State v. Elliott

Opinion

The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Clerk of the Court for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number:__________ 3 Filing Date: November 19, 2024 4 No. A-1-CA-40436 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v.

8 MAURY MONTEL ELLIOTT a/k/a 9 MAURY MONTEL ELLIOT,

10 Defendant-Appellant.

11 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 12 T. Glenn Ellington, District Court Judge

13 Raúl Torrez, Attorney General 14 Lee Green, Assistant Solicitor General 15 Santa Fe, NM

16 for Appellee

17 Bennett J. Baur, Chief Public Defender 18 Mary Barket, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant 1 OPINION 2 YOHALEM, Judge. 3 {1} Defendant Maury Montel Elliott appeals his convictions for contributing to 4 the delinquency of a minor (CDM), contrary to NMSA 1978, Section 30-6-3 (1990); 5 and criminal sexual penetration in the commission of a felony (CSP II-felony), 6 contrary to NMSA 1978, Section 30-9-11(E)(5) (2009). Defendant’s primary claim 7 is that his right to be free from double jeopardy was violated by his convictions for 8 both CDM and CSP II-felony, where CDM was also the predicate felony relied on 9 to increase what was otherwise criminal sexual penetration of a minor (CSPM), a 10 fourth degree felony, to CSP II-felony, a second degree felony. Defendant also 11 challenges the sufficiency of the evidence to support his CDM and CSP II-felony 12 convictions. Finally, Defendant contends that CDM is not an appropriate predicate 13 felony to support a CSP II-felony conviction because it is too generic and 14 nonspecific, or alternatively that, when CDM is the predicate felony, the use of force 15 or coercion should be included in the jury instructions as an essential element of CSP 16 II-felony. We conclude that Defendant’s convictions for both CDM and CSP II- 17 felony violate Defendant’s right to be free from double jeopardy. We, therefore, 18 vacate Defendant’s conviction for CDM. We otherwise affirm.

1 BACKGROUND 2 {2} The State presented the following evidence at Defendant’s trial. Defendant, 3 who was twenty-three years old at the time, and his adult friend, met fifteen-year- 4 old Victim, and Victim’s fifteen-year-old friend, one evening at the plaza in Santa 5 Fe, New Mexico. The two men approached the girls and offered them a drink of 6 alcohol from a bottle concealed in a brown paper bag. The two men and the two girls 7 chatted for about twenty minutes. When they left, Victim got both men’s Instagram 8 accounts. They planned to meet again at the plaza the following week. 9 {3} When that meeting did not work out, Defendant and his friend contacted 10 Victim through the friend’s Instagram account. During the conversation, Victim 11 mentioned that her mother would be out of town that night. Defendant, his friend, 12 and Victim made plans to meet that evening. 13 {4} Victim testified that, approximately ten minutes after her mother’s departure 14 for the night, she contacted one of the men and instructed him to pick her up at a 15 school near her house. Victim snuck out and walked to the school. When Victim 16 arrived at the school, the two men came up to her and handed her a glass container 17 of alcohol. The three got into Defendant’s friend’s car. 18 {5} Defendant’s friend drove around the downtown area, and eventually stopped 19 at a park where the three were alone. Victim and the two men got out of the car, sat 20 on a curb, and began passing the bottle of alcohol around, each taking a drink.

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1 Defendant’s friend was smoking marijuana, and drank less frequently than 2 Defendant and Victim, so Defendant and Victim passed the bottle back-and-forth, 3 each drinking from it. When Victim mentioned not knowing how to smoke 4 marijuana, Defendant inhaled smoke, created a tunnel with his hands (or with his 5 hand and Victim’s hand), connected one end of the tunnel to the end of his lips and 6 the other to Victim’s mouth, and blew the marijuana smoke directly into her mouth. 7 {6} Victim testified that, after a while, she could not hold her head up and had to 8 put her hands behind her on the curb in order to support herself. After another few 9 rounds of drinking, Victim testified she “couldn’t even walk straight” and was 10 “really out of it.” When asked how much she drank, Victim answered that she drank 11 “a lot for [her]” because she was “in and out [of consciousness] the whole night.” 12 {7} Victim fell down and vomited and one or both men (Victim could not 13 remember) helped Victim get up and get back into Defendant’s friend’s car. They 14 drove to Defendant’s apartment. When Victim tried to get out of the car, she 15 struggled, lacked balance, and could not walk on her own. Defendant’s friend helped 16 Victim out of the car and helped her walk up the stairs to Defendant’s apartment. 17 {8} Once in the apartment, Victim testified that she began to feel sick again. 18 Defendant helped Victim to the restroom and then to his bed. Defendant then lay 19 down on the opposite side of the bed, next to Victim. Defendant’s friend fell asleep 20 on the floor next to the bed.

