State v. PhillipsState v. Phillips
The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: March 4, 2024
4 NO. S-1-SC-38910
5 STATE OF NEW MEXICO,
6 Plaintiff-Respondent/Cross-Petitioner,
7 v.
8 CLIVE DALTON PHILLIPS,
9 Defendant-Petitioner/Cross-Respondent.
10
11 Clara Moran, District Judge
12 Bennett J. Baur, Chief Public Defender
13 Caitlin C.M. Smith, Assistant Appellate Defender
14 Santa Fe, NM
15 for Petitioner/Cross-Respondent
16 Hector H. Balderas, Attorney General
17 Charles J. Gutierrez, Assistant Attorney General
18 Santa Fe, NM
19 for Respondent/Cross-Petitioner
1 OPINION
2 THOMSON, Justice.
3 {1} Defendant Clive Phillips was convicted of six counts of aggravated battery
4 and pleaded guilty to one count of voluntary manslaughter after he violently attacked
5 Adrian Carriaga and Alexzandria Buhl (Allie), killing Adrian and severely injuring
6 Allie. Defendant challenges his convictions, arguing that double jeopardy bars the
7 multiple convictions with the exception of one count of battery for attacking Allie
8 and one count of manslaughter for attacking and killing Adrian. We conclude that
9 the manslaughter conviction and the challenged battery convictions are each based
10 on distinct conduct and therefore do not violate Defendant’s right against double
11 jeopardy. We reverse, in part, and affirm, in part, the Court of Appeals.
12 I. BACKGROUND
13 {2} Defendant, Allie, Adrian, and Sean Madrid were close friends and shared a
14 four-bedroom house. Defendant and Allie had been in an on-and-off relationship
15 since high school and had a baby together. In the summer of 2013, Allie broke up
16 with Defendant and moved into her own bedroom in the house with the baby. Shortly
17 thereafter, Allie and Adrian began a romantic relationship.
18 {3} Early one morning, Sean became suspicious that Allie and Adrian were
19 sleeping together and called Defendant, who was not home at the time, to inform
2
1 him of his suspicions. Defendant drove to the house, walked into Allie’s room with
2 a baseball bat, and discovered Allie and Adrian in bed together.
3 {4} Armed with the bat, Defendant struck the two numerous times, and a struggle
4 ensued. Defendant eventually dropped the baseball bat and left Allie’s room to
5 retrieve a handgun. Allie immediately shut and locked her bedroom door, but
6 Defendant came back, shot the door handle, and kicked the door open. Upon
7 reentering Allie’s room, Defendant shot Adrian once in the chest and once in his
8 right armpit. Out of ammunition, Defendant left Allie’s room, and Allie called 911.
9 Defendant returned to the room soon after with a rifle. He asked Adrian, “Are you
10 ready?”, placed the rifle under Adrian’s chin, and fired, killing Adrian.
11 {5} Defendant then turned to Allie and shot her once in her shin and inserted his
12 finger into her bullet wound. Defendant grabbed Allie’s phone, which was still
13 connected to 911, and before ending the call described to the operator what had
14 happened. He then resumed his assault on Allie by punching her in the face. The two
15 struggled before Defendant pushed Allie against the wall in the hallway and choked
16 her, causing her to lose consciousness. The police arrived at the home shortly
17 thereafter.
18 {6} For Defendant’s attack on Adrian, the jury could not reach a verdict on the
19 murder charge or on the lesser-included offense of
3
1 Adrian. See
2 (manslaughter). However, the jury convicted Defendant of two counts of aggravated
3 battery with a deadly weapon—one for striking Adrian with the baseball bat and one
4 for shooting Adrian with the handgun. See
5 battery);
6 For his attack on Allie, the jury convicted Defendant of four counts of aggravated
7 battery against a household member—one for striking Allie with the baseball bat
8 (deadly weapon), one for shooting her with the rifle (deadly weapon), one for
9 punching her, and one for strangling her (great bodily harm). See
10
11
12 the scope of retrial on the murder charge, see State v. Phillips (Phillips I), 2017-
13 NMSC-019, 396 P.3d 153, Defendant pleaded guilty to voluntary manslaughter for
14 the death of Adrian. At sentencing, Defendant argued that his convictions for
15 attacking Adrian and Allie were based on unitary conduct and therefore violated the
16 protections afforded by the double jeopardy clause. The district court disagreed and
17 sentenced Defendant to twenty-five years imprisonment, suspending seven years.
18 {7} Defendant appealed, contending (1) that he should only be convicted of one
19 count of battery for attacking Adrian and one count of battery for attacking Allie and
4
1 (2) that his battery conviction for shooting Adrian with the handgun should be
2 vacated because it was based on the same conduct as the manslaughter conviction.
