January 15, 2019- State of New Mexico v. Robert Pipkin, No. A-1-CA-37264

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-37264
5 ROBERT PIPKIN,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 John A. Dean, Jr., District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur, Chief Public Defender
13 	Gregory B. Dawkins, Assistant Appellate Defender
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 VANZI, Chief Judge.
18 	{I} 	Defendant appeals from his convictions for CSPM and CSCM. We previously
19 issued a notice of proposed summary disposition in which we proposed to affirm.
20 Defendant has filed a joint memorandum in opposition and motion to amend the
21 	docketing statement. After due consideration, we deny the motion and affirm.
Court of Appeals of New Mexico
Filed 1/15/2019 8:47 AM
Mark Reynolds

1 {2} 	We will begin our discussion with the issues originally raised in the docketing
2 statement. Although Defendant does not renew his challenge to the sufficiency of the
3 evidence, he does continue to argue that his convictions violate double jeopardy.
4 [MIO 3] We will limit the scope of discussion accordingly. See, e.g., State v.
5 Martinez, 1982-NMCA-002, 11, 97 N.M. 585, 642 P.2d 188.
6 	{3} 	As previously described in the notice of proposed summary disposition, in this
7 case the charge ofCSCM was based on Defendant's touching ofS.B. 's breasts, while
8 the charge of CSPM was based on Defendant's subsequent insertion of a finger into
9 S.B.'s vulva or vagina. [RP 237,240] We regard this conduct as non-unitary, both
10 because the specific acts are clearly distinct in quality, and because the crime of
11 	CSCM was completed before the crime of CSPM began. See, e.g., State v. Sena,
12 2018-NMCA-037, 1137, 48, 56,419 P.3d 1240 (reflecting that conduct underlying
13 	a conviction for CSC, entailing touching of the victim's breasts, was distinct from
14 conduct underlying a conviction for CSP, entailing digital vaginal penetration, and
15 	ultimately upholding both convictions), cert. granted, _-NMSC- __ (No. S- l-SC-
16 36932, May 25, 2018); see also State v. DeGraff, 2006-NMSC-011, 127, 139 N.M.
17 211, 131 P.3d 61 ("In our consideration of whether conduct is unitary, we have
18 	looked for an identifiable point at which one of the charged crimes had been
2

1 completed and the other not yet committed."); State v. Contreras, 2007-NMCA-045,
2 , 21, 141 N.M. 434, 156 P.3d 725 ("[W]e will not find that a defendant's conduct is
3 unitary where the defendant completes one of the charged crimes before committing
4 the other."). To the extent that the conduct is non-unitary, there is no double jeopardy
5 violation. State v. Silvas, 2015-NMSC-006,, 9, 343 P.3d 616.
6 {4} 	Furthermore, even if the conduct could be regarded as unitary, we nevertheless
7 remain of the opinion that Defendant's convictions for CSCM and CSPM are
8 consistent with legislative intent. In this regard, we note that the offenses contain
9 different elements, and stand independently in relation to one another. See State v.
10 Swick, 2012-NMSC-018,, 13,279 P.3d 747 ("If each statute requires proof of a fact
11 	that the other does not, it may be inferred that the Legislature intended to authorize
12 separate punishments under each statute."). We have also previously recognized that
13 	the statutes prohibiting sex crimes against children list five separate protected areas,
14 	including the genital area and breast, and we have held that "the legislative intent was
15 to protect the victim from intrusions to each enumerated part." State v. Haskins,
16 2008-NMCA-086,, 24, 144 N.M. 287, 186 P.3d 916 (internal quotation marks and
17 citation omitted); see State v. Williams, 1986-NMCA-122,, 9, 105 N.M. 214, 730
18 P .2d 1196. Thus, under the facts of this case, which showed first a touching of one
3

