State v. Simmons

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: ___________ 3 Filing Date: October 25, 2017 4 NO. A-1-CA-34773 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 PHILLIP SIMMONS, 9 Defendant-Appellant. 10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Benjamin Chavez, District Judge 12 Hector H. Balderas, Attorney General 13 Maris Veidemanis, Assistant Attorney General 14 Santa Fe, NM 15 for Appellee 16 Bennett J. Baur, Chief Public Defender 17 Nina Lalevic, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 1 OPINION 2 SUTIN, Judge. 3 {1} Defendant Phillip Simmons was convicted by a jury of two counts of criminal 4 sexual penetration in the second degree (in the commission of a felony) (CSP II5 felony) in violation of NMSA 1978, Section 30-9-11(E)(5) (2009), one count of 6 criminal sexual penetration in the second degree (by force or coercion, child 13-18) 7 (CSP II-force/coercion) in violation of Section 30-9-11(E)(1), one count of 8 kidnapping in the first degree in violation of NMSA 1978, Section 30-4-1 (2003), one 9 count of distribution of a controlled substance to a minor in the second degree in 10 violation of NMSA 1978, Section 30-31-21 (1987), and one count of contributing to 11 the delinquency of a minor in violation of NMSA 1978, Section 30-6-3 (1990).1 12 {2} On appeal, Defendant argues that (1) the district court failed to instruct the jury 13 on a required element for the CSP II-felony convictions; (2) there was insufficient 14 evidence to support the jury’s guilty verdicts; and (3) this Court must vacate the 15 kidnapping, distribution of a controlled substance to a minor, or contributing to the 16 delinquency of a minor convictions, or else reduce the CSP II-felony convictions to 1 17 We note that although the jury clearly found Defendant guilty of two counts 18 of CSP II-felony and one count of CSP II-force/coercion and the district court 19 recognized those verdicts, the judgment erroneously states that Defendant was 20 convicted of three counts of CSP II-force/coercion. 1 CSP IV because allowing all convictions to stand would violate double jeopardy. We 2 affirm in part and remand in order to vacate Defendant’s CSP II-felony convictions. 3 BACKGROUND 4 {3} On an evening in July 2010, Victim, a fifteen-year-old boy, went to a concert 5 with his family. After the concert, Victim planned on attending a party with his family 6 and got a ride with his cousin and his cousin’s friend. While in the car, Victim got 7 into an argument with his cousin, at which point his cousin’s friend kicked Victim out 8 of the car in downtown Albuquerque near the Alvarado Transportation Center (ATC). 9 Victim, wanting to get home, tried to get a ride home from ATC but was initially 10 unsuccessful. After some time, Defendant pulled up to Victim and offered Victim a 11 ride home. Defendant told Victim he needed to do something first and drove to a 12 salon. After going to the salon, Defendant drove Victim to Defendant’s apartment. 13 {4} Once at the apartment, Defendant told Victim he had “to get something real 14 quick,” and they entered the apartment. Victim testified that he felt “a little bit forced” 15 to enter the apartment and believed he was threatened. Once inside, Defendant 16 offered Victim a beer, as well as “[c]rack, weed, [and] coke.” Victim, feeling 17 pressured, accepted a beer and cocaine, which made him feel “woozy.” At that point, 18 Defendant began touching Victim and sucked Victim’s penis. Victim testified that he 19 was “worried about getting home” and that the encounter “made [him] feel . . . gross” 2 1 and “[a]shamed of [himself].” Thereafter, Defendant sucked Victim’s penis again, and 2 they smoked more cocaine. Victim asked to go home, but Defendant told him that 3 Defendant would take Victim home “in the morning[.]” Victim protested, telling 4 Defendant that he had to go see his probation officer because Victim was on 5 probation. Defendant then asked for anal sex, and Victim complied because he was 6 afraid that if he did not, he would be anally penetrated. Victim testified that 7 Defendant was larger than him, and he was scared. 