State v. Bice

Opinion

This memorandum opinion was not selected for publication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. A-1-CA-34978 5 JAYSON BICE, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Briana H. Zamora, District Judge

9 Hector H. Balderas, Attorney General 10 Marko D. Hananel, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender 14 Nina Lalevic, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 BOHNHOFF, Judge. 19 {1} Defendant Jayson Bice was a laboratory technician for an Albuquerque 20 company that performs alcohol and drug testing services. He was prosecuted for

2

1 using his position to try to obtain sexual favors from women. A jury convicted him 2 of three counts of extortion pursuant to NMSA 1978, Section 30-16-9 (1963), and 3 two counts of bribery of a witness pursuant to NMSA 1978, Section 30-24-3.1 4 (1991). Defendant makes two arguments on appeal: (1) the evidence was 5 insufficient to support his convictions; and (2) the convictions for both bribery and 6 extortion violated double jeopardy and in any event are mutually exclusive crimes. 7 For the following reasons, we affirm. 8 BACKGROUND 9 {2} Evidence presented over the course of Defendant’s two-week trial 10 established the following. 11 {3} Antoinette Osborne. Ms. Osborne testified for the State. She is a special 12 education teacher for Albuquerque Public Schools. She was arrested for driving 13 while intoxicated. While in custody, she was asked if she would like to have an 14 independent blood draw. She accepted the offer and then found the number for 15 Defendant’s company in the phone book. Defendant answered her call, and he 16 came to the jail to conduct the blood draw. 17 {4} Ms. Osborne did not hear from Defendant again until a month later when he 18 called her and told her there were some discrepancies in her blood; he invited her 19 to come to his office to discuss them. Defendant told Ms. Osborne that he was

3

1 open twenty-four hours a day and that she could come that evening, but not to let 2 anyone know that she was coming. 3 {5} Ms. Osborne brought her friend, Kaitlyn Houston, with her to Defendant’s 4 office. Defendant told Ms. Houston to stay in the waiting room and led Ms. 5 Osborne into another room. Defendant told Ms. Osborne that she stuck out in his 6 mind because she was a teacher and he knew that she did not want to lose her job. 7 Defendant told her that he wanted to help her and did not “do this for everybody.” 8 Defendant continued to mention Ms. Osborne’s job, and told her that he could 9 change her blood results because he had the power to “fix it.” Defendant told her 10 he was going to do everything he could do to make sure that her scores were lower 11 to help her keep her job. Defendant made clear that he could make the results 12 lower or higher. 13 {6} Ms. Osborne then asked how much money Defendant wanted to change her 14 blood test results. He told her that he could not accept money because that would 15 be a bribe. Ms. Osborne stated that she then asked Defendant how she would pay 16 for this if he did not accept money, to which he responded, “You’re a smart girl. 17 You have a great head on your shoulder[s]. You’re a smart girl. You’re going to do 18 whatever you have to do to get this off of your record. And we will make a deal, 19 and we’ll figure it out together. You’re a smart girl.” Defendant told Ms. Osborne

4

1 he was going to do more tests and then they would figure out when she would 2 come back to “start our deal.” 3 {7} Ms. Osborne met with her lawyer the next day, and her lawyer immediately 4 took her to the district attorney’s office. While there, she placed a phone call to 5 Defendant, which was recorded. 6 {8} During the call, Defendant told Ms. Osborne that he could possibly draw 7 another blood sample from her. Defendant told Ms. Osborne that the night before 8 when they had met he was “trying to dance around, . . . everything[,]” however, he 9 wanted to get it to “where everything [would] work out.” Ms. Osborne asked 10 Defendant what would happen if she was unable to get better results, to which 11 Defendant responded that she was “going to get a better result than [she] had” and 12 that it was not “going to be a problem at all.” Defendant then stated, “I know 13 you’re a school teacher and you want this. But, inevitably, you know, I don’t want 14 any cash coming from your hands to mine. You know what I mean?” He further 15 stated, “I know you get the gist of . . . what I was saying[,] if you don’t then I can’t 16 help you. I don’t know how else to say it than that[.]” 17 {9} Ms. Osborne made another recorded call to Defendant to set up a meeting 18 with him. Ms. Osborne told Defendant that she told another teacher about 19 everything but that teacher was the only other person who knew. Defendant 20 responded that she should not tell too many people because she did not want to end

5

1 up in the Albuquerque Journal. They then arranged for Ms. Osborne to come to 2 Defendant’s office that day. 3 {10} During the meeting Ms. Osborne wore recording equipment that law 4 enforcement had provided her. After briefly discussing new and lower test results 5 that Defendant had for Ms. Osborne, Defendant told her that he could and wanted 6 to help her. He told her that she was a “smart girl” and that she had a “good head 7 on [her] shoulders.” Ms. Osborne then asked whether she would have to engage in 8 sexual acts with him, to which he responded affirmatively. They then discussed 9 specific sex acts, and the number of sex acts, he would expect. Defendant indicated 10 that the lower Ms. Osborne expected her score to be, the more sex acts he would 11 expect from her. 12 {11} During the conversation, Defendant mentioned Ms. Osborne’s friend, Ms. 13 Houston. Ms. Osborne explained that both of them “know . . . what’s going on.” 14 She indicated that Ms. Houston wanted to help, but perhaps not enough to have sex 15 with Defendant. Ms. Osborne asked if this meant that she was going to have to “do 16 more like sexual things with [Defendant],” and Defendant responded, “No.” 17 {12} Ms. Osborne testified that when she first met Defendant she told him she 18 was worried about losing her job and then after that Defendant continually brought 19 up the chance of her losing her job—“[Defendant] let me know that [my job] was 20 being held over my head.” Ms. Osborne elaborated that Defendant held her job

