April 25, 2017- State of New Mexico v. Annette C. Fuschini, No. 33,731

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: April 25, 2017
NO. 33,731
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ANNETTE C. FUSCHINI,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Fernando R. Macias, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant Annette C. Fuschini was convicted of involuntary manslaughter and
aggravated driving while intoxicated (DWI) after she ran over her fiancé with a
vehicle, which resulted in his death. On appeal, Defendant argues that her convictions
violate the double jeopardy clause of the Fifth Amendment of the United States
Constitution. We hold that double jeopardy was not violated and thus affirm
Defendant’s convictions.
BACKGROUND
{2} 	Defendant and her fiancé, Carlos Nevarez, were celebrating his birthday at their
friends’ house. Defendant and Nevarez had been drinking at their home, and they
continued to drink at the celebration. When they left their friends’ house, Defendant
was driving their Silverado truck, and Nevarez was in the passenger seat.
{3} 	As they were driving home, Defendant and Nevarez were having an argument,
Defendant suddenly stopped the truck on the side of the road, and Nevarez got out.
Nevarez yelled at Defendant to leave and walked away onto the curb. Defendant then
drove the truck over the curb and hit Nevarez, pulling him underneath the wheels.
Nevarez died from his injuries.

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{4} 	A grand jury indictment charged Defendant with the deliberate and intentional
killing of Nevarez in violation of NMSA 1978, Section 30-2-1(A)(1) (1994), and
aggravated DWI for causing bodily injury to Nevarez in violation of NMSA 1978,
Section 66-8-102 (2010, amended 2016). At trial, Defendant requested and the district
court submitted instructions on second degree murder and involuntary manslaughter
as lesser included offenses to the first degree murder charge. The jury found
Defendant guilty of involuntary manslaughter and aggravated DWI.
{5} 	Prior to sentencing, Defendant submitted a sentencing memorandum to the
district court opposing the State’s request to impose consecutive sentences. Defendant
asserted that, under the facts and instructions given to the jury, imposing a sentence
for both convictions would result in multiple punishments for the same offense in
violation of the Fifth Amendment. In support of her argument, Defendant referred the
district court to State v. Montoya, 2013-NMSC-020, 306 P.3d 426; State v. Swick,
2012-NMSC-018, 279 P.3d 747; and Swafford v. State, 1991-NMSC-043, 112 N.M.
3, 810 P.2d 1223. The State responded that in its view there was no double jeopardy
prohibition to imposing a sentence for each conviction to be served consecutively. The
district court agreed. Defendant appeals.

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DISCUSSION
{6} 	Defendant’s sole argument on appeal is that she has been convicted and
sentenced in violation of her right to be free from double jeopardy under the Fifth
Amendment to the United States Constitution. Double jeopardy challenges involve
constitutional questions of law, which we review de novo. State v. Melendrez, 2014-
NMCA-062, ¶ 5, 326 P.3d 1126. The prohibition against double jeopardy “functions
in part to protect a criminal defendant against multiple punishments for the same
offense.” Swick, 2012-NMSC-018, ¶ 10 (internal quotation marks and citation
omitted). 	Double 	jeopardy 	multiple-punishment 	cases 	are 	divided 	into 	two
classifications: (1) multiple convictions under a single statute are “unit of prosecution”
cases, and (2) multiple convictions under separate statutes resulting from the same
conduct are “double description” cases. Id. This is a double description case because
Defendant argues that the same conduct resulted in two convictions under separate
statutes.
{7} 	In analyzing a double description multiple-punishment claim, we first determine
whether the underlying conduct for the offenses is unitary. Swafford, 1991-NMSC-
043, ¶ 25. The parties do not dispute that the conduct in this case, Defendant running
over and killing Nevarez, was unitary. When the conduct is unitary, we then review
“the statutes at issue to determine whether the [L]egislature intended to create

