January 16, 2019- State of New Mexico v. Ryan Begay, No. A-1-CA-35964

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 	v. 	A-1-CA-35964
5 	RYANBEGAY,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 	Stan Whitaker, District Judge
9 	Hector H. Balderas, Attorney General
10 Anita Carlson, Assistant Attorney General
11 	Santa Fe, NM
12 	for Appellee
13 	Caren I. Friedman
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 	GALLEGOS, Judge Pro Tempore.
18 	{I} 	Following a jury trial, Ryan Begay (Defendant) was convicted of one count
19 	of child abuse (recklessly caused, great bodily harm); two counts of child abuse
20 	(recklessly caused, no death or great bodily harm); one count of shooting at or from
21 	a motor vehicle (great bodily harm); one count of shooting at or from a motor vehicle
22 	(no injury); 	and one count of tampering with evidence. 	Defendant appeals his
Court of Appeals of New Mexico
Filed 1/16/2019 1:36 PM
Mark Reynolds

1 convictions, raising six issues: ( 1) sufficiency of the evidence to support the child
2 abuse convictions, including whether the victim's injury amounted to great bodily
3 harm; (2) denial of due process oflaw; (3) double jeopardy; (4) inconsistent verdicts;
4 (5) error in striking a juror for cause; and (6) ineffective assistance of counsel.
5 	{2} 	We conclude that Defendant's convictions for two counts of child abuse
6 (recklessly caused, no death or great bodily harm) violate double jeopardy and we
7 remand, directing the district court to vacate one of the two counts of child abuse
8 (recklessly caused, no death or great bodily harm). Unpersuaded by the balance of
9 Defendant's appellate arguments, we otherwise affirm.
10 	BACKGROUND
11 	{3} 	At approximately 11 :00 a.m. on June 26, 2013, Defendant and his girlfriend,
12 	Sabra Montoya, along with Sabra's sister, Samantha, went to an apartment complex
13 	in Albuquerque to purchase heroin. Defendant apparently obtained some heroin and
14 "shot up" in the apartment complex parking lot. Sabra's cousin, Trey Gomez, who
15 	lived in the complex, came outside and confronted Defendant in the parking lot.
16 Following an intense argument with Trey, Defendant, Sabra, and Samantha began
17 to 	drive 	away, 	with 	Sabra driving the vehicle, 	Defendant riding as 	the 	front
18 	passenger, and Samantha si tting in the back seat. They heard noises, which they
19 purportedly believed to be shots fired at them-later determined to be rocks being
20 	thrown-coming from Trey's direction. Defendant then balanced himself out of the
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1 passenger window and fired several gunshots over the roof of the vehicle in Trey's
2 	direction. Several adults and three children (J.A ., Ma.G. and Me.G. ,) had been in the
3 	parking lot along with Trey during the confrontation, and one of the little girls,
4 twenty-month-old J.A. , was shot in her leg. Defendant, Sabra, and Samantha drove
5 	off, and Defendant later threw the gun in the Rio Grande River.
6 	{4} 	Defendant 	was 	charged 	with-and 	tried 	for- 	fifteen 	different 	cnmes,
7 	fourteen of which were related to the shooting, with the last charge being tampering
8 with evidence. The jury was instructed on self-defense for all of the shooting related
9 counts. 	Following his trial, Defendant was ultimately convicted for six of the
10 charges. He now appeals. We consider his appellate issues in tum.
11 	DISCUSSION
12 	I.
13 	A.
14 	{5}
Sufficiency of the Evidence
Standard of Review
The first issue on appeal is whether there was sufficient evidence to support
15 	Defendant ' s child abuse convictions, including whether J.A. ' s injury amounted to
16 great bodily harm. In assessing the sufficiency of the evidence, the reviewing court
17 "view[ s] the evidence in the light most favorable to the guilty verdict, indulging all
18 	reasonable inferences and resolving all conflicts in the evidence in favor of the
19 verdict." State v. Cunningham, 2000-NMSC-009, 126, 128 N.M. 711 , 998 P.2d 176.
20 	In criminal cases, " [t]he test for sufficiency of the evidence is whether substantial
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1 evidence of either a direct or circumstantial nature exists to support a verdict of
2 guilty beyond a reasonable doubt with respect to every element essential to a
3 conviction." State v. 	Montoya , 2015-NMSC-O I 0, ,r 52, 345 P.3d 	I 056 (internal
4 quotation marks and citation omitted). We disregard all evidence and inferences that
5 support a different result. See State v. Rojo, 1999-NMSC-001 , ,r 19 , 126 N.M. 438,
6 971 	P.2d 	829. 	We "will 	not second-guess the jury' s decision concerning the
7 credibility of witnesses, reweigh the evidence, or substitute [our] judgment for that
8 of the jury. So long as a rational jury could have found beyond a reasonable doubt
9 the essential facts required for a conviction, [the appellate c]ourt will not upset a
10 jury' s 	conclusions." 	State 	v. 	Ramirez, 	2018-NMSC-003, 	,r 	6, 	409 	P.3d 	902
11 	(alteration, emphasis, internal quotation marks, and citations omitted).
12 	B.
13
14 	{6}
The 	Evidence 	Presented 	Was 	Sufficient 	to 	Support 	Defendant's
Convictions for Child Abuse
Defendant contends that his convictions for child abuse were not supported
15 	by sufficient evidence. "Jury instructions become the law of the case against which
16 	the sufficiency of the evidence is to be measured." State v. Smith, 1986-NMCA-089,
17 ,r 7, 104 N .M. 729, 726 P.2d 883. With respect to the charge of child abuse resulting
18 	in great bodily harm, the jury here was instructed as follows:
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For you to find [Defendant] guilty of child abuse resulting in
great bodily harm, as charged in Count 1, the [S]tate must prove to your
satisfaction beyond a reasonable doubt each of the following elements
of the crime:
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1. 	[Defendant] shot [J .A.];
2. 	By engaging in the conduct described in Paragraph 	1,
[Defendant] caused [J.A.] to be placed in a situation that endangered
the life or health of [J.A.];
3. 	[Defendant] 	showed 	a 	reckless 	disregard 	without
justification for the safety or health of [J.A.]. To find that [Defendant]
showed a reckless disregard, you must find that [Defendant]'s conduct
was more than merely negligent or careless. Rather, you must find that
[Defendant] caused a substantial and unjustifiable risk of serious harm
to the safety or health of [J .A.]. A substantial and unjustifiable risk is
one 	that 	any 	law-abiding 	person 	would 	recognize 	under 	similar
circumstances and that would cause any law-abiding person to behave
differently than [Defendant] out of concern for the safety or health of
[J.A.].
[J.A.];
4.
5.
6.
7.
June, 2013.
[Defendant]'s conduct resulted in great bodily harm to
... Defendant did not act in self-defense;
[J.A.] was under the age of eighteen (18);
This happened in New Mexico on or about the 26th day of
21 	{7} 	With respect to the first charge of child abuse not resulting in great bodily
22 	harm, the jury was instructed as follows:
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For you to find [Defendant] guilty of child abuse, as charged in
Count 2, the state must prove to your satisfaction beyond a reasonable
doubt each of the following elements of the crime:
1. 	[Defendant] shot a firearm in the presence of [Ma.G.];
2. 	By engaging in the conduct described in Paragraph 	1,
[Defendant] caused [Ma.G.] to be placed in a situation that endangered
the life or health of [Ma.G.];
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3. 	[Defendant] 	showed 	a 	reckless 	disregard 	without
justification for the safety or health of [Ma.G.]. To find that [Defendant]
showed a reckless disregard, you must find that [Defendant] 's conduct
was more than merely negligent or careless. Rather, you must find that
[Defendant] caused a substantial and unjustifiable risk of serious harm
to the safety or health of [Ma.G.]. A substantial and unjustifiable risk is
one 	that 	any 	law-abiding 	person 	would 	recognize 	under 	similar
circumstances and that would cause any law-abiding person to behave
differently than [Defendant] out of concern for the safety or health of
[Ma .G.];
4. 	. .. [D]efendant did not act in self-defense;
5. 	[Ma.G.] was under the age of eighteen (18);
6. 	This happened in New Mexico on or about the 26th day of
June, 20 13.
15 	The jury was instructed likewise with regard to the charge of child abuse without
16 	bodily injury of Me.G.
17 	{8} 	Defendant's sufficiency argument is premised almost entirely on his assertion
18 	that the "State presented no evidence that [Defendant] was aware that children were
19 present during Trey's attack." Along the same lines, Defendant argues that there is
20 	not sufficient proof of mens rea "[ w ]here a defendant is cognizant that he might
21 	injure a member of the public and a child is incidentally affected[.]"
22 	{9} 	The 	Legislature 	defined 	child 	abuse, 	in 	pertinent 	part, 	as 	"knowingly,
23 	intentionally or negligently, and without justifiable cause, causing or permitting a
24 	child to be ... placed in a situation that may endanger the child's life or health[.]"
25 	NMSA 1978, § 30-6-l(D)(l) (2009). "Section 30-6-l(D)(l) encompasses abuse by
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1 endangerment 	that 	results 	in 	physical 	or 	emotional 	injury 	as 	well 	as 	those
2 circumstances where the abused child suffers no injury of any kind at all." Ramirez,
3 2018-NMSC-003 , , 50.
4 	{to} 	In State v. Consaul, 2014-NMSC-030, ,, 37-40, 332 P.3d 850, our Supreme
5 Court clarified that the proper standard for the lowest level of child abuse under
6 Section 30-6-1 (D) is "recklessness" and that juries should no longer be instructed on
7 "negligent" child abuse. The standard for determining child abuse has evolved from
8 a "reasonable probability or possibility that the child will be endangered[,]" State v.
9 	Ungarten, 1993-NMCA-073, , 	11 , 115 N.M. 607, 856 P.2d 569 (internal quotation
10 	marks and citation omitted), abrogated on other grounds by State v. Chavez, 2009-
11 	NMSC-035 , , 22, 146 N.M. 434, 211 P.3d 891 , to a "substantial and foreseeable risk
12 	of harm[,]" Chavez, 2009-NMSC-035 , , 	22, (emphasis, internal quotation marks,
13 	and 	citation 	omitted), and now to 	its present formulation, 	a "substantial 	and
14 	unjustifiable risk of [serious harm]." Consaul, 2014-NMSC-030, , 37; see UJI 14-
15 	612(3) NMRA.
16 	{II} 	"[T]he punishment for child abuse resulting in great bodily harm, whether
17 done knowingly, intentionally, negligently, or recklessly, is the same." Consaul,
18 	2014-NMSC-030,, 23 (emphasis omitted). When the abuse does not result in the
19 death of a child under twelve, it is unnecessary to specify a particular mens rea so
20 long as the State proves that "the defendant acted knowingly, intentionally or
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1 recklessly" 	Montoya, 	2015-NMSC-010, 	1 	33 	(alteration, 	emphasis, 	internal
2 quotation marks, and citation omitted).
3 {12} 	However, 	"for 	a 	defendant 	to 	be 	criminally 	liable 	for 	child 	abuse 	by
4 endangerment, he or she must be aware of a particular danger to the identifiable child
5 or children when engaging in the conduct that creates the risk of harm." State v.
6 	Gonzales, 2011-NMCA-081 , 1 1, 150 N.M. 494, 263 P.3d 271 , aff'd on other
7 grounds, 2013-NMSC-016, 1 1, 301 P.3d 380. In Gonzal es , the defendant drove
8 while severely intoxicated and rear-ended another vehicle in which two children
9 were riding, killing one child and injuring the other. Id. ,-r 4. The defendant was
10 	convicted of two counts of child abuse by endangerment. Id. ,-r 4 n. l. This Court
11 	reversed and remanded, holding that "a discernable risk of danger to a particular
12 	child or particular children is required to support a conviction for negligent child
13 	abuse by endangerment[.]" Id. ,-r 1.
14 	{13} 	In Ramirez, 	our Supreme Court addressed a similar situation where the
15 	defendant asserted that there was insufficient evidence to support his child abuse
16 convictions because "none of the three children were physically harmed in any way"
17 and "there was no evidence to support that [he] 	intended to harm any of the
18 	children." 2018-NMSC-003, ,-r 17 (alteration and internal quotation marks omitted.)
19 The Supreme Court held that there was sufficient evidence of child abuse when
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[t]he jury heard evidence that [the defendant] fired a gun at [the victim]
nine times at point-blank range, that [the victim] was seated in the front
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passenger seat of the Durango, and that the children were sitting in the
back seats of the Durango in immediate proximity to [the victim]. The
jury also learned that, although [the victim] was shot nine times, only
five of the bullets were found inside of his body. Several of the bullets
[the 	defendant] 	fired 	traveled 	through 	[the 	victim] 	and 	continued
onward. One of those bullets traveled through the driver's-side window
in the second row of seats of the Durango and another bullet was
recovered from the headliner or inside roof of the Durango.
9 Id. ,r 18. The Court concluded that "[f]rom this evidence, the jury could reasonably
10 	infer that it was sheer luck that the children were not struck by one of the bullets [the
11 	defendant] fired at [the victim]" and held that "the evidence presented is sufficient
12 to support the jury's determination that [the defendant] placed the three children in
13 	a situation that endangered their lives and that [the defendant] showed a reckless
14 disregard for their safety and health." Id.
15 	{14} 	In the present case, the jury heard evidence that Trey's youngest children lived
16 with him in apartment 8 and that as Trey walked out of his apartment to confront
17 Defendant, his two youngest daughters, Me.G, age 4 or 5, and Ma.G., age 5 or 6,
18 	followed him out. Trey's twenty-month-old niece J.A., who lived with her father in
19 the apartment complex, was also outside. There was evidence presented that Trey
20 was probably within arm's reach of Defendant during their argument, and that the
21 	three children, Me.G., Ma.G., and J.A. , were outside in the parking lot during the
22 	events leading up to the shooting. When Defendant fired shots toward Trey, one of
23 	which ultimately struck J.A., Me.G. and Ma.G. were standing right next to her.
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1 {15} 	Viewing the evidence in the light most favorable to the guilty verdicts,
2 indulging all reasonable inferences and resolving all conflicts in the evidence in
3 favor of the verdict, Cunningham , 2000-NMSC-009, , 	26, we conclude that a