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1 {9} Victim testified that she vomited again before losing consciousness. She woke 2 up to find Defendant taking off her shoes. She once again lost consciousness. The 3 next time she woke up, she was on her stomach, and Defendant was touching her on 4 the outside of her pants, rubbing and palming her buttocks, between her legs, and 5 her vagina. She described being scared, and either losing consciousness or “spacing 6 out” and not being aware of what was happening. 7 {10} The next time Victim woke up, she was still on her stomach and Defendant 8 was sliding her pants down. Defendant attempted to penetrate her with his penis, but 9 ended up poking the area between her anus and vagina instead. She once again lost 10 consciousness. The next time that she woke up, she was on her side, and Defendant 11 was behind her with his penis inside her vagina. After some time, Defendant said he 12 was going to ejaculate. Victim testified that she “snapped . . . back into reality” and 13 pushed him away. She turned around and saw Defendant’s friend asleep on the floor 14 beside the bed. Victim then remembered falling back asleep. 15 {11} On the morning of the next day, Defendant woke Victim up and told her that 16 his friend was going to take her back home. She testified that, during the car ride, 17 she felt dirty and disgusted with herself. Victim directed Defendant’s friend to drop 18 her off a block from her house, and she walked home. 19 {12} A few days later, Victim reported to a trusted school official that something 20 had happened to her. The school official contacted Victim’s mother and notified law

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1 enforcement. Victim told her mother and law enforcement what occurred. Later that 2 month, law enforcement interviewed Defendant. Defendant confirmed that he had 3 sexual intercourse with Victim, but claimed that the encounter was consensual. The 4 State introduced a recording of Defendant’s interview. Defendant did not testify at 5 trial. 6 {13} Defendant was convicted by the jury of CDM. The jury completed a special 7 verdict form unanimously finding CDM based on Defendant helping Victim drink 8 alcohol and use drugs. The jury also found Defendant guilty of CSP II-felony in the 9 commission of CDM. This appeal followed. 10 DISCUSSION 11 {14} We take up Defendant’s three claims of error in turn. First, we address the 12 sufficiency of the evidence, and conclude that the jury’s guilty verdicts for CDM 13 and CSP II-felony are supported by substantial evidence. Second, we turn to 14 Defendant’s double jeopardy challenge and conclude that his convictions for both 15 CSP II-felony and CDM violate Defendant’s right to be free from double jeopardy 16 and accordingly vacate his CDM conviction. Third, we address Defendant’s claim 17 that CDM is not an appropriate predicate felony to elevate CSP II-felony because it 18 is too generic and nonspecific or, alternatively, that the jury instruction for CSP II- 19 felony in the commission of CDM was flawed because the jury was not instructed 20 on what Defendant claims is an additional element: the use of force or coercion.

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1 Rejecting this argument as inconsistent with legislative intent, we affirm the CSP II- 2 felony conviction.

3 I. Sufficient Evidence Supports Defendant’s Convictions for CDM and CSP 4 II-Felony

5 {15} Defendant challenges the sufficiency of the evidence supporting his 6 convictions for CDM and CSP II-felony. Defendant contends that the evidence 7 presented at trial was insufficient to establish two elements of CDM: that Defendant 8 actively helped Victim drink alcohol and use drugs, and that Defendant’s conduct 9 “caused or encouraged [Victim] to conduct herself in a manner injurious to her 10 morals, health, or welfare.” Defendant also challenges the sufficiency of the 11 evidence of CSP II-felony, arguing that the evidence fails to establish that the sexual 12 intercourse was perpetrated “during the commission of [CDM],” or that “[t]he 13 commission of [CDM] assisted [D]efendant in causing [Victim] to engage in sexual 14 intercourse.” See UJI 14-954 NMRA (element 5). 15 A. Standard of Review 16 {16} “The test for sufficiency of the evidence is whether substantial evidence of 17 either a direct or circumstantial nature exists to support a verdict of guilty beyond a 18 reasonable doubt with respect to every element essential to a conviction.” State v. 19 Guerra, 2012-NMSC-027, ¶ 10, 284 P.3d 1076 (internal quotation marks and 20 citation omitted). “The reviewing court views the evidence in the light most 21 favorable to the guilty verdict,” id. (text only) (citation omitted), “resolv[ing] all

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1 disputed facts in favor of the [s]tate, indulg[ing] all reasonable inferences in support 2 of the verdict, and disregard[ing] all evidence and inferences to the contrary,” State 3 v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and 4 citation omitted). “We do not reweigh the evidence or substitute our judgment for 5 that of the fact[-]finder as long as there is sufficient evidence to support the verdict.” 6 State v. Gipson, 2009-NMCA-053, ¶ 4, 146 N.M. 202, 207 P.3d 1179. We also do 7 not “substitute our judgment for that of the [jury] concerning the credibility of 8 witnesses or the weight to be given their testimony.” State v. Nichols, 2006-NMCA- 9 017, ¶ 9, 139 N.M. 72, 128 P.3d 500 (internal quotation marks and citation omitted). 10 “The jury instructions become the law of the case against which the sufficiency of 11 the evidence is to be measured.” State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 12 (text only) (citation omitted). 13 B. The Evidence Supporting the Elements of CDM 14 {17} We first address Defendant’s contention that there was insufficient evidence 15 to convict him of CDM. The CDM instruction is written in the alternative, giving 16 the jury the choice of finding that Defendant: “helped [Victim] sneak out of her 17 home, and/or drink alcohol and/or use drugs.” See UJI 14-601 NMRA (element 1). 18 A special verdict form accompanied the instruction requiring the jury to report to the 19 court “which act or acts [the jurors] unanimously agreed that . . . Defendant 20 committed.” In the special verdict form, the jury unanimously found that Defendant

