A-1-CA-37455 | Omnilex

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in Odyssey.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

. . Court of Appeals of New Mexico
Opinion Number: Filed 7/7/2021 12:45 PM

Filing Date: July 7, 2021 hh Fat

Mark Reynolds
No. A-1-CA-37455

STATE OF NEW MEXICO,
Plaintiff-Appellee,

CLIVE DALTON PHILLIPS,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Lauren J. Wolongevicz, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

| DUFFY, Judge.

3 Defendant Clive Dalton Phillips was convicted of seven crimes stemming

from his attack on Alexzandria Buhl (Allie) and Adrian Carriaga, during which

Defendant _beat_and shot both victims and_ killed Adrian. On appeal, Defendant

advances three double jeopardy challenges, arguing that he committed a single,

sustained attack and should be convicted of and sentenced for only two offenses: one

count of voluntary manslaughter for killing Adrian and one count of aggravated

battery against a household member for his attack on Allie. We conclude that one of

Defendant’s convictions for aggravated battery and Defendant’s misdemeanor

conviction for aggravated battery against a household member violate double

jeopardy principles and must be reversed, but otherwise affirm.

BACKGROUND

23 Defendant and Allie had dated on and off since high school and began living

together in 2010, the year before Allie graduated. In the summer of 2013, they shared

a four-bedroom home with their close friends, Sean Madrid and Adrian. Allie gave

birth to Defendant’s daughter in May 2013. Not long afterward, however, she broke

off the relationship when she discovered that Defendant had been cheating on her.

They both continued to live in the home with Sean and Adrian, but Allie moved into

a separate room with the baby (hereinafter, Allie’s room).

33 On the night of August 31, 2013, Defendant was at a friend’s house and

planned to stay the ni

backyard. Defendant’s and Allie’s daughter was with Allie’s parents. Sean testified

that both Allie and Adrian turned in before he did, and when he went inside later that

night, he heard moaning sounds coming from Allie’s room. Sean deduced that Allie

and Adrian were having sex and called Defendant at 3:49 a.m. to tell him.

4 | Defendant drove home, grabbed a baseball bat, and walked into Allie’s room.

He turned on the light and found Allie and Adrian naked in bed together. Defendant

began hitting Adrian with the bat, striking him numerous times in the head and other

parts of the body. Defendant then turned around and began beating Allie with the

bat. During the attack, both Defendant and Allie yelled to Sean to call the police.

Allie testified that Defendant “lost interest in the bat,” he dropped the bat and left

the room, at which point she closed and locked the door.

5} Defendant went to his room and grabbed a handgun. He returned to Allie’s

door, shot at the handle three times, and kicked the door open. Defendant entered

the room and shot Adrian twice in the chest. Allie observed that Defendant’s gun

was empty; he left the room again. Allie called 911. At that point, Adrian was still

alive and speaking.

{6} | While Allie was on the phone with 911, Defendant returned with a rifle. He

placed the barrel under Adrian’s chin and asked, “Are you ready?” before pulling

the trigger, killing him. Defendant then turned the rifle on Allie and shot her in the

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for about two minutes. He identified himself and described what had happened,

saying, “I just killed my best friend.” After Defendant ended the call with the 911

operator, he began punching and choking Allie until she blacked out. The entire

event lasted about eight minutes and ended when police arrived. Defendant

immediately identified himself as the shooter and was taken into custody, where he

gave an hour-long interview describing the events in detail.

{3 The State charged Defendant with first-degree murder and the lesser included

offenses of second-degree murder, contrary to NMSA 1978, Section 30-2-1 (1994),

and manslaughter, contrary to NMSA 1978, Section 30-2-3 (1994) (Count 1); two

counts of aggravated battery (deadly weapon), contrary to NMSA 1978, Section 30-

3-5 (1969) (Counts 2 and 3); and four counts of aggravated battery against a

household member, contrary to NMSA 1978, Section 30-3-16 (2008, amended

2018) (Counts 4-7). After a week-long trial, a jury found Defendant guilty on all six

of the various aggravated battery charges but could not reach a unanimous verdict

on Count 1—the homicide charge related to Adrian’s death. Following an appeal to

determine whether Defendant could be retried on first- or second-degree murder

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charges, see State v. Phillips, 2017-NMSC-019, § 18, 396 P.3d 153 (holding that the

only remaining count for which Defendant could be retried was voluntary

manslaughter), Defendant changed his plea to guilty on the remaining voluntary

imprisonment, seven of which the court suspended. Defendant appeals.

