State v. SerratoState v. Serrato
Hector H. Balderas, Attorney General, Santa Fe, NM, Charles J. Gutierrez, Assistant Attorney General, Albuquerque, NM, for Appellee
Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant
OPINION
M. ZAMORA, Judge.
{1} Defendant Juventino Serrato appeals his convictions of kidnapping (first-degree), contrary to
BACKGROUND
{2} Defendant‘s convictions arose from an incident whereby he kidnapped Victim, a ten-year-old girl, from her bedroom window and took her into his home where he asked her to have sex. Victim testified to the following facts at trial.
{3} Defendant lived across the street from Victim and her family. On the evening in question, Victim left her mother‘s bedroom where she was sleeping to use the restroom around 11:17 p.m. when she heard a noise coming from the kitchen. She looked in the kitchen but did not see anything. She then heard a whistling noise coming from her bedroom and went to look. She looked in her closet and under her bed and then heard another whistle near her window. Victim turned the lights on and opened the window to look outside. She did not see anything and was about to close the window when Defendant grabbed her hand. Victim moved her hand away but when she was turning around, Defendant grabbed her by the hood of her jacket and pulled her outside onto the windowsill. Victim was going to scream for her mother, but Defendant put his arm around her mouth.
{4} Defendant told her that he wanted to show her something. Victim was curious to see what he had to show her and asked what it was. She followed Defendant across the street to his residence as Defendant was holding her hand “really tight.” They entered the residence and then went into what appeared to be Defendant‘s bedroom. Once they both entered the bedroom, Defendant propped a box spring over the entryway and blocked the exit with a “metal thing.” Victim sat on the bed. Defendant asked her in Spanish if she “wanted sex,” and Victim told him no.
{5} Defendant sat next to Victim on the bed and rubbed her back and asked if she was okay. Victim stood up and asked to leave but Defendant responded that Victim could not and that she would have to stay and live with him. Victim told him she wanted to go home. Defendant got up and grabbed Victim‘s hand and led her back toward the bed, and they both sat down.
{6} Defendant then started touching Victim. She testified that Defendant touched her on the legs by the knees and then ran his hand up to Victim‘s stomach. After he placed his hand on Victim‘s stomach, Defendant ran his hаnd from Victim‘s stomach, over Victim‘s chest, and up to her neck. Victim explained what she believed to be her “private parts,” describing that “up here” she has “chests” and “once you hit puberty, they then
{7} Eventually Defendant stopped touching Victim and began talking to her. Victim heard her mother calling for her, and Defendant told Victim to leave and she ran to her mother on the other side of the street.
{8} Defendant was convicted of first-degree kidnapping, third-degree CSCM, and enticement of a child. Defendant appeals.
DISCUSSION
{9} We begin with Defendant‘s double jeopardy arguments. Concluding that we must vacate his convictions for enticement of a child and CSCM, we need not reach his sufficiency arguments.
I. Double Jeopardy
{10} Defendant argues that his right to be free from double jeopardy was violated because his convictions for enticement of a child and CSCM were subsumed in his first-degree kidnapping conviction. We agree.
{11} The United States and New Mexico Constitutions guard against doublе jeopardy violations, guaranteeing that no person shall be “twice put in jeopardy” for the same offense.
{12} For double-description claims, this Court follows the two-part test identified in Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. First, we determine whether the conduct underlying the offenses is unitary, that is, whether the same conduct violates both statutes. Id. Second, we determine whether the Legislature intended to create separately punishable offenses. Id. “Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy
A. Kidnapping and Enticement of a Child
1. Unitary Conduct
{13} The State does not dispute the first prong and concedes that the conduct underlying both convictions was unitary because the evidence supporting Defendant‘s kidnapping by deception and enticement of a child were the same. While we do not need to accept the State‘s concession, State v. Tapia, 2015-NMCA-048, ¶ 31, 347 P.3d 738, we agree that Defendant‘s convictions for kidnapping and enticement of a child were premised upon unitary conduct: Defendant telling Victim that he wanted to show her something. See, e.g., State v. Gonzales, 2019-NMCA-036, ¶¶ 20-21, 444 P.3d 1064 (presuming unitary conduct because the state in closing explicitly directed the jury to consider the same conduct to support the defendant‘s convictions for both charges), cert. denied, 2019-NMCERT-____ (No. S-1-SC-37707, Jul. 1, 2019). We must next examine whether the Legislature intended multiple punishments.
