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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: _____________ 3 Filing Date: April 29, 2024 4 No. A-1-CA-40425 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v.
8 MARK A. LUCERO JR. a/k/a 9 MARK ANTHONY LUCERO JR.,
10 Defendant-Appellant.
11 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 12 Melissa A. Kennelly, District Court Judge
13 Raúl Torrez, Attorney General 14 Santa Fe, NM 15 Charles J. Gutierrez, Assistant Attorney General 16 Albuquerque, NM
17 for Appellee
18 Bennett J. Baur, Chief Public Defender 19 Mary Barket, Assistant Appellate Defender 20 Santa Fe, NM
21 for Appellant 1 OPINION 2 YOHALEM, Judge. 3 {1} Defendant Mark Anthony Lucero, Jr. was convicted, following a jury trial, of 4 three offenses: (1) aggravated battery against a household member by strangulation, 5 (2) false imprisonment, and (3) violation of a restraining order prohibiting domestic 6 violence. Defendant argues that he is entitled to a new trial because eleven of the 7 twelve jurors seated at his trial were biased by having heard “inflammatory” 8 comments made by a member of the jury panel during voir dire. Defendant contends 9 that the district court abused its discretion in failing to dismiss the entire panel at the 10 conclusion of voir dire. Defendant also argues that his convictions for aggravated 11 battery against a household member and false imprisonment are based on the same 12 conduct, violating his right to be free from double jeopardy. Finding no error by the 13 district court in the selection of the jury, and concluding that Defendant’s aggravated 14 battery and false imprisonment convictions are based on nonunitary distinct conduct 15 and, therefore, do not subject Defendant to multiple punishments for the same 16 conduct, we affirm. 17 BACKGROUND 18 {2} Defendant’s jury trial began September 27, 2021, following jury selection. 19 Thirty potential jurors were available for voir dire. The potential jurors were divided 20 into two panels, a first panel of twenty-three, the maximum number that could be
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1 adequately distanced in the courtroom under the COVID-19 protocols, and a second 2 panel of the remaining seven potential jurors. The district court administered the 3 oath to the first panel. All of the members of that panel swore or affirmed that they 4 would truthfully answer the questions asked by the court and by counsel for both 5 parties. Defendant was present in the courtroom with his counsel. 6 {3} The district court began by questioning the potential jurors about any hardship 7 that would prevent them from serving during Defendant’s anticipated one- to two- 8 day trial. The court then informed the panel that the charges involved domestic 9 violence, and asked whether any of the jurors could not be fair given the nature of 10 the charges. Several potential jurors raised their hands and the court arranged to 11 speak privately with each of them at the conclusion of the panel’s voir dire. The 12 court then asked the panel whether anyone had other concerns about serving. Any 13 potential juror who raised a hand was added to the court’s list for a private 14 conversation with the court and counsel. The court then allowed counsel for both the 15 State and Defendant to question the panel. 16 {4} The State addressed the jury panel first, asking about the potential jurors’ 17 understanding of the Fifth Amendment and the beyond a reasonable doubt standard. 18 The court interrupted the discussion to explain to the panel that they would receive 19 specific instructions from the court and would not be making a decision based on 20 their gut feelings. The prosecutor then asked the panel members whether they would
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1 consider a defendant’s decision not to testify as a factor in determining the 2 defendant’s guilt or innocence. A juror responded that she was not sure. The district 3 court followed up by asking the juror whether she could follow the court’s 4 instruction not to consider a defendant’s failure to testify, to which she responded 5 that she would try. The court then asked whether there was anyone else who wanted 6 to respond regarding whether they could follow the court’s instruction not to 7 consider a failure to testify. Juror 3 then interjected, saying he would not follow the 8 instructions. Juror 3 then stated that he had a natural bias against anyone accused of 9 assault. Juror 3 continued speaking, noting that he had practiced law in another state, 10 and reiterated his bias by stating,
11 So, I would say that I have a natural bias immediately. You’re going to 12 bring in a guy in for any sort of assault, I’m going to be very inclined 13 to prosecute. Find him guilty.
