State v. Whitt, 34,293

Background

In August 2012, Victim awoke on a pull-out bed to Defendant performing vaginal intercourse, was repositioned to a couch, then experienced anal intercourse and later fellatio; Victim testified she did not consent and resisted the anal act.
SANE examination documented injuries to labia, posterior fourchette, and anus; DNA testing and police investigation evidence were presented.
Defendant testified the encounters were consensual and that the anal intercourse was accidental (a "slip").
A jury convicted Defendant of two counts of second-degree criminal sexual penetration (CSP) causing personal injury and two counts of third-degree CSP (including anal intercourse).
On appeal Defendant argued (1) double jeopardy prohibits multiple CSP convictions for the sequence of penetrations, (2) insufficient evidence of intent for the anal intercourse, and (3) ineffective assistance of counsel for trial strategy and failure to object to Victim’s rebuttal testimony.
The Court of Appeals affirmed the convictions, finding no double jeopardy violation, sufficient evidence of intent for anal intercourse, and that ineffective-assistance claims were inadequately supported on the record and more properly raised in habeas proceedings.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument	Held
Whether multiple CSP convictions violate double jeopardy (unit of prosecution)	Each distinct penetration (vagina, anus, mouth) and the two separate instances of vaginal intercourse represent separate offenses under Herron factors	The sequence of acts was a single episode and not distinct units of prosecution	Affirmed: penetrations of separate orifices and repositioning/intervening acts rendered offenses distinct; no double jeopardy violation
Whether evidence was sufficient to prove intent for anal intercourse	Circumstantial evidence (disengagement, repositioning to couch, immediate anal penetration, resistance) supports intent; jury may reject Defendant’s slip theory	Anal intercourse could have been accidental; State failed to prove intent beyond reasonable doubt	Affirmed: a rational jury could infer requisite intent from sequence and conduct
Whether trial counsel was ineffective for not calling Girlfriend or an expert	The State argued tactical choices and existing testimony already covered the topics; defendant failed to show prejudice	Failure to call these witnesses prejudiced defense and deprived Defendant of potentially exculpatory testimony	Denied on direct appeal: Defendant failed to show prejudice; counsel’s tactical choices were reasonable; issue better raised in habeas
Whether failure to object to Victim’s rebuttal testimony was ineffective assistance	Admission of rebuttal is trial-court discretion; Defendant did not show the rebuttal was cumulative or prejudicial	Failure to object allowed cumulative, prejudicial testimony twice	Denied: no record showing prejudice; discretionary rulings and lack of record make habeas more appropriate

Key Cases Cited

Herron v. State, 111 N.M. 357, 805 P.2d 624 (N.M. 1991) (factors for determining distinct assaultive acts/units of prosecution)
State v. Glascock, 143 N.M. 328, 176 P.3d 317 (N.M. Ct. App.) (double jeopardy unit-of-prosecution review is de novo)
State v. Consaul, 332 P.3d 850 (N.M. 2014) (standard for sufficiency-of-evidence review)
State v. McClendon, 130 N.M. 551, 28 P.3d 1092 (N.M. 2001) (presumptions in favor of verdict when testing distinct penetrations)
State v. Wilson, 117 N.M. 11, 868 P.2d 656 (N.M. Ct. App.) (separate-orifice penetrations constitute separate offenses under Herron)
State v. Rojo, 126 N.M. 438, 971 P.2d 829 (N.M. 1999) (jury may reject defendant’s contrary testimony)
State v. Paredez, 136 N.M. 533, 101 P.3d 799 (N.M. 2004) (two-pronged Strickland test for ineffective assistance and requirement to show prejudice)
State v. Grogan, 142 N.M. 107, 163 P.3d 494 (N.M. 2007) (habeas is preferred route for developing ineffective-assistance claims)