2. Legislative Intent
{14} While we acknowledge that this Court has previously addressed the double jeopardy implications for kidnapping and enticement of a child, see State v. Laguna, 1999-NMCA-152, ¶ 37, 128 N.M. 345, 992 P.2d 896, and State v. Garcia, 1983-NMCA-069, ¶ 21, 100 N.M. 120, 666 P.2d 1267, neither opinion fully analyzed this issue under New Mexico‘s double jeopardy jurisprudence. We therefore take this opportunity to conduct a full double jeopardy analysis of these two crimes.
{15} “The sole limitation on multiple punishments is legislative intent[.]” State v. Franco, 2005-NMSC-013, ¶ 12, 137 N.M. 447, 112 P.3d 1104 (alteration, internal quotation marks, and citation omitted); see also State v. Gutierrez, 2011-NMSC-024, ¶ 50, 150 N.M. 232, 258 P.3d 1024 (explaining that “legislative intent must be the touchstone of our inquiry” in multiple punishment analysis (internal quotation marks and citation omitted)). In assessing legislative intent, our Supreme Court has directed that “we first look to the language of the statute itself. If the statute does not clearly prescribe multiple punishments, then the rule of statutory construction established in Blockburger v. United States, 284 U.S. 299 (1932), applies.” Swick, 2012-NMSC-018, ¶ 11 (citation omitted). Here, the statutes do not expressly permit multiple convictions, see §§ 30-4-1, 30-9-1, so we turn to the Blockburger test.
{16} “Under Blockburger, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Swick, 2012-NMSC-018, ¶ 12 (internal quotatiоn marks and citation omitted). “If each statute requires proof of a fact that the other does not, it may be inferred that the Legislature intended to authorize separate punishments under each statute.” Id. ¶ 13. However, when a statute is “vague and unspecific” or “written with many
{17} The elements of kidnapping, as explained in the statute and instructed to the jury, are “the unlawful taking, restraining, transporting or confining of a person, by force, intimidation or deception, with intent ... to inflict death, physical injury or a sexual offense on the victim.” Section 30-4-1(A)(4); UJI 14-403 NMRA (stating essential elements jury instruction for kidnapping).1 Consequently, the kidnapping statute is unspecific, as there are many alternatives. We must therefore look to the State‘s theory of the case as it was presented to the jury to determine what the elements in the alternative mean. See Gutierrez, 2011-NMSC-024, ¶ 58. Hence, “instead of looking at the statute in the abstract, we look at the legal theory of the offense that is charged” when comparing the elements of the statute under a modified Blockburger analysis. Id. (internal quotation marks and citation omitted).” Thus, we apply the modified Blockburger analysis. In so doing, we look “beyond facial statutory language to the actual legal theory in [this] particular case by considering such resources as the evidence, the charging documents, and the jury instructions.” State v. Montoya, 2013-NMSC-020, ¶ 49, 306 P.3d 426; see Swick, 2012-NMSC-018, ¶ 21 (examining charging document аnd jury instructions in modified Blockburger analysis).
{18} For kidnapping, the grand jury indictment, in pertinent part states: “[D]efendant did take, restrain, transport or confine [Victim] by force, intimidation or deception[.]” The tendered kidnapping jury instruction, states, in pertinent part: (1) “[D]efendant took, restrained, confined or transported [Victim] by force, intimidation or deception“; (2) “[D]efendant intended to hold [Victim] against [Victim]‘s will to inflict death, physical injury or a sexual offense on [Victim.]” For the charge of enticement of a child, the grand jury indictment, in pertinent part, states “[D]efendant did entice, persuade or attempt to persuade [Victim] to enter a building, and [D]efendant intended to commit [c]riminal [s]exual [c]ontact of a [m]inor, a sexual offense, and [Victim] was less than sixteen years of age[.]” The tendered enticement jury instruction, states, in pertinent part: “[D]efendant enticed or persuaded [Victim] to enter a building[.]” Neither the charging document nor
{19} In closing, the State directed the jury to Defendant‘s statement to Victim that Defendant “want[ed] to show [her] something” as the basis for both kidnapping and enticement of a child. The State premised the kidnapping upon a theory of deception with intent to inflict a sexual offense. The prosecutor said in closing:
[Defendant] said, “I want to show you something. Do you want to see something?” And this ten-year-old child with [Defendant‘s] help ends up going with him.
