March 3, 2025- State of New Mexico v. Matthew Clay Medema, No. A-1-CA-39883

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:__________	2
Filing Date: March 3, 2025	3
No. A-1-CA-39883 and No. 40163	4
(consolidated for purpose of opinion)	5
STATE OF NEW MEXICO,	6
Plaintiff-Appellee,	7
v.	8
MATTHEW CLAY MEDEMA,	9
Defendant-Appellant.	10
APPEALS FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	11
Conrad F. Perea, District Court Judge	12
Raúl Torrez, Attorney General	13
Santa Fe, NM	14
Meryl E. Francolini, Assistant Solicitor General	15
Alexander W. Tucker, Assistant Solicitor General	16
Albuquerque, NM	17
for Appellee	18
Wadsworth Law, LLC	19
Mathew R. Wadsworth	20
Rio Rancho, NM	21
The Law Office of Ryan J. Villa	22
Richelle Anderson	23
Albuquerque, NM	24
for Appellant	25
Court of Appeals of New Mexico
Filed 3/3/2025 9:55 AM

OPINION	1
YOHALEM, Judge.	2
{1} In this consolidated opinion,1 Defendant Matthew Clay Medema appeals from	3
his convictions for criminal sexual penetration (CSP) (use of force or coercion),	4
contrary to NMSA 1978, Section 30-9-11(F) (2009); aggravated battery on a	5
household member, contrary to NMSA 1978, Section 30-3-16 (2018); and false	6
imprisonment, contrary to NMSA 1978, Section 30-4-3 (1963). Defendant raises	7
five claims on appeal, as well as claiming cumulative error: (1) the district court	8
erred in failing to strike a juror for cause; (2) the district court erred in excluding	9
Victim’s out-of-court statements allegedly relevant to her consent to sexual	10
intercourse; (3) Defendant’s conviction for aggravated battery on a household	11
member either is not supported by the evidence or must be reversed because of	12
misconduct by the prosecution in closing argument; (4) Defendant’s conviction of	13
both CSP by force or coercion and false imprisonment violated Defendant’s right to	14
be free from double jeopardy; and (5) the destruction of jury questionnaires pursuant	15
to Rule 5-606 NMRA violated Defendant’s constitutional rights and requires	16
reversal. We agree with Defendant that the prosecution’s remarks in closing	17
1For reasons we explain, this opinion consolidates two appeals: Case Nos. A-
1-CA-39883 and A-1-CA-40163. Because these cases stem from the same
underlying trial court proceeding involving the same Defendant and request the same
relief, we consolidate the cases for decision. See Rule 12-317(B) NMRA.

2
argument on facts not in evidence were prosecutorial misconduct that likely	1
impacted the jury’s conviction of Defendant for aggravated battery of a household	2
member, and we therefore reverse and remand for retrial on that count. We also	3
conclude that Defendant’s conviction of false imprisonment and CSP, under the	4
circumstances of this case as presented by the State, subjects Defendant to double	5
jeopardy. We therefore reverse his conviction for false imprisonment. We otherwise	6
affirm.	7
BACKGROUND	8
{2} Defendant and Victim lived together in the past and had a child together.	9
Defendant and Victim stayed in contact after they broke up, and Defendant visited	10
Victim about twice a week to spend time with their child. During some of these	11
visits, Defendant and Victim would engage in consensual sexual intercourse.	12
{3} On September 22, 2018, Defendant visited Victim and their child. After	13
putting their child down for a nap, Victim went to her bedroom and Defendant went	14
to the bathroom. Victim testified that when Defendant left the bathroom, she was	15
sitting on her bed. Defendant came over to her and hugged her, tightening his grip	16
as she struggled to free her arms and escape. For three to five minutes, Victim tried	17
to get Defendant to release her, without success, while repeatedly rejecting his	18
attempts to engage in sexual intercourse. Victim and Defendant fell off the bed	19
during this struggle and ended up on the floor with Defendant on top of Victim.	20

3
Victim managed to crawl to the other side of the room, while still struggling to	1
escape Defendant’s grasp. According to Victim, Defendant straddled her and “[a]t	2
some point, he started to choke [her], and [she] had a hard time breathing.”	3
Defendant then turned Victim on her stomach and penetrated her by force as she	4
resisted.	5
{4} Defendant left Victim’s residence after the encounter and Victim went to	6
dinner with her family. Later that night she went to the hospital for a sexual assault	7
examination. Some small bruises on Victim’s chest and upper arm were	8
photographed and admitted into evidence. Victim did not testify to any other injuries.	9
There were no visible injuries to Victim’s neck.	10
{5} Defendant testified that the sex they had that day was consensual, and that	11
they often playfully wrestled before having sex. Defendant described what happened	12
on September 22, 2020, as consistent with other times he and Victim had consensual	13
sex. Victim agreed in response to a juror’s question that she and Defendant “had	14
rough sex before where he would choke [her] a little,” and “it was always consensual	15
before.”	16
{6} Defendant was charged with CSP by force or coercion; false imprisonment,	17
defined in the jury instructions as restraining or confining Victim against her will,	18
with knowledge that the restraint was unauthorized; and aggravated battery of a	19
household member, requiring the jury to find, in relevant part, that “[D]efendant	20

