March 16, 2026- State of New Mexico v. Jeremy Jay Guthrie, No. A-1-CA-42341

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: March 16, 2026	3
No. A-1-CA-42341	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
JEREMY JAY GUTHRIE,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	10
David Murphy, District Court Judge	11
Raúl Torrez, Attorney General	12
Santa Fe, NM	13
Michael J. Thomas, Assistant Solicitor General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Thomas J. Lewis, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 3/16/2026 7:18 AM

OPINION	1
YOHALEM, Judge.	2
{1} Defendant was convicted, in relevant part, of four counts of criminal sexual	3
penetration of a minor (CSPM) in the first degree (child under thirteen years of age),	4
in violation of NMSA 1978, Section 30-9-11(D)(1) (2009); and three counts of	5
criminal sexual contact of a minor (CSCM) in the third degree (child under thirteen	6
years of age), in violation of NMSA 1978, Section 30-9-13(C)(1) (2003), based on	7
multiple sexual assaults of twelve-year-old Victim between November 1, 2021 and	8
April 25, 2022, when Victim turned thirteen.1 On appeal, Defendant contends that	9
his seven convictions of CSPM and CSCM based on three sexual assaults violate the	10
double jeopardy guarantee against multiple punishment for the same conduct. For	11
the reasons explained below, we vacate one count of CSPM and one count of CSCM.	12
We otherwise affirm.	13
BACKGROUND	14
{2} All of the sexual assaults at issue on appeal occurred while Victim was twelve	15
years old—between November 2021 and Victim’s thirteenth birthday on April 25,	16
1Defendant does not appeal his convictions for attempted CSPM, in violation
of Section 30-9-11(E)(1) and NMSA 1978, Section 30-28-1 (1963, amended 2024),
or his conviction for contributing to the delinquency of a minor, in violation of
NMSA 1978, Section 30-6-3 (1990).

2
2022. Victim’s testimony was the only evidence at trial describing each of the sexual	1
assaults. Victim testified at trial as follows.	2
{3} Defendant first contacted Victim by a text message on a social media	3
messaging platform in November 2021. Victim agreed to meet Defendant.	4
Defendant picked Victim up in his truck at an agreed meeting place and took Victim	5
to a motel. Victim testified that she told Defendant that she was twelve years old.	6
{4} In the motel room, Defendant started by touching Victim’s breasts. Then he	7
touched what Victim referred to as her “lower parts,” which she described as her	8
“vagina” and “butt.” Victim described the touching beginning over and ending under	9
her clothes. The State asked Victim, “Was there anything else [Defendant] did after	10
he was touching you?” Victim responded that Defendant “took his pants off” and	11
then he put “his penis . . . [i]nside my vagina.”	12
{5} Two or three months later, Defendant contacted Victim and again picked her	13
up in his truck. This time he drove Victim to the mesa area on the outskirts of town,	14
approximately an hour drive from her home. Victim testified that Defendant stopped	15
at a remote location on the mesa. In the back seat of his truck, Defendant touched	16
Victim’s breasts and vagina area under her clothes. When asked if Defendant did	17
anything else while they were in the truck, Victim testified that Defendant inserted	18
his penis into her vagina.	19

3
{6} Victim was then asked by the prosecutor whether that was “the only time the	1
Defendant took you out to this mesa.” Victim responded, “No” and was then asked	2
how many trips to the mesa occurred. Victim answered that Defendant took her out	3
there “four more times.”	4
{7} Victim was then asked, “Was there anything else [D]efendant did when he	5
took you out to this mesa?” Victim answered, “He had a rope . . . and he tied me up	6
[by] my legs . . . in the bed of his truck.” She was then asked what body parts	7
Defendant used on her. Victim answered, “He used his mouth. He used his penis and	8
a toy.” She testified that all three were used on or inside her vagina.	9
{8} As relevant to this appeal, Defendant was found guilty of four counts of CSPM	10
and three counts of CSCM. 2 The parties agree that Count 1 (CSPM sexual	11
intercourse), Count 3 (CSCM touching Victim’s breasts), and Count 4 (CSCM	12
touching Victim’s vulva) were supported by Victim’s testimony about Defendant’s	13
sexual assault at the motel in November 2021. The parties further agree that Count	14
2 (CSPM sexual intercourse), Count 7 (CSPM penetration with the sex toy), Count	15
8 (CSCM touching of Victim’s “breast, vulva, or vagina”), and Count 11 (CSPM	16
2Because some of the counts set forth in the indictment were later revised or
renumbered and were inaccurately reported in the judgment and sentence, we rely
on the count numbers and statement of the elements of each count used in the jury
instructions and on the verdict forms.

