State v. Serrato, 2021 NMCA 027

Background:

Victim, a ten-year-old girl, was taken from her bedroom window by Juventino Serrato, who grabbed her hood/hand, put an arm over her mouth, and led her across the street into his home after saying “I want to show you something.”
Inside his bedroom Serrato propped a box spring to block the exit, asked the child in Spanish if she wanted sex, and touched her legs, stomach, and her chest/breasts; Victim later returned to her mother when Serrato told her to leave.
Serrato was convicted of first-degree kidnapping (kidnapping by deception with intent to inflict a sexual offense), criminal sexual contact of a minor (CSCM), third-degree, and enticement of a child.
On appeal Serrato challenged sufficiency of evidence for CSCM and kidnapping and argued double jeopardy because enticement and CSCM were subsumed in the kidnapping conviction.
The Court of Appeals concluded the State relied on unitary conduct for (a) kidnapping and enticement and (b) kidnapping and CSCM; it held enticement and CSCM convictions violated double jeopardy and vacated them, remanding to enter a battery conviction (lesser included) and resentence; sufficiency issues were not reached.

Issues:

Issue	State's Argument	Serrato's Argument	Held
Whether convictions for kidnapping and enticement of a child violate double jeopardy	State conceded and/or argued distinct elements but in closing relied on the same conduct ("I want to show you something") to support both convictions	The enticement and kidnapping convictions punish the same unitary conduct and thus violate double jeopardy	Court: conduct was unitary as tried; under modified Blockburger the offenses overlapped; enticement conviction vacated
Whether convictions for first-degree kidnapping and CSCM violate double jeopardy (CSCM used to elevate kidnapping to 1st degree)	State argued kidnapping complete at the window/transport and CSCM was separate act inside home	Serrato argued the CSCM was the sexual offense element that elevated kidnapping; punishing both duplicates punishment for same unitary sexual offense	Court: as prosecuted the sexual offense element of first-degree kidnapping was the same CSCM; convictions overlap; CSCM vacated and lesser included battery entered
Remedy when lesser offenses vacated	State did not oppose entry of appropriate lesser offense where jury was instructed	Serrato conceded battery should be entered if CSCM is vacated	Court: vacated enticement and CSCM; remanded to enter battery (jury had been instructed on battery) and resentence
Sufficiency of evidence for CSCM and kidnapping	State urged sufficiency	Serrato argued insufficiency	Court did not reach sufficiency claims because double jeopardy resolution disposed of convictions

Key Cases Cited

Swafford v. State, 810 P.2d 1223 (1991) (articulates two-part double-description test: unitary conduct and legislative intent)
Blockburger v. United States, 284 U.S. 299 (1932) (elements test to determine whether statutes authorize separate punishments)
State v. Swick, 279 P.3d 747 (2012) (modified Blockburger approach and legislative-intent focus in New Mexico double jeopardy analysis)
State v. Gutierrez, 258 P.3d 1024 (2011) (modified Blockburger applied when statute is vague/has alternatives; look to State's theory)
State v. Montoya, 306 P.3d 426 (2013) (use charging documents, instructions, evidence and closing to identify trial theory under modified Blockburger)
State v. Dominguez, 327 P.3d 1092 (2014) (unitary vs. non-unitary conduct analysis; separate convictions allowed if independent factual bases exist)
State v. Silvas, 343 P.3d 616 (2015) (consider state’s trial theory and closing arguments when statutes overlap in application)