This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 34,270 4 JERARDO CASTILLO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 7 Mark Sanchez, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Charles J. Gutierrez, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Templeman and Crutchfield 14 C. Barry Crutchfield 15 Lovington, NM 16 for Appellant 17 MEMORANDUM OPINION 18 SUTIN, Judge. 192 {1} Following a jury trial, Defendant Jerardo Castillo was convicted of kidnapping, 1 aggravated battery against a household memb er with a deadly weapon, and aggravated 2 assault against a household member with inte nt to commit a violent felony. On appeal, 3 Defendant challenges only his kidnapping conviction and rais es two issues: 4 (1) whether sufficient evidence of confinement was presented in support of his 5 kidnapping conviction; and (2) whether the conduct underlying Defendant’s 6 kidnapping conviction was merely incident al to the commission of the aggravated 7 battery and assault. We affirm. 8 BACKGROUND 9
{2} This case arises from a seri es of events that occurred between July 8 and 18, 10 2012. Victim was living in Albuquerque inJuly 2012, and she and Defendant had 11 previously been in a relationship. In an effort to reconcile with Defendant, Victim 12 went to Hobbs to arrange a birthday party for him. On July 9, the morning Victim 13 arrived in Hobbs, she and De fendant began to argue, and Defendant burned her hand 14 with a hot clothes iron. Shortly thereafter, on the same day, Defendant took Victim 15 into the bathroom of his home and held a pistol inside her mouth with his finger on 16 the trigger while interrogating her about whether she had been unfaithful to him. Apart 17 from this specific conduct that took place on July 9, throughout the time Victim was 18 in Hobbs, Victim was subjected to continuous physical and psychological abuse by 193 Defendant. Further relevant facts are discusse d in more detail in this Opinion as they 1 pertain to Defendant’s issues on appeal. 2 ARGUMENT 3 I. Sufficient Evidence of Confinement Was Presented to Support Defendant’s 4 Kidnapping Conviction 5
{3} Defendant argues that there was insuffi cient evidence presented to support his 6 kidnapping conviction, specifically with re spect to the element of confinement. 7
{4} “Substantial evidence review requires analysis of whether direct or 8 circumstantial substantial evidence exists and supports a verdict of guilt beyond a 9 reasonable doubt with respect to every elemen t essential for convic tion. We determine 10 whether a rational fact[-]finder could havefound that each elemen t of the crime was 11 established beyond a reasonable doubt.” State v. Kent , 2006-NMCA-134, ¶ 10, 140 12 N.M. 606, 145 P.3d 86 (citations omitted). To convict Defendant of kidnapping, the 13 State was required to prove: 14 1. . . . [D]efendant confined [V ictim] by force or intimidation; 15 2. . . . [D]efendant intended to hold [Victim] against [Victim’s] 16 will: to inflict death or physical injury on [Victim]; 17 3. This happened in New Mexico on or between the 8th and 18 the 18th days of July[] 2012. 194 See NMSA 1978, § 30-4-1 (2003); UJI 14-403 NMRA; see also State v. Smith , 1986- 1 NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (“Jury instructions become the law of 2 the case against which the sufficiency of the evidence is to be measured.”). 3
{5} Because Defendant challenges only the su fficiency of the evidence presented 4 with respect to the confinement element of kidnapping, we focus our analysis on this 5 element. In support of his contention, De fendant argues that the evidence presented 6 at trial with respect to this element was insufficient for four reasons: (1) that Victim 7 initiated the travel to Hobbs to arrange a birthday party for Defendant; (2) upon arrival 8 in Hobbs, Victim said that “she was staying” and “wanted to be here with 9 [Defendant]”; (3) that Defendant never toldVictim that she could not leave his house, 10 and Victim did travel outside of the home; and (4) that Victim had a cell phone but 11 never sought help from law enforcement or other people during the time she was in 12 Hobbs. For the reasons discussed in this Op inion, we disagree. We hold that over the 13 period that Victim was in Hobbs, Defendant engaged in a continuous pattern of 14 physical abuse, punctuated by psychological abus e, that had the effect of intimidating 15 Victim into being too afraid to l eave, effectively confining Victim. 16