DISCUSSION

33 “The Double Jeopardy Clause of the Fifth Amendment_protects citizens

against multiple punishments for the same offense.” State v. Bernal, 2006-NMSC-

050, 4 7, 140 N.M. 644, 146 P.3d 289. “Multiple punishment cases are of two types:

those cases in which a defendant is charged with multiple violations of a single

statute based on a single course of conduct (‘unit of prosecution’ cases) and those

cases in which a defendant is charged with violating different statutes in a single

course of conduct (“double-description’ cases).” State v. Sena, 2020-NMSC-011,

q 44, 470 P.3d 227. Defendant’s three double jeopardy arguments advance both

types of multiple punishment challenges. “Appellate review of a claim that multiple

punishments have been imposed for the same offense in violation of the Fifth

Amendment prohibition against double jeopardy presents a question of law which

we review de novo.” /d. ¥ 43.

I. Convictions Stemming From Defendant’s Attack on Adrian

A. Two Counts of Aggravated Battery

{9} Defendant first raises a unit of prosecution challenge as to his two convictions

for aggravated battery with a deadly weapon against Adrian. The State distinguished

these charges in the jury instructions based on Defendant’s use of a baseball bat

(Count 2) anda handgun (Count 3). “In unit of prosecution cases, where.a defendant

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is charged with multiple violations of a single statute, we inquire whether the

Legislature intended punishment for the entire course of conduct or for each discrete

act.” State _v. DeGraff, 2006-NMSC-011, 932, 139 N.M. 211, 131 P.3d 61

(alteration, internal quotation marks, and citation omitted). “This analysis requires

courts to determine the unit of prosecution intended by the Legislature by employing

a two-part test, both parts of which are concerned with legislative intent.” State v.

Swick, 2012-NMSC-018, 4 33, 279 P.3d 747. “First, courts must analyze the statute

at issue to determine whether the Legislature has defined the unit of prosecution.”

Id. \f the statute does not define the unit of prosecution, “then we move to the second

step, in which we determine 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.

1. Section 30-3-5 Does Not Define a Unit of Prosecution

410} Section 30-3-5(A) defines “aggravated battery” as “the unlawful touching or

application of force to the person of another with intent to injure that person or

another.” The statutory language does not specify a unit of prosecution. This Court

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acknowledged as much in State v. Mares, 1991-NMCA-052, § 24, 112 N.M. 193,

812 P.2d 1341, when we evaluated allegations of multiple aggravated batteries

against a single victim. Mares relied on Herron v. State, 1991-NMSC-012, 111 N.M.

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sexual penetration statute and “held that the statute did not ‘punish separately each

penetration occurring during a continuous attack absent proof that each act of

penetration is in some sense distinct from the others.’ ” Mares, 1991-NMCA-052

§ 24 (quoting Herron, 1991-NMSC-012, § 15). We expressly adopted the same

approach for allegations of multiple batteries, indicating without analysis that the

ageravated battery statute did not separately punish each act of unlawful touching

occurring during a continuous attack unless the acts are sufficiently distinct. /d.

