April 19, 2017- State of New Mexico v. Kelson Lewis, No. 34,506

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: Apnil 19, 2017

No. 34,506

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

KELSON LEWIS,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Judith K. Nakamura, District J udge

Hector H. Balderas, Attomey General
Laura E. Horton, Assistant Attomey General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Sergio Viscoli, Appellate Defender

B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant Kelson Lewis appeals from the district court’s denial of his motion
to bar retrial on the charge of criminal sexual contact of a minor (CSCM) in the third
degree. Among other charges, the indictment charged Defendant with second degree
CSCM in Count 1. After the close of the State’s evidence at trial, the district court
granted the State’s motion to amend the CSCM charge from second degree to third
degree and granted Defendant’s motion to include a jury instruction for the lesser
included offense of battery. The district court declared a mistrial based on jury
disagreement as to Count 1, directed a verdict of acquittal on Counts 2 and 3, and
Defendant was found not guilty of Counts 4 and 5. Defendant asserts on appeal that
the district court did not appropriately determine whether the jury was hung on the
charge of CSCM or the lesser included battery charge. Thus, Defendant argues, double
jeopardy principles prevent his retrial for CSCM, and the district court erred in
denying his motion to bar retrial. Because we disagree that the record is ambiguous
regarding the district court’s inquiry into the jury deliberations and the charge upon
which the jury was deadlocked, we affirm.

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DISCUSSION
{2} 	Defendant asserts the district court did not properly poll the jury as to whether
it was deadlocked on the charge of CSCM or the lesser included charge of battery, and
therefore, Defendant received an “implied acquittal” of CSCM. Thus, Defendant
argues that retrial for CSCM violates the Double Jeopardy Clauses of the State and
Federal Constitutions. “We review double jeopardy claims de novo.” State v. Fielder,
2005-NMCA-108, ¶ 10, 138 N.M. 244, 118 P.3d 752.
{3} 	The Double Jeopardy Clause “has been held to incorporate a broad and general
collection of protections against several conceptually separate kinds of harm: (1) a
second prosecution for the same offense after acquittal, (2) a second prosecution for
the same offense after conviction, and (3) multiple punishments for the same offense.”
State v. Montoya, 2013-NMSC-020, ¶ 23, 306 P.3d 426 (internal quotation marks and
citation omitted). “When a defendant has been acquitted at trial he may not be retried
on the same offense, even if the legal rulings underlying the acquittal were erroneous.”
State v. Baca, 2015-NMSC-021, ¶ 34, 352 P.3d 1151 (alteration, internal quotation
marks, and citation omitted), cert. denied sub nom. Baca v. New Mexico, ___ U.S.
___, 136 S. Ct. 255 (2015) (mem.). Where the jury is properly instructed on a lesser
included offense, an acquittal or a hung jury on the greater offense does not preclude

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retrial 	on 	that 	uncharged, 	lesser 	included 	offense. 	See 	State 	v. 	Collier,
2013-NMSC-015, ¶¶ 21-22, 301 P.3d 370.
{4} 	Defendant relies primarily on Rule 5-611(D) NMRA; State v. Castrillo, 1977-
NMSC-059, 90 N.M. 608, 566 P.2d 1146, overruled on other grounds by State v.
Wardlow, 1981-NMSC-029, 95 N.M. 585, 624 P.2d 527; and State v. Garcia, 2005-
NMCA-042, 137 N.M. 315, 110 P.3d 531, to argue that he received an implied
acquittal on CSCM and retrial on that charge would violate his right to be free from
double jeopardy. Relying on the same authority and also on Fielder, 2005-NMCA-
108, we conclude that Defendant’s retrial for CSCM does not violate double jeopardy.
We begin by discussing the relevant authority and then discuss in detail what
happened at Defendant’s trial and its legal effect on his double jeopardy rights.
{5} 	In Castrillo, the charge of first degree murder, as well as the lesser included
offenses of second degree murder and voluntary manslaughter, were submitted to the
jury at the defendant’s first trial. 1977-NMSC-059, ¶ 1. When the jury was unable to
reach a verdict, the district court declared a mistrial without inquiring as to which of
the offenses the jury had agreed and upon which the jury was deadlocked. Id. ¶ 14.
The defendant was tried a second time and was found guilty of second degree murder.
Id. ¶ 1. The defendant appealed, arguing his second trial violated double jeopardy. Id.
Our Supreme Court held, though the jury was hung between acquittal and at least one