So when you look at that, [D]efendant took [Victim] by force, intimidation or deception. And the deception was playing on the curiosity of a ten-year-old child to show her something that night.
. . . .
So is [Defendant] guilty of kidnapping? You betcha. And how do we know that? Because he took, restrained, confined or transported [Victim] by force, intimidation or deception. And, really, in this case is the deception, the “[c]ome with me, little girl. I‘ve got something to show you.”
Likewise, the State‘s theory for enticement of a child with intent to сommit a sexual offense was based upon the same conduct and under the same theory. In closing, the prosecutor stated:
The first element is [D]efendant enticed or persuaded [Victim] to enter a building. Well, we know that. “I want to show you something. Do you want to see something?”
The State‘s theory of both charges was identical: Defendant coaxed Victim to follow him by deceiving her with the notion he had something to show her with the intent to commit a sexual assault.
{20} Thus, although kidnapping by deception and enticement of a child, when viewed in the abstract, might require proof of an element that the other does not—for example, kidnapping requires unlawfully taking, restraining, transporting, or confining a person, and enticement of a child requires that the Victim must be a child under the age of sixteen—as applied in this case, the two offenses overlap. See Silvas, 2015-NMSC-006, ¶ 14 (explaining that the modified Blockburger analysis considers “not only whether each statute in the abstract requires proof of a fact that the other does not, but also
B. First-Degree Kidnapping and CSCM
{21} Defendant also contends that his convictions for first-degree kidnapping and CSCM violate his right to be free from double jeopardy because his conviction for CSCM was used tо elevate Defendant‘s kidnapping charge from second to first-degree kidnapping. Defendant argues that the same conduct—the touching of Victim‘s breasts—was used to form the basis for his CSCM conviction and his first-degree kidnapping, and thereby, the CSCM conviction was subsumed in the first-degree kidnapping conviction.
1. Unitary Conduct
{22} “The proper analytical framework for determining unitary conduct is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses.” State v. Dominguez, 2014-NMCA-064, ¶ 12, 327 P.3d 1092 (alteration, internal quotation marks, and citation omitted). “[T]he task is merely to determine whether the conduct for which there are multiple charges is . . . distinguishable.” Swafford, 1991-NMSC-043, ¶ 28. “[W]e consider whether [the d]efendant‘s acts are separated by sufficient ‘indicia of distinctness.’ ” State v. DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61 (quoting Swafford, 1991-NMSC-043, ¶ 26). “The court may consider as indicia of distinctness the separation of time or physical distance between the illegal acts, the quality and nature of the individual acts, and the objectives and results of each act.” State v. Mora, 2003-NMCA-072, ¶ 18, 133 N.M. 746, 69 P.3d 256 (internal quotation marks and citation omitted).
{23} “Keeping in mind that legislative intent is our primary concern in deciding multiple punishment cases, we look first to the language of the statutes at issue.” State v. Frazier, 2007-NMSC-032, ¶ 21, 142 N.M. 120, 164 P.3d 1.
Whoever commits kidnapping is guilty of a first[-]degree felony, except that he is guilty of a second[-]degree felony when he voluntarily frees the Victim in a safe place and does not inflict physical injury or a sexual offense upon the victim.
(Emphasis added.)