14 The prosecutor asked if anyone else agreed with Juror 3. Juror 16 indicated that he 15 too was biased against someone accused of assault. 16 {5} Near the end of the prosecution’s voir dire, the jury panel was asked whether 17 anyone knew either of the two prosecutors for the State. Juror 3 said that he had 18 some casual contact with one of the prosecutors, and then went on to state,
19 I have a natural bias to lean towards [the] prosecution in cases even 20 after my experience with working as a defense attorney. Especially 21 since I learned a few tricks on that side. I think . . . he is pretty much 22 guilty.
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1 The prosecutor responded by asking Juror 3 whether he could be fair and impartial 2 even though he knew one of the prosecutors, to which Juror 3 responded that he 3 could. The prosecutor then asked the panel whether they knew the police officer who 4 would be testifying at trial. Juror 3 disclosed that he knew the officer. When the 5 prosecutor asked Juror 3 if he could be fair and impartial, he answered, “No.” The 6 district court interjected, interrupting the prosecutor, and attempting to stop further 7 questioning of Juror 3. The court noted that Juror 3 had already stated that he could 8 not be fair and impartial. 9 {6} Defense counsel then was given an opportunity to voir dire the panel 10 members. Despite the district court’s comment that Juror 3 had already stated on the 11 record that he could not be fair and impartial, defense counsel continued to question 12 Juror 3 about whether he could be fair and impartial. The district court again 13 interrupted, telling defense counsel that Juror 3 had already stated his “his inability 14 to be fair and impartial multiple times on the record.” Juror 3 can be heard in the 15 background responding to the district court’s comment by stating, “Yeah, I think 16 that guy is guilty.” The court continued speaking, apparently attempting to avoid any 17 further opportunity for Juror 3 to expound on his already stated bias. Defense counsel 18 interrupted the court, and continued to question Juror 3 about whether he could be 19 fair and impartial despite his comments strongly favoring the prosecution: The 20 following exchange between defense counsel and Juror 3 occurred.
5
1 Defense Counsel: So . . . you believe that when someone is accused of 2 a crime, they’re probably guilty?
3 Juror 3: No. I believe that when the guys have done their 4 background work and they’ve brought it to this stage of the legal 5 process, there’s enough merit that it smells real bad and it should be 6 prosecuted, and it’s highly likely that he should be prosecuted to the 7 tenth letter of the law. . . .Certain behaviors should never be tolerated 8 or accepted in our society.
9 Defense Counsel: So were you retired law enforcement as well? 10 Juror 3: You could say that.
11 Defense Counsel: Ok. So as a law enforcement officer, you understand 12 that the job is to enforce the laws and the Constitution of the United 13 States, correct?
14 Juror 3: So that’s part of it. That’s how officers have full 15 discretion.
16 District Court: Yeah, I’m going to, I’m going to stop this. I’m going 17 to ask you to stop [Juror 3]. I’m going to ask you to stop.
18 Juror 3 (talking over the Judge): I have personal knowledge.
19 District Court: [Juror 3] I asked you to stop. In fact, I am going to 20 ask [the bailiff] to escort [you] out of the courtroom please.
21 {7} After Juror 3 was escorted out of the courtroom, the district court addressed 22 the remaining panel members. The court asked whether anyone who had not already 23 indicated bias in favor of the prosecution was persuaded by Juror 3 that Defendant 24 is guilty. The court asked,
25 When [Juror 3] says, “I know he is guilty,” does that, did that persuade 26 you to believe now that this Defendant is guilty because [Juror 3], a 27 former lawyer, law enforcement officer, prosecutor, [and] defense
6
1 attorney believes that? Anybody believe that this Defendant is guilty 2 because [Juror 3] stated that multiple times? Anyone? Raise your hand.
3 No one raised their hand. 4 {8} The district court then gave defense counsel an opportunity to continue with 5 voir dire. Defense counsel began by explaining to the panel that the purpose of voir 6 dire was to ensure that those who serve on a jury are fair and impartial and stated,
7 The purpose of this voir dire is to find people that are fair and impartial. 8 . . . The Constitution says this is an innocent man. As we sit here, right 9 here, he is innocent unless or until he is proven guilty beyond a 10 reasonable doubt. So, does anybody think that just because he is sitting 11 here accused that he is automatically guilty?