{6} Victim testified that Defe ndant and his cousin drove Victim and Victim’s son 17 from Albuquerque to Hobbs. They left Albuquerque the night of July 8 and arrived 18 in Hobbs early the next morning. The morning Victim arrived in Hobbs, on July 9, 191 Defendant had been incarcerated and recently released, which was not 18 mentioned at trial. Victim’s testimony referred to Defendant as being “away.” 19 5 Defendant and Victim began arguing as Defendant was ironing his clothes on the 1 kitchen table. When Victim told Defendant that he should changehis life and be more 2 careful, Defendant became angry and accused Victim of infidelity and of not caring 3 about him while he was recently away. 1 Defendant became ups et and burned Victim 4 on her hand with the hot iron. This conduc t served as the ba sis for Defendant’s 5 aggravated battery conviction. See NMSA 1978, § 30-3-16(C) (2008) (setting forth 6 the crime of aggravated battery against a household member with a deadly weapon). 7
{7} Shortly thereafter, also on July 9, Defe ndant began hitting Victim. Victim asked 8 that Defendant take her into a different room so that Victim’s son, who was in the 9 living room watching televisi on, would not witness the h itting. Defendant and Victim 10 went into the bathroom, where Defendant again accused Victim of infidelity while he 11 was away. Defendant placed the barrel of a handgun in Victim’s mouth and made her 12 suck on the gun in a manner simulating fellatio. Defendant angrily held the gun with 13 his finger on the trigger with such pressure in Victim’s mouth that Victim was 14 frightened that the gun would accidentally fi re. During this time, Victim heard a voice 15 outside, and Defendant told Victim that there were people digging a hole to bury her. 16 Victim was scared that if she screamed, she would be hit more. This conduct served 176 as the basis for Defendant’s a ggravated assault conviction. See NMSA 1978, § 30-3- 1 14 (1995) (setting forth the crime of assau lt against a household member with intent 2 to commit a violent felony). 3
{8} Hoping that the abuse from the morning would not recur, Victim still wanted 4 to reconcile with Defendant and host Defendant’s birthday party because that was the 5 reason she went to Hobbs. Also on July 9, Victim and her son went shopping with 6 Defendant’s sister, Sally Prieto, to buy food for the barbeque. They returned to Ms. 7 Prieto’s house to wait for Defendant’s arri val, and eight of Defendant’s family 8 members also arrived. Ultimately, th e barbeque did not happen because upon 9 Defendant’s arrival at Ms. Prieto’s house, another physical altercation took place 10 between Victim and Defendant. In Ms. Pri eto’s front yard, where no one else was 11 present, Defendant choked Vi ctim until she blacked out; by the time Victim regained 12 consciousness, she saw other family members nearby, but nobody offered help. 13 Defendant and Victim left Ms. Prieto’s hous e after the choking, and Victim felt that 14 she “had to go with [Defe ndant.]” Victim left her son at Ms. Prieto’s house for a 15 couple of hours so that he w ould not have to witness any additional abuse. Victim was 16 afraid that if she tried to run away, Defendant would catch her because she could not 17 outrun him and the beating would become worse. Victim could not recall where 187 Defendant took her after they left Ms. Prieto’ s house, but they returned to Ms. Prieto’s 1 house to pick up Victim’s son before eventually going back to Defendant’s home. 2
{9} Separate from the acts of Defendant burning Victim with a clothes iron and 3 putting a pistol in her mouth, Victim testified she was s ubjected to continuous 4 physical and psychological abuse by Defendant throughout the remainder of her stay 5 in Hobbs. After they left Ms. Prieto’s hous e on July 9, Victim and Defendant made 6 up, and Victim testified that she wanted to believe that the abuse was over. However, 7 this was not the case, and until Victim left Hobbs, Defendant beat Victim for “hours” 8 at a time, subsequently passing out becausehe was so tired from beating her. When 9 Defendant was passed out, Vic tim said she had to remainlying down next to him 10 because if she did not, she was afraid Defe ndant would think she was trying to leave 11 and the abuse would start again. Victim tes tified that she did not think she could run 12 away with her young son without Defendant catching her. When Defendant awoke, 13 Defendant and Victim woul d have sex, and “it woul d be okay for a couple more 14 hours.” However, something w ould trigger Defendant’s anger, and he would again 15 beat Victim repeatedly. Vic tim characterized the beating as occurring in a deliberate 16 manner that was “slow” and “not [] cons tant,” on-going for hour s, and punctuated by 17 repeated questions about whether Victim had been unfaithful to Defendant while he 18 was away. If Victim answered in the ne gative, she would be hit again because 198 Defendant thought she was lying. Victim wa s not allowed to talk, fight back, argue, 1 or ask Defendant questions while the abuse was ongoing. Victim testified that 2 Defendant “had a gun the whole time.” 3