3 State v. Phillips (Phillips II), 2021-NMCA-062, ¶¶ 1, 9, 17, 31, 499 P.3d 648. The
4 Court of Appeals affirmed Defendant’s convictions for the two batteries against
5 Adrian as they were not based on unitary conduct and therefore, did not violate
6 double jeopardy. Id. ¶ 16. However, the Court concluded that the battery (handgun)
7 and manslaughter convictions violated double jeopardy because a reasonable jury
8 could have could have found either unitary conduct or distinct acts. Id. ¶¶ 23-26, 29.
9 Therefore, the Court presumed that the conduct was unitary as required by State v.
10 Foster, 1999-NMSC-007, ¶ 28, 126 N.M. 646, 974 P.2d 140 (holding that we must
11 presume a defendant’s conduct is unitary if the jury convicted the defendant under a
12 general verdict and the record does not indicate whether the jury relied on a legally
13 inadequate alternative that would result in double jeopardy), abrogated on other
14 grounds by Kersey v. Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683.
15 Id. ¶¶ 26-29. Finally, the three battery convictions for hitting Allie with the baseball
16 bat, shooting her with the rifle, and strangling her were affirmed. See Phillips II,
17 2021-NMCA-062, ¶¶ 1, 33. The Court accepted the State’s concession that the
18 battery conviction for punching Allie was violative of double jeopardy and reversed
19 that conviction. Id. ¶¶ 34-35. That reversal is not at issue in this appeal.
5
1 {8} Defendant petitioned for certiorari, contending that his two battery
2 convictions for attacking Adrian (baseball bat and handgun) and his three battery
3 convictions for attacking Allie (baseball bat, rifle, and strangulation) all violate
4 double jeopardy. The State cross-petitioned, arguing that the Court of Appeals erred
5 by vacating the conviction for battery of Adrian with a handgun. We granted both
6 petitions. We affirm Defendant’s manslaughter conviction and all five of his
7 aggravated battery convictions. We further conclude that the Court of Appeals erred
8 in its application of the presumption announced in Foster. Additionally, we clarify
9 that in conducting a double jeopardy analysis for a conviction rendered by a guilty
10 plea, a reviewing court should examine what the record shows about whether a
11 defendant’s acts are distinct rather than what a reasonable jury could have found.
12 II. DISCUSSION
13 {9} The Fifth Amendment to the United States Constitution provides that “[n]o
14 person shall . . . be subject for the same offense to be twice put in jeopardy of life or
15 limb.” The double jeopardy clause prohibits a court from “imposing multiple
16 punishments for the same offense.” State v. Porter, 2020-NMSC-020, ¶ 5, 476 P.3d
6
1 1201
2 cases: “those cases in which a defendant is charged with multiple violations of a
3 single statute based on a single course of conduct (unit of prosecution cases) and
4 those cases in which a defendant is charged with violating different statutes in a
5 single course of conduct (double-description cases).” State v. Sena, 2020-NMSC-
6 011, ¶ 44, 470 P.3d 227 (text only) (citation omitted). “While the analysis for each
7 type of case focuses on whether the Legislature intended multiple punishments, the
8 particular canons of construction we apply in ascertaining the Legislature’s intent
9 depend on the specific type of multiple punishment case in front of us.” State v.
10 Benally, 2021-NMSC-027, ¶ 11, 493 P.3d 366 (text only) (citation omitted). We
11 review this question of constitutional law de novo. Porter, 2020-NMSC-020, ¶ 11.
12 {10} This case involves both unit of prosecution and double description analyses.
13 Defendant raises a unit of prosecution argument, contending that his multiple battery
14 convictions violate double jeopardy because “he attacked [Adrian] and [Allie]
15 during a single episode, which took place in a small space and a short amount of
16 time, and therefore he should not have been convicted of more than one count of
1
the following—internal quotation marks, ellipses, and brackets—that are present in
the quoted source, leaving the quoted text itself otherwise unchanged.
7
1 battery against each of them.” The State argues under a double-description challenge
2 that Defendant’s convictions for aggravated battery with a handgun and
3 manslaughter stemming from his attack on Adrian were not based on unitary
4 conduct, and therefore we should reverse the Court of Appeals’ determination that
5 these convictions violate double jeopardy. We address Defendant’s unit of
6 prosecution challenge first.
7 A. Unit of Prosecution
8 {11} In a unit of prosecution case, we focus on “whether a defendant has received
9 more punishments than the number of punishments that the Legislature intended to
10 authorize under the facts and circumstances of the case.” Benally, 2021-NMSC-027,
11 ¶ 12. This is a two-part test. Id. First, “we must analyze the statute to determine
12 whether the Legislature has defined the unit of prosecution.” Id. ¶ 13 (text only)
13 (citation omitted). We do this by considering “all markers of legislative intent . . .