12 None of the panel members raised their hands or otherwise responded affirmatively. 13 {9} Defense counsel then turned to questions about other areas of potential bias 14 and to hardship that might prevent members of the panel from serving on the jury. 15 Defense counsel concluded her voir dire shortly thereafter. Defense counsel did not 16 ask about the ability of the potential jurors to be fair and impartial in light of the 17 comments made by Juror 3, nor did defense counsel inquire further about whether 18 Juror 3’s comments had influenced or affected them. 19 {10} At the conclusion of the voir dire, the district court called Juror 3 back into 20 the courtroom outside the presence of the jury panel and admonished him for failing 21 to stop talking when ordered to do so by the court. The court told Juror 3 that when 22 he says something like “he’s guilty,” that he “could actually be tainting the whole 23 jury pool.” The court excused Juror 3 and then brought those panel members who
7
1 had indicated they wanted to speak privately to the court and counsel in one at a 2 time. None of the concerns raised related to Juror 3’s comments. 3 {11} With the voir dire completed, the district court then discussed with counsel, 4 outside of the presence of the jury panel, which potential jurors should be excused 5 for cause. The court sua sponte struck Juror 3, Juror 2, and Juror 5, all of whom had 6 stated obvious bias. The court excused two other jurors (Juror 8 and Juror 20) who 7 had indicated during voir dire that they knew people involved in the case, and a third 8 (Juror 16) who had answered questions in a way that the court believed indicated 9 that they wanted to be excused. The prosecutor suggested that Juror 4 should be 10 excused for cause based on his statement that he would draw a conclusion against 11 Defendant if Defendant did not testify. When defense counsel waived exclusion of 12 Juror 4, explaining that Defendant intended to testify, the prosecutor repeated her 13 request for Juror 4’s excusal, saying that the State could not agree to a biased juror. 14 In response, defense counsel retorted that if the prosecutor really wanted a fair jury, 15 she would address Juror 3’s comments, because the comments had tainted the entire 16 panel. Defense counsel stated,
17 [Juror 3] has clearly tainted this jury. I don’t think that the statements 18 he made could be ignored. He made those statements in front of 19 everyone. Quite frankly your honor, I think he is doing it purposefully. 20 . . . The fact that he is former law enforcement. The fact that he was 21 sworn in as an attorney somewhere. He knew what he was doing and 22 he kept doing it. But he went way too far on the last one saying, “Oh 23 he’s absolutely guilty. He’s guilty.” So if that’s the State’s position, that
8
1 they must ensure a fair trial, I would say that the jurors that were in this 2 room this morning have been tainted.
3 {12} The district court asked the State for a response. The prosecutor explained that 4 she believed that the court’s questioning of the panel about Juror 3’s comments 5 adequately showed the jury had not been biased by Juror 3. The prosecutor 6 distinguished her objections to Juror 4, whom she described as subject to excusal 7 because he explicitly stated that he could not be fair and impartial. At the end of this 8 discussion, the district court denied the prosecutor’s request to excuse Juror 4 for 9 cause. Again, Defense counsel did not raise the question of whether the panel as a 10 whole was biased by Juror 3’s comments with the court, nor did defense counsel 11 move to excuse the entire panel or any particular potential juror for cause, or ask to 12 call any potential jurors back for further questioning about the impact of Juror 3’s 13 comments on their ability to be fair and impartial. 14 {13} The court and counsel, instead, turned to excusals for cause based on conflict 15 with potential jurors’ work schedules. These were rejected because of the court’s 16 concern that given the number of excusals for cause and the number of preemptory 17 challenges yet to be exercised, there might not be enough potential jurors among the 18 two panels to choose twelve jurors and two alternates. 19 {14} The court then proceeded to preemptory strikes: five for the defense and three 20 for the State. At the conclusion of these strikes, eleven jurors had been selected from 21 the first panel.
