A-1-CA-34674 | Omnilex

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Filed
Court of Appeals of New Mexico
2/14/2018 1:26:29 PM
Office of the Clerk
Mark Reynolds

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Filed

Court of Appeals of New Mexico

2/14/2018

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO ™“

Opinion Number:

Filing Date: February 14, 2018

NO. A-1-CA-34674

STATE OF NEW MEXICO,
Plaintiff-Appellee,

RICHARD SENA,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM

for Appellee
Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo

Santa Fe, NM

for Appellant

The

1:26:29 PM
of the Clerk

—_—

rk Reynolds

OPINION

VARGAS, Judge.

{3} Ajury convicted Defendant Richard Sena of criminal sexual penetration (CSP),
kidnapping, armed robbery, aggravated burglary, and criminal sexual contact (CSC).
Defendant was sentenced to a term of forty years and six months. He appeals his
conviction, alleging five separate assertions of error. First, Defendant claims the
district court erred in failing to grant a mistrial following the State’s comments during
closing arguments about Defendant’s demeanor during the testimony of Victim.
Defendant next alleges that the district court failed to properly instruct the jury on the
kidnapping charge by omitting the requirement that the State prove that Defendant’s
restraint of Victim was not incidental to the commission of another crime. Third,
Defendant contends that the State failed to present sufficient evidence to support his
convictions for first degree CSP and kidnapping. Fourth, Defendant argues his
convictions for both aggravated burglary and CSP or CSC violate double jeopardy.
Finally, Defendant argues the district court abused its discretion in admitting expert
testimony regarding DNA evidence. We conclude that Defendant’s convictions for
both aggravated burglary and CSP/CSC violate double jeopardy and vacate

Defendant’s aggravated burglary conviction. Further, because the jury was not

properly instructed on kidnapping, we remand to the district court for a new trial on
that count. We affirm Defendant’s convictions on all other counts.

I. BACKGROUND

2} Victim, a seventy-three-year-old woman, awoke to an intruder, whom she
identified at trial as Defendant, holding his gloved hand over her mouth and pointing
a knife at her head. When she attempted to scream, Defendant threatened to kill her
if she did not keep quiet. Defendant ordered her to get out of bed and take off her
pajamas. Victim obeyed. Defendant asked where he could find Victim’s purse, and
she directed him to her closet where he retrieved the purse and took Victim’s wallet.
Victim informed Defendant that she needed to use the restroom, and she was
permitted to walk to the restroom with Defendant following close behind. Once there,
Defendant masturbated while Victim used the restroom. Defendant then directed
Victim—still unclothed—to return to the bedroom and lie face down on the bed.
Once Victim did so, Defendant penetrated her with his penis both vaginally and
anally while she was lying on the bed. Victim also testified that Defendant fondled
her breast and vaginally penetrated her with his fingers.

{3}, Defendant left the bedroom after approximately an hour, and Victim made two
attempts to get up from the bed. The first was unsuccessful, as Defendant was still in

the living room and warned her to get back on the bed. Victim complied, and lay on

the bed a while longer before again trying—this time successfully—to get off of the
bed. When Victim entered the living room, she discovered her front door was
standing open and her two cordless home phones, her wallet, and her rifle were gone.
She locked the front door, put on a robe, and used her cell phone to call 911.
Defendant never struck Victim, but she testified she felt as though she could not leave
while he was in her home.

{4 The police arrived at Victim’s home within a few minutes of her 911 call. Once
there, the police discovered footprints in the mud outside Victim’s window. They
followed the footprints leading away from the house, ultimately arriving at another
house in town approximately an hour and a half later where they found Defendant
hiding in the back yard with socks on but without any shoes. The police found
sneakers with tread matching the footprints outside Victim’s home and a dark-
colored, hooded sweatshirt at the house where Defendant was hiding. In a vehicle
parked outside the home, the officers also found leather work gloves matching those
described by Victim.

{5} Later that morning, Victim underwent a sexual assault examination, during
which the Sexual Assault Nurse Examiner (SANE) found no injuries during an
external examination, but did discover that Victim had a half-centimeter “open area”

that was “consistent with force.” The SANE also collected various swabs from Victim

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and Defendant. These items were subjected to DNA testing, along with two sheets
from Victim’s bed and Defendant’s boxer shorts.

6} During closing arguments, the State drew the jury’s attention to Defendant’s
demeanor during Victim’s testimony, stating, “did you notice also, ladies and
gentlemen, when she testified, that man wouldn’t even look at her. He watched every
other witness on the stand.” At that point, defense counsel objected and moved for
a mistrial, arguing that the State was commenting on Defendant’s silence and that
there was no evidence in the record regarding what Defendant did or did not do while
Victim was testifying. The court overruled Defendant’s objection, but stated in open
court that “the jury will have to rely on their own memories as to what they
observed.” The State resumed its closing argument stating, “Did you watch him in
the courtroom when she took the stand? He wouldn’t even look at her. He looked at
every other witness in the eye, but he wouldn’t look at her. And why wouldn’t he look
at her? Because he knew what he’d done. He knew what he did.”

II. DISCUSSION

A. The Prosecutor’s Closing Argument Comments About Defendant’s
Demeanor

{7} Wereview the denial of Defendant’s motion for mistrial based on prosecutorial

misconduct for an abuse of discretion. See State v. Fry, 2006-NMSC-001, 450, 138

N.M. 700, 126 P.3d 516. An abuse of discretion occurs where the district court acts
“in an obviously erroneous, arbitrary, or unwarranted manner.” /d. (internal quotation
marks and citation omitted). Defendant argues that the prosecutor’s action of calling
the jury’s attention to Defendant’s demeanor during Victim’s testimony was
equivalent to commenting on facts not in evidence. Further, Defendant contends that
because he chose not to testify, it was reversible error for the State, during closing
argument, to attribute a testimonial value to Defendant’s demeanor during Victim’s
testimony, thereby suggesting Defendant’s demeanor was testimonial or somehow
relevant to the issue of guilt or innocence. The propriety of a prosecutor’s comments
on the courtroom demeanor of a defendant who elects not to testify is an issue of first
impression in New Mexico.

{8} Although no New Mexico appellate court has addressed this issue, state and
federal courts throughout the country have ruled on the propriety of commenting on
a non-testifying defendant’s courtroom demeanor. A majority of jurisdictions
disallow such comments, though their reasons for doing so vary. Some courts reason
that such comments are not probative of the issue of guilt or innocence, some equate
them to argument of facts not in evidence, some rely on a combination of both those
reasons, and some simply characterize them as improper without any additional

analysis.