4 reasonable juror could have found that Defendant was aware that the children were
5 outside the apartment building in the parking lot near Trey-in the zone of danger-
6 when Defendant fired his gun multiple times in Trey' s direction. 	See State v.
7 Glascock, 2008-NMCA-006, , 29, 143 N.M. 328, 176 P.3d 317 (recognizing that
8 direct evidence of knowledge is rarely available and is almost always inferred from
9 other facts in the case). While we acknowledge Defendant' s contrary argument at
10 trial, based upon his statement to police, and his contention on appeal that he was
11 	not aware that the children were present in the parking lot, "[ c ]ontrary evidence
12 	supporting acquittal does not provide a basis for reversal because the jury is free to
13 	reject [the d]efendant's version of the facts." Rojo, 1999-NMSC-001,, 19.
14 	{16} 	Consequently, we determine that in light of the direct and circumstantial
15 	evidence presented at trial, the jury could have found, beyond a reasonable doubt,
16 that Defendant placed the three identifiable children in a situation that constituted a
17 	substantial and unjustifiable risk of serious harm by shooting a gun multiple times
18 	in their direction, and that in doing so he showed a reckless disregard for their safety
19 and health.
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1 B. 	There Was Sufficient Evidence of Great Bodily Harm
2 	{17} 	Defendant also argues that there was insufficient evidence that J.A. suffered
3 great bodily harm. "Great bodily harm" was defined in the jury instructions as "an
4 	injury to a person which creates a high probability of death or results in serious
5 disfigurement or results in loss of any member or organ of the body or results in
6 permanent or prolonged impairment of the use of any member or organ of the body."
7 Accord UJI 	14-131 	NMRA. Defendant's contention is that the gunshot wound
8 suffered by J .A. fails to meet any of these definitions.
9 	{18} 	" 'Prolonged impairment' is not a technical term." State v. Cordova, 2016-
10 NMCA-019, 	, 	19, 	366 	P.3d 	270. 	"Prolonged 	impairment, 	like 	protracted
11 	impairment, means a lengthy or unusually long time under the circumstances." Id.
12 	(internal quotation marks and citation omitted). It is the province of the jury to
13 	determine whether the impairment was for a sufficiently extended period of time to
14 meet this definition. Id. In Cordova, there was sufficient evidence of great bodily
15 	harm where the victim testified at trial that she experienced bruised ribs, severe
16 bruising, and road rash that covered her right side. Id. , 	18. She testified that she
17 was unable to work for approximately one month and was largely unable to move
18 	for the first two weeks. Id. , 18. The victim further testified that she still experienced
19 pain from her bruised ribs. Id. This Court held that the jury could determine that the
20 	victim suffered great bodily harm. Id. , 	19.
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1 {19} 	Here, the jury heard evidence that twenty-month-old J.A. was shot in the thigh
2 by Defendant. J.A. 's mother testified that J.A. was hospitalized for approximately
3 twenty-four hours after she was shot and received follow up care for a few months
4 after discharge. Dr. Stephen Lu, the trauma and surgical care physician who treated
5 J.A. for her gunshot wound, testified that J.A. was in pain at the time he treated her,
6 even with pain medication. She was given Ibuprofen when she was discharged from
7 the hospital. Her bullet wound had to be cleaned, and the gauze changed and re-
8 packed, twice a day for about two weeks. Although J.A. could walk and run, she
9 could not do so to the best of her ability, and it took about a month for her to fully
10 heal. J.A. has two scars in her upper thigh where the bullet entered and exited her
11 	body. The scar on the front of her leg is about the size of a penny and the scar on the
12 	back of her leg is about the size of a dime. Photographs of J.A. 's injury were shown
13 	to the jury at trial.
14 	{20} 	Dr. Lu testified that while there was no damage to J.A.'s bone or arteries, the
15 	femoral artery and vein, the femur, and various nerves run through the thigh. He
16 testified that some of the risk factors of gunshot wounds to children are injury to
17 	blood vessels and bleeding to death, a loss of function from nerve injury, and loss of
18 	function from bone injury. There is a possibility of death as a result of such injuries.
19 	While there was no damage to J .A.' s veins or bone, there was damage to the skin
20 and muscle, which Dr. Lu characterized as damage to an organ. Dr. Lu also testified
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1 that there is intermediate term risk of infection, a condition which J .A. fortuitously
2 did not develop. The worst-case scenario if a patient develops severe infection is
3 	limb loss or death.
4 	{21} 	It is the province of the jury to determine whether J.A. 's impairment was for
5 a 	sufficiently 	extended 	period 	of time 	to 	meet 	the 	definition 	of prolonged
6 	impairment. See Cordova, 2016-NMCA-019,, 19. Viewing the evidence in the light
7 most favorable to the verdict, indulging all reasonable inferences and resolving all
8 conflicts in the evidence in favor of the verdict, Cunningham, 2000-NMSC-009,
9 , 26, we conclude that a reasonable jury could determine that J.A. suffered great
10 bodily harm as defined in the jury instruction.
11 	II. 	Due Process
12 	{22} 	Defendant also contends that the child abuse convictions violate his due
13 	process rights. Specifically, Defendant argues that he "was not on notice that his
14 conduct in defending himself against Trey's attack could be prosecuted as child
15 	abuse" because "there was only a 'possibility' that an innocent bystander ... would
16 be harmed" and, as such, his conduct is outside the scope of the child abuse statute.
17 This 	is 	essentially 	a 	restatement 	of Defendant's 	sufficiency 	of the 	evidence
18 	challenge. Having determined that a reasonable jury could conclude that Defendant
19 was aware that the children were in the line of fire at the time of the incident, and
20 	recklessly disregarded the substantial and unjustifiable risk to the children's safety
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1 and health when he fired multiple shots in their direction, we see no due process
2 violation.
3 	III. 	Double Jeopardy
4 	{23} 	Double jeopardy claims are generally reviewed de novo. State v. Baca, 2015-
5 NMSC-021, ,-r 25, 352 P.3d 1151. But "where factual issues are intertwined with the
6 double jeopardy analysis," appellate courts defer to the district court's findings of
7 fact, unless unsupported by substantial evidence. Id. (internal quotation marks and
8 citation omitted).
9 	{24} 	"The Double Jeopardy Clause of the Fifth Amendment, enforced against the
10 states by the Fourteenth Amendment, protects defendants from receiving multiple
11 	punishments 	for the 	same offense." 	Ramirez, 	2018-NMSC-003, 	,-r 38 (internal
12 	quotation marks and citation omitted). The Double Jeopardy Clause protection is
13 	limited 	"to 	prevent[ing] 	the 	prosecutor 	from 	bringing 	more 	charges, 	and 	the
14 sentencing court from imposing greater punishments, than the Legislative Branch
15 	intended." Id. (internal quotation marks and citation omitted).
16 	{25} 	There are two types of double jeopardy multiple-punishment cases. Id. 139.
17 	One 	is 	"the 	unit 	of prosecution 	case, 	where 	a defendant challenges 	multiple
18 	convictions under the same statute." Id. 	(internal quotation marks and citation
19 omitted). The other is "the double description case, where the same conduct results
20 	in multiple convictions under different statutes." Id. (internal quotation marks and
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1 citation 	omitted). 	Defendant 	makes 	both 	types 	of double jeopardy 	multiple-
2 punishment challenges here.
3 A. 	Unit of Prosecution
4 	{26} 	Defendant first argues that his three convictions for child abuse and his two
5 convictions for shooting from a motor vehicle violate double jeopardy under a unit
6 	of prosecution analysis. In a unit of prosecution analysis, "the defendant has been
7 charged with multiple violations of a single statute based on a single course of
8 conduct. The relevant inquiry is whether the [L ]egislature intended punishment for
9 the entire course of conduct or for each discrete act." Id. ,r 45 (omission, internal
10 	quotation marks, and citation omitted). "[T]he only basis for dismissal is proof that
11 	a suspect is charged with more counts of the same statutory crime than is statutorily
12 authorized." State v. Bernal, 2006-NMSC-050, ,r 13 , 140 N.M . 644, 146 P.3d 289.
13 	"The 	issue, 	though 	essentially 	constitutional, 	becomes 	one 	of 	statutory
14 construction." Herron v. State, 1991-NMSC-012, ,r 6, 111 N.M. 357, 805 P.2d 624.
15 	{27} 	Appellate courts apply a two-step test to determine the Legislature's intent
16 with respect to the unit of prosecution. Ramirez, 2018-NMSC-003, ,r 47. The first
17 	step of the analysis is to look to the language of the statute to determine whether the
18 	Legislature defined the unit of prosecution. See State v. Bernard, 2015-NMCA-089,
19 ,r 17 , 355 P.3d 831. "However, if the language is ambiguous, we proceed to the
20 	second step of the analysis in which our task is to determine whether a defendant's
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1 acts are separated by sufficient indicia of distinctness to justify multiple punishments
2 under the same statute." Id. (internal quotation marks and citation omitted). "If the
3 acts are not sufficiently distinct, then the rule of lenity mandates an interpretation
4 that the [L]egislature did not intend multiple punishments, and a defendant cannot
5 be punished for multiple crimes." Bernal, 2006-NMSC-050, ,r 14.
6 	1. 	The Multiple Child Abuse Convictions Violate Double Jeopardy
7 	{28} 	With respect to the first step, statutory language, we observe again that Section
8 30-6-1 (D)(l) states: "Abuse of a child consists of a person knowingly, intentionally
9 or negligently, and without justifiable cause, causing or permitting a child to be ...
10 placed in a situation that may endanger the child's life or health[.]" The Court in
11 	Ramirez held that this language is ambiguous as to the unit of prosecution. 2018-
12 	NMSC-003, ,r 5 5. Thus, we move on to the second step of the analysis.
13 	{29} 	Under the second step of the unit of prosecution analysis, we determine
14 	whether a defendant's acts are separated by sufficient "indicia of distinctness" to
15 justify multiple punishments under the same statute. See Bernard, 2015-NMCA-
16 	089, ,r 17. "Our case law instructs that we consider the temporal proximity of the
17 acts, the location of the victim( s) during each act, the existence of an intervening
18 	event, the sequencing of acts, the defendant's intent as evinced by his or her conduct
19 and utterances, and the number of victims." Ramirez, 2018-NMSC-003, ,r 56.
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1 {30} 	In conducting this analysis, the number of victims factor plays a significant
2 	role. "Multiple victims will likely give rise to multiple offenses." Id. ,-r 57 (alteration,
3 	internal quotation marks, and citation omitted). "While the existence of multiple
4 victims does not , itself, settle whether conduct is unitary or distinct, it is a strong
5 	indicator of legislative intent to punish distinct conduct that can only be overcome
6 	by other factors. " Bernal, 2006-NMSC-050, ,-r 18. As this Court explained in State
7 V. Castaneda,
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[w ]e further emphasize that a single unit of prosecution in a child abuse
case involving multiple victims is only appropriate where the children
have not actually been harmed. Pursuant to the statute, a person may be
guilty of child abuse even if the child is not actually harmed. If actual
harm results from child abuse, however, the focus 	shifts from the
actions of the abuser to the result of those actions, and each child
harmed 	is 	a 	distinct 	victim 	with 	unique 	injuries. 	Under 	such
circumstances, it is entirely appropriate to charge the perpetrator with a
separate count of child abuse for each victim.
17 	2001-NMCA-052, ,-r 15 , 130 N.M. 679, 30 P.3d 368 (citation omitted).
18 	{31} 	In Ramirez, multiple child victims suffered mental injuries as a result of the
19 	defendant' s conduct. 2018-NMSC-003 , ,-r 57. Notably, the three children involved in
20 Ramirez testified that they were in fear and shock as they witnessed the defendant
21 	shoot into the vehicle in which they were sitting and kill another passenger. Id. Our
22 	Supreme Court thus held:
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In the circumstances of this case in which each of the three children
separately testified to the fear and shock they respectively suffered as a
result of [the defendant] ' s wanton conduct, we hold that the Legislature
intended prosecution for three counts of child abuse by endangerment.
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[The defendant]'s three convictions for child abuse do not violate
double jeopard y.
3 Id. ,I 58.
4 	{32} 	In this case, Defendant was convicted for one count of child abuse (recklessly
5 caused, great bodily harm), based on his conduct vis-a-vis J.A., and two counts of
6 child abuse (recklessly caused, no death or great bodily harm), based on his conduct
7 vis-a-vis Ma.G. and Me.G. Defendant argues that each of the child abuse convictions
8 arose 	from 	the 	same 	course 	of conduct-shooting 	from 	the 	vehicle 	in quick
9 succession without any intervening event-and are therefore not based on separate
10 	and distinct acts. Defendant thus contends that his multiple child abuse convictions
11 	violate double jeopardy.'
12 	{33} 	It need be emphasized that Defendant' s conduct-shooting from the motor
13 	vehicle in the direction of Trey, the children, and the other bystanders in the parking
14 	lot-had a two-fold result: J.A. was actually harmed, and the other two children were
15 	put into harm ' s way. There was, however, no evidence presented at trial that either
16 	Ma.G. or Me.G. was actually harmed. Applying the reasoning in Castaneda and
17 Ramirez, we conclude that Defendant' s actions recklessly placed both Ma.G. and
18 	Me.G. in a situation that endangered their health or safety, but caused no harm,
1 Defendant conceded below that there should be two separate child abuse
convictions, one for child abuse against J .A . and one encompassing the child abuse
against both Ma.G. and Me.G. However, on appeal, he is apparently arguing that
only one child abuse conviction should survive a unit of prosecution analysis.
18