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1 {15} The court proceeded to voir dire the second panel that afternoon, seating a 2 twelfth juror and two alternates from the second panel of seven potential jurors.1 The 3 case proceeded to trial and resumed the next morning. 4 {16} The facts relevant to Defendant’s double jeopardy claim will be included in 5 our discussion of that issue. 6 DISCUSSION
7 I. The District Court Did Not Abuse Its Discretion in Not Dismissing the 8 Jury Panel 9 {17} Defendant first argues that the district court violated his right to a fair and
10 impartial jury by failing to excuse the remaining members of the first panel after 11 Juror 3, an attorney and former law enforcement officer, expressed his belief 12 multiple times during voir dire that any defendant brought to trial by the criminal 13 justice system for a violent crime is guilty. Defendant contends that the district 14 court’s failure to dismiss the entire panel sua sponte requires reversal and a new trial. 15 {18} The State contends that in order for Defendant to prevail on an argument that 16 a potential juror’s comments during voir dire tainted the entire jury panel, Defendant 17 has the burden of establishing that the comments “unfairly affected the jury’s 18 deliberative process and resulted in an unfair jury.” See State v. Mann, 2002-NMSC-
1
We note that contrary to Defendant’s suggestion on appeal, due to the number of panelists, the district court could not have seated a jury of twelve from the second panel alone had the entire first panel been excused. The trial would have had to be postponed, and a jury selected from a new venire.
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1 001, ¶ 20, 131 N.M. 459, 39 P.3d 124. The State asks this Court to affirm based on 2 the failure of Defendant to elicit any evidence showing that Juror 3’s comments 3 biased any of the eleven jurors seated from the first panel. 4 {19} We agree with the State that Defendant is required to show bias where the 5 allegedly prejudicial comments were made in open court, as they were here. There 6 is no presumption of prejudice under these circumstances; Defendant is required to 7 point to evidence of actual bias. Defendant having had the opportunity to voir dire 8 the potential jurors, and having failed to produce any evidence of actual bias based 9 on Juror 3’s comments, the district court did not abuse its discretion in seating eleven 10 jurors from that panel. We explain. 11 {20} “We review the [district] court’s rulings regarding the selection of jurors for 12 an abuse of discretion.” State v. Johnson, 2010-NMSC-016, ¶ 31, 148 N.M. 50, 229 13 P.3d 523 (text only) (citation omitted). The abuse of discretion standard is applied 14 recognizing that “the [district] court is in the best position to assess a juror’s state of 15 mind, based upon the juror’s demeanor and credibility.” Id. (internal quotation marks 16 and citation omitted). “An abuse of discretion exists when the [district] court acted 17 in an obviously erroneous, arbitrary, or unwarranted manner.” Id. (internal quotation 18 marks and citation omitted). 19 {21} In examining whether statements heard by a juror or potential juror require 20 the exclusion for cause of other potential jurors or the replacement of seated jurors
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1 with an alternate, our courts draw a clear distinction between comments heard 2 outside the courtroom, and comments made by a juror or potential juror in open 3 court. See State v. Price, 1986-NMCA-036, ¶ 29, 104 N.M. 703, 726 P.2d 857. 4 Where a potentially prejudicial statement is heard by a juror or potential juror in the 5 hallway, at home, or through the media, such a comment is viewed by this Court as 6 presumptively prejudicial, requiring the exclusion of any juror who heard the 7 communication unless the State demonstrates the absence of prejudicial content. See 8 State v. Gutierrez, 1967-NMCA-024, ¶ 17, 78 N.M. 529, 433 P.2d 508 (holding that 9 “any unauthorized communication [with a juror or potential juror outside the 10 courtroom] is presumptively prejudicial”). 