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separately punishable offenses.” Id.; see Swick, 2012-NMSC-018, ¶ 20 (noting that
because the prosecution did not challenge the defendant’s assertion that the conduct
was unitary, the Court proceeded to determine whether the Legislature intended
multiple punishments for that conduct). Multiple punishments for unitary conduct are
constitutionally prohibited when the Legislature did not intend to create separately
punishable offenses. See Swick, 2012-NMSC-018, ¶¶ 24, 27 (concluding that, under
the prosecution’s theory of the case, the Legislature did not intend to create separately
punishable offenses and punishment could not be had for both convictions without
violating double jeopardy).
{8} 	We begin by determining whether there is an explicit authorization for multiple
punishments. See State v. Gutierrez, 2011-NMSC-024, ¶ 50, 150 N.M. 232, 258 P.3d
1024 (“Where the [L]egislature has explicitly authorized multiple punishment the
judicial inquiry is at an end, and multiple punishment is authorized and proper.”
(alterations, internal quotation marks, and citation omitted)). Here, neither party
argues and we fail to find an express legislative statement that multiple punishments
may be imposed for both involuntary manslaughter and aggravated DWI that results
in the death of one victim. In the absence of an express statement of legislative intent,
we apply “the rule of statutory construction from Blockburger v. United States, 284
U.S. 299 . . . (1932), to ensure that each provision requires proof of a fact that the

5
other does not. When applying Blockburger to statutes that are vague and unspecific
or written with many alternatives, we look to the charging documents and jury
instructions to identify the specific criminal causes of action for which the defendant
was convicted.” State v. Ramirez, 2016-NMCA-072, ¶ 18, 387 P.3d 266 (citation
omitted).
{9} 	“If that [inquiry] 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. “If
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
the principles of double jeopardy. That presumption, however, is not conclusive and
it may be overcome by other indicia of legislative intent.” State v. Silvas, 2015-
NMSC-006, ¶¶ 12-13, 343 P.3d 616 (internal quotation marks and citations omitted).
In analyzing other indicia of legislative intent, we look to “ ‘the language, history, and
subject of the statutes, and we must identify the particular evil sought to be addressed
by each offense.’ ” Id. ¶ 13 (quoting Montoya, 2013-NMSC-020, ¶ 32). When these
tools are used, if doubt still remains regarding legislative intent, the ambiguity must
be resolved in favor of a defendant under the rule of lenity. See Montoya, 2013-
NMSC-020, ¶ 51 (citing Swick, 2012-NMSC-018, ¶ 30).

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{10} 	In this case, the parties focused on the jury instructions in their modified
Blockburger analyses. The jury instruction in this case for involuntary manslaughter
stated the following elements: Defendant ran over Nevarez with a vehicle, she should
have known of the danger involved in her actions, she acted with a willful disregard
for the safety of others, and her act caused the death of Nevarez. The jury instruction
in this case for aggravated DWI stated the following elements: when operating a
motor vehicle, Defendant “was under the influence of intoxicating liquor, that is, as
a result of drinking such liquor . . . [D]efendant was less able to the slightest degree,
either mentally or physically, or both, to exercise the clear judgment and steady hand
necessary to handle a vehicle with safety to the person and the public”; and
“[D]efendant caused the death of . . . Nevarez[.]”
{11} 	On appeal, Defendant concedes that proof of each crime under the jury
instructions required something different. Involuntary manslaughter required a finding
that Defendant willfully disregarded the safety of others, while aggravated DWI
required a finding that she was intoxicated to the point where she could not safely
handle the vehicle she was driving. Defendant, therefore, concedes that the modified
Blockburger analysis favors the State. She attempts to overcome the presumption that
the Legislature intended multiple punishments by relying on “other indicia of
legislative intent” to support her argument that her convictions violate double