13 Although Defendant concedes that the statute does not express a unit of

prosecution, he asserts that the unit of prosecution should constitute a single unit of

prosecution per victim. Defendant relies on State v. Ramirez, 2018-NMSC-003,

453, 409 P.3d 902, in which the New Mexico Supreme Court reasoned that “where

a statute prohibits the doing of some act to a victim specified by a singular noun, “a

person’ for example, then ‘the person’ is the unit of prosecution.” However,

Defendant acknowledges that even if we measure the unit of prosecution in this way,

the statute does not “explain how to determine whether or when a person has been

the victim of more than one battery.” Consequently, it is evident that the unit of

prosecution for aggravated battery is ambiguous at the first step of the analysis and,

1} like Mares, resolution of Defendant’s double jeopardy challenge turns on whether
2| sufficient indicia of distinctness weigh in favor of separate offenses
3] 2. Sufficient Indicia of Distinctness Justify Multiple Punishments

4123, To determine whether a defendant’s acts are separated by sufficient indicia of

distinctness to justify multiple punishments, we consider the (1) temporal proximity

of the acts; (2) location of the victim during each act; (3) existence of an intervening

act; (4) sequencing of the acts; (5) defendant’s intent as evidenced by his conduct

and utterances; and (6) number of victims. Herron, 1991-NMSC-012, 4 15. Given

that there was little time between the attack with the bat and the attack with the

handgun and both attacks occurred in the same location against the same victim, the

parties do not dispute that the timing, location, and number of victims all weigh in

favor of a single offense. They focus, instead, on the three remaining factors—

whether the sequencing of the acts, an intervening event, and Defendant’s intent

demonstrate sufficient distinctness to sustain separate convictions.

4133. The evidence at trial was that Defendant initially entered Allie’s room and

attacked Adrian with the baseball bat. After a struggle, Defendant let go of the bat

and left the room, at which point Allie closed and locked the door. Defendant

retrieved a handgun from his room and went back, but had to shoot at the door’s

handle and kick down the door to regain entry. Once inside, Defendant shot Adrian

twice in the torso. This evidence demonstrates clear sequencing, see State v. Lucero,

2015-NMCA-040, 424, 346 P.3d 1175, and the use of different weapons and

4143 The evidence also demonstrates an identifiable intervening event separating

Defendant’s attack with the baseball bat from his second attack with the handgun

See State v. Garcia, 2009-NMCA-107, 915, 147 N.M. 150, 217 P.3d 1048

(evaluating whether an interruption in the course of an altercation constituted a

“sionificant separating event’). Defendant contends that a brief separation in time or

change in circumstances does not necessarily constitute an intervening event.

However, we agree with the State that there was a demonstrable break in the incident

when Defendant left the room and his victims attempted to bar any further interaction

by locking Defendant out; Defendant had to force his way through a locked door in

order to attack the victims again. In other circumstances, our courts have

characterized a victim’s efforts to protect themself from a defendant during an attack

with different weapons as an intervening event, and the same conclusion is

warranted here. See, e.g., DeGraff, 2006-NMSC-O011, § 30 (holding a defendant’s

conduct was not unitary when the defendant used several weapons and an

intervening struggle occurred between the initial use of force and death); State v.

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Cooper, 1997-NMSC-058, ¥ 61, 124 N.M. 277, 949 P.2d 660 (holding that, in the

course of an attack involving three different deadly weapons, the struggle following

415} In addition, there is evidence that Defendant’s intent changed after the attack

with the baseball bat. When police interviewed Defendant, he described how, after

hitting Adrian with the bat, he remembered that Adrian usually slept with a gun near

his bed. Defendant told police that “there is no way this guy is going to shoot me for

sleeping with the mother of my child” and explained how he left the room to retrieve

his gun. When the police later asked Defendant why he used the baseball bat first,

Defendant responded, “I really didn’t think I was going to shoot anybody. . . . I had

no intention of killing somebody.” This evidence indicates that Defendant’s intent

changed as the attack unfolded. See State v. Demongey, 2008-NMCA-066, § 15, 144

N.M. 333, 187 P.3d 679 (noting that a defendant’s conduct may support “an

inference that the nature of [his] intent changed from shooting at the victim who had

approached his vehicle to hunting down the victim in order to finish what he

started’’).

416} Under these facts, we cannot characterize Defendant’s conduct as one unitary

act. Time and space considerations are not dispositive when the “quality and nature

of the acts” and the “objects and results involved” both weigh in favor of

IT. —— 7

distinctness. Bernal, 2006-NMSC-050, § 16 (internal quotation marks and citation

omitted). Defendant used separate and discrete acts of force against Adrian,

separated by an intervening event and a change in intent. Given this, we believe the

indicia of distinctness j

of aggravated battery rather than a single, continuous attack. We hold that

Defendant’s two convictions for aggravated battery do not violate double jeopardy.

