February 21, 2019- State of New Mexico v. Jeremy Lukas Sanchez, No. A-1-CA-35413

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 	v. 	No. A-1-CA-35413 	-
5 JEREMY LUKAS SANCHEZ,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY -
8 Fernando R. Macias, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	Walter M. Hart III, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 Bennett J. Baur, Chief Public Defender
15 	Nina Lalevic, Assistant Appellate Defender
16 Santa Fe, NM
_17 for Appellant
18 	MEMORANDUM OPINION
19 VARGAS,Judge.
20 	{t.} 	Defendant Jeremy Lukas Sanchez was convicted of aggravated assault upon
21 	a peace officer, arson, and criminal damage to property. Defendant appeals his
22 	convictions, raising the following issues: sufficiency of the evidence, ineffective
23 	assistance of counsel, improper jury instruction, and double jeopardy. We affirm.
Court of Appeals of New Mexico
Filed 2/21/2019 11:19 AM
Mark Reynolds

/
1 BACKGROUND
2 	{2} 	This case arises from an incident at a motel in Las Cruces, New Mexico. The
3 motel's clerks called into dispatch after Defendant repeatedly pressed a panic button
4 in his motel room. As Officer Peter Bradley arrived on the scene, he was notified by
5 dispatch that Defendant was calling 911 	but would hang up without speaking.
6 Officer Bradley was in his fully-marked police vehicle, wearing his full uniform with
7 a cloth badge attached with Velcro onto the uniform. Officer Bradley went to
8 Defendant's room, which was located on the ground floor; the motel room door
9 opened directly into the parking lot and there were two windows located near the
10 door. After the officer knocked on the door, Defendant asked who was there. The
11 	officer identified himself, informed Defendant he was with the police department,
12 and explained he was "there to make sure everybody was okay." Officer Bradley
13 	asked Defendant to open the door, but Defendant did not respond.
14 	{3} 	After receiving no response from Defendant, 	Officer Bradley continued
15 	knocking on the door. Officer Bradley eventually heard some muffled yelling,
16 followed by "what sounded like ... some sort of metal striking the floor." The
17 officer continued knocking on the door and announcing "police department," but
18 	Defendant did not respond. Another officer, Officer Bobby Jaramillo, arrived on the
19 	scene, also wearing his uniform and badge. Officer Bradley asked Officer Jaramillo
20 to retrieve the key to Defendant's room. Officer Bradley "continued knocking on the
2

1 door and announcing "police department," to which Defendant would yell, "I don't
2 believe you. I don't believe you are a police officer." In response, Officer Bradley
3 removed his badge and held it up to the peephole, explaining that he was a police
4 officer and that Defendant could look through the peephole to see the badge. The
5 officer then heard movements toward the door, but did not know if Defendant looked
6 through the peephole.
7 {4} 	Once Officer Jaramillo returned with an electronic key to Defendant's room,
8 the officers used the key and attempted to open the door, but the door was dead-
9 bolted shut. 	Officer Bradley again knocked on the 	door, 	announced "police
10 	department," 	and 	tried 	opening 	the 	door 	with 	the 	electronic 	key, 	but 	was
11 	unsuccessful. The officers continued knocking on the door and announcing "police
12 department," but Defendant repeatedly stated, "I don't believe you." T~e motel clerk
13 	provided the officers with a "hard key" to open the dead bolt, but the door would
14 	still not open. As a result, the officers requested that additional officers bring a
15 	battering ram and a bailistic shield. The officers also requested assistance from the
16 fire department.
17 {5} 	Approximately forty-five minutes later, officers brought a ballistic shield and
18 	battering ram, which Officers Edward Villareal and Jonathan Boehne, both wearing
19 their uniforms and badges, used. Officer Boehne struck the door with the battering
20 ram, eventually opening it. As soon as the door opened, it "bounced right back at
3