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jeopardy. Without looking to the language, history, or subject of the statutes and
relying on State v. Santillanes, 2001-NMSC-018, ¶ 5, 130 N.M. 464, 27 P.3d 456, for
the proposition that “[i]t is the death of another that the Legislature intended to punish,
not the manner in which it was accomplished[,]” she argues that the Legislature did
not intend that she be punished for aggravated DWI and involuntary manslaughter
because the result is that she is being punished twice for causing one death.
{12} 	We are not convinced that Defendant’s “one death” rationale shows an indicia
of legislative intent sufficient to overcome the presumption that the Legislature
intended multiple punishments in this case. While we agree that, in general, a
defendant cannot be convicted under multiple homicide statutes for causing a single
death, death is not a factor in this case. Aggravated DWI is not a homicide statute. See
§ 	66-8-102(D)(2) (establishing that aggravated DWI consists of “causing bodily
injury to a human being as a result of the unlawful operation of a motor vehicle while
driving under the influence of intoxicating liquor or drugs”). The aggravated DWI
statute targets DWI that results in “bodily injury.” Id. By express definition, “ ‘bodily
injury’ means an injury to a person that is not likely to cause death or great bodily
harm to the person, but does cause painful temporary disfigurement or temporary loss
or impairment of the functions of any member or organ of the person’s body[.]”
Section 66-8-102(U)(1) (2010) (current version at Section 66-8-102(V)(1) (2016)).

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{13} 	Although neither party points out the error of including death as an element in
the aggravated DWI instruction, the fact that the district court erred in that regard does
not logically or rationally give rise to a double jeopardy issue based on the “one
death” rationale. Santillanes, cited by Defendant, is distinguishable from the present
case. The statutes in Santillanes, which were vehicular homicide and child abuse
resulting in death, are both homicide statutes. 2001-NMSC-018, ¶ 1. Similarly, other
cases relying on the “one death” rationale implicated homicide statutes. See Montoya,
2013-NMSC-020, ¶¶ 30, 54 (addressing convictions for voluntary manslaughter and
shooting at a motor vehicle resulting in death for the death of a single victim); State
v. Cooper, 1997-NMSC-058, ¶ 53, 124 N.M. 277, 949 P.2d 660 (addressing
convictions for felony murder and second degree murder for the death of a single
victim). Aggravated DWI is patently not a homicide statute.
{14} 	Absent the “one death” rationale, Defendant provides no indicia of legislative
intent 	to 	overcome 	the 	presumption 	that 	the 	Legislature 	intended 	multiple
punishments. Because we are satisfied that the Legislature intended multiple
punishments, we need not consider Defendant’s rule of lenity argument, which we
would consider only if we first determined that insurmountable ambiguity remained
after analyzing legislative intent under Blockburger and considering other indicia of
legislative intent. See Santillanes, 2001-NMSC-018, ¶ 34 (“In deciding whether the

9
Legislature intends to create separately punishable offenses, the rule of lenity dictates
that, if insurmountable ambiguity remains after applying the Blockburger test and
after resorting to traditional indicia of legislative intent, it is to be presumed the
Legislature did not intend pyramiding punishments for the same offense.” (alteration,
internal quotation marks, and citation omitted)). We therefore conclude that the
Legislature intended multiple punishments, and we hold that there is no double
jeopardy violation.
CONCLUSION
{15} 	For the foregoing reasons, we affirm Defendant’s convictions.
{16} 	IT IS SO ORDERED.
______________________________
JONATHAN B. SUTIN, Judge
I CONCUR:
___________________________________
JAMES J. WECHSLER, Judge
MICHAEL E. VIGIL, Judge (dissenting).

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VIGIL, Judge (dissenting).
{17} 	Defendant was convicted and sentenced twice for the homicide of one person
by a single act of DWI, and the majority concludes this does not violate the
constitutional prohibition against double jeopardy. I respectfully disagree and
therefore dissent. In my opinion, the majority fails to properly apply the modified
Blockburger test mandated by our Supreme Court, and therefore arrives at an
incorrect, unconstitutional result.
{18} 	The two-part test used to analyze a double description multiple punishment case
is well settled. We first determine whether the underlying conduct for the offenses is
unitary. Swafford, 1991-NMSC-043, ¶ 25. If the conduct is not unitary, the analysis
ends because there is no double jeopardy violation. Id. If the conduct is unitary, we
review “the statutes at issue to determine whether the [L]egislature intended to create
separately punishable offenses.” Id. When a defendant engages in unitary conduct
violating two statutes and the Legislature did not intend to create separately
punishable offenses, multiple punishments for the unitary conduct are constitutionally
prohibited. Id.
A. 	Unitary Conduct
{19} 	This aspect of the test is to determine whether the same conduct violated two
statutes. Id. “Conduct is unitary when not sufficiently separated by time or place, and