6

1 over her head “[j]ust by talking several times about how important my job was to 2 me, kept reminding me, and then telling me, obviously in some of the transcript, 3 about being in the Albuquerque Journal, just kind of really making it clear to me 4 that I needed help because of my job . . . repeating that over and over.” Ms. 5 Osborne felt like Defendant was using her job as leverage. She testified that she 6 was terrified that Defendant had all of her personal information and might be able 7 to find her. 8 {13} Kaitlyn Houston. Ms. Houston testified for the State. She went with Ms. 9 Osborne to meet with Defendant to discuss Ms. Osborne’s test results. When they 10 arrived at Defendant’s office, Defendant separated them and took Ms. Houston to a 11 small room. Defendant told her she was a good friend to Ms. Osborne and she 12 would do anything to help Ms. Osborne. Defendant wanted to take Ms. Houston’s 13 blood to switch it with Ms. Osborne’s blood to make Ms. Osborne’s blood alcohol 14 level lower. Defendant told Ms. Houston many times that “[y]ou’re a smart girl; 15 you have a good head on your shoulders[, y]ou want to help your friend in any way 16 that you can.” Defendant refused to take money; when Ms. Houston asked him if 17 he was talking about sex, he would never directly answer, but he also never denied 18 that he was talking about sex. Defendant instructed Ms. Houston not to tell Ms. 19 Osborne about their conversation. Defendant stated, “We have an agreement” 20 multiple times and also told Ms. Houston that “[i]t’s going to be a big payment[.]”

7

1 {14} Ms. Houston made a phone call to Defendant that was recorded. The 2 conversation began with Ms. Houston asking Defendant, “So like I know you 3 won’t accept cash–would you like accept another kind of payment?” Defendant 4 responded, “Well, yeah.” Later in the conversation Ms. Houston asked, “It’s like if 5 we help you out, you’ll help her out?” Defendant responded, “Yeah.” 6 {15} Ms. Houston testified that Defendant made himself clear that he was going 7 to get something from her by telling her that they were going to come to an 8 agreement to help Ms. Osborne. On multiple occasions Defendant mentioned the 9 possibility of Ms. Osborne losing her job and the fact that she had just purchased a 10 house. Ms. Houston understood that the payment for lowering Ms. Osborne’s 11 blood alcohol level was going to be sex. 12 {16} Griselda Quezada. Ms. Quezada testified for the State. She worked at an 13 airport parking lot. She met Defendant when he randomly tested her for drugs at 14 work as a requirement of her job. After conducting the test, Defendant came back 15 to Ms. Quezada’s workplace and told her that the test was positive for cocaine. She 16 was surprised because she did not use cocaine and she had never failed a drug test 17 before. Ms. Quezada asked if she could be re-tested, and Defendant said she could 18 if she would come to his office after she got off work. 19 {17} Ms. Quezada’s husband went with her to Defendant’s office that evening 20 after she finished work. Ms. Quezada and Defendant went into the office while her

8

1 husband waited in the car. Defendant told her that he believed she did not do drugs 2 and that she likely came in contact with it through her husband. Defendant told her 3 the computer that he used to access her results was locked and she needed to come 4 back later that week by herself. Defendant said she had a good head on her 5 shoulders and that they could come to a mutual agreement. He added that he 6 wondered whether, if he gave her bosses the original results, they would fire her or 7 feel sorry for her. The conversation ended with Defendant telling Ms. Quezada to 8 come back by herself when the business was closed. Defendant kept looking at her 9 chest during their conversation and when Defendant stood up to leave he appeared 10 to have an erection. 11 {18} In response to being asked how she knew Defendant wanted sex, Ms. 12 Quezada responded, “[H]e kept staring at my chest, the erection part. He kept 13 saying, we can come to a mutual agreement. He never once asked me for money. 14 He asked me to come back myself when the business was closed. And that he 15 would do—I remember he said, I’ll do this, this one time for you.” When asked, 16 “When you were having the conversation [with Defendant] about the possibility 17 that you would be fired for this, did you feel like he was using your job as 18 leverage?” Ms. Quezada responded that she “kind of did.” Her understanding was 19 that she was supposed to have sex with Defendant in order for him to lower the 20 levels of drugs in her drug test sample. When asked whether Defendant ever told

9

1 her that if she did not have sex with him then he would do something to her, she 2 answered, “He kept asking if I think [my employer] will feel sorry for me[.]” 3 {19} The next day Ms. Quezada told her boss what had happened that night with 4 Defendant and then she called the police. Ultimately, it was established that the 5 cocaine level generated in Ms. Quezada’s drug test was only .73 nanograms. A 6 level of 300 nanograms or less is considered a negative result. Thus, contrary to 7 what Defendant told Ms. Quezada, she never had a positive drug test result. 8 {20} The jury returned a verdict of guilty on all counts: one count each of 9 extortion and bribery with respect to Ms. Osborne and Ms. Houston, and one count 10 of extortion with respect to Ms. Quezada. 11 DISCUSSION