{9} | Several states take a broad view when disallowing comment on anon-testifying
defendant’s demeanor by reasoning that it is not probative of the issue of guilt or
innocence. See Hughes v. State, 437 A.2d 559, 572 (Del. 1981) (concluding that the
prosecution’s comments on the defendant’s courtroom demeanor were improper,
explaining that they are “irrelevant” and “pregnant with potential prejudice”);
Commonwealth v. Young, 505 N.E.2d 186, 188-90 (Mass. 1987) (distinguishing
between permissible general comments on a defendant’s courtroom demeanor and
improper comments on demeanor that encourage an inference of guilt, stating that “a
prosecutor should never argue that an inference of guilt should be drawn from proper
conduct”). Other states take a more formalistic evidentiary approach by reasoning that
a prosecutor’s comments about a non-testifying defendant’s demeanor amount to
argument of facts not in evidence. See State v. John B., 925 A.2d 1235, 1243 (Conn.
App. Ct. 2007) (concluding that the prosecution’s reference to the defendant’s
courtroom demeanor was improperly based on “matters extrinsic to the evidence”
where the defendant did not testify and, aside from witness identifications, his
presence in the courtroom was not otherwise introduced into evidence); State v.
Smith, 984 P.2d 1276, 1286 (Haw. Ct. App. 1999) (stating that “[uJnless and until [the
defendant’s] reaction during the trial was lawfully introduced as evidence, it was not

a proper subject for argument to the jury” and concluding that comments on the

defendant’s reaction violated his right to have his guilt or innocence determined
solely on the basis of the evidence presented at trial); People v. Foss, 559 N.E.2d 254,
256 (Ill. App. Ct. 1990) (concluding that the prosecutor’s invitation during opening
statement that the jury consider the defendant’s demeanor was improper because the
defendant’s “demeanor, in any respect other than when he is testifying, does not
constitute evidence”). Some states rely on both reasons for disallowing comment on
anon-testifying defendant’s demeanor. See Mayberry v. State, 830 S.W.2d 176, 178
(Tex. App. 1992) (“Because a defendant’s nontestimonial demeanor is not evidence,
it provides no basis for reasonable deductions from the evidence. Courtroom
demeanor is simply irrelevant to the issue of guilt.”); see also People v. Heishman,
753 P.2d 629, 662-63 (Cal. 1988) (stating that prosecutorial references to a
non-testifying defendant’s demeanor or behavior in the courtroom are improper
because demeanor evidence (1) is relevant only as to the credibility of a witness, (2)
infringes on a defendant’s right not to testify, and (3) “violates the rule that criminal
conduct cannot be inferred from bad character”), abrogated on other grounds by
People v. Diaz, 345 P.3d 62, 69 (Cal. 2015).

410} Other states simply characterize comments on the demeanor ofa non-testifying

defendant as improper without expounding on their reason for doing so. See Pope v.

Wainwright, 496 So. 2d 798, 802 (Fla. 1986) (acknowledging that “comments on a

defendant’s demeanor off the witness stand are clearly improper’); Good v. State, 723
S.W.2d 734, 738 (Tex. Crim. App. 1986) (en banc) (concluding that a prosecutor’s
comments regarding a defendant’s nontestimonial courtroom demeanor are improper).
Further, some federal courts have similarly concluded that a comment on a non-
testifying defendant’s courtroom demeanor constitutes error—either based on a
violation of the defendant’s constitutional rights or because it holds no weight in a
consideration of guilt or innocence. See United States v. Mendoza, 522 F.3d 482, 491
(5th Cir. 2008) (holding that courtroom demeanor ofa non-testifying defendant is “an
improper subject for comment by a prosecuting attorney” because it is “not in any
sense legally relevant to the question of his guilt or innocence” (internal quotation
marks and citation omitted)); United States v. Schuler, 813 F.2d 978, 981 (9th Cir.
1987) (concluding that “in the absence of a curative instruction from the court, a
prosecutor’s comment on a defendant’s off-the-stand behavior constitutes a violation
of the due process clause of the [F]ifth [A]mendment”); United States v. Pearson, 746
F.2d 787, 796 (11th Cir. 1984) (concluding that the prosecutor was not free to
comment on the defendant’s behavior off the witness stand, as “a prosecutor may not
seek to obtain a conviction by going beyond the evidence before the jury” and the
defendant’s behavior off the witness stand was not evidence subject to comment

(internal quotation marks and citation omitted)); United States v. Carroll, 678 F.2d

1208, 1209-10 (4th Cir. 1982) (concluding that where the prosecution “describes the
courtroom behavior of a defendant who has not testified, and then goes on to tell the
jury that it may consider that behavior as evidence of guilt,” the prosecutor violates
the defendant’s Fifth and Sixth Amendment rights); United States v. Wright, 489 F.2d
1181, 1186 (D.C. Cir. 1973) (rejecting the idea that the defendant’s “courtroom
behavior off the witness stand is in any sense legally relevant to the question of his
guilt or innocence”).

41}. A minority of jurisdictions, however, allow the prosecutor to comment on the
courtroom demeanor of a non-testifying defendant. See Shaw v. State, 207 So. 3d 79,
126-27 (Ala. Crim. App. 2014) (characterizing the prosecution’s comments that the
defendant “never shed a tear” and “didn’t care at all” throughout the presentation of
photographic evidence during trial as proper, reasoning that the comments were
aimed at the defendant’s demeanor, not his failure to testify (internal quotation marks
omitted)); Armstrong v. State, 233 S.W.3d 627, 638 (Ark. 2006) (finding no
reversible error where the prosecution directed the jury to recall the defendant’s
reaction to photographic evidence, but acknowledging that the prosecution was
limited to evidence in the record and that a defendant’s face and body are physical
evidence); Smith v. State, 669 S.E.2d 98, 104 (Ga. 2008) (stating that “it is not

improper for the prosecutor to comment in closing argument on a non-testifying

defendant’s appearance and facial expressions”); Hunt v. Commonwealth, 304 S.W.3d
15, 38 (Ky. 2009) (“A prosecutor is entitled to comment on the courtroom demeanor
of a defendant.”); State v. Brown, 358 S.E.2d 1, 15 (N.C. 1987) (finding no error in
the prosecution’s comments on the defendant’s courtroom demeanor because it “calls
to the jurors’ attention the fact that evidence is not only what they hear on the stand
but what they witness in the courtroom”); see also State v. Lawson, 595 N.E.2d 902,
911 (Ohio 1992) (applying the rule that a “defendant’s face and body are physical
evidence” to reach the conclusion that it was “permissible for the prosecution to
comment on the accused’s physical appearance” (internal quotation marks and
citation omitted)).

