July 13, 2026- State of New Mexico v. Andrew Sandoval, No. A-1-CA-40454

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: July 13, 2026	3
No. A-1-CA-40454	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
ANDREW SANDOVAL,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY	10
Jason C. Lidyard, District Court Judge	11
Raúl Torrez, Attorney General	12
Maris Veidemanis, Assistant Attorney General	13
Santa Fe, NM	14
Van Snow, Deputy Solicitor General	15
Albuquerque, NM	16
for Appellee	17
Bennett J. Baur, Chief Public Defender	18
Caitlin C.M. Smith, Assistant Appellate Defender	19
Santa Fe, NM	20
for Appellant	21
Court of Appeals of New Mexico
Filed 7/13/2026 7:19 AM

OPINION	1
ATTREP, Judge.	2
{1} Following a jury trial, Defendant Andrew Sandoval appeals his judgment and	3
sentence on ten counts related to repeated sexual abuse he committed against a child	4
victim. We address three issues in this appeal. First is a threshold jurisdictional	5
question—whether a judgment and sentence is final and appealable if formally	6
severed charges remain pending in the trial court. Because there were severed	7
charges awaiting trial in district court at the time Defendant filed this appeal, this	8
Court sua sponte raised the issue of our jurisdiction. We conclude that this Court’s	9
decisions in State v. Gutierrez, 2011-NMCA-088, ¶¶ 3-10, 150 N.M. 505, 263 P.3d	10
282, and State v. Catt, 2019-NMCA-013, ¶¶ 33-36, 435 P.3d 1255—each of which	11
held that the judgment and sentence in question was an appealable order,	12
notwithstanding that there were charges pending retrial in district court—apply to	13
formally severed charges like those at issue in this case and, as a result, jurisdiction	14
is proper.	15
{2} The second issue we address is Defendant’s ineffective assistance of counsel	16
claim. Defendant argues that his trial counsel was “egregiously ineffective” by	17
advancing a legal theory that Defendant contends was plainly unavailing as to the	18
most severe charges he faced. Defendant’s ineffective assistance claim rests on his	19
contention that our Supreme Court’s decision in State v. Grogan, 2007-NMSC-039,	20

2
¶¶ 9-19, 142 N.M. 107, 163 P.3d 494—which recognized a narrow exception to the	1
ineffective assistance framework set forth in Strickland v. Washington, 466 U.S. 668,	2
687-96 (1984)—governs his claim, thereby relieving him of the burden to establish	3
prejudice from his trial counsel’s incompetence. We reject Defendant’s premise and	4
conclude that Defendant’s ineffective assistance claim, relating to his trial counsel’s	5
misapprehension of law, is governed by Strickland, not Grogan. As a result,	6
Defendant’s ineffective assistance of counsel claim fails.	7
{3} The third issue we address is Defendant’s double jeopardy challenge.	8
Defendant argues that three of his convictions for criminal sexual contact of a minor	9
resulted in multiple punishments for the same conduct as two of his convictions for	10
criminal sexual penetration of a minor. Defendant’s double jeopardy claim rests on	11
his contention that, because of the way the charges were structured, he was only	12
charged with, and could only be convicted of, a single “assaultive episode” or	13
“course of conduct.” We reject the premise underlying Defendant’s double jeopardy	14
challenge as unsupported. Because the evidence at trial established that Defendant	15
subjected the child victim to repeated sexual abuse during the relevant charging	16
period, and because the State’s theory at trial did not narrow the jury’s consideration	17
of the evidence to a single assaultive episode or course of conduct, Defendant’s	18
double jeopardy claim fails. We affirm.	19

3
BACKGROUND	1
{4} We provide only a brief background and leave additional discussion of the	2
relevant facts for our analysis of the issues. Defendant was charged in a twenty-count	3
indictment with sexual offenses committed against two minors, V.M. and N.G. This	4
appeal is taken from Defendant’s trial on the eighteen charges related to V.M., which	5
were formally severed from two charges related to N.G. As for the counts pertaining	6
to V.M., Defendant was charged with four counts of criminal sexual contact of a	7
minor (CSCM) in the second degree (unclothed intimate parts, child under thirteen	8
years of age), NMSA 1978, § 30-9-13(B)(1) (2003); one count of CSCM in the third	9
degree (child under thirteen years of age), § 30-9-13(C)(1); four counts of criminal	10
sexual penetration of a minor (CSPM) in the first degree (child under thirteen years	11
of age), NMSA 1978, § 30-9-11(D)(1) (2009); two counts of CSCM in the fourth	12
degree (child thirteen to eighteen years of age), § 30-9-13(D)(1); two counts of	13
CSPM in the second degree (use of force or coercion, child thirteen to eighteen years	14
of age), § 30-9-11(E)(1); two counts of contributing to the delinquency of a minor	15
(CDM), NMSA 1978, § 30-6-3 (1990); one count of child solicitation by electronic	16
communication device, NMSA 1978, § 30-37-3.2(A) (2007); one count of	17
enticement of a child, NMSA 1978, § 30-9-1 (1963); and one count of tampering	18
with evidence, NMSA 1978, § 30-22-5 (2003).	19

4
{5} Evidence at trial established that V.M. was a close friend of Defendant’s	1
daughter (S.S.), and that V.M. frequently spent the night at Defendant’s home. V.M.	2
testified that Defendant would buy her and S.S. alcohol and marijuana. V.M. also	3
testified that she, S.S., V.M.’s brother, and Defendant would all sleep in Defendant’s	4
bedroom. V.M. and S.S. slept in the bed, and V.M.’s brother and Defendant, who	5
was either naked or in his underwear, slept on the floor. V.M. testified that, when	6
she spent the night at Defendant’s home, Defendant would wake her up and sexually	7
abuse her when everyone else was asleep. V.M. testified that this abuse occurred	8
when she was twelve and thirteen years old.	9
{6} The abuse came to light when S.S.’s mother contacted authorities after she	10
found a concerning video on S.S.’s cell phone, in which Defendant was naked and	11
V.M. was smearing a white paste on his chest and arms. On the same day that law	12
enforcement recovered the video from S.S.’s phone, Defendant texted V.M., “don’t	13
say anything” and to “[e]rase everything.” Police ultimately uncovered sexually-	14
explicit text messages from Defendant on V.M.’s cell phone. When interviewed by	15
law enforcement, Defendant said that his cell phone “fell off the bridge in the Rio	16
Grande” the day before he spoke to police.	17
{7} The defense called S.S., as well as a number of Defendant’s family members,	18
as witnesses. Upon defense counsel’s motion, the district court directed not guilty	19
verdicts on four counts. The jury acquitted Defendant of three additional counts for	20

5
sexual offenses against V.M. when she was thirteen.1 Defendant was convicted of	1
three counts of CSCM in the second degree (unclothed intimate parts, child under	2
thirteen years of age), § 30-9-13(B)(1); one count of CSCM in the third degree (child	3
under thirteen years of age), § 30-9-13(C)(1); three counts of CSPM in the first	4
degree (child under thirteen years of age), § 30-9-11(D)(1); two counts of CDM,	5
§ 30-6-3; and one count of tampering with evidence, § 30-22-5. For these	6
convictions, Defendant was sentenced to sixty years in prison, with twenty-four	7
years suspended. Defendant appeals.	8
DISCUSSION	9
{8} Before we address Defendant’s arguments that he received egregious	10
ineffective assistance of counsel and that some of his convictions violate the double	11
jeopardy right to be free from multiple punishments, we resolve the jurisdictional	12
issue of whether Defendant’s judgment and sentence was final and appealable at the	13
time Defendant filed this appeal.	14
I. Jurisdiction	15
{9} Upon the parties’ stipulation, the district court entered an order severing the	16
counts pertaining to V.M. from the counts pertaining to N.G., permitting the State to	17
try Defendant in separate trials for each set of severed counts. See generally Rule	18
1Although the jury convicted Defendant of one count of CSPM in the second
degree (use of force or coercion, child thirteen to eighteen years of age), the State
later dismissed this charge.

