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: December 4, 2023
4 No. A-1-CA-40597
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 ADRIAN D. VASQUEZ a/k/a 9 ADRIAN DION VASQUEZ,
10 Defendant-Appellant.
11 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 12 Angie K. Schneider, District Court Judge
13 Raúl Torrez, Attorney General 14 Santa Fe, NM 15 Leland M. Churan, Assistant Attorney General 16 Albuquerque, NM
17 for Appellee
18 Bennett J. Baur, Chief Public Defender 19 Nina Lalevic, Assistant Appellate Defender 20 Santa Fe, NM
21 for Appellant 1 OPINION
2 WRAY, Judge.
3 {1} Defendant was convicted on multiple charges after entering a home with two
4 other individuals—all three of them armed—to confront another individual about a
5 romantic entanglement. The individual was not there, only three other teenagers,
6 whom Defendant and the others kept in the home, with weapons drawn, in
7 anticipation of a confrontation that never occurred. A jury convicted Defendant on
8 eight counts: aggravated burglary with a deadly weapon, conspiracy, three counts of
9 false imprisonment, and three counts of aggravated assault with a deadly weapon.
10 At sentencing, the district court applied firearm enhancements, found aggravating
11 circumstances, suspended a portion of the sentence, and ultimately sentenced
12 Defendant to thirty years in prison. On appeal, Defendant argues that six of the
13 convictions violate double jeopardy and that the district court abused its discretion
14 in aggravating and enhancing the sentence. As to double jeopardy, we conclude that
15 three of the convictions must be vacated, because Defendant’s conduct was unitary
16 and based on the State’s theory of the present case, the Legislature did not intend to
17 create separately punishable offenses. As to sentencing, we affirm in large part the
18 district court’s aggravation of Defendant’s sentence but hold that whether Defendant
19 “was armed” should not have been an aggravating factor in the present
20 circumstances. We reverse and remand for resentencing. 1 BACKGROUND
2 {2} J.S., who was seventeen years old at the time of the incident, testified that at
3 about nine-forty-five or ten o’clock in the evening, she left her home to visit her
4 boyfriend next door. She left the door unlocked, and left two friends, N.T. and N.Y.,
5 inside the home. After N.Y. and N.T. were left alone, Defendant walked into the
6 room, and N.Y. did not know how Defendant got into the house. N.T. greeted
7 Defendant and asked why he was there, Defendant pulled out a gun and said he was
8 looking for another friend of theirs, T.B., whom Defendant believed had been
9 sexually involved with A.C., Defendant’s girlfriend. Defendant called for two other
10 individuals to come into the room, and those two people also had guns. During this
11 time, Defendant directed N.Y. and N.T. to sit down and the doors were locked. With
12 weapon in hand, Defendant ordered N.Y. and N.T. to put their cell phones on a table.
13 {3} When J.S. returned ten minutes later, the deadbolt was locked, and she banged
14 on the door. Inside, Defendant told N.T. to open the door, and when N.T. opened
15 the door, he told J.S. “there w[ere] people with guns in the house.” J.S. did not
16 believe N.T. and came inside. Once J.S. entered the “den area,” where N.T. and N.Y.
17 were seated, Defendant ordered her to sit down and put her cell phone on the table.
18 J.S. testified that Defendant told them that he was “pretty much here to beat up
19 [T.B.], shoot him . . . we’re just waiting for [T.B.] to get here.” T.B. eventually called
20 J.S.’s cell phone. Defendant held the gun to J.S.’s head and told her to answer the
2 1 phone and tell T.B. to come inside. J.S. answered the phone and spoke with T.B.
2 After the call, J.S. asked to go to the bathroom and escaped to the house next door
3 for help. Defendant and the two other individuals left before the police arrived. T.B.
4 did not come inside, and no one was physically injured.
5 {4} The jury convicted Defendant for each of the eight charged counts. The jury
6 was additionally requested to find—and did find—that Defendant brandished a
7 firearm for each charge, except the conspiracy charge. Defendant waived the right
8 to have a jury decide aggravating circumstances, and at a later hearing, the district
9 court found aggravating circumstances for five of the convictions, omitting only the
10 three convictions for aggravated assault with a deadly weapon. The district court
11 additionally enhanced all of Defendant’s sentences based on the brandishing of a
12 firearm during the commission of the crimes. Defendant received a sentence of fifty
13 and one-half years, with twenty and one-half years suspended. Defendant appeals.
14 DISCUSSION
15 {5} Defendant raises three issues on appeal: (1) the punishment for each of the six
16 convictions—arising from the three aggravated assault charges and the three false
17 imprisonment charges—violates double jeopardy protections; (2) the district court
18 relied on improper evidence to aggravate the basic sentences for Defendant’s
19 convictions; and (3) the district court did not instruct the jury to make the requisite
20 findings to support the firearm enhancement for the conspiracy conviction. See
3 1 NMSA 1978, § 31-18-16(A) (1993, amended 2022) (requiring a “separate finding
2 of fact by the court or jury” to enhance the basic sentence based on the brandishing
3 of a firearm during the commission of a noncapital felony). The State concedes that
4 the firearm enhancement for the conspiracy charge was not submitted to the jury,
5 and having reviewed the record, we accept the State’s concession. See State v.
6 Serrato, 2021-NMCA-027, ¶ 13, 493 P.3d 383 (accepting the state’s concession after
7 review). We begin the remainder of our review with the double jeopardy arguments.
8 I. Defendant’s Punishment Based on Convictions for Aggravated Assault 9 With a Deadly Weapon and False Imprisonment Violate Double 10 Jeopardy Protections Under These Circumstances
11 {6} The constitutional prohibition against double jeopardy protects against both
12 subsequent prosecutions and multiple punishments, and we review these issues de
13 novo. State v. Begaye, 2023-NMSC-015, ¶¶ 12, 533 P.3d 1057 (internal quotation
14 marks and citation omitted).; see U.S. Const. amend. V; N.M. Const. art. II, § 15.