1 him," which the officers believed to be caused by something barricading the door or
2 someone standing on the other side of the door. Officer Bradley then kicked the door,
3 but it again bounced back. Officer Boehne then broke the windows located near the
4 door, at which point an officer pulled the drawn curtains and Officer Jaramillo
5 observed Defendant pressing against the door with his left shoulder, clenching his
6 left hand, and holding a large, military-style knife in his right hand.
7 {6} 	Upon seeing Defendant holding the knife, Officer Jaramillo yelled "knife" to
8 warn the other officers. At the same time, Officer Bradley "threw [his] shoulder into"
9 the door, finally opening it. The door to Defendant's room opened into the bedroom
10 area, which connected to a bathroom through a small hallway in the far-right corner
11 	of the room. As Officer Bradley pushed the door open, Defendant was standing six
12 to eight feet away, in the center of the room, facing Officer Bradley, and "tightly"
13 	holding the knife in his right hand at a ninety-degree angle away from his body.
14 Defendant was leaning slightly forward, standing with his shoulders rolled forward,
15 	his "arms coming to the center line," and his feet at a wide stance. Officers Bradley
16 and Villareal described Defendant's posture as "aggressive" and a "fighter's stance."
17 Officer Bradley testified that he "was actually very afraid that [Defendant] was going
18 to rush at [him] with the knife." Officer Villareal testified that he thought Defendant
19 could have taken "some sort of lethal action, some deadly force." Defendant began
20 "screaming" at the officers, exclaiming, "You're not the police." The officers
4

1 repeatedly told Defendant to drop the knife, but Defendant responded by yelling that
2 they were not police officers.
3 {7} 	As Officer Bradley was raising his ·rifle to defend himself, another officer fired
4 a foam projectile at Defendant, causing Defendant to drop the knife. Defendant then
5 turned his body, grabbed the knife, and ran into the bathroom. After the officers
6 yelled at Defendant to come out of the bathroom, they heard "a lot of banging" in
7 the bathroom. Defendant threw the bathroom mirror into the small hallway, causing
8 the mirror to break into jagged pieces of glass, and poured what appeared to be
9 shampoo or body wash onto the broken glass. Officer Bradley testified that this
10 conduct was consistent with an attempt to make the glass "extremely sharp" and
11 	"slick," which is "a very common plan that's used by individuals who are attempting
12 to limit the ingress of officers or correction officers into any kind of an area."
13 	Defendant then "screamed out at [the officers] that he was going to die and he was
14 	going to take one of [them] with him and for [the officers] to come and get him."
15 	The officers did not go into the bathroom because they feared that doing so would
16 result in injury either to an officer or to Defendant.
17 {8} 	While Defendant was in the bathroom, he created a hole in the wall between
18 the bathroom and bedroom. Through the hole, the officers saw an orange flicker,
19 followed by a flame. Using fire extinguishers, the officers sprayed into the hole and
20 put out the fire. Despite the officers' instructions, Defendant- did not leave the
5

1 bathroom. Instead, Defendant asked the officers to hear their radios, at which point
2 some of the officers turned up their radios as loud as possible. Dispatch then
3 conducted a "welfare check" on the officers, with each officer responding, through
4 their radios. Officer Bradley showed Defendant his badge, and another officer threw
5 a large patch on the back of his vest that said "Police" into the bathroom.
6 {9} 	During this exchange, however, Defendant stated that he did not believe the
7 police officers were police officers. As the officers continued to instruct Defendant
8 to leave the bathroom, Defendant used either the broken mirror's metal lining or a
9 towel rod to pull clothing and other objects into the bathroom to use as fuel for
10 another fire. Because the officers were unable to put out this fire with the fire
11 	extinguisher, the fire department came and used a hose to put out the fire. While the
12 fire department was using the hose, they accidentally sprayed a table, sending it
13 	toward Defendant. Defendant grabbed the table, disassembled it, and used it as a tool
14 	in an attempt to break through the wall into an adjacent room.
15 	{IO} 	After speaking with a hostage negotiation team, Defendant emerged from the
16 bathroom and was taken into custody. Upon reviewing the damage, the hotel
17 manager observed that, in addition to the damage described above, Defendant
18 	removed a toilet embedded in the bathroom wall, which resulted in flooding and
'
19 water damage in a nearby room, and pulled out a light fixture located inside his
20 	room's shower. While speaking with an investigator for the Las Cruces Fire
6

