October 25, 2017- State of New Mexico v. Phillip Simmons, No. A-1-CA-34773

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	Opinion Number: -----
3 Filing Date: October 25, 2017
4 	NO. A-l-CA-34773
5 	STATE OF NEW MEXICO,
6 	P laintiff-Appellee,
7 V.
8 PHILLIP SIMMONS,
9 	Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 	Benjamin Chavez, District Judge
12 Hector H. Balderas, Attorney General
13 	Maris V eidemanis, Assistant Attorney General
14 	Santa Fe, NM
15 	for Appellee
16 Bennett J. Baur, Chief Public Defender
17 Nina Lalevic, Assistant Appellate Defender
18 	Santa Fe, NM
19 for Appellant
Filed
Court of Appeals of New Mexico
10/25/2017 8:58:27 AM
Office of the Clerk
Mark Reynolds

1 	OPINION
2 SUTIN, Judge.
3 {I} 	Defendant Phillip Simmons was convicted by a jury of two counts of criminal
4 sexual penetration in the second degree (in the commission ofa felony) (CSP II-felony)
5 in violation ofNMSA 1978, Section 30-9-11 (E)( 5) (2009), one count of criminal sexual
6 penetration 	in the second degree (by force 	or coercion, 	child 	13-18) (CSP II-
7 force/coercion) in violation of Section 30-9-11 (E)(l ), one count of kidnapping in the
8 first degree 	in 	violation 	of NMSA 	1978, 	Section 30-4-1 	(2003), one count 	of
9 distribution of a controlled substance to a minor in the second degree in violation of
10 NMSA 	1978, 	Section 	30-31-21 	(1987), 	and 	one 	count 	of contributing to 	the
11 	delinquency of a minor in violation ofNMSA 1978, Section 30-6-3 (1990). 1
12 	{2} 	On appeal, Defendant argues that (1) the district court failed to instruct the jury
13 	on a required element for the CSP II-felony convictions; (2) there was insufficient
14 evidence to support the jury's guilty verdicts; and (3) this Court must vacate the
15 	kidnapping, distribution of a controlled substance to a minor, or contributing to the
16 	delinquency of a minor convictions, or else reduce the CSP II-felony convictions to
17 1 We note that although the jury clearly found Defendant guilty of two counts of
18 	CSP II-felony and one count of CSP II-force/coercion and the district court recognized
19 those verdicts, the judgment erroneously states that Defendant was convicted of three
20 counts of CSP II-force/coercion.

1 CSP IV because allowing all convictions to stand would violate double jeopardy. We
2 affirm in part and remand in order to vacate Defendant's CSP II-felony convictions.
3 BACKGROUND
4 	{3} 	On an evening in July 2010, Victim, a fifteen-year-old boy, went to a concert
5 with his family. After the concert, Victim planned on attending a party with his family
6 and got a ride with his cousin and his cousin's friend. While in the car, Victim got into
7 an argument with his cousin, at which point his cousin's friend kicked Victim out of the
8 car in downtown Albuquerque near the Alvarado Transportation Center (ATC). Victim,
9 wanting to get home, tried to get a ride home from A TC but was initially unsuccessful.
10 After some time, Defendant pulled up to Victim and offered Victim a ride home.
11 	Defendant told Victim he needed to do something first and drove to a salon. After
12 	going to the salon, Defendant drove Victim to Defendant's apartment.
13 	{4} 	Once at the apartment, Defendant told Victim he had "to get something real
14 quick," and they entered the apartment. Victim testified that he felt "a little bit forced"
15 	to enter the apartment and believed he was threatened. Once inside, Defendant offered
16 Victim a beer, as well as "[c]rack, weed, [and] coke." Victim, feeling pressured,
17 accepted a beer and cocaine, which made him feel "woozy." At that point, Defendant
18 	began touching Victim and sucked Victim's penis. Victim testified that he was
19 "worried about getting home" and that the encounter "made [him] feel ... gross" and
2