15 The present case involves a multiple punishment scenario, and more specifically, a
16 “double-description” claim in which Defendant argues that multiple punishments for
17 convictions under different statutes were impermissibly based on the same, unitary
18 conduct. See Begaye, 2023-NMSC-015, ¶ 12. For this analysis, we use a two-part
19 test to first evaluate whether the conduct underlying the offenses is unitary and
20 second determine whether the “[L]egislature intended to create separately
21 punishable offenses.” Id. ¶¶ 11, 13 (internal quotation marks and citation omitted).
4 1 Defendant contends that the convictions violate double jeopardy protections because
2 (1) the conduct was “one, continuing act of restraint by gunpoint”; and (2) the
3 Legislature did not intend for multiple punishments under these circumstances
4 because the State used the same evidence to prove both crimes. Because both
5 inquiries require us to consider the elements of the charged crimes, we first review
6 the statutory elements of aggravated assault with a deadly weapon and false
7 imprisonment. See State v. Sena, 2020-NMSC-011, ¶ 46, 470 P.3d 227 (considering
8 “the elements of the charged offenses” in the unitary conduct inquiry); Begaye,
9 2023-NMSC-015, ¶¶ 22, 24 (considering the statutory elements of the charged
10 offenses to evaluate legislative intent).
11 {7} In relevant part, the aggravated assault statute outlines three ways to commit
12 the crime, by (1) “unlawfully assaulting or striking at another with a deadly
13 weapon”; (2) “committing assault by threatening or menacing another while wearing
14 a mask, hood, robe or other covering upon the face, head or body, or while disguised
15 in any manner, so as to conceal identity”; or (3) “willfully and intentionally
16 assaulting another with intent to commit any felony.” NMSA 1978, § 30-3-2(A)-(C)
17 (1963). Our Legislature has separately defined “assault,” in relevant part, as “an
18 attempt to commit a battery upon the person of another”; or “any unlawful act, threat
19 or menacing conduct which causes another person to reasonably believe that [they
20 are] in danger of receiving an immediate battery.” NMSA 1978, § 30-3-1(A), (B)
5 1 (1963); see also NMSA 1978, § 30-3-4 (1963) (defining “battery” as “the unlawful,
2 intentional touching or application of force to the person of another, when done in a
3 rude, insolent or angry manner”). The false imprisonment statute states in its
4 entirety, “False imprisonment consists of intentionally confining or restraining
5 another person without [their] consent and with knowledge that [there is] no lawful
6 authority to do so.” NMSA 1978, § 30-4-3 (1963). With this statutory background,
7 we turn to the double jeopardy analysis and “first ask whether the conduct was
8 unitary, meaning whether the same criminal conduct is the basis for both charges.”
9 State v. Reed, 2022-NMCA-025, ¶ 8, 510 P.3d 1261 (internal quotation marks and
10 citation omitted), cert. denied (S-1-SC-39187, May 3, 2022).
11 A. Defendant’s Conduct Was Unitary
12 {8} The unitary conduct inquiry “turns on sufficient indicia of distinctness
13 between the acts at issue,” id. ¶ 9 (internal quotation marks and citation omitted),
14 and “depends to a large degree on the elements of the charged offenses and the facts
15 presented at trial.” State v. Porter, 2020-NMSC-020, ¶ 12, 476 P.3d 1201 (internal
16 quotation marks and citation omitted). We focus on Defendant’s conduct to
17 determine whether the acts were distinct from each other: “Conduct is not unitary,
18 rather it is separate and distinct, when space and time separates the events.” See
19 Reed, 2022-NMCA-025, ¶ 9. Sometimes, however, we must make other inquiries or
20 look to other sources to identify the significant conduct. See Sena, 2020-NMSC-011,
6 1 ¶ 46 (identifying other considerations when time and space “do not suffice to make
2 the determination”); Porter, 2020-NMSC-020, ¶ 12 (explaining the Court’s role as
3 “identify[ing] the criminal acts and the conduct at issue”). In those circumstances,
4 “resort must be had to the quality and nature of the acts or to the objects and results
5 involved.” Sena, 2020-NMSC-011, ¶ 46 (internal quotation marks and citation
6 omitted). Additionally, “we may consider the elements of the charged offenses, the
7 facts presented at trial, and the instructions given to the jury . . . [and] whether the
8 facts presented at trial establish that the jury reasonably could have inferred
9 independent factual bases for the charged offenses.” Reed, 2022-NMCA-025, ¶ 9
10 (internal quotation marks and citations omitted). Courts have additionally “looked
11 for an event that intervened between the crimes at issue, distinguishing the crimes
12 from one another.” State v. Comitz, 2019-NMSC-011, ¶ 39, 443 P.3d 1130; see also
13 Sena, 2020-NMSC-011, ¶ 56 (concluding that the “crimes were separated by both
14 time and intervening events”). We use these tools to determine whether “the conduct
15 for which there are multiple charges is discrete (unitary) or distinguishable.”
16 Swafford v. State, 1991-NMSC-043, ¶ 28, 112 N.M. 3, 810 P.2d 1223. Where “it
17 reasonably can be said that the conduct is unitary, then we must conclude that the
18 conduct was unitary.” Porter, 2020-NMSC-020, ¶ 12 (internal quotation marks and
19 citation omitted).
7 1 {9} Defendant argues that the convictions for aggravated assault with a deadly
2 weapon and false imprisonment are based on unitary conduct because Defendant
3 committed one continuous act—holding the three victims at gunpoint. The State
4 responds that the conduct was not unitary because Defendant produced the gun “to
5 control the situation” and separately pointed the gun at or toward N.T. and N.Y.