8 {5} Defendant eventually took Victim home around 7:00 a.m. When Defendant 9 dropped Victim off, Defendant provided his name and phone number to Victim, told 10 Victim to call him, and made promises of money and access to his car. When Victim 11 arrived home he cried, took multiple showers, and told his mother, aunt, and 12 grandmother what had happened. Victim was examined by a sexual assault nurse 13 examiner (SANE), who testified that Victim disclosed that he felt coerced to have 14 anal sex with Defendant and reported being “woken up with his genitals being sucked 15 on[.]” 16 {6} Victim identified Defendant as the perpetrator in a photo array, gave the police 17 a fairly accurate description of Defendant’s apartment, and identified Defendant as 18 the perpetrator at trial. A forensic examiner testified at trial that she identified saliva 19 that contained Defendant’s DNA on the inside of Victim’s boxer shorts. 3 1 {7} The jury found Defendant guilty of two counts of CSP II-felony, one count of 2 CSP II-force/coercion, one count of kidnapping, one count of distribution of a 3 controlled substance to a minor, and one count of contributing to the delinquency of 4 a minor. For the CSP II-felony counts, the jury was instructed that the State must 5 prove that Defendant caused Victim to engage in fellatio and anal intercourse during 6 the commission of kidnapping or distribution of a controlled substance to a minor or 7 contributing to the delinquency of a minor. However, the jury was not asked to 8 identify which felony it relied upon in reaching its verdicts on the CSP II-felony 9 counts. Defendant was ultimately sentenced to twenty-seven years in prison, with 10 nine years of the sentence suspended, for a total sentence of eighteen years. This 11 appeal followed. 12 DISCUSSION 13 I. Jury Instructions—CSP II-felony 14 Defendant argues that the district court failed to instruct the jury that in order {8} 15 to find Defendant guilty of the CSP II-felony counts, it had to find that there was a 16 causal link between the felony committed and the CSP. Defendant admits that trial 17 counsel did not request that an instruction be given on the causal link between the 18 CSP II-felony charges and the associated felonies. 4 1 {9} When a party fails to object to a tendered jury instruction, we review the issue 2 for fundamental error. See State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 3 34 P.3d 1134. Fundamental error “only applies in exceptional circumstances when 4 guilt is so doubtful that it would shock the judicial conscience to allow the conviction 5 to stand.” State v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, 6 overruled on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 7 210 P.3d 783. 8 {10} In support of his position that fundamental error occurred, Defendant highlights 9 State v. Stevens, 2014-NMSC-011, 323 P.3d 901, arguing when charging CSP II10 felony, the associated felony “must be a felony that is committed against the victim 11 of, and that assists in the accomplishment of, sexual penetration perpetrated by force 12 or coercion or against a victim who, by age or other statutory factor, gave no lawful 13 consent.” Id. ¶ 39. According to Defendant, the State never argued and the jury never 14 found a “nexus” between the associated felony, i.e., distribution of a controlled 15 substance to a minor, kidnapping, and/or contributing to the delinquency of a minor, 16 on the one hand, and the two counts of CSP II-felony, on the other hand. Defendant 17 argues that the jury should have been asked to consider the causal link between the 18 associated felony and the CSP when rendering its verdict on CSP II-felony, and 5 1 because the jury never was instructed to find that the felony assisted in the 2 accomplishment of the CSP, there was fundamental error. 3 {11} In Stevens, our Supreme Court considered the adequacy of a given CSP II- 4 felony jury instruction and whether the inadequacies in the instruction constituted 5 fundamental error. Id. ¶¶ 1-3. The defendant in Stevens was charged with two counts 6 of CSP-II felony, with the associated felony being distribution of a controlled 7 substance to a minor, after the defendant provided her minor daughter with 8 methamphetamine and told her daughter to perform oral sex on the defendant’s 9 boyfriend on two occasions. Id. ¶¶ 4-6. The defendant argued that her “convictions 10 for CSP II-felony resulted from fundamental error because the jury was not instructed 11 that the [prosecution] had to prove that the sexual