1 "[a]shamed of[himself]." Thereafter, Defendant sucked Victim's penis again, and they
2 smoked more cocaine. 	Victim asked to go 	home, but Defendant told him that
3 Defendant would take Victim home "in the morning[.]" Victim protested, telling
4 Defendant that he had to go see his probation officer because Victim was on probation.
5 Defendant then asked for anal sex, and Victim complied because he was afraid that if
6 he did not, he would be anally penetrated. Victim testified that Defendant was larger
7 than him, and he was scared.
8 	{5} 	Defendant eventually took Victim home around 7 :00 a.m. When Defendant
9 dropped Victim off, Defendant provided his name and phone number to Victim, told
10 Victim to call him, and made promises of money and access to his car. When Victim
11 	arrived 	home 	he 	cried, 	took 	multiple 	showers, 	and told 	his 	mother, 	aunt, 	and
12 grandmother what had happened. Victim was examined by a sexual assault nurse
13 	examiner (SANE), who testified that Victim disclosed that he felt coerced to have anal
14 	sex with Defendant and reported being "woken up with his genitals being sucked on[.]"
15 	{6} 	Victim identified Defendant as the perpetrator in a photo array, gave the police
16 a fairly accurate description of Defendant's apartment, and identified Defendant as the
17 perpetrator at trial. A forensic examiner testified at trial that she identified saliva that
18 	contained Defendant's DNA on the inside ofVictim's boxer shorts.
3

1 {7} 	The jury found Defendant guilty of two counts of CSP II-felony, one count of
2 CSP II-force/coercion, 	one count of kidnapping, 	one count 	of distribution of a
3 controlled substance to a minor, and one count of contributing to the delinquency of a
4 minor. For the CSP II-felony counts, the jury was instructed that the State must prove
5 that Defendant caused Victim to engage in fellatio and anal intercourse during the
6 commission of kidnapping or distribution of a controlled substance to a minor or
7 contributing to the delinquency of a minor. However, the jury was not asked to identify
8 which felony it relied upon in reaching its verdicts on the CSP II-felony counts.
9 Defendant was ultimately sentenced to twenty-seven years in prison, with nine years
10 	of the sentence suspended, for a total sentence of eighteen years. This appeal followed.
11 	DISCUSSION
12 	I.
13 	{8}
Jury Instructions-CSP II-felony
Defendant argues that the district court failed to instruct the jury that in order to
14 find Defendant guilty of the CSP II-felony counts, it had to find that there was a causal
15 	link between the felony committed and the CSP. Defendant admits that trial counsel did
16 not request that an instruction be given on the causal link between the CSP II-felony
17 charges and the associated felonies.
18 	{9} 	When a party fails to object to a tendered jury instruction, we review the issue
19 	for fundamental error. See State v. Benally, 200 l-NMSC-033, ,r 12, 131 N.M. 258, 34
4

1 P.3d 1134. Fundamental error "only applies in exceptional circumstances when guilt
2 	is so doubtful that it would shock the judicial conscience to allow the conviction to
3 stand." State v. Baca, 1997-NMSC-045,, 41 , 124 N.M. 55 , 946 P.2d 1066, overruled
4 on other grounds by State v. Belange r, 2009-NMSC-025 , 146 N.M. 357, 210 P.3d
5 783 .
6 {JO} 	In support of his position that fundamental error occurred, Defendant highlights
7 State v. 	Stevens, 2014-NMSC-Ol l, 323 P.3d 901 , arguing when charging CSP II-
8 felony, the associated felony "must be a felony that is committed against the victim of,
9 and that assists in the accomplishment of, sexual penetration perpetrated by force or
10 coercion or against a victim who, by age or other statutory factor, gave no lawful
11 	consent." Id., 39. According to Defendant, the State never argued and the jury never
12 	found a "nexus" between the associated felony, 	i.e., distribution of a controlled
13 	substance to a minor, kidnapping, and/or contributing to the delinquency of a minor, on
14 the one hand, and the two counts of CSP II-felony, on the other hand. Defendant argues
15 	that the jury should have been asked to consider the causal link between the associated
16 	felony and the CSP when rendering its verdict on CSP II-felony, and because the jury
17 never was instructed to find that the felony assisted in the accomplishment of the CSP,
18 	there was fundamental error.
5