{12} We agree with the majority of jurisdictions and hold that commenting on the
demeanor of a non-testifying defendant is improper, as it is neither probative of
innocence or guilt, nor is it evidence that an appellate court can properly review.
413}, In New Mexico, we afford trial judges broad discretion in managing closing
argument because they “are in the best position to assess the impact of any
questionable comment.” State v. Sosa, 2009-NMSC-056, § 25, 147 N.M. 351, 223
P.3d 348. The prosecution has similarly wide latitude during closing arguments. See

State v. Smith, 2001-NMSC-004, 7 38, 130 N.M. 117, 19 P.3d 254. A prosecutor’s

remarks must, however, be based on the evidence or made in response to the
defendant’s arguments. Jd.

{14} In this case, the State’s comments were not based on the evidence. Nothing in
the record suggests Defendant’s behavior or demeanor during trial came into
evidence. In addition to arguing a fact not in evidence, we further note the prosecutor
in this case encouraged the jury to infer guilt from Defendant’s courtroom demeanor.
Such an inference is particularly troubling where we perceive no impropriety in the
demeanor that was the subject of the comments. The prosecutor suggested the jury
draw just such an inference in this case by stating, “He wouldn’t look at her. And why
wouldn’t he look at her? Because he knew what he’d done. He knew what he did.”
415} In light of our conclusion that comments on the demeanor of a non-testifying
defendant are not probative of innocence or guilt and requirement that a prosecutor’s
argument be based on the evidence, we hold that prosecutors are prohibited from
commenting on a non-testifying defendant’s courtroom demeanor where, as here, it
is not evidence in the record. We therefore conclude that it was improper for the State
to argue that Defendant’s alleged failure to make eye contact with Victim during her
testimony was evidence of Defendant’s guilt.

416} Having concluded that the State erred, we next examine whether that error

warrants reversal. When reviewing statements made during closing arguments for

reversible error, we begin by considering three factors. First, we consider whether the
comments made during closing argument invade “some distinct constitutional
protection” such as a defendant’s post-Miranda silence or a defendant’s exercise of
his Fourth Amendment rights in refusing to consent to a warrantless search. Sosa,
2009-NMSC-056, {J 26-28. Second, we evaluate whether the statement made “is
isolated and brief, or repeated and pervasive[.]” Jd. J 26. Generally, “an isolated
comment made during closing argument is not sufficient to warrant reversal.” Fry,
2006-NMSC-001, 9 52 (internal quotation marks and citation omitted). Reversal of
the trial court verdict is warranted “[o]nly in the most exceptional circumstances.”
Sosa, 2009-NMSC-056, ¥ 25. Instead, the misconduct complained of is reversible
error where it is so “pronounced and persistent” that it carries “a probable cumulative
effect upon the jury.” /d. 30 (internal quotation marks and citations omitted). Third,
we consider “whether the statement is invited by the defense.” Jd. | 26. Courts are
unlikely to find error “where the defense has opened the door to the prosecutor’s
comments by its own argument or reference to facts not in evidence.” Id. J 33
(internal quotation marks and citation omitted).

417} “[T]he common thread running through the cases finding reversible error is that
the prosecutors’ comments materially altered the trial or likely confused the jury by

distorting the evidence, and thereby deprived the accused of a fair trial.” Id. J 34.

When analyzing whether an error warrants reversal, “context is paramount[,]” and the
three factors listed above are only “useful guides.” Jd. Our courts also consider
whether the evidence of guilt is overwhelming, whether the improper statement is
corrected by counsel or limited by the court, or whether the fact manipulated by the
statement is determinative to the outcome of the case. See id.

4183} Here, the State’s comments did not invade a “distinct constitutional
protection.” While they may have run afoul of the presumption of innocence, we note
that the presumption of innocence is not constitutionally mandated. See Taylor v.
Kentucky, 436 U.S. 478, 485-86 (1978) (acknowledging that “presumption of
innocence”—the concept that Defendant is “entitled to have his guilt or innocence
determined solely on the basis of the evidence introduced at trial, and not on... other
circumstances not adduced as proof at trial,”—is not constitutionally mandated, but
is aimed at protecting principles similar to due process (internal quotation marks and
citation omitted)); Sosa, 2009-NMSC-056, ff 26-28. The prosecutor’s comments in
this case were confined to closing argument and were relatively brief. They were not,
however, invited by or in response to the defense’s argument.

{19} Looking more broadly at the prosecutor’s statements in the context of the entire
trial, the State presented significant evidence of Defendant’s guilt, including Victim’s

graphic and uncontroverted testimony, evidence that police tracked Defendant’s

footprints to the home where he was apprehended, and Defendant’s own admissions
of guilt. During jail phone conversations, Defendant admitted that he committed the
property crimes, though he denied committing the sexual offenses. When police
apprehended Defendant on the night of the incident, however, Defendant
spontaneously stated, “it doesn’t [expletive] matter—none of it does—what you guys
are investigating. I will be locked up for the rest of my life,” suggesting he was aware
that police were investigating something more than a burglary. Regarding the
prosecutor’s statements specifically, we note that the court clarified, “the jury will
have to rely on their own memories as to what they observed,” despite having
overruled Defendant’s objection. Though the court did not directly address the jury,
it made the statement in open court with the jury present. In doing so, the court
implicitly recognized a potential for prejudice to Defendant that warranted advising
the jury that its consideration of Defendant’s courtroom demeanor should be limited
to its own observations. “The jury is presumed to follow the court’s [curative]
instructions.” State v. Gonzales, 1992-NMSC-003, 9 35, 113 N.M. 221, 824 P.2d
1023, overruled on other grounds by State v. Montoya, 2013-NMSC-020, { 2, 306
P.3d 426; see State v. Cates, No. 30,022, dec. | 33 (N.M. Sup. Ct. May 11, 2010)
(non-precedential) (applying the general presumption that the jury follows curative

instructions specifically). The prosecutor’s comments, though improper, were limited

by the court and stopped short of commenting on Defendant’s silence. Taking into
account the significant evidence of Defendant’s guilt, the nature and duration of the
prosecutor’s comments, and the court’s statement that the jury’s consideration of
Defendant’s demeanor should be limited to its own observations, we do not see, and
Defendant has not pointed to, specifically, how it is that he was deprived ofa fair trial
in this case. Notwithstanding that the prosecutor’s comments on Defendant’s
courtroom demeanor do not warrant reversal here, we caution against use of such
practices in the future, as it is improper and ripe with potential prejudice. We affirm
the district court’s denial of Defendant’s motion for mistrial.