6 Specifically, the State focuses on a moment in which N.Y. dropped an item, and
7 Defendant pointed the gun toward him. The State maintains that Defendant’s
8 conduct toward J.S. was also distinct—Defendant restrained J.S. with the gun when
9 she entered the home and later held the gun to J.S.’s head during the phone call with
10 T.B. Defendant responds, “Both convictions in this case were based upon
11 [Defendant] entering the home with a gun and leading the victims to believe
12 [Defendant] might commit a battery upon them, while at the same time using the
13 gun to prevent them from leaving.” Under the circumstances as they were developed
14 at trial, we agree with Defendant, because “it reasonably can be said that” the acts
15 that formed the basis for separate charges were not sufficiently distinct. See Porter,
16 2020-NMSC-020, ¶ 12. As we explain, Defendant’s confining and threatening
17 conduct was unitary—the same acts, not separated by space or time, confined the
18 victims to the home and also caused the teenagers to fear for their safety. See Reed,
19 2022-NMCA-025, ¶ 14 (concluding that conduct was unitary where the elements for
20 both crimes were “satisfied simultaneously”). Defendant’s acts of pointing the gun
8 1 at specific victims, under these circumstances, were not separated by sufficient
2 indicia of distinctness to conclude that the conduct was not unitary. See Porter,
3 2020-NMSC-020, ¶ 12.
4 1. Defendant’s Single Act Simultaneously Restrained and Threatened the 5 Victims
6 {10} The State argues that intervening events—Defendant’s order to sit and the
7 phone call—separated the restraint required for false imprisonment from the
8 threatening conduct that established aggravated assault with a deadly weapon, but
9 no time or space separated Defendant’s criminal acts. Defendant simultaneously
10 restrained and threatened the teenagers. Defendant entered the home and after
11 speaking for a moment with N.T. and N.Y., pulled a gun from his waistband, and
12 when the other two intruders appeared moments later, they were also armed. The
13 guns remained visible for the rest of the time that Defendant was in the home. Thus,
14 no time and space separated Defendant’s acts that formed the basis for the two
15 charges—pulling out the weapon and keeping the weapon in hand for the entire
16 incident. See Sena, 2020-NMSC-011, ¶ 46 (evaluating first whether illegal acts were
17 “sufficiently separated by either time or space (in the sense of physical distance
18 between the places where the acts occurred)” (internal quotation marks and citations
19 omitted)).
20 {11} The “quality and nature” and the “objects and results” of Defendant’s act
21 further support a conclusion that the conduct was unitary. See id. (internal quotation
9 1 marks and citation omitted). J.S. testified that she sat down and stayed because
2 “[w]hat else are you supposed to do when there are a bunch of people with guns?”
3 All three of the confined teenagers testified that they did not feel free to leave and
4 were afraid because they were told to stay, instructed to put their phones on a table,
5 and Defendant and the others had guns in their hands. Defendant testified that he
6 drew a weapon because he wanted the teenagers to know he was in control of the
7 situation but also understood why the teenagers would have been frightened in this
8 situation. Despite the orders given and the phone call, Defendant’s use of the weapon
9 to both restrain and threaten—to control—remained consistent.
10 {12} Defendant’s criminal acts of restraining and threatening the teenagers were
11 not separated by any time or physical space, nor were they distinguishable by quality,
12 nature, purpose, or object. See id. As we will develop more fully, the State’s theory
13 encouraged the jury to rely on Defendant’s use of the gun and control of the
14 situation—which the evidence demonstrates was accomplished by use of the gun—
15 to prove both aggravated assault with a deadly weapon and false imprisonment. See
16 State v. Silvas, 2015-NMSC-006, ¶ 10, 343 P.3d 616 (referencing the state’s theory
17 of the case within the unitary conduct analysis). As a result, “it reasonably can be
18 said,” see Porter, 2020-NMSC-020, ¶ 12, that Defendant’s conduct was “not only
19 unitary, but identical,” see Silvas, 2015-NMSC-006, ¶ 10.
10 1 2. The Completed Offense Doctrine Does Not Demonstrate That Defendant 2 Committed Separate Acts
3 {13} To demonstrate that the conduct was distinct, the State argues that the false
4 imprisonment was completed before Defendant committed “distinct act[s] of
5 aggression” by pointing the weapon at any specific victim. In some circumstances,
6 we consider whether “one crime [was] completed before another [was] committed”
7 in order to determine whether the conduct was unitary, which we refer to as the
8 “completed offense doctrine.” Reed, 2022-NMCA-025, ¶ 9; see id. ¶ 12 (referring to
9 the “completed offense principle”). Before we deploy the completed defense
10 doctrine, however, we must determine whether its application is appropriate to the
11 State’s arguments under these circumstances.
12 {14} Defendant, citing Reed, argues that the State should not be permitted on appeal
13 to separate the conduct when it did not separate the conduct for the jury. See id. ¶ 27.
14 Our review of the record indicates that the State’s case to the jury sufficiently
15 suggested the distinctions raised on appeal—at least with respect to J.S. and N.Y.
16 The jury instructions related to J.S. clearly permitted the jury to decide that
17 Defendant committed aggravated assault with a deadly weapon by either brandishing
18 the weapon or pointing it directly at J.S. In rebuttal closing, the State referred to the
19 moment when N.Y. dropped an item and the jury was instructed that the State was
20 required to prove that “[D]efendant brandished a firearm in front of [N.Y.]” Because
21 the jury had the opportunity to apply the evidence to the instructions as the State
11 1 suggests on appeal, we will consider the State’s arguments regarding distinct
2 conduct by Defendant.