{10} Apart from the use of the iron on July 9, Victim also testified that Defendant 4 used other weapons to inflict physical abuse: a police baton, a curtain rod, and a torch. 5 On one occasion, Defendant pushed Victim into a wall inthe bedroom of his home, 6 resulting in a hole in the wall. After Vic tim fell onto the bed, Defendant used the 7 baton to choke her. Using his hands, Defe ndant also choked Vic tim on multiple other 8 occasions and caused Victim to almost pass out each time. 9
{11} On a different day, towards the end of her ten days in Hobbs, Victim testified 10 that Defendant used a curtain rod, folded inhalf, to beat her on her left leg from the 11 waist down while she was lying down on the floor of the bedroom, causing long12 lasting bruising. Although Victim tried to scoot across the floor to get away, 13 Defendant slid across the floor and continue d to hit her with the rod. Additionally, 14 Defendant used a gas torch to threaten Vi ctim, placing the torch close to Victim’s 15 body to scare her. If Victim moved, Defendant would put the torch closer to her skin. 16 In one instance, Defendant burned Victim’s left forearm with the torch, leaving a 17 mark. 189 {12} Victim testified that she never left De fendant’s home alone af ter July 9 and only 1 left on a couple of occasions with Defendant to visit Defendant’s friends and family. 2 Victim testified that she was never allo wed to leave the house by herself. Defendant 3 offered money and his car keys to Victim and told her to “ go get the fuck out of here,” 4 but Victim testified that if she had tried to get the keys, he “would fuck [her] up” and 5 that it was a trick. Victim said that there was no way she would have grabbed the keys 6 because she was too afraid of being b eaten up. Even though Defendant had male 7 visitors at his home, Victim would stay inthe bedroom while they were there so that 8 Defendant would not accuse her of looking at the visitors and wanting to have sex 9 with them and begin beating her again. 10
{13} On July 18, Victim convinced Defendant to drive her and her son back to 11 Albuquerque so she could atte nd a court date pertaining to her apartment. During the 12 drive to Albuquerque, Defendant again hit Vi ctim and tried to burn her with the gas 13 torch when Victim said that she knew of an alternate route to Albuquerque, which, 14 according to Defendant, meant that Victim had been unfaithful to him with another 15 man in Hobbs. Upon arrival in Albuquerque , Defendant ate and fell asleep. Although 16 Victim had missed her court date, she pretended that she s till had to go. Victim did not 17 think Defendant would let her go by herself, so her original plan was to go with 18 Defendant to explain to the judge why she did not make it, allowing the judge to see 1910 her bruised appearance. However, because Defendant was falling asleep, Victim asked 1 him if she could drive herself to court in his truck, and Defendant nodded his head 2 groggily. Victim went directly to th e Albuquerque Police Department and was 3 eventually helped by the New Mexico State Police. 4
{14} Victim testified that due to Defendant’s abuse, she was terrified the entire time 5 she was in Hobbs. She stated that she wa s “scared to death”—so scared that she 6 “[could not] even move, think right, breatheright, [and did not] know what [she was] 7 saying.” The State also presented corr oborating testimony from Sergeant Elizabeth 8 Whitfield of the New Mexico State Police, who intervie wed Victim, and SANE nurse 9 Mary Anne Chavez, who conducted an examination of Victim, as well as 10 photographic evidence of Victim’s physical injuries and extensive bruising. Both 11 Sergeant Whitfield and Nurse Chavez testified that based on the coloration of 12 Victim’s bruising, the bruising was in varying stages of healing. 13
{15} The evidence discussed here, primarily in the form of Victim’s testimony, 14 amply provides that through physical fo rce and psychological abuse, Defendant 15 intimidated Victim and scared Victim into thinking that if she tried to leave, 16 Defendant would employ greater physical fo rce against her, effectively confining 17 Victim. See State v. Clark , 1969-NMSC-078, ¶ 7, 80 N.M. 340, 455 P.2d 844 18 (explaining that the force needed to accomplish a kidnapping need only be minimal 1911 and need not necessarily be violent or deadly); State v. Laguna , 1999-NMCA-152, ¶ 1 10, 128 N.M. 345, 992 P.2d 896 (“Intimidation includes ‘putting in fear.’ Intimidation 2 may result from words or conduct. Intimidation creates an apprehension of danger of 3 bodily harm while also reducing the victim’s ability to resist the advances toward that 4 harm.” (citations omitted)). 5