B. Kidnapping Instruction

20} Defendant next argues that the district court’s kidnapping instruction was in
error, as it omitted an essential element of the crime when it failed to instruct the jury
that any restraint of Victim must have been more than incidental. Defendant failed to
object to the instructions given at trial, so we review for fundamental error. See State
v. Romero, 2013-NMCA-101, J 19, 311 P.3d 1205. To prevail under a fundamental
error analysis, a party “must demonstrate the existence of circumstances that shock
the conscience or implicate a fundamental unfairness within the system that would
undermine judicial integrity if left unchecked.” State v. Cunningham, 2000-NMSC-

009, F 21, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation

omitted). Generally, “fundamental error occurs when the trial court fails to instruct
the jury on an essential element.” State v. Sutphin, 2007-NMSC-045, J 16, 142 N.M.
191, 164 P.3d 72. When an essential element is omitted, courts look to “whether there
was any evidence or suggestion in the facts, however slight, that could have put the
omitted element in issue.” State v. Lopez, 1996-NMSC-036, § 13, 122 N.M. 63, 920
P.2d 1017 (alteration, internal quotation marks, and citation omitted).

(213. The incident occurred in November 2012. The jury was instructed during
Defendant’s trial in 2014 that, to find Defendant guilty of kidnapping, the State had
to prove beyond a reasonable doubt that Defendant “restrained or confined [Victim]
by force or intimidation” and that Defendant “intended to inflict a sexual offense on
[Victim.]” This instruction was modeled after the language of the Uniform Jury
Instruction (UJI) in place at the time. See UJI 14-403 NMRA (1997). In August 2012,
this Court decided State v. Trujillo, 2012-NMCA-1 12,939, 289 P.3d 238, which held
that “the Legislature did not intend to punish as kidnapping restraints that are merely
incidental to another crime.” The kidnapping UJI was amended in 2015 to follow the
holding in Trujillo, and while still requiring the state to prove restraint by force or
intimidation and intent to inflict a sexual offense on the victim, the instruction also

requires the state to prove that the “taking or restraint . . . of [the victim] was not

slight, inconsequential, or merely incidental to the commission of another crime[.]”
UJI 14-403 NMRA (2015).

22} Defendant argues that the district court committed fundamental error by
improperly instructing the jury regarding intent. The instruction given to the jury
required proof that Defendant “intended to inflict” a sexual offense, while the UJI
required proof that Defendant “intended to hold” Victim to inflict a sexual offense.
Defendant also argues that the district court committed fundamental error by failing
to instruct the jury regarding Trujillo’s rejection of “incidental restraint” as a basis for
kidnapping. We address the latter argument first, and finding it dispositive, decline
to address Defendant’s intent argument.

23} In Trujillo, this Court looked at whether the Legislature intended to punish the
defendant’s “momentary restraint of [the victim in the course of a fight as
kidnapping[.]” 2012-NMCA-112, § 22. After consulting our state’s kidnapping
jurisprudence, as well as that of other jurisdictions, this Court adopted a view used
in a majority of other jurisdictions, that “kidnapping statutes do not apply to unlawful
confinements or movements incidental to the commission of other felonies.” Jd. {31
(internal quotation marks and citation omitted). Though we did not adopt any
particular test to be used in determining whether a restraint is “incidental,” we

acknowledged that the basic inquiry is “whether the restraint or movement increases

the culpability of the defendant over and above his culpability for the other crime.”
Id. § 38 (internal quotation marks and citation omitted). In answering that question,
we considered whether the restraint was longer or greater than necessary to commit
the other crime, whether the restraint subjected the victim to a substantially greater
risk of harm, and whether the restraint increased the length or severity of the attack.
Id. (39. Although we ruled as a matter of law that the Legislature did not intend for
the defendant’s conduct to constitute kidnapping, we also acknowledged that “[a]
more complicated factual scenario would present a jury question—submitted under
appropriate instructions—as to whether the restraint involved was merely incidental
to the other crime.” Id. ¥ 42.

24; This is just such a case. It involves a more complicated factual scenario than
Trujillo that undoubtedly presents a jury question. However, it was not submitted to
the jury with appropriate instructions. The instructions submitted to the jury here
omitted any and all reference to the potentially incidental nature of the restraint. Our
opinion in 7rujillo qualified a jury’s consideration of restraint, confinement, or
transportation, as it is used in the UJI, to include only that restraint, which is not
merely incidental to the commission of another crime. Indeed, that limitation has been

incorporated into the 2015 version of the kidnapping UJI, which limits consideration

of restraint to only that which is “not slight, inconsequential, or merely incidental to
the commission of another crime[.]” UJI 14-403 (2015).

5} According to Victim’s testimony, she was restrained both before and after the
sexual offense occurred: first by threat with a knife, and second by menacing
instruction from another room. It is for the jury to determine whether either or both
of these restraints were slight, inconsequential, or incidental to the commission of the
sexual offense. Indeed, that determination is an essential inquiry under Trujillo and
its progeny. There can be little doubt that the incidental restraint requirement of
Trujillo was established well before Defendant’s trial. The jury instruction used at
trial in 2014, patterned on the 1997 version of UJI 14-403, failed to adequately
instruct the jury on restraint as interpreted in Trujillo. See State v. Barber, 2004-
NMSC-019, 20, 135 N.M. 621, 92 P.3d 633 (acknowledging that “failure to instruct
the jury on an essential element .. . ordinarily is fundamental error even when the
defendant fails to object or offer a curative instruction”). The omission of incidental
restraint from the jury instructions, therefore, constitutes fundamental error, as the
jury could have convicted Defendant based upon a deficient understanding of the

legal meaning of restraint as an essential element of kidnapping.

