Case Information
*1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: June 25, 2020
No. S-1-SC-36932
CONSOLIDATED WITH
No. S-1-SC-36933
STATE OF NEW MEXICO,
Plaintiff-Respondent/Cross-Petitioner,
v.
RICHARD J. SENA,
Defendant-Petitioner/Cross-Respondent.
ORIGINAL PROCEEDING ON CERTIORARI
Stephen K. Quinn, District Judge
Released for Publication September 8, 2020.
Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Petitioner/Cross-Respondent
Hector H. Balderas, Attorney General
Marko David Hananel, Assistant Attorney General
Santa Fe, NM
for Respondent/Cross-Petitioner
OPINION
VIGIL, Justice. A jury found Defendant guilty of one count of each of the following crimes:
criminal sexual penetration (CSP) in the first degree in violation of NMSA 1978, Section
30-9-11(D)(2) (2009); kidnapping in the first degree in violation of NMSA 1978, Section
*2
30-4-1 (2003); armed robbery in violation of NMSA 1978, Section 30-16-2 (1973);
aggravated burglary in violation of NMSA 1978, Section 30-16-4(C) (1963); and criminal
sexual contact (CSC) in violation of NMSA 1978, Section 30-9-12(C)(3) (2003). In
addition, Defendant entered a no contest plea to being a felon in possession of a
firearm in violation of NMSA 1978, Section 30-7-16 (2001, amended 2018, 2019), and
admitted to being a habitual offender and subject to an enhanced sentence. Defendant
was sentenced to the New Mexico Department of Corrections for a total of forty years
and six months. Defendant appealed to the Court of Appeals.
State v. Sena
, 2018-
NMCA-037,
{2} In the Court of Appeals, Defendant asserted the following errors: (1) the district court failed to grant a mistrial when Defendant did not testify, and the prosecutor in closing arguments argued that Defendant’s demeanor during Victim’s trial testimony was evidence of Defendant’s guilt, (2) the instruction on kidnapping was erroneous in failing to require a finding that the restraint used during the kidnapping was not merely incidental to another crime, (3) Defendant’s convictions of both aggravated burglary and CSP and CSC were double jeopardy violations, (4) the State failed to present sufficient evidence to support the convictions of CSP and kidnapping, and (5) the district court abused its discretion by admitting the results of DNA testing into evidence. See id. ¶¶ 1, 7, 20, 26, 27, 32, 34, 51. In a formal opinion the Court of Appeals (1) rejected Defendant’s argument that
the district court erred in denying his motion for a mistrial, (2) held that the omission of incidental restraint in the instruction on kidnapping constituted fundamental error, and (3) held that Defendant’s convictions of aggravated burglary, CSP, and CSC were double jeopardy violations. See id . ¶¶ 7-19, 20-25, 34-48. The Court of Appeals also determined that the State presented sufficient evidence to support the convictions of CSP and kidnapping and that the district court did not err in admitting the results of DNA testing into evidence. See id . ¶¶ 26-33, 49-55. We granted the petitions for certiorari filed by Defendant and the State to review
the foregoing conclusions. We hold that the Court of Appeals (1) erred in affirming the district court order denying Defendant’s motion for a mistrial, (2) erred in reversing Defendant’s kidnapping conviction for fundamental error on grounds that the elements instruction did not address incidental restraint, (3) erred in concluding that Defendant’s convictions for aggravated burglary, CSP, and CSC violated double jeopardy, and (4) correctly held that the State presented substantial evidence to support Defendant’s convictions for CSP and kidnapping. Because we remand for a new trial, it is not necessary, and we decline to address, whether the district court erred in admitting the results of DNA testing into evidence.
A. BACKGROUND Victim, who lived alone and was in her seventies, awoke at 3:30 a.m. to
Defendant’s gloved hand over her mouth and a knife to her head. When Victim tried to *3 scream, Defendant told her to stop and threatened to kill her. Defendant then ordered Victim out of bed and demanded she undress. As Victim undressed, Defendant asked Victim where her purse was, and Victim replied that it was in the closet. Defendant took Victim’s wallet containing thirty dollars.
{6} Victim told Defendant that she needed to use the restroom. Defendant allowed Victim to go to the restroom while he watched and began masturbating. After she finished using the restroom, Defendant ordered Victim back to bed, telling her to lie face down on a pillow. Defendant got on top of Victim and penetrated Victim’s vagina and anus with his penis. After a few minutes, Defendant instructed Victim to get on her knees and continued penetrating Victim’s vagina and anus with his penis. Defendant then told Victim to turn over, at which point he began fondling Victim’s breasts and digitally penetrating Victim’s vagina.