11 {22} In contrast, where the parties are present with their counsel in open court, and 12 an improper comment is made by another juror or potential juror, there is no 13 presumption of prejudice. See Price, 1986-NMCA-036, ¶ 29 (holding that when a 14 defendant “complains of juror conduct, which occurred in open court, in defendant’s 15 presence . . . no presumption [arises]; defendant has the burden of demonstrating 16 prejudice). It is the party seeking to exclude the jurors or potential jurors who heard 17 the comment, or to have the court declare a mistrial, who bears the burden of proving 18 that the jurors were actually biased by comments made or questions asked during 19 voir dire and could no longer be fair and impartial. See id. This rule has been held to 20 apply when a defendant claims on appeal that questions asked by a prosecutor during
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1 voir dire prejudiced the jury. See Johnson, 2010-NMSC-016, ¶ 31 (“The challenging 2 party bears the burden of proving jury bias.”). 3 {23} In this case, during voir dire, Juror 3 disclosed his own bias against anyone 4 accused of a violent crime and brought to trial by the criminal justice system. 5 Defendant, his counsel, the prosecutors, and the judge were all present in the 6 courtroom and the proceedings were on the record. Juror 3 not only stated his bias, 7 but also went on to explain his reasons for his belief that all defendants brought to 8 trial on a violent crime were guilty. Juror 3 based his opinion on his experience as 9 an attorney and former law enforcement officer, mentioning specifically that “some 10 [of the] tricks he learned” as a defense attorney made him believe that anyone 11 brought to trial was guilty. 12 {24} Although the district court interrupted when Juror 3 began to restate his bias 13 against defendants accused of violent crimes, attempting to prevent Juror 3 from 14 repeating his comments, defense counsel did not halt her questioning of Juror 3, and, 15 as a result, Juror 3 had the opportunity to make the same comment multiple times.2
2
The State asks this Court to decide this appeal against the defense based on the doctrine of invited error. Although we recognize that Juror 3 may have been given an opportunity to expand or repeat his comments due to defense counsel’s continued questioning of Juror 3, aimed at establishing whether he could set his bias aside and be fair and impartial, this is not the kind of intentional contribution to a ruling of the court that defines invited error. See Chris L. v. Vanessa O., 2013-
NMCA-107, ¶ 27, 320 P.3d 16 (“Invited error occurs where a party has contributed, at least in part, to perceived shortcomings in a trial court’s ruling, and, as a result,
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1 Juror 3 ignored the court’s direct order to stop talking and this, of course, also 2 contributed to his biased comments being heard multiple times by the jury. 3 {25} Although it is possible that some comments made in the presence of potential 4 jurors by a panel member or by counsel may be so inherently prejudicial that the 5 nature of the comment alone is sufficient evidence that the impartiality of the jury 6 was compromised, this is not such a case. Juror 3’s statements were based on his 7 past experience. They did not communicate specific extraneous information about 8 Defendant, or about the events leading to his prosecution. It is evidence of prior bad 9 acts of the defendant or about the events that form the basis of the charges to be 10 heard by the jury that have been held to be inherently prejudicial. See State v. Perea, 11 1981-NMCA-033, ¶¶ 14-15, 95 N.M. 777, 626 P.2d 851 (holding that juror exposure 12 by another juror to a newspaper article suggesting that the defendant was guilty 13 required a new trial). A comment by a potential juror showing bias against a category 14 of defendants or a type of crime, based solely on a juror’s past experience unrelated 15 to the particular defendant, has been found to be less inherently prejudicial. See 16 Mann, 2002-NMSC-001, ¶¶ 23-24 (distinguishing extraneous information directly 17 related to the specific case from more general information about similar events 18 known to a juror from past experience, and finding only the directly related
the party should hardly be heard to complain about those shortcomings on appeal.”
(text only) (citation omitted)).