1 justifying a single punishment; but as a consequence of those same actions, J.A.
2 suffered a discrete injury, making her a distinct victim and justifying an additional
3 punishment. Consequently, we conclude that Defendant' s convictions for two counts
4 	of child abuse (recklessly caused, no death or great bodily harm) violate double
5 jeopardy where only one punishment was justified. Defendant's separate conviction
6 for child abuse (recklessly caused, great bodily harm), however, does not violate
7 double jeopardy.
8 	{34} 	We observe that the district court did in fact merge the two counts of child
9 abuse (recklessly caused, no death or great bodily harm) for sentencing purposes.
10 	On remand, 	however, 	one 	of these convictions must be vacated. 	Cf 	State 	v.
11 	Santillanes, 2001-NMSC-018, , 	28 , 130 N.M. 464, 27 P.3d 456 (" [C]oncurrent
12 	sentencing does not adequately remedy the imposition of impermissible multiple
13 	punishments for a single offense; double jeopardy requires that the lesser offense
14 	merge into the greater offense such that the conviction of the lesser offense, not
15 	merely the sentence, is vacated.").
16 	2.
17
18 	{35}
The Two Shooting From a Motor Vehicle Convictions Do Not Violate
Double Jeopardy
Defendant was convicted for one count of shooting at or from a motor vehicle
19 (great bodily harm) for his conduct with respect to J.A., and for one count of shooting
20 at or from a motor vehicle (no injury) for his conduct with respect to Me.G.
21 	Defendant broadly claims that these convictions violate double jeopardy.
19