4
touched or applied force to [Victim] by pushing his hand against her neck”; and that	1
“[D]efendant acted in a way that would likely result in death or great bodily harm to	2
[Victim].” The jury was also instructed that “[g]reat bodily harm means an injury to	3
a person which creates a high probability of death.” The jury convicted Defendant	4
on all three counts.	5
DISCUSSION	6
I. The District Court Did Not Abuse Its Discretion in Refusing to Strike	7
Juror 134 for Cause	8
{7} Defendant contends the district court abused its discretion in failing to strike	9
for cause a juror who disclosed during voir dire that she and her daughter were both	10
victims of sexual assault. Defendant argues that Juror 134’s answers to questions	11
during voir dire established actual bias—that the juror could not be fair and	12
impartial—and the district court’s failure to excuse her, therefore, violated	13
Defendant’s right to a fair and impartial jury.	14
A. Preservation and Harm	15
{8} We first note that Defendant preserved this issue for appellate review by	16
moving to strike Juror 134 for cause during voir dire. See Rule 12-321(A) NMRA.	17
When the district court refused to excuse Juror 134 for cause, Defendant used a	18
peremptory challenge to remove the juror. Because Defendant used all of his	19
peremptory challenges before the jury was seated, he has made a sufficient showing	20
of harm to require remand for a new trial if the district court’s denial of excusal for	21

5
cause was an abuse of discretion. See Fuson v. State, 1987-NMSC-034, ¶ 9, 105	1
N.M. 632, 735 P.2d 1138. We, therefore, proceed to review Defendant’s claim on	2
the merits.	3
B. Standard of Review	4
{9} Our standard of review of the district court’s refusal to excuse a juror for cause	5
is for abuse of discretion. See State v. Johnson, 2010-NMSC-016, ¶ 31, 148 N.M. 50,	6
229 P.3d 523 (“We review the [district] court’s rulings regarding the selection of	7
jurors for an abuse of discretion.” (text only) (citation omitted)). We will find an	8
abuse of discretion in failing to excuse a juror only when the district court acts in an	9
obviously erroneous, arbitrary or unwarranted manner by failing to excuse a juror	10
who could not be impartial. Id.	11
C. Juror 134’s Statements	12
{10} Responding to a prosecutor’s question during voir dire about what kind of	13
evidence they would expect the State to produce to prove the case, Juror 134 stated,	14
“I’ve been through [sexual assault] myself.” The prosecutor asked Juror 134 if she	15
would be able to set her experiences aside and be fair and impartial. Juror 134	16
responded, “I don’t know what to say. It’s kind of hard for me to say anything.” The	17
prosecutor asked Juror 134 if she would be willing to speak with the parties privately,	18
and she agreed that she would. In chambers, the following colloquy ensued:	19

6
State: And I know I kind of asked would you be able to set your	1
experiences aside, listen to the evidence in the case and be	2
fair and impartial?	3
Juror 134: Yes, I would.	4
. . . .
Defense: Do you think you’d believe the State more because of the	5
fact this happened to you?	6
Juror 134: Yes.	7
Defense: So you really can’t be fair in this situation, can you?	8
Juror 134: Well, I don’t know what—I don’t know what the situation	9
is.	10
Defense: Would you believe the State more because this happened	11
to you?	12
Juror 134: I don’t know what to believe yet. I have to hear more	13
proof, I think.	14
Defense: Do you think you’ll be thinking about what happened to	15
you previously, or just what’s happened in this case?	16
Juror 134: I will try not to think about what happened to me. Because	17
I stay positive every day and just go forward. I try and	18
leave that in the past. It’s mostly my daughter. She’s	19
already older now, but it happened to her when she was	20
nine. So I did put that person in prison for it.	21
Defense: So do you think that impacts you here today?	22
Juror 134: Yeah.	23
. . . .	24

7
State: Even knowing that you’ve gone through this and loved	1
ones have gone through this, would you be able to focus	2
on the trial as you’re sitting there listening?	3
Juror 134: Yeah, because I’ve been through it already. No child	4
should be going through this at all. Anybody, I mean adult.	5
It’s not fun. It’s terrible.	6
State: Would you still give both parties a fair shake, defense and	7
the State?	8
Juror 134: Yes, I think so. To find out what the truth is.	9
. . . .	10
Defense: Do you think what happened to your daughter might	11
impact your thinking as to believing the State or [the]	12
defense?	13
Juror 134: I try not to think about that, what happened to my	14
daughter. It’s kind of hard—	15
Defense: But do you think it would have an impact on you?	16
Juror 134: Yeah.	17
D. Discussion	18
{11} Defendant subsequently moved to strike Juror 134 for cause. The district court	19
denied that motion stating that the court would leave it to the parties to decide	20
whether to exercise a peremptory challenge.	21
{12} Defendant argues on appeal that the district court abused its discretion in	22
failing to excuse Juror 134 for cause because Juror 134 (1) failed to “unequivocally	23
state that she could be fair and impartial,” (2) acknowledged that her own experience	24

