 when Defendant spoke to him and pu lled him down onto some cushions that 2 Defendant kept in the alleyw ay. Defendant continued to hold onto the child while he 3 began attempting to kiss the child, unbuckli ng his own pants, and putting his thumb 4 in the waistband of the child’s pants. Upon being confronted by a neighbor, 5 Defendant initially continued to restrain the child until the neighbor advanced toward 6 Defendant, and Defendant released the child. 7 Based upon these facts and the analysis utilized by this Court in Trujillo , we 8 cannot say that the nature of Defendant’s re straint of the child increased his culpability 9 beyond that inherent to the commission of attempted CSCM. Defendant’s restraint 10 of the child was no longer or greater th an that necessary to commit CSCM, even 11 though Defendant was prevented by the neighbor from completing the act. See id. ¶¶ 12 34, 39 (citing one test for determining that a restraint is incidental as “whether a 13 defendant [intended] to prevent the victim ’s liberation for a longer period of time or 14 to a greater degree than that which is nece ssary to commit the other crime” (alteration 15 in original) (internal quotation marks and citation omitted)). Furthermore, the 16 restraint did not increase the severity of the attempted CSCM or subject the child to 17 a substantially greater risk of harm. Id. ¶¶ 36, 39 (citing a second test as grafting onto 18 the first test the question of whether the movements of the victim “substantially 196 increase the risk of harm over and above that necessarily present” in the other crime 1 (internal quotation marks and citation omitted)). In fact, the child testified that he was 2 not physically harmed either by the restraint or during the encounter. Finally, the 3 restraint involved here is the kind inherent to CSCM and was not the type of restraint 4 or movement done to make commission of the CSCM “substantially easier” or to 5 “lessen[] the [defendant’s ] risk of detection.” Id. ¶ 37 (internal quotation marks and 6 citation omitted) (citing a third test for determining whether the restraint is incidental 7 to the other crime). Therefor e, we conclude as a matter of law that the restraint was 8 incidental to the attempted CSCM and did not evidence the type of restraint, beyond 9 that inherent to CSCM, that the Legisl ature intended to be used to support a 10 conviction for first degree kidnapping. In so holding, we emphasize, as we did in 11 Trujillo , that the factual circumstances of this case allow us to determine as a matter 12 of law that Defendant’s conduct did not constitute kidnapping. See id. , 2012-NMCA13 ___, ¶ 42. 14 There was Sufficient Evidence to Convict Defendant of CSCM III 15 Defendant was convicted of attempted CSCM II. Unlike CSCM III, CSCM II 16 requires an additional finding that the defe ndant attempted to unlawfully touch the 17 unclothed intimate parts of a minor. Section 30-9-13(B). The State concedes, and 18 Defendant readily agrees, that the jury was improperly instructed regarding the 197 elements of CSCM II be cause the word “unclothed” was omitted from the jury 1 instruction. While we are not bound by the State’s concession, see State v. Guerra , 2 2012-NMSC-027, ¶ 9, 284 P.3d 1076, we agree with the State that the omission of the 3 word “unclothed” from the jury instru ction requires us to vacate Defendant’s 4 conviction for CSCM II and remand for entry of judgment for CSCM III. Under our 5 Supreme Court’s holding in State v. Haynie , “appellate courts have the authority to 6 remand a case for entry of judgment on the lesser included offens e and resentencing 7 . . . when the evidence does not support th e offense for which the defendant was 8 convicted but does support a lesser incl uded offense.” 116 N.M. 746, 748, 867 P.2d 9 416, 418 (1994). While the Court later held in State v. Villa that application of the 10 “direct-remand” rule is inappropriate where the jury had not been instructed on the 11 lesser offense at trial, 2004-NMSC-031, ¶ 15, 136 N.M. 367, 98 P.3d 1017, here, by 12 omitting “unclothed” from the jury instruction, the jury was essentially instructed on 13 the elements of attempted CSCM III becausethe charge is necessarily encompassed 14 by attempted CSCM II. Compare § 30-9-13(B), with § 30-9-13(C) (differentiating 15 between second and third degree CSCM by omitting “unclothed intimate parts” from 16 the definition of CSCM III); see also State v. Notah-Hunter , 2005-NMCA-074, ¶ 27, 17 137 N.M. 597, 113 P.3d 867 (distinguishing Villain part because the defendant’s 18 conviction for aggravated DWI necessarilyencompassed the lesser included charge 198 of DWI). Therefore, a remand for entry of judgment for CSCM III and resentencing 1 is appropriate in this case. 2 Finally, despite concluding that Defendant’s conviction should be reduced to 3 attempted CSCM III, we proceed to briefl y address Defendant’s argument that there 4 was not sufficient evidence to support a conviction for any degree of attempted 5 CSCM. We review the sufficiency of the evidence pursuant to a substantial evidence 6 standard. State v. Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Under 7 a substantial evidence standard, the “relevan t question is whether, after viewing the 8 evidence in the light most favorable to the prosecution, any rational trier of fact could 9 have found the essential elements of the crime beyond a reasonable doubt.” State v. 10 Garcia , 114 N.M. 269, 274, 837 P.2d 862, 867 (1992) (alteration in original) (internal 11 quotation marks and citation omitted). 12 To convict Defendant of attempted CS CM III, the State must prove beyond a 13 reasonable doubt that (1) Defendant intended to commit the crime of criminal sexual 14 contact of a child under the age of 13, and (2) Defendant began to do an act that 15 constituted a substantial part of the crimin al sexual contact of a child under the age of 16 13 but failed to commit the criminal sexual contact of a child. See § 30-9-13(C). 17 Criminal sexual contact is described as th e “unlawful and intentional touching of or 18 applying force to the intimate parts of a mi nor or the unlawful and intentional causing 199 of a minor to touch one’s intimate parts. ” Section 30-9-13(A). “[I]ntimate parts 1 means the primary genital area, groi n, buttocks, anus or breast.” Id. 2 Defendant’s briefing on this point essentially asks us to disregard the testimony 3 of the child and the neighbor in favor of Defendant’s testimony that due to linguistic 4 differences, there was a misunderstanding betw een Defendant and the child as to what 5 actually occurred in the alley. However, as both the childand the neighbor testified 6 that Defendant was restraining the child, attempting to kiss him, and either pulling up 7 the child’s shirt or, as the neighbor testifie d, attempting to remove the child’s pants 8 as well, we conclude that a rational trier of fact c ould have found the essential 9 elements of attempted CSCM III beyond a reasonable doubt. See also State v. Riggs , 10 114 N.M. 358, 362-63, 838 P.2d 975, 979-80 (1992) (stating that the jury determines 11 credibility and the weight to be given to testimony). 12 CONCLUSION 13 For the reasons discussed above, we vacate Defendant’s convictions for 14 kidnapping and attempted CSCM II. Because we conclude that there was sufficient 15 evidence for a conviction of the lesser in cluded offense of attempted CSCM III, we 16 remand to the district court for entry of judgment of conviction for attempted CSCM 17 III and resentencing in accordance therewith. 18 IT IS SO ORDERED. 1910 1 CYNTHIA A. FRY, Judge 2 WE CONCUR: 3

4 RODERICK T. KENNEDY, Judge 5

6 MICHAEL E. VIGIL, Judge 7