4
cunnilingus) were supported by Victim’s testimony about Defendant’s sexual	1
assaults on the mesa.	2
{9} Defendant appeals, asking this Court to vacate on double jeopardy grounds all	3
but one conviction for each of the sexual assaults—leaving in place his convictions	4
of one count of CSPM at the motel, one count of CSPM during the first trip to the	5
mesa, and one count of CSPM during the one later trip to the mesa fully described	6
by Victim.	7
DISCUSSION	8
{10} “The Double Jeopardy Clause of the Fifth Amendment of the United States	9
Constitution, made applicable to the states by the Fourteenth Amendment, protects	10
against multiple punishments for the same offense.” State v. Elliott, 2025-NMCA-	11
022, ¶ 28, 576 P.3d 409 (internal quotation marks and citation omitted). “The pivotal	12
question in multiple punishment cases is whether the defendant is being punished	13
twice for the same offense.” Swafford v. State, 1991-NMSC-043, ¶ 8, 112 N.M. 3,	14
810 P.2d 1223 (emphasis omitted). “Multiple punishment challenges arise in both	15
unit of prosecution claims, in which an individual is convicted of multiple violations	16
of the same criminal statute, and double description claims, in which a single act	17
results in multiple charges under different criminal statutes.” Elliott, 2025-NMCA-	18
022, ¶ 28 (internal quotation marks and citation omitted). Defendant alleges both	19
types of double jeopardy violations.	20

5
{11} First, Defendant raises a unit of prosecution double jeopardy challenge. This	1
challenge relates to his conviction of three counts of CSPM for his sexual assaults	2
of Victim on the mesa. Defendant claims that all three of the CSPM convictions—	3
Count 2 (sexual intercourse), Count 7 (penetration with a sex toy), and Count 11	4
(cunnilingus)—are based on a single sexual assault that amounts to unitary conduct,	5
and that, therefore, two of the CSPM convictions must be vacated on double	6
jeopardy grounds. Second, Defendant raises two double description challenges: (1)	7
Defendant claims that his convictions for Count 1 (CSPM) and Counts 3 and 4	8
(CSCM), for his sexual assault of Victim at the motel, are based on unitary conduct;	9
and (2) Defendant claims that his convictions for Count 2 (CSPM) and Count 8	10
(CSCM), for his sexual assault of Victim in the backseat of his truck on the first trip	11
to the mesa, are based on unitary conduct.	12
{12} We address each of Defendant’s double jeopardy challenges in turn under a	13
de novo standard of review. See State v. Cummings, 2018-NMCA-055, ¶ 6, 425 P.3d	14
745 (“We generally apply a de novo standard of review to the constitutional question	15
of whether there has been a double jeopardy violation.”); State v. Haskins, 2008-	16
NMCA-086, ¶ 15, 144 N.M. 287, 186 P.3d 916 (same).	17
I. Unit of Prosecution Double Jeopardy Challenge—CSPM Counts During	18
Trips to the Mesa	19
{13} Defendant first raises a unit of prosecution double jeopardy challenge to his	20
convictions of CSPM for his sexual assaults of Victim on the mesa. Defendant	21