1 {36} 	As an initial matter, we note that the analysis contained in Defendant 's brief
2 in chief moves directly to the second step of the unit of prosecution test. That is,
3 Defendant does not look to the language of the shooting from a motor vehicle statute
4 to determine whether the Legislature defined the unit of prosecution, see Bernard,
5 2015-NMCA-089, 1 17, nor does he provide us with any argument regarding the
6 appropriate unit of prosecution. Instead, Defendant delves directly into arguing that
7 the conduct at issue constituted "one shooting." We also note that the State's answer
8 brief provided us with no additional clarity with respect to the appropriate unit of
9 prosecution. This Court has no duty to review an argument that is not adequately
10 	developed. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, 115, 137 N.M.
11 	339, 110 P.3d 1076 (declining to entertain a cursory argument that included no
12 	explanation of the party's argument and no facts that would allow this Court to
13 	evaluate the claim). "To rule on an inadequately briefed issue, [the appellate courts]
14 would have to develop the arguments itself, effectively performing the parties' work
15 	for them." Elane Photography, LLCv. Willock, 2013-NMSC-040, 170,309 P.3d 53.
16 "This creates a strain on judicial resources and a substantial risk of error. It is of no
17 	benefit either to the parties or to future 	litigants for 	[the appellate courts] 	to
18 	promulgate case law based on our own speculation rather than the parties' carefully
19 considered arguments." Id. 	Therefore, we will not determine whether the statute
20 	defines the unit of prosecution for shooting from a motor vehicle.
20

