A-1-CA-35234 | Omnilex

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Court of Appeals of New Mexico
Filed 6/25/2019 10:19 AM

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
Opinion Number: Filed 6/25/2019 10:19 AM

Filing Date: June 25, 2019 Lh [—
Mark Reynolds

No. A-1-CA-35234

STATE OF NEW MEXICO,

Plaintiff-Appellee,

PAUL A. CAIN,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Angie K. Schneider, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Laurie Pollard Blevins, Assistant Attorney General
Albuquerque, NM

for Appellee

Paul A. Cain
Chaparral, NM

Pro Se Appellant

OPINION
DUFFY, Judge.
a Defendant was found guilty of two counts of failure to register as a sex
offender under New Mexico’s Sexual Offender Registration and Notification Act
(SORNA), NMSA 1978, Section 29-11A-4 ) (2005, amended 2013). We hold that
the two convictions violated Defendant’s right to be free from double jeopardy and
remand to the district court to vacate one of Defendant’s convictions. We reject the
remainder of Defendant’s arguments on appeal.
BACKGROUND
{2} Defendant was convicted of third degree criminal sexual penetration on
September 5, 2008. Thereafter, he was required to register as a sex offender pursuant
to SORNA, which required that he register every ninety days and also within ten
days of changing his address. See Section 29-11A-4 (F), (L)'; see also UN 14-990
NMRA (sex offender registration and notification chart). In 2012, Defendant failed
to comply with both requirements. Defendant had last registered on March 7, 2012,
and his next ninety-day deadline to re-register was June 7, 2012. Section 29-11A-

4(L)(1). In that period, Defendant was evicted and required to move out of his home

'The SORNA was amended in 2013, after Defendant was charged but before he
went to trial. The 2013 amendment to Subsection (F) reduced the time to file a
change of address notification from ten days to five days. Section 29-11A-4.
Subsection (L) was not modified.

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by June 17, 2012, thus triggering a separate requirement that he register his new
address within ten days of his move. Section 29-11 A-4(F) (2005). Defendant missed
both deadlines and did not register again until July 11, 2012. Defendant was arrested
and elected to proceed, pro se, with a bench trial. The district court convicted
Defendant on November 10, 2015, of two counts of failing to register as a sex
offender and sentenced him to three years’ incarceration.
DISCUSSION
{3} Defendant, representing himself pro se at trial and on appeal, raises numerous
claims of error. This Court, in its notice of assignment to the general calendar,
requested that the parties discuss any double jeopardy implications arising from
Defendant’s convictions. Along with double jeopardy, Defendant raises sixteen
additional claims of error. We address the double jeopardy issue and other claims
properly raised on appeal, but decline to review the remaining unpreserved and
undeveloped claims. In Lukens v. Franco, our Supreme Court stated,
We remind counsel that we are not required to do their research, and
that this Court will not review issues raised in appellate briefs that are
unsupported by cited authority. When a criminal conviction is being
challenged, counsel should properly present this court with the issues,
arguments, and proper authority. Mere reference in a conclusory
statement will not suffice and is in violation of our rules of appellate
procedure.

2019-NMSC-002, ] 5, 433 P.3d 288 (quoting State v. Clifford, 1994-NMSC-048,

{ 19, 117 N.M. 508, 873 P.2d 254)); Newsome v. Farer, 1985-NMSC-096, § 18, 103

N.M. 415, 708 P.2d 327 (“Although pro se pleadings are viewed with tolerance, a
pro se litigant, having chosen to represent himself, is held to the same standard of
conduct and compliance with court rules, procedures, and orders as are members of
the bar.” (emphasis and citation omitted)).

I. Double Jeopardy

{4 Defendant was convicted of two counts of violating Section 29-11 A-4, and
argues on appeal that his convictions violate his right to be free from double
jeopardy. “The defense of double jeopardy may not be waived and may be raised by
the accused at any stage of a criminal prosecution, either before or after judgment.”
NMSA 1978, § 30-1-10 (1963). “A double jeopardy claim is a question of law that
we review de novo.” State v. Bernal, 2006-NMSC-050, { 6, 140 N.M. 644, 146 P.3d
289.