1 Department after the investigator "wrapped up the scene," Defendant stated, "[H]e
2 had started the fire because he wanted to get the officers out of the room[.]"
3 	{11} 	Defendant was charged with aggravated assault upon a peace officer, arson,
4 and criminal damage to property. Following a jury trial, Defendant was convicted
5 on all counts. Defendant appeals his convictions.
6 I. 	DISCUSSION
7 A. 	Sufficiency of the Evidence
8 	{12} 	Defendant first argues that his conviction for aggravated assault upon a peace
9 officer was not supported by sufficient evidence. "In reviewing the sufficiency of
10 the evidence, we must view the evidence in the light most favorable to the guilty
11 	verdict, 	indulging all reasonable inferences and resolving all 	conflicts in the
12 evidence in favor of the verdict." State v. Holt, 2016-NMSC-011, 120,368 P.3d 409
13 	(internal quotation marks and citation omitted). "In that light, the Court-determines
14 whether any rational trier of fact could have found the essential elements of the crime
15 	beyond a reasonable doubt." Id. 	(internal quotation marks and citation omitted).
16 "Contrary evidence supporting acquittal does not provide a basis for reversal
17 because the jury is free to reject [the d]efendant's version of the facts." State v. Rojo,
18 	1999-NMSC-001, 119, 126 N.M. 438,971 P.2d 829. "When a defendant argues that
19 the ·evidence 	and 	inferences 	present two 	equally reasonable 	hypotheses, 	one
20 consistent with guilt and another consistent with innocence, our answer is that by its
7

1 verdict, the jury has necessarily found the hypothesis of guilt more reasonable than
2 the hypothesis of innocence." State v. Montoya, 2005-NMCA-078, 13, 137 N.M.
3 713, 114 P.3d 393. "The jury instructions become the law of the case against which
4 the sufficiency of the evidence is to be measured." Holt, 2016-NMSC-011, 120
5 (alterations, internal quotation marks, and citation omitted).
6 {13} 	To convict Defendant of aggravated assault against a peace officer, the jury
7 was instructed, in relevant part, that it had to find beyond a reasonable doubt that:
8
9
10
11
12
13
14
15
16
17
18
19
3. 	[D]efendant knew Peter Bradley was a peace officer or Edward
Villareal was a peace officer;
4. 	[D]efendant's conduct caused Peter Bradley or Edward Villareal
to believe [D]efendant was about to intrude on Peter Bradley or Edward
Villareal' s bodily integrity or personal safety by touching or applying
force to Peter Bradley or Edward Villareal in a rude, insolent or angry
manner;
5. 	[D]efendant's conduct: threatened the safety of Peter Bradley or
Edward Villareal; 	or challenged the authority of Peter Bradley or
Edward Villareal;
6. 	A reasonable person in the same circumstances as Peter Bradley
or Edward Villareal would have had the same belief[.]
20 See UJI 14-2202 NMRA.
· 21 	{14} 	Defendant first contends that the evidence was insufficient to support the
22 finding that Defendant knew Officers Bradley and Villareal were peace officers.
23 	"[K]nowledge of the victim's identity as a peace officer is an essential element
24 	of ... aggravated assault upon a peace officer[.]" State v. Nozie, 2009-NMSC-018,
8