activity occurring during the 12 commission of a felony was otherwise criminal[.]” Id. ¶ 12 (internal quotation marks 13 omitted). The at-issue instruction required, in relevant part, that the prosecution prove 14 (1) “[t]he defendant caused [her] daughter to engage in fellatio on [the defendant’s] 15 boyfriend[,]” and (2) “[t]he defendant committed the act during the commission of 16 distribution of a controlled substance to a minor[.]” Id. ¶ 13 (internal quotation marks 17 omitted). Our Supreme Court ultimately held that “when a CSP II charge is based on 18 the commission of a felony, it must be a felony that is committed against the victim 19 of, and that assists in the accomplishment of, sexual penetration perpetrated by force 6 1 or coercion or against a victim who, by age or other statutory factor, gave no lawful 2 consent.” Id. ¶ 39. The Stevens Court concluded, however, that although the jury 3 instruction was deficient, the error was unpreserved and “did not rise to the level of 4 fundamental error.” Id. ¶¶ 42-43, 46. The Court noted that in convicting the 5 defendant, the jury necessarily determined that the defendant caused her boyfriend 6 to sexually penetrate her daughter during the commission of a felony. Id. ¶ 43. 7 Additionally, the Court looked to testimony from the defendant’s daughter that she 8 acquiesced to the defendant’s request after she was injected with methamphetamine. 9 Id. ¶ 45. Thus, the Court did “not consider guilt to be so doubtful that a conviction 10 would shock the judicial conscience” and affirmed the defendant’s convictions. Id. 11 ¶¶ 45, 58. 12 {12} In this case, as in Stevens, there is no fundamental error. Here, the jury 13 instructions on CSP-II felony stated, in relevant part, that the State must prove: 14 (1) Defendant caused Victim to engage in fellatio and anal intercourse, and 15 (2) Defendant committed the acts during the commission of kidnapping or 16 distribution of a controlled substance to a minor or contributing to the delinquency 17 of a minor. These instructions are similar to the instruction in Stevens in that they did 18 not instruct the jury to find that the associated felony must be “committed against the 19 victim of[] and . . . assist[] in the accomplishment of” the CSP. Id. ¶ 39. But, also as 7 1 in Stevens, this deficiency does not rise to the level of fundamental error. See id. 2 ¶¶ 42-43, 46. Here, a reasonable juror would not be confused by the instruction, and 3 the connection between the associated felonies and the acts of CSP is so readily 4 apparent that the CSP II-felony convictions do not shock the judicial conscience. In 5 this case, the associated felonies, i.e., kidnapping, distribution of a controlled 6 substance to a minor, and contributing to the delinquency of a minor, were all 7 committed against Victim, as evidenced by the guilty verdicts for those felonies. 8 Additionally, there can be no doubt that Defendant was assisted in carrying out the 9 CSPs against Victim by the commission of the associated felonies. 10 II. Sufficiency of the Evidence 11 Defendant argues that there was insufficient evidence to support his {13} 12 convictions for kidnapping, distribution of a controlled substance to a minor, CSP II, 13 and contributing to the delinquency of a minor. “In reviewing the sufficiency of the 14 evidence, [the appellate courts] must view the evidence in the light most favorable to 15 the guilty verdict, indulging all reasonable inferences and resolving all conflicts in 16 the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 17 128 N.M. 711, 998 P.2d 176. “The relevant question is whether, after viewing the 18 evidence in the light most favorable to the prosecution, any rational trier of fact could 19 have found the essential elements of the crime beyond a reasonable doubt.” Id. 8 1 (alteration, emphasis, internal quotation marks, and citation omitted). Further, 2 “[c]ontrary evidence supporting acquittal does not provide a basis for reversal 3 because the jury is free to reject [the d]efendant’s version of the facts[,]” State v. 4 Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829, and we defer to the fact5 finder “when it weighs the credibility of witnesses and resolves conflicts in witness 6 testimony.” State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482. 