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1 helped Victim drink alcohol and use drugs. The jury was also instructed that they 2 must find that Defendant’s conduct “caused or encouraged [Victim] to conduct 3 herself in a manner injurious to her morals, health, or welfare.” See UJI 14-601 4 (element 2). 5 {18} As pertinent to the jury’s finding that Defendant helped Victim drink alcohol, 6 Defendant contends that the State failed to prove that Defendant “did anything other 7 than drink [Defendant’s friend’s] alcohol with her” and that “more than mere 8 presence may be required” for conduct to amount to CDM. Defendant concedes that 9 evidence that a defendant either provided alcohol to a minor or encouraged a minor 10 to drink alcohol would be sufficient for a CDM conviction. Because our review of 11 the evidence presented at trial shows that the evidence is sufficient to find that 12 Defendant provided alcohol to Victim and encouraged her to drink alcohol, we do 13 not address Defendant’s argument that the mere presence of an adult where minors 14 are drinking is insufficient to support a finding of CDM. 15 {19} Victim testified that Defendant and his friend handed her a bottle of fruit- 16 flavored alcohol when they first met up with her at the school near her house. After 17 a drive to a local park, Defendant, his friend, and Victim got out of the car in an 18 empty park, and sat down together on a curb. Defendant (and initially his friend) 19 repeatedly took drinks of alcohol from the bottle, and then passed it to Victim for 20 her to take a turn drinking from the bottle. When Defendant’s friend stopped

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1 drinking, Defendant continued to drink and to pass the bottle to Victim. Victim 2 described continuing to drink when the bottle was passed to her until she was “past 3 faded,” and could not walk on her own. Victim also testified that, prior to her 4 interactions with Defendant and his friend, she had never had large amounts of 5 alcohol and did not know how the amount she drank would affect her, so she 6 continued drinking each time the bottle was passed to her. 7 {20} This evidence is sufficient to support the jury’s verdict beyond a reasonable 8 doubt that Defendant both participated in handing the alcohol to Victim and 9 encouraged her to continue drinking until she was so drunk she could not stand up 10 and was in and out of consciousness at the time of the sexual intercourse. See State 11 v. Cuevas, 1980-NMSC-101, ¶ 4, 94 N.M. 792, 617 P.2d 1307 (even though alcohol 12 was bought and served by someone else, demonstrating how to drink to minors and 13 thereby encouraging drinking was sufficient to convict the defendant of CDM), 14 overruled in part on other grounds by State v. Pitts, 1986-NMSC-011, ¶ 9, 103 N.M. 15 778, 714 P.2d 582. 16 {21} We see no error in the jury’s finding that Defendant’s actions “helped” Victim 17 drink alcohol, and that his actions “caused or encouraged [Victim] to conduct herself 18 in a manner injurious to her morals, health, or welfare,” including submitting to 19 sexual intercourse. See UJI 14-601 (element 2).

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1 {22} The evidence of Defendant helping Victim to use drugs, which Defendant 2 separately challenges, also establishes that Defendant was more than a passive 3 bystander. Victim testified that, when she told Defendant she did not know how to 4 smoke marijuana from the pipe being used by Defendant and his friend, Defendant 5 inhaled marijuana into his mouth, created a tunnel with his hands (or with his hand 6 and Victim’s hand), and blew the marijuana smoke through the tunnel directly into 7 her mouth. Defendant relies on literature about marijuana that claims that it is 8 difficult to inhale sufficient marijuana from ambient smoke to become intoxicated. 9 We note that Defendant presented no expert testimony to establish this, see State v. 10 Hunter, 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296 (“Matters not of record 11 present no issue for review.”), and that, in any event, blowing smoke directly into 12 Victim’s mouth is not the same as merely inhaling ambient smoke. The jury was free 13 to use their knowledge and common sense to find that blowing marijuana smoke 14 directly into Victim’s mouth was sufficient to establish that Defendant “helped 15 [Victim] . . . use drugs,” see UJI 14-601 (element 1), and that Victim’s drug use 16 contributed to her intoxication and, like her alcohol use, caused her “to conduct 17 herself in a manner injurious to her morals, health or welfare.” See UJI 14-601 18 (element 2). Accordingly, sufficient evidence supports Defendant’s conviction for 19 CDM.

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1 C. The Evidence Supporting the Jury’s Findings That CSP II-Felony 2 Occurred “During the Commission of CDM” and That There Was a 3 Causal Connection

4 {23} Defendant next contends that the evidence presented by the State was 5 insufficient to convict him of CSP II-felony as charged because the alcohol and 6 marijuana were not “consumed sufficiently close in time” to establish that the 7 criminal sexual penetration “occurred in the course of another felony.” The jury was 8 instructed, in relevant part, that to convict Defendant of CSP II-felony it had to find 9 by proof beyond a reasonable doubt that Defendant “committed the act [of sexual 10 intercourse] during the commission of [CDM]” and “[t]he commission of [CDM] 11 assisted [D]efendant in causing [Victim] to engage in sexual intercourse.” See UJI 12 14-954 (elements 3, 5). 13 {24} Victim testified at trial that after the rounds of alcohol she drank in the park 14 and the marijuana she inhaled, she could no longer walk straight and was “past 15 faded.” Defendant’s friend testified that when they arrived at Defendant’s apartment 16 complex, Victim struggled to exit the vehicle, lacked balance, and could not walk. 17 Defendant’s friend, therefore, helped Victim walk up some stairs to Defendant’s 18 apartment. Victim testified that she was in and out of consciousness due to 19 intoxication during the events leading up to, during, and following the sexual 20 intercourse, and that she was not able to protest or stop Defendant. As discussed in 21 our review of Defendant’s CDM conviction, from this evidence, the jury could