6
argues that his convictions of Count 2 (CSPM sexual intercourse), Count 7 (CSPM	1
penetration with a sex toy), and Count 11 (CSPM cunnilingus) are multiple	2
convictions under the same statute for a single unitary act of sexual penetration, in	3
violation of Section 30-9-11, the statute that criminalizes penetration of any of the	4
protected orifices listed in the statute—here Victim’s vagina—“with any object.”	5
See Herron v. State, 1991-NMSC-012, ¶ 13, 111 N.M. 357, 805 P.2d 624 (internal	6
quotation marks omitted).	7
{14} The relevant inquiry in a double jeopardy unit of prosecution claim is	8
“whether the [L]egislature intended punishment for the entire course of conduct or	9
for each discrete act.” Swafford, 1991-NMSC-043, ¶ 8. “Unit of prosecution cases	10
are subject to a two-step analysis that courts utilize to discern legislative intent.”	11
State v. Bernard, 2015-NMCA-089, ¶ 17, 355 P.3d 831. “In the first step of [a unit	12
of prosecution] analysis, we look to the language of the criminal statute to determine	13
whether the Legislature has defined the unit of prosecution.” Id. “Our inquiry is	14
complete if the unit of prosecution is spelled out in the statute.” Id. If the language	15
of the statute does not clearly specify the unit of prosecution, we then move to the	16
second step, where we must “determine whether a defendant’s acts are separated by	17
sufficient indicia of distinctness to justify multiple punishments under the same	18
statute.” Id. (internal quotation marks and citation omitted). In determining whether	19
two crimes are proved by conduct separated by sufficient indicia of distinctness, we	20

7
are directed to look to “the elements of the charged offenses, the facts presented at	1
trial, and the instructions given to the jury.” State v. Phillips, 2024-NMSC-009, ¶ 38,	2
548 P.3d 51 (internal quotation marks and citation omitted).	3
{15} We start with the first step of the analysis: whether Section 30-9-11 clearly	4
identifies the unit of prosecution intended by the Legislature. As the State concedes	5
on appeal, it is well settled that “Section 30-9-11 cannot be said as a matter of law	6
to evince a legislative intent to punish separately each penetration occurring during	7
a continuous attack absent proof that each act of penetration is in some sense distinct	8
from the others.” Herron, 1991-NMSC-012, ¶ 15. We therefore, move to step two	9
of the analysis: whether Defendant’s conduct that supports his conviction for Count	10
2 (CSPM sexual intercourse), Count 7 (CSPM penetration with a sex toy), and Count	11
11 (CSPM cunnilingus) is separated by sufficient indicia of distinctness to justify	12
multiple punishments under the same statute.	13
{16} “To determine whether a defendant’s acts are sufficiently distinct,” our	14
Supreme Court instructs us to “consider the Herron factors: (1) temporal proximity	15
of the acts, (2) location of the victim during each act, (3) the existence of intervening	16
events, (4) the sequencing of the acts, (5) the defendant’s intent as evidenced by	17
[their] conduct and utterances, and (6) the number of victims.” Phillips, 2024-	18
NMSC-009, ¶ 12 (citing Herron, 1991-NMSC-012, ¶ 15). The Court has also made	19
clear that, although these factors must be considered, no one factor alone is	20

8
dispositive. Id. ¶ 13. In determining whether each incident constitutes a separate	1
definable criminal offense, we look to the evidence in the record to determine	2
whether it is sufficient to support a finding of distinct conduct. Id.	3
{17} In his briefing on appeal, Defendant contends that his convictions of three	4
counts of CSPM for the three penetrations of Victim that occurred during the sexual	5
assaults on the mesa were based on unitary conduct. Defendant first attempts to	6
establish that there is no support for finding separate conduct based on the	7
penetrations occurring on different dates. Defendant argues that “[t]he State’s theory	8
of the case [at trial] did not attempt to break down the four or five trips to the mesa	9
into distinct sets of actions,” instead addressing Counts 2, 7 and 11 “as if they took	10
place on a single occasion, with no attempt to characterize them as taking place on	11
separate dates.”	12
{18} We first address the State’s contention in its answer brief that the three	13
convictions of CSPM do indeed relate to three identical sexual assaults (each	14
presumably involving intercourse, cunnilingus, and a sex toy) during every trip to	15
the mesa Victim enumerated in her testimony. If the evidence supports a jury verdict	16
based on three entirely separate sexual assaults on different dates, the convictions	17
are based on separate and distinct conduct and we need not consider the Herron	18
factors further to conclude that there is no double jeopardy violation. See Herron,	19
1991-NMSC-012, ¶ 15 (“[T]he greater the interval between acts the greater the	20