14 including the wording, structure, legislative history, legislative purpose, and
15 quantum of punishment prescribed under the statutory scheme.” Id. If the statute
16 defines the unit of prosecution, “our inquiry is complete.” Id. ¶ 14. “However, if the
17 statute remains insurmountably ambiguous as to its intended unit of prosecution,
18 then we apply . . . the rule of lenity—and construe the statute in favor of the
19 defendant.” Id. (internal quotation marks and citation omitted). “The rule of lenity
8
1 requires us to presume that the Legislature did not intend to separately punish
2 discrete acts in a defendant’s course of conduct absent proof that each act was in
3 some sense distinct from the others.” Id. ¶ 16 (text only) (citation omitted). “After
4 applying the rule of lenity . . . , we then turn to the second step of our analysis.” Id.
5 {12} The second step requires us to “determine whether a defendant’s acts are
6 separated by sufficient indicia of distinctness to justify multiple punishments under
7 the same statute.” State v. Ramirez, 2018-NMSC-003, ¶ 56, 409 P.3d 902 (text only)
8 (citation omitted). To determine whether a defendant’s acts are sufficiently distinct,
9 we consider the Herron factors: (1) temporal proximity of the acts, (2) location of
10 the victim during each act, (3) the existence of intervening events, (4) the sequencing
11 of the acts, (5) the defendant’s intent as evidenced by his conduct and utterances,
12 and (6) the number of victims. Herron v. State, 1991-NMSC-012, ¶ 15, 111 N.M.
13 357, 805 P.2d 624. “[T]he six Herron [factors] serve as a general policy for
14 examining distinctness, but in undertaking this analysis courts should examine the
15 elements of the offense and any policy underlying the specific statute.” Benally,
16 2021-NMSC-027, ¶ 19 (internal quotation marks and citation omitted).
18 rebuttable presumption” that “[w]hen there is an incident that occurs in a short time
19 in a single place, the State should generally be limited to proving one purely
9
1 assaultive crime for each victim.” We decline to do so. We continue to hold that no
2 Herron factor is dispositive, but instead that all factors should be considered together
3 in light of the facts and circumstances of each case. See Herron, 1991-NMSC-012,
4 ¶ 15 (“[N]one of these factors alone is a panacea, but collectively they will assist in
5 guiding future prosecutions under [the relevant charging statute].”); Swafford v.
6 State, 1991-NMSC-043, ¶ 28, 112 N.M. 3, 810 P.2d 1223 (adopting the Herron
7 factors in the unitary conduct inquiry for double description cases and noting that
8 time and space may easily distinguish acts in some cases, but not in every case, and
9 that courts should consider every factor); State v. Handa, 1995-NMCA-042, ¶ 26
10 n.2, 120 N.M. 38, 897 P.2d 225 (“[T]he time between each act is not dispositive.”).
11 We also reject Defendant’s argument that some, but not all, of the principles applied
12 in double description cases for a unitary conduct inquiry apply in a unit of
13 prosecution analysis. See, e.g., State v. DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M.
14 211, 131 P.3d 61 (considering whether one crime had been completed before another
15 was committed); State v. Cooper, 1997-NMSC-058, ¶¶ 60-61, 124 N.M. 277, 949
16 P.2d 660 (considering the initial use of force against a victim as separable by “an
17 intervening event” from subsequent but different uses of force and weapons that
18 resulted in the victim’s death). In both unit of prosecution and double description
19 cases, “we attempt to determine, based upon the specific facts of each case, whether
10
1 a defendant’s activity is better characterized as one unitary act, or multiple, distinct
2 acts, consistent with legislative intent.” State v. Bernal, 2006-NMSC-050, ¶ 16, 140
3 N.M. 644, 146 P.3d 289. This necessarily requires us to consider general guideposts,
4 such as the nature of a defendant’s acts and whether one crime was completed before
5 another. Double jeopardy jurisprudence in New Mexico is a tangled and often
6 laborious analysis. It should be this Court’s goal to simplify rather than complicate
7 it. Therefore, we reaffirm our conclusion in Bernal that “we are doing a substantially
8 similar analysis when we conduct a unitary conduct inquiry in double description
9 cases as when we conduct a unit-of-prosecution inquiry.” Id.
10 {14} If a defendant’s acts are sufficiently distinct, “then we will presume that the
11 defendant has not received more punishments than were statutorily authorized.”
12 Benally, 2021-NMSC-027, ¶ 23. However, “[i]f a defendant’s acts are not
13 sufficiently distinct, then we will return to our lenient construction of the statute and
14 presume that the defendant has received more punishments than were statutorily
15 authorized.” Id. We now apply this two-step framework to Defendant’s multiple
16 battery convictions.
11
1 1. Defendant’s two battery convictions for attacking Adrian do not violate
2 double jeopardy
3 a. The aggravated battery statute does not define the unit of prosecution
4 {15} Section 30-3-5(A) defines aggravated battery as “the unlawful touching or
5 application of force to the person of another with intent to injure that person or
6 another.” The offense is heightened to a third-degree felony if the aggravated battery
7 is committed with a deadly weapon, as it was in this case. Section 30-3-5(C).