{16} We conclude that the foregoing cons titutes sufficient evidence by which a 6 rational jury could find that Defendant c onfined Victim by force or intimidation. See 7 State v. Parvilus , 2013-NMCA-025, ¶ 33, 297 P.3d 1228 (holding that there was 8 sufficient evidence of kidnapping where th e defendant was armed with a knife and 9 two guns and surveillance photos showed the victim entering a motel room with the 10 defendant because “the jury could reasonably infer that [the v]ictim did not leave the 11 apartment and accompany [the d]efendant to the motel willingly because he feared 12 that [the d]efendant might use one of the handguns if he tried to escape”), overruled 13 on other grounds by2014-NMSC-028, 332 P.3d 281; see also State v. Dominguez , 14 2014-NMCA-064, ¶¶ 3, 12, 327 P.3d 1092 (holding that there was sufficient evidence 15 of force and intimidation to support a ki dnapping conviction, apart from a conviction 16 for criminal sexual penetration in the s econd degree, when the defendant pulled a gun 17 out of his sweatshirt, put the gun to the victim’s head, and stated that he planned to 18 rape the victim, also threatening to kill the victim’s young daughter if the victim did 1912 not comply); Laguna , 1999-NMCA-152, ¶ 11 (holding that a jury could reasonably 1 infer that a kidnapping victim was transported or confined by intimidation where the 2 victim did not think the defendant would le t him exit the vehicle, the victim was in 3 fear that the defendant would rape him, and the defendant wa s an adult who was 4 controlling the moving vehicle while the victim was a “young teenager”); cf. State v. 5 Muise , 1985-NMCA-090, ¶ 22, 103 N.M. 382, 707 P.2d 1192 (explaining, in the 6 context of false imprisonment, that restraint “may arise out of words, acts, gestures[,] 7 or similar means [that] result in a reasona ble fear of personal difficulty or personal 8 injuries if the victim does not submit”). 9
{17} Relevant to this, we briefly address Defendant’s contention that the district 10 court made a finding at the close of the St ate’s case that the evidence presented by the 11 State “did not rise to proof ‘beyond a reas onable doubt’ ” and that this finding reflects 12 that the evidence of confinement was insufficient. Specifically, the brief in chief states 13 that when the district court denied Defendant ’s motion for a directed verdict, the court 14 found that “there is enough evidence which is . . . not beyond a reasonable doubt.” 15 Defendant’s brief in chief notes for a second time “that the finding of the [district 16 c]ourt that the evidence at the close of th e State’s case did not rise to proof ‘beyond 17 a reasonable doubt[,]’ ” according to Defendant, reflects that there was insufficient 18 evidence of confinement. The State’s answ er brief disputes Defendant’s factual 1913 recitation, instead explaining that the distri ct court, in denying the directed verdict 1 motion, was reiterating the appropriate standard to apply when ruling on such a 2 motion, not making a statement on the State’ s ability to ultimately meet its burden of 3 proof. This Court’s review of this portion of the testimony comports with the State’s 4 factual recitation, and as such, we do notfurther address Defendant’s contention. 5
{18} We turn next to Defendant’s contentions that Victim’s travel to Hobbs was 6 voluntary and that Victim stated she wantedto be in Hobbs with Defendant. It is 7 undisputed that Victim voluntarily initiated tr avel to Hobbs and stated that she initially 8 had a desire to reconcile w ith Defendant. Victim further testified that she wanted to 9 throw a birthday party for Defendant. However, the fact that Victim initiated the travel 10 to Hobbs and originally wanted to stay with Defendant with the intent to reconcile 11 does not negate the fact that a jury could have reasonably concluded that at some point 12 during Victim’s stay in Hobbs, her a ssociation with Defendant was no longer 13 voluntary and Defendant confined Vi ctim by force or intimidation. See State v. 14 Jacobs , 2000-NMSC-026, ¶ 24, 129 N.M. 448, 10 P.3d 127 (“A kidnapping can occur 15 when an association begins voluntarily but the defendant’s actual purpose is other than 16 the reason the victim voluntarily a ssociated with the defendant.”); Laguna , 1999- 17 