9
likelihood of separate offenses.”); cf. State v. Lente, 2019-NMSC-020, ¶ 30, 453	1
P.3d 416 (citing Herron, 1991-NMSC-012, ¶ 15, among other authorities, and	2
observing that “different acts of criminal sexual penetration and contact perpetrated	3
against a child on different and discrete dates . . . constitute discrete violations” of	4
CSPM and CSCM).	5
{19} We begin with Count 2 (CSPM), which the jury instruction simply describes	6
as engaging in sexual intercourse, without including any information identifying	7
which of the sexual assaults—the first trip to the mesa or one of the subsequent	8
trips—is at issue. Getting no help from the jury instruction, we look to the record to	9
see if the State introduced sufficient evidence to support the jury’s conviction for	10
Count 2 based on sexual intercourse on a different date than the penetration with a	11
sex toy and cunnilingus.	12
{20} The record shows that Count 2 is supported by Victim’s testimony about the	13
first trip to the mesa in approximately January or February 2022. Victim testified	14
that during that first trip to the mesa, there was a single act of vaginal penetration,	15
which Victim described as occurring in the back seat of Defendant’s truck. Because	16
the jury could have reasonably found that this count of CSPM is supported by	17
evidence of sexual intercourse on a different date from the penetration with a sex toy	18
and cunnilingus, and because there is no other duplicate count of CSPM that relates	19
to that first trip to the mesa, we conclude that the evidence in the record is sufficient	20

10
to support Defendant’s conviction of Count 2 based on sexual intercourse on a	1
different date from the CSPM charged in Counts 7 and 11. See Phillips, 2024-	2
NMSC-009, ¶ 13 (noting that time and space may easily distinguish acts in some	3
cases).	4
{21} We turn next to the remaining two convictions of CSPM on the mesa—Count	5
7 (CSPM with a sex toy), and Count 11 (CSPM cunnilingus). Defendant argues that	6
the evidence established that these two counts of CSPM occurred during a single	7
sexual assault of Victim in the bed of Defendant’s truck. As to these two counts, we	8
agree with Defendant that the evidence in the record does not support the State’s	9
argument that the penetration of Victim with a sex toy and cunnilingus happened	10
repeatedly on three or four different trips to the mesa. Victim’s reference to multiple	11
trips to the mesa, without testimony about what happened on any trip but the first	12
and a single later trip, is not evidence that Defendant committed CSPM with a sex	13
toy and cunnilingus on each of the trips. Victim’s testimony about penetration with	14
a sex toy and cunnilingus in the bed of the truck plainly refers to a single incident.	15
{22} We look next to Victim’s testimony about this single incident of sexual assault	16
to determine whether sufficient indicia of distinctness separate the CSPM with a sex	17
toy and the CSPM by cunnilingus to the degree necessary to support two convictions	18
of CSPM without violating double jeopardy. The State relies primarily on its	19
contention—which we already have rejected—that the CSPM with a sex toy and	20

11
CSPM by cunnilingus each occurred repeatedly on separate trips to the mesa. In a	1
single sentence in its answer brief, the State argues additionally that, even if	2
Defendant’s penetration of Victim’s vagina with a sex toy and cunnilingus occurred	3
during a single sexual assault, there were sufficient indicia of distinctness under the	4
Herron factors to support two separate convictions for CSPM. Citing State v. Sena,	5
2020-NMSC-011, ¶¶ 55-56, 470 P.3d 227, the State attempts to distinguish the two	6
acts of penetration by arguing that Defendant used “different instruments and	7
different forces.” Although Sena suggests that different forces can be a consideration	8
in distinguishing two acts in the context of multiple batteries, we find Herron to be	9
controlling in this case. Herron concludes that penetration of the same orifice with	10
different objects or different body parts during a single sexual assault does not by	11
itself, without evidence of other Herron factors (such as intervening events, the	12
passage of time, a change in the defendant’s intent, movement to a different location,	13
or a change in the position of the victim) support two convictions of CSPM without	14
violating a defendant’s right to be free of double jeopardy. See 1991-NMSC-012,	15
¶¶ 13, 15, 21. Although penetration of different orifices alone can be sufficient to	16
support a finding of separate offenses, Haskins, 2008-NMCA-086, ¶ 19, the	17
penetration of the same orifice with different body parts or objects is distinguished	18
by Herron as insufficient to support two convictions of CSPM without evidence	19
supporting other distinguishing factors. See Herron, 1991-NMSC-012, ¶ 15	20