8
and her daughter’s experience “impacts her here today,” and (3) “acknowledged that	1
her own experiences made her more likely to believe the State’s witnesses.”	2
{13} Defendant claims that Juror 134 needed to “unequivocally state” that she	3
would be able to put her experience aside and be fair and impartial. Defendant’s	4
argument is based on a misunderstanding of this Court’s opinion in State v. Holtsoi,	5
2024-NMCA-042, ¶ 9, 547 P.3d 770. This Court found in Holtsoi that a potential	6
juror strongly stated his belief that he could not be fair and impartial. See id. (“Juror	7
23’s statements combine to express his belief that he could not faithfully serve as an	8
impartial juror and strongly support such an inference.”). Given this strong statement	9
by the juror that he could not be impartial, we concluded in Holtsoi that the district	10
court judge’s failure to excuse that juror for cause was an abuse of discretion. Id.	11
¶ 10. Our decision turned on the juror’s unequivocal insistence that he could not be	12
fair and impartial. Id. This approach is consistent with the principle that a juror, who	13
unequivocally expresses actual bias, stating that they cannot be impartial, must be	14
excused for cause. See State v. Romero, 2023-NMSC-014, ¶ 10, 533 P.3d 735.	15
Where, however, a juror expresses potential bias, but does not unequivocally state	16
that they cannot be fair and impartial, the defendant must establish with facts	17
developed in voir dire “that the bias would actually affect the juror’s vote.” Id. ¶ 9;	18
see Holtsoi, 2024-NMCA-042, ¶ 11 (“[A]ll potential jurors are presumed capable of	19

9
impartial and fair consideration of the law and the facts of each case unless they	1
indicate otherwise during voir dire.”).	2
{14} In this case, Juror 134 admitted that she had experiences in her life that had	3
an impact on her and would impact her assessment of the evidence at trial. We have	4
recognized, however, that requiring a juror to “purge [their] mind of all experiences	5
and opinions” is “psychologically impossible.” State v. Fransua, 1973-NMCA-071,	6
¶ 7, 85 N.M. 173, 510 P.2d 106. Each juror may weigh the evidence in light of their	7
own experiences, and the verdict is the product of the collective experience of all	8
twelve jurors. Id.; see Romero, 2023-NMSC-014, ¶ 7 (“We presume ‘that a jury	9
selected from a fair cross section of the community is impartial, regardless of the	10
mix of individual viewpoints actually represented on the jury.’” (quoting Lockhart	11
v. McCree, 476 U.S. 162, 184 (1986))). The presumption is that each prospective	12
juror can be fair and impartial, despite experiences in their past.	13
{15} The question here is whether Juror 134’s answers to the questions from the	14
prosecution and Defendant revealed “actual bias,” like that revealed in Holtsoi,	15
where the juror “repeatedly and unequivocally indicated that he could not separate	16
his bias regarding drug use from the facts of the case.” 2024-NMCA-042, ¶ 7. We	17
do not agree with Defendant that Juror 134’s comments were comparable to the clear	18
statement of an inability to be fair and impartial made by the potential juror in	19
Holtsoi. In contrast to the juror in Holtsoi, Juror 134’s answers to questions during	20

10
voir dire revealed an ability and a willingness to listen to the evidence and make a	1
decision based on that evidence.	2
{16} Although Juror 134 admitted that her experiences with sexual assault would	3
impact her during trial, this is not an admission that she has a bias, which would	4
prevent her from making an impartial decision based on the law and the evidence.	5
As stated in Fransua, 1973-NMCA-071, ¶ 7, all jurors have experiences that	6
influence their view of the evidence, and these experiences are not inherently	7
disqualifying. See Johnson, 2010-NMSC-016, ¶ 32 (holding, in a murder trial, that	8
the district court properly denied motions to strike two jurors who had loved ones	9
murdered and admitted that the trial would bring back those memories, but asserted	10
impartiality).	11
{17} Although Juror 134 initially answered “yes” to defense counsel’s question if	12
she would believe the State more than Defendant, upon further questioning by the	13
defense, Juror 134 stated that she did not know “what the situation [was],” did not	14
know “what to believe yet,” and needed to “hear more proof.” When asked by the	15
prosecution if she would give both parties a fair shake, she responded, “Yes, I think	16
so. To find out what the truth is.”	17
{18} Given these answers, it was not arbitrary or unreasonable for the district court	18
to conclude that Juror 134’s experiences in the past would not prevent her from	19

11
serving as an impartial juror. We therefore find no error in the trial court’s exercise	1
of its discretion to deny Defendant’s motion to strike Juror 134 for cause.	2
II. Defendant’s Claim That the District Court Erred in Excluding Victim’s	3
Out-of-Court Statements Was Not Preserved	4
{19} Defendant argues that the district court erroneously sustained two hearsay	5
objections made by the State to Defendant’s attempt to testify to two out-of-court	6
statements made by Victim. Because Defendant did not raise the issues he now	7
asserts in the district court, Defendant’s arguments were not preserved and we will	8
not consider them on appeal.	9
{20} Defendant first attempted to testify that Victim had stated earlier in the day of	10
the incident at issue that she wanted to have sex with him that day. When the State	11
objected to the admission of this statement on the grounds that it was hearsay,	12
defense counsel argued that the statement was admissible nonhearsay because it was	13
a statement by a party-opponent. See Rule 11-801(D)(2) NMRA. Defendant does	14
not renew this argument on appeal, claiming instead that the district court erred in	15
sustaining the objection because the statement fell within the then-existing state of	16
mind exceptions to the rule against hearsay. See Rule 11-803(3) NMRA.	17
{21} Later in his testimony, Defendant was asked about Victim’s answer to his	18
allegedly asking her if she wanted to move from the bed to the floor. The State	19
objected to this statement’s admission, claiming it was hearsay. Defendant offered	20
no response to this objection, simply saying, “Okay” when the district court	21