8 Analyzing the plain language of the statute, the Court of Appeals held that the unit
9 of prosecution for the aggravated battery statute is ambiguous. Phillips II, 2021-
10 NMCA-062, ¶¶ 10-11 (relying on State v. Mares, 1991-NMCA-052, ¶ 24, 112 N.M.
11 193, 812 P.2d 1341, for the proposition that “the aggravated battery statute d[oes]
12 not separately punish each act of unlawful touching occurring during a continuous
13 attack unless the acts are sufficiently distinct”). We agree and focus our analysis on
14 the plain language and purpose of the aggravated battery statute. State v. Olsson,
15 2014-NMSC-012, ¶ 18, 324 P.3d 1230 (“The plain language of the statute is the
16 primary indicator of legislative intent.”);
17 (providing that a statute’s
18 {16} Both parties rely on Ramirez, 2018-NMSC-003, ¶ 53, for their unit of
19 prosecution analyses to different ends. In Ramirez, the defendant was convicted of
20 three counts of child abuse after shooting into a vehicle that contained three children.
12
1 Id. ¶¶ 3-4. There, we considered whether the child abuse by endangerment statute
2 specified the unit of prosecution. Id. ¶ 48. We first observed that the statute’s
3 intended unit of prosecution could be the conduct of causing or permitting a child to
4 be endangered regardless of the number of victims because the statute focused on
5 prohibiting a course of conduct. Id. ¶ 51. However, we later noted that the statute
6 could be read to indicate that the unit of prosecution was per victim because it
7 prohibited endangering “a child.” Id. ¶¶ 52-53. We provided that “[it] is well
8 established . . . that where a statute prohibits the doing of some act to a victim
9 specified by a singular noun, ‘a person’ for example, then ‘the person’ is the unit of
10 prosecution.” Id. ¶ 53. Ultimately, we held that the statute was ambiguous because
11 there were two plausible readings of the statute as to its intended unit of prosecution.
12 Id. ¶ 55.
13 {17} Defendant argues that under Ramirez, the usual unit of prosecution for the
14 aggravated battery statute is per victim, but argues that the statute is still ambiguous
15 as to whether a defendant may be convicted of multiple counts of battery against the
16 same victim during a continuous attack. The State similarly relies on Ramirez,
13
1 arguing that the plain language of the statute specifies the unit of prosecution as per
2 deadly weapon.2
3 {18} We conclude that Ramirez does not resolve the question before us. Section
4 30-3-5 prohibits touching or applying force “to the person of another,” which may
5 suggest that the unit of prosecution is per victim. However, the statute still does not
6 specify whether someone can be punished separately for multiple acts of touching
7 or applying force to the same victim during a continuous attack. This factual
8 situation was not considered in Ramirez. See 2018-NMSC-003. Similarly, Ramirez
9 does not support the State’s interpretation that use of different deadly weapons
10 allows for separate units of prosecution. In Ramirez, we explained that when a statute
11 contains a single, direct object that is the recipient of the prohibited conduct, the unit
12 of prosecution is by object. Id. ¶ 52 (“Stated grammatically, the statute contains a
13 direct object that is the recipient of the actions of [its] verbs, and that direct object is
14 a singular noun. This suggests that our Legislature intended the protections of [the
15 statute] to attach to each child endangered, and this, in turn, suggests that the unit of
16 prosecution for [the statute] is by child.”) Here, Section 30-3-5(C) simply heightens
2
5 does not specify the unit of prosecution and argued that Ramirez was inapplicable,
but the State now changes its position arguing that the statute does so specify.
14
1 the offense if it is committed “with a deadly weapon.” The statute’s use of the term
2 “with a deadly weapon” is not to define the direct object or focus of the statute.
3 Instead, it serves as an aggravating factor. Neither Ramirez nor any other
4 pronouncement of this Court established a rule that if a defendant uses multiple
5 weapons or objects during an attack, the Legislature, as a matter of law, intended to
6 impose separate punishments. See Herron, 1991-NMSC-012, ¶ 13 (“[S]eparate
7 [acts] can occur within sufficient temporal proximity to raise doubt whether the
8 legislature intended separate punishments for those acts which could equally be
9 inspired by a single criminal intent bent on a single assaultive episode.”).
10 {19} The State further argues that a separate punishment for each deadly weapon
11 used is supported by the purpose of the aggravated battery statute, suggesting that
12 the “statute is directed at preserving the integrity of a person’s body against serious
13 injury.” State v. Vallejos, 2000-NMCA-075, ¶ 18, 129 N.M. 424, 9 P.3d 668; see
14 also State v. Neatherlin, 2007-NMCA-035, ¶ 16, 141 N.M. 328, 154 P.3d 703 (“The
15 purpose of aggravating the charge and enhancing the sentence for use of a weapon
16 is to minimize injury to human beings no matter how the injury is inflicted and
17 discourage people from
18 omitted)). We disagree. While in some circumstances, the use of multiple deadly
15
1 weapons may increase the risk of injury or death to a victim, that alone is not
2 supportive that such an assault is always deemed nonunitary.