3 {15} Before we do that, we must clear one more hurdle. As Defendant notes, even
4 if an aspect of his conduct could be viewed not to be unitary, we must consider
5 whether the jury instruction permitted the jury to convict Defendant in the
6 alternative—whether the jury could select conduct that is unitary with another
7 charged offense or conduct that is not unitary with another charged offense. In that
8 circumstance, we apply the “Foster presumption” and presume the jury relied on
9 conduct that is unitary with another charged offense. See State v. Foster, 1999-
10 NMSC-007, ¶ 37, 126 N.M. 646, 974 P.2d 140, abrogated on other grounds as
11 recognized in Sena, 2020-NMSC-011, ¶¶ 47-53. In the present case, the aggravated
12 assault with a deadly weapon jury instruction that pertained to J.S. permitted the jury
13 to convict Defendant for either “brandish[ing] a pistol in front of [J.S.] or point[ing]
14 the firearm at [J.S.]” The instruction pertaining to N.Y. permitted the jury to find
15 aggravated assault if “[D]efendant brandished a firearm in front of [N.Y.]” These
16 instructions were not specific as to the conduct on which the jury could rely. See
17 State v. Montoya, 2011-NMCA-074, ¶ 39, 150 N.M. 415, 259 P.3d 820 (concluding
18 conduct was unitary when the factual basis for the jury’s verdict could not be
19 determined from the jury instructions in the record). For both victims, the conduct
20 could have been either the general threatening conduct that we have determined is
12 1 unitary with the restraining conduct or the specific threatening conduct, identified
2 by the State. We therefore must continue to evaluate the distinctness of the specific
3 conduct identified by the State—because if none or all of that conduct was unitary,
4 there is no presumption to apply. See Sena, 2020-NMSC-011, ¶¶ 54, 56 (considering
5 and rejecting the application of the Foster presumption in the context of the
6 completed offense doctrine because none of the conduct was unitary).
7 {16} To determine whether the acts identified by the State were distinct conduct,
8 we consider the State’s arguments that (1) the false imprisonment was completed
9 before these two incidents and (2) these two incidents were sufficiently distinct acts
10 of aggression. The State contends that Defendant’s act of restraint was “completed
11 prior to the aggravated assaults” and points to State v. Dominguez, 2014-NMCA-
12 064, 327 P.3d 1092, and State v. Bachicha, 1991-NMCA-014, 111 N.M. 601, 808
13 P.2d 51. In Dominguez, the defendant deceived the victim in order to get inside the
14 home, pulled a gun from concealment, and threatened and held the gun to the
15 victim’s head. 2014-NMCA-064, ¶¶ 2-3. After that, with the gun still to her head,
16 the defendant forced the victim into a bedroom and sexually assaulted her. Id. ¶ 3.
17 This Court determined that the defendant’s use of force to kidnap the victim was
18 factually distinct from the conduct supporting the criminal sexual penetration
19 conviction. Id. ¶ 10. The use of force to accomplish the kidnapping was “complete”
20 when the victim was restrained by the weapon, “even though the restraint
13 1 continue[d] through the commission of a separate crime.” Id. The Dominguez
2 defendant held the victim at gunpoint, which rendered the encounter with the victim
3 involuntary, “and it was not until [the d]efendant moved [the v]ictim to the back
4 bedroom that he used the gun to restrain her during the” sexual assault. Id. As a
5 result, the use of the gun to restrain and to force a sexual assault did not “create
6 unitary conduct out of the independent and factually distinct bases for these crimes.”
7 Id.
8 {17} The defendant in Bachicha allowed his estranged wife and two companions
9 into his home in order to permit his wife to gather belongings. 1991-NMCA-014,
10 ¶ 2. Thereafter, the defendant produced a weapon, ordered one of the victims into a
11 room where the other two were working, and then ordered all three victims to stand
12 against a wall. Id. The defendant’s wife tried to escape. Id. ¶ 3. The defendant
13 grabbed her hair and forced her to the floor with the gun to her head. Id. Another
14 victim tried to help her, and the defendant pointed the gun at him and ordered him
15 back to the wall with verbal threats of violence. Id. Without warning, the defendant
16 then shot the third victim. Id. The defendant argued that the resulting three counts of
17 false imprisonment should have merged with the three counts of aggravated assault
18 with a firearm. Id. ¶ 6. This Court distinguished the defendant’s act of false
19 imprisonment from the acts of assault as follows: “there is evidence from which the
20 jury could properly find that defendant committed multiple acts of aggravated
14 1 assault against each victim by specifically directing and redirecting the rifle at each
2 of them, accompanied by verbal threats, while falsely imprisoning each of them.”
3 Id. ¶ 8. As a result, the “assaultive acts . . . did not constitute a single continuous
4 offense of aggravated assault upon the three victims so as to merge into the offense
5 of false imprisonment.” Id.
6 {18} The State additionally cites Comitz, 2019-NMSC-011, and argues that the two
7 “distinct act[s] of aggression”—relating to J.S. and to N.Y.—were separate from
8 Defendant’s use of the gun for restraint. In Comitz, our Supreme Court concluded
9 that an assault that began with pointed weapons and yelling concluded as the sound
10 of a siren passed and the parties quieted and lowered their guns. Id. ¶¶ 40, 42. The
11 confrontation resumed when the sound diminished and the aggravated batteries
12 occurred. Id. Because the defendant rejected an opportunity to walk away and
13 instead resumed the confrontation, the paused argument and siren stood “as
14 identifiable points marking the completion of the assaults (the initial pointing of
15 guns) and the forthcoming batteries.” Id. ¶ 42. Based on Comitz, Dominguez, and
16 Bachicha, the State argues that the false imprisonment was completed when the
17 identified distinct acts of aggression occurred and that as a result, Defendant’s
18 conduct was not unitary.
