State v. Evensen

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 33,338 5 EDMUND EVENSEN, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 8 Jeff F. McElroy, District Judge

9 Hector H. Balderas, Attorney General 10 Paula E. Ganz, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Alan Maestas Law Office, P.C. 14 Kathryn J. Hardy 15 Alan H. Maestas 16 Taos, NM

17 for Appellant 18 MEMORANDUM OPINION 19 SUTIN, Judge.

1 {1} Defendant Edmund Evensen appeals from a district court judgment entered 2 pursuant to Defendant’s conditional plea of guilty to the crimes of attempt to commit 3 armed robbery, contrary to NMSA 1978, Section 30-16-2 (1973), and NMSA 1978, 4 Section 30-28-1(B) (1963), and aggravated battery with a deadly weapon, contrary to 5 NMSA 1978, Section 30-3-5(A), (C) (1969). He raises two main issues. First, 6 Defendant argues that the district court erred in denying his motion to suppress 7 evidence that was gathered by police after they made a warrantless entry into his hotel 8 room. Secondly, Defendant argues that his convictions violated his constitutional right 9 to be free from double jeopardy. 10 {2} We conclude that the district court’s decision to deny Defendant’s motion to 11 suppress on the ground that Defendant consented to the warrantless entry was 12 supported by substantial evidence. We further conclude that Defendant’s convictions 13 do not violate his right to be free from double jeopardy because distinct factual bases 14 supported a finding of guilt as to each charge. We affirm. 15 BACKGROUND 16 {3} Because this is a memorandum opinion and the parties are familiar with the 17 facts, this background section is limited to the factual and procedural events that are 18 required to place our discussion in context. Additional facts are provided within the 19 body of the Opinion as necessary.

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1 {4} Steven Vigil (Victim) was parked at an ATM in Taos, New Mexico, when 2 Defendant’s girlfriend, Amanda Cruz, ran toward Victim’s truck, told him that she 3 was fighting with her boyfriend, and asked Victim for a ride. Victim responded to Ms. 4 Cruz by lowering his window, and when he did, Defendant, armed with a knife, put 5 his arm around Victim’s neck and demanded money. Victim did not give Defendant 6 any money; he told Defendant to relax, and Defendant cut Victim’s neck with the 7 knife. During an ensuing struggle between Victim and Defendant, Victim put his truck 8 in reverse and got away from Defendant. Before Victim called the police, he saw 9 Defendant run behind a nearby movie theater, and he saw Ms. Cruz walk toward a 10 nearby hotel. 11 {5} Within fifteen minutes of the attack, law enforcement officers from the Taos 12 County Sheriff’s Department and the Taos Police Department spoke with a security 13 guard who worked at the nearby hotel. Based on Victim’s descriptions of Defendant 14 and Ms. Cruz that one of the officers relayed to the security guard, the security guard 15 told the officers that the two were guests at the hotel and led them to Defendant’s 16 room. Under circumstances that are a subject of this appeal and will be discussed in 17 greater detail later, the officers entered the hotel room without a warrant. Defendant 18 and Ms. Cruz were inside. Once inside, one of the officers seized a knife from 19 underneath the refrigerator door. Defendant was arrested, and he was later indicted on

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1 charges of attempt to commit armed robbery and aggravated battery with a deadly 2 weapon. 3 {6} Defendant filed a motion to suppress evidence seized from the hotel room and 4 all evidence derived as a result of the unlawful entry based on a theory that law 5 enforcement officers made a warrantless entry into the hotel room that was not 6 justified by any exception to the warrant requirement. In its response to Defendant’s 7 motion to suppress, the State argued, in relevant part, that the warrantless entry was 8 authorized because Defendant consented to it and that once inside, one of the officers 9 saw the knife in plain view. In support of its consent argument, the State attached to 10 its response a supplemental report written by Deputy Jake Cordova of the Taos 11 County Sheriff’s Department who stated in the report that he knocked on Defendant’s 12 hotel room door and Defendant answered. He then asked Defendant whether he could 13 enter into the room, and Defendant said, yes. According to Deputy Cordova’s 14 supplemental report, once he was inside the room, he observed what appeared to be 15 a knife underneath the refrigerator door. 16 {7} The district court held an evidentiary hearing on Defendant’s motion to 17 suppress. Although Deputy Cordova did not testify at the hearing, the State relied on 18 his supplemental report in its opening and closing arguments to support its contention 19 that the law enforcement officers had Defendant’s consent to enter the hotel room and