1 {37} 	Assuming then, without deciding, that the unit of prosecution for shooting
2 from a motor vehicle is ambiguous, we consider next Defendant's contention that
3 there were 	insufficient indicia of distinctness to justify multiple punishments.
4 Defendant cites State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, as
5 an analogous case. We note, however, that Handa involved an assault on a single
6 victim. Id. , 26. The Court specifically held that "an assault arising from a series of
7 three successive shots to a single victim, not separated by a significant amount of
8 time, and arising from a single, continuous intent constitutes one offense[.]" Id.
9 Without more, we are not persuaded that the conclusion in Handa applies with equal
10 	force where there is more than one victim.
11 	{38} 	In the absence of a better-developed argument, we see no reason to depart
12 	from our reasoning laid out above with respect to multiple victims in the child abuse
13 	context. Thus, under the facts of this case, where Defendant's shooting from a motor
14 	vehicle resulted in convictions based on two different victims, one of whom was
15 	actually harmed by Defendant's actions, we conclude that there are sufficient indicia
16 	of distinctness to justify multiple punishments. Cf Herron, 1991-NMSC-012,, 15
17 	("[M]ultiple victims will likely give rise to multiple offenses[.]"); State v. Barr,
18 	1999-NMCA-081, ,, 19-20, 127 N.M. 504, 984 P.2d 185 (determining that distinct
19 	and separate acts of contributing to the delinquency 	of a minor (CDM) were
20 perpetrated by the defendant where there were multiple victims, separate effects, and
21