12
(“Except for penetrations of separate orifices with the same object, none of these	1
factors alone is a panacea.”).	2
{23} Because Victim’s testimony describing a second sexual assault on the mesa	3
fails to include any detail about the commission of the two acts of sexual penetration	4
that would distinguish one from the other under the Herron factors, we conclude that	5
the conduct underlying Count 7 (CSPM with a sex toy) and Count 11 (CSPM	6
cunnilingus) is unitary and that Defendant’s conviction of both counts violates his	7
right to be free from double jeopardy. We leave it to the district court on remand to	8
decide which offense to vacate. See State v. Porter, 2020-NMSC-020, ¶¶ 42-43, 476	9
P.3d 1201 (holding that when both offenses result in conviction of the same degree	10
of felony, “the choice of which conviction to vacate lies in the sound discretion of	11
the district court”).	12
II. Double Description Double Jeopardy Challenges—the Motel and the	13
First Trip to the Mesa	14
{24} We now turn to Defendant’s two double description claims. Defendant	15
contends first that his convictions of both Count 1 (CSPM sexual intercourse) and	16
Counts 3 and 4 (CSCM touching breasts and vulva), for his sexual assault of Victim	17
at the motel, violate double jeopardy because the CSCM was part of a single sexual	18
assault and, therefore, is based on conduct unitary with his conviction for CSPM.	19
Defendant makes the same double jeopardy argument about his convictions for	20
touching Victim’s “breasts, or vulva, or vagina” (Count 8 CSCM) and sexual	21

13
intercourse (Count 2 CSPM) during his first sexual assault of Victim on the mesa,	1
in the backseat of Defendant’s truck.	2
{25} “In reviewing a double[ ]description challenge, we follow the two-part test	3
adopted in Swafford, 1991-NMSC-043, ¶ 25.” State v. Begaye, 2023-NMSC-015,	4
¶ 13, 533 P.3d 1057. “First, we assess whether the conduct underlying the offenses	5
is unitary, i.e., whether the same conduct violates both statutes.” Id. (internal	6
quotation marks and citation omitted). Our inquiry into unitary conduct under a	7
double description claim is a “substantially similar analysis” as the second step of	8
the unit of prosecution analysis. Phillips, 2024-NMSC-009, ¶ 13 (internal quotation	9
marks and citation omitted). “If the conduct is not unitary, then the inquiry is at an	10
end and there is no double jeopardy violation.” State v. Bernal, 2006-NMSC-050,	11
¶ 9, 140 N.M. 644, 146 P.3d 289. If, however, the conduct is unitary, “we [next]	12
examine the statutes at issue to determine whether the [L]egislature intended to	13
create separately punishable offenses.” Begaye, 2023-NMSC-015, ¶ 13 (internal	14
quotation marks and citation omitted). “Only if the first part of the test is answered	15
in the affirmative, and the second in the negative, will the double jeopardy clause	16
prohibit multiple punishment.” Id. (internal quotation marks and citation omitted).	17
{26} We note that Defendant argues only the first step of the analysis—unitary	18
conduct, citing to this Court’s decision in State v. Mora, 2003-NMCA-072, 133	19
N.M. 746, 69 P.3d 256, as conclusively resolving the second question concerning	20

14
legislative intent. The State disagrees with Defendant’s reliance on Mora, and argues	1
that our Legislature intended to address different evils in the two statutes, and that	2
therefore the Legislature intended multiple punishments.	3
{27} We agree with Defendant that this Court’s decision in Mora—that legislative	4
intent does not support punishing a defendant separately for CSCM and CSPM if the	5
conduct is unitary—controls.	6
A. Defendant’s Convictions for CSCM and CSPM at the Motel Are Based	7
on Distinct, Nonunitary Conduct and Do Not Violate Double Jeopardy	8
{28} Addressing first whether his conduct was unitary, Defendant argues that his	9
convictions of both CSCM charges in Counts 3 and 4 and CSPM in Count 1 for the	10
sexual assault of Victim at the motel were based on unitary conduct because there is	11
insufficient detail in Victim’s testimony to establish distinctness under the Herron	12
factors. The State responds that Defendant’s conduct was nonunitary based on	13
evidence that the CSCM was completed before the CSPM began. The State argues	14
that “it is clear from the evidence that Defendant touched [V]ictim’s breasts and	15
vaginal area first, and that those crimes were completed before Defendant took off	16
his clothes and engaged in vaginal intercourse with [V]ictim.” We agree with the	17
State that Victim’s testimony provides sufficient indicia of distinctness to support	18
nonunitary conduct, thereby avoiding a double jeopardy violation.	19
{29} Regarding the sexual assault in the motel room, Victim testified that	20
Defendant first started touching her clothed breasts and the area over her vagina, and	21