6
5-203(C) NMRA (providing that “[i]f it appears that a defendant or the state is	1
prejudiced by a joinder of offenses . . . , the court may order separate trials of	2
offenses”). All counts remained under the same district court case number.	3
Defendant proceeded to trial on the charges pertaining to V.M., was convicted and	4
sentenced as described, and was immediately remanded into custody to begin	5
serving his sentence. Defendant appealed the judgment and sentence for the	6
convictions pertaining to V.M. The severed counts pertaining to N.G., however,	7
remained pending before the district court at the time the present appeal was filed.	8
{10} This Court sua sponte directed the parties to brief the issue of whether these	9
pending charges affected the finality of the judgment and sentence before us. See	10
Gates v. N.M. Tax’n & Revenue Dep’t, 2008-NMCA-023, ¶ 9, 143 N.M. 446, 176	11
P.3d 1178 (“Although neither party in this case advanced the issue of finality, we	12
are able to raise jurisdictional issues sua sponte.”). Defendant argued, and the State	13
agreed, that the judgment and sentence before this Court is final and appealable and	14
that this Court has jurisdiction. Although we are not bound by the State’s concession,	15
we agree that jurisdiction is proper. See State v. Guerra, 2012-NMSC-027, ¶ 9, 284	16
P.3d 1076 (observing that the appellate court is not bound by a party’s concession	17
but agreeing with the conceding party’s position); State v. Romero, 2014-NMCA-	18
063, ¶ 4, 327 P.3d 525 (explaining, parenthetically, that this Court would “analyz[e]	19

7
a jurisdictional issue relative to finality, despite the parties’ agreement as to the	1
matter”).2
2
{11} Whether this Court has jurisdiction to hear an appeal is a legal question	3
determined de novo. See State v. Heinsen, 2005-NMSC-035, ¶ 6, 138 N.M. 441, 121	4
P.3d 1040. In criminal cases, “an appeal may be taken by the defendant to the	5
supreme court or court of appeals . . . within thirty days from the entry of any final	6
judgment.” NMSA 1978, § 39-3-3(A)(1) (1972) (emphasis added). “As a general	7
rule, an order or judgment is not considered final unless it resolves all of the factual	8
and legal issues before the court and completely disposes of the case.” Heinsen,	9
2005-NMSC-035, ¶ 14; see also id. (providing that “[t]he purpose of finality is to	10
prevent piecemeal appeals or appeals of issues that may be moot after further	11
proceedings in the lower court”). This has been described as “the ‘last act’ rationale	12
for the finality rule.” State v. Durant, 2000-NMCA-066, ¶ 7, 129 N.M. 345, 7 P.3d	13
2Prior to briefing being completed in this case, a judgment and sentence as to
the counts pertaining to N.G. was entered by the district court. Given this, the
jurisdictional issue we identified in our briefing order is now moot. See generally
State v. Heinsen, 2005-NMSC-035, ¶ 14, 138 N.M. 441, 121 P.3d 1040 (providing
that an order that “completely disposes of the case” is a final order). Nevertheless,
because this issue is capable of repetition yet evading review, as evidenced by this
issue becoming moot prior to appellate briefing being completed, and the finality
and appealability of criminal judgments is a matter of substantial public interest
affecting the administration of justice, we exercise our discretion to decide the
jurisdictional issue presented in this case. See generally State v. Booth, 2026-
NMCA-062, ¶¶ 8-10, 590 P.3d 497 (exercising this Court’s discretion to decide a
moot sentencing issue because it was “an issue of substantial public interest that is
also capable of repetition yet evading review”).

8
495. In view of this construction of the finality rule, the severed charges pertaining	1
to N.G., which remained pending before the district court at the time of Defendant’s	2
appeal, arguably rendered the appealed judgment and sentence non-final. However,	3
this Court in Gutierrez, 2011-NMCA-088, ¶¶ 3-10, and Catt, 2019-NMCA-013,	4
¶¶ 33-36, rejected this result when addressing jurisdictional questions substantially	5
similar to the one in this case. For the reasons that follow, we conclude Gutierrez	6
and Catt control here.	7
{12} In Gutierrez, the defendant was convicted of one count in a multi-count	8
indictment, with several counts resulting in a mistrial. 2011-NMCA-088, ¶ 1. The	9
defendant appealed his judgment and sentence on the single count of conviction (first	10
judgment); during the pendency of the appeal, the defendant was retried, convicted,	11
and sentenced on the remaining convictions (second judgment). Id. ¶ 5. In his appeal	12
of the second judgment, the defendant argued that the district court lacked	13
jurisdiction to proceed with retrial of any of the remaining charges during the	14
pendency of his appeal of the first judgment. Id. ¶¶ 2-10. In rejecting the defendant’s	15
position, this Court also opined on the issue of whether the first judgment was a	16
final, appealable order. While acknowledging the “last act” rationale for the finality	17
rule, this Court in Gutierrez determined that the defendant had a right to an	18
immediate appeal of the first judgment. See id. ¶¶ 7, 10. The Court explained:	19
As to [the original conviction], the criminal trial process was complete,	20
and the judgment and sentence filed was a final order as to that charge.	21

9
[The d]efendant thus had an appealable judgment with respect to that	1
conviction . . . . As a matter of right, [the d]efendant could and did	2
appeal the conviction on that single count.	3
Id. ¶ 10. Simply put, Gutierrez concluded that a defendant has an appeal as of right	4
from a judgment and sentence even though other counts remain pending retrial.	5
{13} In Catt, this Court reached the same conclusion based on the “sufficiently	6
aggrieved” exception to the “last act” rationale for the finality rule. 2019-NMCA-	7
013, ¶¶ 35-36. Under that exception, this Court has “recognized that an appeal may	8
be taken ‘when the consequences of the order that is not the last contemplated order	9
in the case are sufficiently severe that the aggrieved party should be granted a right	10
to appeal to alleviate hardship that would otherwise accrue if the appeal were	11
delayed.’” Id. ¶ 35 (quoting Durant, 2000-NMCA-066, ¶ 8). In Catt, the defendant	12
was tried, convicted, sentenced, and immediately remanded to begin serving a four-	13
year term of incarceration on a single felony count. Id. ¶ 36. The defendant appealed	14
this judgment and sentence, but additional counts remained pending retrial in district	15
court, due to jury disagreement at the defendant’s first trial. See id. ¶¶ 2-4, 36. The	16
state in Catt argued that “even though the district court entered a judgment and	17
sentence on [one count], the judgment did not dispose of all issues of law and fact	18
to the fullest extent possible and, thus, is non-final.” Id. ¶ 34. This Court rejected the	19
state’s argument and, applying the “sufficiently aggrieved” rationale, concluded that	20
the judgment and sentence in question was “sufficiently final to be appealable.” Id.	21

10
¶¶ 35-36. This Court reasoned, “Given that [the d]efendant has been convicted of a	1
felony and incarcerated, there are immediate and definite consequences—both direct	2
and collateral. [The d]efendant is ‘sufficiently aggrieved’ to permit her immediate	3
appeal from the judgment and sentence on [the one count].” Id. ¶ 36.	4
{14} We conclude that the reasoning from Gutierrez and Catt applies to	5
Defendant’s judgment and sentence that is the subject of this appeal. Even though	6
the severed counts pertaining to N.G. were pending in district court when Defendant	7
filed the instant appeal, Defendant had been convicted and sentenced on ten felony	8
counts pertaining to V.M. and immediately remanded to begin serving his term of	9
incarceration for these convictions. As with Gutierrez, “the criminal trial process	10
was complete, and the judgment and sentence filed was a final order as to [the	11
charges pertaining to V.M.].” See 2011-NMCA-088, ¶ 10. Likewise, the same	12
“immediate and definite consequences—both direct and collateral”—at play in Catt	13
are equally applicable to the judgment at issue in this appeal. See 2019-NMCA-013,	14
¶ 36.	15
{15} The distinguishing feature between this case and Gutierrez and Catt—that the	16
pending counts here were the result of a formal severance order while the pending	17
counts in Gutierrez and Catt were the result of mistrials—does not affect the	18
applicability of these decisions. Indeed, because the district court formally severed	19
the charges pertaining to N.G., two separate trials were explicitly contemplated, with	20

11
two separate judgments being likely.3 See generally Rule 5-203(C). Under such	1
circumstances, where charges have been formally severed, numerous courts have	2
concluded that the imposition of a judgment and sentence on one set of severed	3
charges is a final, appealable order, notwithstanding that the other set of severed	4
charges remains pending. See, e.g., United States v. Powell, 24 F.3d 28, 30-32 (9th	5
Cir. 1994) (explaining that the federal equivalent to Rule 5-203(C) “contemplates	6
the need for two separate trials when severance occurs[, and a]ccordingly, each	7
conviction on severed counts should be separately appealable upon the imposition	8
of sentence”; and concluding that “[w]hen sentence was imposed on the severed	9
counts, [the defendant] was entitled to appeal because there was nothing left to be	10
done but to enforce the sentence[, and t]he fact that he had not yet been tried on the	11
remaining count did not preclude him from appealing the convictions after the first	12
trial”); State v. Smith, 785 P.2d 1081 (Or. Ct. App. 1990) (concluding that “when	13
3Defendant requests this Court to provide guidance to the district courts and
to direct them to avoid the approach to severance taken here—in which the district
court severed charges under the same case number and proceeded with sentencing
following trial on the first set of charges, rather than either assigning a new case
number to the severed counts or waiting until all counts were resolved to issue a
judgment and sentence. Defendant’s brief does not discuss possible countervailing
policy concerns—such as the inability of a convicted defendant to earn good time
credit were the district court to postpone imposition of a judgment and sentence. See
generally State v. Swayne, 2025-NMSC-047, ¶ 12, 580 P.3d 192. And the State did
not respond to Defendant’s request for guidance. In the absence of full briefing, we
decline to opine on this issue. See State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d
1031 (providing that appellate courts are not obligated to review unclear or
undeveloped arguments).