1 130, 146 N.M. 142, 207 P.3d 1119. "[I]t is the defendant's mental state, rather than
2 the victim's conduct, that is the touchstone of the knowledge requirement." Id. 132.
3 "However, because an individual's intent is seldom subject to proof by direct
4 evidence, intent may be proved by circumstantial evidence." Id. (alteration, internal
5 quotation marks, and citation omitted). "Such circumstantial evidence may include,
6 but is not limited to, the fact that the victim was in full uniform, had a badge visibly
7 displayed, was driving a marked police vehicle, or had identified himself or herself
8 as a peace officer." Id.
9 {15} 	At the time of the incident, Officers Bradley and Villareal were in full
10 uniform, wore their badges, and repeatedly identified themselves as peace officers.
11 	This circumstantial evidence supports the jury's finding beyond a ),"easonable doubt
12 that Defendant knew Officers Bradley and Villareal were peace officers. Indeed,
13 	when the Las Cruces Fire Department investigator asked Defendant why he started
14 the fire in· the bathroom, Defendant responded that he "wanted to get the officers
15 	out." (Emphasis added.) Viewing the evidence in the light most favorable to the
16 guilty verdict, we conclude the evidence was sufficient to support the finding that
17 Defendant knew Officers Bradley and Villareal were peace officers.
'
18 	{16} 	Defendant also contends there was insufficient evidence to support the finding
19 that either Officer Bradley or Officer Villareal reasonably believed that Defendant
20 was going to intrude on their bodily integrity or personal safety. To support his
9

I argument, Defendant points out that the officers testified that they feared Defendant
2 was going to move toward them or "take some other form of action[,]" but he did
3 neither. 	Additionally, Defendant argues the officers' 	fears 	were unreasonable
4 because Officer Villareal had a ballistic shield, Officer Bradley had a rifle, and
5 officers with rifles and other equipment assisted them. However, Officer Jaramillo
6 testified that when they used a battering ram to break the door down, Defendant was
7 pushing against the other side of the door with his shoulder, holding a knife in his
8 right hand. After Officer Bradley pushed the door open, Defendant was six to eight
9 feet away, standing in an "aggressive" or "fighter's stance," holding a large military
10 knife in his right hand. Rather than dropping the knife after the officers' repeated
11 	commands to do so, Defendant yelled at the officers that they were not police
12 officers.
13 	{17} 	While Defendant would have this Court hold that the officers' fears stemming·
14 from these events were unreasonable, we defer to the jury's determination regarding
15 	the officers' credibility and the reasonableness of their fear. See Rojo, 1999-NMSC-
16 001, ,r 19 ("Contrary evidence supporting acquittal does not provide a basis for
17 reversal because the jury is free to reject [the d]efendant's version of the facts.");
18 State v. Simmons, 2018-NMCA-015, ,r,r 13, 20,409 P.3d 1030 (explaining that "we
19 defer to the fact-finder when it weighs the credibility of witnesses and resolves
20 conflicts in witness testimony[,] ... [a]nd we do not re-weigh the evidence to
10

1 determine if there was another hypothesis that would support innocence" (internal
2 	quotation marks and citations omitted)). Viewing the evidence in the light most
3 favorable to the guilty verdict, we conclude the evidence was sufficient to support
4 the finding that the officers reasonably believed that Defendant was going to intrude
5 on their bodily integrity or personal safety.
6 B. 	Ineffective Assistance of Counsel
7 	{18} 	Defendant next argues that trial counsel was ineffective. "Criminal defendants
8 are entitled to reasonably effective assistance of counsel[.]" State v. Crocco, 2014-
9 NMSC-016, 112, 327 P.3d 1068 (internal quotation marks and citation omitted).
10 "To establish a prima facie case of ineffective assistance, a defendant must first show
11 	that counsel's performance fell below that of a reasonably competent attorney." State
12 v. 	Barela, 2018-NMCA-067, 117, 429 P.3d 961 	(alteration, internal quotation
13 	marks, and citation omitted), cert. denied, 2018-NMCERT-_ (No. S-1-SC-37184,
14 Aug. 	29, 	2018). 	"Second, 	a 	defendant 	must 	show 	that 	counsel's 	deficient
15 	performance prejudiced the defense such that there was a reasonable probability that
16 the outcome of the trial would have been different." Id. (internal quotation marks
17 and citation omitted). "Our Supreme Court· has expressed a preference for bringing
18 	ineffective assistance claims through habeas corpus proceedings, rather than on
19 	direct 	appeal." 	Id. 	(internal 	quotation marks 	and 	citations 	omitted). 	"If facts
20 necessary to a full determination are not part of the record, an ineffective assistance
11