{5} “The Fifth Amendment . . . . functions in part to protect a criminal defendant
against multiple punishments for the same offense.” State v. Swick, 2012-NMSC-
018, ¢ 10, 279 P.3d 747 (internal quotation marks and citations omitted). “This
prohibition relates to two general categories of cases: cases in which a defendant has
been charged with multiple violations of a single statute based on a single course of
conduct, known as ‘unit of prosecution’ cases; and cases in which a defendant is
charged with violations of multiple statutes for the same conduct, known as ‘double-

description’ cases.” State v. DeGraff, 2006-NMSC-011, 9 25, 139 N.M. 211, 131

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P.3d 61. Because Defendant is charged with two violations of the same statute, this
is a unit-of-prosecution case. See Swick, 2012-NMSC-018, 4 33 (applying unit of
prosecution analysis to two convictions based on different subsections of the same
statute); State v. Bello, 2017-NMCA-049, J 9, 399 P.3d 380 (noting that “double
jeopardy claims based on multiple violations of different subsections under one
statute” are analyzed “using the unit of prosecution standard analysis”).

To determine the Legislature’s intent with respect to the unit of
prosecution for a criminal offense, we apply a two-step test. First, we
review the statutory language for guidance on the unit of prosecution.
The plain language of the statute is the primary indicator of legislative
intent. If the statutory language spells out the unit of prosecution, then
we follow the language, and the unit-of-prosecution inquiry is
complete. If the language is not clear, then we move to the second step,
in which we determine whether a defendant’s acts are separated by
sufficient indicia of distinctness to justify multiple punishments under
the same statute. If the acts are not sufficiently distinct, then the rule of
lenity mandates an interpretation that the legislature did not intend
multiple punishments, and a defendant cannot be punished for multiple
crimes.

State v. Ramirez, 2018-NMSC-003, § 47, 409 P.3d 902 (internal quotation marks
and citations omitted). Accordingly, in discerning the Legislature’s intent, we first
look to the statutory language for guidance on the unit of prosecution.

6} The Legislature set forth the unit of prosecution within SORNA by stating
that “[t]he willful failure to comply with any registration or verification requirement

set forth in this section shall be deemed part of a continuing transaction or

occurrence.” Section 29-11A-4(P) (emphasis added).? The Legislature’s use of
“any” indicates that it contemplated that more than one violation may occur within
a given period of non-compliance before the offender next registers, and expressly
states that those violations are treated as part of a single, ongoing transaction or
occurrence. Cf Ramirez, 2018-NMSC-003, ¥ 53 (“Significantly, our Legislature
chose not to employ the phrase ‘any child’ or the word ‘children’ in place of ‘a child.’
Had it done so, Section 30-6-1(D)(1) would have expressly contemplated that more
than one child may be affected by a single course of abuse by endangerment[.]”).
Thus, when a sex offender fails to register after changing his address in violation of
Section 29-11A-4(F) and also fails to register within the ninety-day time period in
violation of Section 29-11A-4(L)(1), the Legislature defines those failures as “part
of a continuing transaction or occurrence” such that Defendant may only be charged
with one offense. Section 29-11A-4(P).

{83} While the State argues that State v. Valencia, 416 P.3d 1275, 1280 (Wash. Ct.
App. 2018), supports a contrary outcome, we note that Washington’s version of the
SORNA expressly provides that defendants may be charged separately for multiple
violations in some circumstances. Wash. Rev. Code Ann. § 9A.44.130(4)(c) (West
2010) (providing that failure to register following arrest or service of criminal

complaint for failure to register “constitutes grounds for filing another charge of

* The 2005 version of SORNA contained identical language in Section 29-11A-4(N).
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failing to register”). Because the statute contains a unit of prosecution contrary to
our own, Valencia is not persuasive in interpreting our SORNA. We hold that
Defendant’s two convictions under Section 29-11A-4 violate double jeopardy, and
thus remand with instructions to vacate one of Defendant’s convictions and for
resentencing as may be necessary.

II. Remaining Issues

A. Subject Matter Jurisdiction

{93 Defendant argues that the district court did not have jurisdiction to impose
criminal penalties because SORNA is a civil statute. Defendant filed two motions to
dismiss below, both asserting that the district court lacked jurisdiction to punish
Defendant criminally. The Legislature, however, has specifically provided for
criminal penalties as part of SORNA. See § 29-11A-4(P), (Q) (making violations of
the registration or verification requirements of SORNA a fourth degree felony).
Moreover, we have previously addressed the district court’s subject matter
jurisdiction, stating that SORNA “confers criminal jurisdiction on the district court
to hear cases brought by the State when a sex offender has either willfully failed to
register or has provided false information when registering.” State v. Brothers, 2002-
NMCA-110, 7 19, 133 N.M. 36, 59 P.3d 1268. Defendant fails to address our holding

in Brothers and offers no argument or authority requiring us to reach a different

result here. We hold that the district court had subject matter jurisdiction to impose
criminal penalties for Defendant’s failures to register.