12
. . . charges [are] severed, they bec[o]me separate cases, so . . . the first trial resulted	1
in a final judgment on the offenses that had been tried and left jurisdiction over the	2
remaining charges in the [trial] court”); State v. Tomlinson, 938 N.W.2d 279, 284-	3
85 (Minn. Ct. App. 2019) (observing that a final judgment and sentence resolving	4
only one count was appealable despite not resolving severed charges that remained	5
pending before the trial court); People v. Barajas, 2021 COA 98, ¶¶ 14-15, 497 P.3d	6
1078 (discussing the difference between a bifurcated trial and severed charges, and	7
providing that severed charges “proceed on separate tracks and, in the event of a	8
conviction, are subject to independent appeals”); see also, e.g., United States v.	9
Abrams, 137 F.3d 704, 706-07 (2d Cir. 1998) (concluding that a judgment and	10
sentence was a final, appealable order because “[a]lthough the litigation as framed	11
in the indictment may not yet have run its course, the counts of conviction have been	12
resolved and the sentence is ready for execution[, and] . . . [t]he unresolved counts	13
have in effect been severed, and will be resolved another time in a separate	14
judgment” (emphasis added)), cited approvingly in Catt, 2019-NMCA-013, ¶ 36 n.7.	15
{16} In sum, we apply Gutierrez and Catt and conclude that Defendant’s judgment	16
and sentence on the counts pertaining to V.M. was a final, appealable order,	17
notwithstanding the fact that the severed counts pertaining to N.G. remained pending	18
at the time Defendant appealed.	19

13
II. Ineffective Assistance of Counsel	1
{17} We turn now to Defendant’s contention that he received ineffective assistance	2
of counsel. Specifically, Defendant argues that his trial counsel was “openly and	3
flagrantly” incompetent by advancing legal arguments inconsistent with the law	4
controlling CSPM of a child under thirteen, such that reversal is mandated without	5
the usual showing of prejudice. In so arguing, Defendant contends his ineffective	6
assistance of counsel claim is not governed by the framework set forth in Strickland,	7
466 U.S. at 687-96, which typically controls such claims, but instead is governed by	8
our Supreme Court’s decision in Grogan, 2007-NMSC-039, ¶¶ 9-19, which	9
recognized a limited exception to the Strickland standard. Our review of this issue	10
is de novo. See State v. Montoya, 2015-NMSC-010, ¶ 57, 345 P.3d 1056 (“Claims	11
of ineffective assistance of counsel are reviewed de novo.”). For the reasons that	12
follow, we reject Defendant’s premise that his ineffective assistance claim is not	13
governed by Strickland and, in light of this, conclude reversal is not warranted.	14
A. The Law Governing Ineffective Assistance of Counsel Claims	15
{18} “In all criminal prosecutions, the accused has the right to the effective	16
assistance of counsel.” Kerr v. Parsons, 2016-NMSC-028, ¶ 2, 378 P.3d 1. This right	17
is guaranteed by the Sixth Amendment to the United States Constitution and Article	18
II, Section 14 of the New Mexico Constitution. The United States Supreme Court in	19
Strickland set out a two-prong test to govern claims that “counsel’s assistance was	20

14
so defective as to require reversal of a conviction.” 466 U.S. at 687. To make out a	1
claim of ineffective assistance of counsel under Strickland, a criminal defendant	2
must establish that: (1) “counsel’s representation fell below an objective standard of	3
reasonableness,” id. at 688; and (2) “there is a reasonable probability that, but for	4
counsel’s unprofessional errors, the result of the proceeding would have been	5
different,” id. at 694. In adopting this two-prong test, the Supreme Court emphasized	6
the purpose of “the constitutional requirement of effective assistance”—“to ensure	7
a fair trial—as the guide.” Id. at 686. Thus, the Court reasoned, “The benchmark for	8
judging any claim of ineffectiveness must be whether counsel’s conduct so	9
undermined the proper functioning of the adversarial process that the trial cannot be	10
relied on as having produced a just result.” Id. “Moreover, because we presume that	11
the lawyer is competent to provide the guiding hand that the defendant needs, the	12
burden rests on the accused to demonstrate a constitutional violation.” United States	13
v. Cronic, 466 U.S. 648, 658 (1984) (citation omitted); see Lukens v. Franco, 2019-	14
NMSC-002, ¶ 17, 433 P.3d 288 (“It is the defendant’s burden to show both	15
incompetence and prejudice.”); see also Strickland, 466 U.S. at 689 (“[T]he	16
defendant must overcome the presumption that, under the circumstances, the	17
challenged action might be considered sound trial strategy.” (internal quotation	18
marks and citation omitted)). “Without proof of both deficient performance and	19
prejudice to the defense,” the Supreme Court concluded, “it could not be said that	20

15
the . . . conviction ‘resulted from a breakdown in the adversary process that rendered	1
the result of the proceeding unreliable,’ and the . . . conviction should stand.” Bell v.	2
Cone, 535 U.S. 685, 695 (2002) (quoting Strickland, 466 U.S. at 687)).	3
{19} There are, however, narrow exceptions to the two-prong Strickland test that	4
have been recognized by the United States Supreme Court and our Supreme Court.	5
See Florida v. Nixon, 543 U.S. 175, 190 (2004) (citing, among other authorities,	6
Cronic); Grogan, 2007-NMSC-039, ¶¶ 10-13 (same). In Cronic, which was issued	7
the same day as Strickland, the United States Supreme Court explained, “There are	8
. . . circumstances that are so likely to prejudice the accused that the cost of litigating	9
their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658. The Cronic	10
Court recognized three such circumstances: (1) “the complete denial of counsel . . .	11
at a critical stage of [the] trial,” id. at 659; (2) where “counsel entirely fails to subject	12
the prosecution’s case to meaningful adversarial testing,” id.; and (3) “where counsel	13
is called upon to render assistance under circumstances where [even] competent	14
counsel very likely could not,” Bell, 535 U.S. at 696 (citing Cronic, 466 U.S. at 659-	15
62).4 See also Grogan, 2007-NMSC-039, ¶¶ 12-13 (setting out the exceptions to	16
Strickland recognized in Cronic). “Apart from circumstances of that magnitude,	17
4A “more limited[] presumption of prejudice” was identified by the Supreme
Court “if the defendant demonstrates that counsel actively represented conflicting
interests and that an actual conflict of interest adversely affected his lawyer’s
performance.” Strickland, 466 U.S. at 692 (internal quotation marks and citation
omitted); see Cronic, 466 U.S. at 662 n.31.

16
however, there is generally no basis for finding a Sixth Amendment violation unless	1
the accused can show how specific errors of counsel undermined the reliability of	2
the finding of guilt.” Cronic, 466 U.S. at 659 n.26. Our Supreme Court, relying on	3
Cronic as well as United States Supreme Court precedent involving conflicted	4
counsel, recognized an additional exception to the Strickland standard—namely, that	5
“when a trial court witnesses gross or obvious incompetence,” the defendant is	6
relieved of showing prejudice “because it is presumed.” Grogan, 2007-NMSC-039,	7
¶ 15. It is Grogan’s exception to the Strickland standard on which Defendant rests	8
his ineffective assistance of counsel claim.	9
B. Defendant’s Ineffective Assistance of Counsel Claim Is Governed by	10
Strickland and It Fails for Lack of Any Argument Under That Standard	11
{20} In this case, Defendant contends that his trial counsel “exhibited egregious	12
ineffectiveness,” as contemplated in Grogan, by advancing legal arguments	13
inconsistent with the law controlling CSPM of a child under thirteen. Defendant’s	14
ineffective assistance claim is based primarily on his trial counsel’s performance at	15
the final pretrial hearing,5 during which, Defendant argues, it became apparent that	16
5 Defendant also briefly asserts that there were two other examples of
“egregious ineffectiveness” that arose at trial: (1) it came to light that defense
counsel had not reviewed the video of Defendant’s interview with law enforcement,
and (2) defense counsel appeared to be falling asleep at two points during the trial.
As for the first claim regarding defense counsel’s failure to examine the
interview, Defendant does not explain why trial counsel’s performance in this regard
should be evaluated under the Grogan standard, or provide any legal authority to
support this approach. See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d

