May 25, 2016 – State of New Mexico v. Ramirez, No. 34,303

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: May 25, 2016

NO. 34,308

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

JAMES J OSEPH RAMIREZ,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Jerry H. Ritter, Jr., District J udge

Hector H. Balderas, Attomey General
Santa Fe, NM
Jane A. Bemstein, Assistant Attomey General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
VANZI, Judge.
{1} 	A jury found Defendant James Joseph Ramirez guilty of several crimes arising
from a home invasion where a child victim was home alone. Defendant asserts on
appeal that (1) multiple punishments violate his right to be free from double jeopardy,
(2) there was insufficient evidence to support his conviction for child endangerment,
and (3) the restraint used to convict him of kidnapping was incidental to the
commission of another crime. We affirm in all respects.
BACKGROUND
{2} 	The facts are not in dispute. Victim was a child—fifteen at the time of the
incident—who was home alone one night while his older brothers worked and his
parents attended a Christmas party. He heard a knock at the door and answered to find
a man wearing a hooded sweatshirt with the hood pulled low over his eyes. The
identity of the hooded man would later be the only real concern at trial, but for our
purposes on appeal, it is uncontested that he was Defendant.
{3} 	Defendant asked if Victim’s parents were home. Victim, who was naturally
suspicious, lied and responded that they were. Defendant then attempted to force his
way inside, and the Victim attempted to block the doorway until Defendant pulled a
revolver from his waist, prompting Victim to retreat into the house.

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{4} 	Victim ran to the living room, realized his mother had blocked the back door
with laundry, so he stopped and got on his knees. Defendant, who had followed
Victim inside, picked him up by his shirt and pointed the gun up and down his body.
He ordered Victim to lock the door and then asked if “Alyssa” was home. Victim
responded that he did not know anyone by that name. Defendant then followed Victim
from room to room, forcing him at gunpoint to open each door so Defendant could
look inside. Having apparently concluded that there was, in fact, no “Alyssa” at the
residence, Defendant remarked, “shit, wrong house,” and left.
DISCUSSION
Sufficiency of the Evidence
{5} 	This is a double jeopardy case at its core, but we will begin by disposing of two
cursory arguments that (1) there is insufficient evidence of child endangerment
because the State did not prove Defendant knew Victim was a child, and (2) the
restraint used to kidnap Victim was incidental to Defendant’s conviction for child
endangerment. When the sufficiency of the evidence is challenged, “we must view the
evidence in the light most favorable to the conviction.” State v. Wade, 1983-NMCA-
084, ¶ 11, 100 N.M. 152, 667 P.2d 459.
{6} 	To be convicted of child endangerment under NMSA 1978, Section 30-6-
1(D)(1) (2009), a defendant must act “with reckless disregard in relation to the safety

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or health of [a child] specifically.” State v. Gonzales, 2011-NMCA-081, ¶ 25, 150
N.M. 494, 263 P.3d 271. The standard is not entirely clear; but even assuming—for
the purposes of this argument—that the State was required to prove that Defendant
was subjectively aware that Victim was a child, the evidence is still sufficient to
support the conviction.
{7} 	Victim was fifteen years old when Defendant knocked at his door and seventeen
when he testified before the jury. He testified that Defendant’s immediate question
when the two met face-to-face was “are your parents home?” That alone is sufficient
evidence for the jury to infer Defendant’s awareness that the person he would later
hold at gunpoint was a child. See State v. Graham, 2005-NMSC-004, ¶ 13, 137 N.M.
197, 109 P.3d 285 (stating that the appellate courts “view the evidence as a whole and
indulge all reasonable inferences in favor of the jury’s verdict”); State v. Montoya,
1966-NMSC-224, ¶ 10, 77 N.M. 129, 419 P.2d 970 (“Knowledge, like intent, is
personal in its nature and may not be susceptible of proof by direct evidence. It may,
however, be inferred from occurrences and circumstances.”).
{8} 	Defendant next admits—somewhat paradoxically—that he committed child
endangerment but asserts that we must vacate his conviction for kidnapping because
the Legislature did not intend kidnapping to be predicated on restraint incidental to the
offense 	he 	committed. 	Defendant 	characterizes 	this 	as 	an 	issue 	of 	statutory