1 where the jury was instructed separately with respect to COM for each victim and
2 the instructions "varied to some degree according to the particular juvenile" ). We
3 conclude that Defendant's two convictions for shooting from a motor vehicle do not
4 violate double jeopardy.
5 	B. 	Double Description
6 	{39} 	Defendant also argues that his convictions for child abuse and shooting from
7 a motor vehicle violate double jeopardy under a double description theory. Under a
8 double description theory, "the same conduct results in multiple convictions under
9 different statutes." Ramirez, 2018-NMSC-003 , 1 39 (internal quotation marks and
10 	citation omitted). Double description challenges are analyzed under the two-part test
11 	established in Swafford v. State, 1991-NMSC-043, 1125-34, 112 N.M. 3, 810 P.2d
12 	1223. First, we must determine whether the conduct underlying the multiple offenses
13 	was unitary. Ramirez, 2018-NMSC-003, 1 42. If we determine that the conduct at
14 	issue is unitary, we proceed to the second part of the analysis and then determine
15 	whether, considering 	the 	statutes 	at 	issue, 	the 	Legislature 	intended 	to 	create
16 	separately punishable offenses. Id.
17 	{40} 	Turning first to the question of whether Defendant' s conduct was unitary, we
18 	keep in mind that "the task is merely to determine whether the conduct for which
19 there are multiple charges is discrete (unitary) or distinguishable." Swafford, 1991-
20 NMSC-043 , 128. Here, Defendant fired multiple gunshots toward a group of people
22

1 in quick succession from a moving vehicle. One of those shots struck J.A. in the
2 thigh, while the other shots created a substantial and unjustifiable risk to the health
3 and safety of Me.G. On these facts, we conclude that the conduct underlying both
4 the child abuse convictions and the shooting from a motor vehicle convictions-as
5 each pertain to J.A. and Me.G.-was unitary.
6 	{41} 	Next, we must determine whether, considering the statutes at issue, the
7 Legislature intended to create separately punishable offenses. "In the absence of an
8 express statement of legislative intent, we apply the rule of statutory construction
9 from 	Blockburger v. United States, 	284 U.S. 299[](1932), to ensure that each
10 provision requires proof of a fact that the other does not." State v. Fuschini, 201 7-
11 	NMCA-084, ~ 8, 406 P.3d 965 (internal quotation marks and citation omitted), rev 'd
12 on other grounds, No. S-l-SC-36489, dee. (N.M. Sup. Ct. Dec. 6, 2018). "If each
13 	statute requires proof of a fact that the other does not, it may be inferred that the
14 Legislature 	intended 	to 	authorize 	separate 	punishments 	under 	each 	statute."
15 	Ramirez, 2018-NMSC-003, ~ 43 (internal quotation marks and citation omitted).
16 	Comparing the elements of the two statutes at issue in this case, it is clear that each
17 requires proof of a fact that the other does not. Compare § 30-6-1 (D )( 1) (requiring
18 	the state to prove that the offender placed a child in a situation that endangered the
19 	child's life or health), with NMSA 1978, § 30-3-8(B) (1993) (requiring the state to
20 prove that the offender willfully discharged a firearm at or from a motor vehicle).
23

1 Under the Blockburger strict-elements test, we can infer that the Legislature intended
2 to punish these crimes separately. 2
3 	{42} 	"We therefore must proceed to the most challenging step of the double
4 jeopardy analysis, trying to determine whether the Legislature intended to impose
5 cumulative punishment for unitary conduct violating two statutes that survive the
6 Blockburger elements test." State v. Montoya, 2013-NMSC-020,, 32, 306 P.3d 426.
7 We do so by turning "to traditional means of determining legislative intent: the
8 language, history, and subject of the statutes and we must identify the particular evil
9 sought to be addressed by each offense." Id. (internal quotation marks and citation
10 omitted). "If several statutes are not only usually violated together, but also seem
11 	designed to protect the same social interest, the inference becomes strong that the
2 Defendant does not develop any argument with respect to whether a modified
Blockburger analysis would lead us to a different result. See State v. Gutierrez, 2011-
NMSC-024, , 	59, 150 N.M. 232, 258 P.3d I 024 (stating that 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 (emphasis, internal quotation marks, and citation omitted)); State v.
Ramirez , 	2016-NMCA-072, 	, 	22, 	387 	P3d 	266 	(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" ). Instead, the analysis in Defendant' s brief in chief begins with Blockburger
and then concludes with an effort at establishing that his conduct was unitary. His
reply brief continues to conflate the modified Blockburger analysis with the question
of whether his conduct was unitary. In the absence of adequate briefing, we will not
engage in further analysis on this point, and we will assume for purposes of this
appeal that the charged offenses at issue survive a modified Blockburger analysis.
24

1 function of the multiple statutes is only to allow alternative means of prosecution."
2 Id. (internal quotation marks and citation omitted).
3 	{43} 	In looking at the statutes at issue in the present case, we observe first that the
4 offenses of child abuse and shooting from a motor vehicle are not typically violated
5 together. The statutes also address distinct social evils. Section 30-6-1 is "designed
6 to 	give 	greater protection to 	children than 	adults 	because 	children 	are 	more
7 vulnerable than adults[.]" Santillanes, 2001-NMSC-018, ,r 24 (internal quotation
8 marks and citation omitted). "When an adult, without justification, endangers a
9 child's safety, the adult is more culpable than when the safety of another adult is
10 jeopardized." Id. (internal quotation marks and citation omitted). "[T]he history of
11 	the child abuse statute compels the conclusion that the Legislature has expanded
12 protection 	for 	children." 	Id. 	(alteration, 	internal 	quotation marks, 	and citation
13 	omitted). In contrast, Section 30-3-8(B) "is one of a group of statutes that proscribe
14 	assault and battery." State v. Marquez, 2016-NMSC-025, ,I 23,376 P.3d 815. Based
15 	on these 	indicia 	of legislative 	intent, 	it does 	not appear that child abuse 	by
16 	endangerment and shooting from a motor vehicle are intended only to be "alternative
17 	means of prosecution." See Montoya, 2013-NMSC-020, ,I 32.
18 	{44} 	Defendant does not make an argument with respect to these particular indicia
19 	of legislative intent. Rather, Defendant relies on Santillanes, 2001-NMSC-018, to
20 support his position that separate punishments for child abuse and shooting from a
25