{24} Defendant argues that the conduct is unitary because the first-degree kidnapping was not complete unless and until the CSCM occurred, pointing to
{25} The State‘s argument misconstrues
{26} The dissenting opinion argues that the focus of our analysis ought to be limited to the conduct required in the essential elements of the base crime, not the elements elevating such crime to a higher felony degree. Dissent Op. ¶ 53. We again emphasize that the requirements provided in
{27} Nevertheless, the dissenting opinion proposes that there are sufficient indicia of distinctness between Defendant‘s conduct during the kidnapping and his conduct during the CSCM. Dissent Op. ¶¶ 58, 59. Although the dissenting opinion‘s argument to this effect is limited to the context of the conduct required for the base crime of kidnapping—a premise we expressly reject in light of the circumstances of the case at bar—we
2. Legislative Intent
{28} Because the two statutes do not expressly permit multiple convictions, see §§ 30-4-1, 30-9-13, we consider whether the Legislature intended multiple punishments under such circumstances. See Swick, 2012-NMSC-018, ¶ 11. Once again, the kidnapping statute has multiple alternatives, and thus we apply the modified Blockburger analysis, as we did previously. Gutierrez, 2012-NMCA-095, ¶ 14 (explaining that the modified Blockburger approach “applies when one of the statutes at issue is written with many alternatives, or is vague or unspecific“).
{29} Again, under modified the Blockburger analysis, we look to the State‘s trial theory “to identify the specific criminal cause of action for which the defendant was convicted, filling in the case-specific meaning of generic terms in the statute when necessary.” Branch, 2018-NMCA-031, ¶ 25. “[W]e look to the charging documents and jury instructions to identify the specific criminal causes of action for which the defendant was convicted.” Ramirez, 2016-NMCA-072, ¶ 18. We will also look to the State‘s closing argument as evidence of its trial theory. Gonzales, 2019-NMCA-036, ¶ 24.
{30} The grand jury indictment charged Defendant with first-degree kidnapping, alleging Defendant “did take, restrain, transport or confine [Victim] by force, intimidation or deception, intending to inflict a sexual offense on [Victim] and inflicted a sexual offense on [Victim], a first[-]degree felony[.]” (emphasis added). It charged Defendant with CSCM, alleging he “did unlawfully and intentionally touch or apply force to the intimate parts of [Victim], to wit: her breasts[.]” In addition to the elements of kidnapping as discussed above, the jury was instructed that
[i]f you find [D]efendant guilty of kidnapping as charged in Count 1, then you must determine whether a sexual offense was committed. You must complete the special forms to indicate your findings.
For you to make a finding of “yes,“[] the [S]tate must prove to your satisfaction beyond a reasonable doubt that [D]efendant committed a sexual offense upon [Victim].
The jury answered “Yes” on the special interrogatory form, which asked “[d]o you unanimously find beyond a reasonable doubt that [D]efendant committed a sexual offense upon [Victim]?”
{31} In the State‘s closing argument, while discussing the CSCM, the State explained that the basis of the charge was Defendant‘s “flat hand over [Victim‘s] breasts.” Although the State‘s closing argument does not mention the special verdict form or Subsection (B)‘s requirement of a finding of a sexual offense upon Victim, the State did argue that Subsection (A)(4)‘s intent requirement was to inflict a sexual offense. The State explained:
[Defendant‘s] motives, his intent, his reason for taking [Victim] to [Defendant‘s] room was none other than to make sexual advances on [Victim] and to sexually contact her, to touch her. And that‘s exactly what [Defendant] did when he got [Victim] there, and that you know from her testimony.
Our review of the record reveals no other sexual contact, or “sexual offense,” other than the one touching of Victim‘s breasts.
{32} Thus, although first-degree kidnapping and CSCM, when viewed in the abstract, might require proof of an element that the other does not—as applied in this case, it does not. Again, as the State‘s case was presented to the jury, Defendant is being punished twice for the same offense. Accordingly, we hold that in this case, Defendant‘s convictions for CSCM and first-degree kidnapping violate his right to be free from double jeopardy, therefore the lesser offense of CSCM must be vacated.
3. Vacation of Defendant‘s CSCM Conviction Results in the Entry of a Conviction of the Lesser Included Offense of Battery
{33} Because we vacate Defendant‘s CSCM conviction, we turn to whether we should reverse and remand for the lesser included offense of battery, upon which the jury was instructed. Based on the jury‘s verdict, we determine that had the jury not convicted Defendant of CSCM, it would have convicted Defendant of battery in violation of
CONCLUSION
{34} Having concluded Defendant‘s right to be free from double jeopardy was violated, we remand to the district court to vacate the lesser included offenses of enticement of a child and CSCM, enter a conviction for the lesser included offense of battery, and to resentence Defendant accordingly.