19 {19} Although Dominguez and Bachicha make clear that a defendant can be
20 convicted without running afoul of double jeopardy protections when “the same type
15 1 of force” is used for restraint and assault, the facts in the present case are different
2 in a key respect. In Dominguez, the false imprisonment began before the threatened
3 sexual assault. 2014-NMCA-064, ¶ 10. In Bachicha, the false imprisonment began
4 before the distinct individual assaults on each victim. 1991-NMCA-014, ¶¶ 2-3. In
5 the present case, Defendant’s use of the gun to restrain the teenagers did not continue
6 through to the commission of the separate crime of aggravated assault. Instead, the
7 restraint and the threat were simultaneous and ongoing. Both crimes began and were
8 completed at the same time—when Defendant drew the weapon to both restrain and
9 threaten. When J.S. later entered the room, the gun continued to serve to restrain and
10 threaten her and the others. The simultaneous and ongoing crimes of false
11 imprisonment and aggravated assault with a deadly weapon of all three teenagers
12 continued when Defendant turned the gun to J.S.’s head.
13 {20} While at the time of the phone call, Defendant used the gun to threaten and
14 coerce J.S. to act, this conduct was an extension of the earlier action to restrain and
15 threaten. The other two teenagers remained restrained and threatened in the same
16 manner. We are not unsympathetic to the increase in fear that Defendant’s action
17 caused J.S. The call, however, heightened the existing situation, rather than calmed
18 it, and did not present a clear opportunity for Defendant to reconsider his
19 involvement in the situation. These facts distinguish this case from Comitz and
20 reinforce that the earlier restraining or threatening conduct continued when the call
16 1 came in and Defendant pointed the gun at J.S. See 2019-NMSC-011, ¶ 42 (noting
2 that the sirens caused the parties to pause and gave the defendant the opportunity to
3 reconsider the encounter and thereby drew a distinction between the acts before and
4 after the siren). The simultaneous acts continued, unbroken, together, with greater
5 effect. The indicia of distinct conduct—time, physical space, and the nature of the
6 act—remained the same. See Sena, 2020-NMSC-011, ¶ 46. The specific act was not
7 separated by even seconds or any physical space and the nature of the act of pointing
8 the gun was not “separate and distinct” from the ongoing assault and false
9 imprisonment. As a result, Defendant’s act of putting the gun to J.S.’s head—in this
10 context and sequence of events—remained unitary conduct.
11 {21} Defendant’s actions toward N.Y. also remained unitary. Defendant’s conduct
12 in pointing the gun toward N.Y. after he moved suddenly to pick up an item that he
13 had dropped is consistent with using the gun to keep control of the room—the timing,
14 physical location, and nature and object of Defendant’s use of the gun did not shift.
15 Indeed, the State referred generally to this moment in its rebuttal closing as an
16 example of why the teenagers were not free to leave. Defendant continued to threaten
17 and restrain N.Y. with the gun. As a result, Defendant’s use of the gun in relation to
18 N.Y. was unitary. See Swafford, 1991-NMSC-043, ¶ 28 (“[I]t must be kept in mind
19 that the task is merely to determine whether the conduct for which there are multiple
17 1 charges is discrete (unitary) or distinguishable[, and i]f it reasonably can be said that
2 the conduct is unitary, then one must move to the second part of the inquiry.”).
3 {22} We therefore conclude that Defendant’s acts were unitary, and because there
4 was no distinct conduct on which the jury could have relied in the alternative, we
5 need not apply the Foster presumption.
6 B. The Legislature Did Not Intend Multiple Punishments for Aggravated 7 Assault With a Deadly Weapon and False Imprisonment Under These 8 Circumstances
9 {23} Having determined that Defendant’s conduct was unitary, “we proceed to ask
10 whether the Legislature intended to create separately punishable offenses.” Reed,
11 2022-NMCA-025, ¶ 8 (alteration, internal quotation marks, and citation omitted).
12 To discern the Legislature’s intent, we look first to the language of the statutes to
13 determine whether separately punishable offenses are explicitly authorized. See
14 Begaye, 2023-NMSC-015, ¶ 21. Neither the aggravated assault with a deadly
15 weapon statute, § 30-3-2, nor the false imprisonment statute, § 30-4-3, explicitly
16 authorize multiple punishments. As a result, we turn to other cannons of statutory
17 construction to determine whether the Legislature intended to create separately
18 punishable offenses, see Begaye, 2023-NMSC-015, ¶ 21, and employ either the
19 strict-elements test, as laid out in Blockburger v. United States, 284 U.S. 299, 304
20 (1932), or if the statutes are “vague and unspecific or are written in the alternative,”
21 Begaye, 2023-NMSC-015, ¶ 17, the modified Blockburger test, set forth in State v.
18 1 Gutierrez, 2011-NMSC-024, ¶ 48, 150 N.M. 232, 258 P.3d 1024. See Begaye, 2023-
2 NMSC-015, ¶¶ 15-18. We agree with the parties that the modified Blockburger test
3 applies, and compare the elements of the two offenses, “looking at the [s]tate’s legal
4 theory of how the statutes were violated.” See Begaye, 2023-NMSC-015, ¶ 24
5 (internal quotation marks and citation omitted). We first consider “the statutory
6 language, charging documents, and jury instructions used at trial.” Id. (internal
7 quotation marks and citation omitted). If this inquiry does not reveal the State’s legal
8 theory, we evaluate the testimony, opening arguments, and closing arguments. See
9 id.