1 claim is more properly brought through a habeas corpus petition, although an
2 appellate court may remand a case for an evidentiary hearing if the defendant makes
3 a prima facie case of ineffective assistance." Id. 	(internal quotation marks and
4 citation omitted).
5 {19} 	Defendant first argues that trial counsel was ineffective in failing to request a
6 lesser-included offense instruction on aggravated assault. We note that "[c]ounsel's
7 choice of defenses will not be disturbed unless the choice appears wholly unreasoned
8 or deprives the defendant of his only defense." State v. Baca, 1993-NMCA-051,
9 134, 115 N.M. 536,854 P.2d 363. Based on the limited record before us, we cannot
10 	say trial counsel's decision not to request a lesser-included offense instruction was
11 	wholly unreasoned. See State v. Montoya, 2017-NMCA-033, 110, 392 P.3d 223
12 	(rejecting a defendant's contention that trial counsel's failure to request a lesser-
13 	included offense instruction demonstrated a deficiency because "[ c] ounsel may have
14 consciously determined that the better strategy was to defeat the [charged offense]
15 	leaving no step-down charge"), cert. 	denied, 2017-NMCERT-_ (No. S-l-SC-
16 36280, Feb. 24, 2017). Nor did trial counsel's decision deprive Defendant ofhis only
17 defense, as trial counsel also argued that Defendant "did not know he was dealing
18 	with the police[.]" We therefore cannot say trial counsel's failure to request a lesser-
19 	included. offense instruction deprived Defendant of his only defense. See Baca,
20 	1993-NMCA-051,, 34 (citing a trial counsel's failure to tender jury instructions on
12

1 a defendant's sole defense, thus resulting in no presentation of a defense to the jury,
2 as an example of counsel depriving the defendant of his only defense).
3 {20} 	Defendant next argues that trial counsel was ineffective in failing to call an
4 expert to testify regarding Defendant's mental health at the time of the incident. "We
5 note that our Supreme Court has 'expressly rejected the contention that the failure
6 to introduce the testimony of an expert witness constitutes ineffective assistance of
7 counsel per se.'" State v. Quinones, 2011-NMCA-018, , 34, 149 N.M. 294, 248
8 P.3d 336 (quoting Lytle v. Jordan, 2001-NMSC-016,, 44, 130 N.M. 198, 22 P.3d
9 	666). Likewise here, Defendant has failed to provide any indication as to whether an
10 expert was available to testify as well as the content of the expert's testimony. See
11 	Quinones, 2011-NMCA-018,, 34 (concluding a defendant did not make a prima
12 facie case of ineffective assistance of counsel because there was "nothing in the
13 	record to indicate that a defense expert was actually available to testify in support of
14 [the d]efendant at trial and what the content of the expert's testimony would have
15 	been").
16 	{21} 	Defendant's reliance on State v. Aragon, 2009-NMCA-102, 147N.M. 26,216,
17 P.3d 276, is misplaced. There, we concluded the defendant demonstrated a prima
18 	facie case of ineffectiveness "based on [counsel's] failure to engage an expert for
19 consultation, combined with her failure to conduct adequate pre-trial interviews of
13

1 the [s]tate's experts." Id 1 15. While expert testimony was the "crux" of the state's
2 case in Aragon, id 112, here, the State did not rely on expert testimony at all.
3 	{22} 	_We therefore conclude that Defendant has not demonstrated a prima facie case
4 	of ineffective assistance of counsel. Our holding today does not preclude Defendant
5 from pursuing these arguments and developing a proper record in habeas corpus
6 proceedings. 1 See State v. Bernal, 2006-NMSC-050, 136, 140 N.M. 644, 146 P.3d
7 289.
8 C. 	Jury Instruction
9 	{23} 	Defendant also argues the district court erred by instructing the jury on how
10 to determine the amount of damage related to criminal damage to property because
11 	the given instruction was confusing. 	In particular, Defendant argues the jury
12 	instruction did not make the two alternative methods of determining the amount of
13 	damage clear to the jury. "The standard of review we apply to jury instructions
14 depends on whether the issue has been preserved." State v. Benally, 2001-NMSC-
15 	033, 1 12, 131 N.M. 258, 34 P.3d 1134. "If the error has been preserved we review
16 the instructions for revers~ble error." Id "If not, we review for fundamental error."
1 Relying 	on 	out-of-state 	and 	federal 	precedent, 	the 	State 	requests 	we
determine as a matter of law that failure of defense counsel to request a· lesser-
included offense jury instruction can never amount to ineffective assistance. This
Court and our Supreme Court have in the past entertained such ineffective assistance
of counsel claims on their merits. See State v. Baca, 1997-NMSC-059, 1123-30, 124
N.M. 333,950 P.2d 776; State v. Jensen, 2005-NMCA-113, 1112-16, 138 N.M. 254,
118 P.3d 762. We decline the State's invitation to depart from this precedent.
14