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1 that the knife was in plain view. Defendant did not object to the State’s reliance on 2 Deputy Cordova’s supplemental report, and in his closing argument, Defendant 3 addressed the substance of the supplemental report, arguing that it was “a lie” that was 4 contradicted by other evidence that had been presented at the hearing. 5 {8} In a letter decision issued after the evidentiary hearing, the district court, relying 6 in part on Deputy Cordova’s supplemental report, denied Defendant’s motion to 7 suppress. The district court concluded that the warrantless entry into Defendant’s hotel 8 room was authorized by Defendant, who, according to the court’s letter decision, 9 “opened the door and invited [Deputy Cordova] into the hotel room.” The court 10 further found that “[e]ven if” Deputy Cordova did not have Defendant’s consent to 11 enter the hotel room, the entry was justified by exigent circumstances. Further, the 12 court concluded that the seizure of the knife was permissible because the knife was 13 in Deputy Cordova’s plain view once he had entered the hotel room. 14 {9} Defendant pleaded guilty to the crimes with which he had been charged. The 15 plea, which was conditional, allowed Defendant to appeal the district court’s ruling 16 on his motion to suppress. He appeals from the court’s judgment entered pursuant to 17 the plea agreement. 18 {10} On appeal, Defendant argues, for the first time, that because the State failed to 19 formally seek to admit Deputy Cordova’s supplemental report into evidence, the

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1 district court was not permitted to consider the supplemental report in ruling on 2 Defendant’s motion to suppress. Building on the premise that the supplemental report 3 was “not evidence” of consent, Defendant argues that “there was no evidence 4 presented by the State regarding consent” from which the district court could conclude 5 that Defendant consented to Deputy Cordova’s entry into the hotel room. 6 Additionally, Defendant argues that exigent circumstances did not permit a 7 warrantless entry into the hotel room. Since Deputy Cordova’s warrantless entry was 8 not justified by consent or exigent circumstances, Defendant argues, he was not 9 lawfully positioned when he observed the knife in plain view. Alternatively, 10 Defendant argues, the knife was not in plain view, but rather it was found after an 11 unlawful warrantless search of the hotel room. Finally, Defendant argues that his 12 convictions violated his constitutional right to be free from double jeopardy. 13 {11} We do not consider Defendant’s unpreserved argument that the district court 14 could not rely on Deputy Cordova’s supplemental report in its ruling on Defendant’s 15 motion to suppress. We conclude that sufficient evidence supported the district court’s 16 conclusion that Defendant consented to Deputy Cordova’s warrantless entry into 17 Defendant’s hotel room and that Deputy Cordova saw the knife within plain view. 18 Accordingly, we do not consider Defendant’s exigent circumstances argument. We