B._ Aggravated Battery With a Deadly Weapon and Voluntary
Manslaughter

417; Defendant also raises a double description challenge as to his convictions for

aggravated battery with a deadly weapon (Count 3) and voluntary manslaughter

(Count 1), arguing that his convictions result in multiple punishments for the same

conduct. We evaluate double description challenges using the two-part test set forth

in Swafford v. State, 1991-NMSC-043, 4 25, 112 N.M. 3, 810 P.2d 1223. “First, we

examine whether the conduct was unitary, meaning whether the same criminal

conduct is the basis for both charges.” Bernal, 2006-NMSC-050, § 9. If so, we then

consider “whether the [L]egislature intended to create separately punishable

offenses.” Swafford, 1991-NMSC-043, 4 25.

18; At the first step of the analysis, our Supreme Court has said that “[t]he proper

analytical framework is whether the facts presented at trial establish that the jury

reasonably could have inferred independent factual bases for the charged offenses.”

State v. Franco, 2005-NMSC-013, § 7, 137 N.M. 447, 112 P.3d 1104 (internal

quotation marks and citation omitted). “To determine whether a defendant’s conduct

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—

was unitary, we consider such factors as whether acts were close in time and space,

their similarity, the sequence in which they occurred, whether other events

intervened, and the defendant’s goals

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have also looked to the elements of the charged offenses, the facts presented at trial,

and the instructions given to the jury.” Sena, 2020-NMSC-011, 4 46.

419} _ In this case, Defendant’s manslaughter conviction was not the result of a jury

verdict; the jury deadlocked on the homicide charge and after the New Mexico

Supreme Court determined that Defendant could only be retried for voluntary

manslaughter, he changed his plea to guilty, obviating the need for a new trial.

Phillips, 2017-NMSC-019, § 2; see also State v. Nunez, 2000-NMSC-013, § 99, 129

N.M. 63, 2 P.3d 264 (stating that a defendant may raise a double jeopardy claim on

appeal even when he enters a guilty plea that was not conditioned on reservation of

that claim). Importantly, Defendant never stipulated to a specific factual basis for

the manslaughter conviction during his plea hearing, nor did the State describe one

in conjunction with Defendant’s change in plea. As well, there was no written plea

agreement from which we can conclude, for example, that the manslaughter

conviction stemmed exclusively from Defendant’s use of the rifle. Under these

circumstances, the only reasonable inference we can draw is that the factual basis

for Defendant’s guilty plea and resulting conviction is the same as the evidence

presented at trial.

20} For the aggravated battery charged in Count 3, the State was required to prove

that Defendant “touched_ora orce to Adrian Carriaga by shooting him in the

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torso with a handgun[.]” For voluntary manslaughter, the State was required to prove

that Defendant “killed Adrian CarriagaJ. |’ In other words, while the jury instructions

tied the aggravated battery charge to the handgun shooting, the jury instructions did

not specify any particular conduct as the basis for the homicide charges and did not

limit the evidence the jury could consider.

13 At trial, the State’s evidence established that after Defendant shot Adrian

twice with the handgun, he ran out of ammunition and left the room again. Defendant

went to his room and exchanged his handgun for a rifle. He grabbed three rounds

from his dresser, loaded the rifle, and returned to Allie’s room, where he placed the

barrel under Adrian’s chin and shot him a third time.

2} Dr. Linda Syzmanski, a forensic pathologist who performed the autopsy on

Adrian, testified about the gunshot wounds and cause of death. She stated that while

the gunshot wounds to the chest could be fatal, “1t would take time,” and opined that

if Adrian had received medical treatment immediately, he could have survived.

When asked about the impact of the rifle shot, she testified, “It could be

instantaneously fatal... .Or [he] could die within a couple minutes. There was

extensive injury to the brain.” The prosecutor then asked, “Based on what you know,

how would you describe which injury took away the life of Adrian Carriaga?” Dr.