12 Defendant’s Convictions for Extortion and Bribery Are Supported by 13 Sufficient Evidence

14 I. Standard of Review 15 {21} “To the extent Defendant asks us to interpret our criminal statute[s], that 16 presents a question of law which is reviewed de novo on appeal.” State v. Chavez, 17 2009-NMSC-035, ¶ 10, 146 N.M. 434, 211 P.3d 891. “After reviewing the 18 statutory standard, we apply a substantial evidence standard to review the 19 sufficiency of the evidence at trial.” Id. ¶ 11. 20 {22} “We review the evidence introduced at trial to determine whether substantial 21 evidence of either a direct or circumstantial nature exists to support a verdict of

10

1 guilt beyond a reasonable doubt with respect to every element essential to a 2 conviction.” State v. Gipson, 2009-NMCA-053, ¶ 4, 146 N.M. 202, 207 P.3d 1179 3 (internal quotation marks and citations omitted). The reviewing court “view[s] the 4 evidence in the light most favorable to the guilty verdict, indulging all reasonable 5 inferences and resolving all conflicts in the evidence in favor of the verdict.” State 6 v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “Contrary 7 evidence supporting acquittal does not provide a basis for reversal because the jury 8 is free to reject [the d]efendant’s version of the facts.” State v. Rojo, 1999-NMSC- 9 001, ¶ 19, 126 N.M. 438, 971 P.2d 829. New Mexico appellate courts will not 10 invade the jury’s province as fact-finder by “second-guess[ing] the jury’s decision 11 concerning the credibility of witnesses, reweigh[ing] the evidence, or substitut[ing] 12 its judgment for that of the jury.” State v. Lucero, 1994-NMCA-129, ¶ 10, 118 13 N.M. 696, 884 P.2d 1175. “So long as a rational jury could have found beyond a 14 reasonable doubt the essential facts required for a conviction, we will not upset a 15 jury’s conclusions.” State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 16 P.3d 1057 (emphasis, internal quotation marks, and citation omitted). 17 II. Extortion 18 A. Implied Threats 19 {23} On appeal, Defendant does not dispute that the evidence demonstrated that 20 he was trying to obtain sex from Ms. Osborne, Ms. Houston, and Ms. Quezada.

11

1 Instead, Defendant contends that he did not explicitly threaten them as, he urges, 2 must be shown to prove extortion. He characterizes his statements as “vague,” and 3 maintains that “[a] finding of extortion should only be possible based upon 4 evidence of an explicit threat and [Defendant] never made such an explicit threat.” 5 Defendant cites to no authority requiring that a threat must be explicit in order to 6 support an extortion conviction, and, as such, we assume none exists. 1 See State v. 7 Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (stating that given no cited 8 authority, “[w]e assume no such authority exists”). 9 {24} “Our primary goal when interpreting statutory language is to give effect to 10 the intent of the [L]egislature.” State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 11 230, 141 P.3d 1284. “We do this by giving effect to the plain meaning of the words 12 of [the] statute, unless this leads to an absurd or unreasonable result.” State v. 13 Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801; see State v. 14 McWhorter, 2005-NMCA-133, ¶ 5, 138 N.M. 580, 124 P.3d 215 (“If the language 15 of the statute is clear and unambiguous, we must give effect to that language and 16 refrain from further statutory interpretation.”). The statutory definition of extortion 17 is broad:

1

In reply, Defendant seems to retreat from his unsupported contention that extortionate threats must be explicit, stating instead that “the threat should be explicit. There may be cases where the threat is implied, but in those cases, the threat should be clear.”

12

1 Extortion consists of the communication or transmission of any 2 threat to another by any means whatsoever with intent thereby to 3 wrongfully obtain anything of value or to wrongfully compel the 4 person threatened to do or refrain from doing any act against his will.

5 Any of the following acts shall be sufficient to constitute a 6 threat under this section:

7 ....

8 C. a threat to expose, or impute to the person threatened, or 9 another, any deformity or disgrace; 10 D. a threat to expose any secret affecting the person 11 threatened, or another[.]

12 Section 30-16-9 (emphasis added).2 This language encompasses, for purposes of 13 accomplishing extortion, a threat that is verbal, written, or even communicated 14 through a person’s actions. See State v. Barber, 1979-NMCA-137, ¶¶ 14, 18, 93 15 N.M. 782, 606 P.2d 192 (concluding that the defendant had threatened the victim 16 for purposes of Section 30-16-9 when the threat was not verbally communicated 17 but instead “result[ed] from [the] victim’s reasonable fear of additional violence 18 after he [had] been beaten”). 19 {25} “Threat,” however, is not defined in the extortion statute and thus we look to 20 the dictionary definition of the term. See State v. Lindsey, 2017-NMCA-048, ¶ 14, 21 396 P.3d 199 (“[O]ur courts often use dictionary definitions to ascertain the

2

The jury was instructed consistently with this statutory definition. In relevant part, the jury was instructed that the State must prove beyond a reasonable doubt that Defendant threatened to expose or imply the existence of a disgrace or to expose a secret of one of the victims or another intending to wrongfully compel one of the victims to do something she otherwise would not have done.