10 {24} This modified Blockburger inquiry into Legislative intent bears remarkable
11 similarity to the unitary conduct inquiry, but the purpose of each inquiry remains
12 separate. The unitary conduct analysis looks to the conduct to determine whether
13 that conduct is separate and distinct. Swafford, 1991-NMSC-043, ¶ 28. We use the
14 statutory elements of the offense and the indicia of distinctness, which are often
15 drawn from testimony and the state’s arguments to the jury, to identify the relevant
16 conduct and consider whether the acts can be distinguished from each other. Only if
17 the conduct cannot reasonably be said to be separate do we turn to determine whether
18 the Legislature intended to create separately punishable offenses. Silvas, 2015-
19 NMSC-006, ¶ 11. The purpose of the modified Blockburger legislative intent
20 inquiry, on the other hand, is to determine “whether the statute, as applied by the
19 1 [s]tate in a given case, overlaps with other criminal statutes so that the accused is
2 being punished twice for the same offense.” Begaye, 2023-NMSC-015, ¶ 22 (internal
3 quotation marks and citation omitted). In the modified Blockburger statutory
4 construction analysis, we look to sources of information beyond the language of the
5 statute because though the elements of some criminal offenses can appear to be
6 distinct in the abstract, after inquiry into the state’s legal theory about how the
7 defendant violated the statutes, it can become clear that under that theory, the statutes
8 at issue become identical or that one is subsumed within the other. See Gutierrez,
9 2011-NMSC-024, ¶ 58 (noting that without the context of the state’s theory, “we run
10 the risk of misconstruing legislative intent” (internal quotation marks and citation
11 omitted)). Because the second inquiry is about legislative intent, we do not stop after
12 we identify the state’s theory. We must continue and “compare the elements of the
13 two offenses” in the context of “the state’s legal theory of the particular case as to
14 how the statutes were violated.” Begaye, 2023-NMSC-015, ¶ 17.
15 {25} To discern the State’s legal theory, we first look to the charging documents
16 and jury instructions for aggravated assault with a deadly weapon and false
17 imprisonment. See id. ¶¶ 25-26. The amended indictment charged Defendant with
18 three counts of aggravated assault with a deadly weapon by assaulting or striking
19 each victim with a firearm and clarified that the State’s legal theory for aggravated
20 assault with a deadly weapon related solely to Section 30-3-2(A), which prohibits
20 1 “unlawfully assaulting or striking at another with a deadly weapon.” Nevertheless,
2 the amended indictment does not identify the State’s legal theory as to how
3 Defendant assaulted the victims with a firearm, and we look to the jury instructions
4 for further elucidation. See Begaye, 2023-NMSC-015, ¶ 25. The district court
5 instructed that to find Defendant guilty of each count of aggravated assault with a
6 deadly weapon as to each victim, the jury would need to find the following relevant
7 elements:1
8 1. [D]efendant brandished a pistol in front of [the victim] or pointed 9 the firearm at [the victim].
10 2. [D]efendant’s conduct caused [the victim] to believe [D]efendant 11 was about to intrude on [the victim’s] bodily integrity or personal 12 safety by touching or applying force to [the victim] in a rude, 13 insolent or angry manner;
14 3. A reasonable person in the same circumstances as [the victim] 15 would have had the same belief; [and]
16 4. [D]efendant used a firearm.
17 This instruction further clarified the State’s theory and asked the jury to find that
18 Defendant assaulted the victims by brandishing or pointing a firearm—but under
19 these circumstances, when the gun was visible for the whole incident and some
20 testimony supported specific incidents of brandishing or pointing the gun, we remain
1 The instruction was slightly modified for each victim. For N.Y., the State was required to prove that Defendant “brandished a firearm in front of [N.Y.]” and for N.T., that Defendant “brandished a firearm in the presence of [N.T.] or pointed a firearm at [N.T.]”
21 1 without sufficient factual context to identify the State’s theory for the aggravated
2 assault with a deadly weapon charges.
3 {26} The amended indictment also charged Defendant with three counts of false
4 imprisonment, one for each victim, and alleged that Defendant restrained or confined
5 each victim “against [their] will and with the knowledge that he had no authority to
6 do so.” The amended indictment “shed[s] little light on the State’s legal theory” as
7 to how Defendant restrained or confined any of the victims. See id. This question is
8 not answered by the jury instruction for false imprisonment, which generically stated
9 the relevant elements as follows:
10 1. [D]efendant restrained or confined [the victim] against [the 11 victim’s] will; [and]
12 2. [D]efendant knew that he had no authority to restrain or confine 13 [the victim].
14 Because the indictment and jury instruction are not clarifying, we continue to
15 evaluate the “testimony, opening arguments, and closing arguments to establish
16 whether the same evidence supported [the] defendant’s convictions [for] both”
17 aggravated assault with a deadly weapon and false imprisonment. Id. ¶ 24 (internal
18 quotation marks and citation omitted).
19 {27} In opening argument, the State informed the jury that at the end of trial, it
20 would ask for guilty verdicts for aggravated assault with a deadly weapon “for each
21 victim, those would be [J.S., N.T., and N.Y.] all of which had guns pointed at them
22 1 and were threatened and believed that they might be shot during this incident.”
2 Regarding false imprisonment, the State explained that it would seek guilty verdicts
3 for false imprisonment “for [the victims] being restrained or confined within that
4 home without any reason to do so.” These statements provide little clarification, but
5 as the testimony proceeded, the State’s theory began to take shape. Each of the
6 victims testified that after Defendant entered the home, they did not feel free to leave
7 and stayed in part because Defendant and the two other people with him were armed
8 and during the incident the doors were locked. In closing argument, the State
9 maintained that Defendant was guilty of aggravated assault with a deadly weapon if
10 his behavior caused the victims to “believe[] reasonably that they could be shot or
11 were about to be shot or otherwise injured by [D]efendant or his co-conspirators.”
12 The State also argued that the only proof necessary for false imprisonment was that
13 Defendant “restraine[d] or confine[d] the victims without legal authority, with the
14 knowledge that he has no authority to do that.” The State additionally pointed out
15 that Defendant testified that he had studied police and military tactics about how to
16 control the victims’ movements but that Defendant had “zero legal authority to
17 restrain or confine anyone . . . Defendant has no power to arrest anyone and that’s
18 what makes him guilty of false imprisonment.”