Syzmanski responded, “The injury that was most fatal was the one to the head.” The

Q. — [H]ave you been able to form an expert opinion regarding the
cause and manner of death?

A. — The cause of death was multiple gunshot wounds, and the manner
of death was homicide.

(Emphasis added. )

23} Relying on Dr. Syzmanski’s testimony, Defendant argues that the first two

gunshot wounds were part of the conduct that ultimately killed Adrian, and therefore,

the manslaughter charge included the same conduct that formed the basis of the

aggravated battery charge. The State responds that “the aggravated battery was

specifically grounded on the handgun shooting and the voluntary manslaughter was

based on the rifle shooting.” However, there was no specificity in the jury

instructions that would permit the jury or a reviewing court to conclude that a

conviction for manslaughter was linked solely to Defendant’s use of the rifle, and

the conduct that formed the basis of the manslaughter conviction was not articulated

at the plea hearing that followed trial.

4; Nevertheless, based on the elements of the charged offenses and the evidence

presented at trial, the factual basis for Defendant’s voluntary manslaughter

conviction might have been the rifle shot alone, as the State argues. In that event, the

jury could reasonably have found two distinct acts based on the sequence of the

attacks and the resulting injuries. See Franco, 2005-NMSC-013, § 7. The shootings

Supreme Court has “found sufficient indicia of distinctness when a defendant used

one weapon in his initial application of force and another weapon in a subsequent

attack.” State vy. Foster, 1999-NMSC-007, 9.34, 126 N.M. 646, 974 P.2d 140

abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020,

417, 148 N.M. 381, 237 P.3d 683. Moreover, the jury might have concluded that

the handgun shooting was not part of the conduct that “killed” Adrian because the

evidence established that Adrian was alive and speaking following the two shots to

the torso, and Dr. Syzmanski’s testimony indicated that Adrian could have survived

his injuries if Defendant had ended the attack at that point.

5} But Dr. Syzmanski also testified that Adrian’s death was caused by multiple

gunshot wounds, which supports the conclusion that the conduct underlying the

convictions was unitary. In addition, the jury heard Defendant’s interview with the

police, during which he described how he was motivated to get his rifle specifically

because his handgun was empty and Adrian was not yet “immobilize[d].” From this,

the jury could have inferred that both shootings were part of a sustained effort to kill

Adrian arising from a single intent. See Demongey, 2008-NMCA-066, § 12. This

Court has said that “if multiple shots are fired all pursuant to a single, continuous

intent, they constitute a single offense, irrespective of whether an extensive period

of time elapses between each shot.” /d. § 13 (internal quotation marks and citation

aim and refire a bolt action rifle was incidental, rather than probative of his intent in

the unitary conduct analysis).

26; On this record, we are unable to determine whether the manslaughter was

accomplished by the rifle shot alone or by multiple gunshots. In an analogous case,

our Supreme Court resolved the matter by presuming the conduct was unitary.

Franco, 2005-NMSC-013, 4 11; see also State v. Simmons, 2018-NMCA-015, 4 27,

409 P.3d 1030 (“When the conduct underlying two convictions could be unitary

under the facts, but we are unsure if the jury relied on that unitary conduct for both

convictions, we nevertheless assume for the purposes of our double jeopardy

analysis that the conduct was unitary because one _ of __ the

options/alternatives/scenarios is legally inadequate.”’).

27 InFranco, the jury found the defendant guilty of tampering with evidence and

possession of cocaine after police discovered a Tylenol bottle containing crack

cocaine on the ground outside an apartment, underneath a bathroom window, during

a search. 2005-NMSC-013, §§ 2-3. The evidence at trial established that the

defendant was inside the apartment for approximately forty-five minutes before

police arrived, during which time she handled a Tylenol bottle until the owner of the

apartment told her not to and took possession of it. /d. § 3. When police arrived, they

found the defendant in the bathroom of the apartment, standing between the toilet

8} Similar to this case, the jury instructions tied the state to a particular theory

for the tampering charge—that the defendant tampered with evidence by throwing

cocaine out the window—but did not limit the evidence the jury could consider for

the possession charge. /d. § 8. The Court evaluated the evidence presented at trial

and concluded that the jury could have based its verdict on two possible theories.