NMCA-152, ¶ 10 (“While there does not app ear to be any evidence of intimidation 18 in getting [the victim] into the car, the evid ence of what occurred during the ride could 1914 reasonably lead the fact[-]finder to conclude that [the d]efendant intimidated [the 1 victim] during transportation.”) . The jury could have reasonably inferred that Victim’s 2 confinement began at some time after July 9, at the point when Victim realized that 3 Defendant’s actions on July 9 were not isolated incidents. See State v. Pisio , 4 1994-NMCA-152, ¶ 30, 119 N.M. 252, 889 P. 2d 860 (“The key to the restraint 5 element in kidnapping is the point at which [the v]ictim’s physical association with 6 [the d]efendant was no longer voluntary.”); State v. Mares , 1991-NMCA-052, ¶¶ 3, 7 20-21, 112 N.M. 193, 812 P.2d 1341 (holding thata jury could reasonably infer that 8 the victim was no longer voluntarily with th e defendant at the moment the defendant 9 became angry after the victim “repelle d” the defendant’s sexual advances). 10
{19} To the extent Defendant argues that th e jury should have believed his version 11 of the events—that Victim was determined to reconcile with De fendant and called the 12 police upon realizing there would be no rekindled relationship—we disagree. See 13 State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary 14 evidence supporting acquittal does not provide a basis for reversal because the jury 15 is free to reject [the d]efendant’s version of the facts.”); State v. Salas , 1999-NMCA16 099, ¶ 13, 127 N.M. 686, 986 P. 2d 482 (recognizing that it is for the fact-finder to 17 resolve any conflict in the testimony of the witnesses and to determine where the 18 weight and credibility lay). Contrary to De fendant’s contentions, a rational jury could 1915 have reasonably concluded that Victim cont acted law enforcement as soon as she felt 1 safe to do so, almost immediately upon her arrival in Albuquerque, where she knew 2 the location of the police station. 3
{20} Similarly, although Defendant argues that Victim coul d not have been confined 4 because she never sought assistance from law enforcement or any other person while 5 she was in Hobbs, we disagree. Defendant has pointed us to no authority supporting 6 his contention that Victim was required to s eek help to prove conf inement, and we are 7 unaware of any. In re Adoption of Doe , 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 8 P.2d 1329 (“[The appellate courts] have long held that to present an issue on appeal 9 for review, an appellant must submit argument and authority as required by rule. [The 10 reviewing courts] assume where arguments in briefs are unsupported by cited 11 authority, counsel after diligent search, was unable to find any supporting authority. 12 [The appellate courts] therefore will not do this research for counsel. Issues raised in 13 appellate briefs [that] are unsupported by cite d authority will not be reviewed . . . on 14 appeal.” (emphasis and citations omitted)). 15
{21} The reasonableness of Victim’s decision not to ask help from friends of 16 Defendant and to remain nextto Defendant in order to avoid further physical injury 17 presents a fact question for the jury. Victimtestified that if she was not lying beside 18 Defendant after he fell asleep, she was afraid that Defendant would think she was 1916 trying to escape and the physical abuse would start all over again. Victim also stated 1 that she did not have friends or family of her own in Hobbs, and the only people she 2 knew in Hobbs were friends or family of Defendant. Victim did not know the address 3 of Defendant’s home or the location of the police department in Hobbs, and was 4 terrified Defendant would catch her. Vi ctim observed surveillance cameras by the 5 front door of Defendant’s home, as well as a padlock on the outside of the front door. 6 Victim also testified that she lost cell phone service starting around July 11. Based on 7 Victim’s testimony, a reasonable jury coul d have inferred that any attempt by Victim 8 to obtain help or escape would have re sulted in more serious physical injury. 9 Accordingly, the fact that the jury retu rned a guilty kidnapping verdict indicates that 10 the jury believed that Victim’s response to the threat of increased violence by any 11 attempt to leave Defendant’s side was reasona ble. It is not the role of the appellate 12 court to second-guess the jury’s factual determinations. State v. Garcia , 13 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (“New Mexico appellate courts 14 will not invade the jury’s province as fact-finder by second-guessing the jury’s 15 decision concerning the credibility of w itnesses, reweighing the evidence, or 16 substituting its judgment for that of the ju ry.” (alterations, internal quotation marks, 17 and citation omitted)). 