12
sustained it. He argues on appeal that the statement was not hearsay to begin with	1
and, if it was, it was admissible as a present-sense impression.	2
{22} Although we “do not apply the preservation requirement in an unduly	3
technical manner,” In re Est. of Baca, 1999-NMCA-082, ¶ 15, 127 N.M. 535,	4
984 P.2d 782 (internal quotation marks and citation omitted), it is necessary for the	5
issue advanced on appeal to have been raised before the district court with enough	6
specificity to “apprise[] the [district] court of the nature of the claimed error and	7
invoke[] an intelligent ruling thereon,” State v. Montoya, 2015-NMSC-010, ¶ 45,	8
345 P.3d 1056 (internal quotation marks and citation omitted). See Rule 12-321(A);	9
State v. Ortiz, 2009-NMCA-092, ¶ 32, 146 N.M. 873, 215 P.3d 811 (“To preserve	10
an issue for review on appeal, it must appear that appellant fairly invoked a ruling	11
of the [district] court on the same grounds argued in the appellate court.” (internal	12
quotation marks and citation omitted)); see also State v. Lucero, 1986-NMCA-085,	13
¶¶ 9-11, 104 N.M. 587, 725 P.2d 266 (holding that the defendant’s general hearsay	14
objection did not preserve the argument on appeal that testimony did not fall within	15
a specific hearsay exception). Defense counsel had an obligation to alert the district	16
court to a permissible use of evidence in response to an objection to the admission	17
of evidence by the opposing party. Absent a response to an objection from the State	18
on the same ground now raised on appeal, the alleged error in admitting the evidence	19

13
is not preserved and cannot be argued on appeal. See State v. Arguello, 2024-NMCA-	1
074, ¶¶ 12-13, 557 P.3d 1018, cert. denied, 2024-NMCERT-009, 557 P.3d 995.	2
{23} Because Defendant’s claims of error were not preserved and Defendant has	3
not argued that any exceptions to the preservation rule apply here, we give these	4
claims of error no further consideration. See State v. Druktenis, 2004-NMCA-032,	5
¶ 122, 135 N.M. 223, 86 P.3d 1050 (“[G]enerally, . . . we [will not] address issues	6
not preserved below and raised for the first time on appeal.”); State v. Gutierrez,	7
2003-NMCA-077, ¶ 9, 133 N.M. 797, 70 P.3d 787 (stating that courts normally do	8
not review for fundamental or plain error when not requested by the appellant).	9
III. The Prosecutor’s Remarks, Without Support in the Record, Advising the	10
Jury of the Amount of Pressure That Can Cause Unconsciousness,	11
Constitutes Misconduct That Amounts to Fundamental Error	12
{24} Defendant argues that the prosecution’s conduct in closing statements	13
amounted to fundamental error. Defendant focuses on two alleged errors: (1) the	14
prosecutor improperly communicated to the jury the State’s view that the Defendant	15
was not testifying truthfully; and (2) the prosecutor improperly testified in rebuttal	16
closing by both mischaracterizing Victim’s testimony and explaining to the jury,	17
without supporting evidence in the record, that serious bodily harm can be caused	18
by as little as four pounds of pressure applied to the neck. We are not persuaded that	19
the prosecution’s statements about the believability of Defendant’s story were	20
misconduct, but we do find fundamental error requiring reversal of Defendant’s	21

14
conviction for aggravated battery on a household member based on the prosecution’s	1
introducing evidence in closing from outside the record on a disputed element of the	2
crime of aggravated battery—whether Defendant’s pressure on Victim’s neck was	3
likely to result in death or serious bodily harm.	4
{25} Because Defendant made no objection in the district court to any part of the	5
State’s closing argument, we review for fundamental error. “‘The first step in	6
reviewing for fundamental error is to determine whether an error occurred. If that	7
question is answered affirmatively, we then consider whether the error was	8
fundamental.’” State v. Cabezuela, 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d	9
705 (quoting State v. Silva, 2008-NMSC-051, ¶ 11, 144 N.M. 815, 192 P.3d 1192).	10
{26} Looking first to the prosecution’s comments on the veracity of Defendant’s	11
story, we are not persuaded that these remarks were error, given that this case was a	12
contest between two conflicting stories—Victim’s and Defendant’s. Where a case	13
essentially revolves around “which of two conflicting stories is true, a party may	14
reasonably infer, and thus argue, that the other side is lying.” State v. Aguilar, 1994-	15
NMSC-046, ¶ 23, 117 N.M. 501, 873 P.2d 247. And where the defendant has	16
testified, as in this case, “[t]he prosecutor may comment on the credibility of defense	17
witnesses,” including the defendant. State v. Rojo, 1999-NMSC-001, ¶ 56, 126 N.M.	18
438, 971 P.2d 829 (internal quotation marks and citation omitted)); see State v.	19