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of the offenses included within the murder charge, “[t]he record [was] silent upon
which, if any, of the specific included offenses the jury had agreed and upon which
the jury had reached an impasse.” Id. ¶ 14. Because the record was unclear as to which
of the included offenses was the basis for impasse and the district court did not
conduct further inquiry to ascertain at which level of charge the jury was deadlocked,
our Supreme Court reasoned that any doubt must be resolved “in favor of the liberty
of the citizen.” Id. (internal quotation marks and citation omitted). Thus, our Supreme
Court determined that all but the least of the lesser included charges (i.e., voluntary
manslaughter) must be dismissed and that retrial of the defendant on all but the least
charge violated double jeopardy. Id. ¶¶ 14-15.
{6} 	In Garcia, this Court considered whether the district court erred when it
inquired whether the jury was deadlocked on the greater offense but did not inquire
whether the jury was deadlocked on the lesser included offenses. 2005-NMCA-042,
¶¶ 2, 10. The jury in Garcia was instructed on first degree murder, as well as second
degree murder and voluntary manslaughter as lesser included offenses. Id. ¶ 2. The
district court declared a mistrial after learning the jury could not reach an agreement
on the first degree murder count. Id. ¶ 20. Upon inquiry by the district court regarding
the charge of first degree murder, the foreperson informed the court that the jury was
unable to reach a unanimous verdict on that charge. Id. The district court did not

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conduct any inquiry into the jury’s deliberations on the lesser included charges of
second degree murder and manslaughter. Id. This Court determined, based on
Castrillo and its progeny, the district court was not required to inquire into the jury’s
deliberations regarding lesser included offenses when the district court had already
determined the jury was unable to reach an agreement as to a greater offense. Garcia,
2005-NMCA-042, ¶ 17. This Court noted that the holding was consistent with Rule
5-611(D), which requires:
If the jury has been instructed on one or more lesser included offenses,
and the jury cannot unanimously agree upon any of the offenses
submitted, the court shall poll the jury by inquiring as to each degree of
the offense upon which the jury has been instructed beginning with the
highest degree and, in descending order, inquiring as to each lesser
degree until the court has determined at what level of the offense the jury
has disagreed. If upon a poll of the jury it is determined that the jury has
unanimously voted not guilty as to any degree of an offense, a verdict of
not guilty shall be entered for that degree and for each greater degree of
the offense.
See Garcia, 2005-NMCA-042, ¶¶ 25-27. On this basis, we concluded the district court
did not err in the manner in which it polled the jury, and the defendant’s retrial and
conviction of first degree murder did not violate double jeopardy because there was
a manifest necessity to declare a mistrial on that level of the charge. Id. ¶ 29.
{7} 	Shortly after our opinion in Garcia, this Court decided Fielder in which we
considered whether the defendant’s retrial for second degree criminal sexual
penetration (CSP II) violated double jeopardy because there was no manifest necessity

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to declare a mistrial on that charge. Fielder, 2005-NMCA-108, ¶¶ 1, 10, 15. The jury
in Fielder was instructed on CSP II and third degree criminal sexual penetration (CSP
III), among other charges. Id. ¶¶ 5-6. After learning the jury was unable to reach a
verdict on CSP, the district court polled the jury regarding the numerical split of the
votes for guilty and not guilty but did not determine whether the jury was deadlocked
on CSP II or the lesser included offense of CSP III. Id. ¶ 8. The defendant was retried
on CSP II and the lesser included charge of CSP III and was convicted of CSP III. Id.
¶ 9. Again relying on Castrillo and its progeny, this Court determined, because the
district court did not inquire into the jury’s deliberations on the greater offense of CSP
II to determine upon which level of CSP the jury disagreed, there was no manifest
necessity to declare a mistrial as to that offense, and the defendant’s double jeopardy
rights were violated when he was retried for CSP II. Fielder, 2005-NMCA-108, ¶ 15.
{8} 	Turning to the trial in the present case, following various recesses and delays
on the third day of deliberations, the jury sent a note to the district court asking, “If
we cannot come to a unanimous decision for Count 1, do we move on to
discuss/decide on the lesser charge for Count 1?” The district court responded with
a note stating, “If you have a reasonable doubt as to guilt on Count 1 only then do you
move to consideration of the included offense of battery. If you are not unanimous as
to Count 1 then you do not move on to the included offense of battery.” As Defendant