13

1 ordinary meaning of words that form the basis of statutory construction inquiries.” 2 (alteration, internal quotation marks, and citation omitted)). Black’s Law 3 Dictionary defines a “threat” as “a communicated intent to inflict harm or loss on 4 another or on another’s property, esp. one that might diminish a person’s freedom 5 to act voluntarily or with lawful consent; a declaration, express or implied, of an 6 intent to inflict loss or pain on another[.]” Black’s Law Dictionary 1708 (10th ed. 7 2014) (emphasis added); see also State v. Fernandez, 1994-NMCA-056, ¶ 35, 117 8 N.M. 673, 875 P.2d 1104 (considering the Black’s Law Dictionary definition of 9 “threat” in interpreting New Mexico’s intimidation of a witness statute). There is 10 no indication in the extortion statute that the Legislature meant to constrict the 11 ordinary meaning of “threat.” To the contrary, Section 30-16-9’s broad language— 12 i.e., that “[e]xtortion consists of the communication or transmission of any threat 13 to another by any means whatsoever”—suggests the opposite. Given the 14 unambiguous and broad language that our Legislature used to define the scope of 15 extortion in Section 30-16-9, as well as the plain meaning of the word “threat,” we 16 conclude that extortion may be premised on an implied threat.3

3

Defendant contends without citation to authority that in other jurisdictions statutory extortion is a lesser crime than robbery. He urges that, because our Legislature has made robbery and extortion equivalent crimes—that is, both are third degree felonies—New Mexico equates extortion to a crime of violence and, as such, the threat that underlies extortion “should be something more clear and unambiguous than suggestions that make the alleged victim feel nervous.” Rather than considering the severity of the punishment for the crime in question in

14

1 B. The Evidence of Defendant’s Extortionate Threats 2 {26} Antoinette Osborne. Substantial evidence supports the jury’s determination 3 that Defendant extorted Ms. Osborne. Defendant told Ms. Osborne that she stuck 4 out in his mind because she was a teacher and he knew that she did not want to 5 lose her job. Defendant continued to mention Ms. Osborne’s job, and told her that 6 he could change her blood results because he had the power to “fix it.” Defendant 7 made clear that he could make Ms. Osbourne’s results lower or higher. Defendant 8 continually brought up the prospect of Ms. Osborne losing her job—“[Defendant] 9 let [her] know [her job] was being held over [her] head.” The evidence further 10 established that Defendant was trying to compel Ms. Osborne to have sex with 11 him. 12 {27} Defendant argues that the information he had “was information the police or 13 employers already had,” thus suggesting that he could not have threatened to 14 expose a secret or disgrace. We disagree. There is no evidence that Albuquerque

construing a statute to determine the legislature’s will, see 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction, § 46:3, at 188 (7th ed.

rev. 2014), we look primarily to the statute’s plain language. See McWhorter, 2005-NMCA-133, ¶ 5 (“If the language of the statute is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.”). But see State v. Chavez, 2009-NMSC-035, ¶¶ 15-16, 146 N.M.

434, 211 P.3d 891 (considering the severity of the crime in construing the words “may endanger” in child endangerment statute (internal quotation marks omitted)).

Here, the unambiguous language that our Legislature used to define the scope of extortion—“the communication or transmission of any threat to another by any means whatsoever”—leads us to conclude, as already stated, that extortion may be premised on an implied threat.

15

1 Public Schools had any information about Ms. Osborne’s blood test results at the 2 time of Defendant’s conversations with her. Moreover, as stated, Defendant told 3 Ms. Osborne that he could either lower or raise her blood test results. Law 4 enforcement and Ms. Osborne’s employer obviously did not have the elevated test 5 results that Defendant suggested he was in a position to provide. 6 {28} The jury reasonably could have inferred that implicit in Defendant’s 7 discussion of Ms. Osborne’s job and his ability to make her test results lower or 8 higher was the threat that, if she refused to have sexual relations with him, he could 9 report an unfavorable blood alcohol test result and she could lose her employment. 10 See State v. Maes, 2007-NMCA-089, ¶ 12, 142 N.M. 276, 164 P.3d 975 (“We 11 determine whether the evidence supports any conceivable set of rational 12 deductions and inferences that logically leads to the finding in question.” (internal 13 quotation marks and citation omitted)). This evidence was sufficient to meet the 14 required elements of extortion: Defendant threatened to expose or imply the 15 existence of a disgrace—blood test results that could result in loss of her job— 16 intending thereby to wrongfully compel Ms. Osborne to have sexual relations with 17 Defendant. 18 {29} Kaitlyn Houston. There also was substantial evidence to support the jury’s 19 determination that Defendant extorted Ms. Houston by trying to compel her to 20 engage in sex with him in order to help her friend, Ms. Osborne, avoid loss of her

16

1 job. Defendant repeatedly raised with Ms. Houston the prospect of Ms. Osborne 2 losing her job. Because Ms. Osborne and Ms. Houston had been discussing their 3 dealings with Defendant, the jury could infer that Ms. Houston knew of 4 Defendant’s implied threats to report Ms. Osborne’s adverse blood test results. 5 And the jury heard testimony that Defendant intimated to Ms. Houston that she 6 should have sex with him in order to help Ms. Osborne: “[y]ou’re a smart girl. You 7 have a good head on your shoulders[, y]ou want to help your friend in any way that 8 you can.” 9 {30} Defendant argues that Ms. Houston’s “relationship to any alleged secret or 10 disgrace [was] too attenuated.” However, the extortion statute encompasses “a 11 threat to expose, or impute to the person threatened, or another, any deformity or 12 disgrace.” Section 30-16-9(C) (emphasis added). The statute thus expressly 13 contemplates a situation where the victim’s relationship with another person is 14 leveraged for exploitation. Here, the jury reasonably could determine that 15 Defendant implicitly threatened to disclose unfavorable blood test results for Ms. 16 Osbourne that would have adverse consequences for her career if Ms. Houston did 17 not have sexual relations with him. See Maes, 2007-NMCA-089, ¶ 12. As such, 18 there was sufficient evidence of extortion against Ms. Houston. 19 {31} Griselda Quezada. Substantial evidence also supported Defendant’s 20 conviction of extortion against Ms. Quezada. Defendant told Ms. Quezada that if