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1 information sufficiently prejudicial on its face to require reversal without additional 2 evidence of actual bias). 3 {26} Given then that Juror 3’s comments were made in open court, and that they 4 did not concern Defendant or the events at issue in his case, but instead concerned 5 similar events based on his past experience, the district court did not abuse its 6 discretion when it responded to Juror 3’s comments by excluding Juror 3 from the 7 courtroom, excusing him for cause, and inquiring of the remaining panel members 8 about the impact of Juror 3’s comments on their belief as to Defendant’s guilt. See 9 State v. Gardner, 2003-NMCA-107, ¶ 9, 134 N.M. 294, 76 P.3d 47 (holding that the 10 district court responds properly when it investigates biased comments from a panel 11 member to determine whether any potential juror who heard the comments actually 12 shares the bias of the speaker). 13 {27} Because the burden of showing actual bias on the part of the potential jurors 14 who heard Juror 3’s comments in open court during voir dire is on Defendant, the 15 party seeking their exclusion for cause, Defendant cannot now obtain a new trial by 16 arguing that the district court failed to do enough to establish the impartiality of the 17 remaining panel members. Defendant does not claim that he was denied the 18 opportunity to freely question the remaining potential jurors after Juror 3 was 19 excluded from the courtroom and after the court questioned the panel. Indeed, the
15
1 court provided defense counsel with an opportunity to freely question the remaining 2 jurors immediately after its question to the panel was answered. 3 {28} If Defendant believed that the court’s inquiry was insufficient, and that further 4 questioning of some or all of the remaining panel members was needed, “Defendant 5 could have proceeded with additional voir dire of the remaining jurors, an 6 appropriate next step if further investigation was needed.” See id. ¶ 13. Defense 7 counsel, instead, admonished the panel about their duty to be fair and impartial, and 8 then asked the panel, “So, does anybody think that just because he is sitting here 9 accused that he is automatically guilty?” No juror indicated that they believed the 10 accused is “automatically guilty” in response to defense counsel’s question. Defense 11 counsel then turned to questions about other areas of potential bias and hardship. 12 {29} Having had the opportunity to voir dire the potential jurors to either discover 13 any actual bias related to Juror 3’s comments, or to firmly disprove bias arising from 14 those comments, Defendant “cannot now obtain relief [on appeal] in the form of a 15 new trial” by claiming that the district court failed to do enough to disprove juror 16 bias. See id.; see also State v. Sanchez, 1995-NMSC-053, ¶ 11, 120 N.M. 247, 901 17 P.2d 178 (“[B]y failing to question the juror during voir dire, [Defendant] waived 18 any objection to the juror’s participation in the trial.”).
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1 II. Defendant’s Convictions for Aggravated Battery Against a Household 2 Member by Strangulation, and False Imprisonment Do Not Violate the 3 Double Jeopardy Clause
4 {30} Defendant next contends that his convictions for aggravated battery against a 5 household member by strangulation, contrary to NMSA 1978, Section 30-3- 6 16(C)(3) (2018), and false imprisonment, contrary to NMSA 1978, Section 30-4-3 7 (1963), violate his right to be free from double jeopardy. We disagree. 8 A. Background Relevant to Defendant’s Double Jeopardy Claim 9 {31} The State presented the following evidence during trial relevant to 10 Defendant’s double jeopardy claim. On December 4, 2019, when the events at issue 11 occurred, Defendant and Victim were in an on- and off- relationship. Victim invited 12 Defendant to her apartment. He arrived sometime later. The two eventually went 13 into her bedroom. 14 {32} While in Victim’s bedroom, Defendant and Victim began to argue. Defendant 15 put his entire body on top of Victim, who was lying on the bed, and, while holding 16 her down with his weight, put his hands around her neck, briefly stopping her from 17 breathing. He then took Victim’s phone from her. When Defendant calmed down, 18 Victim requested her phone back, and he returned it to her. 19 {33} Approximately ten minutes after the first incident, Defendant once again got 20 on top of Victim, and strangled her to the point “where [she] couldn’t breathe at all,” 21 and “started to see stars.” This time, when Defendant allowed her to get up, Victim
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1 sent her grandmother a text message asking her to call the police. Defendant saw 2 Victim’s text message and fled before the police arrived. Victim testified that she 3 did not seek help until after this second incident because Defendant had “calmed 4 down” and she thought she was safe. 5 {34} Dr. Ralph Holtsworth, an emergency room physician, treated Victim a few 6 hours after these incidents. Dr. Holtsworth testified that Victim reported two events 7 of strangulation: a first incident where Defendant approached her neck “from the 8 front with both hands,” and another, which Victim described to Dr. Holtsworth as 9 was “much worse,” and caused her to see stars, which Dr. Holtsworth described as 10 an indication of potential brain damage. Dr. Holtsworth testified that he found 11 Victim’s injuries to be consistent with her version of being restrained and strangled 12 by Defendant two times. 13 B. Standard of Review 14 {35} We apply a de novo standard of review to a double jeopardy claim. See State 15 v. Cummings, 2018-NMCA-055, ¶ 6, 425 P.3d 745. The Double Jeopardy Clause of 16 the Fifth Amendment of the United States Constitution, made applicable to the states 17 by the Fourteenth Amendment, protects against “multiple punishments for the same 18 offense.” State v. Sena, 2020-NMSC-011, ¶ 44, 470 P.3d 227 (internal quotation 19 marks and citation omitted). Defendant does not argue that the New Mexico 20 Constitution affords him greater rights than the Fifth Amendment, so we review