15
Dominguez, 2014-NMCA-064, ¶ 25, 327 P.3d 1092. Having found no error, we need	1
not consider the second prong of the fundamental error analysis.	2
{27} We next consider Defendant’s argument that the prosecutor’s remarks in	3
rebuttal closing—without supporting evidence in the record and without Defendant	4
having an opportunity to respond—that four pounds of pressure on a person’s neck	5
will cause someone to become unconscious, constitute fundamental error. We turn	6
first to whether the prosecutor’s comments were error.	7
{28} In the initial closing argument, the prosecutor summarized Victim’s	8
testimony, stating that Defendant “pressed hard” on her neck and that “[Victim]	9
couldn’t breathe.” We agree with the State that this statement appropriately	10
summarized Victim’s testimony that when Defendant had his hands on her neck, she	11
“was having a hard time . . . breath[ing].” The prosecutor told the jury that “[w]e all	12
know what happens if you cut off the blood flow to the brain for very long,”	13
reminding them it would cause death. Because that is common knowledge that	14
strangulation for a long time can lead to death, and the jury can take that knowledge	15
into account, these remarks were not error.	16
{29} In rebuttal closing, however, the prosecutor stated, “[I]t only takes four	17
pounds—four pounds of pressure to cut off someone’s blood supply to make them	18
lose consciousness—[t]hat’s all it takes, four pounds.” The prosecutor’s final	19
comment to the jury was “[r]emember, four pounds of pressure . . . [is] all it takes.”	20

16
There is no testimony in the record about the amount of pressure that will result in	1
loss of consciousness and, it is undisputed that Victim did not lose consciousness.	2
There also was no testimony in the record about the amount of pressure Defendant	3
applied.	4
{30} Although both parties are permitted wide latitude during closing arguments,	5
the prosecutor’s remarks must be based upon the evidence. “It is beyond the bounds	6
of valid argumentation to recite prejudicial ‘facts’ that are entirely outside the	7
evidence presented at trial. It is misconduct for a prosecutor to make prejudicial	8
statements not supported by evidence.” State v. Duffy, 1998-NMSC-014, ¶ 56, 126	9
N.M. 132, 967 P.2d 807 (citation omitted), overruled on other grounds by State v.	10
Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.	11
{31} The State admits that the challenged remarks have no support in the evidence,	12
but claims that Defendant opened the door to these comments by arguing that Victim	13
had not in fact suffered serious harm. If a prosecutor’s comment is invited by a	14
defense argument, it does not constitute reversible error, even if the comment is	15
improper. State v. Taylor, 1986-NMCA-011, ¶ 25, 104 N.M. 88, 717 P.2d 64. We	16
do not agree, however, that Defendant’s closing argument—suggesting that the jury	17
should consider whether severe harm or death had actually occurred in order to find	18
“a likelihood of serious harm or death”—invited the prosecution to present evidence	19
not in the record on the likelihood of harm. What was invited was a response pointing	20

17
the jury to the instructions, stating that the jury must find Defendant “acted in a way	1
that would likely result in death or great bodily harm to [Victim].” Instead, the State	2
provided an additional, unsubstantiated fact to establish that Defendant’s act met the	3
likelihood of serious harm element of the offense. We therefore conclude that a	4
remark introducing what could only have been presented as expert testimony during	5
the trial, directly relevant to an element of the crime charged, not offered by the	6
State, constitutes misconduct by the prosecution.	7
{32} Having found error, we now turn to consider whether the error was	8
fundamental. Fundamental error occurs when prosecutorial misconduct in closing	9
statements compromises a defendant’s right to a fair trial. See Rojo, 1999-NMSC-	10
001, ¶ 55. To find fundamental error, we must be convinced that there is “a	11
reasonable probability that the error was a significant factor in the jury’s	12
deliberations in relation to the rest of the evidence before them.” State v. DeGraff,	13
2006-NMSC-011, ¶ 21, 139 N.M. 211, 131 P.3d 61 (internal quotation marks and	14
citation omitted). We will upset a jury verdict only (1) when guilt is so doubtful as	15
to shock the conscience, or (2) when there has been an error in the process	16
implicating the fundamental integrity of the judicial process. State v. Barber, 2004-	17
NMSC-019, ¶¶ 14, 16, 135 N.M. 621, 92 P.3d 633.	18
{33} The jury was instructed that, to find Defendant guilty of aggravated battery	19
with great bodily harm, they were required to find, in relevant part, “[D]efendant	20

18
acted in a way that would likely result in death or great bodily harm to [Victim].”	1
The jury was also instructed that “[g]reat bodily harm means an injury to a person	2
which creates a high probability of death.”	3
{34} We briefly review the evidence in the record concerning Defendant’s choking	4
of Victim. According to Victim, Defendant straddled her and “[a]t some point, he	5
started to choke [her], and [she] had a hard time breathing.” Victim described	6
Defendant as choking her with one hand for what felt like a few minutes, while	7
ripping her clothes off with the other hand. When asked what she was thinking while	8
Defendant was choking her, she stated, “I just wanted him to get off.” There was	9
also testimony from Nurse Sofia Osello and Detective Jeffrey Kuepfer that	10
strangulation can occur without bruising.	11
{35} The evidence in the record left the jury with an extremely difficult question to	12
answer about whether the prosecution had established, beyond a reasonable doubt,	13
that Defendant had acted in a way that would likely result in death or a high	14
probability of death when he “touched or applied force to [Victim]” by pushing one	15
hand against her neck while ripping her clothes off with the other hand. Victim	16
testified she had difficulty breathing, but never stated that she passed out or even	17
almost passed out. Given these jury instructions and this equivocal evidence, the	18
prosecutor’s remarks that very little pressure can be deadly, quantified at four	19
pounds of pressure, repeated as the last words the jury heard before beginning	20