17

1 he gave her bosses the original drug test results, which he falsely represented 2 showed cocaine in her system, that he wondered if they would fire her or instead 3 feel sorry for her. Defendant told Ms. Quezada that she had a good head on her 4 shoulders and that they could come to a mutual agreement. However, he never 5 once asked her for money, but requested that she return by herself when the 6 business was closed. 7 {32} A reasonable jury could infer from this evidence that implicit in Defendant’s 8 stated concern about Ms. Quezada’s job was a threat to expose her drug test results 9 to compel her to have sexual relations with him. See Maes, 2007-NMCA-089, ¶ 12. 10 This evidence was sufficient to meet the required elements of extortion: Defendant 11 threatened to expose or imply the existence of a disgrace—Ms. Quezada’s blood 12 results that could result in loss of her job—intending to wrongfully compel Ms. 13 Quezada to have sexual relations with Defendant. 14 III. Bribery 15 {33} Defendant challenges his bribery convictions, arguing that they, too, are not 16 supported by substantial evidence. Since Defendant presents no challenge to the 17 bribery statute, we review the sufficiency of the evidence against the jury 18 instructions. See State v. Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d 517 19 (“[J]ury instructions become the law of the case against which the sufficiency of

18

1 the evidence is to be measured.” (internal quotation marks and citation omitted)). 2 The jury instruction for Defendant’s bribery charges stated:

3 For you to find . . . Defendant guilty of acceptance of a bribe by 4 a witness as charged in Count 2 [and in Count 4], the [s]tate 5 must prove to your satisfaction beyond a reasonable doubt each 6 of the following elements of the crime:

7 1. [Defendant], was a witness or was likely to become a witness in 8 any judicial, administrative, legislative or other proceeding;

9 2. [Defendant] did receive, agree to receive, or solicit any bribe or 10 anything of value, a sexual act, from Antoinette Osborne [and Caitlin 11 Houston], to testify falsely or abstain from testifying to any fact in any 12 judicial, administrative, legislative or other proceeding.

13 3. This happened in New Mexico on or about 18th day of 14 December, 2012.

15 {34} In challenging his convictions for bribery of Ms. Osborne and Ms. Houston, 16 Defendant does not dispute that he solicited sexual acts from these women. He also 17 does not dispute that he told Ms. Osborne that he anticipated being a witness. 18 Instead, Defendant insists that he had never testified as anything other than a 19 custodian of records and did not have the qualifications to give expert testimony; 20 and he further argues that there was no evidence that he actually would, or likely 21 would, have become a witness. Defendant’s argument thus focuses on the first 22 element of the crime as charged—that Defendant was or likely would become a 23 witness.

19

1 {35} Ms. Osborne testified that Defendant told her that he anticipated being a 2 witness in her case:

3 Q. Now, did he tell you that he anticipated being a witness in your 4 case?

5 A. Yes. 6 Q. How did he do that?

7 A. He said that if my lawyer wanted to use the results that he 8 would have to come to, I guess—not the trial, but to court for 9 me. And so that’s why there could be no money exchanged, 10 because if they asked him in court, he wouldn’t be able to—he 11 wouldn’t want to lie and say that I had given him money.

12 Elsewhere in her testimony Ms. Osborne explained that, in response to her 13 question about how she would pay Defendant for lowering her blood test scores, he 14 told her that he could not take money because that would be a bribe and “would 15 look very bad in court.” 16 {36} Defendant did not tell Ms. Osborne that he would be an expert as opposed to 17 a lay witness. And the jury instruction did not require Defendant to be an expert 18 witness. Because Defendant came to the jail the night of Ms. Osborne’s arrest for 19 the purpose of conducting an independent blood test, the jury could determine that 20 he was at a minimum a potential witness to testify about the chain of custody for 21 the independent blood test. We will not invade the jury’s province as fact-finder, 22 see State v. Lucero, 1994-NMCA-129, ¶ 10, 118 N.M. 696, 884 P.2d 1175, and

20

1 instead we “defer to the jury’s evaluation of the evidence,” see Maes, 2007- 2 NMCA-089, ¶ 12. We therefore conclude that substantial evidence supported 3 Defendant’s convictions for bribery.