{35} IT IS SO ORDERED.
M. MONICA ZAMORA, Judge Pro Tempore
I CONCUR:
JULIE J. VARGAS, Judge
JACQUELINE R. MEDINA, Judge (dissenting).
MEDINA, Judge (dissenting).
{36} For the following reasons, I respectfully dissent in this case and would hold that Defendant‘s convictions for first-degree kidnapping and enticement of a child or CSCM do not violate double jeopardy.
Kidnapping and Enticement of a Minor
{38} In a double-description case—such as here—we apply the two-part test set forth in Swafford, 1991-NMSC-043, ¶ 25. We first ask “whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes.” Id. “If it is unitary, we [then] consider whether it was the Legislature‘s intent to punish the two crimes separately.” Swick, 2012-NMSC-018, ¶ 11. The touchstone of our analysis under this second step is legislative intent. See id. ¶ 24 (“The Legislature is always free to express its intent to punish the same conduct under more than one statute.“); Swafford, 1991-NMSC-043, ¶ 11 (noting that the United States Supreme Court “repeatedly has stated that the question of whether punishments are unconstitutionally multiple depends on whether the [L]egislature has authorized multiple punishment“).
{39} “To determine legislative intent, we look first to the language of the statute.” Silvas, 2015-NMSC-006, ¶ 11. “Absent a clear expression of legislative intent, a court first must apply the Blockburger test to the elements of each statute.” Swafford, 1991-NMSC-043, ¶ 30. “Under Blockburger, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Swick, 2012-NMSC-018, ¶ 12 (internal quotation marks and citation omitted). As our Supreme Court has explained,
The rationale underlying the Blockburger test is that if each statute requires an element of proof not required by the other, it may be inferred that the [L]egislature intended to authorize separate application of each statute. Conversely, if proving violation of one statute always proves a violation of another (one statute is a lesser included offense of another, i.e., it shares all of its elements with another), then it would appear the [L]egislature was creating alternative bases for prosecution, but only a single offense.
Swafford, 1991-NMSC-043, ¶ 12.
{40} In Gutierrez, our Supreme Court adopted the modified Blockburger analysis for double jeopardy claims involving statutes that are “vague and unspecific,” or “written with many alternatives.” 2011-NMSC-024, ¶ 48 (internal quotation marks and citation omitted). “In effect, this modified approach recognizes that comparing in the abstract ambiguous facial statutory elements fails to provide requisite guidance to a court in determining legislative intent.” State v. Luna, 2018-NMCA-025, ¶ 10, ____ P.3d ____, cert. denied, 2018-NMCERT-____ (No. S-1-SC-36896, Mar. 16, 2018). Thus, under the modified Blockburger analysis, our courts look beyond the “facial statutory language,” Montoya, 2013-NMSC-020, ¶ 49, and “evaluate legislative intent by considering the [s]tate‘s legal theory independent of the particular facts of the case.” Swick, 2012-NMSC-018, ¶ 21.
{41} In order to determine the actual legal theory in a particular case, we cоnsider “such resources as the evidence, the charging documents, and the jury instructions.” Montoya, 2013-NMSC-020, ¶ 49. “Where neither the indictment nor the jury instructions shed any light on the state‘s trial theory, and/or to confirm our understanding of the state‘s theory, we may also look to the state‘s closing argument for evidence of the specific factual basis supporting its theory.” Luna, 2018-NMCA-025, ¶ 10 (alterations, internal quotation marks, and citation omitted). “By doing this, we may properly identify the appropriate ‘provisions’ for comparison that are at the heart of the Blockburger test.” Id. Thus, both the traditional and modified Blockburger approaches require comparing the applicable criminal provisions to determine “whether each provision requires proof of a fact which the other does not.” Swick, 2012-NMSC-018, ¶ 12 (internal quotation marks and citation omitted).