1 {11} 	In Stevens, our Supreme Court considered the adequacy of a given CSP II-felony
2 jury instruction and whether the inadequacies in the instruction constituted fundamental
3 error. Id. ,r,r 1-3. The defendant in Stevens was charged with two counts of CSP-II
4 felony, with the associated felony being distribution of a controlled substance to a
5 minor, after the defendant provided her minor daughter with methamphetamine and told
6 her daughter to perform oral sex on the defendant's boyfriend on two occasions. Id.
7 ,r,r 4-6. The defendant argued that her "convictions for CSP II-felony resulted from
8 fundamental error because the jury was not instructed that the [prosecution] had to
9 prove that the sexual activity occurring during the commission of a felony was
10 otherwise criminal[.]" Id. 	,r 12 (internal quotation marks omitted). 	The at-issue
11 	instruction required, in relevant part, that the prosecution prove ( 1) " [t ]he defendant
12 	caused [her] daughter to engage in fellatio on [the defendant's] boyfriend[,]" and
13 	(2) "[t]he defendant committed the act during the commission of distribution of a
14 	controlled substance to a minor[.]" Id. ,r 13 (internal quotation marks omitted). Our
15 	Supreme Court ultimately held that "when a CSP II charge is based on the commission
16 	of a felony, it must be a felony that is committed against the victim of, and that assists
17 	in the accomplishment of, sexual penetration perpetrated by force or coercion or against
18 	a victim who, by age or other statutory factor, gave no lawful consent." Id. ,r 39. The
19 Stevens Court concluded, however, that although the jury instruction was deficient, the
6

1 error was unpreserved and "did not rise to the level of fundamental error." Id. ,r,r 42-43,
2 46. The Court noted that in convicting the defendant, the jury necessarily determined
3 that the defendant caused her boyfriend to sexually penetrate her daughter during the
4 	commission of a felony. Id. ,r 43. Additionally, the Court looked to testimony from the
5 defendant's daughter that she acquiesced to the defendant's request after she was
6 	injected with methamphetamine. Id. ,r 45. Thus, the Court did "not consider guilt to be
7 so doubtful that a conviction would shock the judicial conscience" and affirmed the
8 defendant's convictions. Id. ,r,r 45, 58.
9 	{12} 	In this 	case, 	as 	in Stevens, 	there 1s no fundamental error. Here, 	the jury
10 	instructions on CSP-II felony stated, 	in relevant part, that the State must prove:
11 	(1) 	Defendant 	caused 	Victim 	to 	engage 	in 	fellatio 	and 	anal 	intercourse, 	and
12 (2) Defendant committed the acts during the commission of kidnapping or distribution
13 	of a controlled substance to a minor or contributing to the delinquency of a minor.
14 These instructions are similar to the instruction in Stevens in that they did not instruct
15 	the jury to find that the associated felony must be "committed against the victim of[]
16 and ... assist[] in the accomplishment of' the CSP. Id. ,r 39. But, also as in Stevens,
17 this deficiency does not rise to the level of fundamental error. See id. ,r,r 42-43, 46.
18 	Here, a reasonable juror would not be confused by the instruction, and the connection
19 between the associated felonies and the acts of CSP is so readily apparent that the CSP
7

1 II-felony convictions do not shock the judicial conscience. In this case, the associated
2 felonies, i.e. , kidnapping, distribution of a controlled substance to a minor, and
3 contributing to the delinquency of a minor, were all committed against Victim, as
4 	evidenced by the guilty verdicts for those felonies. Additionally, there can be no doubt
5 that Defendant was assisted in carrying out the CSPs against Victim by the commission
6 	of the associated felonies.
7 II. 	Sufficiency of the Evidence
8 	{13} 	Defendant argues that there was insufficient evidence to support his convictions
9 for 	kidnapping, distribution of a controlled 	substance to 	a minor, CSP 	II, and
10 	contributing to the delinquency of a minor. " In reviewing the sufficiency of the
11 	evidence, [the appellate courts] must view the evidence in the light most favorable to
12 	the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the
13 	evidence in favor of the verdict." State v. Cunningham , 2000-NMSC-009, il 26, 128
14 N.M. 711 , 998 P.2d 176. " The relevant question is whether, after viewing the evidence
15 	in the light most favorable to the prosecution, any rational trier of fact could have found
16 the essential elements of the crime beyond a reasonable doubt." Id . (alteration,
17 emphasis, internal quotation marks, and citation omitted). Further, " [c ]ontrary evidence
18 	supporting acquittal does not provide a basis for reversal because the jury is free to
19 reject [the d]efendant's version of the facts[,]" State v. Rojo, 1999-NMSC-001 , il 19,
8