1817 {22} To the extent Defendant argues that there was no evidence of confinement 1 because Victim traveled outside of his home—specifically, to Defendant’s sister’s 2 house for his birthday party, to visit Ashley Castillo, and to the home of Delores 3 Rascon—and that Victim and Defendant made up on several occasions during 4 Victim’s ten-day stay, we disagree. The kidnapping statute, Section 30-4-1, does not 5 require that the State prove Victim was “conf ined for a certain length of time”; rather, 6 our case law notes that “the length of time involved in such restraint or confinement 7 is immaterial.” State v. Clark , 1969-NMCA-004, ¶ 18, 80 N.M. 91, 451 P.2d 995, 8 rev’d on other grounds by1969-NMSC-078, 80 N.M. 340, 455 P.2d 844. Because one 9 count of kidnapping was charged for the Ju ly 8 to July 18 period, the State was 10 required to prove that during this time, Defendant, in one instance, confined Victim 11 with the intent to inflict death, physical injury, or a sexual offense against Victim. See 12 § 30-4-1(A)(4). The evidence presente d in this case—specifically, Victim’s 13 testimony—established that throughout this time frame, Defendant confined Victim 14 by using physical force and intimidation ag ainst her, which could have reasonably 15 formed the basis of the jury’s conviction. Specifically, Victim testified that there were 16 multiple instances in which Defendant woul d physically abuse her and then get tired 17 and fall asleep, but that she had to stay by his side in an atte mpt to avoid another 18 beating. See State v. Dombos , 2008-NMCA-035, ¶ 12, 143 N.M. 668, 180 P.3d 675 1918 (explaining that “a kidnapping begins when the victim is initially confined and ends 1 when the victim is released”). While th ere may have been breaks in Defendant’s 2 physical beating and interrogation of Victim , the cumulative effectof these instances 3 intimidated Victim such that she could not leave for fear of further harm. In short, 4 these cumulative instances pr ovide sufficient support for De fendant’s conviction, and 5 any intervening breaks in confinement do not defeat Defendant’s conviction. See id. 6 ¶ 13 (holding that there was sufficient ev idence to support two kidnapping convictions 7 and one false imprisonment conviction where the incidents of kidnapping and false 8 imprisonment “were separated by days[,] intervening events that included consensual 9 sex, drinking, and daily activities[,] and te rminations of the intent to restrain”). 10 II. The Conduct Underlying Defendant’s Kidnapping Conviction Was Not 11 Merely Incidental to the Conduct That Formed the Basis of Defendant’s 12 Aggravated Battery and Aggravated Assault Convictions 13
{23} We turn next to Defendant’s double je opardy argument, in which he relies on 14 State v. Trujillo , 2012-NMCA-112, 289 P.3d 238, to argue that his kidnapping 15 conviction violates double jeopardy because it was merely incidental to the 16 commission of the July 9 aggravated battery and aggravated assau lt crimes. As a basis 17 for his issue, we understand Defendant to argue that be yond the specific July 9 acts 18 that formed the basis of his aggravated battery and assault c onvictions, which were 19 premised on the specific conduct of Defendant burning Victim with an iron and 2019 putting a pistol in Victim’s mouth, Victim’s continued presence in Hobbs was 1 voluntary. Stated another way, we understand Defendant to argue that the only 2 restraint he used was that used in conjunc tion with the July 9 aggravated battery and 3 assault and that there was no evidence that he intended to confine Victim beyond the 4 completion of these acts. Defendant fails to acknowledge, however, that his use of 5 physical force and intimidation to effectuate the confinement of Victim extended 6 above and beyond the completion of his July 9 aggravated battery and assault crimes. 7 Accordingly, for the reasons discu ssed in this Opinion, we disagree. 8