C. Sufficiency of the Evidence

26} Defendant challenges the sufficiency of the evidence supporting his
convictions for first degree CSP and kidnapping. “The test to determine the
sufficiency of evidence in New Mexico is whether substantial evidence of either a
direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable
doubt with respect to every element essential to a conviction.” State v. Salgado, 1999-
NMSC-008, 7 25, 126 N.M. 691, 974 P.2d 661 (omission, alteration, internal
quotation marks, and citation omitted). Substantial evidence is that which “a
reasonable mind might accept as adequate to support a conclusion.” Jd. (internal
quotation marks and citation omitted). When determining the sufficiency of the
evidence, we view the evidence “in a light most favorable to the verdict,” State v.
Garcia, 2005-NMSC-017, § 12, 138 N.M. 1, 116 P.3d 72, and disregard contrary
evidence. See State v. Salazar, 1997-NMSC-044, 4 44, 123 N.M. 778, 945 P.2d 996.
It is for the jury to resolve factual discrepancies arising from conflicting evidence,
and the reviewing court cannot “weigh the evidence or substitute its judgment for that
of the jury as long as there is sufficient evidence to support the verdict.” State v.
Nevarez, 2010-NMCA-049, § 32, 148 N.M. 820, 242 P.3d 387 (alteration, internal
quotation marks, and citation omitted). The question before this Court is whether the

district court’s decision “is supported by substantial evidence, not whether the court

could have reached a different conclusion.” See In re Ernesto M,, Jr., 1996-NMCA-
039, 7 15, 121 N.M. 562, 915 P.2d 318.

1. ‘First Degree CSP—Mental Anguish

273 Defendant argues that the evidence presented by the State does not establish
that Victim suffered great mental anguish as a result of the incident and that the
evidence is therefore insufficient to support his conviction for first degree CSP. CSP
in the first degree is that which is perpetrated “by the use of force or coercion that
results in great bodily harm or great mental anguish to the victim.” NMSA 1978, §
30-9-11(D)(2) (2009). “[G]reat mental anguish” means “psychological or emotional
damage marked by extreme change of behavior or severe physical symptoms.” UJI
14-980 NMRA; see NMSA 1978, § 30-9-10(B) (2005) (defining great mental anguish
as “psychological or emotional damage that requires psychiatric or psychological
treatment or care, either on an inpatient or outpatient basis, and is characterized by
extreme behavioral change or severe physical symptoms”); UJI 14-980 comm. cmt.
(interpreting a statute’s reference to psychiatric or psychological treatment as “a
vehicle to demonstrate the severity of the mental anguish being defined” and
explaining that “[i]t was not intended to be an element of the definition that the victim

actually received such care”).

283 The evidence presented at trial was that three days after the incident, Victim
left New Mexico and moved in with her daughter in Indiana, staying there for eight
months because she felt unable to live alone. Nothing in the record suggests she
planned to make this move prior to the incident. Victim testified that she experienced
“constant flashbacks,” but she did not receive medication or counseling as a result of
the incident. Victim also testified that as a result of the daily flashbacks, she had
trouble concentrating and was unable to drive for a period of time. Seven months after
the incident, Victim began living by herself again, but as of the date of trial, she had
not returned to her home in Clovis where the incident took place. An officer testified
that almost immediately after the incident, Victim behaved as though she was in
shock, traumatized, mad, and upset. Victim told the officer that she did not want to
be alone, and while the officer was with Victim, she alternated between crying and
expressing anger.

29} Defendant suggests that the evidence of Victim’s post-incident symptoms are
similar to or less extreme than those discussed in State v. Barraza, 1990-NMCA-026,
110N.M. 45, 791 P.2d 799. Barraza is of no assistance to Defendant. In Barraza, the
defendant was charged with two counts of second degree CSP, which required the
state to prove that the defendant’s actions caused the victim mental anguish rather

than great mental anguish, as required to prove first degree CSP. Jd. J] 1, 9. The

evidence presented at trial was that the victim experienced mood swings between
depression and anger, an emotional inability to re-enroll in school, and elevated
drinking habits. See id. J 9. She also planned to move to avoid bad memories and
embarrassment associated with the alleged rape. Jd. This Court concluded that these
symptoms were sufficient to constitute mental anguish to support a second degree
CSP conviction. Jd. ¥ 11.

30} Here, Victim’s behavioral changes were in many ways more extreme, concrete,
and immediate than the victim in Barraza. Unlike the victim in Barraza, Victim not
only planned to move, but effectuated the move almost immediately after the incident.
At the time, she was over seventy years of age, uprooted her life, and moved across
the country. She went from being self-sufficient enough to live on her own to having
to move in with her daughter and being unable to drive. Victim’s day-to-day lifestyle
changed drastically, and she suffered daily flashbacks and exhibited mood swings
immediately after the incident. As Victim’s actions and behavior following the
incident were more extreme than those set out in Barraza, the evidence was sufficient
to support a conclusion that Victim suffered great mental anguish as a result of the
incident. See generally Nevarez, 2010-NMCA-049, { 32 (noting that the reviewing
court cannot “weigh the evidence or substitute its judgment for that of the jury”

(alteration, internal quotation marks, and citation omitted)).

2. Kidnapping

31} “[W]here the trial court errs by failing to instruct the jury on an essential
element of the crime, retrial following appeal is not barred ifthe evidence below was
sufficient to convict the defendant under the erroneous jury instruction.” State v.
Rosaire, 1996-NMCA-115, § 20, 123 N.M. 250, 939 P.2d 597. Though the jury
instruction given at trial was erroneous because it failed to instruct the jury on an
essential element, “we review the sufficiency of the evidence in light of the erroneous
jury instruction.” Jd. The jury in this case was instructed that the State had to prove
that Defendant “restrained or confined [Victim] by force or intimidation[,]” with the
intent to inflict a sexual offense on her. We look at the evidence in the light most
favorable to the State to determine whether it was sufficient to prove those elements
beyond a reasonable doubt. See Garcia, 2005-NMSC-017, § 12.