7 A. 8 Distribution of a Controlled Substance to a Minor, CSP II, and Contributing to the Delinquency of a Minor 9 Defendant’s argument regarding the distribution of a controlled substance to {14} 10 a minor conviction is that, although Victim testified he was offered various drugs, a 11 drug test was not performed, and thus the evidence is insufficient. His argument 12 against the three CSP II convictions is that Victim’s testimony was “almost 13 nonsensical.” And Defendant’s argument against contributing to the delinquency of 14 a minor is that there was no evidence that Defendant gave Victim alcohol or 15 controlled substances. We reject all of these arguments because they request that this 16 Court usurp the role of the jury as fact-finder and supplant the jury’s view of the 17 evidence with our own. 18 {15} At trial, Victim testified that Defendant provided him with drugs and alcohol 19 and that there were three sexual encounters. Victim identified Defendant as the 20 perpetrator at trial, and a forensic examiner testified at trial that she identified saliva 9 1 that contained Defendant’s DNA on the inside of Victim’s boxer shorts. See id. 2 Simply because the evidence presented at trial could have been bolstered by a drug 3 test or clearer testimony does not mean that there was insufficient evidence to convict 4 Defendant of his crimes. See Rojo, 1999-NMSC-001, ¶ 19. Given the testimony, we 5 hold there was sufficient evidence to uphold Defendant’s convictions for distribution 6 of a controlled substance to a minor, CSP II, and contributing to the delinquency of 7 a minor. 8 B. Kidnapping 9 Defendant argues that there was insufficient evidence of kidnapping because {16} 10 the Victim willingly entered Defendant’s car and that, after driving to the salon and 11 Defendant’s apartment, “a savvy boy like [Victim] would have begun to suspect that 12 the ride home was not going to happen any time soon.” Defendant argues that there 13 was no kidnapping by deception because Victim went voluntarily into Defendant’s 14 apartment, and Victim never testified that he was physically restrained by Defendant. 15 Defendant argues that it is unclear at what point the physical association between him 16 and Victim was no longer voluntary, and thus it was unreasonable for the jury to 17 convict Defendant of kidnapping. 18 {17} We are unpersuaded. To support a conviction for kidnapping, the jury 19 instruction required proof, in relevant part, that Defendant “took or restrained or 10 1 confined or transported [Victim] by force or intimidation or deception[, and] intended 2 to hold [Victim] against [Victim’s] will to inflict death, physical injury or a sexual 3 offense on [Victim.]” See § 30-4-1(A)(4) (“Kidnapping is the unlawful taking, 4 restraining, transporting or confining of a person, by force, intimidation or deception, 5 with intent . . . to inflict death, physical injury or a sexual offense on the victim.”). 6 {18} Kidnapping by deception “can occur when an association [between a victim 7 and a defendant] begins voluntarily but the defendant’s actual purpose is other than 8 the reason the victim voluntarily associated with the defendant.” State v. Jacobs, 9 2000-NMSC-026, ¶ 24, 129 N.M. 448, 10 P.3d 127; see State v. Laguna, 199910 NMCA-152, ¶¶ 2, 12, 17, 128 N.M. 345, 992 P.2d 896 (describing kidnapping by 11 deception where the victim was offered a ride and the defendant “conceal[ed his] 12 intent of exploring sexual involvement with [the victim]”). 13 {19} Here, Victim testified that he was led to believe that Defendant was going to 14 give him a ride home, even though Defendant made two stops. Once at the apartment, 15 Victim testified that he felt “a little bit forced” to enter the apartment and believed he 16 was threatened. The jury could have reasonably found that Victim’s association with 17 Defendant was based on a deception when Defendant (1) lied by offering Victim a 18 ride home with another intent in mind, (2) lied to Victim when he said he would drive 19 Victim home after stopping at the salon, or (3) lied to Victim when he said he would 11 1 drive Victim home after stopping at the apartment “to get something real quick[.]” 2 Additionally, as noted by the State, the jury could have reasonably found that 3 Defendant used intimidation as part of the kidnapping as evidenced by the physical 4 disparities between Defendant and Victim, Victim’s testimony that Defendant told 5 him to go into the apartment, and Victim’s testimony that he felt forced. 