15
then reached under her clothes to touch her unclothed breasts and vagina. Victim	1
was asked by the State whether “there was anything else he did after he was touching	2
you?” Victim responded that defendant “took his pants off.” She then stated that	3
after he took his pants off, “[they] had sex,” which she clarified was Defendant	4
penetrating her vagina with his penis.	5
{30} Several indicia of distinctness included in Herron are apparent from Victim’s	6
testimony. First, Victim described Defendant beginning by touching her breasts and	7
vagina over her clothes, progressing to touching those same areas under her clothes,	8
and then only after the touching, removing his clothes and penetrating her vagina	9
with his penis. Victim thus describes a sequence of events, with both acts of CSCM	10
occurring first,3 ending before Defendant removed his clothes, followed by the	11
removal of Defendant’s clothes, and only then by sexual penetration of Victim. This	12
distinct sequence of events, the completion of one crime before the other begins, and	13
the intervening act of Defendant removing his clothes are factors that Herron directs	14
us to consider in determining whether a defendant’s conduct constitutes separate acts	15
or is a single, continuous offense. See Haskins, 2008-NMCA-086, ¶ 19 (considering	16
the act of the victim getting dressed and relocating to another room between	17
touchings to be a sufficient intervening event to support separate convictions for	18
3Defendant does not argue that the two convictions of CSCM violate his right
to be free of double jeopardy, and we therefore do not address that issue.

16
criminal sexual contact). The completion of the CSCM while Defendant was	1
clothed, followed by Defendant removing his pants, also indicates a change in	2
Defendant’s intent—from touching to the more serious crime of penetration—an	3
important factor as to whether the CSCM and the CSPM at issue here are nonunitary,	4
separate offenses. See Phillips, 2024-NMSC-009, ¶ 25 (stating that the defendant’s	5
change of intent to commit battery to then commit manslaughter evinced distinct	6
conduct); see also Herron, 1991-NMSC-012, ¶ 15 (considering distinct conduct by	7
assessing the defendant’s intent as evidenced by their conduct).	8
{31} Defendant relies on State v. Ervin, 2008-NMCA-016, ¶¶ 45-47, 143 N.M.	9
493, 177 P.3d 1067, to support his argument that the CSCM and CSPM amounted	10
to unitary conduct. In Ervin, the touching of different body parts of the victim over	11
a short period of time during a massage, without any intervening event, was held to	12
lack sufficient indicia of distinctness to support multiple convictions of CSCM. See	13
id. ¶¶ 45-46. The facts here are distinguishable. In this case, Victim testified about	14
the sequence of events and about a distinct intervening event, neither of which was	15
present in Erwin, where the double jeopardy issue concerned multiple counts of	16
CSCM for touching different body parts during a continuous massage. See id.	17
{32} Concluding that Defendant’s conduct is nonunitary, our inquiry ends. See	18
Bernal, 2006-NMSC-050, ¶ 9. Defendant’s convictions for CSCM in Counts 3 and	19

17
4 and CSPM in Count 1 at the motel do not amount to a double description double	1
jeopardy violation.	2
B. Defendant’s Convictions of CSCM and CSPM for the Sexual Assault	3
During the First Trip to the Mesa Violate His Right to Be Free of Double	4
Jeopardy	5
{33} Defendant next argues that his convictions of CSPM in Count 2 and CSCM	6
in Count 8 for his sexual assault of Victim during the first trip to the mesa violate	7
his right to be free from double jeopardy. Defendant argues that Victim’s testimony	8
lacks sufficient detail to establish any of the Herron factors indicating distinct	9
conduct.	10
{34} We agree with Defendant that Victim’s testimony concerning the first trip to	11
the mesa lacks the detail necessary to establish nonunitary conduct during the sexual	12
assault in the back seat of Defendant’s truck under the Herron factors. We therefore	13
conclude that Defendant’s convictions for CSPM in Count 2 and CSCM Count 8	14
punish unitary conduct. We then go on to address legislative intent. Concluding,	15
based on this Court’s decision in Mora, that our Legislature has not clearly expressed	16
its intent to punish CSCM and CSPM separately when the defendant’s conduct is	17
unitary, the rule of lenity requires that we vacate one of these convictions on double	18
jeopardy grounds. See 2003-NMCA-072, ¶ 23 (“[U]nless an intent to punish	19
separately can be found through an examination of legislative intent, lenity is	20
indicated.”).	21