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1 further conclude that Defendant’s convictions do not violate his right to be free from 2 double jeopardy. 3 DISCUSSION 4 Standard of Review 5 {12} “In reviewing a trial court’s denial of a motion to suppress, we observe the 6 distinction between factual determinations which are subject to a substantial evidence 7 standard of review and application of law to the facts, which is subject to de novo 8 review.” State v. Hubble, 2009-NMSC-014, ¶ 5, 146 N.M. 70, 206 P.3d 579 9 (alteration, internal quotation marks, and citation omitted). The district court’s factual 10 determinations are viewed in the light most favorable to the prevailing party to 11 determine whether they are supported by substantial evidence. Id. “Substantial 12 evidence is . . . relevant evidence that a reasonable mind would find adequate to 13 support a conclusion.” State v. Brown, 2014-NMSC-038, ¶ 43, 338 P.3d 1276 14 (internal quotation marks and citation omitted). We review double jeopardy issues de 15 novo. State v. Melendrez, 2014-NMCA-062, ¶ 5, 326 P.3d 1126, cert. denied, 2014- 16 NMCERT-006, 328 P.3d 1188. 17 The Warrantless Entry Issue 18 {13} Consent is a well-established exception to the constitutional prohibition against 19 warrantless entries into a suspect’s hotel room. See State v. Pool, 1982-NMCA-139,

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1 ¶ 9, 98 N.M. 704, 652 P.2d 254 (recognizing that the Fourth Amendment to the United 2 States Constitution prohibits the police from making a non-consensual warrantless 3 entry into a suspect’s hotel room); see also State v. Duffy, 1998-NMSC-014, ¶ 72, 126 4 N.M. 132, 967 P.2d 807 (“It is constitutionally permissible for the police to search a 5 person’s home if they have received valid consent from a person who is in possession 6 of . . . the premises.”), overruled in part on other grounds by State v. Tollardo, 2012- 7 NMSC-008, ¶ 37 n.6, 275 P.3d 110. The State bears the burden of proving consent. 8 State v. Flores, 1996-NMCA-059, ¶ 26, 122 N.M. 84, 920 P.2d 1038. To meet that 9 burden, the State must present evidence that the consent was unequivocal and specific. 10 State v. Valencia Olaya, 1987-NMCA-040, ¶ 28, 105 N.M. 690, 736 P.2d 495. 11 {14} In the present case, the district court’s finding that Defendant consented to a 12 warrantless police entry into his hotel room was supported by a number of facts 13 presented by the State at the suppression hearing. Foremost, the State presented 14 Deputy Cordova’s supplemental report. Deputy Cordova, who was one of the first 15 officers to arrive at the hotel, stated in his supplemental report that he knocked on the 16 door of Defendant’s hotel room and that Defendant answered. He asked Defendant if 17 he could enter the room, and Defendant said, yes. Further, the State presented the 18 testimony of investigator Dennis Romero who interviewed Ms. Cruz regarding this 19 case. According to Mr. Romero, when he asked Ms. Cruz about how the officers came

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1 into the hotel room, she stated that she told Defendant not to open the door, but that 2 he got up and opened the door. Additionally, the hotel security guard, who had 3 directed the officers to Defendant’s hotel room, stated in a police interview taken on 4 the night of the incident that Defendant “answered right away” after the police 5 knocked. The foregoing constitutes substantial evidence from which the district court 6 could conclude that Defendant opened the door when Deputy Cordova knocked and 7 that he consented to the police entering his hotel room. See Brown, 2014-NMSC-038, 8 ¶ 43 (stating that substantial evidence is that which “a reasonable [person] would find 9 adequate to support a conclusion” (internal quotation marks and citation omitted)). 10 {15} Viewing the evidence in a light most favorable to himself, Defendant argues 11 that substantial evidence was presented at the hearing on Defendant’s motion to 12 suppress that “raise[s] serious doubts about the truthfulness of the statements in 13 Deputy Cordova’s report[.]” Defendant’s argument is unpersuasive for two reasons. 14 First, it is contrary to our standard of review that requires appellate courts to view the 15 evidence in the light most favorable to the prevailing party, which, in the present case, 16 is the State. Hubble, 2009-NMSC-014, ¶ 5. Secondly, credibility determinations are 17 the province of the fact-finder, and this Court will not second guess the district court’s 18 determination that Deputy Cordova’s supplemental report, which comported with 19 statements made by Ms. Cruz and the hotel security guard, was credible. See State v.