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and the State point out, it appears the transcript erroneously indicates two hours
elapsed 	between 	the 	jury’s 	first 	question 	and 	the 	district 	court’s 	response.
Approximately thirty minutes after the district court responded to the jury’s first note,
the jury sent a second note stating, “On the count of Criminal Sexual Contact we are
unable to reach a unanimous decision of guilty or not-guilty. Should we move on to
the lesser charge of battery?” The district court sent a response stating, “No. Have you
reached a unanimous verdict on the other counts?” Approximately thirty-five minutes
later, the jury responded on the same note below the district court’s question, “Yes,
we have come to [a] unanimous [decision] on [C]ounts 4 and 5.” The district court
sent a final note to the jury asking, “Are you finished deliberating on Count 1?” The
jury sent its response while the district court was still on the record and responded on
the same piece of paper below the district court’s question, “Yes the Jury is finished
deliberating on Count 1.”
{9} 	Following a request from trial counsel for Defendant, the district court and
parties discussed polling the jurors to determine which way each juror had decided
Count 1, but the district court determined the jurors could not be formally polled as
to whether an individual juror voted to acquit or convict. The jurors were called back
into the courtroom, and the district court confirmed with the foreman that “there’s no
possibility for juror agreement on Count 1[.]” While it does not appear trial counsel

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for Defendant requested the jury be polled immediately after trial as to whether the
jury was deadlocked on the CSCM charge or the lesser included battery charge,
Defendant nonetheless argued in his motion to bar retrial that the court did not
properly poll the jury as to the level of the impasse.
{10} 	We note the jury twice asked whether it should proceed to consider the battery
charge if it was unable to reach a unanimous decision on the CSCM charge, and the
district court twice explicitly instructed the jury not to consider the charge of battery
unless the jury was unanimous that it had reasonable doubt about Defendant’s guilt
of CSCM. The court’s second response indicates it understood the jury was unable to
reach a unanimous decision on the CSCM charge, and it sought to determine if the
jury was still deliberating on the other counts. Indeed, that understanding was
consistent with the jury’s express statement that it was “unable to reach a unanimous
decision” on the CSCM charge. The jury’s next response states it had reached a
decision on the other counts, and notably, the jury did not indicate a change in its
decision on Count 1 or that it had now reached a unanimous verdict on any level of
charge included in Count 1. The jury’s final note states it was finished with
deliberations 	on 	Count 	1. 	Also 	notable 	and 	pointed 	out 	by 	the 	State, 	the
communications between the district court and the jury consistently refer to CSCM
as “Count 1” and battery as the “lesser charge” or “included offense.” Thus, we

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conclude the record of communications makes clear that the jury’s inability to agree
on a finding of guilty or not guilty applied only to the CSCM aspect of Count 1.
{11} 	Defendant argues that we must presume the jury continued deliberations on
Count 1 for approximately thirty-five minutes between when the court instructed the
jury for the second time to not consider battery unless it was unanimous on
Defendant’s acquittal for CSCM and the time the jury stated it was finished as to
Count 1. Defendant argues the court failed to poll the jury after the conclusion of
deliberations in accordance with Rule 5-611(D), which states that the court shall poll
the jury if the jury cannot unanimously agree upon the offenses submitted and that any
ambiguity resulting from the lack of formal polling should be resolved in his favor.
{12} 	We note that in Castrillo and Fielder the record was silent regarding the level
of charge at which the jury was hung. See Castrillo, 1977-NMSC-059, ¶ 14
(dismissing on double jeopardy grounds all but the least of the lesser included charges
when the record was unclear as to which of those offenses was the basis for the
impasse and the district court did not conduct further inquiry to ascertain at which
level 	of 	charge 	the 	jury 	was 	deadlocked); 	Fielder, 	2005-NMCA-108, 	¶ 	15
(determining no manifest necessity existed to declare a mistrial on the charge of CSP
II because the district court did not inquire into the jury’s deliberations to determine