1 126 N.M. 438, 971 P.2d 829, and we defer to the fact-finder "when it weighs the
2 	credibility of witnesses and resolves conflicts in witness testimony." State v. Salas,
3 	1999-NMCA-099, ,r 13, 127 N.M. 686, 986 P.2d 482.
4 A. 	Distribution 	of 	a 	Controlled 	Substance 	to 	a 	Minor, 	CSP 	II, and
5 	Contributing to the Delinquency of a Minor
6 	{14} 	Defendant's argument regarding the distribution of a controlled substance to a
7 minor conviction is that, although Victim testified he was offered various drugs, a drug
8 test was not performed, and thus the evidence is insufficient. His argument against the
9 three CSP II convictions is that Victim's testimony was "almost nonsensical." And
10 Defendant 's argument against contributing to the delinquency of a minor is that there
11 	was no evidence that Defendant gave Victim alcohol or controlled substances. We
12 reject all of these arguments because they request that this Court usurp the role of the
13 jury as fact-finder and supplant the jury's view of the evidence with our own.
14 	{15} 	At trial, Victim testified that Defendant provided him with drugs and alcohol and
15 	that there were three sexual encounters. Victim identified Defendant as the perpetrator
16 at trial, and a forensic examiner testified at trial that she identified saliva that contained
17 Defendant 's DNA on the inside of Victim's boxer shorts. See id. Simply because the
18 	evidence presented at trial could have been bolstered by a drug test or clearer testimony
19 does not mean that there was insufficient evidence to convict Defendant of his crimes.
9

1 See Rojo, 1999-NMSC-001 , ,r 19. Given the testimony, we hold there was sufficient
2 evidence to uphold Defendant's convictions for distribution of a controlled substance
3 to a minor, CSP II, and contributing to the delinquency of a minor.
4 B. 	Kidnapping
5 {16} 	Defendant argues that there was insufficient evidence of kidnapping because the
6 Victim willingly entered Defendant's car and that, after driving to the salon and
7 Defendant's apartment, "a savvy boy like [Victim] would have begun to suspect that
8 the ride home was not going to happen any time soon." Defendant argues that there was
9 no 	kidnapping by deception because Victim went voluntarily into Defendant's
10 apartment, and Victim never testified that he was physically restrained by Defendant.
11 	Defendant argues that it is unclear at what point the physical association between him
12 and Victim was no longer voluntary, and thus it was unreasonable for the jury to
13 	convict Defendant of kidnapping.
14 {I 7} 	We are unpersuaded. To support a conviction for kidnapping, the jury instruction
15 	required proof, in relevant part, that Defendant "took or restrained or confined or
16 transported [Victim] by force or intimidation or deception[, and] intended to hold
17 [Victim] against [Victim's] will to inflict death, physical injury or a sexual offense on
18 	[Victim.]" 	See 	§ 30-4-l(A)(4) ("Kidnapping 	is 	the unlawful taking, restraining,
10

1 transporting or confining of a person, by force, 	intimidation or deception, with
2 intent ... to inflict death, physical injury or a sexual offense on the victim.").
3 	{18} 	Kidnapping by deception "can occur when an association [between a victim and
4 a defendant] begins voluntarily but the defendant's actual purpose is other than the
5 reason the victim voluntarily associated with the defendant." State v. Jacobs, 2000-
6 NMSC-026, if 24, 129N.M. 448, 10 P.3d 127; see State v. Laguna, 1999-NMCA-152,
7 ,r,r 2, 12, 17 , 128 N.M. 345,992 P.2d 896 (describing kidnapping by deception where
8 the victim was offered a ride and the defendant "conceal[ ed his] intent of exploring
9 sexual involvement with [the victim]").
10 	{19} 	Here, Victim testified that he was led to believe that Defendant was going to give
11 	him a ride home, even though Defendant made two stops. Once at the apartment,
12 	Victim testified that he felt "a little bit forced" to enter the apartment and believed he
13 	was threatened. The jury could have reasonably found that Victim's association with
14 Defendant was based on a deception when Defendant ( 1) lied by offering Victim a ride
15 	home with another intent in mind, (2) lied to Victim when he said he would drive
16 Victim home after stopping at the salon, or (3) lied to Victim when he said he would
17 drive Victim home after stopping at the apartment "to get something real quick[.]"
18 	Additionally, 	as noted by the State, the jury could have reasonably found that
19 Defendant used intimidation as part of the kidnapping as evidenced by the physical
11

