{1} Defendant appeals his convictions for one count of false imprisonment, one count of aggravated burglary, and two counts of criminal sexual penetration in the second degree (CSP II). Defendant argues that his convictions for false imprisonment and aggravated burglary violate the prohibition against double jeopardy because they are based on unitary conduct and are subsumed within his CSP II convictions. Defendant also argues that his convictions for two counts of CSP II violate double jeopardy because there was only one continuous course of conduct. Finally, Defendant argues that he was denied a fair trial based on the prosecutor’s improper comments.
{2} We reverse in part and affirm in part. Because Defendant’s convictions for aggravated burglary and false imprisonment violate his constitutional right to be free from double jeopardy, we vacate those convictions. We affirm Defendant’s convictions for two counts of CSP II.
BACKGROUND
{3} Victim testified as follows. She was asleep in her bedroom and woke up when someone jumped on top of her. The assailant, whom Victim later identified as Defendant, told her to perform oral sex and Defendant’s penis touched her lips. Defendant also penetrated Victim’s vagina with his penis. After Defendant ejaculated he let Victim go, at which time she ran to the bathroom and locked the door. She rinsed herself off, eventually came out, and saw Defendant still sitting on her bed. While Victim was screaming at and chasing Defendant out of her home, she asked him how he entered. Defendant indicated that he entered her residence through the kitchen window.
DOUBLE JEOPARDY
{4} Defendant argues that his convictions for aggravated burglary and false imprisonment violate the prohibition against double jeopardy. Defendant also argues that his convictions for two counts of CSP II are impermissible on double jeopardy grounds.
{5} The protection against double jeopardy “protects against both successive prosecutions and multiple punishments for the same offense.” State v. Mora,
DOUBLE DESCRIPTION
{6} We address double jeopardy claims involving double description under the two-part analysis set forth in Swafford,
{7} The issue of whether conduct is unitary under the first part of a Swafford analysis requires a careful review of the evidence. As recognized in State v. Cooper,
{8} If the conduct underlying two offenses is unitary, we engage in the second part of the Swafford analysis to determine whether the legislature intended multiple punishments for the same conduct. Absent any express legislative authorization of multiple punishments for the crimes at issue, we ascertain legislative intent by applying the test from Blockburger v. United States,
aggravated burglary and CSP II
{9} Defendant argues that his conduct was unitary because there were insufficient indicia of distinctness differentiating the acts underlying his aggravated burglary conviction from those underlying his CSP II convictions. He argues that his aggravated burglary was not completed until he committed battery against Victim, and that he only committed one battery, which was the same force used to perpetrate the CSP II. The State argues that the acts were not unitary because the aggravated burglary was completed “at the time that Defendant grabbed the victim,” whereas the CSP II was not completed until moments later. We agree with Defendant.
{10} In the present case, no indicia of distinctness between the aggravated burglary and the CSP II acts are present. Defendant was charged with aggravated burglary, which required that he “touched or applied force to [Victim] in a rude or angry manner.” The force used to complete aggravated burglary — Defendant’s acts of lying on top of Victim, grabbing Victim by her hair and flipping her over — constituted the same force used to restrain Victim to accomplish CSP II. See State v. Crain,
{11} We must next determine the legislature’s intent. The statutes do not expressly allow multiple punishments. See NMSA 1978, § 30-9-11 (2001) (amended 2003); NMSA 1978, § 30-16-4 (1963). We therefore apply the Blockburger test, determining whether each statute requires proof of a fact that the other does not. Blockburger,
{12} Defendant also argues that the court erred in failing to vacate his false imprisonment conviction. We again engage in a Swafford analysis, addressing first whether the conduct was unitary and, if so, examining whether the legislature intended multiple punishments for the unitary conduct.