B. Illegal Warrant

{10} | Defendant argues that his arrest was illegal because it was based on an “illegal
warrant.” Defendant preserved this issue by filing a motion to dismiss in the district
court. We understand Defendant to argue that he was illegally arrested in Texas on
a warrant authorizing his arrest only in New Mexico. As an initial matter, the State
points out that two separate warrants were issued in this case. The first warrant issued
on July 10, 2012, and resulted from Defendant’s failure to register under SORNA.
It stated, “[e]xtradite New Mexico only.” The second warrant issued on August 3,
2012, as a result of Defendant’s parole violation, and contained no similar limitation
on extradition. Defendant was arrested in Texas on the second warrant and, pursuant
to NMSA 1978, Section 31-21-14(A) (1963), we see no violation in Defendant’s
arrest. See id. (authorizing the issuance of an arrest warrant for a released prisoner
for violation of conditions of release, and providing that “[i]f the prisoner is out of
the state, the warrant shall authorize the superintendent to return him to the state”).
{11} With respect to Defendant’s complaint that proper extradition procedures
were not followed, we note that Defendant signed a waiver of extradition, agreeing
to be transported to New Mexico to answer the charges against him, and he therefore

waived his right to challenge any alleged failure to comply on appeal. We further

point out, as the State did below, that even if Defendant’s arrest was illegal or
otherwise not authorized, our case law does not support dismissal of the charges
against him. See State v. Nolan, 1979-NMCA-116, {§ 8-9, 93 N.M. 472, 601 P.2d
442 (holding that dismissal of charges against the defendant was not warranted even
assuming his arrest was illegal); see also State v. Nysus, 2001-NMCA-023, { 5, 130
N.M. 431, 25 P.3d 270 (stating that “the jurisdiction to try a person is not divested
because the person’s arrest was illegal’).

C. Right to Be Represented by Counsel and Right to Proceed Pro Se

{12} Although Defendant expressly waived his right to an attorney before trial, he
argues that he was denied his right to counsel and levies two claims of error: (1) that
he was entitled to be represented by counsel at the earliest possible time and the
public defender failed to do so; and (2) that the district court erred in allowing him
to represent himself.

{13} The district court did not officially appoint a public defender for Defendant
until the hearing on the State’s motion to determine counsel, which occurred about
five months after Defendant’s arraignment. Defendant argues that counsel should
have been appointed for him earlier. We are not persuaded. A public defender was
present and represented Defendant at his arraignment on September 10, 2012.
Although he was given a packet to apply for a public defender, he failed to complete

the paperwork. Nevertheless, a public defender was present and appeared for

Defendant at the hearing on the State’s motion to determine counsel on February 28,
2013. When asked by the trial court, Defendant stated that he was reluctant to have
a court-appointed attorney and that he had refused to fill out the paperwork. Despite
Defendant’s reluctance, the district court issued an order assigning the Law Office
of the Public Defender to represent Defendant. In the period between Defendant’s
arraignment and the hearing on the State’s motion to determine counsel, the only
actions appearing in the record were the district court’s scheduling order and an order
setting plea deadlines—nothing that would have required a court appearance or
Defendant’s participation. Thus, the record reflects that Defendant had
representation at all proceedings prior to the official appointment of counsel, and
any delay in acquiring representation resulted from Defendant’s intentional failure
to submit a required application. We find no error in Defendant’s first argument.