{32} Defendant argues that the State failed to present sufficient evidence of
kidnapping, either because it failed to show Defendant’s intent was contemporaneous
with restraint or because any restraint or confinement that occurred was incidental to
another crime. We addressed Defendant’s argument regarding incidental restraint
above, and because we review for sufficiency based on the flawed instruction given,
which did not include incidental restraint, we do not address it. Regarding intent,

however, Defendant asserts that there was no proof that he restrained Victim with the

intent to inflict a sexual offense because the “primary evidence of kidnapping”
occurred after the sexual offense. Defendant refers to Victim’s failed attempt to get
off the bed following the sexual offense as the “primary evidence of kidnapping.” We
are unpersuaded by Defendant’s argument, however, because nothing in the record
indicates that the jury found Defendant guilty based on this evidence. Indeed, the
evidence presented at trial also established that prior to the sexual offense, Defendant
threatened Victim with a knife, only allowed her to travel from one room of the house
to another while he followed her closely, and ultimately ordered her to return to the
bedroom.

{33} Based on our review ofthe record, we conclude that the evidence regarding the
threat, following Victim, and ordering her from one room of the house to another was
sufficient to support Defendant’s conviction for kidnapping under the flawed
instructions given. A jury could reasonably conclude Defendant restricted or confined
Victim using intimidation when he threatened her life using a knife. The jury could
then infer from Defendant’s actions of ordering Victim to take off her pajamas and
masturbating while she used the restroom that Defendant restrained Victim while
intending to inflict a sexual offense on her. See State v. Muraida, 2014-NMCA-060,
4 18, 326 P.3d 1113 (‘It is well established that the fact finder may infer from

circumstantial evidence that the defendant acted with the requisite intent; direct

evidence of the defendant’s state of mind is not required.”). We conclude that the
evidence produced at trial was sufficient to support Defendant’s kidnapping
conviction. Although we reverse Defendant’s kidnapping conviction and remand for
a new trial based on deficiencies in the jury instructions, we address his sufficiency
claim to ensure no double jeopardy concerns are implicated. See State v. Mascareiias,
2000-NMSC-017, 7 31, 129 N.M. 230, 4 P.3d 1221 (deeming it “prudent” to address
a sufficiency claim where reversing for fundamental error in a jury instruction).

D. Double Jeopardy

34} Defendant argues that his convictions for aggravated burglary and for
CSP/CSC cannot stand, as his convictions for all of these offenses result in multiple
punishments for the same conduct and therefore violate double jeopardy principles.
We review double jeopardy claims de novo. See State v. Gutierrez, 2011-NMSC-024,
q 49, 150 N.M. 232, 258 P.3d 1024.

35} The constitution protects against both successive prosecutions and multiple
punishments for the same offense. Swafford v. State, 1991-NMSC-043, 96, 112 N.M.
3, 810 P.2d 1223. There are two types of multiple punishment cases: (1) unit of
prosecution cases, in which an individual is convicted of multiple violations of the

same criminal] statute; and (2) double-description cases, in which a single act results

in multiple convictions under different statutes. Id. J] 8-9. Defendant’s arguments,
involving separate statutes, raise only double-description concerns.

436 Our courts apply a two-step inquiry to double-description claims. Jd. J 25.
First, we analyze the factual question, “whether the conduct underlying the offenses
is unitary, i.e., whether the same conduct violates both statutes[,]” and if so, we
consider the legal question, “whether the [L]egislature intended to create separately
punishable offenses.” /d. “If it reasonably can be said that the conduct is unitary, then
[we] must move to the second part of the inquiry. Otherwise, if the conduct is
separate and distinct, [the] inquiry is at an end.” Jd. J 28.

37} In this case, the charge of CSP required the State to prove that Defendant
caused “the insertion, to any extent, of a finger into the vagina of [Victim], by the use
of force, coercion or threats of force or violence, and [D]efendant’s acts resulted in
... great mental anguish.” The charge of CSC was based on the touching of Victim’s
unclothed breast without her consent.

38} Defendant’s conviction for aggravated burglary, on the other hand, required the
State to prove, among other things, that: “[D]efendant was armed with a knife; OR
[D]efendant became armed with a firearm after entering; OR [D]efendant touched or
applied force to [Victim] in a rude or angry manner while entering or leaving, or

while inside[.]” As we have noted, the State argues that the battery element of

touching or applying force was satisfied by evidence that Defendant placed his hand
over Victim’s mouth and threatened to kill her. According to the State, that conduct
was factually distinguishable from the conduct that gave rise to the CSC/CSP
convictions. However, the record does not indicate which of the three alternatives
above the jury relied upon in reaching its general verdict finding Defendant guilty on
the charge of aggravated burglary.

{39} We begin with whether the conduct here was unitary. In contrast to
Defendant’s position, the State contends that the conduct required for aggravated
burglary in this case is not unitary because in addition to touching Victim during the
sexual assaults, Defendant unlawfully touched Victim when he covered her mouth
with his hand. The State’s argument relies on the assumption that, when the evidence
provides alternative facts to support a finding of battery and there is no indication of
which facts the jury relied on in reaching its verdict, we may affirm the conviction
without violating double jeopardy principles. We disagree with the State.

40} Our Supreme Court’s decision in State v. Foster, 1999-NMSC-007, 126 N.M.
646, 974 P.2d 140, abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-
020, 7 17, 148 N.M. 381, 237 P.3d 683—-which neither party cited on appeal—is on
point. In Foster, the defendant argued that his convictions for aggravated kidnapping

and armed robbery violated his constitutional right to be free from double jeopardy

because the conduct required for those crimes was subsumed by his first degree
felony murder conviction. Jd. § 26. The defendant and the state relied on different
facts to support their theory of each conviction and, on that basis, claimed that the
conduct was or was not unitary. Jd. JJ 24, 26. According to the state, the conduct was
not unitary because the jury instructions provided alternative bases for a conviction
notwithstanding that there was “no indication of which alternative the jury relied
upon in reaching a general verdict[.]” Jd. § 26. Thus, the state asserted, there could
be no double jeopardy violation. Jd. Our Supreme Court rejected the state’s argument
noting that it “must presume that a conviction under a general verdict requires
reversal if the jury is instructed on an alternative basis for the conviction that would
result in double jeopardy, and the record does not disclose whether the jury relied on
this legally inadequate alternative.” Jd. § 28 (emphasis added). Using this reasoning,
the Foster Court reversed defendant’s armed robbery conviction based on a double
jeopardy violation. Jd. § 40.