{42} “If that test establishes that one statute is subsumed within the other, the inquiry is over and the statutes are the same for double jeopardy purposes—punishment cannot be had for both.” Swafford, 1991-NMSC-043, ¶ 30. On the other hand, “[i]f one statute requires proof of a fact that the other does not, then the Legislature is presumed to have intended a separate punishment for each statute without offending principles of double jeopardy.” Silvas, 2015-NMSC-006, ¶ 12. “That presumption, however, is not conclusive and it may be overcome by other indicia of legislative intent[,]” id. (internal quotation marks and citation omitted), which “may be gleaned from the statutory schemes by identifying the particular evil addressed by each statute; determining whether the statutes are usually violated together; comparing the amount of punishment inflicted for a violation of each statute; and examining other relevant factors.” Swick, 2012-NMSC-018, ¶ 13 (internal quotation marks and citation omitted). Finally, “[i]f after examining the relevant indicia the legislative intent remains ambiguous, the rule of lenity requires us to presume that the Legislature did not intend multiple punishments for the same conduct.” Id.
{43} I agree with the majority that Defendant‘s convictions for kidnapping and enticement of a child were premised upon unitary conduct. Maj. Op. ¶ 13. I also agree that the modified Blockburger analysis is warranted because the kidnapping statute is written with many alternatives, see
{44} However, I disagree with the majority‘s conclusion that Defendant‘s convictions for kidnapping by deception and enticement of a minor violate double jeopardy simply because they were based upon the same conduct and under the same theory. Maj. Op. ¶ 20. In arriving аt this conclusion, the majority appears to conflate our inquiry under the first step of our double jeopardy analysis with our inquiry under the second step. The purpose of the modified Blockburger analysis is not to determine whether the State based its theory for the two charges upon the same conduct. Rather, the purpose is to identify the appropriate provision for comparison under the traditional Blockburger test. See Luna, 2018-NMCA-025, ¶ 10. Indeed, the majority recognized this in its general discussion of the modified Blockburger analysis, stating, “Thus, ‘instead of looking at the statute in the abstract, we look at the legal theory of the offense that is charged’ when comparing the elements of the statute.” Maj. Op. ¶ 16 (emphasis added) (quoting Gutierrez, 2011-NMSC-024, ¶ 58).
{45} Despite recognizing this and setting forth the elements of kidnapping and enticement of a child, the majority fails to actually compare the identified elements of kidnapping to enticement of a child in order to determine “whether each provision requires proof of a fact which the other does not.” Swick, 2012-NMSC-018, ¶ 12 (internal quotation marks and citation omitted); Maj. Op. ¶¶ 17-20. When properly continuing the double jeopardy analysis, it becomes apparent that the Legislature intendеd to permit multiple punishments for kidnapping by deception and enticement of a child.
{46} Consistent with UJI 14-403, the jury was instructed to find Defendant guilty of kidnapping if they determined, in relevant part, that: (1) “[D]efendant took, restrained, confined or transported [Victim] by force, intimidation or deception” and (2) “[D]efendant intended to hold [Victim] against [Victim]‘s will to inflict death, physical injury or a sexual offense on [Victim.]” Consistent with UJI 14-971 NMRA, the jury was instructed to find Defendant guilty of enticement of a child if they determined, in relevant part, that: (1) “[D]efendant enticed or persuaded [Victim] to enter a building“; (2) “[D]efendant intended to commit the crime or crimes of sexual contact“; and (3) “[Victim] was less than [sixteen] years old.” Comparing these elements to the identified provision of Defendant‘s kidnapping charge, it is clear that each charge requires proof of a fact which the other does not. In order to find Defendant guilty of kidnapping by deception, the jury was required to find, inter alia, that Defendant intended to hold Victim against her will, a fact which was not required to be proven for the enticement charge. Likewise, in order to find Defendant guilty of еnticement of a child, the jury was required to find, inter alia, that Victim was less than sixteen years of age, a fact which was not required for the kidnapping charge. Therefore, “the Legislature is presumed to have intended a separate punishment for each statute without offending principles of double jeopardy.” Silvas, 2015-NMSC-006, ¶ 12.