1 motor vehicle are precluded by double jeopardy. However, the holding in Santillanes
2 that double jeopardy precluded multiple punishments for vehicular homicide and
3 child abuse resulting in death depended in large part on "the generally accepted
4 notion that one death should result in only one homicide conviction." 2001-NMSC-
5 018 ~ 5 (internal quotation marks and citation omitted); see Montoya, 2013-NMSC-
6 020, ~ 43 (stating that in Santillanes this Court specifically affirmed the reasoning
7 of the 	Court 	of Appeals "that one death 	should result in only one homicide
8 conviction" (internal quotation marks and citation omitted)). Thus, we are not
9 persuaded that its reasoning applies equally here.
10 	{45} 	Similarly, Defendant points us to State v. Swick, 2012-NMSC-018, ~~ 11-31,
11 	279 P.3d 747, which determined that separate convictions for attempted murder and
12 	aggravated battery arising from the same conduct violate the prohibition against
13 	double jeopardy. We note, however, that the Court in Swick first determined that
14 	under a modified Blockburger analysis, the elements of attempted murder subsumed
15 	the elements of aggravated battery. Id. ~~ 27, 29. The Court went on to state, in the
16 alternative, that even 	if the statutes at issue survived a modified Blockburger
17 analysis, both statutes "address the social evil of harmful attacks on a person's
18 	physical safety and integrity." Id. ~ 29. The statutes merely "take different degrees
19 	into consideration." Id. Here, as noted above, Defendant has not provided us with a
20 developed argument regarding precisely how, if at all, a modified Blockburger
26

1 analysis applies in this case, nor are we dealing with two statutes that address the
2 same social evil. Thus, we are not persuaded that Swick appropriately informs our
3 decision.
4 {46} 	And lastly, although Defendant invokes the "substantive sameness" language
5 from Montoy a, 2013-NMSC-020, 1 46, his simple string cite to three unpublished
6 cases, each dealing with the offense of shooting at a motor vehicle, does not
7 convince us that the particular crimes at issue in our case- 	child abuse and shooting
8 from a motor vehicle-are substantively the same offense for double jeopardy
9 purposes. Cf 	id. 152 (stating that our Supreme Court could no longer conclude that
10 the Legislature 	intended multiple punishments for voluntary manslaughter and
11 	shooting at a motor vehicle resulting in great bodily harm, taking into consideration
12 	"the relationship between the statutory offenses and their common commission by
13 	unitary conduct, the identical social harms to which they are directed, and their use
14 	by the [s]tate ... to impose double punishment for the killing of a single victim").
15 	{47} 	Consequently, in light of the Blockburger inference that the Legislature
16 	intended to punish the crimes of child abuse and shooting from a motor vehicle
17 	separately, and taking into account the other indicia oflegislative intent, we conclude
18 	that multiple punishments for these offenses do not constitute double jeopardy.
19 	{48} 	We note that the district court merged the child abuse (recklessly caused, great
20 bodily harm) and the shooting from a motor vehicle (great bodily harm) convictions
27

1 for 	sentencing. 	Because 	we 	have 	concluded that there 	is no double jeopardy
2 violation, we can see no error in the merger for sentencing. However, the State
3 argues in its answer brief that such a merger constitutes a sentencing error. While an
4 appellee is free to assert any reason supporting affirmance, without having first
5 preserved the issue below, see State v. Todisco , 2000-NMCA-064, 'if 11 , 129 N.M.
6 310, 6 P.3d 1032 ("Generally, an appellee has no duty to preserve issues for review
7 and may advance any ground for affirmance on appeal."), an appellee-absent a
8 cross-appeal-may only raise new points of error for our determination in the event
9 that we reverse the judgment, in whole or in part. See Rule 12-201(C) NMRA ("An
10 appellee may, without taking a cross-appeal ... raise issues on appeal for the purpose
11 	of enabling the appellate court to affirm, or raise issues for determination only if the
12 	appellate court should reverse, in whole or in part, the judgment or order appealed
13 	from." ). Because we are reversing a portion of the judgment and sentence, we can
14 consider the State's issue, even in the absence of a cross-appeal. However, we are
15 	not 	convinced 	by the 	State's 	underdeveloped 	and 	unsupported 	argument that
16 sentencing error occurred in this case. See State v. Guerra, 2012-NMSC-014, 'if 21,
17 	278 P.3d 1031 (stating that appellate courts are under no obligation to review unclear
18 	or undeveloped arguments); In re Adoption ofDoe, 1984-NMSC-024, 'if 2, 100 N.M.
19 	764, 676 P.2d 1329 (" [A]ppellate courts will not consider an issue if no authority is
28

1 cited in support of the issue and that, given no cited authority, we assume no such
2 authority exists[.]").
3 	IV. 	Inconsistent Verdicts
4 	{49} 	Because the jury convicted Defendant for some, but not all, of the shooting
5 related charges, Defendant argues that the verdicts are inconsistent. Specifically,
6 relying on the fact that the jury was instructed on self-defense for all of the shooting
7 related counts, Defendant argues that "[b]ecause the jury found that [he] 	was
8 justified in shooting back at Trey in order to defend himself, his girlfriend, and her
9 	sister, the jury could not possibly and consistently have found that he was guilty of
10 	child abuse and some counts of shooting from a motor vehicle[.]"
11 	{50} 	"Inconsistent verdicts are those which are so contrary to each other that the
12 	basis 	upon 	which 	each 	verdict 	was 	reached 	cannot 	be 	determined." 	State 	v.
13 	Fernandez, 1994-NMCA-056, 138, 117 N.M. 673, 875 P.2d 1104. However, it is
14 	well settled that we do not entertain challenges to allegedly inconsistent verdicts.
15 	See, e.g., State v. Roper, 2001-NMCA-093, 124, 131 N.M. 189, 34 P.3d 133 ("We
16 	have frequently said that our business is to review the verdicts of conviction, and not
17 	concern 	ourselves 	with 	any 	alleged 	acquittals, 	and 	thus 	we 	do 	not 	entertain
18 	contentions 	alleging 	that 	the 	verdicts 	are 	irreconcilable."); 	Fernandez, 	1994-
19 NMCA-056, 1 39 ("[W]e review the verdict of conviction, not the verdict of
20 	acquittal.").
29