(413. Applying Foster, we presume that the jury relied on the third
alternative—battery—and the evidence proffered at trial established two instances in
which Defendant’s conduct could have given rise to a conviction: the act of putting
his hand over Victim’s mouth, or the touching that resulted from lying on top of

Victim in commission of the CSP/CSC. Consistent with Foster, we further presume

the jury used the touching giving rise to the CSP/CSC conviction as grounds for the
battery alternative in Defendant’s aggravated burglary conviction. Finally, because
there is no evidence of any intervening events, a significant separation in time or
physical distance, or a change in Defendant’s mental state between the touching
giving rise to the battery and the CSP/CSC, we conclude that the conduct was unitary.
See State v. Lucero, 2015-NMCA-040, { 22, 346 P.3d 1175 (requiring consideration
of “whether acts were close in time and space, their similarity, the sequence in which
they occurred, whether other events intervened, and the defendant’s goals for and
mental state during each act” in considering whether conduct is unitary (internal
quotation marks and citation omitted)).

42} Having concluded that this issue involves unitary conduct, we turn our analysis
to the question of legislative intent. “Determinations of legislative intent, like double
jeopardy, present issues of law that are reviewed de novo, with the ultimate goal of
such review to be facilitating and promoting the [L]egislature’s accomplishment of
its purpose.” State v. Montoya, 2013-NMSC-020, ¥ 29, 306 P.3d 426 (alterations,
internal quotation marks, and citation omitted). When, as here, the statutes themselves
do not expressly provide for multiple punishments, we begin by applying the rule of
statutory construction from Blockburger v. United States, 284 U.S. 299 (1932), to

determine whether each provision requires proof of a fact that the other does not.

Swafford, 1991-NMSC-043, 4 10, 30. If not, one offense is logically subsumed
within the other, and “punishment cannot be had for both.” Jd. J 30.

{43}, In State v. Gutierrez, our Supreme Court modified the Blockburger analysis for
double jeopardy claims involving statutes that are “vague and unspecific” or “written
with many alternatives[.]” 2011-NMSC-024, ff 58-59, 150 N.M. 232, 258 P.3d 1024
(emphasis, internal quotation marks, and citation omitted). Accordingly, “the
application of Blockburger should not be so mechanical that it is enough for two
statutes to have different elements.” State v. Swick, 2012-NMSC-018, § 21, 279 P.3d
747. That is, we no longer apply a strict elements test in the abstract; rather, 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. Gutierrez, 2011-NMSC-024, 9§ 58-59. We do so
“independent of the particular facts of the case . . . by examining the charging
documents and the jury instructions given in the case.” Swick, 2012-NMSC-018, 721
{44} The aggravated burglary statute is broad and contains many alternatives. See
§ 30-16-4. For example, it protects a wide variety of structures, including “any
vehicle, watercraft, aircraft, dwelling or other structure movable or immovable.”
Section 30-16-4. The battery alternative, the focus of our analysis here, is likewise

defined in broad terms to include “the unlawful, intentional touching or application

of force[,]” done in “a rude, insolent, or angry manner.” Section 30-3-4. Both statutes
provide numerous ways in which a violation may occur and a conviction be attained.
We therefore must look “beyond 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, 4 49.

{45}. Ourreview of the record reveals that the State never communicated any theory
to the jury nor did it argue any specific facts to support the aggravated burglary
charge. Even the charging documents and jury instruction for aggravated burglary
contained broad, boilerplate language straight from the statute, providing no insight
into the State’s theory of the case. See State v. Montoya, 2011-NMCA-074, ¥ 43, 150
N.M. 415, 259 P.3d 820 (observing that the state can avoid double jeopardy
violations by identifying specific, non-unitary conduct in jury instructions). Because
the State failed to provide any legal theory of the crime, and we have found none in
the record, we conclude that Defendant’s aggravated burglary conviction is subsumed
by the CSP/CSC convictions, and Defendant was therefore subjected to two
convictions for the same offense in violation of double jeopardy. We must now
decide which conviction to vacate.

{463 Defendant asks that we vacate either the CSC or aggravated burglary

conviction, but he does not provide any additional explanation, argument or citation

to authority as to the basis for his request. The State’s analysis of the double jeopardy
issue ends with its argument that the underlying conduct was not unitary. We remind
the parties that it is their responsibility to fully develop arguments on appeal and
lament their failure to do so on this issue.

{47} That Defendant’s conviction for one of the offenses must be reversed is clear.
See State v. Olguin, 1995-NMSC-077, § 2, 120 N.M. 740, 906 P.2d 731 (“[A] general
verdict must be reversed if one of the alternative bases of conviction is legally
inadequate[.]”). What is not clear, however, is which offense we must vacate. When
one of two otherwise valid convictions must be vacated to remedy a double jeopardy
violation, we vacate the conviction carrying the shorter sentence. See Montoya, 2013-
NMSC-020, 4 55. Here, the district court imposed a nineteen-year sentence for the
CSP conviction, a two-and-one-half-year sentence for the CSC conviction, and a ten-
year sentence for aggravated burglary.

{48} Vacating the conviction with the shortest sentence does not remedy the double
jeopardy violation in this case. Although the CSC conviction clearly carries the
shortest sentence, vacating that conviction continues to allow for two convictions for
the same crime resulting in multiple punishments for the same conduct. The jury
could have found that Defendant’s actions that gave rise to the CSP conviction were

the same as those that gave rise to the aggravated burglary conviction, yet both those

convictions would remain. When ambiguity in the record leaves two convictions
equally likely to violate double jeopardy when combined with a third, and the rule
that we vacate the shortest sentence is rendered impractical due to the potential for
a continued violation following remand, we conclude that it is appropriate to vacate
the conviction that, though not imposing the shortest sentence, remedies the double
jeopardy violations. Accordingly, we vacate Defendant’s aggravated burglary
conviction.

E. Admission of DNA Evidence

493 Hours after the incident occurred, Victim underwent a sexual assault
examination. The SANE who examined Victim found no injuries when conducting
an external examination. The SANE did, however, note that Victim had a half-
centimeter “open area” that was “consistent with force.” The SANE collected a pubic
hair comb, oral swabs, vaginal swabs, cervical swabs, anal swabs, thigh swabs, and
a blood sample from Victim. A SANE also collected oral swabs, penal swabs, pubic
hair combing, swabbing of facial hair, and a swabbing of lower abdomen hair from
Defendant. These items were subjected to DNA testing, along with two sheets from
Victim’s bed and Defendant’s boxer shorts.