4 Defendant’s Convictions for Both Bribery and Extortion Do Not Violate His 5 Double Jeopardy Rights and Are Not Mutually Exclusive

6 I. Double Jeopardy 7 {37} Defendant challenges his convictions for both extortion and bribery on the 8 ground that they violate his right under the Fifth Amendment to the United States 9 Constitution to not be put in jeopardy twice for the same offense. We generally 10 apply a de novo standard of review to the constitutional question of whether there 11 has been a double jeopardy violation. See State v. Andazola, 2003-NMCA-146, ¶ 12 14, 134 N.M. 710, 82 P.3d 77. 13 {38} The Double Jeopardy Clause protects against, among other kinds of harm, 14 “multiple punishments for the same offense.” State v. Montoya, 2013-NMSC-020, 15 ¶ 23, 306 P.3d 426. The double jeopardy prohibition against multiple punishments, 16 on which Defendant relies, is implicated when a defendant is charged with 17 violations of multiple statutes for the same conduct, referred to as 18 “double[]description” cases. See State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 19 N.M. 211, 131 P.3d 61. 20 {39} For “double[]description” cases, we apply the two-part test set forth in 21 Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223: (1) whether

21

1 the conduct is unitary and (2) if so, whether the Legislature intended to punish the 2 offenses separately. See State v. Silvas, 2015-NMSC-006, ¶ 9, 343 P.3d 616. “Only 3 if the first part of the test is answered in the affirmative, and the second in the 4 negative, will the [D]ouble [J]eopardy [C]lause prohibit multiple punishment in the 5 same trial.” Id. (internal quotation marks and citation omitted)). 6 A. Unitary Conduct 7 {40} Defendant argues that his convictions for bribery and extortion are based on 8 unitary conduct—Defendant’s “vague statements” showing that he was interested 9 in sex with Ms. Osborne and Ms. Houston and that he might be able to do 10 something favorable with Ms. Osborne’s test results. We are not persuaded. 11 {41} Conduct is not unitary if “examination of the facts presented at trial establish 12 that the jury reasonably could have inferred independent factual bases for the 13 charged offenses.” Swafford, 1991-NMSC-043, ¶ 29. “When determining whether 14 [a d]efendant’s conduct was unitary, we consider whether [his or her] acts are 15 separated by sufficient indicia of distinctness.” DeGraff, 2006-NMSC-011, ¶ 27 16 (internal quotation marks and citation omitted).

17 If two events are sufficiently separated by either time or space (in the 18 sense of physical distance between the places where the acts 19 occurred), then it is a fairly simple task to distinguish the acts. Time 20 and space considerations, however, cannot resolve every case and 21 resort must be had to the quality and nature of the acts or to the 22 objects and results involved.

22

1 Swafford, 1991-NMSC-043, ¶ 28. “Conduct is separate and distinct and not unitary 2 if events are sufficiently separated by either time or space, or the quality and nature 3 of the acts or the objects and results involved are distinguishable[.]” State v. 4 Contreras, 1995-NMSC-056, ¶ 14, 120 N.M. 486, 903 P.2d 228 (emphasis added) 5 (omission, internal quotation marks, and citation omitted); accord State v. 6 Livernois, 1997-NMSC-019, ¶ 20, 123 N.M. 128, 934 P.2d 1057. But cf. Silvas, 7 2015-NMSC-006, ¶ 10 (“Conduct is unitary when not sufficiently separated by 8 time or place, and the object and result or quality and nature of the acts cannot be 9 distinguished.” (emphasis added)). 10 {42} While the objective, sexual gratification, was the same, Defendant’s bribery 11 and extortion crimes were differentiated by their means, that is, the quality and 12 nature of the acts. Defendant bribed Ms. Osborne and Ms. Houston by proposing to 13 generate and testify about more favorable test results in exchange for their 14 agreement to engage in sex with him. Defendant extorted Ms. Osborne and Ms. 15 Houston by threatening unmodified—or even higher and thus less favorable—test 16 results that would place Ms. Osborne’s employment at risk. 17 {43} This distinction between the two crimes is reflected in the prosecutor’s 18 closing argument. In arguing the grounds for convicting Defendant of extortion, he 19 urged that “[Defendant] had tried to get her to do something [Ms. Osborne] 20 wouldn’t have done, and he used her job as leverage.” He further stated:

23

1 I’m going to specifically talk about extortion right now— 2 [Defendant] called it tricks—if anyone is gaining information from 3 these women and using it against them. Ms. Osborne told you that she 4 was a teacher and she was worried about her job. He used it to play on 5 her emotions, to threaten her with a higher blood score that she could 6 lose [her] job. It’s consistent throughout these transcripts to get her to 7 have sex with him. . . .

8 He did the same thing with Ms. Houston, playing on the friend, 9 that her friend could lose her job, to get her to have sex with him[.]

10 On the bribery count, the prosecutor stated, “[h]ow is the defendant going to 11 abstain from testifying to any fact? . . . He[ is] going to testify to the lower [test 12 result].” The prosecutor further stated, “[Defendant was] telling these women that 13 he’s going to testify for them, how do we know that? He said, ‘this will look bad.’ 14 I don’t want to be in a position where I’m asked [in court] if you paid for these 15 results.” 16 {44} Defendant thus committed the bribery with a carrot—an offer to provide 17 testimony about favorable test results—and the extortion with a stick—a threat to 18 disclose unmodified or unfavorable test results. The fact that these tactics were 19 employed in the same or related conversations does not blur or otherwise diminish 20 their distinct natures. Thus, the facts presented at trial establish that the jury 21 reasonably could have inferred independent factual bases for the charged offenses. 22 We therefore conclude that Defendant’s criminal conduct was not unitary.

