State v. Begaye, 533 P.3d 1057

On Feb. 28, 2017, Ram Signs (a business) was broken into: video showed an individual smash the front window and enter; nothing was ultimately taken. Defendant matched the video description and was arrested with glass on his jacket.
Defendant was charged and convicted of nonresidential burglary (NMSA §30-16-3(B)) and breaking and entering (NMSA §30-14-8), plus a separate burglary-tools count later reversed by the Court of Appeals.
At trial Defendant moved to dismiss the B&E charge on double jeopardy grounds; the district court denied the motion. The Court of Appeals affirmed, applying a strict-elements (Blockburger) analysis and then the modified Blockburger test.
The Supreme Court held the underlying conduct was unitary and, under the State’s theory at trial (as shown by closing argument and the record), the breaking-and-entering elements were subsumed by the burglary charge.
Because both convictions arose from unitary conduct and one offense was subsumed by the other, the Supreme Court found a double jeopardy violation, reversed the Court of Appeals, and remanded to vacate one conviction and resentence (district court to choose which, both are fourth-degree felonies).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether convictions for nonresidential burglary and breaking & entering violate double jeopardy	Statutes have different elements (burglary requires specific intent; B&E requires entry by breaking or fraud); Legislature intended separate punishments; Court of Appeals: no double jeopardy	Same unitary conduct and same evidence supported both convictions so punishing both violates double jeopardy	Reversed: unitary conduct and under State’s theory B&E was subsumed into burglary; double jeopardy violated; vacate one conviction and resentence
Which analytical test governs when a statute is drafted in the alternative (strict-elements Blockburger vs modified Blockburger)	Court of Appeals applied strict-elements then modified test; State defended that practice	Because B&E is written in the alternative, the modified Blockburger must be used to examine the State’s theory and evidence	Modified Blockburger applies when a statute provides alternative means; courts must choose and apply the appropriate test (not both); here modified test applied
Remedy when double jeopardy is found for unitary conduct with equal-degree offenses	State: retain one conviction; district court has discretion which to vacate	Defendant: vacate one conviction so not punished twice	Court remanded: vacate one conviction (district court discretion) and resentence

State v. Porter, 476 P.3d 1201 (N.M. 2020) (clarifies use of the modified Blockburger test and that subsumption under the State’s theory violates double jeopardy)
Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (establishes the strict-elements test comparing statutory elements)
Swafford v. State, 810 P.2d 1223 (N.M. 1991) (adopts two-part double-description test: (1) unitary conduct, (2) legislative intent to punish separately)
State v. Gutierrez, 258 P.3d 1024 (N.M. 2011) (adopts modified Blockburger for vague/alternative statutes; look to State’s legal theory)
State v. Silvas, 343 P.3d 616 (N.M. 2015) (applies modified analysis; demonstrates that different statutory elements in the abstract do not preclude double jeopardy if evidence overlaps)
State v. Montoya, 306 P.3d 426 (N.M. 2013) (discusses jurisprudential shift from mechanical elements test toward substantive sameness analysis)
State v. Swick, 279 P.3d 747 (N.M. 2012) (looks beyond facial language to closing arguments to determine the State’s theory and evidentiary overlap)
State v. Luna, 458 P.3d 457 (N.M. Ct. App. 2018) (example where jury could convict on one count based solely on the same evidence used for other counts, supporting subsumption analysis)