Case Information
*1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: August 3, 2020
No. S-1-SC-37111
STATE OF NEW MEXICO,
Plaintiff-Respondent,
v.
BENNY V. PORTER,
Defendant-Petitioner.
ORIGINAL PROCEEDING ON CERTIORARI
Angie K. Schneider, District Judge
Released for Publication December 22, 2020.
Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Petitioner
Hector H. Balderas, Attorney General
Charles J. Gutierrez, Assistant Attorney General
Santa Fe, NM
for Respondent
OPINION
THOMSON, Justice The district court imposed consecutive sentences for aggravated assault with a
deadly weapon and shooting from a motor vehicle after a jury convicted Defendant
Benny V. Porter of both offenses based on the fact that he fired a single gunshot at a
single victim. “The legislature remains free under the Double Jeopardy Clause to define
crimes and fix punishments; but once the legislature has acted
courts may not impose
more than one punishment for the same offense
.”
Brown v. Ohio
,
I. BACKGROUND The undisputed facts in this case, “like all too many that come before our courts,
erupted from a toxic mixture of testosterone and guns.”
State v. Montoya,
2013-NMSC-
020, ¶ 4,
a beer bottle. Defendant was driving slowly down the road in Swapp’s direction when he stopped or almost stopped his vehicle and pointed a .40 caliber pistol out of the vehicle’s window at Swapp. Swapp threw the beer bottle he was carrying toward the vehicle as Defendant fired a single shot and drove away. The bullet did not hit Swapp. No one else was in the street or in front of the vehicle. Based on the fact that Defendant shot a single bullet at Swapp, a jury convicted
Defendant of one count of aggravated assault with a deadly weapon and one count of shooting from a motor vehicle. The district court sentenced Defendant for both crimes. Defendant appealed and argued that double jeopardy required the district court to vacate one of his convictions. The Court of Appeals affirmed his convictions. State v. Porter , A-1-CA-35597, mem. op. (May 30, 2018) (non-precedential). Defendant appealed to this Court, and we granted certiorari pursuant to NMSA 1978, Section 34-5- 14(B) (1972) and Rule 12-502 NMRA.
II.
DOUBLE JEOPARDY PROHIBITS MULTIPLE PUNISHMENTS IN THIS CASE
Defendant argues that the district court violated his double jeopardy protections
when it imposed “multiple punishments for the same offense” because the same
conduct forms the basis for his convictions under two statutes. NMSA 1978, § 30-3-
2(A) (1963) (defining the crime of aggravated assault with a deadly weapon); NMSA
1978, § 30-3-8(B) (1993) (defining the crime of shooting at or from a motor vehicle).
“The double jeopardy protections of the United States Constitution and the New Mexico
Constitution guarantee that a state may not compel a person to be twice put in jeopardy
for the same criminal offense.”
State v. Torres
,
concluded that
State v. Sosa
,
{7}
the two statutes at issue in this case.
Gutierrez
,
offense of shooting into an occupied vehicle is ‘the possible property damage and the
bodily injury that may result.’”
A. Standard of Review
{11}
“A double jeopardy challenge presents a question of constitutional law, which we
review de novo.”
Torres
,
B. Defendant’s Convictions Were Based on Unitary Conduct
A defendant’s conviction is based on unitary conduct if the acts are not
“separated by sufficient indicia of distinctness.”
Id.
¶ 18 (internal quotation marks and
citation omitted);
see also State v. Silvas
,
agree with the State that Defendant’s culpable conduct was unitary.
[1]
See State v.
Comitz
,
based on that conduct. If the State had prosecuted a charge of aggravated assault with
a deadly weapon based on Swapp’s reasonable apprehension of danger from
Defendant pointing the gun prior to shooting, or argued for sufficient indicia of
distinctness to support that charge, a different analysis would be required.
Cf. State v.