{7} After the sexual assaults, Defendant asked Victim about a rifle leaning against the bedroom wall. Defendant proceeded to leave the bedroom, and after waiting a few minutes, Victim attempted to inch out of bed. Defendant, who was watching Victim from the living room, ordered Victim back into bed. After waiting awhile longer, Victim got out of bed and entered the living room where she found her front door wide open. Victim discovered that her wallet and rifle were missing, as were the cordless telephones from the living room and Victim’s bedroom. Victim also noticed an open sliding window in the dining room. Victim closed the front door, locked it, and called police. Police arrived shortly thereafter, discovering shoe prints directly below the open
sliding window. Police tracked the shoe prints to the residence of Defendant’s stepmother and stepfather, where Defendant was hiding wearing socks but no shoes. Inside the residence, police collected a pair of sneakers consistent with the shoe print found at Victim’s home. Police also followed tire tread tracks to a Honda parked outside the residence, which was identified as belonging to Defendant. After obtaining a search warrant for the Honda, police found leather gloves, a rifle, and a large knife. The gloves were consistent with the description that Victim provided. Victim also identified the rifle as the one stolen by Defendant and the knife as the one used during the incident. Following the incident, Victim was examined by a sexual assault nurse examiner (SANE). The examination revealed a half centimeter “open area” consistent with force on Victim’s vagina. The SANE obtained various swabs from both Victim and Defendant for DNA testing, including a swab of Victim’s left, upper thigh and a swab of Defendant’s lower abdomen. No semen was detected on any of the swabs that were tested, but Victim’s DNA was detected on Defendant’s hands. We now address the issues raised by Defendant and the State in their respective
petitions for certiorari.
B. DISCUSSION
1.
The Prosecutor’s Arguments During Closing Arguments
The Court of Appeals held that “commenting on the demeanor of a non-testifying
defendant is improper, as it is neither probative of innocence or guilt, nor is it evidence
that an appellate court can properly review.”
Sena
,
OPEN COURT
Prosecutor:
Did you notice, also, ladies and gentlemen, when she [Victim] testified, that man [Defendant] wouldn’t even look at her. He watched every other witness on the stand.
Defense Counsel:
Objection, your honor. There’s no evidence of that. May I approach the bench?
Prosecutor:
Judge, this is . . . (unintelligible)
SIDEBAR CONFERENCE
Defense Counsel:
That’s commenting on his silence. He’s not testifying. What he did or didn’t do is not in the record at all. We object and, strongly object to her reference of what ⸻ against his presumption of innocence. He didn’t testify. There was absolutely no evidence. That’s done to inflame. We move for a mistrial.
Prosecutor:
Judge, that is not . . . (unintelligible) Defense Counsel:
No one testified to that.
Prosecutor:
(unintelligible)
Defense Counsel:
No one testified to that.
Court:
The jury’s just going to have to rely on their own memories of what they observed. And she’s not commenting on his silence, she’s just commenting on what he did. So, objection is overruled.
OPEN COURT
Court:
Objection is overruled. The jury will have to rely on their own memories as to what they observed (unintelligible).
Prosecutor:
Did you watch him in the courtroom when she took the stand? He wouldn’t even look at her. He looked at every other witness in the eye, but he wouldn’t look at her. And why wouldn’t he look at her? Because he knew what he’d done. He knew what he did. Defendant contends that the Court of Appeals erred when it held that while the
prosecutor’s arguments were improper, they were not prejudicial. Defendant asserts that the district court erred because the prosecutor’s arguments were not only improper but were prejudicial and contributed to Defendant’s convictions. The State concedes that the prosecutor’s arguments were improper because
they “elevated [Defendant’s] courtroom demeanor to the status of evidence and encouraged the jury to treat it as evidence of guilt.” However, the State contends the Court of Appeals correctly held that the comments were not prejudicial because “Defendant’s right to have his guilt or innocence determined solely on the basis of the evidence introduced at trial” does not “transform any reference to matters not in evidence into a Fifth Amendment violation.” (Internal quotation marks and citations omitted.) We disagree and reverse the Court of Appeals.
a. Standard of review
{15}
We review a district court’s denial of a motion for mistrial under an abuse of
discretion standard.