17
his attorney was unaware of the applicable law for CSPM of a child under thirteen.	1
Despite the fact that this offense imposes strict liability, defense counsel explained	2
that he intended to argue at trial that V.M. initiated a sexual relationship with	3
Defendant, and counsel sought a jury instruction on mistake of fact as to V.M.’s age.	4
But see Perez v. State, 1990-NMSC-115, ¶ 11, 111 N.M. 160, 803 P.2d 249	5
1129 (providing that an appellate court “will not consider an issue if no authority is
cited in support of the issue and that, given no cited authority, we assume no such
authority exists”); Guerra, 2012-NMSC-014, ¶ 21. We, nevertheless, observe that
ineffective assistance of counsel claims based on a defense attorney’s failure to
examine the state’s evidence are of the type typically subject to the Strickland
standard. See Bell, 535 U.S. at 697-98 (rejecting the petitioner’s argument that his
ineffective assistance of counsel claim was not governed by Strickland based on an
observation that the petitioner’s claim was “plainly of the same ilk as other specific
attorney errors” that are “subject to Strickland’s performance and prejudice
components”); see also, e.g., State v. Miera, 2018-NMCA-020, ¶¶ 29-36, 41-44, 413
P.3d 491 (applying the Strickland standard where the defense counsel “never took
steps to obtain a copy” of an evaluation the state intended to use at trial, “and did not
even review it until moments before” the defendant testified, and the defense counsel
failed, prior to trial, to investigate facts potentially suggesting that a victim’s
allegations were false); State v. Martinez, 2007-NMCA-160, ¶ 23, 143 N.M. 96, 173
P.3d 18 (rejecting, under the Strickland standard, the defendant’s claim of
ineffectiveness based on, inter alia, “counsel’s failure to review” the victim’s
recorded safehouse interview because it “does not seem to have been prejudicial”).
As for the second claim regarding defense counsel falling asleep at trial, we
observe there is myriad case law on this topic and the circumstances under which
this could warrant a presumption of prejudice. See 3 Wayne R. LaFave, Criminal
Procedure § 11.10(d), n.315 (4th ed. 2025) (collecting cases on the “sleeping
counsel situation” and setting out the general rule that prejudice will not be presumed
unless counsel sleeps through a substantial portion of trial). Defendant fails to cite
or discuss this case law or otherwise develop an argument why trial counsel’s
performance in this regard should be evaluated under the Grogan standard; we
therefore give it no further consideration. See Vigil-Giron, 2014-NMCA-069, ¶ 60;
Guerra, 2012-NMSC-014, ¶ 21.

18
(providing that criminal sexual penetration of a child under the age of thirteen is a	1
strict liability crime); UJI 14-957 NMRA comm. cmt. (“Mistake of the defendant as	2
to the age of the child is not a defense [to CSPM of a child under thirteen].”).	3
Defendant’s trial counsel also sought to have evidence of V.M.’s prior sexual	4
experiences admitted to prove that she had an “attraction towards men’s penises.”	5
But see State v. Johnson, 1997-NMSC-036, ¶¶ 11-12, 34, 40, 123 N.M. 640, 944	6
P.2d 869 (providing that in sexual assault cases, “evidence offered [of a victim’s	7
sexual proclivities] should be relevant to a defense theory other than a theory based	8
on propensity,” which “the rape shield law and the consistent rule of evidence were	9
designed to restrict”). Even if we accept, as Defendant argues, that none of his trial	10
counsel’s theories provide a defense to CSPM of a child under thirteen,6 we are not	11
convinced that this is the type of ineffective assistance claim that is exempted by	12
Grogan from the typical Strickland analysis.	13
6We observe that of the eighteen charges pertaining to V.M., several were not
strict liability crimes. Four—two counts of CSCM of a child between the ages of
thirteen and eighteen, and two counts of CSPM of a child between the ages of
thirteen and eighteen—required the jury to find that Defendant forced or coerced
V.M. to engage in sexual acts. See § 30-9-13(D)(1) (providing, in relevant part, that
CSCM in the fourth degree must be “perpetrated with force or coercion”); § 30-9-
11(E)(1) (providing that when a victim is between the age of thirteen and eighteen,
CSPM in the second degree requires “the use of force or coercion”). Trial counsel’s
arguments about consent and V.M.’s alleged role in initiating a sexual relationship
with Defendant sought to cast doubt on these elements of these crimes—with the
jury ultimately acquitting Defendant on three of these four offenses. Given this, we
cannot say defense counsel’s arguments were not sound trial strategy, at least as to
the non-strict-liability charges. See Strickland, 466 U.S. at 689.

19
1. Exceptions to the Strickland Framework Are Narrowly Construed	1
{21} Generally speaking, exceptions to the Strickland framework have been	2
narrowly construed by both the United States Supreme Court and New Mexico	3
appellate courts. See generally 3 Wayne R. LaFave, Criminal Procedure § 11.7(d)	4
(4th ed. 2025) (“The Supreme Court has consistently adhered to the Cronic position	5
that an ineffective-assistance claim ordinarily requires a case-specific showing of	6
likely prejudicial impact, with presumed prejudice reserved for exceptional	7
circumstances.”); 3 Wayne R. LaFave, Criminal Procedure § 11.10(a) (4th ed. 2025)	8
(explaining that “Strickland must be read in conjunction with Cronic, which	9
recognized a small window for finding per se ineffectiveness,” but that “in the	10
absence of counsel’s failure to participate in the proceedings, a claim of	11
incompetency based on performance . . . will be judged by the Strickland	12
standards”). As this Court explained, United States Supreme Court precedent “does	13
not suggest that a presumption of prejudice should be common. . . . A presumption	14
of ineffectiveness . . . is justified in a very limited class of cases[, presenting	15
egregious circumstances].” State v. Brazeal, 1990-NMCA-010, ¶ 18, 109 N.M. 752,	16
790 P.2d 1033 (collecting cases). Similarly, the United States Supreme Court	17
explained, “Cronic recognized a narrow exception to Strickland’s holding that a	18
defendant who asserts ineffective assistance of counsel must demonstrate not only	19
that [their] attorney’s performance was deficient, but also that the deficiency	20

20
prejudiced the defense.” Nixon, 543 U.S. at 190. The Supreme Court used the	1
circumstances of Cronic itself, which “reversed a [c]ourt of [a]ppeals ruling that	2
ranked as prejudicially inadequate the performance of an inexperienced,	3
underprepared attorney in a complex mail fraud trial,” to illustrate “just how	4
infrequently the surrounding circumstances will justify a presumption of	5
ineffectiveness.” Nixon, 543 U.S. at 190 (alteration, internal quotation marks, and	6
citation omitted).	7
{22} Furthermore, both the United States Supreme Court and our Supreme Court	8
have rejected defendants’ attempts to extend the reach of the circumstances in which	9
prejudice is presumed. In Bell, the United States Supreme Court addressed a	10
defendant’s argument that his ineffective assistance of counsel claim fit within the	11
second Cronic exception where counsel called no witnesses and gave no closing	12
argument at the sentencing phase of a death penalty trial. Bell, 535 U.S. at 691-92,	13
696-97. In rejecting this argument, the Supreme Court explained,	14
When we spoke in Cronic of the possibility of presuming prejudice	15
based on an attorney’s failure to test the prosecutor’s case, we indicated	16
that the attorney’s failure must be complete. We said “if counsel	17
entirely fails to subject the prosecution’s case to meaningful adversarial	18
testing.” Here, respondent’s argument is not that his counsel failed to	19
oppose the prosecution throughout the sentencing proceeding as a	20
whole, but that his counsel failed to do so at specific points.	21
Bell, 535 U.S. at 696-97 (quoting Cronic, 466 U.S. at 659). Similarly, in Lukens, our	22
Supreme Court rejected a defendant’s argument that prejudice should be presumed	23