24

1 B. Legislative Intent 2 {45} We acknowledge that Defendant’s statements which were the basis for his 3 extortion and bribery convictions may have been uttered during the same 4 conversations, and thus may not have been materially separated in time and space. 5 But even if we assume unitary conduct, see, e.g., State v. Franco, 2005-NMSC- 6 013, ¶ 11, 137 N.M. 447, 112 P.3d 1104 (“[B]ecause we presume the conduct was 7 unitary, we proceed to the second part of the Swafford analysis to determine 8 whether the Legislature intended to allow multiple punishments based on the facts 9 and circumstances of this case.”), we conclude our Legislature intended to punish 10 the crimes of extortion and bribery separately and thus Defendant does not satisfy 11 the second prong of the Swafford test. 12 {46} In analyzing legislative intent in the double jeopardy context, our Supreme 13 Court has stated:

14 [W]e first look to the language of the statute itself. If the statute does 15 not clearly prescribe multiple punishments, then the rule of statutory 16 construction established in Blockburger v. United States, 284 U.S. 299 17 . . . (1932) applies.

18 Under Blockburger, the test to be applied to determine whether 19 there are two offenses or only one, is whether each provision requires 20 proof of a fact which the other does not. If the statute is vague and 21 unspecific, or written in the alternative, courts must consider the 22 [s]tate’s legal theory in assessing whether each provision requires 23 proof of a fact which the other does not. 24 If each statute requires proof of a fact that the other does not, it 25 may be inferred that the Legislature intended to authorize separate

25

1 punishments under each statute. However, this is only an inference 2 that leads to an examination of other indicia of legislative intent. 3 State v. Swick, 2012-NMSC-018, ¶¶ 11-13, 279 P.3d 747 (internal quotation marks

4 and citations omitted). 5 {47} Guided by this analytical framework, we note first that New Mexico’s 6 extortion and bribery by witness statutes, Sections 30-16-9 and 30-24-3.1, 7 respectively, do not clearly prescribe multiple punishments. Cf. State v. Gutierrez, 8 2011-NMSC-024, ¶¶ 55, 55 n.2, 150 N.M. 232, 258 P.3d 1024 (noting that statutes 9 prohibiting armed robbery and unlawful taking of vehicle do not expressly provide 10 for multiple punishments, while statute dealing with various forms of credit card 11 crimes does so provide). 12 {48} Second, manifestly, Sections 30-16-9 and 30-24-3.1 each requires proof of a 13 fact—indeed, multiple facts—that the other does not. Extortion requires (1) a threat 14 communicated (2) with the intent to obtain anything of value or to compel the 15 victim to do something that she otherwise would not have done. Section 30-16-9. 16 Bribery by witness requires that a person (1) who is or is likely to become a 17 witness (2) receives, agrees to receive or solicits a bribe or anything of value (3) to 18 testify falsely, or abstain from testifying in a legal proceeding or abstain from 19 reporting to the government information regarding a crime. Section 30-24-3.1. 20 {49} Third, we note that both statutes are written in the alternative. Defendant 21 was charged with extortion under Section 30-16-9(C) and (D), which specify that

26

1 the subject threats are “to expose, or impute to the person threatened, or another, 2 any deformity or disgrace” or “to expose any secret affecting the person 3 threatened, or another[,]” respectively. He was charged with bribery of a witness 4 under Section 30-24-3.1(A)(1), which specifies that the quid pro quo for the bribe 5 is “to testify falsely or to abstain from testifying to any fact” in any legal 6 proceeding. Thus, we must consider the State’s legal theory and not just the 7 elements of the crime as set forth in the statute. Under the State’s legal theory as 8 reflected in the jury instructions, it remains clear that each charge required proof of 9 facts that the other did not. To prove extortion, the State had to establish that 10 Defendant made threats to expose a secret or disgrace of the victims and thereby 11 compel them to do something—engage in sex with him—that they otherwise 12 would not have done. To prove bribery, the State had to establish that Defendant 13 was or was likely to be a witness, and he solicited sexual acts from them in 14 exchange for testifying falsely or abstaining from testifying in a legal proceeding. 15 {50} Fourth, we look to other indicia that sheds light on whether the Legislature 16 intended to punish these crimes separately.

17 Statutes directed toward protecting different social norms and 18 achieving different policies can be viewed as separate and amenable 19 to multiple punishments. . . . If several statutes are not only usually 20 violated together, but also seem designed to protect the same social 21 interest, the inference becomes strong that the function of the multiple 22 statutes is only to allow alternative means of prosecution.

27

1 Swafford, 1991-NMSC-043, ¶ 32. The intent that underlies Sections 30-16-9(C) 2 and (D), the extortion statute, is directed at protecting citizens from coercion, in 3 particular, from being forced to give up something of value or take action out of 4 fear that a disgrace, deformity, or secret will be disclosed. In contrast, the intent of 5 Section 30-24-3.1(A)(1) is directed at protecting the integrity of judicial and other 6 legal proceedings. The statutes are not necessarily violated together and are not 7 designed to protect the same social interest. 8 C. Conclusion 9 {51} The conduct that formed the basis for Defendant’s extortion and bribery 10 convictions was not unitary, and the Legislature intended to punish the offenses 11 separately. We therefore hold that Defendant was not put in jeopardy for the same 12 offense when he was convicted of both crimes. 13 II. Mutual Exclusivity 14 {52} Defendant argues that extortion and bribery are mutually exclusive and 15 therefore his convictions of both crimes cannot stand. We disagree. 16 {53} Defendant relies on State v. Hornbeck, 2008-NMCA-039, 143 N.M. 562, 17 178 P.3d 847. Importantly, in Hornbeck, the defendant was convicted of fraud and 18 embezzlement based on the same act: the victim’s delivery of a substantial sum of 19 money to the defendant. Id. ¶¶ 3, 5. This Court concluded that the defendant’s 20 convictions could not stand because the fraud and embezzlement crimes were