6 {20} We are also unpersuaded by Defendant’s argument that “a savvy boy like 7 [Victim] would have begun to suspect that the ride home was not going to happen any 8 time soon.” As with his sufficiency of the evidence arguments regarding his other 9 convictions, Defendant is essentially asking this Court to re-weigh the evidence and 10 make alternative determinations about Victim’s credibility and what Victim should 11 have believed. As we have stated, we defer to the fact-finder regarding such issues. 12 See Salas, 1999-NMCA-099, ¶ 13. And we do “not re-weigh the evidence to 13 determine if there was another hypothesis that would support innocence[.]” State v. 14 Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72. 15 III. Double Jeopardy 16 Defendant argues on appeal that, with respect to each of the two CSP II-felony {21} 17 convictions, this Court on double jeopardy grounds must vacate either the 18 kidnapping, distribution of a controlled substance to a minor, or contributing to the 19 delinquency of a minor convictions. Defendant compares CSP II-felony to felony 12 1 murder, arguing that CSP II-felony is a compound crime that requires a finding of 2 CSP and the associated felony and that the associated felony is thus subsumed within 3 the CSP II-felony. See State v. Frazier, 2007-NMSC-032, ¶ 1, 142 N.M. 120, 164 4 P.3d 1 (holding under double jeopardy principles that “the predicate felony is always 5 subsumed into a felony murder conviction, and no defendant can be convicted of 6 both”); State v. Tsethlikai, 1989-NMCA-107, ¶ 8, 109 N.M. 371, 785 P.2d 282 7 (noting that CSP II-felony is a compound crime). Defendant argues in his brief in 8 chief that kidnapping “is the most likely crime to be violative of double jeopardy” and 9 thus suggests that the kidnapping conviction is “subsumed into the CSP II[-felony] 10 convictions” and must be vacated. However, in his reply brief, Defendant appears to 11 change his position, suggesting that “the proper remedy in this case would be to 12 reduce the CSP II to a CSP IV2 because it is impossible to know upon which 13 alternative [associated felony] the jury relied.” And Defendant requests that “this 14 Court vacate the CSP II and enter the lesser included offense [of CSP IV] that is not 15 based upon a finding that violates double jeopardy.” 2 16 CSP IV requires that a defendant be guilty of sexual penetration of a child 17 thirteen to sixteen by a person who is at least eighteen years old and at least four years 18 older than the victim, and in this case, the jury was instructed as to CSP IV as a lesser 19 included offense of CSP II-felony. Section 30-9-11(G)(1). 13 1 {22} In its answer brief, the State agrees that a conviction must be vacated. But the 2 State argues that the conviction for contributing to the delinquency of a minor, the 3 lesser of the three predicate felonies, should be vacated because, per Frazier, “if the 4 facts support multiple charges of a particular felony which can be sustained under a 5 unit[]of[]prosecution analysis, then the [prosecution] is free to use one of those 6 charges as the predicate felony and obtain separate convictions for the other 7 charges.” 2007-NMSC-032, ¶ 27. Additionally, the State notes that our Supreme 8 Court has held that if a double jeopardy violation is found, the appellate courts “must 9 vacate the conviction for the lesser offense.” State v. Gonzales, 2007-NMSC-059, 10 ¶ 10, 143 N.M. 25, 172 P.3d 162. 11 {23} Because Defendant’s argument that his CSP II-felony convictions should be 12 vacated and remanded for sentencing as CSP IV convictions was argued for the first 13 time in his reply brief, we need not and do not address that argument. See Guest v. 14 Berardinelli, 2008-NMCA-144, ¶ 36, 145 N.M. 186, 195 P.3d 353 (“[W]e do not 15 consider arguments raised in a reply brief for the first time.”); State v. Druktenis, 16 2004-NMCA-032, ¶ 122, 135 N.M. 223, 86 P.3d 1050 (“We will not consider issues 17 raised for the first time in an appellant’s reply brief.”). But even if Defendant had 18 earlier proposed his solution of lowering his CSP II-felony convictions to CSP IV 19 convictions, we would not be inclined to adopt his proposed solution