18
{35} We begin by examining whether the evidence supports distinct, nonunitary	1
conduct under the Herron factors. To prove CSPM as charged in Count 2, the jury	2
instructions required the State to prove Defendant “caused [Victim] to engage in	3
sexual intercourse.” To prove CSCM as charged in Count 8 during the same sexual	4
encounter, the jury instructions required the State to prove that Defendant “touched	5
. . . the unclothed breasts, or vulva, or vagina of [Victim].” Victim’s testimony was	6
the only evidence in the record describing what happened on this first trip to the	7
mesa. Victim testified that Defendant “started touching [her]” on her “chest and	8
vagina area,” and that the touching was under her clothes. She then testified,	9
“[Defendant] inserted his penis into me.”	10
{36} Unlike Victim’s testimony about the sexual assault in the motel, Victim’s	11
testimony about this sexual assault lacks any detail that separates the touching from	12
the penetration. Although Victim testified that Defendant “started” with touching	13
her “chest and vagina area,” she provides no information about whether that	14
touching was completed before the sexual intercourse began. Importantly, Victim	15
does not describe any interval or intervening event between the touching and the	16
penetration. There is no testimony about whether, for example, Defendant undressed	17
or otherwise paused the sexual assault between the touching and the sexual	18
intercourse. Both the CSCM and the CSPM were described as occurring in the same	19
place—on the backseat of Defendant’s truck—with no mention of a change in	20

19
location or position of Victim or Defendant during the sexual assault. This testimony	1
simply does not provide sufficient evidence of distinct conduct to satisfy the standard	2
set by our Supreme Court in Herron. See 1991-NMSC-012, ¶ 15.	3
{37} This Court must next determine whether the Legislature intended to permit	4
multiple punishments for CSCM and CSPM when the culpable conduct for both	5
convictions is unitary. See Porter, 2020-NMSC-020, ¶ 15. “[L]egislative intent is	6
the touchstone for whether multiple punishments are permissible.” Id.	7
{38} We look first to the plain language of the two statutes at issue here—CSCM	8
and CSPM—to determine if the Legislature has explicitly authorized multiple	9
punishments. See id. ¶ 16. Finding no such authorization on the face of either statute,	10
we turn to other canons of statutory construction. See id. Generally, we would first	11
apply the modified Blockburger test, where “we consider the state’s legal theory of	12
the case applied to the statutes at issue to determine the elements of each offense the	13
defendant committed.” Porter, 2020-NMSC-020, ¶¶ 17, 20. “[I]f the elements of the	14
statutes are not subsumed one within the other, then the Blockburger test raises only	15
a presumption that the statutes punish distinct offenses. That presumption, however,	16
is not conclusive and it may be overcome by other indicia of legislative intent.”	17
Swafford, 1991-NMSC-043, ¶ 31.	18
{39} In examining other indicia of legislative intent, we look at “whether the	19
offenses are substantially the same using other traditional canons of construction,	20

20
including identifying the particular evil sought to be addressed by each offense,	1
determining the quantum of punishment for each statute, determining whether the	2
statutes are typically violated together, the rule of lenity, and other relevant factors.”	3
Porter, 2020-NMSC-020, ¶ 20 (internal quotation marks and citation omitted). In	4
this case, we find it unnecessary to engage in this statutory construction analysis	5
because this Court previously determined in Mora that unitary conduct cannot	6
support separate convictions under the CSCM and CSPM statutes, even where a	7
Blockburger presumption exists. See Mora, 2003-NMCA-072, ¶¶ 22-27. “The	8
principle of stare decisis dictates adherence to precedent.” Padilla v. State Farm	9
Mut. Auto. Ins. Co., 2003-NMSC-011, ¶ 7, 133 N.M. 661, 68 P.3d 901. “When there	10
is precedent construing statutory language to guide us, we rely on that precedent.”	11
Henry v. Gauman, 2023-NMCA-078, ¶ 10, 536 P.3d 498.	12
{40} Mora examined legislative intent where a defendant was convicted of both	13
CSCM and attempted CSPM based on unitary conduct. See 2003-NMCA-072,	14
¶¶ 19-20. This Court assessed our Legislature’s intent concerning multiple	15
punishments for unitary conduct under our CSCM and CSPM statutes and	16
determined that unitary conduct cannot support separate convictions for CSCM and	17
attempted CSPM. See id. ¶¶ 22-27. The fact that Mora involved an attempted CSPM	18
rather than completed CSPM, as is the case here, has created some uncertainty about	19
whether Mora’s legislative intent analysis is controlling when CSCM and CSPM are	20