State v. Johnson
,
b.
The prosecutor’s arguments resulted in reversible error
In
State v. Sosa
, we identified three factors to consider when reviewing error in
closing arguments: “(1) whether the statement invades some distinct constitutional
protection; (2) whether the statement is isolated and brief, or repeated and pervasive;
and (3) whether the statement is invited by the defense.”
error when the prosecutor’s comments invade “a distinct constitutional protection.”
Id.
¶
27. The prosecutor’s comments in this case implicated Defendant’s Fifth Amendment
right to silence and thus, invaded a “distinct constitutional protection.”
The Fifth Amendment to the United States Constitution establishes a sacrosanct
constitutional right in its direction that “[n]o person shall . . . be compelled in any criminal
case to be a witness against himself[.]” U.S. Const. amend. V. The Bill of Rights of the
New Mexico Constitution likewise directs, “No person shall be compelled to testify
against himself in a criminal proceeding[.]” N.M. Const. art. II, § 15. When a prosecutor
makes a comment that invites the jury to draw an adverse conclusion from a
defendant’s failure to testify, the defendant’s Fifth Amendment privilege is violated.
DeGraff
,
indirect.
State v. Rice
,
{20}
[Defendant] in the courtroom when [Victim] took the stand? He wouldn’t even look at
her. He looked at every other witness in the eye, but he wouldn’t look at her.” The
argument had no purpose other than to invite the jury to draw an adverse conclusion
from Defendant’s failure to get on the stand and explain why he would not look at Victim
as she testified. After Defendant objected, the jury heard the district court overrule the
objection, which placed the “stamp of judicial approval” on the improper argument,
further magnifying the prejudice.
See Boulden v. State
,
Clause of the Fourteenth Amendment by which the States are bound.”
Hughes v. State
,
reference to something not in evidence, it is an attack on a defendant’s Fifth
Amendment right not to testify.
United States v. Carroll
,
{23}
Dickinson v. State
,
{24}
The principles were reiterated in
Coyle v. State
,
case were a direct comment on Defendant’s exercise of his constitutional right not to testify and were highly improper. The prosecutor’s arguments directly asked the jury to draw adverse conclusions from the fact that Defendant did not take the witness stand and explain himself. The district court applied an incorrect legal standard in construing the prosecutor’s arguments as referring to Defendant’s demeanor rather than his failure to testify. The second factor requires us to consider whether the prosecutor’s comments
were brief and isolated or repeated and pervasive.
Sosa
,
jury heard the district court overrule Defendant’s objection to the argument. “What the
jury may infer, given no help from the court, is one thing. What it may infer when the
court solemnizes the silence of the accused into evidence against him is quite another.”
Griffin
,
The zeal, unrestrained by legal barriers, of some prosecuting attorneys, tempts them to an insistence upon the admission of incompetent evidence, or getting before the jury some extraneous fact supposed to be helpful in securing a verdict of guilty . . . . When the error is exposed on appeal, it is met by the stereotyped argument that it is not apparent it in any wise influenced the minds of the jury. The reply the law makes to such suggestion is: that, after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say, after he has secured a conviction, it was harmless. As the appellate court has not insight into the deliberations of the jury room, the presumption is to be indulged, in favor of the liberty of the citizen, that whatever the prosecutor, against the protest of the defendant, has laid before the jury, helped to make up the weight of the prosecution which resulted in the verdict of guilty.
State v. Rowell
,
Sosa
,
prove there is no reasonable possibility that the error affected the verdict.”
State v.
Thomas
,
failure to testify or ask the jury to draw an adverse conclusion from that fact because the arguments did not suggest that Defendant failed to come forward with evidence or to correct misstatements to police before or after arrest. We disagree and conclude that the State has failed to meet its burden in demonstrating that there was “no reasonable possibility” that the comment on Defendant’s right to silence affected the jury’s verdict. *10 Therefore, we are left to presume the error indeed affected the verdict in this case and deprived Defendant of a fair trial. The prosecutor’s arguments violated Defendant’s Fifth and Fourteenth
Amendment rights and deprived Defendant of a fair trial, resulting in reversible error. Prosecutors do not have license to make improper and prejudicial arguments with impunity. We reverse the Court of Appeals holding that Defendant received a fair trial, and we remand to the district court for a new trial.
2. Instruction on Kidnapping The Court of Appeals agreed with Defendant’s argument that it was fundamental
error not to include the incidental restraint limitation to kidnapping described in
State v.