1 disparities between Defendant and Victim, Victim' s testimony that Defendant told him
2 	to go into the apartment, and Victim' s testimony that he felt forced.
3 	{20} 	We are also unpersuaded by Defendant's argument that " a savvy boy like
4 	[Victim] would have begun to suspect that the ride home was not going to happen any
5 time soon." As with his sufficiency of the evidence arguments regarding his other
6 convictions, Defendant is essentially asking this Court to re-weigh the evidence and
7 make alternative determinations about Victim' s credibility and what Victim should
8 have believed. As we have stated, we defer to the fact-finder regarding such issues. See
9 Sala s, 1999-NMCA-099, ,r 13. And we do "not re-weigh the evidence to determine if
10 there was another hypothesis that would support innocence[.]" State v. Garcia, 2005-
11 	NMSC-017, ,r 12, 138 N.M . 1, 116 P.3d 72.
12 	III. 	Double Jeopardy
13 	{21} 	Defendant argues on appeal that, with respect to each of the two CSP II-felony
14 convictions, this Court on double jeopardy grounds must vacate either the kidnapping,
15 	distribution of a controlled substance to a minor, or contributing to the delinquency of
16 	a minor convictions. Defendant compares CSP II-felony to felony murder, arguing that
17 CSP II-felony is a compound crime that requires a finding of CSP and the associated
18 	felony and that the associated felony is thus subsumed within the CSP II-felon y. See
19 State v. Frazier, 2007-NMSC-032, ,r 1, 142 N.M. 120, 164 P.3d 1 (holding under
12

1 double jeopardy principles that "the predicate felony is always subsumed into a felony
2 murder conviction, and no defendant can be convicted of both"); State v. Tsethlikai,
3 	1989-NMCA-107, ,r 8, 109 N.M. 371, 785 P.2d 282 (noting that CSP II-felony is a
4 compound crime). Defendant argues in his brief in chief that kidnapping "is the most
5 likely crime to be violative of double jeopardy" and thus suggests that the kidnapping
6 conviction is "subsumed into the CSP II[-felony] convictions" and must be vacated.
7 However, in his reply brief, Defendant appears to change his position, suggesting that
8 "the proper remedy in this case would be to reduce the CSP II to a CSP IV2 because
9 it is impossible to know upon which alternative [associated felony] the jury relied."
10 And Defendant requests that "this Court vacate the CSP II and enter the lesser included
11 	offense [of CSP IV] that is not based upon a finding that violates double jeopardy."
12 	{22} 	In its answer brief, the State agrees that a conviction must be vacated. But the
13 	State argues that the conviction for contributing to the delinquency of a minor, the
14 	lesser of the three predicate felonies, should be vacated because, per Frazier, "if the
15 	facts support multiple charges of a particular felony which can be sustained under a
16 unit[]ofl]prosecution analysis, then the [prosecution] is free to use one of those charges
17 2 CSP IV requires that a defendant be guilty of sexual penetration of a child
18 	thirteen to sixteen by a person who is at least eighteen years old and at least four years
19 older than the victim, and in this case, the jury was instructed as to CSP IV as a lesser
20 	included offense of CSP II-felony. Section 30-9-1 l(G)(l).
13

1 as the predicate felony and obtain separate convictions for the other charges." 2007-
2 NMSC-032, ,r 27. Additionally, the State notes that our Supreme Court has held that
3 	if a double jeopardy violation is found, the appellate courts "must vacate the conviction
4 for the lesser offense." State v. Gonzales, 2007-NMSC-059, ,r 10 , 143 N.M. 25 , 172
5 P.3d 16 2.
6 	{23 } 	Because Defendant' s argument that his CSP II-felony convictions should be
7 vacated and remanded for sentencing as CSP IV convictions was argued for the first
8 time in his reply brief, we need not and do not address that argument. See Guest v.
9 Berardinelli, 2008-NMCA-144, ,r 36, 145 N.M. 186, 195 P.3d 353 (" [W]e do not
10 	consider arguments raised in a reply brief for the first time."); State v. Druktenis, 2004-
11 	NMCA-03 2, ,r 122, 135 N.M. 223, 86 P.3d 1050 (" We will not consider issues raised
12 for the first time in an appellant's reply brief." ). But even if Defendant had earlier
13 	proposed his solution oflowering his CSP II-felony convictions to CSP IV convictions,
14 we would not be inclined to adopt his proposed solution because he failed to develop
15 	the argument and cited no authority in support of that maneuver. See State v. Vi gil-
16 	Giron, 2014-NMCA-069, ,r 60, 327 P.3d 1129 (" [A]ppellate courts will not consider
17 an issue if no authority is cited in support of the issue and that, given no cited authority,
18 	we assume no such authority exists[.]"); State v. Fuentes, 2010-NMCA-027, ,r 29, 147
19 N.M. 761 , 228 P.3d 1181 (noting that we will "not review unclear or undeveloped
14