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interpretation, for which our review is de novo. See State v. Trujillo, 2012-NMCA-
112, ¶ 7, 289 P.3d 238 (“Whether the Legislature intended restraint during an
aggravated 	battery 	to 	be 	charged 	as 	kidnapping 	is 	a 	question 	of 	statutory
interpretation.”), cert. quashed, 2015-NMCERT-003, 346 P.3d 1163. But even
assuming that Defendant’s interpretation of the statutes at issue is correct and that the
limitations on kidnapping in Trujillo (which was an aggravated battery case) similarly
apply in a child abuse case, the testimony, as a matter of fact, does not support the
notion that Victim’s restraint was incidental to child endangerment. See id. ¶ 6
(viewing the facts “in the light most favorable to the conviction”); see also State v.
Sotelo, 2013-NMCA-028, ¶¶ 29-30, 296 P.3d 1232 (applying a sufficiency of the
evidence standard to the question of whether restraint is incidental to a separate
crime).
{9} 	In 	Trujillo, we held that the restraint needed to effect a minutes-long
battery—“a momentary grab in the middle of a fight”—was not conduct that was
contemplated by the kidnapping statute because it was “merely incidental” to the
battery. 2012-NMCA-112, ¶¶ 6, 8. In Trujillo, we identified three tests employed in
other jurisdictions to determine whether restraint is incidental to another offense but
ultimately concluded that “the overarching question . . . is whether the restraint or

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movement increases the culpability of the defendant over and above his culpability for
the other crime.” Id. ¶ 6.
{10} 	Victim testified that he ran to the living room and stopped and got on his knees
before Defendant entered, and that Defendant picked him up by his shirt and pointed
the gun up and down his body. The State argued to the jury that this particular conduct
was the basis for the child endangerment charge. Defendant then, according to
Victim’s testimony, ordered Victim to lock the door and forced him at gunpoint to
assist in a futile room-to-room search for an individual not present in the home. This
search, “with [the] gun pressed to the back of [Victim’s] head,” was the factual basis
in the State’s closing argument for the kidnapping charge.
{11} 	We conclude that the prolonged search for “Alyssa,” in which Victim was held
to service to open each door in the home, turn on each light, and allow Defendant to
explore each empty room, increased Defendant’s culpability over and above his
culpability in endangering Victim by pointing the gun at him in the first instance.
Thus, the restraint in this case is not incidental to child endangerment under the
standards enunciated in Trujillo. We affirm Defendant’s conviction for kidnapping.
Double Jeopardy
{12} 	Defendant argues that his convictions for aggravated burglary and aggravated
assault (both with a deadly weapon) are subsumed into his conviction for child

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endangerment. In the event his other arguments are unsuccessful, Defendant argues
that burglary was improperly aggravated because the same firearm was used to
support 	his 	conviction 	for 	aggravated 	assault. 	These 	contentions 	all 	invoke
constitutional protections against double jeopardy.
{13} 	The right to be free from double jeopardy protects against both successive
prosecutions and multiple punishments for the same offense. Swafford v. State, 1991-
NMSC-043, ¶ 6, 112 N.M. 3, 810 P.2d 1223. There are two types of multiple
punishment cases: (1) unit of prosecution cases, in which an individual is convicted
of multiple violations of the same criminal statute; and (2) double-description cases,
in which a single act results in multiple convictions under different statutes. Id. ¶¶ 8-9.
Defendant’s arguments, involving separate statutes, raise only double-description
concerns.
{14} 	Our courts apply a two-step inquiry to double-description claims. Id. ¶ 25. First,
we analyze the factual question, “whether the conduct underlying the offenses is
unitary, i.e., whether the same conduct violates both statutes[,]” and if so, we consider
the legal question, “whether the [L]egislature intended to create separately punishable
offenses.” Id. “If it reasonably can be said that the conduct is unitary, then [the
appellate courts] must move to the second part of the inquiry. Otherwise, if the
conduct is separate and distinct, [the] inquiry is at an end.” Id. ¶ 28.