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the object and result or quality and nature of the acts cannot be distinguished.” Silvas,
2015-NMSC-006, ¶ 10. Here, it is undisputed that Defendant engaged in a single act
of driving over Nevarez while DWI and that this single act resulted in Defendant’s
two convictions under separate statutes. I agree with the majority that the conduct here
was unitary. I therefore proceed to the next step of the analysis. See Swick, 2012-
NMSC-018, ¶ 20.
B. 	Legislative Intent
{20} 	“Where the [L]egislature has explicitly authorized multiple punishment the
judicial inquiry is at an end, and multiple punishment is authorized and proper.”
Gutierrez, 2011-NMSC-024, ¶ 50 (alterations, internal quotation marks, and citation
omitted). I therefore first determine whether the Legislature intended multiple
punishments to be imposed for Defendant’s unitary conduct.
{21} 	I agree with the majority that there is no express legislative intent to impose
multiple punishments for both involuntary manslaughter and aggravated DWI arising
out of a single act of DWI which results in the death of one victim. I also agree with
the majority that we therefore must determine if one statute is subsumed within the
other. That is to say, it must be determined if the conviction under each statute
requires proof of a fact that the other does not. See Swafford, 1991-NMSC-043, ¶ 12.
If one statute is subsumed within the other, they are the same for double jeopardy

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purposes, and convictions and punishment for both are prohibited. See Swick, 2012-
NMSC-018, ¶ 24 (stating multiple convictions are prohibited) (citing Swafford, 1991-
NMSC-043, ¶ 30 (stating multiple punishments are prohibited)).
{22} 	To determine whether one statute is subsumed within the other, we previously
applied the strict elements test established in Blockburger. see 284 U.S. at 299, 304
(“[W]here the same act or transaction constitutes a violation of two distinct statutory
provisions, 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.”).
However, our Supreme Court has concluded that the Blockburger strict elements test
is inadequate in all cases for determining whether one crime is subsumed within
another for double jeopardy purposes. See Montoya, 2013-NMSC-020, ¶ 49; Swick,
2012-NMSC-018, ¶ 21; Gutierrez, 2011-NMSC-024, ¶ 58.
{23} 	Where a statute is “multi-purposed and written with many alternatives, or is
vague and unspecific[,]” a modified Blockburger analysis is used to determine if one
crime is subsumed within the other. Gutierrez, 2011-NMSC-024, ¶ 59 (emphasis,
internal quotation marks, and citation omitted). Under this analysis, appellate courts
“[look] beyond [the] facial statutory language to the actual legal theory in the
particular case by considering such resources as the evidence, the charging documents,
and the jury instructions.” Montoya, 2013-NMSC-020, ¶ 49 (citing Swick, 2012-

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NMSC-018, ¶¶ 21, 26); see Ramirez, 2016-NMCA-072, ¶ 22 (stating that the
modified Blockburger test is used “to determine whether the state’s theory for one
crime, as charged to the jury, is logically subsumed . . . within the state’s theory for
a separate crime”); Gutierrez, 2011-NMSC-024, ¶ 53 (considering the prosecution
theory of the case as expressed in the charging document and jury instructions to
determine if double jeopardy was violated where two separate statutes were violated).
When these tools are used, if doubt still remains regarding the legislative intent, the
ambiguity must be resolved in favor of a defendant under the rule of lenity. See
Montoya, 2013-NMSC-020, ¶ 51 (citing Swick, 2012-NMSC-018, ¶ 30).
{24} 	Defendant was convicted of involuntary manslaughter as a lesser included
offense to the indicted charge of first degree murder. Involuntary manslaughter under
NMSA 1978, Section 30-2-3(B) (1994) may be committed in three different ways: “in
the commission of an unlawful act not amounting to [a] felony, or in the commission
of a lawful act which might produce death in an unlawful manner or without due
caution and circumspection.” (Emphasis added). Each of the three different ways in
which involuntary manslaughter may be committed has numerous, generally described
ambiguous alternatives, multiple purposes, and deterrent possibilities. Following
Montoya, Swick, and Gutierrez, I therefore depart from the Blockburger strict
elements test and proceed to examine the actual legal theory supporting Defendant’s