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1 Defendant’s claim only pursuant to the federal right. See id. (reviewing double 2 jeopardy claims only pursuant to the Fifth Amendment when the defendant does not 3 argue that the New Mexico Constitution affords greater protections than the United 4 States Constitution). 5 C. Defendant’s Double Description Claim 6 {36} Defendant raises what is known as a double description claim. A double 7 description violation of double jeopardy occurs when an individual is convicted of 8 more than one offense under different statutes for a single act or course of conduct. 9 See State v. Vigil, 2021-NMCA-024, ¶ 17, 489 P.3d 974. Defendant argues that he 10 was convicted of both aggravated battery of a household member by strangulation 11 and false imprisonment based on his conduct in restraining Victim with his body and 12 strangling Victim, which he claims was a single, unitary course of conduct. 13 {37} Double description claims are subject to the two-part test adopted by our 14 Supreme Court in Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 15 1223. “The first part [of the test] focuses on the conduct and asks whether the 16 conduct underlying the offenses in unitary, i.e., whether the same conduct violates 17 multiple statutes.” Sena, 2020-NMSC-011, ¶ 45 (alteration, internal quotation 18 marks, and citation omitted). Because we conclude that the evidence at trial 19 established that Defendant engaged in two acts, separated by sufficient indicia of 20 distinctness, his conduct was not unitary. The first part of the double description test
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1 is, therefore, dispositive, and we need not proceed to the second part of the test, 2 which examines “whether the [L]egislature intended to create separately punishable 3 offenses” based on the same conduct. Id. ¶ 45. 4 D. The Conduct Underlying Defendant’s Convictions Was Not Unitary 5 {38} In determining whether Defendant’s conduct is unitary, we must determine 6 whether the two offenses the jury found Defendant committed were separated by 7 “sufficient indicia of distinctness.” Swafford, 1991-NMSC-043, ¶ 26. 8 {39} Our Supreme Court recently held that in determining whether the conduct 9 forming the basis of each conviction in a double description case is sufficiently 10 distinct to avoid a double jeopardy violation, our courts should rely on the six factors 11 identified in Herron v. State, 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624. 12 See State v. Phillips, ___-NMSC-___, ¶ 38, ___ P.3d ___ (S-1-SC-38910, Mar. 4, 13 2024) (holding that New Mexico applies the Herron factors to determine whether 14 there is distinct conduct in double description cases). The factors considered in 15 Herron include: “(1) temporal proximity of the acts, (2) location of the victim during 16 each act, (3) the existence of intervening events, (4) the sequencing of the acts, (5) 17 the defendant’s intent as evidenced by his conduct and utterances, and (6) the 18 number of victims.” Phillips, ___-NMSC-___, ¶ 12. In evaluating these factors, we 19 look to “the elements of the charged offenses, the facts presented at trial, and the 20 instructions given to the jury.” Id. ¶ 38 (internal quotation marks and citation
20
1 omitted). “The proper analysis is . . . whether there are sufficient facts in the record 2 to support distinct conduct” thereby defeating a double jeopardy claim. Id. ¶ 41 3 (internal quotation marks and citation omitted). 4 {40} As to the offense of aggravated battery by strangulation, the jury instructions 5 directed the jury to convict if it found that Defendant “touched or applied force to 6 [Victim] by strangling her.” The jury instruction for false imprisonment informed 7 the jury that it must convict if it determined that Defendant “restrained or confined 8 [Victim] against her will.” Although the false imprisonment instruction does not 9 mention strangulation, the State, in its closing argument, told the jury that Defendant 10 had confined Victim by strangulation, stating that “mounting someone and applying 11 pressure to their neck is inherently . . . confining.” We, therefore, assume that the 12 jury relied on Defendant’s conduct in strangling Victim to convict of both offenses.3 13 {41} We next turn to the evidence at trial to determine whether there are sufficient 14 facts in the record to support two distinct, nonunitary acts of strangulation by
3
Even if the State had not argued that the conduct in committing the two offenses was the same, we would be required by the Foster presumption to assume that the two offenses were committed the same way. See State v. Foster, 1999-
NMSC-007, ¶ 28, 126 N.M. 646, 974 P.2d 140 (holding that because we cannot assume that jurors will know how to reach a verdict without violating the Double Jeopardy Clause, “we must presume that a conviction under a general verdict requires reversal if the jury is instructed on an alternative basis for the conviction that would result in double jeopardy, and the record does not disclose whether the jury relied on this legally inadequate alternative”), abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683.