21
committed by unitary conduct. Because this Court’s legislative intent analysis in	1
Mora was based on the common purpose of the CSCM and CSPM statutes (to protect	2
children’s “bodily integrity and personal safety”) and the significantly greater	3
punishment our Legislature imposed for CSPM, we conclude that the legislative	4
intent analysis in Mora is directly applicable to the CSCM and completed CSPM	5
offenses at issue in this case. See id. ¶¶ 22, 24 (internal quotation marks and citation	6
omitted).	7
{41} The distinction between an attempted and a completed crime played no	8
meaningful role in this Court’s legislative analysis in Mora. As this Court stated in	9
Mora, “We do not believe the [L]egislature has manifested any clear intent that a	10
defendant could be convicted for attempted CSPM and CSCM for unitary conduct.	11
To the contrary, the canons of construction . . . demonstrate a legislative intent to	12
disallow multiple punishment in this context.” Id. ¶ 27.	13
{42} We agree as well with Mora that under these circumstances, “lenity is	14
indicated.” Id. ¶ 23. We must presume that “the [L]egislature did not intend	15
pyramiding punishments for the same unitary conduct.” Id. The Double Jeopardy	16
Clause of the Fifth Amendment of the United States Constitution, therefore,	17
demands that Defendant’s conviction for Count 8 (CSCM), the lesser offense, be	18
vacated. See State v. Montoya, 2013-NMSC-020, ¶ 55, 306 P.3d 426 (holding that	19
“where one of two otherwise valid convictions must be vacated to avoid violation of	20

22
double jeopardy protections, we must vacate the conviction carrying the shorter	1
sentence”).	2
III. Correction of the Judgment on Remand	3
{43} We note that the final judgment and sentence, entered on August 21, 2024,	4
does not parallel the jury verdict. It appears that due to a clerical error at some stage	5
involving preparation of the judgment and sentence, the convictions and the count	6
numbers listed in the judgment came from the indictment, rather than the jury verdict	7
forms. The count numbers and descriptions we have used throughout this opinion	8
are those found in the jury instructions and verdict forms. In addition to vacating	9
Count 8 (CSCM), and either Count 7 (CSPM) or Count 11 (CSPM), at the district	10
court’s discretion, the judgment must be corrected on remand to properly reflect the	11
jury’s verdict.4
12
CONCLUSION	13
{44} We vacate Defendant’s conviction of Count 8 (CSCM). We remand for the	14
district court to vacate either Count 7 (CSPM) or Count 11 (CSPM), to correct the	15
4The unnecessary confusion of the counts charged in this case and lack of
clarity in argument to the jury and in briefing about the evidentiary basis for each
conviction has made review of the double jeopardy issues raised by Defendant on
appeal difficult and time-consuming for this Court. We urge the State at the
indictment and trial level to clearly identify the basis in the evidence for each count
and to consider whether any of the counts as charged or argued violate the
defendant’s right to be free of double jeopardy. It is troubling that double jeopardy
violations are often only discovered for the first time on appeal. Preferably, they
should be avoided or corrected by the State before, during, or after trial.

23
judgment to properly reflect the counts described and numbered in the jury	1
instructions and on the verdict forms, and to resentence Defendant in light of the two	2
vacated convictions.	3
{45} IT IS SO ORDERED.	4
__________________________________	5
JANE B. YOHALEM, Judge	6
WE CONCUR:	7
_________________________________	8
J. MILES HANISEE, Judge	9
_________________________________	10
JENNIFER L. ATTREP, Judge	11