{47} As noted earlier, this presumption may be overcome by other indicia of legislative intent, which “may be gleaned from the statutory schemes by identifying the particular evil addressed by each statute; determining whether the statutes are usually violated together; comparing the amount of punishment inflicted for a violation of each statute;
{48} Furthermore, “the statutes are [not] usually violated together.” Swick, 2012-NMSC-018, ¶ 13 (internal quotation marks and citation omitted). Many, if not most, kidnappings are committed by force—not deception. In such scenarios, the enticement of a child statute would not be implicated because the defendant would be relying on force and not enticement or persuasion. See
{49} Admittedly, the differing quantum of punishments for the respective crimes suggests that the Legislature may not have intended to punish the two crimes separately: Defendant‘s conviction for kidnapping is a first-degree felony punishable by up to eighteen years in prison, see
Kidnapping and CSCM
{51} That the Legislature has deemed the crime of kidnapping deserving of greater punishment when the perpetrator also commits a sexual offense on the victim does not mean that the conduct underlying both offenses is unitary by definition, even in cases—such as here—where the only conduct elevating the kidnapping charge to a first-degree felony offense is the defendant‘s commission of another sexual offense for which he was also convicted.4 Under the majority‘s approach, it would never be permissible to allow convictions for both predicate and compound offenses because the predicate offense would always be subsumed within the other offense as a matter of law. This runs contrary to precedent. See State v. McGuire, 1990-NMSC-067, ¶ 14, 110 N.M. 304, 795 P.2d 996 (“Nor does the fact that the kidnapping charge was used to raise the criminal sexual penetration to a second-degree felony pose a double jeopardy problem in this case. Convictions normally are allowed for both predicate and compound offenses, and our courts have held that criminal sexual penetration statutes and kidnapping statutes protect different social norms.“); State v. Corneau, 1989-NMCA-040, ¶ 11, 109 N.M. 81, 781 P.2d 1159 (holding that false imprisonment could be used to raise criminal sexual penetration to a second-degree felony when evidence supported a finding of false imprisonment separate from the false imprisonment necessarily involved in almost every act of criminal sexual penetration).
{52} Perhaps most concerning is the result of the majority‘s approach in terms of punishment. Under the majority‘s line of analysis, a defendant who kidnaps and subsequently inflicts even the slightest physical injury on the victim or a defendant who
{53} For these reasons, I believe that the proper focus of our unitary conduct analysis for kidnapping should be on the conduct used to accomplish the kidnapping itself, not the conduct used to elevate the kidnapping to a first-degree felony offense (i.e., the commission of a sexual offense). In other words, if there is sufficient indicia of distinctness between the conduct used to accomplish the kidnapping—in this case, the “unlawful taking, restraining, transporting or confining of [Victim], by . . . deception, with intent . . . to inflict . . . a sexual offense[,]” see
{54} This is consistent with our case law. For example, in Ramos, we rejected the defendant‘s argument that he was subjected to multiple punishments because the state used his kidnapping conviction to raise his CSP charge from a third-degree to a second-degree felony, as well as an independent felony. 1993-NMCA-072, ¶ 27. In Ramos, we noted that “[s]imilar statutory provisions sharing certain elements may support separate convictions and punishments where examination of the facts presented at trial establishes that the jury reasonably could have inferred independent factual bases for the charged offenses.” Id. (alteration, internal quotation marks, and citation omitted). Given the victim‘s testimony that “after [the d]efendant completed the drive into the desert against her will, during which time [the d]efendant restricted her movements, [the d]efendant tried to remove [the victim]‘s clothes and told her that he was going to have sex with her[,] . . . the jury could have inferred from facts other than the CSP itself that [the d]efendant intended to hold the victim against her will from the moment of the abduction.” Id. ¶ 28.
{55} In Dominguez, the state charged the defendant with second-degree criminal sexual penetration (CSP-II) and first-degree kidnapping on the basis that the defendant inflicted a sexual offense on the victim. 2014-NMCA-064, ¶ 5. Although the jury convicted the defendant of both counts, the district court reduced his conviction to a second-degree felony because the jury had not been given the then-current special verdict form containing specific interrogatories asking whether the jury found that the defendant committed a sexual offense upon the victim. Id. ¶¶ 13-14. On appeal, the
{56} Similarly, in Montoya, we considered whether the defendant‘s right to be free from double jeopardy was violated when he was convicted of both CSP II (commission of a felony) and the predicate felony of either aggravated burglary or kidnapping. 2011-NMCA-074, ¶ 28. After holding that the conduct underlying the CSP II conviction and the aggravated burglary conviction was not unitary, id. ¶¶ 33-34, we turned to the defendant‘s kidnapping conviction. Id. ¶ 35. We began our analysis by explaining, “[U]nitary conduct occurs when the state bases its theory of kidnap[p]ing on the same force used to commit CSP II (commission of a felony) even though there were alternative ways to charge the crime.” Id. ¶ 37. We noted that the conduct underlying the CSP II and kidnapping convictions could be unitary depending on the jury‘s basis for when the kidnapping occurred, which was unclear from the record. Id. ¶¶ 39-40. “Because one of the alternative bases for kidnap[p]ing was the force of restraining [the v]ictim and because that force was the same force used to commit CSP, we conclude[d] that the conduct underlying both of the convictions was unitary.” Id. ¶ 39.