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A. 	Aggravated Burglary and Child Endangerment
{15} 	Defendant first argues that he cannot be punished for both aggravated burglary
(with a deadly weapon) and child endangerment. That argument fails the unitary
conduct portion of the analysis. “[W]e will find that conduct is not unitary when the
illegal acts are separated by sufficient indicia of distinctness.” State v. Mora, 2003-
NMCA-072, ¶ 18, 133 N.M. 746, 69 P.3d 256 (internal quotation marks and citation
omitted). Relevant considerations include the quality and nature of the individual acts,
their objectives and results, and their separation in time or physical distance. Id. As
a general rule, conduct is not unitary when there is “an identifiable point at which one
of the charged crimes ha[s] been completed and the other not yet committed.” State
v. DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61.
{16} 	The jury was instructed to convict Defendant of aggravated burglary if it found
that he “entered a dwelling without authorization” and “with the intent to commit an
aggravated assault once inside” while “armed with a handgun.” The offense of
burglary is complete upon unauthorized entry with the requisite intent. State v. Office
of Pub. Def. ex rel. Muqqddin, 2012-NMSC-029, ¶ 41, 285 P.3d 622. “Accordingly,
the crime of aggravated burglary was completed as soon as Defendant, with the
requisite intent, gained entry to Victim’s [home] while armed with a [handgun].” State
v. Montoya, 2011-NMCA-074, ¶ 34, 150 N.M. 415, 259 P.3d 820.

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{17} 	The State’s theory for child endangerment, evident in its closing argument, was
that Defendant “forc[ed his] way into a child’s home” and “plac[ed] a gun to [his]
head, showing . . . active disregard for that child’s health.” Because the crime of
aggravated burglary was complete upon entry and before Defendant endangered
Victim by pointing the gun to his head, the conduct is not unitary, and multiple
punishments are authorized. See, e.g., State v. Bernal, 2006-NMSC-050, ¶ 11, 140
N.M. 644, 146 P.3d 289; DeGraff, 2006-NMSC-011, ¶ 27; see also Swafford, 1991-
NMSC-043, ¶ 28 (“[I]f the conduct is separate and distinct, [the] inquiry is at an
end.”).
B. 	Aggravated Assault and Child Endangerment
{18} 	Defendant next argues that his conviction for aggravated assault is subsumed
into his child endangerment conviction. Since the parties do not dispute that the
conduct underlying these offenses is unitary, we limit our analysis to legislative intent.
“Determinations of legislative intent, like double jeopardy, present issues of law that
are reviewed de novo, with the ultimate goal of such review to be facilitating and
promoting the [L]egislature’s accomplishment of its purpose.” State v. Montoya,
2013-NMSC-020, ¶ 29, 306 P.3d 426 (alterations, internal quotation marks, and
citation omitted). When, as here, the statutes themselves do not expressly provide for
multiple punishments, we begin by applying the rule of statutory construction from

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Blockburger v. United States, 284 U.S. 299 (1932), to ensure that each provision
requires proof of a fact that the other does not. Swafford, 1991-NMSC-043, ¶¶ 10, 30.
When applying Blockburger to statutes that are vague and unspecific or written with
many alternatives, we look to the charging documents and jury instructions to identify
the specific criminal causes of action for which the defendant was convicted. State v.
Gutierrez, 2011-NMSC-024, ¶¶ 53, 58, 150 N.M. 232, 258 P.3d 1024.
{19} 	Aggravated assault is committed when one “assault[s] . . . another with a deadly
weapon[.]” NMSA 1978, § 30-3-2(A) (1963). Assault, as charged in this case, is
defined in NMSA 1978, Section 30-3-1(B) (1963), as “any unlawful act, threat or
menacing conduct which causes another person to reasonably believe that he is in
danger of receiving an immediate battery[.]” The specific menacing conduct charged
in the jury instruction was that Defendant “pointed a gun at [Victim.]”
{20} 	Section 30-6-1(D)(1) makes it a crime to recklessly cause or permit a child to
be “placed in a situation that may endanger the child’s life or health[.]” State v.
Consaul, 2014-NMSC-030, ¶¶ 29, 37-38, 332 P.3d 850. Neither the indictment nor
the jury instructions shed any light on the State’s trial theory for the child
endangerment charge, but in its closing argument, the State made it clear that Victim
was endangered by the gun: “We know what firearms do,” the State told the jury. “We