l 	Id. "Under both standards we seek to determine whether a reasonable juror would
2 have been confused or misdirected by the jury instruction." Id. (internal quotation
3 marks and citation omitted). The parties dispute whether Defendant preserved the
4 jury instruction issue. Because the standard of review is not outcome determinative,
5 we assume for purposes of this appeal that Defendant adequately preserved this issue
6 for appeal, and we review ~he instruction on the amount of damage for reversible
7 error.
8 {24} 	To convict Defendant of criminal damage to property, the jury was instructed
9 it must find beyond a reasonable doubt that Defendant damaged another's property,
10 and that "[t]he amount of damage to the property was more than $1000[.]" The jury
11 	was instructed that "amount of damage" meant:
12
13
14
15
16
[T]he 	difference 	between the 	price 	at 	which 	the 	property 	could
ordinarily be bought or sold prior to the damage and the price at which
the property could be bought or sold after the damage. If the cost of
repair of the damaged property exceeds the replacement cost of the
property, the value of the damaged property is the replacement cost.
17 See UJI 14-1510 NMRA.
18 	{25} 	UJI 14-1510 provides two alternative methods for determining the amount of
19 damage: "The first method is the diminution in the value of the property due to the
20 damage, or the 'before and after value.' The second method is the cost of repair or
21 	replacement, whichever is less." State v. Cobrera, 2013-NMSC-012,, 8, 300 P.3d
22 729 (citations omitted). This Court has explained that "[w]hile [UJI 14-1510] could
15

1 be more clear in separating the two methods of determining amount of damages and
2 describing them as alternatives, it is not so unclear that the jury is left without
3 guidance." State v. Barreras, 2007-NMCA-067,, 7, 141 N.M. 653, 159 P.3d 1138.
4 In light of this reasoning, we see no deficiency in the given instruction and we are
5 not persuaded that a reasonable juror would have been confused or misdirected by
6 the instruction. Accordingly, we conclude the district court did not err in providing
7 the jury with the given instruction.
8 D. 	Double Jeopardy
9 	{26} 	Defendant's final argument is that his convictions for arson and criminal
10 damage to property violate the prohibition against double jeopardy. The United
11 	States and New Mexico Constitutions prohibit any person from being "twice put in
12 jeopardy" for the same offense. U.S. Const. amend. V; N.M. Const. art. II, § 15.
13 	"Double jeopardy presents a question of law, which we review de novo." State v.
14 Sotelo, 2013-NMCA-028,, 18,296 P.3d 1232 (internal quotation marks and citation
15 	omitted). The double jeopardy prohibition against multiple punishments "relates to
16 two general categories of cases: cases in which a defendant has been charged with
17 multiple violations of a single statute based on a single course of conduct, known as
18 	'unit of prosecution' cases; and cases in which a defendant is charged with violations
19 	of multiple statutes for the same conduct, known as 'double-description' cases."
20 State v. DeGraff, 2006-NMSC-Oll,, 25, 139 N.M. 211, 131 P.3d 61. Defendant
16