Jacobs
,
1 We acknowledge that this Court previously “assume[d] without deciding” that conduct was unitary and
proceeded to analyze legislative intent, the second prong of the
Swafford
analysis, in
State v. Carrasco
, 1997-
NMSC-047, ¶ 23,
C. Defendant Was Punished Twice for the Same Offense
{15}
To determine whether Defendant is protected from being punished for both
aggravated assault with a deadly weapon and shooting from a motor vehicle, this Court
must determine whether the Legislature intended to permit multiple punishments.
Torres
,
{16}
Neither statute in this case explicitly authorizes a court to punish a defendant for
conduct that also violates another statute for which the defendant is punished. §§
30-3-2(A), -8(B). Because the plain language of the statutes at issue here does not
resolve whether the Legislature authorized multiple punishments, we must turn to other
canons of construction.
Torres
,
Blockburger
test, derived from the test developed in
Blockburger v. United States
, 284
U.S. 299 (1932).
See Torres
,
[the subsequent development of] United States Supreme Court precedent” because the
proper analysis relies on the elements of the state’s legal theory of how the statutes
were violated.
State v. Swick
,
written in such a way that a defendant could be convicted based on alternative conduct,
we review the statutory language, charging documents, and jury instructions used at
trial to ascertain the state’s legal theory.
See Gutierrez
,
offenses subsumes the other offense, “the double jeopardy prohibition is violated, and
punishment cannot be had for both.”
Swick
,
specific violations of the statutes in question. Next, we determine the case-specific
meaning of any vague or indefinite terms. This process establishes the elements of the
legal theory that the state applied to the defendant’s conduct for each relevant statute
that resulted in a conviction. We then determine whether the elements of one of the
offenses subsume the elements of the other.
See Swick
,
1. Legal theory of Defendant’s aggravated-assault conviction Since the statute prohibiting aggravated assault, § 30-3-2, is written in the alternative, a defendant may violate this statute by attempting but failing to accomplish a battery or by threat or menacing conduct. We start by looking at the charging documents. The State charged Defendant with
Count 1: Aggravated Assault (Deadly Weapon)(FE) (0056), on or about May 11, 2013, [Benny V. Porter] did assault or strike at Jason Swapp, with a [.]40 caliber hand gun, a deadly weapon, a fourth degree felony, contrary to Section 30-3-2(A) & 3[1]-18-16, NMSA 1978. The charging documents identify a single victim and the type of deadly weapon
used. However, the charging documents do not resolve which alternative the State prosecuted: “assaulting” or “striking at.” id. Because the State’s legal theory is not *7 clearly established by the charging documents, we next review the jury instructions. See Swick Jury Instruction 6 was modeled after UJI 14-305 NMRA and required the jury to
find:
1. The Defendant shot a bullet at Jason Swapp.
2. The Defendant’s conduct caused Jason Swapp to believe the Defendant was about to intrude on Jason Swapp’s bodily integrity or personal safety by touching or applying force to Jason Swapp in a rude, insolent or angry manner.
3. A reasonable person in the same circumstances as Jason Swapp would have had the same belief.
4. The Defendant used a deadly weapon.
5. The Defendant did not act in self-defense.
6. This happened in New Mexico on or about May 11, 2013. Id. (“Aggravated assault; threat or menacing conduct with a deadly weapon; essential elements.”). Although the prosecutor clearly modeled the instruction on the threat or menacing conduct uniform instruction, this instruction does not clarify whether the State prosecuted Defendant for “striking at” Swapp with a bullet or for “assaulting” by the threat or menacing conduct of shooting a bullet at him and missing. This is because, in order to find that Swapp experienced, and the Defendant committed, an assault by menacing conduct, the first element of the instruction given necessarily required the jury to find that Defendant committed an attempted, incomplete battery. On appeal, the State argues that the Court should construe the State’s legal
theory to be limited to “a threatening or menacing conduct theory pursuant to” NMSA 1978, Section 30-3-1(B) (1963) and Section 30-3-2(A). This argument disregards the instruction’s requirement that the jury find that “Defendant shot a bullet at Jason Swapp,” not over his head or near him. The State essentially required the jury to find all the elements necessary to establish an attempted, incomplete battery for “striking at” the victim. See §§ 30-3-1(A), -2(A). Thus, the State’s legal theory is not clarified by either the charging documents or
jury instructions, and both possible legal theories required “the use, attempted use, or
threatened use of physical force against the person of another.”