19 {28} Based on these arguments supporting the State’s theory, we plug that theory
20 of the two crimes into the statutory scheme. Based on the statute, the charging
23 1 documents, and the jury instructions, the State’s theory as to aggravated assault with
2 a deadly weapon was that Defendant unlawfully brandished a pistol in front of the
3 victims or pointed the firearm at them (the unlawful threat element); that
4 Defendant’s conduct caused the victims to believe that Defendant was about to
5 intrude on their bodily integrity or personal safety by touching or applying force to
6 them in a rude, insolent or angry manner; that a reasonable person in the same
7 circumstances as the victims would have had the same belief; and that Defendant
8 used a firearm (the firearm element). The evidence and argument at trial
9 demonstrates that the State used the evidence of Defendant’s brandishing or pointing
10 of a gun in front of or at the victims to establish the unlawful threat element. For
11 false imprisonment, the jury had to have found that Defendant restrained or confined
12 the victims against their will (the restraint element), and that Defendant knew that
13 he had no authority to do so (unlawful element). At trial, the evidence showed that
14 the victims stayed put because Defendant and his companions had guns. Thus, the
15 jury necessarily found that (1) the State satisfied the restraint element of false
16 imprisonment and the unlawful threat element of aggravated assault with the
17 evidence that Defendant brandished or pointed a gun; and (2) the State satisfied the
18 unlawful element of false imprisonment with the same evidence that would
19 demonstrate that the aggravated assault was “unlawful.” All of the elements of false
20 imprisonment are, under these circumstances, identical to the elements of aggravated
24 1 assault with a deadly weapon, and therefore the crime of false imprisonment is
2 subsumed entirely within the crime of aggravated assault with a deadly weapon. Cf.
3 State v. Franco, 2005-NMSC-013, ¶ 12, 137 N.M. 447, 112 P.3d 1104 (explaining
4 that a presumption that the Legislature intended separate punishment arises if neither
5 statute subsumes the other—“if each offense requires proof of an element that the
6 other does not”).
7 {29} Because, under the State’s theory, the false imprisonment elements were
8 subsumed within the aggravated assault with the deadly weapon elements,
9 Defendant’s right to be free from double jeopardy was violated and “the inquiry is
10 over.” Begaye, 2023-NMSC-015, ¶¶ 35-36 (internal quotation marks and citation
11 omitted). If a defendant is wrongfully put in jeopardy twice for the same conduct,
12 one conviction must be vacated, and if “both offenses result in the same degree of
13 felony, the choice of which conviction to vacate lies in the sound discretion of the
14 district court.” Porter, 2020-NMSC-020, ¶ 42. As both offenses in the present case
15 were fourth degree felonies, see § 30-3-2; § 30-4-3, the choice of which of the
16 convictions to vacate lies with the district court, see Begaye, 2023-NMSC-015, ¶ 36.
17 We therefore remand for the district court to vacate three of Defendant’s convictions
18 and resentence him. See id.
25 1 II. That Defendant “Was Armed” Cannot Be an Aggravating Factor Under 2 These Circumstances
3 {30} Defendant additionally argues that the district court abused its discretion in
4 aggravating his sentences. See Swafford, 1991-NMSC-043, ¶ 40 (applying the abuse
5 of discretion standard of review). NMSA 1978, Section 31-18-15.1(A)(2) (2009)
6 addresses the alteration of a basic sentence, including aggravating circumstances, as
7 follows: “The judge may alter the basic sentence . . . upon . . . a finding by a jury or
8 by the judge beyond a reasonable doubt of any aggravating circumstances
9 surrounding the offense or concerning the offender.” In aggravating a sentence, the
10 district court “shall not” consider, in relevant part, whether a firearm was used “as
11 provided in Section 31-18-16,” the provision permitting a separate firearm
12 enhancement. Section 31-18-15.1(C)(1). Defendant contends that (1) Section 31-18-
13 15.1 is void for vagueness; (2) the aggravating circumstances the district court cited
14 were improper; (3) the district court did not make written findings; and (4) the
15 district court appeared “to assume that [Defendant]’s sentences would be aggravated
16 by one-third or not aggravated at all.” We resolve Defendant’s first, third, and fourth
17 arguments before turning to the factors the district court considered to aggravate the
18 sentences.
19 {31} As Defendant concedes, our Supreme Court has already held that Section 31-
20 18-15.1 is not void for vagueness. See State v. Segotta, 1983-NMSC-092, ¶ 8, 100
21 N.M. 498, 672 P.2d 1129. We are bound by that holding. See State ex rel. Martinez
26 1 v. City of Las Vegas, 2004-NMSC-009, ¶ 20, 135 N.M. 375, 89 P.3d 47 (stating that
2 “the Court of Appeals remains bound by Supreme Court precedent” (alteration,
3 omission, internal quotation marks, and citation omitted)). We further see nothing in
4 the statute or the record to support Defendant’s third and fourth arguments. Section
5 31-18-15.1(F) does not require written findings but only that the district court “issue
6 a brief statement of reasons for the alteration and incorporate that statement in the
7 record of the case.” State v. Bernal, 1987-NMCA-075, ¶ 11, 106 N.M. 117, 739 P.2d
8 986 (internal quotation marks and citation omitted); see id. ¶ 12 (“We hold that the
9 oral statement of reasons was part of the ‘record of the case’ within the meaning
10 of Section 31-18-15.1.”). The district court stated the reasons on the record at the
11 sentencing hearing, both at the beginning and near the end of sentencing. Defendant
12 argues that we should reconsider Bernal and our reading of Section 31-18-15.1. We
13 decline, however, to require more than the statute mandates, and the district court’s
14 reasons for aggravating Defendant’s sentence were stated on the record. But see
15 Bernal, 1987-NMCA-075, ¶ 11 (“Appellate review would be easier if the trial court
16 had filed a written statement of its reasons for alteration of a basic sentence, as part
17 of the court file.”). The district court’s aggravated sentences further comply with the
18 statutory directive that “in no case shall the alteration exceed one-third of the basic
19 sentence.” Section 31-18-15.1(G). The statute does not require the district court to
27 1 consider and reject a lesser than one-third aggravation of the sentence. We therefore
2 discern no error relating to these arguments.