21
where appellate counsel was ineffective in their briefing on direct appeal, explaining	1
that a total failure in the adversarial process was required for such a presumption.	2
[T]he determinative issue is whether the appellate court failed to	3
conduct a merits review or, in other words, whether counsel’s	4
constitutional error caused a total failure in the relevant proceeding. . . .	5
Because [a]ppellate [c]ounsel’s failures [did not deny] a merits review,	6
those failures do not offer a basis for a presumption of prejudice on a	7
subsequent [ineffective assistance of appellate counsel] claim.	8
Accordingly, under the facts presented here, we conclude that [the	9
p]etitioner must prove how [a]ppellate [c]ounsel’s deficient	10
performance caused actual prejudice.	11
Lukens, 2019-NMSC-002, ¶ 28 (emphasis added) (alteration, omission, internal	12
quotation marks, and citations omitted).	13
{23} As for Grogan, on which Defendant’s claim of ineffectiveness rests, the	14
circumstances of that case are, to say the least, unique. In Grogan, defense counsel	15
“fail[ed] to secure and review his own expert’s opinion before permitting the expert	16
to write the report.” 2007-NMSC-039, ¶¶ 3, 5, 17. The state then obtained and	17
introduced the expert’s report at trial and called the defense expert to testify for the	18
prosecution. Id. ¶ 3. After the defendant was convicted on several counts, the trial	19
court, on its own motion, granted the defendant a new trial on the basis of ineffective	20
assistance of counsel. Id. ¶ 5. In affirming the district court, our Supreme Court	21
explained the impact of defense counsel’s incompetence:	22
The report, and perhaps more importantly the expert’s testimony at	23
trial, were undoubtedly the most damaging pieces of evidence	24
presented. The report quantified the amount of methamphetamine in	25
[the d]efendant’s urine, which neither of the [s]tate’s reports had done,	26

22
and the defense expert testified that because the report showed that such	1
large amounts of the drug had been ingested very recently, [the	2
d]efendant would have still been under the effects of the drug at the	3
time of the accident.	4
Id. ¶ 17 (emphasis added). The Court concluded “this action constituted such	5
obvious attorney incompetence, it cannot be rebutted,” id., and relieved the	6
defendant of showing prejudice under Strickland, see id. ¶¶ 11-15.7 The Court	7
recognized the peculiarity of the circumstances in Grogan—where the defendant’s	8
own attorney was responsible for the most damaging pieces of evidence being	9
presented against his client—noting the “case is sui generis.” Id. ¶ 16; see Sui	10
Generis, Black’s Law Dictionary (12th ed. 2024) (“Of its own kind or class; unique	11
or peculiar.”).	12
2. We Decline to Extend Grogan to the Circumstances of This Case	13
{24} We turn now to Defendant’s contention that the Grogan standard applies here.	14
Defendant has not advanced a persuasive argument why Grogan, and not the typical	15
Strickland standard, should apply to his ineffective assistance of counsel claim.	16
Defendant cites no case law applying the Grogan standard to circumstances similar	17
to those presented here. See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d	18
1129 (providing that an appellate court “will not consider an issue if no authority is	19
cited in support of the issue and that, given no cited authority, we assume no such	20
7 Notwithstanding this, our Supreme Court found “the record provides a
sufficient showing of prejudice.” Grogan, 2007-NMSC-039, ¶ 18.

23
authority exists”). And, based on our own research, we have found no such cases.	1
See Lukens, 2019-NMSC-002, ¶ 24 (noting, in rejecting the petitioner’s argument	2
that his ineffective assistance claim should not be governed by Strickland, that “[n]o	3
New Mexico court has presumed prejudice based on the argument advanced by [the	4
p]etitioner”).	5
{25} Instead, “[t]he aspects of counsel’s performance challenged by	6
[Defendant]”—presenting defense theories that are inconsistent with existing law on	7
some of Defendant’s charges—“are plainly of the same ilk as other specific attorney	8
errors” that are “subject to Strickland’s performance and prejudice components.” See	9
Bell, 535 U.S. at 697-98. Put simply, a defense attorney’s alleged incompetence	10
based on a misapprehension of law has been evaluated by New Mexico appellate	11
courts using the Strickland framework. See, e.g., Garcia v. State, 2010-NMSC-023,	12
¶¶ 30, 36-40, 148 N.M. 414, 237 P.3d 716 (evaluating, under Strickland, counsel’s	13
unawareness of the law pertaining to “negligent and intentional child abuse”	14
offenses, which resulted in “manifestly false” legal advice to the defendant); State	15
v. Miera, 2018-NMCA-020, ¶¶ 29-33, 41-44, 413 P.3d 491 (applying the Strickland	16
framework to a claim of ineffective assistance where defense counsel “did no	17
research” to “apprise himself of the law governing” the state’s use of a psychological	18
evaluation to impeach the defendant); State v. Morgan, 2016-NMCA-089, ¶¶ 18-27,	19
382 P.3d 981 (applying the Strickland framework to the defendant’s claim that his	20

24
attorney’s lack of awareness of a delay in the implementation of a revised sex-	1
offender registration framework deprived him of an opportunity to avoid the	2
registration requirement); State v. Martinez, 2007-NMCA-160, ¶ 22, 143 N.M. 96,	3
173 P.3d 18 (rejecting the defendant’s ineffective assistance claim, under the	4
Strickland standard, because, inter alia, the defendant did not “explain how his	5
counsel’s alleged misunderstanding of the charges prejudiced the defense”).	6
{26} In sum, we see no reason to depart from the Strickland two-prong test in this	7
case. This is not a case where defense counsel’s incompetence resulted in the	8
introduction of the most damning evidence of Defendant’s guilt, or other such	9
similarly “egregious” incompetence. See Grogan, 2007-NMSC-039, ¶¶ 15-17. Nor	10
is this a case where defense counsel’s alleged incompetence caused a “total failure”	11
in the relevant proceeding. See Lukens, 2019-NMSC-002, ¶ 28; see also Bell, 535	12
U.S. at 697 (providing that “the attorney’s failure must be complete”). We therefore	13
conclude that Defendant’s trial attorney’s pursuit of a defense theory that was based	14
on a misapprehension of the law relevant to a portion of the charges faced by	15
Defendant is not the type of circumstance that is “so likely to prejudice the accused	16
that the cost of litigating [its] effect in a particular case is unjustified.” See Cronic,	17
466 U.S. at 658. For these reasons, we hold Defendant’s ineffective assistance of	18
counsel claim is governed by the Strickland standard. Because Defendant has not	19
advanced an argument under this standard, he has not established reversible error	20

25
from ineffective assistance of counsel.8 See Brazeal, 1990-NMCA-010, ¶ 22 (“There	1
being no presumption of prejudice in this case, [the] defendant must establish his	2
claim of prejudicial ineffective assistance of counsel in light of the actual conduct of	3
his trial.”).	4
III. Double Jeopardy	5
{27} Defendant argues that three of his CSCM convictions—Counts 1, 3, and 5—	6
must be vacated on double jeopardy grounds because, according to him, the conduct	7
underlying these convictions is the same course of conduct for which Defendant was	8
convicted of two counts of CSPM—Counts 6 and 7. As relevant to this claim of	9
error, Defendant committed the following offenses against V.M. when she was	10
twelve: CSCM for touching V.M.’s unclothed breast (Count 1), CSCM for touching	11
V.M.’s unclothed vagina (Count 3), CSCM for causing V.M. to touch Defendant’s	12
penis (Count 5), CSPM for performing cunnilingus on V.M. (Count 6), and CSPM	13
for causing V.M. to perform fellatio on Defendant (Count 7). Of these, Defendant	14
8We express no opinion as to whether Defendant could successfully advance
an ineffective assistance of counsel claim under the Strickland standard and leave
the resolution of such matter for a habeas or post-conviction proceeding, if any. Cf.
State v. Bernal, 2006-NMSC-050, ¶ 36, 140 N.M. 644, 146 P.3d 289 (explaining
that the defendant’s failure to make out a prima facie case of ineffective assistance
of counsel on direct appeal did “not preclude [the d]efendant from pursuing habeas
corpus proceedings on this issue should he be able to garner evidence to support his
claims”).