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1 Defendant. Distinct conduct is supported by evidence in the record that “one crime 2 is completed before another is committed,” or “when the force used to commit a 3 crime is separate from the force used to commit another crime.” Phillips, ___- 4 NMSC-___, ¶ 38 (internal quotation marks and citation omitted). As previously 5 noted, this Court also looks to the six factors adopted by our Supreme Court in 6 Herron, 1991-NMSC-012, ¶ 15, to determine whether there are sufficient facts in 7 the record to support distinct, nonunitary conduct. See Phillips, ___-NMSC-___, 8 ¶ 38. 9 {42} We conclude that the evidence in the record is sufficient to support conviction 10 of each offense—aggravated battery by strangulation and false imprisonment of 11 Victim—based on distinct conduct. Victim testified that she and Defendant argued 12 after Defendant’s arrival at her house. Defendant then mounted on top of Victim on 13 her bed, with the full weight of his body on her, and strangled her with his hands 14 around her neck from the front. Victim testified that Defendant stopped strangling 15 her after “a second.” Defendant then took Victim’s phone. A period of 16 approximately ten minutes followed, during which Defendant calmed down enough 17 that Victim was comfortable asking him to return her phone, and he did. Victim 18 testified that she did not send her grandmother a text message asking her to call the 19 police when she got her phone back because Defendant had “calmed down” and she 20 no longer felt that he was likely to strangle her again.
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1 {43} After these approximately ten minutes, Defendant again got on top of Victim 2 on the bed and again strangled her. Victim testified that this second time, she could 3 not breathe for so long that she began to lose consciousness and saw stars. Dr. 4 Holtsworth, the emergency room physician who examined and treated Victim, said 5 that Victim described this second incident as “much worse.” Dr. Holtsworth also 6 testified that he found Victim’s injuries to be consistent with her description of two 7 acts of strangulation. 8 {44} This evidence of two acts by Defendant, separated by ten minutes during 9 which Defendant calmed down sufficiently to be willing to return Victim’s phone, 10 is sufficient to establish that each conviction was supported by distinct, nonunitary 11 conduct. The evidence shows that the first crime, restraining or confining Victim by 12 mounting on top of her and briefly strangling her, was completed ten minutes before 13 Defendant committed a second crime, this time strangling Victim for a much longer 14 period of time. Additionally, the second time, the strangulation was accompanied by 15 force sufficient force to cut off her breath completely, so that she nearly lost 16 consciousness and saw stars. See Phillips, ___-NMSC-___, ¶ 38 (“Unitary conduct 17 is not present when one crime is completed before another is committed, or when 18 the force used to commit a crime is separate from the force used to commit another 19 crime.” (internal quotation marks and citation omitted)). The time between the two
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1 acts, the intervening events that transpired between the two acts, and the change in 2 Defendant’s intent, all support the distinct, nonunitary nature of the two offenses. 3 {45} Because Defendant’s conduct was not unitary, we conclude that Defendant’s 4 convictions for false imprisonment and aggravated battery by strangulation do not 5 result in a violation of the double jeopardy clause. 6 CONCLUSION 7 {46} Finding no error, we affirm the district court’s entry of judgment and sentence. 8 {47} IT IS SO ORDERED.
9 _________________________________ 10 JANE B. YOHALEM, Judge
11 WE CONCUR:
12 _________________________________ 13 KRISTINA BOGARDUS, Judge
14 _________________________________ 15 SHAMMARA H. HENDERSON, Judge