1 protected area and subsequently a penetration of a different protected area, we
2 conclude that Defendant was properly convicted and separately sentenced for both
3 CSCM and CSPM. See, 	e.g., 	Sena, 2018-NMCA-037, ~~ 37, 48, 56; Haskins,
4 2008-NMCA-086, ~~ 18, 24; Williams, 1986-NMCA-122, ~~ 7-9 (all upholding
5 multiple convictions based upon touching of the victim's breast and genital area).
6 	{5} 	Defendant's memorandum in opposition does not address the foregoing
7 authorities. Instead, he relies on a case involving multiple counts of CSCM, based
8 upon touchings that occurred within a short period of time in the course of a massage.
9 	[MIO 11-12] We do not find this to be persuasive or to require a different result. In
10 summary therefore, we conclude that the convictions do not violate double jeopardy.
11 	{6} 	We tum next to the issue that Defendant seeks to raise by his motion to amend,
12 concerning the withdrawal ofhis attorney prior to trial. [MIO 4-9] The record reflects
13 	that this occurred upon his attorney's motion, which he filed after Defendant's
14 unexplained failure to appear at his scheduled jury trial. [RP 142-48] A hearing was
15 	conducted on that motion, and Defendant registered no opposition. [RP 158-60]
16 Shortly thereafter the district court granted the attorney's motion, substitution of
17 counsel occurred, and the rescheduled trial was repeatedly continued to accommodate
18 	defense preparation. [RP 161, 165, 167, 176, 183]
4

1 {7} 	Defendant contends that the withdrawal of his attorney was procured by the .
2 prosecution, and this effectively denied him his Sixth Amendment right to counsel
3 of choice. [MIO 4-9] To succeed on his argument, Defendant must establish a
4 sufficient causal link between the State's actions and the withdrawal of Defendant's
5 attorney. See State v. Gamlen, 2009-NMCA-073, ,-r 10, 213 P.3d 818 (explaining).
6 However, the record before us reflects that counsel sought to withdraw due to
7 Defendant's failure to uphold his obligations to counsel, when he failed to appear at
8 the originally-schedule jury trial. [RP 148] To the extent that Defendant's own
9 conduct motivated his attorney to withdraw, we perceive no merit to Defendant's
10 argument.
11 	{8} 	Although Defendant does not acknowledge the role that his own condu~t
12 played in his attorney's withdrawal, he does argue that the prosecutor's announced
13 	intention to pursue a separate criminal action against Defendant based upon his
14 failure to appear created a conflict of interest for his attorney, insofar as his attorney
15 	would be a likely witness in that separate action. [MIO 4-9] We will assume, for the
16 present purposes, that this situation could supply the requisite causal link between
17 	State action and the attorney's withdrawal. See id. Nevertheless, we conclude that
18 Defendant 	has 	failed 	to 	demonstrate 	that 	the 	prosecutor's 	behavior 	had 	"a
5

1 demonstrable impact on [his attorney's] ability to represent [the d]efendant or upon
2 the outcome of the case." Id. 113. In this regard we note that although the prospect
3 of a subpoena may have been distasteful, we fail to 	see how it created an
4 irreconcilable conflict. Neither Rule 16-108(B) NMRA, nor Rule 16-109(C)(l)
5 NMRA (prohibiting lawyers from using information relating to representation to the ·
6 disadvantage of a client unless the client gives informed consent, except as permitted
7 or required by the rules), both of which Defendant invokes, [MIO 6] nor any other
8 authority of which we are aware, would have precluded the attorney from continuing
9 the representation. And in any event, if Defendant wished the attorney to continue the
10 representation, he was at liberty to waive the perceived conflict. State v. Barnett,
11 	1998-NMCA-105, 126, 125 N.M. 739, 965 P.2d 323.
12 	{9} 	Under the circumstances presented in this case, and in light of the foregoing
13 	considerations, we conclude that the evidence is insufficient to establish a Sixth
14 Amendmentviolation.See, e.g., Gamlen,2009-NMCA-073, 116-16(rejectingaSixth
15 	Amendment claim of deprivation of the right to counsel of choice, where an attorney
16 withdrew following hostile and combative interaction with the State, where the
17 defendant did not object to the withdrawal, and the facts of the case did notindicate
18 that the State's behavior had, or would have had, a demonstrable impact on the
6

1 attorney's ability to represent the defendant or upon the outcome of the case). We
2 therefore deny the motion to amend, on grounds that the issue is not viable. See, e.g.,
3 State v. Sommer, 1994-NMCA-070, ,r 11, 118 N.M. 58, 878 P.2d 1007 (indicating
4 that a motion to amend will be denied if the putative issue is not viable).
5 	{to} 	Accordingly, for the reasons stated above and in the notice of proposed
6 summary disposition, we affirm.
7 	{11} 	IT IS SO ORDERED.
8
9 	LI
10 WE CONCUR:
13 	~L&14 JEN~ 	.ATTREP,Judge
7