19
deliberations, could have tipped the balance and led to a guilty verdict. Although the	1
evidence is sufficient to uphold a conviction arrived at by a jury based on the	2
evidence in the record, there is a “reasonable probability that the error was a	3
significant factor in the jury’s deliberations in relation to the rest of the evidence	4
before them.” DeGraff, 2006-NMSC-011, ¶ 21. We therefore reverse and remand	5
for a new trial on the aggravated battery of a household member count.	6
IV. Double Jeopardy Prohibits Multiple Punishments for CSP and False	7
Imprisonment in This Case	8
{36} Defendant next argues that his convictions of CSP and false imprisonment	9
violate his right to be free from double jeopardy. We agree.	10
A. Standard of Review	11
{37} We apply a de novo standard of review to a double jeopardy claim. See State	12
v. Cummings, 2018-NMCA-055, ¶ 6, 425 P.3d 745. The Double Jeopardy Clause of	13
the Fifth Amendment of the United States Constitution, made applicable to the states	14
by the Fourteenth Amendment, protects against “multiple punishments for the same	15
offense.” State v. Sena, 2020-NMSC-011, ¶ 44, 470 P.3d 227 (internal quotation	16
marks and citation omitted).	17
B. Defendant’s Double Description Claim	18
{38} Defendant raises what is known as a double description claim. A double	19
description violation occurs when an individual is convicted of more than one	20
offense under different statutes for a single act or course of conduct. State v. Vigil,	21

20
2021-NMCA-024, ¶ 17, 489 P.3d 974. Defendant argues that he was convicted of	1
both CSP by force or coercion and false imprisonment based on a single course of	2
conduct—using the same force to restrain Victim and to force her to engage in sexual	3
intercourse.	4
{39} Double description claims are subject to the two-part test adopted by our	5
Supreme Court in Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d	6
1223. “The first part [of the test] focuses on the conduct and asks whether the	7
conduct underlying the offenses is unitary, i.e., whether the same conduct violates	8
multiple statutes.” Sena, 2020-NMSC-011, ¶ 45 (alteration, internal quotation	9
marks, and citation omitted). The second part of the test examines “whether the	10
[L]egislature intended to create separately punishable offenses” based on the same	11
conduct. Id. ¶ 45 (internal quotation marks and citation omitted). We reach the	12
second part of the test only if we find Defendant’s conduct to be unitary. See	13
Swafford, 1991-NMSC-043, ¶ 38 (not reaching the second part of the test because	14
the conduct was not unitary).	15
C. Defendant’s Conduct Was Unitary	16
{40} In determining whether Defendant’s conduct is unitary, the first prong of the	17
double jeopardy test, we must determine whether the two offenses the jury found	18
Defendant committed were separated by “sufficient indicia of distinctness.” Id. ¶ 26.	19

21
{41} Our Supreme Court recently held that in determining whether the conduct	1
forming the basis of each conviction in a double description case is sufficiently	2
distinct to avoid a double jeopardy violation, our courts should rely on the six factors	3
identified in Herron v. State, 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624.	4
See State v. Phillips, 2024-NMSC-009, ¶ 38, 548 P.3d 51 (holding that New Mexico	5
applies the six Herron factors to determine whether there is distinct conduct in	6
double description cases). The factors considered in Herron include: “(1) temporal	7
proximity of the acts, (2) location of the victim during each act, (3) the existence of	8
intervening events, (4) the sequencing of the acts, (5) the defendant’s intent as	9
evidenced by his conduct and utterances, and (6) the number of victims.” Phillips,	10
2024-NMSC-009, ¶ 12. Distinct conduct is supported by evidence in the record that	11
“one crime is completed before another is committed,” or “the force used to commit	12
a crime is separate from the force used to commit another crime.” Id. ¶ 38 (internal	13
quotation marks and citation omitted).	14
{42} In determining whether two charged crimes are proved by conduct separated	15
by “sufficient indicia of distinctness,” we are directed by our Supreme Court to look	16
to “the elements of the charged offenses, the facts presented at trial, and the	17
instructions given to the jury.” See State v. Lorenzo, 2024-NMSC-003, ¶ 6, 545 P.3d	18
1156 (text only) (citation omitted). This test has not changed significantly from	19
earlier precedent that provides that “[t]he conduct question depends to a large degree	20

22
on the elements of the charged offenses and the facts presented at trial,” see	1
Swafford, 1991-NMSC-043, ¶ 27, and directs this Court to examine the factual	2
record. See State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104;	3
see also State v. Begaye, 2023-NMSC-015, ¶ 14, 533 P.3d 1057 (noting that the	4
application of the unitary conduct portion of the test “is largely consistent” with	5
longstanding precedent). Like Begaye, Lorenzo adopts Franco’s description of the	6
“proper analytical framework,” stating, in relevant part, that “‘[t]he proper analytical	7
framework is whether the facts presented at trial establish that the jury reasonably	8
could have inferred independent factual bases for the charged offenses.’” Lorenzo,	9
2024-NMSC-003, ¶ 8 (quoting Franco, 2005-NMSC-013, ¶ 7).	10
{43} Lorenzo applies the six Herron factors to the evidence in that record, noting	11
that the two crimes at issue in that case occurred closely in both time and space; that,	12
at no point had the armed robbery, the first crime, been completed before the	13
aggravated battery occurred. Id. ¶ 10. The Lorenzo Court also found that the	14
defendant’s intent throughout the entire course of conduct was consistent, another	15
Herron factor. Id. ¶ 12.	16
{44} In addition to analyzing the evidence as to the six Herron factors, the Court	17
in Lorenzo also relies on the fact that “the [s]tate’s presentation on appeal does not	18
match its presentation at trial,” noting that “had the [s]tate opted for a different	19
presentation at trial, it is possible that the jury could have decided that different uses	20