{24} In Trujillo , this Court held that movement or restraint that is incidental to the 9 commission of a different crime may not also be punished as kidnapping. Id. ¶¶ 6-8. 10 Whether the restraint is incidental presents a fact question that is to be evaluated based 11 on the totality of the circumstances. Id. ¶¶ 42-43. Trujillo discusses three factors that 12 are relevant to this analysis: (1) “whethera defendant intended to prevent the victim’s 13 liberation for a longer period of time or to a greater degree than that which is 14 necessary to commit the other crime”; (2 ) “whether the detention or movement 15 substantially increased the risk of harm over and above that necessarily present in the 16 accompanying felony”; and (3) whether “the restraint or movement . . . [is] of the kind 17 inherent in the nature of the other crime . . . [or has] some significance independent 18 of the other crime in that it makes the other crime substantially easier of commission 1920 or substantially lessens the risk of detection.” Id. ¶¶ 32, 34, 37 (alteration, internal 1 quotation marks, and citations omitted). Th e overarching question is “whether the 2 restraint or movement increases the culp ability of the defendant over and above his 3 culpability for the other crime.” Id. ¶ 38. 4
{25} The jury instructions provided that th e kidnapping occurred between July 8 and 5 18. As we discussed previously, Victim testified about multiple instances of 6 confinement by force and intimidation duri ng this time period, above and beyond the 7 July 9 incidents where Defendant burned Vic tim’s hand with an iron and held a pistol 8 in her mouth. Specifically, Defendant beat Victim for “hours” at a time and passed out 9 when he became tired. Even when Defendant was passed out, Victim had to remain 10 next to him because if she did not, she was afraid Defendant would think she was 11 trying to leave and the abuse would start agai n. Victim further te stified that Defendant 12 pushed her into a wall in the bedroom of th e home, making a hole in the wall, and then 13 choked her with a baton. De fendant also choked Victim with his hands on several 14 other occasions and caused Victim to almost pass out every time. On a different day, 15 toward the end of Victim’s time in Hobbs, De fendant used a curtain rod that he folded 16 in half to beat Victim on her leg from the waist down while she was on the floor of the 17 bedroom, causing long-lasting bruising. Defendant also used a gas torch to threaten 1821 Victim by placing it close to Victim’s body to scare her, putting it closer to Victim’s 1 skin if she moved away, and even burning her forearm. 2
{26} These multiple instances of physical force and intimidation to effectuate 3 Victim’s confinement until she was able to contact the police in Albuquerque increase 4 Defendant’s culpability over and above his culpability for the July 9 crimes and 5 provide adequate support for Defendant’s kidnapping conviction. As we explained 6 earlier, Defendant intended to prevent Vic tim’s liberation for a longer period of time 7 and to a greater degree than that which was necessary to burn Victim’s hand with an 8 iron and hold a pistol in her mouth. Th is extended confinement also significantly 9 increased the risk of harm to Victim beyond that resulting from burning her hand with 10 the iron and holding a pistol in her mouth. Because Defendant’s cumulative use of 11 physical force and intimidation continue d for days beyond the completion of the 12 aggravated battery and assault, lasting hours at a time and spanning the course of 13 multiple days, we conclude that Defendant intended to and did confine Victim above 14 and beyond the acts that formed the basis for the July 9 aggravated battery and assault 15 convictions. See State v. Herrera , 2015-NMCA-116, ¶ 10, 362 P.3d 167 (holding that 16 a period of restraint of one and a half to two hours “[was] simply not incidental to or 17 inherent in aggravated assault under any of the tests described in Trujillo ”), cert. 18 denied , 2015-NMCERT-010, ___ P.3d ___. In short, Defendant’s argument that the 1922 jury’s kidnapping conviction must have beenpremised on the aggravated battery and 1 assault does not present a reasonable view of the evidence. See, e.g. , Jacobs , 2000- 2 NMSC-026, ¶ 26 (holding that a defendant’s claim that the restraint underlying his 3 kidnapping conviction was the same as that used to commit attempted criminal sexual 4 penetration and murder “[did] not presen t a reasonable view of the evidence” because 5 there were multiple points at which the ju ry might have found that the kidnapping 6 occurred). We conclude there was no double jeopardy violation and therefore affirm 7 Defendant’s kidnapping conviction. 8 CONCLUSION 9
{27} For the foregoing reasons, we hold that there was sufficient evidence to support 10 Defendant’s kidnapping conviction and that his kidnapping convi ction does not 11 violate double jeopardy. We thus affirm. 12
{28} IT IS SO ORDERED. 13

__________________________________ 14 JONATHAN B. SUTIN, Judge 15 WE CONCUR: 16

_______________________________ 17 RODERICK T. KENNEDY, Judge 18

_______________________________ 19 M. MONICA ZAMORA, Judge 20