{57} In evaluating legislative intent under the second prong of our double jeopardy analysis, we examined the jury instructions and determined that the CSP II instruction “required the jury to find that [the d]efendant caused [the v]ictim to engage in sexual intercourse during the commission of kidnap[p]ing or aggravated burglary.” Id. ¶ 41. Accordingly, we concluded that the kidnapping conviction was subsumed within the CSP II conviction because the latter required proof of all of the elements of the former. Id. ¶ 42. However, we noted that “[t]his holding d[id] not mean that a defendant could never be punished for both kidnap[p]ing and CSP II (commission of a felony).” Id. ¶ 43. “Had the jury in this case been instructed only on a theory based on non-unitary conduct to establish kidnap[p]ing[,]” we observed “convictions for both CSP II (commission of a felony) and kidnap[p]ing may have been upheld.” Id.
{58} In this case, the record clearly indicates that thе State did not base its theory of kidnapping on the same force used to commit the CSCM. In closing, the State made clear that it based its theory of kidnapping on Defendant‘s use of deception and not the same force used to commit the CSCM, stating,
So is [Defendant] guilty of kidnapping? You betcha. And how do we know that? Because [Defendant] took, restrained, confined or transported
[Victim] by force, intimidation or deception. And, really, in this case is the deception, the “[c]ome with me, little girl. I‘ve got something to show you.”
And there was substantial evidence supporting this theory. Victim testified that Defendant grabbed her by the hood of her jacket, pulled her outside onto the windowsill, and put his arm around her mouth. He then told her that he wanted to show her something, which piqued Victim‘s curiosity, prompting her to follow Defendant across the street as Defendant held her hand “really tight[ly.]” At that point in time, the kidnapping by deception was complete, although continuing. See Dominguez, 2014-NMCA-064, ¶ 10 (“The crime of kidnapping is complete when the defendant, with the requisite intent, restrains the victim, even though the restraint continues through the сommission of a separate crime.“); see also State v. Jacobs, 2000-NMSC-026, ¶ 25, 129 N.M. 448, 10 P.3d 127 (holding that “[t]he jury could have found that [the d]efendant kidnapped the victim by deception when he initially offered her a ride home from the mall with another intent in mind“).
{59} It was not until Defendant brought Victim into his bedroom, propped a box spring over the entryway, and forced Victim to sit on his bed, despite her protestations, that Defendant committed the CSCM by running his hand over Victim‘s breasts. Accordingly, I would hold that Defendant‘s conduct underlying the kidnapping and CSCM was not unitary, and therefore, his convictions for both crimes do not violate double jeopardy. See State v. Bernal, 2006-NMSC-050, ¶ 9, 140 N.M. 644, 146 P.3d 289 (“If the conduct is not unitary, then the inquiry is at an end and there is no double jeopardy violation.“); Montoya, 2011-NMCA-074, ¶ 31 (“Sufficient indicia of distinctness exist when one crime is completed before another, and also when the conviction is supported by at least two distinct acts or forces, one which completes the first crime and another which is used in conjunction with the subsequent crime.” (internal quotation marks and citation omitted)).
CONCLUSION
{60} To summarize, I would hold that (1) Defendant‘s convictions for first-degree kidnapping and enticemеnt of a child do not violate double jeopardy because the Legislature intended to punish the two crimes separately, and (2) Defendant‘s convictions for first-degree kidnapping and CSCM do not violate double jeopardy because they were based on non-unitary conduct.
JACQUELINE R. MEDINA, Judge