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1 reasonably infer that Defendant’s conduct in helping Victim drink alcohol and use 2 marijuana contributed to Victim “conduct[ing] herself in a manner injurious to her 3 morals, health, or welfare,” in that she submitted to unlawful sexual intercourse later 4 that night. 5 {25} This same evidence is sufficient to support the jury’s finding that “[t]he 6 commission of [CDM] assisted [D]efendant in causing [Victim] to engage in sexual 7 intercourse.” See UJI 14-954 (element 5); see also State v. Stevens, 2014-NMSC- 8 011, ¶ 39, 323 P.3d 901 (“[H]old[ing] that when a CSP II[-felony] charge is based 9 on the commission of a felony, it must be a felony that is committed against the 10 victim of, and that assists in the accomplishment of, sexual penetration perpetrated 11 by force or coercion or against a victim who, by age or other statutory factor, gave 12 no lawful consent.” (emphasis added)). There is a causal nexus between Defendant’s 13 conduct in helping Victim to become intoxicated and Defendant’s conduct in 14 sexually assaulting Victim. The evidence shows that Defendant’s conduct in helping 15 Victim to become intoxicated resulted in Victim being only partially conscious and 16 unable to protest or defend herself from Defendant’s unwanted sexual intercourse. 17 In light of this, Defendant’s actions in contributing to Victim’s intoxication 18 facilitated the unlawful sexual intercourse, providing the nexus of causation between 19 the CDM and the criminal sexual penetration. See State v. Smith, 2001-NMSC-004, 20 ¶¶ 5, 13-15, 130 N.M. 117, 19 P.3d 254 (concluding that there was a sufficient causal

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1 connection to find that the victim’s death occurred “during the commission of false 2 imprisonment” when the false imprisonment was accomplished by forcing the victim 3 into a car, and the victim’s subsequent murder occurred in an isolated location after 4 driving the victim in the car); cf. State v. Montoya, 2003-NMSC-004, ¶¶ 27-30, 133 5 N.M. 84, 61 P.3d 793 (concluding there was sufficient evidence to support a felony 6 murder conviction in the commission of kidnapping where the defendant kidnapped 7 a gunshot wound victim, drove him away from the hospital, and left him to die). 8 {26} Accordingly, sufficient evidence supports that the CSP II-felony in this case 9 occurred in the commission of CDM, and “[t]he commission of [CDM] assisted 10 [D]efendant in causing [Victim] to engage in sexual intercourse.” See UJI 14-954 11 (element 5).

12 II. Defendant’s Right to Be Free From Double Jeopardy Was Violated by 13 His Convictions for Both CSP II-Felony and CDM

14 {27} We turn next to Defendant’s double jeopardy challenge. “We generally apply 15 a de novo standard of review to the constitutional question of whether there has been 16 a double jeopardy violation.” State v. Cummings, 2018-NMCA-055, ¶ 6, 425 P.3d 17 745. To the extent we are called upon to interpret either a constitutional provision or 18 a statute, these are questions of law, which we also review de novo. New Mexicans 19 for Free Enter. v. City of Santa Fe, 2006-NMCA-007, ¶ 11, 138 N.M. 785, 126 P.3d 20 1149.

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1 {28} The Double Jeopardy Clause of the Fifth Amendment of the United States 2 Constitution, made applicable to the states by the Fourteenth Amendment, protects 3 against “multiple punishments for the same offense.” 1 State v. Sena, 2020-NMSC- 4 011, ¶ 44, 470 P.3d 227 (internal quotation marks and citation omitted). “The pivotal 5 question in multiple punishment cases is whether the defendant is being punished 6 twice for the same offense.” Swafford v. State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 7 810 P.2d 1223 (emphasis omitted). Multiple punishment challenges arise in both 8 unit of prosecution claims, “in which an individual is convicted of multiple 9 violations of the same criminal statute,” and double description claims, “in which a 10 single act results in multiple charges under different criminal statutes.” State v. 11 Bernal, 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289. 12 {29} To analyze a double description challenge, such as Defendant’s, we generally 13 employ the two-part test, set out in Swafford, in which we examine: (1) whether the 14 conduct is unitary, and, if so, (2) whether the Legislature intended to punish the 15 offenses separately. See 1991-NMSC-043, ¶¶ 9, 25. “Only if the first part of the test 16 is answered in the affirmative, and the second in the negative, will the double 17 jeopardy clause prohibit multiple punishment in the same trial.” State v. Silvas,

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Defendant does not argue that the New Mexico Constitution affords him greater rights than the Fifth Amendment. Therefore, we review Defendant’s claim only pursuant to the federal right. See State v. Sena, 2020-NMSC-011, ¶ 44, 470 P.3d 227.

