State v. Morro

1999 NMCA 118, 987 P.2d 420, 127 N.M. 763
CourtNew Mexico Court of Appeals
DecidedJuly 9, 1999
Docket19,731
StatusPublished
Cited by31 cases

This text of 1999 NMCA 118 (State v. Morro) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Morro, 1999 NMCA 118, 987 P.2d 420, 127 N.M. 763 (N.M. Ct. App. 1999).

Opinion

OPINION

HARTZ, Judge.

{1} Defendant appeals his convictions on ten counts of defacing tombs, in violation of NMSA 1978, § 30-12-13 (1989). His sole contention is that the district court should have merged the ten counts into one because damage to ten gravestones during a single criminal episode, with a single intent, constitutes only one violation of the statute. We disagree and affirm the convictions.

I. BACKGROUND

{2} In the early morning of June 15, 1997, Hobbs police officer Mark Herrera investigated a report of vandalism at the Prairie Haven Cemetery. He found damage to ten gravestones. Herrera noticed Defendant watching the investigation from his home across the street from the cemetery. Upon being questioned by Herrera, Defendant admitted to the vandalism. Defendant found the sledgehammer that he had used to damage the gravestones and gave it to Herrera.

{3} In a recorded statement Defendant explained that he went to the cemetery to damage Kristi Martinez’s gravestone as a way of “disrespecting” a man who had been Kristi’s boyfriend. This man had hit him in the mouth a few days earlier and had come by his house on the night of the incident, threatening to fight him again. After the man left, Defendant drank a fifth of whiskey, grabbed a sledgehammer, and went to the cemetery. He destroyed Kristi’s gravestone and then attacked the other gravestones because he was “just pissed off.” When asked whether he knew how many gravestones he had damaged, he answered, “No, I just know that one, for sure.”

{4} Defendant was charged in magistrate court with ten counts of defacing tombs. He filed a motion to merge his ten counts into one, but the court denied the motion. After a bench trial Defendant was convicted on all ten counts. He was sentenced to 364 days in jail on each count, with the sentences to run consecutively. He was also fined $1,000 on each count. All jail time and fines were to be suspended upon Defendant’s payment of restitution of $5982.34. The total damage to the gravestones was $13,137.33, but all except $5982.34 was covered by insurance.

{5} Defendant then exercised his right to a de novo appeal in district court. See NMSA 1978, §§ 35-13-1 (1975), 35-13-2 (1996); Rule 6-703 NMRA 1999. Before trial he moved to dismiss nine of the ten counts or, in the alternative, to merge the ten counts into one. The district court denied the motion. Defendant was found guilty after a bench trial. The district court sentenced Defendant to 364 days in jail on each count. The sentences on counts I through III were ordered to run consecutively to each other, and the sentences on counts IV through X were ordered to run concurrently with each other and consecutively to the sentence on Count III. The court suspended the sentences on counts IV through X and placed Defendant on probation for 364 days upon release from confinement. One condition of probation was that Defendant pay restitution of the full damages of $13,137.33.

{6} Defendant contends that the district court erred as a matter of law in refusing to limit prosecution to a single count of defacing tombs. He argues that (1) “the statute does not manifest legislative intent for multiple punishments for a single criminal transaction”; (2) policy considerations compel merger of Defendant’s ten convictions; and (3) even if multiple punishments may be permissible in some circumstances, “there is insufficient evidence of [Defendant’s] separate criminal intent to damage each headstone, and thus insufficient evidence to support more than one count.” He notes, correctly, that if multiple punishments are not authorized by statute, the punishments violate the constitutional prohibition against double jeopardy. See Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Herron v. State, 111 N.M. 357, 359, 805 P.2d 624, 626 (1991).

II. DISCUSSION

{7} Defendant was convicted of multiple violations of one statute. Whether that was permissible depends upon our determination of the proper unit of prosecution for the statute. Is the unit of prosecution damage to a single gravestone, one episode of damaging gravestones, or something in between?

{8} Because the general law on the subject was recently summarized by our Court in State v. Barr, 1999-NMCA-081, ¶¶ 9-23, 127 N.M. 504, 984 P.2d 185, we need not retread the same ground in detail. We set forth only a few propositions that govern this case.

{9} To begin with, the unit of prosecution is a matter for legislative determination. See Herron, 111 N.M. at 359, 805 P.2d at 626 (the issue is one of statutory construction); Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991). If the statute is explicit, we must follow the statute. For example, in 1995 the Legislature amended the embezzlement statute to add the following sentence: “Each separate incident of embezzlement or conversion constitutes a separate and distinct offense.” ' NMSA 1978, § 30-16-8 (1995). The amendment was apparently a response to the decision in State v. Brooks, 117 N.M. 751, 877 P.2d 557 (1994), and overrides anything to the contrary in Brooks.

{10} Ordinarily, however, the Legislature is not so explicit. Then the courts must rely on presumptions. One presumption is that a defendant can be prosecuted for two separate offenses if the defendant’s acts are “separated by sufficient indicia of distinctness.” Swafford, 112 N.M. at 13, 810 P.2d at 1233. In Barr we wrote:

In determining whether an act is distinct in the specific context of a unit-of-proseeution case, the Herron court looked at the following factors: (1) temporal proximity of the acts; (2) location of the victim(s) during each act; (3) existence of an intervening event; (4) sequencing of acts; (5) defendant’s intent as evidenced by his conduct and utterances; and (6) the number of victims.

Barr, 1999-NMCA-081, ¶ 16, 127 N.M. 504, 984 P.2d 185. A factor of particular importance is the last one. See id.

{11} Thus, in deciding the appropriate unit of prosecution under a statute, we do not start from scratch with every new statute and somehow attempt to divine unexpressed legislative intent. When the statutory language provides no answer, we have what amounts to a canon of construction. If analysis of the six factors indicates that two acts constitute separate offenses under the statute, we will presume that to be the legislative intent, until the Legislature amends the statute to indicate otherwise. By the same token, when the factors indicate that the acts constitute a single offense, we will rule accordingly, until directed otherwise by the Legislature.

{12} In applying these factors, we will examine the elements of the offense and any policy underlying the specific statute. But we need look no further for general policy regarding the appropriate unit of prosecution. That general policy has been set by the six-factor approach.

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Cite This Page — Counsel Stack

Bluebook (online)
1999 NMCA 118, 987 P.2d 420, 127 N.M. 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morro-nmctapp-1999.