State v. Bernard, 355 P.3d 831

Background

Defendant Eric Bernard was convicted by a jury of four counts under NMSA 1978 § 30-16D-4(A) for possession of a stolen enclosed trailer, a snowmobile, a Polaris ATV, and a Honda ATV recovered from property in Aztec, New Mexico.
Evidence at trial included testimony that Defendant and a co-conspirator towed a 27-foot trailer from Colorado containing the snowmobile and a Polaris ATV to a third party’s New Mexico property; officers later found the trailer and all four vehicles there.
The 2009 re‑codification of the statute moved the offense into the Criminal Code and removed a comma that previously separated the clause about intent to procure or pass title from the clause describing possession.
Defendant argued (1) the jury instructions were defective because they omitted an essential mens rea element (“intent to procure or pass title”), (2) the evidence was therefore insufficient, (3) multiple convictions under the single statute violated double jeopardy, and (4) trial counsel rendered ineffective assistance.
The Court of Appeals reviewed statutory interpretation de novo, analyzed double jeopardy under the unit‑of‑prosecution framework, and applied established indicia of distinctness for multiple punishments.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument	Held
Jury instructions / required mens rea	Statute distinguishes receiving/transferring (requires intent to procure/pass title) from mere possession; jury instruction (knowledge/ reason to know) correctly states elements for possession	The 2009 deletion of a comma grafted the "intent to procure or pass title" mens rea onto possession, so instructions omitted an essential element	Court rejected Defendant: intent-to-procure is not required for possession; instructions were proper
Sufficiency of evidence	Evidence proved possession and that Defendant knew or had reason to know the vehicles were stolen, matching the jury instructions	Because intent-to-procure is required, State failed to prove that element beyond a reasonable doubt	Rejected: sufficiency judged against correct instructions; evidence was adequate for possession offense
Double jeopardy / unit of prosecution	Each separately identifiable vehicle is a distinct object protected by Motor Vehicle Code and Criminal Code; legislative intent supports separate punishments per vehicle	Possession of multiple items (several vehicles inside one trailer) is a single course of conduct and should be one offense (invokes single‑larceny/simultaneous possession doctrine)	Rejected Defendant: time/space indicia inconclusive but the objects/results indicia (distinct, registerable vehicles subject to title/registration) support four convictions
Ineffective assistance of counsel	Counsel’s performance was reasonable; failure to object to instructions or move on intent theory was not deficient because intent was not an element; other complaints were undeveloped or tactical	Counsel failed to object to instructions, failed to preserve sufficiency arguments, failed to subpoena and properly cross-examine witnesses, and failed to consult Defendant	Rejected: Defendant did not make a prima facie showing of deficient performance or prejudice; claims largely rest on an incorrect statutory theory or are speculative

Key Cases Cited

State v. Wise, 515 P.2d 644 (N.M. Ct. App. 1973) (interpreting pre‑2009 statute as creating two offenses: receiving/transferring with intent and unlawful possession)
Swafford v. State, 810 P.2d 1223 (N.M. 1991) (unit‑of‑prosecution framework and legislative‑intent inquiry for multiple punishments)
State v. Olsson, 324 P.3d 1230 (N.M. 2014) (discussing limits of Herron indicia for possession offenses and holding Herron factors impracticable for certain possessory contexts)
State v. Bernal, 146 P.3d 289 (N.M. 2006) (use of indicia of distinctness when statutory language is ambiguous)
Herron v. State, 805 P.2d 624 (N.M. 1991) (formulation of indicia of distinctness used in multi‑count analyses)