because he 14 1 failed to develop the argument and cited no authority in support of that maneuver. See 2 State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate courts will 3 not consider an issue if no authority is cited in support of the issue and that, given no 4 cited authority, we assume no such authority exists[.]”); State v. Fuentes, 5 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that we will “not 6 review unclear or undeveloped arguments [that] require us to guess at what [a party’s] 7 arguments might be”); see also State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 8 508, 873 P.2d 254 (reminding counsel that the appellate courts “are not required to 9 do their research” and stating that “conclusory statement[s] will not suffice and [are] 10 in violation of our [R]ules of [A]ppellate [P]rocedure”). 11 {24} Although it is unclear which associated felony was relied upon by the jury in 12 reaching its guilty verdicts for the two CSP II-felony counts, we focus on Defendant’s 13 argument that the kidnapping and CSP II-felony convictions violate double jeopardy. 14 Defendant asks this Court to consider vacating the distribution of a controlled 15 substance conviction or contributing to the delinquency of a minor conviction only 16 if we disagree that the CSP II-felony and kidnapping convictions violate double 17 jeopardy. Because, as explained later in this opinion, we hold that convicting 18 Defendant for both kidnapping and CSP II-felony would violate double jeopardy and 19 because we instruct the district court to vacate the CSP II-felony convictions, we need 15 1 not and do not address Defendant’s alternative arguments that his convictions for 2 distribution and/or contributing to the delinquency would violate double jeopardy if 3 coupled with the CSP II-felony convictions. 4 {25} Double jeopardy challenges involve constitutional questions of law that we 5 review de novo. SeeState v. Melendrez, 2014-NMCA-062, ¶ 5, 326 P.3d 1126. The 6 prohibition against double jeopardy “functions in part to protect a criminal defendant 7 against multiple punishments for the same offense.” State v. Swick, 2012-NMSC-018, 8 ¶ 10, 279 P.3d 747 (internal quotation marks and citation omitted). Double jeopardy 9 multiple-punishment cases are divided into two classifications: (1) multiple 10 convictions under a single statute are “unit of prosecution” cases; and (2) multiple 11 convictions under separate statutes resulting from the same conduct are “double 12 description” cases. Id. Because we are dealing with multiple convictions under 13 separate statutes, this is a double description case. For double description cases, we 14 apply the two-part test set forth in Swafford v. State, 1991-NMSC-043, ¶ 25, 112 15 N.M. 3, 810 P.2d 1223: (1) whether the conduct is unitary; and (2) if so, whether the 16 Legislature intended to punish the offenses separately. State v. Silvas, 17 2015-NMSC-006, ¶ 9, 343 P.3d 616. 18 A. Unitary Conduct 16 1 {26} In analyzing a double description multiple-punishment claim, we first 2 determine whether the underlying conduct for the offenses is unitary. See Swafford, 3 1991-NMSC-043, ¶ 25. “Conduct is not unitary if sufficient indicia of distinctness 4 separate the transaction into several acts.” State v. Montoya, 2011-NMCA-074, ¶ 31, 5 150 N.M. 415, 259 P.3d 820 (internal quotation marks and citation omitted). In 6 specifically analyzing whether the conduct underlying kidnapping and CSP II-felony 7 convictions is unitary, this Court has held that “unitary conduct occurs when the 8 [prosecution] bases its theory of [kidnapping] on the same force used to commit CSP 9 II[-felony] even though there were alternative ways to charge the crime.” Id. ¶ 37. 10 Stated another way, “because some force or restraint is involved in every sexual 11 penetration without consent, [kidnapping] cannot be charged out of every CSP 12 without a showing of force or restraint separate from the CSP.” Id. ¶ 38. 