1 raises a double-description argument that his convictions for arson and criminal
2 damage to property were based on the same conduct.
3 	{27} 	Our Supreme Court adopted "what is generally a two-part inquiry for double-
4 description claims, first analyzing whether the conduct underlying the offenses is
5 unitary, i.e., whether the same conduct violates both statues, and, if so, proceeding
6 to 	analyze whether the 	[L ]egislature intended to 	create 	separately punishable
7 offenses." State v. Gutierrez, 2011-NMSC-024, 151, 150 N.M. 232,258 P.3d 1024
8 (internal quotation marks and citation omitted). "Only if the first part of the test is
9 answered in the affirmative, and the second in the negative, will the double jeopardy
10 clause prohibit multiple punishment in the same trial." Swafford v. State, 1991-
11 	NMSC-043, 125, 112 N.M. 3, 810 P.2d 1223.
12 	{28} 	"Separate punishments are permissible and conduct is not unitary if the
13 	offenses are separated by sufficient indicia of distinctness." State v. Ford, 2007-
14 NMCA-052, 112, 141 N.M. 512, 157 P.3d 77 (internal quotation marks and citation
15 	omitted). "To determine whether a defendant's conduct was unitary, we consider
16 	such factors as whether the acts were close in time and space, their similarity, the
17 	sequence in which they occurred, whether other events intervened, and a defendant's
18 	goals for and mental state during each act." Id. "The conduct question depe~ds to a
19 	large degree on the elements of the charged offenses and the facts presented at trial."
20 State v. Franco, 2005-NMSC-013, 17, 137 N.M. 447, 112 P.3d 1104 (internal
17

1 quotation 	marks 	and 	citation 	omitted). 	"Finally, 	the 	question 	of whether 	a
2 defendant's conduct is unitary is not limited by the [s]tate's legal theory, but rather
3 depends on the elements of the charged offenses and the facts presented at trial."
4 State v. Contreras, 2007-NMCA-045, ,r 21, 141 N.M. 434, 156 P.3d 725 (internal
5 quotation marks and citation omitted). "The proper analytical framework is whether
6 the facts presented at trial establish that the jury reasonably could have inferred
7 independent factual bases for the charged offenses." Franco, 2005-NMSC-013, ,r 7
8 (internal quotation marks and citation omitted).
9 	{29} 	The conduct underlying Defendant's convictions for arson and criminal
10 	damage to property was not unitary. Although Defendant's convictions were based
11 	on the damage he caused in a single location-his motel 	room-Defendant's
12 conduct occurred over the span of several hours. Moreover, Defendant's goals for
13 	each criminal act were different. As Defendant informed the fire investigator, he
14 "started the fire because he wanted to get the officers out of the room[.]" On the
15 	other hand, Defendant broke the mirror in an attempt to prevent the officers from
16 entering the bathroom and disassembled a table for use as a tool to break through the
17 wall into an adjacent room. Defendant's damage to the toilet, and the resulting
18 plumbing and flood damage, also appeared to be guided by an attempt to break
19 through the wall. Finally, the State's legal theory in closing arguments distinguished
20 the damaged property supporting the arson conviction from the damaged property
18

1 supporting the 	criminal damage to 	property conviction. 	See Contreras, 	2007-
2 NMCA-045, 	, 	23 	(concluding 	"that 	[the 	d]efendant's 	conduct 	was 	not
3 unitary[ g]iven that the [s]tate did not limit its legal the·ory to the facts constituting
4 	[one of the] offense[s] and, to the contrary, provided the jury with sufficiently
5 distinct 	factual 	bases 	upon 	which 	it 	could 	base 	[the 	d]efendant's 	[two]
6 conviction[ s]"). 	Both 	criminal 	acts 	could 	therefore 	reasonably 	be 	viewed 	as
7 stemming from independent factual 	bases. 	Concluding the conduct underlying
8 Defendant's convictions for arson and criminal damage was not unitary, we need not
9 reach the second part of our doμble jeopardy analysis.
10 	II. 	CONCLUSION
11 	{30} 	The judgment and sentence are affirmed.
12 {31}
13
14
IT IS SO ORDERED.
15 	WE CONCUR:
16~~
17 J. MILES HANISEE, Judge
18 	~~46 	-19 JEN~ 	L.ATTREP, Judge
~~,(}.~mm. vARGA8,Jge
19