1 arguments [that] require us to guess at what [a party's] arguments might be"); see also
2 State v. Clifford, 1994-NMSC-048, ,r 19, 117 N.M. 508, 873 P.2d 254 (reminding
3 counsel that the appellate courts "are not required to do their research" and stating that
4 "conclusory statement[s] will not suffice and [are] in violation of our [R]ules of
5 [A]ppellate [P]rocedure").
6 	{24} 	Although it is unclear which associated felony was relied upon by the jury in
7 reaching its guilty verdicts for the two CSP II-felony counts, we focus on Defendant's
8 argument that the kidnapping and CSP II-felony convictions violate double jeopardy.
9 Defendant asks this 	Court to consider vacating the distribution 	of a controlled
10 	substance conviction or contributing to the delinquency of a minor conviction only if
11 	we disagree that the CSP II-felony and kidnapping convictions violate double jeopardy.
12 Because, as explained later in this opinion, we hold that convicting Defendant for both
13 	kidnapping and CSP II-felony would violate double jeopardy and because we instruct
14 the district court to vacate the CSP II-felony convictions, we need not and do not
15 	address Defendant's alternative arguments that his convictions for distribution and/or
16 contributing to the delinquency would violate double jeopardy if coupled with the CSP
17 II-felony convictions.
18 	{25} 	Double jeopardy challenges involve constitutional questions of law that we
19 review de novo. See State v. Melendrez, 2014-NMCA-062, ,r 5, 326 P.3d 1126. The
15

1 prohibition against double jeopardy "functions in part to protect a criminal defendant
2 against multiple punishments for the same offense." State v. Swick, 2012-NMSC-018,
3 ,r 10, 279 P.3d 747 (internal quotation marks and citation omitted). Double jeopardy
4 multiple-punishment cases are divided into two classifications: (1) multiple convictions
5 under a single statute are "un it of prosecution" cases; and (2) multiple convictions
6 under separate statutes resulting from the same conduct are "dou ble description" cases.
7 Id. Because we are dealing with multiple convictions under separate statutes, this is a
8 double description case. For double description cases, we apply the two-part test set
9 forth in Swafford v. State, 1991-NMSC-043, if 25, 112 N.M. 3, 810 P.2d 1223: (1)
10 whether the conduct is unitary; and (2) if so, whether the Legislature intended to punish
11 	the offenses separatel y. State v. Silvas, 2015-NMSC-006, ,r 9, 343 P.3d 616.
12 A. 	Unitary Conduct
13 	{26} 	In analyzing a double description multiple-punishment claim, we first determine
14 whether the underlying conduct for the offenses is unitary. See Swafford, 1991-NMSC-
15 	043, ,r 25. "Conduct is not unitary if sufficient indicia of distinctness separate the
16 transaction into several acts." State v. Montoya, 2011-NMCA-074, ,r 31, 150 N.M.
17 415, 259 P .3d 820 (internal quotation marks and citation omitted). In specifically
18 	analyzing whether the conduct underlying kidnapping and CSP II-felony convictions
19 is unitary, this Court has held that "unitary conduct occurs when the [prosecution]
16