14} Defendant also claims that the district court erred in allowing him to dismiss
his public defender and proceed pro se, arguing that he did not want to dismiss his
attorney for the remainder of his trial, but rather only wanted to appear pro se to
“assist in his defense” by presenting one issue regarding jurisdiction to the district
court. “[A] defendant should be accorded the right of self-representation when he or
she is able to make a knowing and intelligent waiver of counsel.” State v. Chapman,
1986-NMSC-037, 9 9, 104 N.M. 324, 721 P.2d 392 (citing Faretta v. California,

422 US. 806, 835 (1975)).

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{15} To determine whether a defendant is making a voluntary, knowing, and
intelligent waiver, “the court must inform itself regarding a defendant’s competency,
understanding, background, education, training, experience, conduct and ability to
observe the court’s procedures and protocol.” Chapman, 1986-NMSC-037, § 10. In
State v. Castillo, 1990-NMCA-043, J 9, 110 N.M. 54, 791 P.2d 808, we stated that

the trial court must insure that [a] defendant has been informed of the

nature of the charges, the statutory offenses included within them, the

range of allowable punishments, possible defenses or mitigating factors

that might be available to the defendant, and it must also admonish him

that he will be expected to follow the rules of evidence and courtroom

procedure.
The record reveals that the district court followed Castillo. The district court
specifically advised Defendant about the charges against him and the possible
sentences in the event of a guilty verdict, and Defendant asserted that he understood.
The district court further advised Defendant that if he proceeded pro se, he would be
representing himself through the entire proceeding, not just on the jurisdictional
motion. The district court went on to explain to Defendant that he had a right to
counsel, he could hire a different attorney if he wished, and that he would be held to
the same standard as an attorney. The district court asked about Defendant’s
education, special learning needs, if any, or other mental health issues that would
affect his ability to comprehend the proceedings. The district court told Defendant

that there was a risk that he would not identify an issue for appeal that Defendant’s

attorney might have caught if Defendant had been represented, and Defendant said
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he was willing to assume that risk. The district court said Defendant’s attorney would
stay on as standby counsel but that the attorney would not make any arguments to
the court, and Defendant said he understood. Later, the district court said, “[M]y
concern is that you’re doing this so that you can—solely for the purpose of making
your jurisdiction argument, your jurisdictional argument, and that’s a small sliver of
what can take place today ... the consequences of the outcome of today go well
beyond that... I want to be clear—there’s a lot more that can happen today than
just that one argument that you feel so strongly about making. Do you understand
that?” Defendant replied, “Yes, ma’am, I understand that, I was prepared to go pro
se before [my public defender] was appointed.” The court asked if anyone was
“forcing you” to do this, and Defendant responded, “[N]o.” Defendant signed a
waiver of counsel.

{16} Defendant was adequately advised of the hazards of self-representation and
we conclude in accordance with our case law that Defendant voluntarily, knowingly,
and intelligently waived his right to counsel. See State v. Reyes, 2005-NMCA-080,
{1 9-10, 137 N.M. 727, 114 P.3d 407. Accordingly, we perceive no error in

permitting Defendant to proceed pro se pursuant to his request.

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D. Ineffective Assistance of Counsel
{17} Defendant also claims ineffective assistance of counsel on appeal, arguing that
his attorney “failed to research the jurisdiction issue and failed to submit subpoenas
for [Defendant’s] witnesses.” “Although we are reluctant to consider an ineffective
assistance of counsel claim on appeal without an evidentiary hearing, we generally
do not demand preservation of the issue because effective assistance of counsel is a
fundamental right[.]” Garcia v. State, 2010-NMSC-023, 4 28, 148 N.M. 414, 237
P.3d 716. “We review the legal issues involved with claims of ineffective assistance
of counsel de novo.” State v. Crocco, 2014-NMSC-016, J 11, 327 P.3d 1068.
When an ineffective assistance claim is first raised on direct appeal,
[appellate courts] evaluate the facts that are part of the record. If facts
necessary to a full determination are not part of the record, an
ineffective assistance claim is more properly brought through a habeas
corpus petition, although an appellate court may remand a case for an
evidentiary hearing if the defendant makes a prima facie case of
ineffective assistance.
Id. | 14 (internal quotation marks and citation omitted). “In order to be entitled to
relief on the basis of ineffective assistance of counsel, a defendant must show that
(1) counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defense.” State v. Trammell, 2016-NMSC-030, J 16, 387 P.3d 220
(internal quotation marks and citation omitted).