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1 2015-NMSC-006, ¶ 9, 343 P.3d 616 (internal quotation marks and citation omitted). 2 The second Swafford prong on legislative intent may take the form of a strict- 3 elements test, as set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932) 4 (examining the criminal statutes to determine whether each offense requires proof 5 of an element that the other does not; and if not, concluding that the elements of one 6 offense subsume the other and convictions cannot be had for both), or a modified 7 form of the Blockburger test, as adopted by our Supreme Court in State v. Gutierrez, 8 2011-NMSC-024, ¶¶ 48, 58-59, 150 N.M. 232, 258 P.3d 1024 (examining, as in 9 Blockburger, whether each offense requires proof of an element the other does not, 10 but applying the test to the facts and the theory relied on by the state to convict). 11 {30} Defendant and the State both urge this Court to turn away to some extent from 12 the Swafford/modified Blockburger test—each claiming that a compound crime like 13 CSP II-felony, that requires a finding that the defendant committed another predicate 14 felony during the commission of a greater felony, requires a different analysis. 15 Defendant’s argument relies on State v. Frazier, 2007-NMSC-032, 142 N.M. 120, 16 164 P.3d 1, a felony murder case holding that the Swafford unitary conduct prong of 17 the double jeopardy analysis is necessarily resolved by the jury’s finding that the 18 killing occurred “in the commission of” the predicate crime. See Frazier, 2007- 19 NMSC-032, ¶¶ 1, 21-26. Because CSP II-felony, at issue in this case, includes 20 similar statutory language as felony murder, at issue in Frazier, requiring the jury to

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1 find that the greater offense occurred “in the commission” of the predicate offense, 2 compare NMSA 1978, § 30-2-1(A)(2) (1994), with § 30-9-11(E)(5), Defendant 3 argues that this Court should import the Frazier analysis here. 4 {31} The State argues that the approach taken in State v. Loza, 2018-NMSC-034, 5 426 P.3d 34, should control, rather than the modified Blockburger analysis of 6 legislative intent. Loza looked to the pattern of predicate offenses required to convict 7 a defendant of racketeering under New Mexico’s Racketeering Act, NMSA 1978, 8 §§ 30-42-1 to -6 (1980, as amended through 2024), and concluded that no double 9 jeopardy violation occurred when a defendant is convicted both of the predicate 10 crimes and of substantive racketeering offenses. See Loza, 2018-NMSC-034, ¶ 14. 11 {32} We first apply the Swafford unitary conduct test, and then address Defendant’s 12 alternative approach to unitary conduct based on Frazier. We then turn to the 13 modified Blockburger analysis, and, following that analysis, we address the 14 alternative approach to legislative intent argued by the State based on Loza.

15 A. The Conduct Underlying Defendant’s Convictions for CDM and CSP II- 16 Felony Is Unitary

17 {33} Defendant argues that he was convicted of both CDM and CSP II-felony, 18 based on unitary conduct. A defendant’s conduct is unitary “if the acts are not 19 separated by sufficient indicia of distinctness.” State v. Porter, 2020-NMSC-020, 20 ¶ 12, 476 P.3d 1201 (internal quotation marks and citation omitted). In State v. 21 Phillips, 2024-NMSC-009, ¶ 38, 548 P.3d 51, our Supreme Court applied the factors

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1 from State v. Herron, 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624—the 2 principal case examining whether distinct acts support multiple counts in a unit of 3 prosecution double jeopardy challenge—to guide the determination of whether 4 conduct is unitary in a double description case. See Phillips, 2024-NMSC-009, ¶ 12 5 (listing the Herron factors as “(1) temporal proximity of the acts, (2) location of the 6 victim during each act, (3) the existence of intervening events, (4) the sequencing of 7 the acts, (5) the defendant’s intent as evidenced by his conduct and utterances, and 8 (6) the number of victims”). In determining whether there are sufficient indicia of 9 distinctness, “we look to the elements of the charged offenses, the facts presented at 10 trial, and the instruction given to the jury.” State v. Lorenzo, 2024-NMSC-003, ¶ 6, 11 545 P.3d 1156 (text only) (citation omitted). “The proper analytical framework is 12 whether the facts presented at trial establish that the jury reasonably could have 13 inferred independent factual bases for the charged offenses.” State v. Franco, 2005- 14 NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (internal quotation marks and citation 15 omitted). 16 {34} As already discussed, the jury convicted Defendant of CDM and indicated on 17 the special verdict form that they unanimously agreed that Defendant had helped 18 Victim drink alcohol and use drugs. We next look at whether Defendant’s conviction 19 of CSP II-felony was based on conduct unitary with the conduct found by the jury 20 to satisfy the elements of CDM. Looking first at the indictment and the jury