1 bases its theory of [kidnapping] on the same force used to commit CSP II[-felony] even
2 though there were alternative ways to charge the crime." Id. ,r 37. Stated another way,
3 "because some force or restraint is involved in every sexual penetration without
4 consent, [kidnapping] cannot be charged out of every CSP without a showing of force
5 or restraint separate from the CSP." Id . ,r 38.
6 	{27} 	In the present case, the jury could have found that Defendant's kidnapping of
7 Victim was complete when he deceived Victim into entering his car by offering Victim
8 a ride home. The jury could also have found that the kidnapping was accomplished
9 when Victim, feeling forced and intimidated, entered Defendant's apartment and
10 remained while the ensuing acts of CSP occurred. When the conduct underlying two
11 	convictions could be unitary under the facts, but we are unsure if the jury relied on that
12 	unitary conduct for both convictions, we nevertheless assume for the purposes of our
13 	double 	jeopardy 	analysis 	that 	the 	conduct 	was 	unitary 	because 	one 	of the
14 options/alternatives/scenarios is legally inadequate. See id. ,r 39 (acknowledging the
15 	principle that "we must reverse a conviction if one of the alternative bases for the
16 	conviction provided in the jury instructions is legally inadequate because it violates a
17 defendant's constitutional right to be free from double jeopardy" and concluding that
18 	the conduct in the kidnapping and CSP was unitary for the purposes of double jeopardy
19 	because this Court was unable to determine from the record when the kidnapping was
17

1 accomplished (internal quotation marks and citation omitted)); see also State v. Foster,
2 	1999-NMSC-007, ,r 27, 126 N.M. 646, 974 P. 2d 140 ("[T]he Double Jeopardy Clause
3 	... require[ s] a conviction under a general verdict to be reversed if one of the
4 	alternative bases for conviction provided in the jury instructions is legally inadequate
5 because it violates a defendant 's constitutional right to be free from double jeopardy[.]"
6 (internal quotation marks omitted)), abrogation on other grounds recognized by
7 Kersey v. Hatch, 2010-NMSC-020, ,r 17, 148 N.M. 381, 237 P.3d 683.
8 	{28} 	As we stated in Section (I), supra, we have no doubt that Defendant was assisted
9 in carrying out the acts of CSP by the commission of the associated felonies. And if the
10 jury could have found that the kidnapping was accomplished during the CSPs, which
11 	is possible given the testimony, the conduct would be unitary because the force used
12 	for the kidnapping would be the same force used for the CSPs. We therefore conclude,
13 	for the purposes of our double jeopardy analysis, that the conduct was unitary.
14 B. 	Legislative Intent
15 	{29} 	Where unitary conduct forms the basis for multiple convictions, we next "inquire
16 whether [the d]efendant has been punished twice for the same offense, and if so,
17 whether the Legislature intended that result." Silvas, 2015-NMSC-006, ,r 11. "In
18 	analyzing legislative intent, [the appellate courts] first look to the language of the
19 statute itself." Swick, 2012-NMSC-O 18, ,r 11. In the absence of an express statement
18

1 of legislative intent, we apply the rule of statutory construction from Blockburger v.
2 	United States, 284 U.S. 299, 304 (1932), to ensure that "each provision requires proof
3 	of a fact the other does not." Swafford, 1991-NMSC-043, ,r 10 (internal quotation
4 marks omitted). "If that test establishes that one statute is subsumed within the other,
5 the 	inquiry 	is 	over 	and 	the 	statutes 	are 	the 	same 	for 	double 	jeopardy
6 purposes-punishment cannot be had for both." Id. ,r 30. When punishment cannot be
7 had for both, "[t]he general rule requires that the lesser offense be vacated ... 	[and]
8 	... the degree of felony ... is an appropriate measure of legislative intent regarding
9 which of two offenses is a greater offense." Swick, 2012-NMSC-O 18, ,r 31 (third
10 	omission in original) (internal quotation marks and citation omitted). "If one statute
11 	requires proof of a fact that the other does not, then the Legislature is presumed to have
12 	intended a separate punishment for each statute without offending principles of double
13 jeopardy. That presumption, however, is not conclusive and it may be overcome by
14 other indicia of legislative intent." 	Silvas, 	2015-NMSC-006, 	,r,r 	12-13 	(internal
15 	quotation marks and citations omitted).
16 	{30} 	"When appiyingBlockburger to statutes that are vague and unspecific or written
17 with many alternatives, we look to the charging documents and jury instructions to
18 	identify the specific criminal causes of action for which the defendant was convicted."
19 Statev. Ramirez, 2016-NMCA-072, ,r 18, 387P.3d266, cert. denied, 2016-NMCERT-
19