13 {27} In the present case, the jury could have found that Defendant’s kidnapping of 14 Victim was complete when he deceived Victim into entering his car by offering 15 Victim a ride home. The jury could also have found that the kidnapping was 16 accomplished when Victim, feeling forced and intimidated, entered Defendant’s 17 apartment and remained while the ensuing acts of CSP occurred. When the conduct 18 underlying two convictions could be unitary under the facts, but we are unsure if the 19 jury relied on that unitary conduct for both convictions, we nevertheless assume for 17 1 the purposes of our double jeopardy analysis that the conduct was unitary because 2 one of the options/alternatives/scenarios is legally inadequate. See id. ¶ 39 3 (acknowledging the principle that “we must reverse a conviction if one of the 4 alternative bases for the conviction provided in the jury instructions is legally 5 inadequate because it violates a defendant’s constitutional right to be free from 6 double jeopardy” and concluding that the conduct in the kidnapping and CSP was 7 unitary for the purposes of double jeopardy because this Court was unable to 8 determine from the record when the kidnapping was accomplished (internal quotation 9 marks and citation omitted)); see also State v. Foster, 1999-NMSC-007, ¶ 27, 126 10 N.M. 646, 974 P.2d 140 (“[T]he Double Jeopardy Clause . . . require[s] a conviction 11 under a general verdict to be reversed if one of the alternative bases for conviction 12 provided in the jury instructions is legally inadequate because it violates a 13 defendant’s constitutional right to be free from double jeopardy[.]” (internal quotation 14 marks omitted)), abrogation on other grounds recognized by Kersey v. Hatch, 201015 NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683. 16 {28} As we stated in Section (I), supra, we have no doubt that Defendant was 17 assisted in carrying out the acts of CSP by the commission of the associated felonies. 18 And if the jury could have found that the kidnapping was accomplished during the 19 CSPs, which is possible given the testimony, the conduct would be unitary because 18 1 the force used for the kidnapping would be the same force used for the CSPs. We 2 therefore conclude, for the purposes of our double jeopardy analysis, that the conduct 3 was unitary. 4 B. Legislative Intent 5 Where unitary conduct forms the basis for multiple convictions, we next {29} 6 “inquire whether [the d]efendant has been punished twice for the same offense, and 7 if so, whether the Legislature intended that result.” Silvas, 2015-NMSC-006, ¶ 11. “In 8 analyzing legislative intent, [the appellate courts] first look to the language of the 9 statute itself.” Swick, 2012-NMSC-018, ¶ 11. In the absence of an express statement 10 of legislative intent, we apply the rule of statutory construction from Blockburger v. 11 United States, 284 U.S. 299, 304 (1932), to ensure that “each provision requires proof 12 of a fact the other does not.” Swafford, 1991-NMSC-043, ¶ 10 (internal quotation 13 marks omitted). “If that test establishes that one statute is subsumed within the other, 14 the inquiry is over and the statutes are the same for double jeopardy 15 purposes—punishment cannot be had for both.” Id. ¶ 30. When punishment cannot 16 be had for both, “[t]he general rule requires that the lesser offense be vacated . . . 17 [and] . . . the degree of felony . . . is an appropriate measure of legislative intent 18 regarding which of two offenses is a greater offense.” Swick, 2012-NMSC-018, ¶ 31 19 (third omission in original) (internal quotation marks and citation omitted). “If one 19 1 statute requires proof of a fact that the other does not, then the Legislature is 2 presumed to have intended a separate punishment for each statute without offending 3 principles of double jeopardy. That presumption, however, is not conclusive and it 4 may be overcome by other indicia of legislative intent.” Silvas, 2015-NMSC-006, 5 ¶¶ 12-13 (internal quotation marks and citations omitted). 6 {30} “When applying Blockburger to statutes that are vague and unspecific or 7 written with many alternatives, we look to the charging documents and jury 8 instructions to identify the specific criminal causes of action for which the defendant 9 was convicted.” State v. Ramirez, 2016-NMCA-072, ¶ 18, 387 P.3d 266, cert. denied, 10 2016-NMCERT-___ (No. S-1-SC-35949, July 20, 2016). The jury instructions in the 11 present case for the CSP II-felonies required the jury to find that Defendant caused 12 Victim to engage in fellatio and anal intercourse during the commission of 13 kidnapping or distribution of a controlled substance to a minor or contributing to the 14 delinquency