1 {51} 	Defendant relies on Hundley v. District of Columbia, 494 F .3d. 1097 (D.C.
2 	Cir. 2007) to support his inconsistent verdict argument. Hundley is a federal civil
3 	rights case that specifically dealt with an "assault and battery and excessive force
4 verdict [that] was inconsistent with the written interrogatory answer[.]" Id. at 1103-
5 	04. In the absence of a better developed argument, we are not persuaded that this
6 out-of-jurisdiction case is apposite to the issue in our case. Therefore, we will apply
7 the standard as laid out in Roper; that is, "we do not entertain contentions alleging
8 that the verdicts are irreconcilable." 2001-NMCA-093, ,r 24.
9 	{52} 	Inasmuch 	as 	there 	is 	sufficient 	evidence 	to 	support 	the 	child 	abuse
10 convictions, as addressed above, and because there is otherwise no challenge to the
11 	sufficiency of the evidence to support any of the other convictions, we will not
12 	address this issue further.
13 	V. 	Excusal of a Prospective Juror for Cause
14 	{53} 	Defendant argues that the district court erroneously struck a prospective juror
15 	for 	cause 	based 	on 	his 	religious 	beliefs 	and 	that 	such 	excusal 	constituted 	a
16 deprivation of Defendant's constitutional rights. 	We review the district court's
17 	rulings on juror challenges for cause under an abuse of discretion standard. State v.
18 	Gardner, 2003-NMCA-107, ,r 16, 134 N.M. 294, 76 P.3d 47. The district court "is
19 	in the best position to assess a juror's state of mind, by taking into consideration the
20 juror's demeanor and credibility. It is within the district court's discretion as to
30

1 whether a prospective juror should be excused." State v. Clark, 1999-NMSC-035,
2 ,r 10, 128 N.M. 119,990 P.2d 793. " We will not disturb the [district] court's decision
3 absent a clear abuse of discretion or a manifest error." State v. Sutphin, 1988-NMSC-
4 	031 , ,r 16, 107 N.M. 126, 753 P.2d 1314.
5 	{54} 	"The [district] court properly excludes a juror for cause where the juror' s
6 views would prevent or substantially impair the performance of his duties as a juror
7 in accordance with his instructions and his oath." Gardner, 2003-NMCA-107, ,r 16
8 (internal quotation marks and citation omitted). Here, the district court struck a
9 prospective juror for cause who stated: "My spiritual beliefs make it so that I will
10 	not pass judgment on another man[.]" The prospective juror also stated that if he
11 	were chosen as a juror, he would "not be able to engage in making a decision[.]"
12 	{55} 	The prospective juror's own statements clearly demonstrate that his views
13 	would prevent or substantially impair the performance of his duties as a juror in
14 accordance with his instructions and his oath. As such, there was not a clear abuse
15 	of discretion or a manifest error in this case and we will not disturb the district court's
16 	decision to excuse the prospective juror. See Clark, 1999-NMSC-035, ,r 12 (holding
17 that there was no abuse of discretion where jurors were excused, not because they
18 	were members of a particular religion, but rather because they were unable to apply
19 	the law).
31

1 VI. 	Ineffective Assistance of Counsel
2 	{56} 	Finally, Defendant contends that his attorney was ineffective by mistakenly
3 advising him that the alternative to count one was a third-degree felony when it was
4 actually a first-degree felony if it resulted in great bodily harm. As a consequence,
5 Defendant asserts on appeal that he would have considered "the State' s plea offer in
6 a different light had he been properly informed about the sentence that he was facing
7 	if convicted of reckless child abuse."
8 	{57} 	Appellate courts have a preference that ineffective assistance of counsel
9 claims be brought and resolved through habeas corpus proceedings. Bernal, 2006-
10 NMSC-050, , 33. "[O]n direct appeal, only when a defendant presents a prima facie
11 	case of ineffective assistance of counsel will [the appellate courts] remand to the trial
12 court for evidentiary proceedings." Id. "A prima facie case of ineffective assistance
13 	of counsel requires that a defendant establish that: (1) counsel' s performance fell
14 below that of a reasonably competent attorney; (2) no plausible, rational strategy or
15 	tactic 	explains 	counsel' s 	conduct; 	and 	(3) 	counsel ' s 	apparent 	failings 	were
16 prejudicial to the defense." State v. Cordova, 2014-NMCA-081 , , 9, 331 P.3d 980
17 (internal quotation marks and citation omitted).
18 	{58} 	To prevail on an ineffective assistance of counsel claim based upon the
19 	rejection of a plea offer, a defendant must show
20
21
that but for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the court
32

1
2
3
4
5
6
(i.e., 	that 	the 	defendant 	would 	have 	accepted 	the 	plea 	and 	the
prosecution 	would 	not 	have 	withdrawn 	it 	in 	light 	of intervening
circumstances), that the court would have accepted its terms, and that
the conviction or sentence, or both, under the offer' s terms would have
been less severe than under the judgment and sentence that in fact were
imposed.
7 Id. 	,-r 12 (quoting Lafler v. 	Coope r, 	566 U.S. 	156, 164 (2012)). "Although the
8 standard to be applied in this context is different, it is nevertheless an ineffective
9 assistance of counsel claim" and the preference that these claims be adjudicated in
10 habeas proceedings still applies. Id. ,-r 13. Resolution of this type of claim requires
11 	the same adequate record. Id. "Accordingly, we will remand to the district court for
12 	an evidentiary hearing only if the defendant has presented a prima facie case of
13 	ineffective assistance of counsel." Id.
14 	{59} 	In this case, there was no evidence presented below to support Defendant' s
15 	ineffective 	assistance 	of counsel 	claim. 	There 	is 	only 	argument 	of counsel,
16 Defendant' s 	motion 	for 	new 	trial , and 	testimony 	from 	Defendant's 	uncle 	at
17 sentencing that Defendant chose to go trial believing he would be able to avoid the
18 	18-year sentence. Notably, Defendant does not argue, and the record does not
19 otherwise establish, that Defendant would have accepted the plea offer had he been
20 advised that the alternative to count one was a first-degree felony. Instead, he asserts
21 	on appeal simply that he "would have considered the State' s plea offer in a different
22 	light had he been properly informed about the sentence that he was facing 	if
23 	convicted of reckless child abuse." This is not sufficient under Cordova, as laid out
33

1 above, to establish a prima facie case of ineffective assistance of counsel. Cf State
2 v. Morgan, 2016-NMCA-089, ,r 25, 382 P.3d 981 ("The mere existence of a plea
3 offer ... has no bearing on whether [the d] efendant would have accepted it[.]").
4 	{60} 	Thus, Defendant has failed to establish a prima facie case of ineffective
5 assistance of counsel. He may, however, raise this issue, if he is so inclined, through
6 a habeas corpus proceeding.
7 CONCLUSION
8 	{61} 	For these reasons, we conclude that Defendant's convictions for two counts
9 	of child abuse (recklessly caused, no death or great bodily harm) violate double
10 jeopardy and we remand to the district court to vacate one of the two convictions.
11 	We otherwise affirm·.
12 	{62}
13
14
15
IT IS SO ORDERED.
16 	WE CONCUR:
-~~~
~LGOS, Judge
34