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know what they’re intended to do. They’re intended to wound and kill. Clearly, this
places [Victim] in danger of that.”
{21} 	Defendant contends that since the State’s theory was that child endangerment
and aggravated assault were both committed when Defendant pointed a gun at Victim,
he is twice being punished for “one act of threatening a child in violation of double
jeopardy” according to the modified Blockburger analysis that our Supreme Court
adopted in Gutierrez, 2011-NMSC-024, ¶¶ 58-59. Gutierrez all but overruled State
v. McGruder, 1997-NMSC-023, 123 N.M. 302, 940 P.2d 150, abrogated on other
grounds by State v. Chavez, 2009-NMSC-035, ¶ 16, 146 N.M. 434, 211 P.3d 891, to
hold that the only essential element of an offense prohibiting the unlawful taking of
a motor vehicle was logically subsumed within the “anything of value” element of the
robbery statute because the jury in that case was charged to find that the taking of a
1996 Oldsmobile satisfied both offenses. Gutierrez, 2011-NMSC-024, ¶¶ 53, 58-59.
Specifically, the Court refused to apply Blockburger to the statutes in the abstract,
opting instead to look to the jury instructions to identify the case-specific meaning of
robbery’s generic statutory term, “anything of value.” Gutierrez, 2011-NMSC-024, ¶
59. Because the jury instruction for robbery in Gutierrez expressly required proof that
a 1996 Oldsmobile was taken, the unlawful taking of a motor vehicle was a lesser

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included offense of robbery and punishment could not be had for both the greater and
lesser offense. Id. ¶¶ 58-60.
{22} 	We do not believe that Gutierrez stands for a return to the fact-based, ad hoc
double jeopardy adjudications that were rejected in Swafford. See Gutierrez, 2011-
NMSC-024, ¶ 78 (Bosson, J., specially concurring) (cautioning against looking
beyond the indictment and jury instructions in a Blockburger analysis). Nor do we
consider it an invitation to carelessly overturn convictions for offenses that involve
some overlapping conduct or share a single element. See State v. Swick, 2012-NMSC-
018, ¶ 21, 279 P.3d 747 (stating that we “evaluate legislative intent by considering the
[s]tate’s legal theory independent of the particular facts of the case”). The modified
Blockburger approach is nothing more than a test to determine whether the state’s
theory for one crime, as charged to the jury, is logically subsumed (i.e., a lesser
included offense) within the state’s theory for a separate crime. Gutierrez, 2011-
NMSC-024, ¶¶ 58-60. To say, as Defendant does, that he is being twice punished for
the same act of pointing a gun at Victim is to merely restate the test for unitary
conduct, which has already been established before any analysis of the statutes under
Blockburger can begin. See Swafford, 1991-NMSC-043, ¶ 25.
{23} 	Although the act of pointing the gun at Victim is a shared element of both
offenses as charged, it does not follow that one offense is subsumed within the other.