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1 instructions on the crime of CSP II-felony, we note that both specifically identified 2 the predicate felony as CDM. The jury was instructed that a conviction of CSP II- 3 felony required a finding that Defendant had committed CDM, and, in addition, 4 required the jury to find that Defendant “caused [Victim] to engage in sexual 5 intercourse . . . during the commission of [CDM].” See UJI 14-954 (elements 1, 3). 6 Although the jury instructions are not explicit in directing the jury to rely on the 7 same conduct it relied on to convict Defendant of CDM, we conclude that this is the 8 only reasonable way to view the instructions and the verdict. See Franco, 2005- 9 NMSC-013, ¶ 8 (determining whether the jury instructions limited the scope of the 10 evidence the jury could consider). The use notes to UJI 14-954, the uniform jury 11 instruction for CSP II-felony, require the district court to instruct the jury on the 12 essential elements of the predicate felony “unless they are covered in an essential 13 element instruction for the substantive offense.” See UJI 14-954, use note 7. The 14 district court provided no separate CDM elements instruction; it relied on the 15 instruction for the substantive offense of CDM, and the accompanying special 16 verdict form. The jury therefore found that Defendant’s conduct in helping Victim 17 drink alcohol and use drugs was the basis for its finding that Defendant committed 18 CDM both as an independent substantive offense, and as the predicate offense for 19 its conviction for CSP II-felony. See Silvas, 2015-NMSC-006, ¶¶ 18-19 (confirming 20 that the conduct was unitary based on the jury instructions, in which the state

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1 “directed the jury to the same act for both crimes . . . as the basis to convict for both 2 crimes”). The jury’s finding (which, as discussed, is supported by sufficient 3 evidence) that Defendant “caused [Victim] to engage in sexual intercourse . . . 4 during the commission of [CDM],” see UJI 14-954 (element 3), confirms that “there 5 are no independent factual bases to support each offense.” See State v. Serrato, 2021- 6 NMCA-027, ¶ 26, 493 P.3d 383; see also id. ¶ 27 (concluding that unitary conduct 7 existed where a sexual offense had to be proved to convict the defendant of first- 8 degree kidnapping and there was proof of only one sexual offense at trial such that 9 the “charges were based on the same conduct”). The jury plainly found that 10 Defendant’s conduct in helping Victim to become intoxicated contributed to Victim 11 “conduct[ing] herself in a manner injurious to her morals, health, or welfare,” in that 12 she submitted to unlawful sexual intercourse while still intoxicated later that night. 13 Therefore, the conduct relied on to convict of both CDM and CSP II-felony was 14 unitary, meeting the first Swafford prong. 15 {35} In light of the foregoing, we need not consider Defendant’s argument that 16 Frazier should be imported into the CSP II-felony context. After engaging in an 17 exhaustive discussion and analysis of the felony murder statute and case law 18 construing that statute, 2007-NMSC-032, ¶¶ 6-11, 21-26, 31-35, Frazier held that a 19 jury finding that a killing occurred “in the commission” of the predicate felony is a 20 determination as a matter of law that the conduct is unitary, and that it is improper

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1 for the courts to separately engage in a unitary conduct analysis, id. ¶¶ 1, 20-26. 2 2 Frazier thus concluded that felony “murder and the predicate felony are actually 3 greater and lesser included offenses in every case,” and “that the predicate felony is 4 always subsumed into a felony murder conviction, and no defendant can be 5 convicted of both.” Id. ¶ 1. Although there may be good reason to extend Frazier 6 beyond the felony murder to the CSP II-felony context, we need not resolve this 7 question today.

8 B. The Legislature Did Not Intend Multiple Punishments for CSP II-Felony 9 and CDM Under the State’s Theory of the Case

10 1. The Modified Blockburger Analysis 11 {36} Having determined that the conduct relied on to convict Defendant of the two 12 offenses was unitary, we proceed to the second Swafford prong: “whether the 13 Legislature intended to create separately punishable offenses.” State v. Reed, 2022- 14 NMCA-025, ¶ 8, 510 P.3d 1261 (text only) (citation omitted). We look first to the 15 language of the statutes themselves to determine whether the Legislature has 16 expressly authorized multiple punishments. See State v. Begaye, 2023-NMSC-015, 17 ¶ 21, 533 P.3d 1057. Only if the plain language of one or both statutes expressly

Frazier identified an exception to this rule—i.e., where “the facts support

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multiple charges of a particular felony [that] can be sustained under a unit of prosecution analysis, then the [s]tate is free to use one of those charges as the predicate felony and obtain separate convictions for the other charges.” Id. ¶ 27. As discussed, Defendant was convicted of a single count of CDM, so a unit of prosecution analysis would not be appropriate here.

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1 authorizes multiple punishments is this step dispositive as to legislative intent. See 2 id. Here, neither the CSP II-felony statute, see § 30-9-11(E)(5), nor the CDM statute, 3 see § 30-6-3, expressly authorize multiple punishments. We thus proceed with the 4 Blockburger analysis “to determine whether each provision requires proof of a fact 5 that the other does not.” State v. Branch, 2018-NMCA-031, ¶ 24, 417 P.3d 1141. If 6 all elements of one statute are “subsumed within the other, then the analysis ends 7 and the statutes are considered the same for double jeopardy purposes.” Silvas, 2015- 8 NMSC-006, ¶ 12. 9 {37} We must first determine whether the modified Blockburger test or the strict- 10 elements Blockburger test applies. See Begaye, 2023-NMSC-015, ¶ 23 (providing 11 that the reviewing court must “examine the statutes at issue to discern whether the 12 modified or strict-elements Blockburger test applies,” and “should then apply either 13 the modified or the strict-elements test—but not both”). Addressing the CSP II- 14 felony statute first, we have little difficulty concluding that this statute requires the 15 application of the modified Blockburger test. It adopts multiple alternatives, 16 providing that CSP II-felony may be perpetrated in the commission of “any other 17 felony,” § 30-9-11(E)(5). See, e.g., State v. Simmons, 2018-NMCA-015, ¶¶ 30-32, 18 409 P.3d 1030 (applying the modified Blockburger test to CSP II-felony). The CDM 19 statute also has been held by this Court to be “both vague and unspecific in that it 20 criminalizes ‘any act’ or the omission of ‘any duty’ when that act or omission results