Trujillo
,
as kidnapping restraints that are merely incidental to another crime.”
a. Standard of review Our review is limited to determining whether the kidnapping instruction as given
to the jury resulted in fundamental error because there was no objection to the
instruction.
See State v. Sandoval
,
b. Omission of the incidental restraint limitation to kidnapping in the elements
instruction was not fundamental error We begin with the statutory elements of kidnapping. Pertinent to the case before us, Section 30-4-1(A)(4) defines kidnapping as “the unlawful . . . restraining . . . or confining of a person, by force [or] intimidation . . . with intent . . . to inflict . . . a sexual offense on the victim.” In accordance with UJI 14-403 NMRA (1997), the district court instructed the jury as follows:
For you to find [D]efendant guilty of kidnapping . . . , the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. [D]efendant restrained or confined [Victim] by force or intimidation; 2. [D]efendant intended to inflict a sexual offense on [Victim]; 3. This happened in New Mexico on or about the 17th day of November, 2012.
This instruction correctly tracks the language of the statute, setting forth all the essential
elements of kidnapping. Thus, the jury was properly instructed on every essential
element of kidnapping.
State v. Martinez-Rodriguez
,
of kidnapping under the instruction. As already described above, the evidence was that
at approximately 3:30 a.m., Victim was awakened with a gloved hand over her mouth
and a knife to her head. When Victim tried to scream, Defendant told her to stop and
threatened to kill her. Defendant then ordered Victim to get out of bed and demanded
that she undress. While Victim was undressing, Defendant took Victim’s wallet. Victim
said she needed to use the restroom and was permitted to walk to the restroom with
Defendant following closely behind. Defendant then masturbated while Victim used the
restroom. At this point, the crime of kidnapping was complete. Defendant had restrained
Victim with the intent of inflicting a sexual offense on Victim.
See State v. McGuire
,
foregoing conclusions. In Trujillo , the victim and his wife were awakened at around 2:30 a.m. by two men holding flashlights, who had broken into the home armed with metal bars or wooden bats. Id. ¶ 2. When the defendant started hitting the victim with a metal bar, the victim fought back and gained the upper hand, and while the victim was on top of the defendant hitting him, the defendant restrained the victim and called to his accomplice for help. Id. ¶¶ 2-3. The accomplice started hitting the victim, allowing the defendant to get free, and the two assailants continued to beat the victim before leaving. Id. ¶ 3. The entire incident lasted two to four minutes. Id. Convicted of both aggravated battery and kidnapping, in addition to other crimes,
the defendant in Trujillo argued on appeal that “the Legislature did not intend to punish restraint incidental to an aggravated battery as kidnapping.” Id . ¶ 6 (brackets omitted). In the factual context of the case, the Court of Appeals agreed with the defendant, concluding “that the restraint described by the testimony ⸻ a momentary grab in the middle of a fight ⸻ is as a matter of law insufficient to support a conviction for kidnapping.” . The Court of Appeals was able to make this determination as a matter of law, recognizing that in a different factual scenario, a jury question might be presented as to whether the restraint relied upon to support a conviction for kidnapping was merely incidental to another crime. See id. ¶ 42. In the case before us, the Court of Appeals said that according to the evidence,
Victim “was restrained both before and after the sexual offense occurred[.]” Under these
circumstances, the Court of Appeals concluded that it was “for the jury to determine
whether either or both of these restraints were slight, inconsequential, or incidental to
the commission of the sexual offense.”
Sena
,
to Trujillo , UJI 14-403 was amended, but not until 2015. See UJI 14-403, Committee Commentary. Even if this version of the instruction had been in effect at the time of Defendant’s trial, a finding consistent with UJI 14-403(4) on whether the restraint of Victim resulting in the kidnapping was “slight, inconsequential, or merely incidental” to the commission of another crime was not required in this case. Id. Submitting the question to the jury is only required “if the evidence raises a genuine issue of incidental *13 conduct[.]” UJI 14-403, Use Note 8. As we have already discussed, incidental restraint, as considered in Trujillo , was not at issue in this case.
{41}
The integrity of a criminal conviction in our judicial system requires a jury verdict
to rest “on a legally adequate basis,” and when it does not, the integrity of the judicial
system is undermined, and fundamental error results.
State v. Mascareñas
, 2000-
NMSC-017, ¶ 21,
burglary, CSP, and CSC violate the Fifth Amendment prohibition against double
jeopardy because they result in multiple punishments for the same act.