28

1 mutually exclusive. Id. ¶ 15. The two convictions were “fatally inconsistent” with 2 one another, because a finding of guilt on the fraud charge—that the property was 3 acquired unlawfully—negated an essential fact necessary to the finding of guilt on 4 the embezzlement charge—that the property was acquired lawfully and then later 5 unlawfully converted. Id. ¶¶ 12, 15. The same conclusion is not compelled here. 6 {54} Defendant argues that the jury was required to find an agreement between 7 himself and Ms. Osborne and Ms. Houston in order to convict him of bribery. 8 Defendant argues that such a finding is inconsistent with the jury’s necessary 9 finding with respect to his extortion convictions that he threatened Ms. Osborne 10 and Ms. Houston. Under the jury instructions relating to bribery, however, the jury 11 was permitted to reach a finding of guilt if “[Defendant] did receive, agree to 12 receive, or solicit any bribe or anything of value, a sexual act, from [victims], to 13 testify falsely or abstain from testifying[.]” (Emphasis added.) The jury 14 consequently needed only make a finding that Defendant solicited a bribe in order 15 to convict on this count. Such a finding is in no way inconsistent with a finding of 16 guilt on the extortion charge, and as discussed above, there was substantial 17 evidence upon which to convict Defendant of both extortion and bribery. We 18 therefore conclude that under the facts of this case, Defendant’s bribery and 19 extortion convictions are not mutually exclusive.

29

1 CONCLUSION 2 {55} We affirm Defendant’s convictions for bribery and extortion. 3 {56} IT IS SO ORDERED.

4 ________________________________________ 5 HENRY M. BOHNHOFF, Judge Pro Tempore

6 I CONCUR:

7 __________________________________ 8 M. MONICA ZAMORA , Chief Judge

JENNIFER L. ATTREP, specially concurring.

30

1 ATTREP, J., specially concurring. 2 {57} I concur with the result of today’s opinion, but write separately as I do not agree 3 with the majority’s conclusion that the conduct in this case is non-unitary. 4 {58} The majority concedes that the acts supporting Defendant’s bribery and extortion 5 convictions were not separated by time, space, object, or motive. See Swafford, 1991- 6 NMSC-043, ¶ 28. The majority, instead, attempts to differentiate Defendant’s conduct 7 by quality and nature. Without identifying what independent factual bases supported 8 Defendant’s extortion and bribery convictions, the majority asserts ipse dixit that 9 because Defendant stated both that he could increase or decrease Ms. Osborne’s blood 10 alcohol score, there is sufficient distinction between Defendant’s extortionate threats 11 and use of bribes to conclude that the conduct here was non-unitary. An examination of 12 the record, however, reveals that Defendant simultaneously discussed increasing and 13 decreasing Ms. Osborne’s score—in other words, Defendant’s tactics were 14 intermingled, intertwined, and largely indistinguishable. And the majority has identified 15 no demarcation in the record between Defendant’s use of a “stick” (a higher or 16 unmodified score) as opposed to a “carrot” (a lower score), nor have I found one. See 17 State v. Sanchez, 1996-NMCA-089, ¶ 9, 122 N.M. 280, 923 P.2d 1165 (noting that 18 “[b]efore . . . resolv[ing] the question of double jeopardy, [the reviewing court] first 19 [should] engage[] in an exhaustive review of the facts presented at trial to determine 20 whether the conduct was unitary”); see also State v. Saiz, 2008-NMSC-048, ¶ 34, 144

31

1 N.M. 663, 191 P.3d 521 (concluding that after “[l]ooking at the totality of the evidence 2 related to the two separate crimes, it was altogether reasonable for the jury to conclude 3 that [the d]efendant had first” committed kidnapping before slaying his victim), 4 abrogated on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 5 P.3d 783. Moreover, the majority cites to no case in which intermingled conduct like 6 Defendant’s has been held to be non-unitary. Notably, we have in the past held that 7 where the object of a defendant’s actions are the same, his conduct is unitary even 8 where there is a much clearer differentiation of the means used by the defendant than is 9 present in this case. See State v. LeFebre, 2001-NMCA-009, ¶ 18, 130 N.M. 130, 19 10 P.3d 825 (determining that the defendant’s actions were unitary where the defendant 11 had a singular purpose to evade officers, even though he evaded officers in two distinct 12 ways—by automobile and on foot). 13 {59} On the record before us today, I do not believe there is a “basis for determining 14 that Defendant’s conduct was not unitary.” State v. Caldwell, 2008-NMCA-049, ¶ 9, 15 143 N.M. 792, 182 P.3d 775. As such, I respectfully disagree with the majority’s 16 conclusion to the contrary. Nonetheless, because I agree with the majority’s evaluation 17 of the second element of Swafford’s double description analysis, I concur in the 18 majority’s ultimate conclusion that there is no double jeopardy violation in this case.

19 _______________________________ 20 JENNIFER L. ATTREP, Judge