See United States v.
Silva
,
2. Legal theory of Defendant’s shooting-from-a-motor-vehicle conviction Because the statute that prohibits shooting at or from a motor vehicle, § 30-3-8, is also written in the alternative and indefinite terms, we must identify the alternative that was prosecuted and resolve any issues of vagueness before we compare the elements of this offense to the element of the offense of aggravated assault. We, again, begin with the charging document. The State charged Defendant with
Count 2: Shooting At or From a Motor Vehicle (No Great Bodily Harm) (0084), on or about May 11, 2013, [Benny V. Porter] did willfully and unlawfully discharge a firearm from a motor vehicle with reckless disregard for the safety of any other person, a fourth degree felony, contrary to Section 30-3-8(B), NMSA 1978. The charging document clarifies that the State prosecuted Defendant for violating
the statute by “shooting . . . from a motor vehicle.” However, it does not identify the victim; it does not clarify the indefinite and vague term in Section 30-3-8(B), “person of another.” Because we must clarify whether Defendant was found to have recklessly disregarded the safety of Swapp or some other person in order to determine the offense committed, we next review the jury instruction. See Swick Jury Instruction 8 required the jury to find:
1. The Defendant willfully shot a firearm from a motor vehicle with reckless disregard for another person.
2. The Defendant did not act in self-defense.
3. This happened in New Mexico on or about May 11, 2013. Like the charging document, this instruction does not clarify the indefinite and vague
“another person.” However, to find “reckless disregard,” the jury must find that
Defendant “knew that his conduct created a substantial and foreseeable risk, that he
disregarded that risk and that he was wholly indifferent to the consequences of his
conduct and to the welfare and safety of others.” UJI 14-342 NMRA Use Note 3
(incorporating the definition of “reckless disregard” into this jury instruction for shooting
at or from a motor vehicle by reference to UJI 14-1704 NMRA). Therefore, the State’s
theory must identify a victim or victims, specific persons endangered, in order to
establish Defendant’s knowledge of those victims. Since the offense is not clarified by
the charging documents and jury instructions, we turn to the State’s presentation at trial.
See Swick
,
Count 1 that “Swapp’s bodily integrity or personal safety” was threatened was based upon the same evidence it relied upon under Count 2 to prove that Defendant acted “with reckless disregard of another.” Specifically, the State argued, “because if you can find the elements in this count [aggravated assault with a deadly weapon, Count 1], then [Count] 2 is easy. It’s just was he in a motor vehicle, did he shoot out, was there reckless disregard. Well sure it was; there was reckless disregard of another, namely *9 Mr. Swapp.” It is clear that Swapp was the only victim in this case. See Swick , 2012- NMSC-018, ¶ 22 (observing that “[a]lthough the indictment, the jury instructions, and the verdict forms are silent as to the identity of the . . . victims,” the identity of the victims was not actually in dispute). Having reviewed the possible alternatives and identified and clarified the offenses for which Defendant was actually convicted, we now compare those offenses to see if one is subsumed.
3. Comparing the State’s theories of aggravated assault and shooting from a
motor vehicle
The State argues that neither offense subsumes the other because “[r]eckless
disregard was not required for aggravated assault[,]” and shooting from a motor vehicle
does not require that the victim reasonably believed Defendant “was about to intrude on
victim’s bodily integrity or personal safety by touching or applying force to victim in a
rude, insolent, or angry manner.” The State argues that the offenses therefore require
different “intents.” The State’s position ignores the “substantive sameness” of the
crimes.