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convictions. See Gutierrez, 2011-NMSC-024, ¶ 59 (concluding that because the
phrase “anything of value” in NMSA 1978, Section 30-16-2 (1973) defining
“robbery” is “vague and unspecific,” the modified Blockburger test would be applied
by reference to the state’s legal theory of the case).
{25} 	The legal theory for Defendant’s conviction of involuntary manslaughter was
that Defendant caused “the unlawful killing of [Nevarez] without malice” by “the
commission of an unlawful act not amounting to [a] felony[.]” Section 30-2-3(B). The
only “unlawful act not amounting to a felony” that Defendant committed under the
evidence and the State’s legal theory to support the involuntary manslaughter
conviction is the misdemeanor of aggravated DWI under Section 66-8-102. See State
v. Deming, 1959-NMSC-074, ¶¶ 1, 23, 66 N.M. 175, 344 P.2d 481 (affirming
convictions for involuntary manslaughter when the defendant was driving while under
the influence of alcohol and collided with a motor scooter, killing the riders); State v.
Alls, 1951-NMSC-016, ¶¶ 4, 10, 18-20, 55 N.M. 168, 228 P.2d 952 (concluding that
driving while under the influence of alcohol constitutes an unlawful act, not
amounting to a felony, in affirming the defendant’s involuntary manslaughter
conviction). We are therefore confronted with the question of whether, under the
evidence and legal theory of this case, aggravated DWI is subsumed within
involuntary manslaughter. Pursuant to Montoya, 2013-NMSC-020, ¶ 49; Ramirez,

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2016-NMCA-072, ¶ 22; and Gutierrez, 2011-NMSC-024, ¶ 53, I look to the jury
instructions for guidance.
{26} 	To find Defendant guilty of aggravated DWI, the jury was required to find that
the State proved the following elements beyond a reasonable doubt:
1. 	The defendant operated a motor vehicle;
2. 	At that time the defendant was under the influence of
intoxicating liquor, that is, as a result of drinking such liquor the
defendant was less able to the slightest degree, either mentally or
physically, or both, to exercise the clear judgment and steady hand
necessary to handle a vehicle with safety to the person and the public;
3. 	The defendant caused the death of Carlos Nevarez, III;
4. 	This happened in New Mexico, on or about the 12[th] day
of June, 2013.
In finding Defendant guilty of aggravated DWI, the jury found that Defendant caused
Nevarez’s death while DWI, and the jury also found that Defendant committed
involuntary manslaughter by the same DWI. Therefore, under the evidence and legal
theory of the case, Defendant was convicted of two separate homicide convictions by
committing a single act of DWI, and Defendant’s unintended killing of Nevarez by
involuntary manslaughter failed to require proof of a fact that the aggravated DWI did
not. The result is that the aggravated DWI conviction is subsumed by the involuntary
manslaughter conviction, and Defendant’s conviction and sentence for both violate
double jeopardy.