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1 Anaya, 2012-NMCA-094, ¶ 30, 287 P.3d 956 (stating that this Court will not second 2 guess credibility determinations that are made by the district court in its role as fact- 3 finder ). 4 {16} Defendant also argues that because the State did not seek to formally admit 5 Deputy Cordova’s supplemental report into evidence at the suppression hearing, it was 6 not “evidence” that the district court was entitled to consider in making its 7 determination. Defendant’s argument in this regard was not preserved and will not be 8 considered on appeal. State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 9 1280 (stating that in order to preserve an issue for appeal, the defendant must make 10 a timely objection that specifically apprises the trial court of the nature of the claimed 11 error and invokes an intelligent ruling thereon). That Deputy Cordova’s supplemental 12 report was attached to the State’s response to Defendant’s motion to suppress, relied 13 upon by the State in its opening and closing arguments at the suppression hearing, and 14 its substance directly addressed by Defendant who sought to refute it during his 15 closing argument belies Defendant’s contention on appeal that he was not afforded an 16 opportunity to object to it. 17 {17} In sum, we conclude that substantial evidence supported the district court’s 18 conclusion that Defendant consented to the warrantless entry by law enforcement 19 officers into his hotel room. As such, we do not consider whether the district court’s

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1 alternative finding that exigent circumstances justified the warrantless entry was 2 supported by the evidence. 3 The Plain View Issue 4 {18} The district court concluded that Deputy Cordova’s warrantless seizure of the 5 knife from Defendant’s hotel room was permissible based on the doctrine of plain 6 view. “Under the plain view exception to the warrant requirement, items may be 7 seized without a warrant if the police officer was lawfully positioned when the 8 evidence was observed, and the incriminating nature of the evidence was immediately 9 apparent, such that the officer had probable cause to believe that the article seized was 10 evidence of a crime.” State v. Ochoa, 2004-NMSC-023, ¶ 9, 135 N.M. 781, 93 P.3d 11 1286. 12 {19} Defendant argues that Deputy Cordova was not lawfully present in Defendant’s 13 hotel room when he seized the knife, and alternatively, he argues that even if Deputy 14 Cordova was lawfully present, the knife was not immediately apparent. Having 15 concluded that Deputy Cordova was, by virtue of Defendant’s consent, lawfully in 16 Defendant’s hotel room when he seized the knife, we limit our review of Defendant’s 17 plain view issue to whether substantial evidence supported the district court’s implicit 18 determination that the knife was immediately apparent.

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1 {20} The district court reasoned and Defendant does not refute that, under the 2 circumstances, it was reasonable for the officer to scan the room for the knife that had 3 been used in the attack. In Deputy Cordova’s supplemental report, he stated that, 4 having entered the room, he observed “what appeared to be a knife under the 5 refrigerator door.” In a video recording made in Defendant’s hotel room on the night 6 of the incident, Deputy Cordova stated to another officer that, when he kneeled down, 7 he could see the knife under the refrigerator door, and he acquiesced in the other 8 officer’s statement: “so it was kinda concealed.” Relying on the foregoing, the court 9 concluded that the knife was in plain view. 10 {21} Again, viewing the evidence in a light most favorable to himself, Defendant 11 argues that evidence presented at the suppression hearing places in “serious doubt” the 12 veracity of Deputy Cordova’s supplemental report. In support of this argument, 13 Defendant focuses on the fact that Deputy Cordova agreed with another officer that 14 the knife was “kinda concealed” and that the hotel security guard testified at the 15 suppression hearing that Deputy Cordova “opened the door to the refrigerator and then 16 he noticed . . . the knife” that “was somehow wedged under” the refrigerator. 17 Defendant relies on these facts to support his theory that the knife was only visible 18 after the refrigerator door was opened, and it was thus not “immediately apparent.” 19 We are not persuaded by Defendant’s argument.