See Montoya,
crimes.
See State v. Manus
,
inherent dangers of overcharging . . . it is particularly important that the judiciary
embrace its unique responsibility to assure the basic fairness and adherence to
*10
legislative intent that only the courts can afford.”
a. Analysis under the “striking at” alternative If Defendant was convicted for striking at the victim, the offense of aggravated
{36}
assault with a deadly weapon was subsumed by the offense of shooting from a motor
vehicle. The only difference between the two offenses in this case was that shooting
from a motor vehicle required proof that Defendant was sitting in a motor vehicle when
he committed the attempted, incomplete battery. Defendant shot a single shot at a
single victim that did not result in a physical injury. Double jeopardy protections
therefore bar punishing Defendant for both offenses.
See Swafford
,
b. Alternative analysis for a conviction based on a theory of assault by “threat
or menacing conduct”
If Defendant was convicted for assaulting based on a theory of threat or
{37}
menacing conduct, arguably neither offense is subsumed by the other. And it is clear
that although the instruction given required the jury to find that Defendant struck at
Swapp, the instruction was nonetheless based on the uniform instruction for aggravated
assault by threat or menacing conduct. UJI 14-305;
Holt
Aggravated assault did not require a finding that Defendant shot from within a motor
vehicle, and shooting from a motor vehicle did not require a finding that the victim
reasonably feared for his personal safety. If neither offense subsumes the other, we
must turn to other traditional canons of construction, including identifying “the particular
evil sought to be addressed by each offense,” determining the quantum of punishment
for each statute, determining whether the statutes are typically “violated together,” the
rule of lenity, and any other relevant factors.
See Montoya
,
or overt acts against a person’s safety. ,
vehicle results in a physical injury, the offense is a form of aggravated battery.
See
State v. Tafoya
,
III. CONCLUSION Although double jeopardy protects Defendant from being punished for both
aggravated assault with a deadly weapon and shooting from a motor vehicle in this case, we note that it is possible for a defendant to violate both statutes without committing the same offense. Whether a defendant is protected will depend on which alternative was prosecuted based on the state’s legal theory of the offense and the alternative for which the defendant is convicted. We reverse the Court of Appeals and remand to the district court to vacate one of Defendant’s convictions consistent with our case law.
{44} IT IS SO ORDERED.
DAVID K. THOMSON, Justice
WE CONCUR:
MICHAEL E. VIGIL, Chief Justice
BARBARA J. VIGIL, Justice
C. SHANNON BACON, Justice
NAKAMURA, Justice (specially concurring).
{45} I join in the Court’s conclusion that Defendant’s convictions violate his double jeopardy right to be free from multiple punishments for the same offense. My path to this result is similar, but more direct than the majority’s, so I write separately. This is a double-description case, “where the same conduct results in multiple
convictions under different statutes.”
Swick
,
attempted battery (i.e., attempting to shoot Swapp), one species of aggravated assault,
with menacing or threatening another with a deadly weapon, another species of
aggravated assault. UJI 14-306 NMRA, Use Note 1. But the aggravated assault statute
itself combines threatening or menacing and attempted battery as a single alternative,
stating that “[a]ggravated assault consists of . . . unlawfully assaulting or striking at
another with a deadly weapon,” Section 30-3-2(A), suggesting that “assaulting or
striking at” are overlapping concepts for purposes of the conduct punishable under the
statute.
See also
UJI 14-304 NMRA, Comm. Commentary (expressing the view “that the
concept of ‘striking at’ [is] included within the concept of ‘assault by attempted battery’
[such that it was unnecessary to] include the ‘striking at’ language in th[e] instruction” on
aggravated assault by attempted battery). In any event, taking the instructions given as
the law of the case, the jury was required to find that Defendant intentionally shot his
weapon in a manner that threatened Swapp’s personal safety and bodily integrity.
State v. Ramirez
,
JUDITH K. NAKAMURA, Justice