26
argues that only the CSPM convictions (Counts 6 and 7) can survive double	1
jeopardy. For the reasons that follow, we disagree.	2
A. The Law Governing Double Description Double Jeopardy Challenges	3
{28} The double jeopardy clause “protects defendants from receiving multiple	4
punishments for the same offense.” State v. Ramirez, 2018-NMSC-003, ¶ 38, 409	5
P.3d 902. See generally U.S. Const. amend. V; N.M. Const. art. II, § 15. Multiple	6
punishment problems arise in both unit of prosecution claims, “in which an	7
individual is convicted of multiple violations of the same criminal statute,” and	8
double description claims, “in which a single act results in multiple charges under	9
different criminal statutes.” State v. Bernal, 2006-NMSC-050, ¶ 7, 140 N.M. 644,	10
146 P.3d 289. “The pivotal question in multiple punishment cases is whether the	11
defendant is being punished twice for the same offense.” Swafford v. State, 1991-	12
NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223 (emphasis omitted). To answer this	13
question in a double description challenge, such as Defendant’s, we employ the two-	14
part test from Swafford, in which we examine: (1) whether the conduct is unitary,	15
and, if so, (2) whether the Legislature intended to punish the offenses separately. Id.	16
¶¶ 9, 25. “Only if the first part of the test is answered in the affirmative, and the	17
second in the negative, will the double jeopardy clause prohibit multiple punishment	18
in the same trial.” Id. ¶ 25. “A double jeopardy challenge is a constitutional question	19

27
of law which we review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d	1
747.	2
{29} Because we conclude that the conduct underlying Defendant’s convictions	3
was not unitary, our analysis of the first prong is dispositive.9 Our “unitary conduct	4
analysis turns on whether the acts underlying the two offenses are separated by	5
‘sufficient indicia of distinctness.’”10 State v. Lorenzo, 2024-NMSC-003, ¶ 6, 545	6
P.3d 1156 (quoting Swafford, 1991-NMSC-043, ¶ 26). “The conduct question	7
depends to a large degree on the elements of the charged offenses and the facts	8
presented at trial.” Swafford, 1991-NMSC-043, ¶ 27. “The proper analytical	9
9 Even though we do not reach the second prong, we note Defendant’s
argument that this Court in State v. Mora, 2003-NMCA-072, ¶¶ 19-27, 133 N.M.
746, 69 P.3d 256, “has already determined that the [L]egislature did not intend to
punish unitary conduct as both CSPM and CSCM” is well-taken. This Court recently
confirmed the applicability of Mora to CSCM and CSPM convictions involving
unitary conduct. See State v. Guthrie, 2026-NMCA-056, ¶¶ 39-42, 589 P.3d 115,
cert. denied (S-1-SC-41379, May 5, 2026).
10Unit of prosecution challenges similarly require an analysis of “whether a
defendant’s acts are separated by sufficient ‘indicia of distinctness’ to justify
multiple punishments under the same statute.” Bernal, 2006-NMSC-050, ¶ 14
(citation omitted). Our Supreme Court has reiterated that this unit of prosecution
inquiry is substantially the same as the unitary conduct analysis in the first step of a
double description analysis. See id. ¶ 16 (“[W]e are doing a substantially similar
analysis when we conduct a unitary conduct inquiry in double description cases as
when we conduct a unit-of-prosecution inquiry. In each case, we attempt to
determine, based upon the specific facts of each case, whether a defendant’s activity
is better characterized as one unitary act, or multiple, distinct acts, consistent with
legislative intent.”); State v. Phillips, 2024-NMSC-009, ¶ 13, 548 P.3d 51 (same).
We accordingly rely on both double description and unit of prosecution cases in our
unitary conduct analysis.

28
framework is whether the facts presented at trial establish that the jury reasonably	1
could have inferred independent factual bases for the charged offenses.” State v.	2
Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (internal quotation	3
marks and citation omitted); see also Lorenzo, 2024-NMSC-003, ¶ 8 (same). As our	4
Supreme Court has explained, “our primary concern in this context is to ensure that	5
sufficient evidence exists to establish that each [offense] is distinct from the others.	6
In reviewing the facts of the case to determine if each [offense] is distinct from the	7
others, we must indulge in all presumptions in favor of the verdict.” State v.	8
McClendon, 2001-NMSC-023, ¶ 5, 130 N.M. 551, 28 P.3d 1092 (internal quotation	9
marks and citation omitted).	10
{30} “If two events are sufficiently separated by either time or space (in the sense	11
of physical distance between the places where the acts occurred), then it is a fairly	12
simple task to distinguish the acts.” Swafford, 1991-NMSC-043, ¶ 28; see also State	13
v. Neal, ___-NMSC-___, ¶ 32, ___ P.3d ___ (S-1-SC-40407, Apr. 6, 2026)	14
(recognizing that “time and space may be determinative in some cases”). “If [time	15
and space] considerations do not suffice to make the determination, ‘resort must be	16
had to the quality and nature of the acts or to the objects and results involved.’” State	17
v. Sena, 2020-NMSC-011, ¶ 46, 470 P.3d 227 (quoting Swafford, 1991-NMSC-043,	18
¶ 28); see Swafford, 1991-NMSC-043, ¶ 28 (citing Herron v. State, 1991-NMSC-	19
012, ¶ 15, 111 N.M. 357, 805 P.2d 624, for factors used to determine whether	20

29
separate and distinct criminal acts occurred); see also State v. Phillips, 2024-NMSC-	1
009, ¶ 12, 548 P.3d 51 (explaining that the Herron factors consider: “(1) temporal	2
proximity of the acts, (2) location of the victim during each act, (3) the existence of	3
intervening events, (4) the sequencing of the acts, (5) the defendant’s intent as	4
evidenced by his conduct and utterances, and (6) the number of victims” (citing	5
Herron, 1991-NMSC-012, ¶ 15)). To determine whether there is unitary conduct,	6
we must understand the state’s theory of the case at trial—looking to the charging	7
documents, jury instructions, and the facts presented at trial, as well as the state’s	8
opening statements and closing arguments if necessary. See, e.g., State v. Silvas,	9
2015-NMSC-006, ¶¶ 10, 19, 343 P.3d 616 (looking to the state’s theory of the case	10
based on the trial evidence and closing arguments to determine whether the	11
defendant’s conduct is unitary); Sena, 2020-NMSC-011, ¶ 46 (“look[ing] to the	12
elements of the charged offenses, the facts presented at trial, and the instructions	13
given to the jury” “in determining whether there are . . . sufficient indicia of	14
distinctness”).	15
B. Defendant’s Right to be Free From Double Jeopardy Was Not Violated	16
{31} With these principles in mind, we turn to Defendant’s double jeopardy	17
challenge. Defendant raises two double description claims: (1) that his CSCM	18
convictions in Counts 1 (V.M.’s breast) and 3 (V.M.’s vagina) punish the same	19
conduct underlying his CSPM conviction in Count 6 (cunnilingus); and (2) that his	20

30
CSCM conviction in Count 5 (Defendant’s penis) punishes the same conduct	1
underlying his CSPM conviction in Count 7 (fellatio).	2
{32} As relevant to this claim of error, the grand jury indictment charged Defendant	3
with committing three identical counts of CSCM in Counts 1, 3, and 5 and two	4
identical counts of CSPM in Counts 6 and 7 during a three-month charging period	5
when V.M. was twelve—“on, about, or between the 1st day of January, 2019, and	6
the 30th day of March, 2019.”11 At trial, the jury instructions differentiated the	7
charges in each count by sex act—i.e., only one type of sex act (i.e., “touched or	8
applied force to the unclothed breast of V.M.,” “touched or applied force to the	9
unclothed vagina of V.M.,” “[D]efendant caused V.M. to touch the penis of	10
[D]efendant,” “[D]efendant caused V.M. to engage in cunnilingus,” and	11
“[D]efendant caused V.M. to engage in fellatio”) was identified in each count (i.e.,	12
Counts 1, 3, 5, 6, and 7, respectively). This charging structure—in which Defendant	13
was charged, as he observes, with “one count for every type of act, no matter how	14
many times the act occurred” during the three-month charging period when V.M.	15
11 We observe that Defendant did not raise any pretrial objections to the
structure of the charges in the indictment, thereby waiving notice, due process, and
multiplicity challenges. See State v. Lente, 2019-NMSC-020, ¶¶ 16, 26, 453 P.3d
416. Furthermore, by the time of trial, the charges were differentiated by act, which
appears to have removed any such concerns. See id. ¶¶ 25-30, 36-47 (explaining,
where the defendant was charged with specific acts of sexual abuse during a given
timeframe and “[n]o specific form of sexual abuse was alleged to have occurred
more than once in any given interval,” this charging practice eliminates due process,
notice, and multiplicity concerns).