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1 in a child’s delinquency.” State v. Luna, 2018-NMCA-025, ¶ 14, 458 P.3d 457 2 (citation omitted). Accordingly, we must apply the modified Blockburger test. 3 {38} As discussed previously, the theory for the predicate CDM felony in this case 4 argued by the State and relied on by the jury is stated in the special verdict form, 5 supplemented by the additional findings required by the jury instructions on CDM. 6 The jury unanimously found that Defendant committed CDM by helping Victim 7 drink alcohol and use drugs, and that Defendant’s conduct caused Victim, a minor, 8 to become so intoxicated that she lost control, causing her to “conduct herself in a 9 manner injurious to her morals, health, [or] welfare.” See UJI 14-601 (element 2). 10 {39} As previously discussed, the jury was instructed to rely on CDM as the 11 predicate felony for CSP II-felony. Although the jury was required to make 12 additional findings about the connections between the CDM and the criminal sexual 13 intercourse to convict of CSP II-felony, no additional findings were required to 14 convict of CDM. Accordingly, CDM is entirely subsumed within the offense of CSP 15 II-felony under the State’s theory of the case. See Simmons, 2018-NMCA-015, 16 ¶¶ 31-32 (determining that when “the CSP II-felony instruction required the jury to 17 find that the defendant caused the victim to engage in sexual intercourse during the 18 commission of [the predicate offense],” the predicate offense is “subsumed within 19 the CSP II-felony conviction” (alterations, internal quotation marks, and citation 20 omitted)); see also State v. Montoya, 2011-NMCA-074, ¶ 42, 150 N.M. 415, 259

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1 P.3d 820 (“Because we have already determined that the conduct in this case is 2 unitary, the ‘during the commission of a felony’ element of CSP II[-felony] requires 3 proof of all of the elements of [the predicate offense]. Thus, the [predicate] offense 4 . . . is subsumed in CSP II[-felony], and convictions of both offenses violated [the 5 d]efendant’s right to be free from double jeopardy.”). Defendant’s right to be free 6 from double jeopardy was, therefore, violated and “the inquiry is over.” See Begaye, 7 2023-NMSC-015, ¶ 35 (internal quotation marks and citation omitted).

8 2. The State’s Approach: by Analogy to Racketeering and to a Continuing 9 Criminal Enterprise (CCE)

10 {40} The State asks us to reject the modified Blockburger test and apply a different 11 double jeopardy analysis for determining legislative intent to allow multiple 12 punishments in this case. The State argues that when the modified Blockburger test 13 is applied to a compound crime, which requires that the greater crime—here CSP II- 14 felony—occur “in the commission of” a predicate felony—here CDM—the 15 defendant’s conduct always will be subsumed in the greater offense, failing the 16 modified Blockburger test. The State asserts that the Legislature did not intend this 17 result. It asks this Court to reject the modified Blockburger test and instead apply by 18 analogy our Supreme Court’s construction of the Racketeering Act in Loza, which 19 allows punishment for both the predicate crimes and for the crime of racketeering 20 based on legislative intent. See 2018-NMSC-034, ¶ 14. The State also cites the 21 analysis of the United States Supreme Court in Garrett v. United States, 471 U.S.

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1 773 (1985), a case relied upon by our Supreme Court in Loza. Garrett construed the 2 federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. 3 § 848, as defining separate offenses for double jeopardy purposes, based on 4 congressional intent to punish both the predicate drug offenses and the CCE made 5 criminal by that Act. See Loza, 2018-NMSC-034, ¶¶ 8-10. 6 {41} Loza and Garrett address the double jeopardy implications of what both the 7 United States Supreme Court and our New Mexico Supreme Court describe as 8 multilayered, complex-compound criminal statutes. See Loza, 2018-NMSC-034, ¶ 7 9 (characterizing the Racketeering Act as a “complex statutory scheme[] involving 10 multilayered conduct” (internal quotation marks omitted)). Both Loza and Garrett 11 conclude that these statutes were enacted to make engaging in a racketeering 12 enterprise or in a drug-related CCE a crime. See Loza, 2018-NMSC-034, ¶ 17 13 (racketeering); see also Garrett, 471 U.S. at 795 (CCE). Racketeering and CCE 14 include, as one element among many, the requirement that the defendant have 15 committed multiple predicate felonies, creating a pattern of criminal behavior over 16 an extended period of time. Loza, 2018-NMSC-034, ¶ 16. We do not agree that CSP 17 II-felony, which increases the punishment for criminal sexual penetration when that 18 felony occurs during the commission of another felony, is analogous to the pattern 19 of criminal activity requirement for conviction of racketeering or engaging in a drug- 20 related CCE.