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C. 	Majority Opinion
{27} 	I agree with the majority that death is not a statutory element of aggravated
DWI under Section 66-8-102. Aggravated DWI under Section 66-8-102(D)(2) is
committed when “bodily injury” results from DWI, and death is not included in the
definition of “bodily injury” in the aggravated DWI statute. Section 66-8-102(V)(1)
defines “bodily injury” as “an injury to a person that is not likely to cause death or
great bodily harm to the person, but does cause painful temporary disfigurement or
temporary loss or impairment of the functions of any member or organ of the person’s
body[.]” However, what the majority overlooks and ignores, is that the instructions
given to the jury are the law of the case. See Couch v. Astec Indus., Inc., 2002-NMCA-
084, ¶ 40, 132 N.M. 631, 53 P.3d 398 (“Jury instructions not objected to become the
law of the case.”); see also State v. Trujillo, 2012-NMCA-092, ¶¶ 16-18, 287 P.3d 344
(reversing the defendant’s conviction for criminal sexual contact of a minor (CSCM)
in the second degree because under the jury instructions, the defendant’s conduct
constituted CSCM in the third degree, not CSCM in the second degree). The result,
under the evidence, the State’s theory, and the instructions, is that Defendant was
convicted of aggravated DWI for causing the death of Nevarez while DWI, and for
involuntary manslaughter by the same DWI.

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{28} 	In New Mexico, multiple homicide convictions for causing a single death
violate double jeopardy. In Cooper, 1997-NMSC-058, ¶ 53, our Supreme Court
agreed with the defendant’s argument that “the fact that there was only one murder
victim means he can be convicted only once for murder[,]” and concluded that
separate convictions for felony murder and second degree murder for the death of a
single victim violated double jeopardy. Similarly, in Santillanes, 2001-NMSC-018,
¶ 5, our Supreme Court held that the convictions for both vehicular homicide and
child abuse resulting in death for the same victims also violated double jeopardy. In
coming to this conclusion, the Supreme Court agreed with “the generally accepted
notion that one death should result in only one homicide conviction,” and that “[i]t is
the death of another that the Legislature intended to punish, not the manner in which
it was accomplished.” Id. (internal quotation marks and citation omitted). Finally, in
Montoya, 2013-NMSC-020, ¶¶ 11, 54, our Supreme Court held that separate
convictions for voluntary manslaughter and shooting at a motor vehicle resulting in
death for the same victim violated double jeopardy, and in doing so, reaffirmed the
reasoning “that one death should result in only one homicide conviction under New
Mexico law.” Id. ¶ 43 (internal quotation marks and citation omitted).
{29} 	In my opinion, the majority errs by focusing its attention on the statutory
elements of aggravated DWI and limiting its analysis to “other indicia of legislative

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intent” while ignoring the evidence, the State’s theory, and the law of the case
contained in the jury instructions. Majority Op., ¶¶ 9-11. In doing so, the majority is
reverting back to the strict elements Blockburger test instead of the modified
Blockburger test our Supreme Court has instructed us to follow.
{30} 	Moreover, to the extent there is “other indicia of legislative intent,” it is that the
Legislature intends that a single conviction will result from one DWI that results in
a single death. “A person who commits homicide by vehicle while under the influence
of intoxicating liquor or while under the influence of any drug is guilty of a second
degree felony[.]” NMSA 1978, § 66-8-101(C) (2016). In State v. Yarborough, 1996-
NMSC-068, ¶¶ 28-29, 122 N.M. 596, 930 P.2d 131, our Supreme Court discussed the
legislative history of our involuntary manslaughter statute and the homicide by vehicle
statute and held, “the [L]egislature intended to preempt the crime of involuntary
manslaughter with the specific crime of homicide by vehicle when the predicate
offense is a violation of the Motor Vehicle Code.” Id. ¶ 30. Since aggravated DWI is
a violation of the Motor Vehicle Code, I would follow Yarborough’s reasoning and
conclude that by adopting the crime of homicide by vehicle, our Legislature expressed
its intent that only one conviction for a death is permitted when a single DWI causes
a single death.

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D. 	Conclusion
{31} 	In my opinion, the constitutional protection against double jeopardy mandates
that Defendant’s conviction and sentence for aggravated DWI must be vacated. Since
the majority disagrees, I dissent.
____________________________________
MICHAEL E. VIGIL, Judge