{18} First, Defendant faults both his attorney and the district court for failing to

submit subpoenas for Defendant’s witnesses at trial. Defendant signed a waiver of

counsel on August 18, 2015, and thereafter proceeded pro se until his trial on
November 10, 2015. Defendant filed his own witness list on August 24, 2015, but
failed to issue any subpoenas to compel his witnesses to appear at trial pursuant to
Rule 5-511(A)(3) NMRA, which states that “The clerk shall issue a subpoena, signed
but otherwise in blank, to a party requesting it, who shall complete it before service.”
At trial, Defendant notified the district court that “his witnesses were not at the court.
[The district court] told [Defendant] that it is his responsibility as a pro se defendant
to subpoena and contact his own witnesses to appear at trial.” Defendant, “having
chosen to represent himself, is held to the same standard of conduct and compliance
with court rules, procedures, and orders as are members of the bar.” Newsome, 1985-
NMSC-096, {| 18. We find no error by Defendant’s attorney or the district court in
connection with Defendant’s failure to subpoena his witnesses.

{19} With respect to Defendant’s second claim of error—that his attorney failed to
research the jurisdictional issue—Defendant fails to establish prejudice. As we
discussed above, Defendant’s jurisdictional question fails as a matter of law.
Because Defendant has not demonstrated that his defense was prejudiced by his
counsel’s alleged errors, we conclude that Defendant has failed to establish a prima

facie case of ineffective assistance of counsel.

E. Discovery

{20} Defendant argued below and on appeal that his parole officer, Aida Ramos,
took “field notes,” which he alleged would prove that Ms. Ramos had told Defendant
that he did not need to register until July 5. He alleges Ms. Ramos failed to disclose
these notes, in violation of Brady v. Maryland, 373 U.S. 83 (1963).

{21} Defendant’s attorney filed a motion to compel the State to produce the notes.
At the hearing on the motion, Defendant’s standby counsel said that Defendant still
did not have the notes. The prosecutor responded that all of the notes in the State’s
possession had already been tendered, including the field notes. Defendant took no
further action after the hearing regarding the field notes and did not indicate at any
time before his closing argument that he believed that the discovery was still
incomplete.

{22} At trial, the district court asked if Defendant was ready to proceed, and he
responded affirmatively. The State called Ms. Ramos as a witness, and although
Defendant had an opportunity to cross-examine Ms. Ramos about her notes, he
elected to not cross-examine her at all. Instead, Defendant brought up the notes in
his closing statement, saying he still did not have them. The district court responded,
“that’s a part of the record, we’ve already addressed that issue.” Defendant has not

shown that the State violated its disclosure obligations or failed to produce the field

notes, and consequently, we perceive no error in the district court’s resolution of
Defendant’s discovery claims.

F. Issues Not Adequately Developed for Appellate Review

{23} We summarily address several issues that are undeveloped for appellate
review. See Clayton v. Trotter, 1990-NMCA-078, ff 16-17, 110 N.M. 369, 796 P.2d
262 (stating that the appellate court will review the arguments of self-represented
litigants to the best of its ability, but cannot respond to unintelligible arguments).
{24} First, Defendant’s brief includes vague references to the constitutionality of
SORNA and his due process rights, but includes no explanation of those arguments.
See Elane Photography, LLC v. Willock, 2013-NMSC-040, 70, 309 P.3d 53 (“This
Court requires that the parties adequately brief all appellate issues to include an
argument, the standard of review, and citations to authorities for each issue
presented. ... We will not review unclear arguments, or guess at what a party’s
arguments might be.” (alteration, internal quotation marks, and citations omitted));
Moreover, we have already reviewed and affirmed the constitutionality of SORNA,
and we decline to depart from that decision here. See also State v. Druktenis, 2004-
NMCA-032, ¢ 2, 135 N.M. 223, 86 P.3d 1050 (affirming the constitutionality of
SORNA).

25} Second, Defendant raised “sufficiency of evidence” in his brief-in-chief; thus,

we presume he sought to raise a sufficiency of the evidence challenge on appeal.

However, this section of his brief consists only of two citations to federal cases and
no argument, no citation to the record, and does not identify any deficiency in the
evidence or articulate a basis for reversal. State v. Fuentes, 2010-NMCA-027, q 29,
147 N.M. 761, 228 P.3d 1181 (explaining that this Court does not review unclear or
undeveloped arguments on appeal that would require this Court to guess at what a
party’s arguments might be).