{13} Victim awakened when Defendant was on top of her. While verbally assaulting Victim, Defendant restrained Victim and both orally and vaginally penetrated Victim with his penis. Upon completion of the sexual conduct, Defendant released Victim, thus simultaneously completing both the false imprisonment and the CSP II. The same force used to effect false imprisonment was used to commit CSP II. The conduct was therefore unitary. See State v. Allen,
{14} Because we have concluded that the conduct underlying Defendant’s convictions for CSP II and false imprisonment was unitary, we must determine whether the legislature intended multiple punishments for false imprisonment and CSP II. The statutes at issue in this case do not expressly provide for multiple punishment. See § 30-9-11; NMSA 1978, § 30-4-3 (1963). We must therefore apply the Blockburger test and compare the elements of the relevant statutes to determine whether the legislature intended multiple punishments. See Swafford,
{15} “When applying the Blockburger test to ... offenses that may be charged in alternate ways, we look only to the elements of the statutes as charged to the jury and disregard the inapplicable statutory elements.” See State v. Armijo,
{16} Defendant’s conviction for false imprisonment is not subsumed within his CSP II convictions because each required proof of a fact that the other did not. On the one hand, Defendant’s CSP II convictions required proof of sexual conduct perpetrated in the commission of aggravated burglary. Defendant’s false imprisonment conviction did not. On the other hand, Defendant’s false imprisonment conviction required that Defendant restrained Victim against her will when he knew that he had no authority to do so. While Defendant’s CSP II convictions required proof that Defendant “knew or should have known that permission to enter [Victim’s apartment] had been denied,” they do not require proof of Defendant’s knowledge that he had no authority to restrain Victim. Because false imprisonment and CSP II each requires proof of a fact that the other does not, a presumption arises that the legislature intended multiple punishments. Swafford,
{17} But this presumption is not conclusive and may be overcome by other indicia of legislative intent, such as a strong similarity in the social evils to be proscribed or a significant difference in the quantum of punishment allowed. Id. at 14-15,
{18} We lastly note that, contrary to Defendant’s representation, we do not agree that the prosecutor conceded that the false imprisonment conviction violated double jeopardy principles. A review of the transcript shows that the parties disputed the application of double jeopardy. Because the district court apparently believed that double jeopardy issues may be resolved by concurrent sentencing, the district court declined to rule on Defendant’s argument. A sentencing merger, however, fails to correct a double jeopardy violation. See Mora,
UNIT OF PROSECUTION
{19} Defendant argues that his two convictions for CSP II violate the double jeopardy prohibition against “unit of prosecution” multiple punishments. Herron v. State,
(1) temporal proximity of penetrations (the greater the interval between acts the greater the likelihood of separate offenses); (2) location of the victim during each penetration (movement or repositioning of the victim between penetrations tends to show separate offenses); (3) existence of an intervening event; (4) sequencing of penetrations (serial penetrations of different orifices, as opposed to repeated penetrations of the same orifice, tend to establish separate offenses); (5) defendant’s intent as evidenced by his conduct and utterances; and (6) number of victims ( ... multiple victims will likely give rise to multiple offenses).
We need not consider all of the Herron factors because Herron also states that “[except for penetrations of separate orifices with the same object, none of these factors alone is a panacea, but collectively they will assist in guiding future prosecutions.” Id. at 362,
{20} Defendant argues that he was denied a fair trial based on the prosecutor’s improper comments. Specifically, Defendant refers to the prosecutor’s voir dire characterization of the events as “crimes,” “burglary,” and an “unauthorized entry ... into the victim’s home.” Defendant further characterizes as prosecutorial misconduct the prosecutor’s reference to Defendant as “a rapist,” as well as the prosecutor’s statement that “what you’re going to hear about in this case is that there was sexual intercourse forced to the victim.” Defendant also generally asserts that the prosecutor “was allowed to instruct the venire on the law.” Defendant lastly argues, without any reference to the transcript, that the prosecution during closing argument improperly referred to Defendant as “a rapist and a burglar.”
{21} We review Defendant’s claims of prosecutorial misconduct under an abuse of discretion standard. See State v. Jett,
{22} Regarding the prosecutor’s voir dire comments, we agree with the State that the prosecutor’s reference to “crimes,” including the specific reference to burglary, unauthorized entry, and “forced intercourse” was not inappropriate as these identified the charged crimes. Similarly, the prosecutor’s references to terms used in the jury instructions did not instruct the jurors on the law, but instead were made in the context of exploring potential jurors’ attitudes about the sensitive subject of the CSP II crimes and therefore were not unfairly prejudicial. Further, although any reference by the prosecutor to Defendant - as a “rapist” and “burglar” was arguably inappropriate, such reference does not merit reversal without a clear demonstration of prejudice. See State v. Martinez,
{23} Unlike State v. Breit,
CONCLUSION
{25} We affirm Defendant’s convictions for two counts of CSP II. We reverse and remand to vacate Defendant’s convictions for false imprisonment and aggravated burglary, with instructions that Defendant be resentenced consistent with this opinion.
{26} IT IS SO ORDERED.