See Sena
,
a. Standard of review Appellate review of a claim that multiple punishments have been imposed for the
same offense in violation of the Fifth Amendment prohibition against double jeopardy
presents a question of law which we review de novo.
State v. Swick
,
b. Analysis The Fifth Amendment to the United States Constitution directs, in pertinent part,
that “[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of
*14
life or limb[.]” Defendant does not argue that the New Mexico Constitution affords
greater rights than the Fifth Amendment, so we limit our review to the federal right,
which is made applicable to the states through the Fourteenth Amendment.
Benton v.
Maryland
,
violate his Fifth Amendment protection against double jeopardy because they arise from a single course of conduct. This is therefore a double-description case. In Swafford , this Court established a two-part analysis for deciding whether the same offense was committed in double-description cases. Id. ¶ 25. 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. If the question is answered in the affirmative, 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. Double jeopardy protection prohibits multiple punishments in the same trial only when (1) the conduct is unitary and (2) it is determined that the Legislature did not intend multiple punishments. Id. We first determine whether Defendant’s conduct was unitary. When “sufficient
indicia of distinctness” separate the illegal acts, the conduct is not unitary, and a
defendant does not face conviction and punishment for “the same factual event.”
Swafford
,
abrogated on other grounds by Kersey v. Hatch
,
degree felony murder, aggravated kidnapping, and armed robbery violated the Double
Jeopardy Clause.
State argued that the conduct underlying those offenses and the conduct underlying the murder was not unitary. Id. ¶ 26. Specifically, the State argued that the conduct in committing aggravated kidnapping was not unitary because the jury could have found that the kidnapping was committed by gaining entry to the victim’s house by deception, and the conduct in committing armed robbery was not unitary because the stolen items were located in a room separate from where the victim was murdered. Id . ¶ 26. This argument relied “on the assumption that, when the jury instructions provide alternative bases for a conviction and there is no indication of which alternative the jury relied upon in reaching a general verdict, we may affirm the conviction if at least one of the alternatives does not violate the Double Jeopardy Clause.” Id . ¶ 26. This Court rejected making this assumption, and in fact, as we have already stated, made the opposite presumption: that the convictions were based on an alternative in the jury instructions that would result in double jeopardy. . ¶ 28. Under that presumption, this Court in Foster assumed that the jury found that the
aggravated kidnapping was committed by force. The instruction on the elements of aggravated kidnapping in Foster required the jury to find that the defendant acted with *16 force or deception and inflicted great bodily harm on the victim. Id . ¶ 29. The defendant argued that the conduct was therefore unitary because the same force used to commit the kidnapping was also used to commit the killing. Id . ¶¶ 29-30. This Court, however, rejected the defendant’s argument. The state’s theory on the kidnapping was that the defendant held the victim to rob her and to this end knocked her unconscious with the glass ashtray. Id . ¶ 31. As she lay unconscious, the defendant tied the victim up and strangled her to death with the electrical cord tied around her neck and ankles. Id . In other words, force was used two separate times, once to kidnap the victim to rob her and once to kill her. This conclusion was possible because under the instructions, the jury was required to find that in committing the aggravated kidnapping, the defendant inflicted great bodily harm. Id . ¶ 33. Thus, the kidnapping was completed when the defendant hit the victim on the head with the ashtray, causing the victim great bodily harm. Id . ¶¶ 32-33. This Court concluded there was sufficient indicia of distinctness when the defendant used force to hit the victim on the head with the ashtray, which completed the crime of aggravated kidnapping, id. ¶¶ 32-33, and then separately used force to strangle the victim with an extension cord. Id. ¶ 34. In Foster , this Court separately addressed the defendant’s armed robbery