3 {20} Our analysis is better guided by Herron. In Herron, we addressed whether a
4 former version of the criminal sexual penetration statute allowed a defendant to be
5 punished for each act of sexual penetration occurring during an incident of sexual
6 assault. 1991-NMSC-012, ¶¶ 6, 8. Concluding that the language of the statute was
7 ambiguous on this point, we applied the rule of lenity and held that the statute
8 “cannot be said as a matter of law to evince a legislative intent to punish separately
9 each penetration occurring during a continuous attack absent proof that each act of
10 penetration is in some sense distinct from the others.” Id. ¶¶ 8, 15. Later, in Mares,
11 the Court of Appeals relied on and adopted our approach in Herron to conclude that
12 under the aggravated battery statute, the Legislature did not intend to punish each
13 act of battery occurring during a continuous attack unless each act was distinct from
14 the others. 1991-NMCA-052, ¶ 24. We agree with the Mares Court that the plain
15 language of the aggravated battery statute does not clearly indicate whether a
16 defendant can be punished for each act of battery inflicted on the same victim during
17 a continuous attack. Therefore, we apply the rule of lenity and conclude that the
18 Legislature did not intend to punish multiple acts of battery in these circumstances
19 unless each act is distinct. See Herron, 1991-NMSC-012, ¶ 15; Mares, 1991-
16
1 NMCA-052, ¶ 24. We now move to the second step of the unit of prosecution
2 analysis and determine whether Defendant’s acts of hitting Adrian with the baseball
3 bat and shooting him with the handgun were separated by sufficient indicia of
4 distinctness by applying the six Herron factors.
5 b. The batteries on Adrian were sufficiently distinct
6 {21} In the most recent Court of Appeals proceedings, the parties agreed that the
7 time, location, and number-of-victims factors supported unitary conduct. Phillips II,
8 2021-NMCA-062, ¶ 12. The Court of Appeals focused on the remaining three
9 Herron factors and held that Defendant committed two distinct acts of battery
10 because he “used separate and discrete acts of force against Adrian, separated by an
11 intervening event and a change in intent.” Phillips II, 2021-NMCA-062, ¶ 16. The
12 State no longer concedes the timing and location factors, arguing now that they are
13 “neutral” and do not weigh in favor of unitary conduct. We step back to analyze all
14 six Herron factors to determine whether Defendant’s acts were sufficiently distinct.
15 {22} The attack unfolded with Defendant walking into Allie’s room and striking
16 Adrian and Allie with the baseball bat. There was a struggle over the bat, and Sean
17 immediately called 911. Defendant left the room to retrieve a handgun. Allie locked
18 the door behind him. Approximately one minute and forty seconds into Sean’s 911
17
1 call, Defendant shot the door handle to get back into Allie’s room and shot Adrian
2 twice.
3 {23} The one minute and forty second gap between the battery with the baseball
4 bat and the battery with the handgun was, in this case, a significant elapse of time.
5 This, however, is not the only evidence that supports distinct conduct. Cf. State v.
6 Demongey, 2008-NMCA-066, ¶ 15, 144 N.M. 333, 187 P.3d 679 (concluding that a
7 time elapse of two minutes between two acts did not support distinct conduct
8 because there was no evidence indicating a change in intent or nature of the acts).
9 There were multiple intervening events between the batteries in this case. First was
10 the struggle over the baseball bat. Next, Defendant left Allie’s bedroom after
11 dropping the bat and retrieved the handgun. See, e.g., DeGraff, 2006-NMSC-011, ¶
12 30 (providing that a defendant’s struggle with the victim constitutes an intervening
13 event). Finally, Defendant shot the door handle and kicked the door open before
14 shooting Adrian.
15 {24} Defendant also used two different weapons to attack Adrian. See, e.g., Foster,
16 1999-NMSC-007, ¶ 34 (concluding that the use of different weapons indicates
17 distinct conduct). Each application of force, as well as the injuries inflicted, were
18 also distinct; the baseball bat assault was nonfatal, whereas the two handgun shots
18
1 inflicted more serious injuries. See Bernal, 2006-NMSC-050, ¶ 21 (stating that
2 different uses of force support distinct acts).
3 {25} Furthermore, we agree with the Court of Appeals that there was evidence that
4 Defendant’s intent had changed from the time he attacked Adrian with the baseball
5 bat to the time that he shot Adrian with the handgun, thus evincing distinct conduct.