Id. 49. Under the first possibility, the jury could have concluded that the defendant

possessed the cocaine before the police arrived and then attempted to destroy it after

police arrived by throwing it out the window. /d. § 10. The Court reasoned that under

this theory, “the jury could have found two distinct acts, committed at different

times, in different locations, with a different mental state and purpose, and separated

by the intervening arrival of the police.” /d. On the other hand, “the jury might have

based its verdict on the theory that [the d]efendant possessed the cocaine when she

tampered with evidence[,]” and “[i]n that event, the conduct was unitary.” /d. 4 11.

The Court said that “[b]ecause the jury could have based its verdict on the theory

[that the djefendant possessed the cocaine at the time she threw it out the window,

we presume unitary conduct.” /d.

a9; Applying Franco, we presume Defendant’s conduct was unitary and proceed

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to the second step of the Swafford_analysis.' This Court previously_analyzed_ the

Legislature’s intent with respect to these two offenses in Lucero, 2015-NMCA-040,

431, and our holding is dispositive. We determined that aggravated battery is

'We do not read our Supreme Court’s recent decision in Sena, 2020-NMSC-
O11, 954, to prohibit courts from presuming unitary conduct under the

umstances_presented_here_Seng_addressed_the Foster presumption—that courts

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“must presume that a conviction under a general verdict requires reversal if the jury
is instructed on an alternative basis for the conviction that would result in double

jeopardy,and_the record _does_not-_disclose whether the jury_relied_on this legally
inadequate alternative.’ ” /d. § 47 (quoting Foster, 1999-NMSC-007, 28); see also
State v. Vigil, 2021-NMCA- __, § 19, P.3d (No. A-1-CA-36921, Mar. 3,

2021) (stating that Foster “requires that we begin our analysis of whether [the

djefendant’s conduct was unitary by examining the jury instructions, and where the
jury is offered alternative bases for conviction, we must presume that the jury relied
on the alternative that leads to a double jeopardy violation’), cert. denied, 2021-

NMCERT-____ (No. S-1-SC-38748, April 22, 2021). Sena clarified that this
“presumption is rebutted by evidence that each crime was completed before the other

crime occurred.” 2020-NMSC-011, 454. In other words, Sena made clear that, after
applying the Foster presumption, courts must still evaluate the conduct underlying
the convictions to determine whether the conduct is unitary or distinct. Given this
context, the Court’s statement that “Foster does not require a further presumption

that the same conduct was then relied upon by the jury in convicting [the d]efendant
of each crime[,]” is simply another way of expressing that courts may not skip over
an evaluation of the defendant’s conduct. [d. ¥ 54.

Consequently, while Sena requires courts to engage in an analysis of a
defendant’s conduct, /ranco provides guidance on how to proceed when, after
conducting that analysis, the court determines that the conduct underlying the

convictions could be unitary under the facts. Our decision to presume unitary
conduct under such circumstances is in accord with Foster, where the Court
reasoned that if one of the alternative bases for the conviction is based on unitary

conduct, it is “ ‘legally inadequate’ because it violates a defendant’s constitutional
right to be free from double jeopardy[.]”’ 1999-NMSC-007, 427. We see no
indication that the Court in Sena sought to depart from or alter the reasoning in

Franco, and accordingly, we rely on Franco as controlling authority in this case.

subsumed within voluntary manslaughter, saying that although the statutes consist

take different degrees into consideration.” /d. § 28 (internal quotation marks and

citation omitted). Applying Lucero and the rule of lenity, we conclude that

Defendant’s convictions for aggravated battery in Count 3 and voluntary

manslaughter in Count 1 violate the prohibition against double jeopardy.