23
of force satisfied the elements of each crime,” and concluding that “[t]he [s]tate may	1
not now argue in the abstract about what it could have asked the jury to decide.”	2
Lorenzo, 2024-NMSC-003, ¶ 11. We understand this discussion in Lorenzo to direct	3
that, in considering whether a defendant’s conduct is unitary applying the six Herron	4
factors, we should consider the State’s presentation of the evidence to the jury at trial	5
when the argument the State makes on appeal differs markedly from the State’s	6
presentation to the jury.	7
{45} We now turn to the application of these principles to the facts presented to the	8
jury by the State in this case. We begin with the jury instructions. As to the offense	9
of CSP, the jury instructions directed the jury to convict if it found that Defendant	10
unlawfully “caused [Victim] to engage in sexual intercourse through the use of	11
physical force or physical violence.” The jury instruction for false imprisonment	12
directed the jury to convict if it determined that, knowing Defendant had no	13
authority, Defendant “restrained or confined [Victim] against her will.”	14
{46} The State argues on appeal that Defendant’s conduct was nonunitary because	15
Defendant first restrained Victim against her will while she was on the bed, where	16
the evidence described Defendant as “hugging” Victim tightly as she struggled to	17
escape his grip, completing the crime of false imprisonment, before continuing to	18
use what the State alleges on appeal was different force to accomplish sexual	19
penetration. According to the State’s brief on appeal, “the CSP did not occur until	20

24
several minutes later after a prolonged struggle that included several other types of	1
restraint.” The State claims that the Defendant’s act of “bear hugging [Victim] on	2
the bed” “created a distinct restraint from the [continued] restraint Defendant then	3
used to commit CSP.”	4
{47} As was the case in Lorenzo, the State’s presentation on appeal does not match	5
its presentation to the jury at trial. The State’s legal theory in closing argument was	6
that there was a single, continuous struggle between Defendant and Victim, during	7
which Defendant’s intent was consistently to force Victim to engage in sexual	8
intercourse. The State described Victim, while restrained on the bed, as	9
“continu[ally]” telling him “no,” and trying to get away, without success. The State	10
argued in closing, again pointing to the struggle on the bed that “[Victim] did not	11
want to have sex and could not get away, and [Defendant] was forcing it upon her.”	12
The State described the CSP occurring as “[Victim] was trying to get away;	13
[Defendant] was holding on and would [not] let her get away,” describing	14
Defendant’s restraint of Victim as continuous and intended from the outset to force	15
Victim to have intercourse.	16
{48} As in Lorenzo, it is possible, had the State presented the theory it now raises	17
on appeal, that the jury would have relied on the distinction between the force on the	18
bed used to restrain Victim and the force during the struggle on the floor and at the	19
time of penetration, deciding that distinct conduct satisfied the elements of each	20

25
crime. Because, however, the State did not make this argument to the jury or present	1
the evidence this way, we will not review the evidence in the abstract. See Lorenzo,	2
2024-NMSC-003, ¶ 11.	3
{49} Viewing the evidence as the jury was instructed to view it, rather than how	4
the State argues on appeal, Defendant’s conduct was unitary. Victim was restrained	5
from the outset with the consistent intent by Defendant to force Victim to engage in	6
sexual intercourse. The same force was employed to restrain Victim for purposes of	7
false imprisonment as was employed to accomplish penetration without Victim’s	8
consent. The jury, directed by the State’s closing to consider the encounter as a	9
continuous restraint of Victim by Defendant, ending in CSP, would not have	10
reasonably found the distinctions the State now argues on appeal. Therefore,	11
Defendant’s conduct was unitary.	12
D. The Legislature Did Not Intend to Permit Multiple Punishments Under	13
These Two Statutes for the Same Conduct	14
{50} Having determined that the conduct relied on to convict Defendant of the two	15
offenses was unitary, we proceed to the second Swafford prong: “whether the	16
Legislature intended to create separately punishable offenses.” State v. Reed, 2022-	17
NMCA-025, ¶ 8, 510 P.3d 1261 (text only) (citation omitted). Because the CSP and	18
false imprisonment statutes do not expressly permit multiple convictions, see	19
§ 30-9-11(F); § 30-4-3, we consider whether the Legislature intended multiple	20