6 Phillips II, 2021-NMCA-062, ¶ 15 (citing Demongey, 2008-NMCA-066, ¶ 15). After his arrest, Defendant
7 told police that when he hit Adrian with the baseball bat, he did not think that he was
8 going to shoot or kill anybody. However, Defendant explained that after he battered
9 Adrian, he remembered Adrian usually slept with a gun nearby, so he went to his
10 bedroom to retrieve the handgun to immobilize or kill Adrian. Defendant argues
11 that the Court of Appeals’ separate-intent analysis rested on a “factual conclusion
12 about [Defendant’s intent to kill] that the jury rejected.” We disagree mainly because
13 Defendant was not acquitted of murder; the jury simply did not reach a verdict.
14 Additionally, Defendant’s argument that the jury did not make an express finding
15 regarding his intent to kill has no bearing on our analysis. See Herron, 1991-NMSC-012,
16 ¶ 15 (providing that courts determine intent “as evidenced by [the defendant’s]
17 conduct and utterances”). Defendant’s conduct and statements to police demonstrate
18 that he had not formulated an intent to kill Adrian
19
1 with the baseball bat but that he had formulated this intent when shooting Adrian
2 with the handgun. Therefore, there was a clear change in intent between each attack.
3 {26} We recognize that Adrian was the only victim in both of these attacks and that
4 he remained in the same location for each. However, we decline to place great weight
5 on the latter fact given that Adrian stayed or was forced to stay in one location, in
6 the room with the door that Allie locked, to avoid further harm from Defendant’s
7 attacks.
8 {27} Therefore, we conclude that four of the Herron factors strongly support that
9 Defendant’s two convictions of battery for the injuries he inflicted on Adrian do not
10 violate double jeopardy as Defendant’s two attacks were distinct. See State v.
11 Jackson, 2020-NMCA-034, ¶ 33, 468 P.3d 901 (“[A]lthough [the v]ictim and location of
12 [the d]efendant’s kidnappings overlap, there was sufficient evidence that the two
13 kidnappings were separated by . . . sufficient indicia of distinctness . . . and, as a
14 result, . . . do not violate double jeopardy.”).
15 2. The three battery convictions for the injuries inflicted on Allie do not
16 violate double jeopardy
17 a. The aggravated battery against a household member statute at issue did
18 not clearly specify the unit of prosecution
19 {28} The language of the statutes for aggravated battery and aggravated battery
20 against a household member is almost identical, and, consistent with our previous
references herein, the parties advance the same arguments as to the intended unit of prosecution for the aggravated battery statute as for the aggravated battery against a household member statute, see Section II.A.1, paragraph 17, supra. The latter requires that the offense be committed against “a household member” while the former requires the offense be committed against “another.” Compare
{29} Like the aggravated battery statute, the plain language of the aggravated battery against a household member statute does not clearly indicate whether a defendant can be
by each application of force that caused or could have caused great bodily harm. Therefore, we apply the rule of lenity and conclude that the statute does not separately punish each act of battery inflicted on the same victim during a continuous attack unless each act is sufficiently distinct.
b. Defendant’s acts of battery against Allie are separated by sufficient indicia of distinctness
{30} We apply the six Herron factors to the attack on Allie and begin by examining Allie’s location during each battery. Allie remained in her room when first attacked with the baseball bat and later attacked with the rifle; however, she changed locations within the room. Herron recognizes that movement of a victim in between a defendant’s acts supports distinct conduct. See 1991-NMSC-012, ¶ 15 (“[M]ovement or repositioning of the victim between [acts] tends to show separate offenses.”). Further, similar to our analysis regarding the batteries on Adrian, we decline to weigh in favor of unitary conduct the fact that Allie remained in her room, which she locked after the first attack in an effort to protect herself and Adrian from a subsequent assault.
{31} In addition, Allie was in a different location of the home for the battery with the rifle than where she was for the battery by punching and strangulation. Defendant first shot Allie in the leg with the rifle in her room, and then he moved her into the hallway where he punched and strangled her. See, e.g., Bernal, 2006-NMSC-050, ¶
21 (stating that the use of force “in different parts of the [victim’s] house” supports distinct conduct).
{32} The interval of time between the attacks remains significant to our analysis of whether the batteries were distinct. Cf. Demongey, 2008-NMCA-066, ¶ 15. Based on audio recordings of Sean’s and Allie’s separate 911 calls placed during these attacks, there was an approximate two-minute break after both the first and second of the three successive batteries inflicted on Allie.
{33} During each break between the batteries, there were also numerous intervening events. After hitting Allie with the baseball bat and before shooting her with the rifle, Defendant struggled with both victims, left Allie’s room to retrieve the handgun, shot Allie’s door, kicked the door open, shot Adrian twice with the handgun, left the room again to retrieve the rifle, and then killed Adrian by shooting him in the head. And after shooting Allie with the rifle, Defendant talked with the 911 operator Allie had phoned for approximately two minutes describing the attacks before he began punching and strangling Allie.
{34} Defendant also committed each act in a distinct manner. Defendant used different weapons for each battery against Allie, see, e.g., Foster, 1999-NMSC-007, ¶ 34, and Defendant used different degrees of force by hitting her with the baseball
bat all over her body, shooting her in the leg with a rifle, and then punching and strangling her until she lost consciousness, see Bernal, 2006-NMSC-050, ¶ 21.