1 _ 	(No. S-1-SC-35949, July 20, 2016). The jury instructions in the present case for
2 the CSP II-felonies required the jury to find that Defendant caused Victim to engage
3 in fellatio and anal intercourse during the commission of kidnapping or distribution of
4 	a controlled substance to a minor or contributing to the delinquency of a minor. The
5 jury instruction for the separate crime of kidnapping required the jury to find that
6 Defendant took, restrained, or transported Victim by force, intimidation, or deception
7 with the intent to hold Victim against his will to inflict a sexual offense on him.
8 {31} 	In comparing the two offenses of CSP II-felony and kidnapping as charged, we
9 look to Montoya, 2011-NMCA-074, , 	42, as instructive. In Montoya, this Court
10 considered whether the defendant' s right to be free from double jeopardy was violated
11 	when he was convicted of both CSP II-felony and the associated felony of either
12 aggravated burglary or kidnapping. Id., 28. After holding that the conduct underlying
13 	the CSP II-felony conviction and the aggravated burglary conviction was not unitary,
14 but that the conduct underlying the CSP II-felony conviction and kidnapping conviction
15 	could be unitary, this Court turned to legislative intent. Id. ,, 34, 39-40. In evaluating
16 	legislative intent, we looked to the jury instructions provided for the CSP II-felony
17 count and the kidnapping count and determined that the CSP II-felony instruction
18 "required the jury to find that [the d]efendant caused [the v]ictim to engage in sexual
19 	intercourse during the commission of [kidnapping] or aggravated burglary." Id. , 41.
20

1 Per the jury instructions, this Court concluded that CSP II-felony required proof of all
2 	of the elements of kidnapping, and thus the kidnapping conviction was subsumed within
3 the CSP II-felony conviction. Id. ,r 42.
4 	{32} 	Here, similar to Montoya, our analysis of the jury instructions for the CSP II-
5 felony and kidnapping charges supports a conclusion that kidnapping is subsumed
6 within the CSP II-felony convictions. See id. We therefore remand to the district court
7 with instructions to vacate Defendant's conviction for the lesser offense, see id. ,r 43,
8 which means "vacat[ing] the conviction carrying the shorter sentence." State v.
9 Montoya, 2013-NMSC-020, ,r 55 , 306 P.3d 426. Under the facts of this case, because
10 Defendant' s conviction for kidnapping was a first degree felony conviction and his
11 	convictions for CSP II-felony were second degree felony convictions, the CSP II-felony
12 convictions are the lesser offenses. We, therefore, instruct the district court to vacate
13 	the CSP II-felony convictions, leaving the kidnapping conviction.3 See Montoya v.
14 3 We acknowledge that stating the kidnapping is subsumed, while holding that
15 	kidnapping was the greater offense as compared to CSP II-felony, seems irregular.
16 "Subsume" means to "include or place something within something larger or more
17 comprehensive[.]" Merriam-Webster 's Collegiate Dictionary 490 (11th ed. 2005). Yet
18 	here we are also holding that the subsumed offense is the greater offense. As noted by
19 our Supreme Court in Montoya, 2013-NMSC-020, ,r 56, " as a matter of policy, it
20 would be unacceptable for us to hold that where a person' s criminal conduct would
21 	have violated either of two statutes, a defendant can escape liability for the one carrying
22 the greater punishment by committing the crime in such a manner as to also violate the
23 	statute carrying the lesser penalty."
21

1 Driggers, 2014-NMSC-009,, 9, 320 P.3d 987 (noting that the district court complied
2 with this Court's mandate to vacate the lesser conviction of CSP II-felony because,
3 	between CSP II-felony and kidnapping (first degree), CSP II-felony was the lesser
4 conviction); Swick, 2012-NMSC-018,, 31 ("The general rule requires that the lesser
5 offense be vacated . .. [and] ... the degree of felony ... is an appropriate measure of
6 legislative intent regarding which of two offenses is a greater offense." (third omission
7 	in original) (alteration, internal quotation marks, and citation omitted)).
8 	CONCLUSION
9 	{33} 	For the reasons set forth in this opinion, we remand to the district court with
10 	instructions to vacate Defendant's CSP II-felony convictions. We affirm the district
11 	court's judgment in all other respects.
12 	{34} 	IT IS SO ORDERED.
13
14
15 	WE CONCUR:
17 M. MONICA ZAMO 	dge
22