10
upon which level of CSP the jury disagreed). In contrast, the record shows the jury in
the present case twice indicated it was hung on the CSCM charge.
{13} 	Defendant asserts that the level of deadlock is ambiguous because thirty-five
minutes elapsed before the conclusion of deliberations, during which the jury could
have acquitted Defendant of CSCM and hung on the battery charge, however,
Defendant did not develop any facts at the time the jury returned its verdicts or
demonstrate there was any question regarding the level of deadlock. We note a double
jeopardy challenge need not be preserved. There must, however, exist a factual basis
in the record for the argument. See State v. Wood, 1994-NMCA-060, ¶ 19, 117 N.M.
682, 875 P.2d 1113 (acknowledging double jeopardy issues may be raised at any time
“either before or after judgment,” but providing that “a factual basis must appear in
the 	record 	in 	order 	to 	support 	such 	claim”); 	see 	also 	State 	v. 	Antillon,
2000-NMSC-014, ¶ 6, 129 N.M. 114, 2 P.3d 315 (recognizing double jeopardy claims
may not be waived and citing Wood for the proposition that a double jeopardy defense
“must 	be 	supported 	by 	a 	factual 	basis 	in 	the 	record”); 	State 	v. 	Sanchez,
1996-NMCA-089, ¶ 11, 122 N.M. 280, 923 P.2d 1165 (stating that the appellate
courts place the burden on the party raising the double jeopardy challenge to provide
a sufficient record for appellate analysis of the issue).

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{14} 	Based on the jury’s notes stating it was hung and therefore unable to resolve the
charge of CSCM and its later confirmation that it was unable to agree on Count 1, the
district court held that the jury was hung and obviously understood the level of charge
upon which the jury was deadlocked. Moreover, Defendant also appears to have
understood the jury to be deadlocked on the CSCM charge, because he only requested
the jury be polled to determine individual votes for and against conviction and did not
express any question about the level of the jury’s impasse or request polling at the
time to resolve any ambiguity. Beyond Defendant’s argument that further deliberation
may have occurred, nothing in the record suggests an interpretation other than that the
jury was deadlocked on the CSCM charge. Indeed, the district court’s post-
deliberation questioning of the foreman and the unsigned verdict forms regarding
Count 1 further cement the jury’s inability to agree as to Count 1, and given the facts
of the case, in particular, CSCM. Thus, based on the extent of the record before us, we
decline to speculate whether the jury later acquitted Defendant of CSCM and to
presume a double jeopardy violation based upon that speculation when all evidence
in the record indicates the contrary.
{15} 	Defendant contends that the district court did not strictly comply with the
mandatory language of Rule 5-611(D) when it determined the level of deadlock
through notes exchanged between the jury and the district court, rather than through

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a more formalized polling process employed at the time the jury delivered its verdicts
on the other counts. Thus, Defendant asserts the district court’s failure to strictly
adhere to the requirements of Rule 5-611(D) bars his retrial on CSCM on double
jeopardy grounds. Without opining as to what would constitute an adequate
“formalized polling process” as a matter of law, we hold that in this case, where the
communications evidence jury disagreement on the CSCM charge, to reverse would
be to read Rule 5-611(D) more technically than substantively.
{16} 	We hold that the notes exchanged between the jury and the district court,
coupled with the verbal confirmation from the foreman that the jury was unable to
agree on Count 1, demonstrate the jury was deadlocked on CSCM and satisfied the
intent of Rule 5-611(D). To hold otherwise would be to exalt form over substance,
which we decline to do. See State ex rel. Children, Youth & Families Dep’t v.
Benjamin O., 2007-NMCA-070, ¶ 39, 141 N.M. 692, 160 P.3d 601 (“[W]e do not
exalt form over substance.”).
{17} 	Because the record demonstrates the jury was deadlocked on the charge of
CSCM, we conclude manifest necessity existed to declare a mistrial on that charge and
double jeopardy did not attach. Accordingly, we affirm.
{18} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge

I CONCUR:
J. MILES HANISEE, Judge
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GARCIA, Judge (dissenting).
{19} 	I respectfully dissent in this case. This is not a post-deliberation polling case.
Post-deliberation polling was never conducted by the district court in this case. See
Majority Op. ¶ 9. Although our decisions in Garcia and Fielder give some guidance
to resolve the correct way to poll a jury, both involved post-deliberation polling of the
jury, and whether, pursuant to Rule 5-611(D), the jury was correctly polled after
deliberations were completed. See Garcia, 2005-NMCA-042, ¶¶ 27-29; Fielder, 2005-
NMCA-108, ¶¶ 8-11. In the present case, the district court made a reasonable and
clear inquiry regarding a potential deadlock on Count 1 during jury deliberations but
failed to poll the jury after jury deliberations were concluded, as required under Rule
5-611(D). Majority Op. ¶¶ 8-9. It is this failure to ever poll the jury after deliberations
ceased, some thirty-five minutes after the inquiry during jury deliberations, that aligns
this case more closely with the circumstances in Castrillo. See Castrillo, 1977-NMSC-
059, ¶ 14 (establishing that post-deliberation polling was not done regarding the
included offenses related to the murder charge). Because no polling was ever done in
this case, as the majority agrees is a requirement under Rule 5-611(D), it is not this
Court’s role to change or modify the unambiguous requirement in Rule 5-611(D)
regarding polling the jury. See Majority Op. ¶¶ 11, 15; see also State v. Montoya,
2011-NMCA-009, ¶ 8, 149 N.M. 242, 247 P.3d 1127 (recognizing that interpretation

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of a Supreme Court rule is a question of law and the plain meaning rule applies where
the language of the rule is “clear and unambiguous” (internal quotation marks and
citation omitted)).
{20} 	The issue that concerns me is whether our Supreme Court simultaneously
intended to create a rule requiring the polling of the jury while also providing for case-
by-case exceptions to polling—where this Court then attempts to interpret questions
and answers exchanged between the district court and the jury during deliberations.
The majority is correct when it concludes that one reasonable interpretation of the jury
deadlock issue would support its interpretation. See Majority Op. ¶¶ 14, 16. The issue,
however, is not about a potentially reasonable interpretation that this Court can make
regarding inquiries and questions occurring during jury deliberations, it is about
whether our Supreme Court wants us to make these interpretations on a case-by-case
basis.
{21} 	Although the district court may have made a reasonable and adequate inquiry
regarding the basis for the jury’s alleged deadlock on Count 1, that inquiry was made
during the time that deliberations were still ongoing and it failed to fulfill the polling
requirements of Rule 5-611(D) after jury deliberations were completed. The only
question resolved after the jury completed its deliberations established that “there
[was] no possibility for juror agreement on Count 1.” A specific inquiry regarding the

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primary offense of CSCM and the lesser included offense of battery was not addressed
after deliberations ceased. Any confusion or ambiguity regarding possible changes in
the jury’s position that may have occurred during the final thirty-five minutes of
deliberation on Count 1 was not resolved by the required post-deliberation polling of
the jury.
{22} 	If our Supreme Court mandated that the district court is required to remove any
potential for confusion or ambiguity regarding which offenses a jury has deadlocked
over, then post-deliberation polling under Rule 5-611(D) is not optional. If there is
room for this Court to resolve confusion or ambiguity regarding which offenses a jury
has deadlocked over, without post-deliberation polling, then the majority has
adequately identified one potential exception to Rule 5-611(D). I believe that any
exception to the polling requirement under Rule 5-611(D) must be left to our Supreme
Court and should not be made by this Court. See Alexander v. Delgado, 1973-NMSC-
030, ¶ 9, 84 N.M. 717, 507 P.2d 778 (“The general rule is that a court lower in rank
than the court which made the decision invoked as a precedent cannot deviate
therefrom and decide contrary to that precedent, irrespective of whether it considers
the rule laid down therein as correct or incorrect.” (internal quotation marks and
citation omitted)). “This [C]ourt is bound by [S]upreme [C]ourt rules.” Shain v.
Birnbaum, 1991-NMCA-092, ¶ 5, 112 N.M. 700, 818 P.2d 1224; see State ex rel.

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Martinez v. City of Las Vegas, 2004-NMSC-009, ¶¶ 20-22, 135 N.M. 375, 89 P.3d 47
(confirming that the Court of Appeals remains bound by Supreme Court precedent but
is invited to explain any reservations that it may harbor, with one exception allowing
for a review of uniform jury instructions that have not previously been ruled upon by
the Supreme Court).
{23} 	As a result, I do not agree with the majority’s deviation from our Supreme
Court’s rule. Polling under Rule 5-611(D) is a requirement after all jury deliberations
have ceased and are completed. Any modification in the “shall poll the jury”
requirement set forth in Rule 5-611(D) must be left to the discretion of our Supreme
Court and is not a discretionary matter that this Court should undertake on the basis
of inference, technicality, or substance over form.
__________________________________
TIMOTHY L. GARCIA, Judge
TIMOTHY L. GARCIA, Judge (dissenting).