31
was twelve—was within the State’s discretion. See, e.g., State v. Altgilbers, 1989-	1
NMCA-106, ¶¶ 38-39, 42-43, 109 N.M. 453, 786 P.2d 680 (deferring to prosecutors’	2
discretion in terms of charging patterns and rejecting the defendant’s contention	3
“that the state has split one course of conduct into too many counts” because there	4
is “no reason why the choice for the prosecution must be between either one count	5
in toto or one count for each act”).	6
{33} In support of his double challenge, Defendant interprets this charging	7
structure to mean that the State chose to charge “a single course of conduct.” That	8
is, Defendant’s double jeopardy challenge rests on the premise that the ongoing	9
sexual abuse he perpetrated against V.M. for months should be evaluated as if	10
Counts 1, 3, and 6 involved “the same assaultive episode” and as if Counts 5 and 7	11
involved a second assaultive episode. Relying on Herron and other cases involving	12
such “single assaultive episodes,” Defendant then contends that the conduct is	13
unitary because V.M.’s testimony did not adequately distinguish Counts 1 and 3	14
from Count 6, nor Count 5 from Count 7.12 We reject this argument. Defendant	15
12As the State observes, a similar argument was addressed and rejected by our
Supreme Court in Lente, 2019-NMSC-020. Lente involved a habeas challenge to
multiple convictions for sexual abuse in a “resident child molester” case. Id. ¶¶ 1-3.
The Lente Court variously discussed notice, double jeopardy, and multiplicity issues
related to “carbon copy” counts in the defendant’s indictment, id. ¶¶ 14-49, and
sufficiency of the evidence, id. ¶¶ 50-84, and multiple punishment double jeopardy,
id. ¶¶ 50-52, 84, challenges, in “resident child molester” cases. The State contends
the three-part sufficiency analysis adopted by Lente for resident child molester cases
applies to multiple punishment double jeopardy challenges like Defendant’s.

32
offers no citation to the record, citation to legal authority, or reasoned argument in	1
support of his contention that because of the way the charges were structured, he	2
was only charged with (and the evidence could only support) a “single course of	3
conduct” or a “single assaultive episode”—as if the abuse only happened once—	4
even though V.M. testified to the abuse occurring repeatedly over the relevant three-	5
month charging period. And, we observe, there is authority to the contrary. See State	6
v. Guthrie, 2026-NMCA-056, ¶¶ 17-20, 589 P.3d 115 (rejecting the defendant’s	7
broad argument that CSPM convictions were based on unitary conduct because,	8
Defendant, in contrast, contends Lente has no applicability here, and his conduct
should instead be evaluated utilizing the Herron factors as if he committed a single
sexual assault. Because, as we discuss, we reject the premise that Defendant’s
ongoing abuse of V.M. should be analyzed as one assaultive episode—and we
further conclude that Defendant’s conduct was not unitary—we find it unnecessary
to resolve the reach of Lente’s sufficiency analysis or the question of whether it
might displace or supplement the Herron factors in resident child molester cases,
like this one. We thus leave the definitive resolution of this matter for another day
or for our Supreme Court to take up, should it so choose. We nonetheless find
portions of Lente instructive in our double jeopardy analysis, as this Court has done
in the past, and cite Lente accordingly. See, e.g., Guthrie, 2026-NMCA-056, ¶¶ 17-
20 (citing Lente, 2019-NMSC-020, ¶ 30, as persuasive authority for proposition that
“different acts of criminal sexual penetration and contact perpetrated against a child
on different and discrete dates constitute discrete violations of CSPM and CSCM”
(text only) (citation omitted)); State v. Bitakis, A-1-CA-41889, mem. op. ¶¶ 2-6
(N.M. Ct. App. Oct. 24, 2024) (nonprecedential) (applying Lente’s three-part
sufficiency analysis, 2019-NMSC-020, ¶¶ 67-70, to the defendant’s multiple
punishment double jeopardy challenge), cert. denied, 2024-NMCERT-012 (S-1-SC-
40680); State v. Begay, A-1-CA-40575, mem. op. ¶ 6 (N.M. Ct. App. Dec. 30, 2024)
(nonprecedential) (citing Lente, 2019-NMSC-020, ¶¶ 52-53, 63-64, 84, as
persuasive authority in rejecting the defendant’s argument that “[the v]ictim’s
testimony lack[ed] sufficient detail to determine his conduct was not unitary as a
matter of law”).

33
according to the defendant, the state treated the multiple CSPM counts “as if they	1
took place on a single occasion,” and instead looking to the trial record to determine	2
if there was evidence of multiple sexual assaults on different dates (internal	3
quotation marks omitted)), cert. denied (S-1-SC-41379, May 5, 2026); cf. State v.	4
Lente, 2019-NMSC-020, ¶¶ 28-29, 453 P.3d 416 (summarily rejecting, when	5
discussing multiplicity and unitary conduct, the defendant’s argument that sexual	6
abuse ongoing over years should be evaluated as “one assaultive episode” under	7
Herron because the case bore “no resemblance to Herron”). Defendant’s failure to	8
support his unitary conduct approach in itself provides sufficient grounds for this	9
Court to disregard it. See Vigil-Giron, 2014-NMCA-069, ¶ 60; State v. Guerra,	10
2012-NMSC-014, ¶ 21, 278 P.3d 1031 (providing that appellate courts are not	11
obligated to review unclear or undeveloped arguments); Muse v. Muse, 2009-	12
NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record for	13
facts, arguments, and rulings in order to support generalized arguments.”).	14
Nevertheless, we have reviewed the State’s theory of the case—looking to the	15
charges, the trial evidence, and the State’s arguments to the jury—and conclude it	16
supplies no support for Defendant’s position that his conduct should be evaluated as	17
a “single assaultive episode” or, more generally, that Defendant’s CSCM	18
convictions were the result of conduct unitary with his CSPM convictions.	19

34
{34} Nothing in the jury instructions, or in the State’s charging structure more	1
generally, directed the jury to consider the evidence as a single assaultive episode,	2
pointed the jury to any specific episode of abuse during the relevant three-month	3
charging period, or otherwise narrowed the jury’s consideration of the evidence. We	4
accordingly turn to the evidence presented at trial and the State’s arguments to the	5
jury to determine if the jury reasonably could have based Defendant’s convictions	6
on separate conduct. See Guthrie, 2026-NMCA-056, ¶ 19 (examining “the record to	7
see if the [s]tate introduced sufficient evidence to support the jury’s conviction for	8
[CSPM] based on sexual intercourse on a different date than the [other CSPM	9
convictions]” where the jury instruction did not identify “which of the sexual	10
assaults . . . [was] at issue”); see also State v. Gonzales, 2019-NMCA-036, ¶¶ 15-	11
21, 444 P.3d 1064 (looking to the evidence at trial and the state’s arguments to the	12
jury to resolve the unitary conduct question where the charges and the jury	13
instructions did not direct the jury to specific conduct).	14
1. Counts 1, 3, and 6 Did Not Result From Unitary Conduct	15
{35} V.M. provided the sole testimony describing the sexual abuse committed by	16
Defendant. As for Counts 1 (CSCM breasts), 3 (CSCM vagina), and 6 (CSPM	17
cunnilingus), which Defendant contends were the result of unitary conduct, V.M.	18
testified as follows. V.M. explained that Defendant touched V.M.’s breasts with his	19
hands both over and under her clothing, Defendant touched V.M.’s vagina with his	20

35
hands both over and under her clothing, and Defendant would use his mouth on	1
V.M.’s breasts and vagina. These acts, V.M. testified, happened at night when	2
everyone else was asleep and occurred on the bed in Defendant’s bedroom, on the	3
floor of Defendant’s bedroom, and in Defendant’s bathroom. V.M. testified these	4
acts occurred every time she went to Defendant’s home—which was every weekend	5
and some weekdays during the relevant three-month charging period.	6
{36} In support of his argument that the conduct underlying Counts 1 and 3 is	7
unitary with the conduct underlying Count 6, Defendant complains about the	8
specificity of V.M.’s testimony:	9
V.M.’s testimony treated these three crimes as a single, repeated act of	10
sexual abuse, not as three distinct occurrences. She testified that they	11
happened in the same locations. She did not testify about a sequence in	12
which they occurred, nor about any intervening events between the acts,	13
nor about any time when [Defendant] touched her breasts or vagina	14
without also performing oral sex. She specifically testified that all three	15
acts happened every time she was there.	16
While we do not disagree with Defendant that V.M.’s testimony was fairly generic,	17
to agree with Defendant that Counts 1, 3, and 6 were the result of unitary conduct	18
would require us to ignore critical portions of V.M.’s testimony, which we will not	19
do. See McClendon, 2001-NMSC-023, ¶ 5 (providing that, when determining	20
whether conduct is unitary, the appellate court “must indulge in all presumptions in	21
favor of the verdict” (internal quotation marks and citation omitted)); cf. Lente,	22
2019-NMSC-020, ¶ 64 (“Generic testimony (e.g., an act of intercourse ‘once a	23

