State v. Sena, 470 P.3d 227

Victim (in her 70s) was awakened at 3:30 a.m.; defendant entered her home with gloves and a knife, restrained her, stole her wallet and rifle, and committed multiple sexual assaults (penile and digital penetration and fondling).
Police tied shoeprints and tire tracks to defendant’s residence and vehicle; officers recovered sneakers, gloves, a rifle, and a knife; SANE exam showed an open injury consistent with force; Victim’s DNA was found on defendant’s hands; no semen detected.
Defendant was convicted by jury of first-degree criminal sexual penetration (CSP), first-degree kidnapping, armed robbery, aggravated burglary, and criminal sexual contact (CSC); he pleaded no contest to felon-in-possession and admitted habitual-offender status; sentenced to 40.5 years.
On appeal the Court of Appeals: denied mistrial claim, found kidnapping instruction erroneous for omitting incidental-restraint limitation, and held aggravated burglary, CSP, and CSC convictions violated double jeopardy; it upheld sufficiency of evidence and DNA-admission rulings.
The New Mexico Supreme Court granted certiorari, reversed the denial of mistrial (finding prosecutorial comments on defendant’s courtroom demeanor violated the Fifth Amendment), rejected the Court of Appeals’ kidnapping-instruction reversal, rejected the double-jeopardy reversal, and affirmed sufficiency of evidence; remanded for a new trial.

Issue	State's Argument	Sena's Argument	Held
Prosecutor’s closing comments about defendant’s courtroom demeanor	Comments were improper but not prejudicial; did not amount to a Fifth Amendment violation	Comments indirectly and improperly invited adverse inference from defendant’s silence; moved for mistrial	Reversed: comments invaded Fifth Amendment right not to testify; error was prejudicial and warrants new trial
Kidnapping instruction (omission of incidental-restraint limitation)	Instruction tracked statute; evidence showed restraint sufficient to complete kidnapping so no jury question on incidental restraint	Omission was fundamental error under Trujillo because jury could convict on incidental restraint	Reversed Court of Appeals: omission was not fundamental error given facts; Trujillo inapplicable here
Double jeopardy (aggravated burglary, CSP, CSC)	Separate convictions do not violate double jeopardy because distinct batteries and temporal separation exist	Convictions arise from a single course of conduct and thus punish same offense multiple times	Reversed Court of Appeals: conduct not unitary — three separate batteries with sufficient indicia of distinctness; no double jeopardy violation
Sufficiency of evidence for CSP and kidnapping	Evidence (victim testimony, injury, items stolen, physical and circumstantial links) supports convictions	Insufficient evidence to support CSP/kidnapping	Affirmed: State presented substantial evidence to support CSP and kidnapping convictions

Griffin v. California, 380 U.S. 609 (1965) (prosecutorial reference to defendant’s silence violates Fifth Amendment)
State v. Sosa, 147 N.M. 351, 223 P.3d 348 (N.M. 2009) (factors for evaluating improper closing-argument error)
State v. Foster, 126 N.M. 646, 974 P.2d 140 (N.M. 1999) (presumption when jury instructions provide alternative bases that could implicate double jeopardy)
State v. Trujillo, 289 P.3d 238 (N.M. Ct. App. 2012) (incidental-restraint limitation to kidnapping under certain facts)
State v. Rojo, 126 N.M. 438, 971 P.2d 829 (N.M. 1999) (constitutional-error/fundamental-error principles in criminal cases)