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1 {22} We observe that, in addition to the excerpts of the security guard’s testimony 2 upon which Defendant relies, the security guard also testified that Deputy Cordova 3 “noticed [the knife] right away.” Viewing the evidence in the light most favorable to 4 the State, substantial evidence, including Deputy Cordova’s supplemental report, the 5 security guard’s testimony, and Deputy Cordova’s recorded conversation with a 6 fellow officer supported an inference that Deputy Cordova immediately observed the 7 knife that was only “kinda concealed” under the refrigerator and, accordingly, he 8 opened the door to retrieve it. We will not second guess the district court’s decision 9 to reject a possible contrary inference based on the security guard’s interpretation of 10 Deputy Cordova’s thought process that the deputy did not “notice” the knife until after 11 he opened the refrigerator door. See Anaya, 2012-NMCA-094, ¶ 30 (“[A]n appellate 12 court will not second[]guess the fact-finder if the determination is supported by 13 substantial evidence.”). 14 {23} In sum, we conclude that the evidence before the district court at the 15 suppression hearing was adequate to support the court’s conclusion that the knife was 16 in plain view. See Brown, 2014-NMSC-038, ¶ 43 (stating the standard by which 17 substantial evidence is measured).

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1 The Double Jeopardy Issue 2 {24} The State argues that because Defendant did not reserve the right to appeal on 3 double jeopardy grounds in his plea agreement, the issue should not be considered on 4 appeal. We disagree. “A plea agreement, which may result in the waiver of other 5 potential claims, has no effect on a defendant’s right to raise a double[]jeopardy” 6 argument on appeal. State v. Nunez, 2000-NMSC-013, ¶ 98, 129 N.M. 63, 2 P.3d 264. 7 {25} In State v. Fuentes, this Court rejected an argument that the defendant’s 8 convictions for armed robbery and aggravated battery with a deadly weapon that were 9 premised on unitary conduct violated double jeopardy. 1994-NMCA-158, ¶¶ 2-3, 18, 10 119 N.M. 104, 888 P.2d 986. As is required in a double-description double jeopardy 11 analysis, in Fuentes we considered whether the Legislature intended to punish the two 12 crimes separately. 1994-NMCA-158, ¶ 7; see State v. Swick, 2012-NMSC-018, ¶ 11, 13 279 P.3d 747 (stating the two-part analysis used to determine whether the defendant’s 14 separate convictions violate the prohibition against double jeopardy in a double- 15 description case). One abiding indicator of legislative intent is whether the two 16 statutes address different social harms, and in Fuentes, we observed that the 17 prohibitions against armed robbery and aggravated battery address distinct social 18 harms. 1994-NMCA-158, ¶¶ 15-16 (recognizing that the armed robbery statute is 19 targeted at the “social evil . . . of crimes against property[,]” whereas the aggravated

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1 battery statute is designed to protect people); see also Swick, 2012-NMSC-018, ¶ 13 2 (stating that evaluation of the particular evils that are proscribed by different statutes 3 is one indicator of legislative intent to be employed in a double jeopardy analysis); 4 Swafford v. State, 1991-NMSC-043, ¶¶ 31-32, 112 N.M. 3, 810 P.2d 1223 (same). In 5 Fuentes, in support of the well-established proposition that legislative intent may be 6 gleaned by evaluating the societal harm targeted by the statute, we cited State v. 7 Gonzales, 1992-NMSC-003, ¶ 12, 113 N.M. 221, 824 P.2d 1023, overruled on other 8 grounds by State v. Montoya, 2013-NMSC-020, ¶ 2, 306 P.3d 426. Fuentes, 1994- 9 NMCA-158, ¶ 16. Gonzales was not otherwise cited nor was its rationale otherwise 10 invoked in Fuentes. 11 {26} In Montoya, the Supreme Court put to rest the long-standing issue whether 12 double-description convictions for shooting at a motor vehicle and a resultant 13 homicide violated double jeopardy. Montoya, 2013-NMSC-020, ¶¶ 2, 34, 54 (stating 14 that for two decades our Supreme Court wrestled with the double jeopardy concerns 15 raised by the two specific statutes that criminalize shooting at a motor vehicle and 16 homicide, respectively). Insofar as Gonzales stood for the proposition that double- 17 description convictions for shooting at a motor vehicle and murder did not constitute 18 a double jeopardy violation, Montoya expressly overruled it and the cases that 19 followed it. Montoya, 2013-NMSC-020, ¶¶ 2, 54.