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Assault, under Section 30-3-1(B), which requires only general criminal intent, can
always be committed whether or not one acts with the reckless disregard required to
commit child endangerment. See State v. Manus, 1979-NMSC-035, ¶¶ 12, 14, 93
N.M. 95, 597 P.2d 280 (stating that “general criminal intent is required to support a
conviction for aggravated assault”), overruled on other grounds by Sells v. State,
1982-NMSC-125, ¶¶ 9-10, 98 N.M. 786, 653 P.2d 162. And one can always offend
Section 30-6-1(D)(1) without causing reasonable apprehension of an immediate
battery. Thus, the jury in this case could have concluded that Defendant did not act
recklessly and yet still convicted him of aggravated assault; or the jury could have
found that Victim’s fear was not reasonable and still convicted Defendant of child
endangerment. Because, unlike the situation in Gutierrez, it was possible to convict
Defendant of either offense without convicting him of the other, neither offense, as
a matter of law and a matter of logic, is a lesser offense subsumed within the other,
and the modified Blockburger test will not foreclose multiple punishments.
{24} 	When two statutes survive 	Blockburger, we examine “other indicia of
legislative intent.” Swafford, 1991-NMSC-043, ¶ 31. We look to “the language,
history, and subject of the statutes, and [the appellate courts] must identify the
particular evil sought to be addressed by each offense.” Montoya, 2013-NMSC-020,
¶ 32 (internal quotation marks and citation omitted).

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Statutes directed toward protecting different social norms and achieving
different policies can be viewed as separate and amenable to multiple
punishments. . . . If several statutes are not only usually violated
together, but also seem designed to protect the same social interest, the
inference becomes strong that the function of the multiple statutes is only
to allow alternative means of prosecution.
Swafford, 1991-NMSC-043, ¶ 32.
{25} 	We begin with the observation that children are often placed in danger by
conduct that also happens to violate a separate criminal statute. See, e.g., Graham,
2005-NMSC-004, ¶ 12 (involving the possession of marijuana, accessible to a child);
State v. Orquiz, 2012-NMCA-080, ¶ 1, 284 P.3d 418 (involving driving while
intoxicated with a child in the vehicle); State v. Clemonts, 2006-NMCA-031, ¶¶ 11-
12, 139 N.M. 147, 130 P.3d 208 (involving the commission of various traffic offenses
with a child in the vehicle). Violation of a separate statute is actually a factor that we
consider in determining whether the gravity and likelihood of potential harm is
sufficient to support a conviction for child endangerment. Chavez, 2009-NMSC-035,
¶ 25 (“[S]uch legislative declaration of harm may be useful, though not dispositive,
to an endangerment analysis when the Legislature has defined the act as a threat to
public health, safety, and welfare.”).
{26} 	The defendant in Graham was convicted of child endangerment based on the
possession of illegal drugs when police found crack cocaine in the defendant’s home
and a marijuana bud in a child’s crib in the master bedroom. 2005-NMSC-004, ¶ 2;

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see id. ¶ 32 (Bosson, J., dissenting). The Legislature’s designation of marijuana as a
Schedule 	I 	controlled 	substance was 	critical 	in 	upholding 	the endangerment
conviction. Id. ¶ 12. Similarly, the defendant in Orquiz was “properly convicted” of
both driving while intoxicated and child endangerment “based upon the presence of
a child in the moving vehicle that [the d]efendant drove.” 2012-NMCA-080, ¶¶ 1, 11-
12 (relying on a line of prior driving while intoxicated/child abuse cases). In Orquiz,
we implicitly recognized that two interests were being infringed by the defendant’s
conduct: “[N]ot only [did] the intoxicated driver threaten the safety of the general
public, but the driver also pose[d] an immediate, substantial, and foreseeable threat to
a specific member of the general public[,] . . . a child.” Id. ¶ 15.
{27} 	There is a common sense principle supporting multiple punishments under these
circumstances. Society recognizes that those who endanger children in the process of
committing certain crimes are simply more culpable than those who commit the same
crimes without putting a child at risk. The Legislature has expressed this interest by
providing for expanded protection of children in Section 30-6-1(D)(1) and throughout
the Criminal Code. For example, the crime of child abuse resulting in death is a first
degree felony, Section 30-6-1(F), authorizing a basic sentence of life imprisonment,
see NMSA 1978, § 31-18-15(A)(1) (2007, amended 2016), while the crime of causing
death to an adult with a similar mental state is a fourth degree felony, NMSA 1978,