{50} No semen was found on any of the items or on any of the swabs taken. There

was no human male DNA on Victim’s vaginal, cervical, or anal swabs, nor was there

any in her pubic hair combing. Human male DNA was detected on one of the thigh
swabs, but in insufficient amounts to allow for any further DNA testing. Defendant’s
expert witness characterized the amount of DNA from this swab as unreliable.
Samples taken from underneath Defendant’s fingernails contained Victim’s DNA.
DNA testing eliminated Victim as a contributor to the DNA found on Defendant’s
boxer shorts. The swabs taken from Defendant’s lower abdomen revealed the
presence of DNA from two or more individuals, and Victim could not be eliminated
as a possible contributor to that DNA mixture. Defendant’s expert testified, however,
that there was a “degree of inaccuracy” to the abdomen swab results by emphasizing
that there was more male DNA on the abdomen swab than total DNA, indicating
female DNA was minimal or nonexistent. Both the State’s expert and Defendant’s
expert testified regarding the transfer of DNA and the ways in which someone’s DNA
could appear on another person.

51} Defendant argues the district court erred in admitting testimony regarding the
DNA results of the thigh swab taken from Victim and the lower abdomen swab taken
from Defendant. Defendant argues that the existence of male DNA on the thigh swab
was irrelevant because it could not be tied to a particular male and that the
information was unhelpful to the jury and prejudicial. Defendant similarly argues that

informing the jury that Victim could not be ruled out as a contributor of DNA was

unhelpful to the jury but highly prejudicial. Defendant’s argument that the DNA
evidence was “unhelpful ... but... also highly prejudicial” is akin to a Rule 11-403
NMRA challenge. See id. (allowing for the exclusion of evidence where its
“probative value is substantially outweighed” by a danger of unfair prejudice,
confusing the issues, or misleading the jury).

{52}, Admission of expert testimony and scientific evidence is a matter “within the
sound discretion of the trial court and will not be reversed absent a showing of abuse
of that discretion.” State v. Anderson, 1994-NMSC-089, 4 17, 118 N.M. 284, 881
P.2d 29 (internal quotation marks and citation omitted). An expert witness may testify
if doing so “will help the trier of fact to understand the evidence or to determine a fact
in issue.” Rule 11-702 NMRA. Whether expert testimony will assist the trier of fact
is a question of relevance. Anderson, 1994-NMSC-089, ¥ 14. Evidence is relevant
where it “has any tendency to make a fact more or less probable than it would be
without the evidence” and where it “is of consequence in determining the action.”
Rule 11-401 NMRA. Any doubt about relevance should be resolved in favor of
admissibility. State v. Balderama, 2004-NMSC-008, § 23, 135 N.M. 329, 88 P.3d
845. A court may exclude relevant evidence if “its probative value is substantially
outweighed by a danger of .. . unfair prejudice [or] misleading the jury[.]” Rule

11-403. Defendant’s challenge limits our inquiry to whether the evidence was helpful

to the jury under Rule 11-702 and whether it was so unfairly prejudicial as to warrant
exclusion.

{53} The evidence of the thigh and abdomen swabs is probative because it could
assist the jury in choosing between the different theories presented regarding the
events of that night. This evidence is unique in that it could be used to support either
the State’s or Defendant’s theory, depending on what testimony the jury found
credible or persuasive. If the jury were to find the DNA evidence persuasive, it may
find the State’s theory that Defendant committed sexual offenses against Victim to
be more probable. The absence of quantifiable DNA, however, weighs in favor of
Defendant’s theory that although he was in the home, he did not commit the sexual
offenses. In challenging whether the evidence would be helpful to the jury, Defendant
challenges the weight that the evidence should be given. We leave that question to
the jury. See Anderson, 1994-NMSC-089, § 58 (holding that “questions about the
accuracy of [DNA] results goes to the weight of the evidence and is properly left to
the jury”). We conclude that the evidence challenged by Defendant—the DNA results
of thigh and abdomen swabs—was helpful to the jury in understanding the limits of
the DNA found and determining facts at issue. See Rule 11-702.

{54} We therefore turn to an assessment of whether the evidence in question was so

prejudicial that the district court abused its discretion by failing to exclude it. The

State presented the testimony regarding the thigh and abdominal swabs in a very
narrow context and with careful limitation. The State’s witness explained that the
results rendered from the thigh swab were “weak” because of the low quantity of
DNA found. She also acknowledged that there was no connection between the thigh
swab results and Defendant. In addition, defense counsel vigorously cross-examined
the State’s expert regarding the statistical likelihood that Victim contributed to the
abdomen swab’s DNA mixture. Defendant also presented his own expert to attack the
conclusion that Victim could not be eliminated as a contributor to the lower abdomen
DNA mixture by testifying that a “degree of inaccuracy” existed in the abdomen swab
results.

{55} We acknowledge Defendant’s argument that DNA evidence has the potential
to be particularly persuasive to a jury. See Anderson, 1994-NMSC-089, 4 63 (“[T]he
aura of infallibility surrounding DNA evidence does present the possibility of a
decision based on the perceived infallibility of the evidence[.]”). Our Supreme Court
has held, however, that the damaging nature of DNA evidence and the associated
potential for prejudice does not require exclusion where an adequate factual basis has
been laid for the testimony and the defendant has the opportunity to cross-examine
the state’s expert and present his own rebuttal expert. See id. (acknowledging

vigorous cross-examination and presentation of rebuttal experts as “the traditional

10
1]
12
13
14

15
16

and appropriate means of attacking shaky but admissible evidence” (internal
quotation marks and citation omitted)). Defendant was afforded both those
opportunities here and took advantage of them. We conclude that Defendant was not
so unfairly prejudiced that the district court was required to exclude the DNA
evidence of the thigh and abdomen swabs. As such, the district court did not abuse
its discretion.

IV. CONCLUSION

{56} We affirm Defendant’s convictions for CSP and CSC, as well as the district
court’s denial of Defendant’s motion for a mistrial. We remand for a new trial on
Defendant’s conviction for kidnapping because the instructions given to the jury were
erroneous, noting that the State presented sufficient evidence to support Defendant’s
conviction on the charge. We vacate Defendant’s conviction for aggravated burglary
as violative of the prohibition against double jeopardy.

57} ITISSO ORDERED.

1
WE CONCUR:
2
Jindal Sami
3
LINDA M. VANZI, Chief Judge
4 5
HENRY M. BOHNHOFF, Judge
40

February 14, 2018- State of New Mexico v. Richard Sena, No. A-1-CA-34674

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