conviction. Id . ¶ 36. The jury instruction on armed robbery also allowed the jury to reach a guilty verdict under various alternatives. Id . Because the record did not demonstrate which alternative the jury relied on, and because the jury was allowed to find that the defendant committed armed robbery “while armed with a ligature,” which was the same extension cord that was used to commit the murder, this Court applied the presumption that this was the alternative used by the jury. Id . ¶¶ 37-39. In addition, because the jury was allowed to find the defendant guilty of armed robbery by taking the victim’s “car keys and/or a 1985 Crown Victoria and/or U.S. currency” and the record did not demonstrate which alternative was selected by the jury, this Court presumed that the armed robbery conviction was based on the defendant’s taking of the property in closest proximity to the room where the victim was killed. Id . ¶¶ 36, 39. Applying the presumptions, the Foster court concluded that the defendant’s conviction and sentence for armed robbery resulted from unitary conduct and violated the Double Jeopardy Clause. . ¶¶ 37-39. Because the instruction allowed the jury to find that the defendant committed armed robbery while armed with a ligature, but also, that the murder was committed by use of a ligature, the Court determined that the conduct was unitary. Id. ¶¶ 38-39. The evidence presented at trial, the Court reasoned, did “not show a significant separation in time or physical distance between the armed robbery and the murder.” Id. ¶ 39. Here, the applicable instruction on aggravated burglary required the jury, in
pertinent part, to find that Defendant entered Victim’s dwelling without authorization and “was armed with a knife; OR . . . became armed with a firearm after entering; OR . . . touched or applied force to [Victim] in a rude or angry manner while entering or leaving, or while inside.” The applicable instruction on CSP required the jury, in pertinent part, to find that Defendant inserted his finger into Victim’s vagina and “used physical force or physical violence OR . . . used threats of physical force or physical violence against [Victim].” The instruction on CSC in turn required the jury, in pertinent part, to find that *17 Defendant “touched or applied force” to Victim’s unclothed breast without Victim’s consent. There is no way to determine which alternative(s) the jury relied on in finding Defendant guilty of aggravated burglary, CSP, and CSC. In arriving at its conclusion, the Court of Appeals applied the Foster presumption
to assume not only that the jury relied on the battery alternative for each crime, but that
the same conduct was also used to commit all three offenses.
Sena
,
of Appeals, we apply the Foster presumption and presume the jury relied on the battery alternative in convicting Defendant of aggravated burglary, CSP, and CSC. However, contrary to the Court of Appeals’ holding, Foster does not require a further presumption that the same conduct was then relied upon by the jury in convicting Defendant of each crime—particularly when the record indicates three distinct batteries were committed. Although the instructions allowed the jury to convict under the battery alternative for each crime, the Foster presumption is rebutted by evidence that each crime was completed before the other crime occurred. A battery was used to commit aggravated burglary when Victim was awakened at
3:30 a.m. with Defendant’s gloved hand over her mouth and a knife to her head. After Victim got out of bed and was undressing as Defendant ordered, Defendant asked Victim where her purse was, and Victim replied that it was in the closet. Defendant took Victim’s wallet containing thirty dollars. Victim was then allowed to go to the restroom while Defendant watched and began masturbating. After Victim finished using the restroom, Defendant ordered Victim back to bed, telling her to lie face down on a pillow. Victim testified that Defendant then penetrated Victim’s vagina and anus with his penis, and after a few minutes, Defendant instructed Victim to get on her knees and continued penetrating Victim’s vagina and anus with his penis. Defendant was not found guilty of these penetrations. However, Defendant then committed CSP and CSC by means of a second, and then a third battery when Defendant ordered Victim to turn over, and fondled Victim’s breasts and digitally penetrated Victim’s vagina. We therefore conclude that the Court of Appeals erred in its application of the
Foster
presumption. Although the instructions permitted the jury to convict Defendant of
1In its application of the modified
Blockburger
test, the Court of Appeals reasoned: “Because the State failed to
provide any legal theory of the crime, and we have found none in the record, we conclude that Defendant’s
aggravated burglary conviction is subsumed by the CSP/CSC convictions[.]”
Sena
,
aggravated burglary, CSP, and CSC under the same alternative, the evidence
demonstrates that the crimes were committed by three separate, identifiable batteries
separated by sufficient indicia of distinctness. Thus, Defendant’s conduct was not
unitary. The initial battery and aggravated burglary were completed before the second
battery and CSP, and these crimes were separated by both time and intervening
events.
See DeGraff
,
4. Sufficiency of the Evidence Having reviewed the record and the arguments of the parties, we affirm the Court
of Appeals’ holding that the State presented sufficient evidence to support the
convictions for CSP and kidnapping.
See Sena
,
C. CONCLUSION We reverse Defendant’s convictions and remand the case to the district court for
a new trial consistent with this opinion. IT IS SO ORDERED.
MICHAEL E. VIGIL, Justice
WE CONCUR:
JUDITH K. NAKAMURA, Chief Justice
BARBARA J. VIGIL, Justice
C. SHANNON BACON, Justice
DAVID K. THOMSON, Justice