{35} Defendant’s intent to harm Allie may have remained the same throughout the attack, but the evidence shows that Defendant ceased his actions and reformulated this intent between each battery. Cf. Demongey, 2008-NMCA-066, ¶ 16 (concluding there was no evidence indicating that the defendant rethought his actions or ceased his actions and then reformulated his intent); State v. Garcia, 2009-NMCA-107, ¶ 14, 147 N.M. 150, 217 P.3d 1048 (stating there was no evidence that the defendant’s intent to batter the victim was “interrupted, altered, or changed”). After hitting
{36} Defendant’s batteries against Allie were clearly distinct, and his three convictions for aggravated battery against a household member do not violate double jeopardy.
B. Double Description
{37} On cross-appeal, the State challenges the Court of Appeals’ determination that Defendant’s convictions for aggravated battery with the handgun and manslaughter
violate double jeopardy. In double description cases, we again apply “a two-part analysis for deciding whether the same offense was committed.” Sena, 2020-NMSC-011, ¶ 45. “The first part focuses on the conduct and asks whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates multiple statutes.” Id. (text only) (citation omitted). If the conduct is unitary, “we proceed to the second part, which focuses on the statutes at issue to determine whether the legislature intended to create separately punishable offenses.” Id. (text only) (citation omitted). A defendant’s double jeopardy rights are violated only “when (1) the conduct is unitary and (2) it is determined that the Legislature did not intend multiple punishments.” Id. If a defendant’s double jeopardy rights are violated, courts must “vacate the conviction carrying the shorter sentence.” State v. Torres, 2018-NMSC-013, ¶ 28, 413 P.3d 467. Both parties agree that the Court of Appeals’ holding on legislative intent is not before us, and therefore our focus is limited to whether Defendant’s conduct was unitary.
{38} A defendant’s conduct is unitary “if the acts are not separated by sufficient indicia of distinctness.” Porter, 2020-NMSC-020, ¶ 12 (text only) (citation omitted). As previously noted, we apply the six Herron factors in the double description analysis to determine whether a defendant’s acts are unitary or distinct. Swafford, 1991-NMSC-043, ¶ 28. We consider “the elements of the charged offenses, the facts
presented at trial, and the instructions given to the jury.” Sena, 2020-NMSC-011, ¶ 46; Porter, 2020-NMSC-020, ¶ 12. “Unitary conduct is not present when one crime is completed before another is committed, or when the force used to commit a crime is separate from the force used to commit another crime.” Sena, 2020-NMSC-011, ¶ 46. However, “if it reasonably can be said that the conduct is unitary, then we must conclude that the conduct was unitary.” Porter, 2020-NMSC-020, ¶ 12 (text only) (citation omitted).
{39} In this case, the instruction for aggravated battery with the handgun required the jury to find that Defendant “touched or applied force to Adrian . . . by shooting him in the torso with a handgun.” However, the instruction for manslaughter required the jury to find that Defendant “killed Adrian.” Thus, although the jury instruction for the aggravated battery charge specified the conduct that formed the basis of the charge, the manslaughter instruction did not. The jury convicted Defendant of the aggravated battery charge but hung on the manslaughter charge. Defendant’s subsequent guilty plea for manslaughter did not specify a factual basis for his plea.
{40} As a result, the Court of Appeals applied the Foster presumption. See Phillips II, 2021-NMCA-062, ¶¶ 26-29. In Foster, we held that “we must presume that a conviction under a general verdict requires reversal if the jury is instructed on an
alternative basis for the conviction that would result in double jeopardy, and the record does not disclose whether the jury relied on this legally inadequate alternative.” 1999-NMSC-007, ¶ 28. We adopted this presumption because “we cannot assume that jurors will know to avoid an alternative basis for reaching a guilty verdict that would result in a violation of the Double Jeopardy Clause.” Id. However, in Sena, we clarified that “Foster does not require a further presumption that the same conduct was then relied upon by
{41} As an initial matter, we note that our appellate courts have never applied the Foster presumption to convictions based on guilty pleas. However, we assume without deciding that the Foster presumption applies in this case because the jury instructions and guilty plea for the manslaughter conviction do not specify what conduct forms the basis of the manslaughter conviction.5 Therefore, we agree with the Court of Appeals that “the only reasonable inference . . . is that the factual basis for Defendant’s guilty plea and resulting conviction is the same as the evidence presented at trial.” Phillips II, 2021-NMCA-062, ¶ 19; see State v. Sanchez, 1996-NMCA-089, ¶ 11, 112 N.M. 280, 923 P.2d 1165 (explaining that a double jeopardy challenge based on a guilty plea could be resolved on the facts placed in the record). The Court of Appeals, however, viewed the evidence through the wrong lens. It viewed the evidence from the perspective of what a reasonable jury could have concluded during the trial despite the fact that Defendant’s manslaughter conviction was a result of a guilty plea. Phillips II, 2021-NMCA-062, ¶¶ 24-25 (stating that the
jury could have reasonably found two distinct acts or one unitary act for the aggravated battery and manslaughter convictions). This approach is mistaken. The proper analysis is not what a reasonable jury could have concluded but whether there are “sufficient facts in the record” to support distinct conduct which would defeat a double jeopardy claim. Sanchez, 1996-NMCA-089, ¶ 11.