30} The general rule is that “where one of two otherwise valid convictions must

be vacated to avoid violation of double jeopardy protections, we must vacate the

conviction carrying the shorter sentence.” State v. Montoya, 2013-NMSC-020, § 55,

306 P.3d 426. In this case, both voluntary manslaughter and aggravated battery

(deadly weapon) are third-degree felonies, but the voluntary manslaughter charge

(Count 1) carries a basic sentence of six years as compared to the three-year basic

sentence for aggravated battery (Count 3). Compare § 30-2-3(A) (providing that

voluntary manslaughter is a third-degree felony resulting in the death of a human

being), and NMSA 1978, § 31-18-15(A)(8) (2007, amended 2019) (providing a

penalty of six years’ imprisonment for a third-degree felony resulting in the death of

a human being), with § 30-3-5(C) (providing aggravated battery with a deadly

weapon is a third-degree felony), and § 31-18-15(A)(9) (2007) (providing a penalty

of three years’ imprisonment for a third-degree felony). Therefore, we remand this

case to the district court to vacate Defendant’s conviction for aggravated battery

under Count 3.

II. Convictions Stemming From Defendant’s Attack on Allie

4313, Defendant was convicted of four counts of aggravated battery against a

household member for his attack on Allie. The charges were separated as follows:

three felony counts under Section 30-3-16(C) for hitting Allie with the baseball bat

(Count 4), shooting her in the leg with the rifle (Count 5), and strangling her (Count

7), and one misdemeanor count under Section 30-3-16(B) for punching her (Count

6). Like the aggravated battery charges, Defendant raises a unit of prosecution

double jeopardy challenge, arguing that the attack constitutes a continuous course of

conduct and that he should be convicted and punished for a single count of

aggravated battery against a household member.

1323 “Aggravated battery against a household member” is defined as “the unlawful

touching or application of force to the person of a household member with intent to

injure that person or another.” Section 30-3-16(A) (emphasis added).

Notwithstanding its similarity to the definition of aggravated battery in Section 30-

3-5, “neither party argues that the unit of prosecution is clearly defined in the

relevant criminal statute[].” Demongey, 2008-NMCA-066, 410. We therefore

proceed to the second step in the analysis and review whether Defendant’s acts were

separated by sufficient indicia of distinctness in light of the Herron unit of

prosecution factors.

33} In line with our earlier discussion of the aggravated battery charges, we

conclude Defendant’s first attack on Allie with the baseball bat was distinct from the

second, where he shot her in the leg with the rifle. These crimes were separated by

both time and intervening events: Defendant left the room twice to exchange

weapons and shot and killed Adrian before shooting Allie in the leg. An intervening

event also separated the second attack from the third, when Defendant strangled her:

after shooting Allie, Defendant took the phone from her and spoke with the 911

operator for two minutes, describing what had happened until that point. After

Defendant hung up, he began punching and strangling Allie multiple times until she

lost consciousness.

434} Defendant argues that the punching and strangling during the third attack are

indistinguishable and cannot be punished separately. The State agrees and concedes

that the misdemeanor conviction (Count 6) should be vacated. While we are not

bound by the State’s concession, we accept it here. See State v. Caldwell, 2008-

NMCA-049, 4 8, 143 N.M. 792, 182 P.3d 775; see also State v. Santillanes, 2001-

NMSC-018, 4 28, 130 N.M. 464, 27 P.3d 456 (“[D]ouble jeopardy requires that the

lesser offense merge into the greater offense such that the conviction of the lesser

offense, not merely the sentence, 1s vacated.’’).

CONCLUSION

{35} For the

battery (Count 3) and misdemeanor aggravated battery against a household member

(Count 6) and remand to the district court for further proceedings consistent with

this opinion

36 IT ISSO ORDERED.

\ Ai
DUFFY, Judge

WE CONCUR:

10
11

Q. Ub Mo

J. MILES HANISEE, Chief Judge

ATF

ZACHARY A. IVES, Judge

July 7, 2021- State of New Mexico v. Clive Dalton Phillips, No. A-1-CA-37455

Texte intégral

OCR transcription for search; preserved printed pages are authoritative

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