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1 {42} Loza turns on what our Supreme Court finds to be the plain expression of 2 legislative intent in the Racketeering Act: to make engaging in racketeering a 3 separate offense from the predicate offenses that establish a pattern of criminal 4 conduct, and to allow additional punishment for engaging in a criminal racketeering 5 enterprise, even though the defendant may have been convicted and punished for 6 predicate crimes in the past, or might be convicted of such crimes in the future. See 7 Loza, 2018-NMSC-034, ¶¶ 13-14. Recognizing that the Blockburger test “was 8 developed in the context of multiple punishments imposed in a single prosecution, 9 and is not controlling when the legislative intent is clear,” 2018-NMSC-034, ¶ 17 10 (internal quotation marks and citation omitted), our Supreme Court relied on the 11 plain intent of the Legislature to punish racketeering, “in addition to, not in lieu of, 12 any predicate offenses.” Id. ¶ 9 (citing Garrett, 471 U.S. at 779-86). The Supreme 13 Court did not apply the modified Blockburger test to determine whether one crime 14 was subsumed within the other. 15 {43} Loza specifically distinguishes simple compound offenses, like CSP II- 16 felony—where our Legislature has provided that the greater felony must occur “in 17 the commission” of the predicate felony, and where the predicate felony is 18 prosecuted at the same time as the greater felony—from statutes like the 19 Racketeering Act—which punish “complex, multilayered-conduct,” id. ¶ 13, that 20 occurs over long periods of time, and is often prosecuted separately from the

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1 racketeering offense. See id. ¶ 8 (“In Garrett, the [United States] Supreme Court 2 cautioned against ready transposition of double jeopardy principles articulated in 3 cases involving a single course of conduct to the ‘multilayered conduct’ that 4 comprises criminal activity in complex statutory schemes.” (alteration, internal 5 quotation marks, and citation omitted)). For these reasons, we are not persuaded that 6 the exception to the modified Blockburger test adopted by Loza and Garrett applies 7 to this case.

8 III. Our Legislature Does Not Require Proof of Force or Coercion When 9 CDM Is the Predicate Felony Elevating CSPM to a Second Degree Felony

10 {44} Finally, Defendant argues that CDM is too expansive to be an appropriate 11 predicate felony to elevate CSPM to a second degree felony, or alternatively that 12 there must be a jury finding that force or coercion was involved in the CSP II-felony 13 in order to sustain the conviction based on CDM as the predicate felony. We do not 14 agree. 15 {45} Our Supreme Court in Stevens, 2014-NMSC-011, construed the CSP II-felony 16 statute in a case where the predicate offense was CDM. The Court held that the 17 statutory requirement of CSP II-felony that the criminal sexual penetration be 18 “unlawful” expresses the intent of our Legislature to punish the invasion of sexual 19 privacy, whether that be accomplished by force or by another sort of undue 20 advantage, such as the minority age of the victim. See id. ¶¶ 29, 39. In other words, 21 there is no need for a predicate offense to involve force or coercion, as long as the

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1 victim of CSP II-felony is statutorily unable to consent to sexual intercourse. See id. 2 ¶ 39 (“[W]hen a CSP II[-felony] charge is based on the commission of a felony, it 3 must be a felony that is committed against the victim of, and that assists in the 4 accomplishment of, sexual penetration perpetrated by force or coercion or against a 5 victim who, by age or other statutory factor, gave no lawful consent.” (emphasis 6 added)). Stevens found the requirement that the sexual intercourse be “unlawful,” 7 together with the requirements of a direct relationship both in time and in causation 8 between the sexual intercourse and the CDM predicate felony, sufficient to avoid 9 the CSP II-felony statute being inappropriately applied to petty conduct, id., as 10 Defendant speculates could occur if proof of the use of force or coercion is not 11 required. This Court’s role is to interpret legislative policy, not to add words that are 12 not there to a statute that makes sense as written. See Aeda v. Aeda, 2013-NMCA- 13 095, ¶ 11, 310 P.3d 646 (“Unless a statute violates the Constitution, we will not 14 question the wisdom, policy, or justness of legislation enacted by our Legislature.” 15 (text only) (citation omitted)). We accordingly reject Defendant’s contentions that 16 CDM is not an appropriate predicate felony for CSP II-felony and that the use of 17 force or coercion must be included in the jury instruction as an essential element of 18 CSP II-felony when CDM is the predicate felony.

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1 CONCLUSION 2 {46} Because Defendant’s convictions for both CDM and CSP II-felony (in the 3 commission of CDM) violates Defendant’s right to be free of double jeopardy, we 4 reverse Defendant’s CDM conviction, the lesser offense, and remand this case to the 5 district court to vacate the CDM conviction and resentence Defendant. See State v. 6 Montoya, 2013-NMSC-020, ¶ 55, 306 P.3d 426 (explaining that “where one of two 7 otherwise valid convictions must be vacated to avoid violation of double jeopardy 8 protections, we must vacate the conviction carrying the shorter sentence.”). We 9 otherwise affirm. 10 {47} IT IS SO ORDERED.

11 ______________________________ 12 JANE B. YOHALEM, Judge

13 WE CONCUR:

14 _________________________________ 15 JENNIFER L. ATTREP, Chief Judge

16 _________________________________ 17 GERALD E. BACA, Judge