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1 {27} Defendant argues that because Fuentes was the “progeny of Gonzales,” this 2 Court should recognize that Fuentes was overruled by Montoya. To the extent that 3 Defendant’s characterization of Fuentes as the “progeny of Gonzales” is based upon 4 a single citation in Fuentes to Gonzales for a proposition of law that bears continuing 5 validity, an argument built upon that characterization is entirely unpersuasive and will 6 not be considered further. 7 {28} Defendant argues, in the alternative, that because Fuentes pre-dated our 8 Supreme Court’s implementation of a “modified” Blockburger analysis, our holding 9 in Fuentes does not justify summarily rejecting his double jeopardy argument. See 10 Swick, 2012-NMSC-018, ¶ 21 (recognizing the adoption, in State v. Gutierrez, 2011- 11 NMSC-024, ¶ 58, 150 N.M. 232, 258 P.3d 1024, of a “modified . . . Blockburger 12 analysis to be used in New Mexico”). We agree. Accordingly, we analyze Defendant’s 13 double jeopardy argument pursuant to the modified Blockburger test. 14 {29} In any double-description double jeopardy argument, such as the one made by 15 Defendant, we consider (1) whether the defendant’s convictions were premised on 16 unitary conduct, and if so, (2) whether the Legislature intended to punish the crimes 17 separately. Swick, 2012-NMSC-018, ¶ 11 (stating the two-part analysis used to 18 determine whether the defendant’s separate convictions violate the prohibition against 19 double jeopardy in a double-description case). Pursuant to the modified Blockburger

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1 analysis, courts evaluating the second factor must consider whether one of the statutes 2 is “vague and unspecific,” and if so, whether the State’s legal theory of the case 3 caused one crime to be subsumed within the other. Swick, 2012-NMSC-018, ¶¶ 21, 4 24 (internal quotation marks and citation omitted); Gutierrez, 2011-NMSC-024, ¶ 58. 5 This modification precludes a “mechanical” application of the Blockburger analysis 6 whereby “it [was] enough for two statutes to have different elements.” Swick, 2012- 7 NMSC-018, ¶ 21. 8 {30} Defendant asserts that his two convictions were premised on unitary conduct. 9 The State does not refute this assertion, nor under the circumstances of this case could 10 it reasonably do so. Defendant’s convictions for attempt to commit armed robbery and 11 aggravated battery with a deadly weapon were based on a continuing, uninterrupted 12 series of events. See Melendrez, 2014-NMCA-062, ¶ 8 (stating that unitary conduct 13 may be characterized by acts that are done “close in time and space” and without 14 intervening events). Accordingly, we consider whether the Legislature intended to 15 punish the two crimes separately. 16 {31} We begin by considering the elements of the two crimes to determine whether 17 one is “definitionally subsumed within the other[.]” Montoya, 2013-NMSC-020, ¶ 32. 18 Pursuant to Section 30-28-1, attempt to commit armed robbery “consists of an overt 19 act in furtherance of and with intent to” commit a “theft of anything of value from the