{26} Third, Defendant argues that he had a right to an interlocutory appeal
concerning the jurisdictional issue, and that the district court erred in failing to
inform him ofa statute applicable to interlocutory appeals in criminal trialh—NMSA
1978, Section 39-3-3(A)(3) (1972). Defendant raised the jurisdictional issue in a
motion to dismiss while representing himself pro se, and after the district court
denied his motion, he failed to file an application for interlocutory appeal in this
Court. Defendant cites no authority for the proposition that a district court is required
to advise and educate a pro se litigant on appellate procedure, nor are we aware of
any. Indeed, we have often stated that “a pro se litigant is not entitled to special
privileges because of his pro se status.” Bruce v. Lester, 1999-NMCA-051, 9 4, 127
N.M. 301, 980 P.2d 84. “Defendant, who has chosen to represent himself, must
comply with the rules and orders of the court, and will not be entitled to greater rights

than those litigants who employ counsel.” /d.

27}. Fourth, Defendant captioned a section of his brief, “collateral order doctrine”
and states that “[i]t is within the [appellate] court’s discretion to consider the error
preserved below and presented in appellant’s brief after having been omitted from
the docketing statement.” In this opinion, however, we have considered each of
Defendant’s arguments, we have addressed all of the arguments that were properly
preserved and developed for appeal, and have declined to address only those
arguments that Defendant failed to adequately develop for appellate review. State v.
Gonzales, 2011-NMCA-007, J 19, 149 N.M. 226, 247 P.3d 1111 (stating that “this
Court has no duty to review an argument that is not adequately developed”).

28} Finally, Defendant raises various claims of error, including “fair trial,”
“fundamental rights,” and “plain error.” In each of these sections, Defendant quotes
portions of state and federal cases, but provides no argument, no citation to the
record, and fails to identify any specific claim of error with respect to his trial. See
State v. Ortiz, 2009-NMCA-092, 4 32, 146 N.M. 873, 215 P.3d 811 (noting that it is
the party’s responsibility to connect legal theories to the pertinent elements and the
factual support for those elements and that this Court may decline to review
undeveloped arguments on appeal). Because these arguments are not sufficiently

developed, we do not address them.

G. Issues Not Preserved

{29} Lastly, we address several issues for which Defendant failed to include any
citation to the record to indicate that they were preserved below. These include
whether Defendant was subject to entrapment, whether there was an unconstitutional
deprivation of Defendant’s “good time,” and whether the New Mexico Corrections
Department has regulations that are unconstitutional. “We generally do not consider
issues on appeal that are not preserved below.” State v. Leon, 2013-NMCA-011,
{ 33, 292 P.3d 493 (internal quotation marks and citation omitted). “To preserve an
issue for review it must appear that a ruling or decision by the trial court was fairly
invoked.” Rule 12-321(A) NMRA. “In order to preserve an issue for appeal, a
defendant must make a timely objection that specifically apprises the trial court of
the nature of the claimed error and invokes an intelligent ruling thereon.” State v.
Montoya, 2015-NMSC-010, 4 45, 345 P.3d 1056 (internal quotation marks and
citation omitted). In his briefing, Defendant must point the appellate court to where
in the record the issues raised on appeal were preserved below. Rule 12-318(A)(4)
NMRA (“The brief in chief of the appellant ... shall contain ... a statement
explaining how the issue was preserved in the court below, with citations to
authorities, record proper, transcript of proceedings, or exhibits relied on.”). This
Court will not search the record to find whether an issue was preserved where

defendant did not refer to appropriate transcript references. See State v. Rojo, 1999-

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NMSC-001, 9 44, 126 N.M. 438, 971 P.2d 829. As Defendant has failed to indicate
how these issues were preserved for appellate review or that a preservation exception
is applicable, we do not address these arguments on appeal. See State v. Lucero,
1999-NMCA-102, J 43, 127 N.M. 672, 986 P.2d 468 (declining to address argument
on appeal because the defendant failed to indicate how the issue was preserved for
review).

CONCLUSION

30}. For the foregoing reasons, we reverse one of Defendant’s convictions under
Section 29-11A-4 and remand to the district court with instructions to vacate one of
Defendant’s convictions and resentence Defendant as may be necessary.

31) ITISSO ORDERED.

MEGAN P. DUFFY’, Judge

WE CONCUR:

Lis Pro Goyer oad.

KRISTINA BOGARDUS, Judge

Coke Nbr

CENTAIAA FRY, Judge Pid) Tempore

June 25, 2019- State of New Mexico v. Paul A. Cain, No. A-1-CA-35234

Gesamter Gesetzestext

OCR transcription for search; preserved printed pages are authoritative

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