3 {32} For the remaining argument, Defendant contends that the district court
4 improperly aggravated the sentences based on the following factors: (1) Defendant
5 was armed and armed the other intruders; (2) Defendant used the cover of darkness;
6 (3) the victims suffered trauma; (4) the victims were minors; (5) the victims were
7 innocent parties who were unrelated to the source of Defendant’s anger; and (6)
8 Defendant’s demeanor at trial. While we largely agree with the State that the district
9 court appropriately considered aggravating factors, the district court’s finding that
10 Defendant “was armed” is not an appropriate aggravation under these circumstances.
11 Section 31-18-15.1(C)(1) explicitly prohibits the district court from aggravating a
12 sentence based on “the use of a firearm, as provided in Section 31-18-16.” This Court
13 has previously explained that “[i]t is any use of any firearm that invokes Section 31-
14 18-16.” State v. Roper, 2001-NMCA-093, ¶ 15, 131 N.M. 189, 34 P.3d 133
15 (emphasis added). In Roper, the district court aggravated the sentence based on the
16 use of a firearm not “because of the mere use of any firearm,” but because the
17 “[d]efendant used a particularly fearsome firearm and the entire episode in which
18 [the d]efendant was involved put a large number of people at risk.” Id. In the present
19 case, no “particular use” of the firearm separates the jury’s finding that Defendant
20 “brandished” a firearm in order to enhance the sentences under Section 31-18-16
28 1 from the fact that Defendant “was armed,” as the district court found for the purposes
2 of aggravation. As a result, the fact that Defendant “was armed” was not an
3 appropriate basis for aggravation under the circumstances and the aggravation of
4 Defendant’s sentence must be reconsidered in this respect.
5 {33} Because we have concluded that the jury did not find sufficient facts to
6 establish firearm enhancement in relation to the conspiracy to commit aggravated
7 burglary conviction, we must consider the district court’s aggravation of the
8 conspiracy conviction apart from Section 31-18-15.1(C)(1). That Defendant “was
9 armed” does not preclude aggravation under the other provision that Defendant
10 invokes, Section 31-18-15.1(C)(4), because whether Defendant “was armed” was
11 not an element of conspiracy. See State v. Chavez, 1983-NMSC-037, ¶ 10, 99 N.M.
12 609, 661 P.2d 887 (defining conspiracy “as a common design or agreement to
13 accomplish an unlawful purpose or a lawful purpose by unlawful means”).
14 Nevertheless, as we have noted, the jury was instructed that the conspiracy was
15 established if Defendant agreed with another to commit aggravated burglary and had
16 the intent to commit aggravated burglary. That Defendant “was armed” as he carried
17 out the agreement is not a circumstance of the offense of conspiracy and does not
18 aggravate the agreement that had already been reached. See Segotta, 1983-NMSC-
19 092, ¶ 8 (defining the term aggravate in this context to mean “make worse, more
20 serious, or more severe: intensify” (internal quotation marks and citation omitted)).
29 1 Accordingly, the district court abused its discretion to the extent that Defendant’s
2 conviction for conspiracy was aggravated because Defendant “was armed.” See
3 Roper, 2001-NMCA-093, ¶ 19 (explaining that “all matters relevant to the event for
4 which [the d]efendant is tried and convicted are circumstances that may aggravate
5 or mitigate” (emphasis added)).
6 {34} Otherwise, we hold that the district court relied on facts that were appropriate
7 aggravating circumstances. See id.; see also § 31-18-15.1(B) (permitting the district
8 court to consider “any aggravating circumstances surrounding the offense or
9 concerning the offender” (emphasis added)). Defendant testified that he provided
10 the weapons to the other two intruders, and as the State notes, this testimony was not
11 necessary to prove the element of any crime. See State v. Landgraf, 1996-NMCA-
12 024, ¶ 23, 121 N.M. 445, 913 P.2d 252 (permitting aggravation based on facts that
13 are consistent with the convictions but “are not elements necessary to prove the
14 crime”). The district court heard evidence that the conspirators invaded the home
15 “under the cover of darkness,” and that each of the victims was a minor. See State v.
16 Tortolito, 1997-NMCA-128, ¶¶ 23, 24, 124 N.M. 368, 950 P.2d 811 (affirming the
17 aggravation of a sentence because two children witnessed the event and the
18 “[d]efendant induced terror in the victim by blindfolding her with a pillowcase
19 during the attack”). At trial J.S. testified about the trauma she experienced, and at
20 sentencing, a friend of all three victims testified about the negative impact the
30 1 experience had on the victims. See Landgraf, 1996-NMCA-024, ¶ 23 (“Aggravation
2 may also be based on the nature and extent of the suffering caused.”). Further, even
3 though the victims were not the source of Defendant’s ire, Defendant confined and
4 threatened them despite T.B.’s absence from the house. Finally, the district court
5 found that Defendant’s manner in testifying was either alarmingly callous or
6 “nonchalant.” Defendant has not met the burden on appeal to demonstrate that the
7 district abused its discretion in determining that these facts together were appropriate
8 considerations “surrounding the offense or concerning the offender” for the purposes
9 of aggravating Defendant’s sentences. See § 31-18-15.1(A)(2); State v. Aragon,
10 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (noting that “it is [the
11 appellant]’s burden on appeal to demonstrate any claimed error” in the district
12 court).
13 CONCLUSION
14 {35} For the reasons stated herein, we reverse and remand for the district court to
15 vacate three of the convictions, as set forth in this opinion, and resentence Defendant.
16 {36} IT IS SO ORDERED.
17 __________________________________ 18 KATHERINE A. WRAY, Judge
31 1 WE CONCUR:
2 _________________________________ 3 JACQUELINE R. MEDINA, Judge
4 _________________________________ 5 ZACHARY A. IVES, Judge