{42} The evidence in the record shows nonunitary conduct in Defendant’s acts. Defendant explained to police that he wanted to “immobilize” Adrian, so he shot Adrian twice in the torso with the handgun. Adrian was still alive when Defendant ran out of ammunition, and Defendant left the room to exchange the handgun for a rifle. Eighteen seconds later, Defendant returned to Allie’s room with the rifle, placed the rifle under Adrian’s chin, asked Adrian, “Are you ready?”, and then pulled the trigger. Adrian immediately stopped speaking and died.
{43} Forensic pathologist, Doctor Linda Syzmanski, who performed Adrian’s autopsy, testified at trial that the two handgun shots to Adrian’s torso caused “multiple rib fractures,” lacerated Adrian’s lungs, and caused internal bleeding in Adrian’s chest cavity. She explained that “with time,” these injuries “would be fatal,” but if Adrian had received medical attention, the injuries “most likely would have been curable” and Adrian could have survived. Dr. Syzmanski testified that the rifle shot caused extensive brain damage and “could be instantaneously fatal” or
would have killed Adrian “within a couple of minutes.” When asked which injury killed Adrian, Dr. Syzmanski responded: “The injury that was most fatal was the one to the head.”
{44} Defendant urges us to rely on Dr. Syzmanski’s later testimony that “[t]he cause of death was multiple gunshot wounds, and the manner of death was homicide.” (Emphasis added.) Defendant highlights this testimony to argue that the cause of death was multiple gunshot wounds, and therefore, the manslaughter conviction encompassed the two handgun shots and the rifle shot. We disagree. It is clear from Dr. Syzmanski’s testimony that the rifle shot was the fatal shot that killed Adrian.
{45} Additionally, based on the evidence presented, the battery was completed before the manslaughter was committed. See Sena, 2020-NMSC-011, ¶ 46. The battery was accomplished when Defendant shot Adrian twice in the torso using the handgun. Then, the manslaughter was accomplished when Defendant left the room, came back, and shot Adrian under the chin with the rifle, killing him. The two acts were separated by approximately eighteen seconds and the intervening event of Defendant leaving Allie’s room to exchange the handgun for the rifle. See Cooper, 1997-NMSC-058, ¶ 61 (concluding that a defendant’s conduct was distinct where
the defendant used different weapons and that the “death was not the consequence of the initial act of battery” but was followed by an intervening event). Significantly, Defendant also used different weapons for each attack and applied distinct uses of force with each. Even though Adrian remained in Allie’s room for both acts, we again decline to weigh the location factor in favor of unitary conduct because Adrian was severely injured, confining him to one location.
{46} Defendant argues that his conduct was unitary because of a common intent to “immobilize” or kill Adrian during both acts. We disagree. When Defendant left the room, exchanged the handgun with the rifle, came back to the room, and placed the rifle under Adrian’s chin, he reformulated an intent to kill Adrian and to do so immediately. See Herron, 1991-NMSC-012, ¶ 15 (providing that a change in the defendant’s intent supports distinct conduct); cf. Demongey, 2008-NMCA-066, ¶ 16 (stating that there was no evidence indicating that the defendant rethought his actions or ceased his actions and then reformulated his intent); Garcia, 2009-NMCA-107, ¶ 14 (stating that there was no evidence that the defendant’s intent to batter the victim was “interrupted, altered, or changed”).
{47} Therefore, we conclude that the Foster presumption was rebutted because there was evidence that distinct conduct supported the battery and manslaughter convictions. The Court of Appeals erred by conclusively presuming unitary conduct
when the record indicated that one crime was completed before the other and that each act was sufficiently distinct. See Sena, 2020-NMSC-011, ¶ 54. Because Defendant’s conduct is not unitary, there is no double jeopardy violation, and we reverse the Court of Appeals’ determination on this issue.
III. CONCLUSION
{48} For the foregoing reasons, we hold that Defendant’s two convictions of aggravated battery for attacking Adrian, one conviction of manslaughter for killing Adrian, and three convictions of aggravated battery against a household member for his attack on Allie do not violate double jeopardy. Therefore, we affirm the Court of Appeals in upholding two counts of aggravated battery for attacking Adrian (baseball bat, handgun), and upholding three counts of aggravated battery for attacking Allie (baseball bat, rifle, strangulation). However, we reverse the Court of Appeals in vacating the aggravated battery conviction for shooting Adrian with the handgun. We remand to the district court for further proceedings consistent with this opinion.
{49} IT IS SO ORDERED.
DAVID K. THOMSON, Justice
WE CONCUR:
C. SHANNON BACON, Chief Justice
MICHAEL E. VIGIL, Justice
T. GLENN ELLINGTON, Judge
Sitting by designation