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§ 30-2-3(B) (1994) (involuntary manslaughter), providing for a penalty of only
eighteen months imprisonment, see § 31-18-15(A)(10). And child endangerment (not
resulting in death) is a third degree felony, see § 30-6-1(D)(1), (E), subject to a
penalty of three years imprisonment, see § 31-18-15(A)(9), while there is no
comparable crime for endangering an adult. By enacting these offenses and
establishing enhanced penalties for their commission, the Legislature has expressed
a “compelling public interest in protecting defenseless children.” Graham, 2005-
NMSC-004, ¶ 9 (internal quotation marks and citation omitted). This is all to say that
the social evil addressed by the child endangerment statute is the inchoate but “truly
significant risk of serious harm to children[,]” Chavez, 2009-NMSC-035, ¶ 22, which
is an interest that has sometimes justified a greater degree of punishment than that
imposed for identical criminal conduct that does not create such a risk. See, e.g.,
Graham, 2005-NMSC-004, ¶ 12; Orquiz, 2012-NMCA-080, ¶ 1.
{28} 	On the other hand, “[t]he aggravated assault statute is aimed at deterring
aggression against other people in which the use of deadly weapons is involved.” State
v. Rodriguez, 1992-NMCA-035, ¶ 17, 113 N.M. 767, 833 P.2d 244. The aggression
specifically criminalized in Section 30-3-1(B) is conduct that causes mental harm to
the victim—i.e., puts the victim in fear, even when that fear is not accompanied by
actual physical harm, see State v. Roper, 2001-NMCA-093, ¶ 12, 131 N.M. 189, 34

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P.3d 133, or even any risk of physical harm. See § 30-3-1(B) (requiring only a
reasonable belief that a battery is imminent).
{29} 	We conclude that there is little overlap between the social policies addressed
by the child abuse and assault statutes. See Swafford, 1991-NMSC-043, ¶ 32
(“Statutes directed toward protecting different social norms and achieving different
policies can be viewed as separate and amenable to multiple punishments.”). We also
conclude that the two statutes are not ordinarily violated together. See Swick, 2012-
NMSC-018, ¶ 13 (“Legislative intent may be gleaned [by] . . . determining whether
the statutes are usually violated together[.]” (internal quotation marks and citation
omitted)). Reasonable fear can be imposed by threat to a child victim when there is
no risk of actual, physical harm to a child. And the life and health of that child can be
recklessly put at substantial risk whether or not the defendant makes a fear-inducing
threat. But in unusual cases where a defendant acts in a manner that infringes on both
of those social interests, multiple punishments for aggravated assault and child
endangerment do not violate the right to be free from double jeopardy.
{30} 	This case is a good example of the policies at issue. This was a life-threatening
and harrowing experience for Victim—a child. He testified that he thought he was
going to be shot from the moment he saw the gun. His mother later found him at the
neighbors’ house, crying and scared, and the family ultimately moved out of their

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home because they no longer felt comfortable there. Because the law separately
punishes the distinct evils evident here, we affirm Defendant’s convictions for both
offenses.
C. 	Aggravated Burglary and Aggravated Assault
{31} 	Defendant’s final argument is that the same firearm was used to aggravate both
burglary and assault, thereby offending principles of double jeopardy. This argument
is unpersuasive for a number of reasons, the most obvious being that we have already
held that the aggravated burglary was complete before the gun was pointed at Victim
in the living room, which was the basis for the child endangerment and aggravated
assault convictions. Therefore, the conduct underlying the two offenses is not unitary,
Bernal, 2006-NMSC-050, ¶ 11; DeGraff, 2006-NMSC-011, ¶ 27, and our double
jeopardy inquiry “is at an end.” Swafford, 1991-NMSC-043, ¶ 28.
CONCLUSION
{32} 	Defendant’s convictions are affirmed.
{33} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Judge
WE CONCUR:

JONATHANB. SUTIN, Judge

M. MONICA ZAMORA, Judge

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