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1 person of another or from the immediate control of another, by use or threatened use 2 of force or violence . . . while armed with a deadly weapon[,]” but failing to effect the 3 commission of armed robbery. Section 30-16-2. Aggravated battery with a deadly 4 weapon “consists of the unlawful touching or application of force to the person of 5 another [with a deadly weapon] with intent to injure that person[.]” Section 30-3-5(A), 6 (C). 7 {32} As this Court noted in Fuentes, aggravated battery and armed robbery have 8 distinct intent elements, that is, the specific intent of the robbery is to deprive a victim 9 of his property, whereas the specific intent of the battery statute is to injure the victim. 10 1994-NMCA-158, ¶ 8. Owing to the distinct intent elements in each statute, neither 11 is definitionally subsumed by the other. Further, because the issue whether the at-issue 12 statutes address different social harms was resolved by this Court in Fuentes, we turn 13 now to the issues of whether one of the at-issue statutes is vague and unspecific. See 14 id. ¶ 16 (concluding that the social evil targeted by the aggravated battery statute is 15 harmful force directed against a person, whereas the armed robbery statute primarily 16 targets crimes against property). 17 {33} In Swick, our Supreme Court addressed the issue whether the defendant’s 18 convictions for attempted murder and aggravated battery that arose out of unitary 19 conduct violated the prohibition against double jeopardy. 2012-NMSC-018, ¶¶ 11, 20.

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1 The Swick Court reasoned that the attempted murder statute was vague and unspecific 2 because “many forms of conduct can support the [attempted murder element of] 3 ‘began to do an act which constituted a substantial part of [m]urder[.]’ ” Id. ¶ 25. 4 Defendant argues that, like the attempted murder statute discussed in Swick, the 5 statutory definition of attempted armed robbery is vague and unspecific because many 6 forms of conduct can constitute an “overt act” in furtherance of and with intent to 7 commit an armed robbery. 8 {34} Here, as in Swick, the issue of vagueness and lack of specificity stems from the 9 attempt statute, Section 30-28-1. See Swick, 2012-NMSC-018, ¶ 22 (relying on the 10 indictment’s paraphrased version of Section 30-28-1 to state the elements of attempted 11 murder). The attempt statute provides that “[a]ttempt to commit a felony consists of 12 an overt act in furtherance of and with intent to commit a felony and tending but 13 failing to effect its commission.” Section 30-28-1. Applying the rationale of Swick to 14 the circumstances of this case, we agree with Defendant that the phrase “an overt act 15 in furtherance of and with the intent to commit” an armed robbery could describe 16 many forms of conduct. Accordingly, we must consider the State’s theory of the case 17 to determine whether the “overt act” that provided the basis for Defendant’s attempted 18 armed robbery charge was the same overt act that provided the basis for the 19 aggravated battery charge. Cf. Swick, 2012-NMSC-018, ¶¶ 26-27 (analyzing the

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1 prosecution’s theory of the case as it applied to both crimes and holding that because 2 the prosecution relied on the defendant’s acts of beating, stabbing, and slashing the 3 victims to prove aggravated battery as well as attempted murder, the attempted murder 4 elements subsumed those of aggravated battery). 5 {35} The factual basis underlying Defendant’s guilty plea as recited by the 6 prosecutor was the following. Victim was parked at an ATM when Defendant and Ms. 7 Cruz approached Victim’s vehicle. The attempted armed robbery occurred when 8 Defendant, who was holding a knife, put his arm around Victim’s neck and demanded 9 money. When Victim responded by telling Defendant to “relax,” Defendant cut 10 Victim’s neck with the knife, and a struggle ensued between Victim and Defendant. 11 Defendant’s act of cutting and struggling with Victim constituted the aggravated 12 battery. Thus, according to the State’s theory of the case, the factual bases underlying 13 the two crimes were distinct. Under these circumstances, neither crime was subsumed 14 by the other. Defendant’s arguments to the contrary are unpersuasive. 15 {36} In sum, we conclude that Defendant’s right to be free from double jeopardy was 16 not violated when, pursuant to his plea agreement, he was convicted of both 17 aggravated battery and attempt to commit armed robbery. 18 CONCLUSION 19 {37} We affirm.

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1 {38} IT IS SO ORDERED.

2 __________________________________ 3 JONATHAN B. SUTIN, Judge

4 WE CONCUR:

5 _______________________________ 6 MICHAEL E. VIGIL, Chief Judge

7 _______________________________ 8 J. MILES HANISEE, Judge