of a minor. The jury instruction for the separate crime of kidnapping 15 required the jury to find that Defendant took, restrained, or transported Victim by 16 force, intimidation, or deception with the intent to hold Victim against his will to 17 inflict a sexual offense on him. 18 {31} In comparing the two offenses of CSP II-felony and kidnapping as charged, we 19 look to Montoya, 2011-NMCA-074, ¶ 42, as instructive. In Montoya, this Court 20 1 considered whether the defendant’s right to be free from double jeopardy was 2 violated when he was convicted of both CSP II-felony and the associated felony of 3 either aggravated burglary or kidnapping. Id. ¶ 28. After holding that the conduct 4 underlying the CSP II-felony conviction and the aggravated burglary conviction was 5 not unitary, but that the conduct underlying the CSP II-felony conviction and 6 kidnapping conviction could be unitary, this Court turned to legislative intent. Id. 7 ¶¶ 34, 39-40. In evaluating legislative intent, we looked to the jury instructions 8 provided for the CSP II-felony count and the kidnapping count and determined that 9 the CSP II-felony instruction “required the jury to find that [the d]efendant caused 10 [the v]ictim to engage in sexual intercourse during the commission of [kidnapping] 11 or aggravated burglary.” Id. ¶ 41. Per the jury instructions, this Court concluded that 12 CSP II-felony required proof of all of the elements of kidnapping, and thus the 13 kidnapping conviction was subsumed within the CSP II-felony conviction. Id. ¶ 42. 14 {32} Here, similar to Montoya, our analysis of the jury instructions for the CSP II- 15 felony and kidnapping charges supports a conclusion that kidnapping is subsumed 16 within the CSP II-felony convictions. See id. We therefore remand to the district court 17 with instructions to vacate Defendant’s conviction for the lesser offense, see id. ¶ 43, 18 which means “vacat[ing] the conviction carrying the shorter sentence.” State v. 19 Montoya, 2013-NMSC-020, ¶ 55, 306 P.3d 426. Under the facts of this case, because 21 1 Defendant’s conviction for kidnapping was a first degree felony conviction and his 2 convictions for CSP II-felony were second degree felony convictions, the CSP II3 felony convictions are the lesser offenses. We, therefore, instruct the district court to 4 vacate the CSP II-felony convictions, leaving the kidnapping conviction.3 See 5 Montoya v. Driggers, 2014-NMSC-009, ¶ 9, 320 P.3d 987 (noting that the district 6 court complied with this Court’s mandate to vacate the lesser conviction of CSP II7 felony because, between CSP II-felony and kidnapping (first degree), CSP II-felony 8 was the lesser conviction); Swick, 2012-NMSC-018, ¶ 31 (“The general rule requires 9 that the lesser offense be vacated . . . [and] . . . the degree of felony . . . is an 10 appropriate measure of legislative intent regarding which of two offenses is a greater 11 offense.” (third omission in original) (alteration, internal quotation marks, and 12 citation omitted)). 13 CONCLUSION 14 15 16 17 18 19 20 21 22 23 3 We acknowledge that stating the kidnapping is subsumed, while holding that kidnapping was the greater offense as compared to CSP II-felony, seems irregular. “Subsume” means to “include or place something within something larger or more comprehensive[.]” Merriam-Webster’s Collegiate Dictionary 490 (11th ed. 2005). Yet here we are also holding that the subsumed offense is the greater offense. As noted by our Supreme Court in Montoya, 2013-NMSC-020, ¶ 56, “as a matter of policy, it would be unacceptable for us to hold that where a person’s criminal conduct would have violated either of two statutes, a defendant can escape liability for the one carrying the greater punishment by committing the crime in such a manner as to also violate the statute carrying the lesser penalty.” 22 1 {33} For the reasons set forth in this opinion, we remand to the district court with 2 instructions to vacate Defendant’s CSP II-felony convictions. We affirm the district 3 court’s judgment in all other respects. 4 {34} IT IS SO ORDERED. 5 6 __________________________________ JONATHAN B. SUTIN, Judge 7 WE CONCUR: 8 _______________________________ 9 M. MONICA ZAMORA, Judge 10 _______________________________ 11 STEPHEN G. FRENCH, Judge 23

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