36
month for three years’) outlines a series of specific, albeit undifferentiated, incidents	1
each of which amounts to a separate offense, and each of which could support a	2
separate criminal sanction.” (text only) (citation omitted)).	3
{37} For instance, we would have to ignore V.M.’s testimony that each of the acts	4
of sexual abuse charged in Counts 1, 3, and 6 happened in three locations (on the	5
bed, on the floor, and in the bathroom).13 See State v. Montoya, 2026-NMCA-022,	6
¶ 47, 584 P.3d 1123 (concluding that because “the record shows three distinct acts	7
of vaginal licking by [the d]efendant in different locations at different times during	8
the same charging period,” “[t]he jury could reasonably have convicted [the	9
d]efendant of [one count of cunnilingus] based on this third instance of cunnilingus	10
that is plainly not unitary with the [other two counts of] cunnilingus”), cert. denied,	11
2025-NMCERT-010 (S-1-SC-41106). Moreover, Defendant would have us ignore	12
V.M.’s clear testimony that these acts of sexual abuse happened repeatedly—every	13
weekend and some weekdays—during the three-month charging period. Even if we	14
13V.M. supplied detail on cross-examination about how the abuse on the floor
and in the bathroom unfolded, making it apparent that the conduct that happened in
these locations was distinct. As for the encounters on the floor, V.M. testified that
Defendant would wake her up in the middle of the night and tell her to move from
the bed to the floor. If she said no, Defendant would pull her to the floor. Defendant
would get on top of her and start touching her with his hands. If she tried to move
his hands away, he would force himself on her. At some point during the encounters,
Defendant would take off V.M.’s clothes. As for the encounters in the bathroom,
V.M. testified that sometimes they would go to the bathroom together. Other times,
V.M. testified, she would go to the bathroom by herself, Defendant would follow
her in, and lock the door.

37
disregard that this pattern of abuse occurred on some weekdays, V.M.’s testimony	1
establishes that the abuse happened every weekend from January 1, 2019, to March	2
30, 2019. That is, Defendant touched V.M.’s unclothed breast (Count 1) on	3
approximately a dozen dates, Defendant touched V.M.’s vagina (Count 3) on	4
approximately a dozen dates, and Defendant performed cunnilingus on V.M. (Count	5
6) on approximately a dozen dates. See Guthrie, 2026-NMCA-056, ¶ 18 (“If the	6
evidence supports a jury verdict based on three entirely separate sexual assaults on	7
different dates, the convictions are based on separate and distinct conduct and we	8
need not consider the Herron factors further to conclude that there is no double	9
jeopardy violation.”); State v. Vigil, 2021-NMCA-024, ¶¶ 18, 20-23, 489 P.3d 974	10
(rejecting the defendant’s double jeopardy argument that his convictions were	11
impermissibly based on a “single course of conduct” and concluding there was no	12
unitary conduct where the jury reasonably could have based each conviction on	13
conduct occurring on separate dates); cf. Lente, 2019-NMSC-020, ¶ 30 (“There can	14
be no question that our Legislature did indeed intend for different acts of criminal	15
sexual penetration and contact perpetrated against a child on different and discrete	16
dates over a course of years to constitute discrete violations of the statutes here	17
implicated.” (citing, among other authorities, Herron, 1991-NMSC-012, ¶ 15	18
(“[T]he greater the interval between acts the greater the likelihood of separate	19
offenses.”)).	20

38
{38} Lastly, as to Counts 1, 3, and 6, the State in opening statements and closing	1
arguments did not refer to these acts of sexual abuse as a single course of conduct,	2
did not direct the jury to the same assaultive episode to support these counts, and did	3
not otherwise narrow the jury’s consideration of the evidence. Stated differently, this	4
is not a case where the State narrowed its legal theory at trial by relying on unitary	5
conduct to obtain multiple convictions against Defendant such that double jeopardy	6
was violated. See Lorenzo, 2024-NMSC-003, ¶ 11 (explaining that where the state’s	7
legal theory at trial, as set out in closing arguments, relies on unitary conduct, the	8
state is bound by that theory on appeal when faced with a double jeopardy	9
challenge); Gonzales, 2019-NMCA-036, ¶ 21 (explaining that “our Supreme Court	10
has indicated that, even where there was ample evidence of non-unitary conduct, we	11
should presume unitary conduct where the [s]tate’s theory at trial relied on the same	12
conduct to prove the two offenses at issue”); see also State v. Contreras, 2007-	13
NMCA-045, ¶ 23, 141 N.M. 434, 156 P.3d 725 (declining to presume unitary	14
conduct where the state had not limited its legal theory to a single factual basis for	15
multiple charges, but had instead “provided the jury with sufficiently distinct factual	16
bases upon which it could base [the d]efendant’s conviction”)).	17
{39} In light of V.M.’s testimony about the frequency of the abuse and the distinct	18
locations in which the abuse occurred—and given the State’s trial theory did not	19
narrow the jury’s evaluation of this testimony—we conclude the jury reasonably	20

39
could have found independent factual bases for Counts 1, 3, and 6. See generally	1
Herron, 1991-NMSC-012, ¶ 15 (“[T]he greater the interval between acts the greater	2
the likelihood of separate offenses.”); Neal, ___-NMSC-___, ¶ 32 (affirming that	3
none of the Herron factors alone is “a panacea,” but “recognizing that time and space	4
may be determinative in some cases” (internal quotation marks and citation	5
omitted)); Phillips, 2024-NMSC-009, ¶ 13 (same). In sum, Defendant was charged	6
and convicted of only one count of each sex act, even though the record supports	7
that these sex acts occurred on multiple dates and in multiple locations during the	8
charging period. Under these circumstances, there is no unitary conduct problem.	9
See, e.g., Guthrie, 2026-NMCA-056, ¶ 18; Montoya, 2026-NMCA-022, ¶¶ 46-47;	10
see also, e.g., State v. Dombos, 2008-NMCA-035, ¶ 20, 143 N.M. 668, 180 P.3d 675	11
(concluding that the conduct underlying two identical counts of attempted fellatio	12
was not unitary where the victim testified, inter alia, that, during the two-and-a-half	13
week charging period, “[the d]efendant attempted to force her to perform fellatio ‘at	14
least four times’”).	15
2. Counts 5 and 7 Did Not Result From Unitary Conduct	16
{40} As for Counts 5 (CSCM Defendant’s penis) and 7 (CSPM fellatio), which	17
Defendant separately contends were the result of unitary conduct, V.M. testified as	18
follows. V.M. stated that Defendant would move her hand onto his penis and that	19
this happened mostly on the floor of Defendant’s bedroom at night. This abuse, V.M.	20

40
testified, happened “mostly all the time, like the same as the rest”—meaning every	1
weekend and some weekdays during the relevant three-month charging period. V.M.	2
also testified that Defendant would put his penis in her mouth. V.M. said this abuse	3
happened on the floor of Defendant’s bedroom at night, but it did not happen every	4
weekend.	5
{41} As with Counts 1, 3, and 6, the State in opening statements and closing	6
arguments did not refer to the acts of sexual abuse in Counts 5 and 7 as a single	7
course of conduct, did not direct the jury to the same assaultive episode to support	8
these counts, and did not otherwise narrow the jury’s consideration of the evidence.	9
See supra Part III.B.1, ¶ 38. And, as with Counts 1, 3, and 6, given the State’s	10
arguments to the jury and V.M.’s testimony about the frequency of the abuse, we	11
conclude the jury reasonably could have found independent factual bases for Counts	12
5 and 7. See supra Part III.B.1, ¶ 39. Although Defendant again complains about the	13
lack of detail in V.M.’s testimony, he acknowledges that V.M. differentiated the sex	14
acts in terms of frequency. Indeed, V.M.’s testimony that the conduct charged in	15
Count 5 occurred more frequently than the conduct charged in Count 7 provides an	16
additional basis to determine that the conduct was not unitary. See generally Sena,	17
2020-NMSC-011, ¶ 46 (“Sufficient indicia of distinctness are present when the	18
illegal acts are sufficiently separated by either time or space.” (internal quotation	19
marks and citation omitted)).	20

41
{42} Having determined that Defendant’s convictions for Counts 1, 3, and 6, as	1
well as his convictions for Counts 5 and 7, were not the result of unitary conduct,	2
we conclude that Defendant’s right to be free from double jeopardy was not violated.	3
See Swick, 2012-NMSC-018, ¶ 11 (concluding that if the conduct underlying the	4
convictions is not unitary, “there is no double jeopardy violation”).	5
CONCLUSION	6
{43} For the foregoing reasons, we affirm.	7
{44} IT IS SO ORDERED.	8
_____________________________	9
JENNIFER L. ATTREP, Judge	10
WE CONCUR:	11
__________________________	12
MEGAN P. DUFFY, Judge	13
__________________________	14
JANE B. YOHALEM, Judge	15