26
punishments under the circumstances in this case. See Begaye, 2023-NMSC-015,	1
¶ 21.	2
{51} We first determine whether the modified Blockburger test or the strict-	3
elements Blockburger test applies. See Blockburger v. United States, 284 U.S. 299	4
(1932); see also Begaye, 2023-NMSC-015, ¶ 23 (providing that the reviewing court	5
must “examine the statutes at issue to discern whether the modified or strict-elements	6
Blockburger test applies,” and “should then apply either the modified or the strict-	7
elements test—but not both”). We have little difficulty concluding that both statutes	8
require the application of the modified Blockburger test. The CSP statute allows	9
sexual penetration to be accomplished either by violence or by coercion, and the	10
false imprisonment statute allows false imprisonment to be accomplished by	11
restraint or confinement, each of which can be achieved in multiple ways.	12
Accordingly, we must apply the modified Blockburger test.	13
{52} In applying the modified Blockburger test, we examine each offense, looking	14
to the State’s theory of each offense, rather than the statutory elements in the	15
abstract. See State v. Branch, 2018-NMCA-031, ¶ 25, 417 P.3d 1141. If under the	16
State’s theory of the case as presented to the jury all elements of one offense are	17
“subsumed within the other, then the analysis ends and the statutes are considered	18
the same for double jeopardy purposes.” See State v. Silvas, 2015-NMSC-006, ¶ 12,	19
343 P.3d 616; see also Begaye, 2023-NMSC-015, ¶ 24 (“We examine each offense	20

27
keeping in mind that determining whether one offense subsumes the other depends	1
entirely on the [s]tate’s theory of the case.” (emphasis added) (alteration, internal	2
quotation marks, and citation omitted)).	3
{53} As previously discussed, the jury was instructed, and the State argued, that to	4
convict Defendant of false imprisonment of Victim the jury needed to find that	5
Defendant had restrained or confined Victim against her will and that Defendant	6
knew this restraint or confinement was unauthorized. The theory for false	7
imprisonment pursued by the State in this case was that Defendant continuously	8
restrained Victim with the aim of penetrating her, while she struggled to escape and	9
repeatedly begged Defendant to let her go. Under the State’s theory of the case,	10
Defendant’s conduct in restraining or confining Victim was the same conduct that	11
was described as the force required to convict Defendant of CSP, and Victim’s	12
struggle and expressed wish to escape, communicated to Defendant, was the proof	13
of both Defendant’s understanding that his conduct was not authorized, as well as	14
proof of the unlawfulness and lack of consent elements of CSP. There is, therefore,	15
no element of proof required to convict of false imprisonment, as that crime was	16
presented to the jury by the State, that was not also required to convict Defendant of	17
CSP. One crime—false imprisonment—was fully subsumed with the other.	18
Defendant’s right to be free from double jeopardy was, therefore, violated and “the	19
inquiry is over.” See id. ¶ 35 (internal quotation marks and citation omitted).	20

28
V. Defendant Fails to Point to Any Error Cognizable on Appeal Related to	1
the Destruction of Jury Questionnaires	2
{54} Approximately five months after filing his first appeal, Defendant filed a	3
second notice of appeal in the same cause of action. The second appeal arose from	4
the district court’s denial of Defendant’s motion to retain juror questionnaires, a	5
collateral question that Defendant pursued after the verdict and after the filling of	6
his appeal from his conviction. Defendant’s second appeal does not seek review of	7
the district court’s denial of Defendant’s request to retain the questionnaires. It	8
instead seeks reversal of his convictions, the same remedy sought by the original	9
appeal, arguing that reversal is required because “the mandatory destruction rule is	10
unconstitutional and unenforceable.”	11
{55} The State argues that the district court did not have jurisdiction to rule on the	12
juror questionnaire motion, and even if there was jurisdiction, no procedure exists to	13
permit Defendant to take a second appeal. Because Defendant’s post-judgment	14
motion sought only collateral relief in the district court, we disagree and determine	15
that we have jurisdiction.	16
{56} After a notice of appeal has been filed, a district court has jurisdiction to	17
address “collateral matters not involved in the appeal.” Kelly Inn No. 102, Inc. v.	18
Kapnison, 1992-NMSC-005, ¶ 39, 113 N.M. 231, 824 P.2d 1033 (internal quotation	19
marks and citation omitted). A post-judgment request for collateral relief is “separate	20
from the decision on the merits” and does not “destroy the finality of the decision.”	21

29
Id. ¶ 21 (internal quotation marks and citation omitted). The district court, therefore,	1
had authority to enter a collateral order, and that order is subject to appeal. See id.	2
¶ 28 (approving of process wherein two appeals are taken in a case, one from the	3
merits and one from a subsequent collateral order, and allowing for the two cases to	4
be consolidated on appeal). We, therefore, have consolidated Defendant’s two	5
appeals, both of which seek reversal of Defendant’s June 30, 2021 judgment, and	6
sentence.	7
{57} Defendant raises a single issue in his second appeal: Defendant argues that his	8
convictions must be reversed because the district court denied his motion to preserve	9
the jury questionnaires beyond the 120 days after the final disposition of the case	10
provided by Rule 5-606, and the destruction of the questionnaires violates	11
Defendant’s constitutional rights. In the district court, the sole reason stated by	12
Defendant for preservation of the questionnaires was that “Defendant has asked that	13
a third party review . . . the entire trial proceeding.”	14
{58} Defendant concedes he knows of no error in the selection of the jury venire,	15
in the voir dire, or the selection of the jurors sworn for his trial (with the exception	16
of the claim of juror bias addressed earlier in this opinion). Nonetheless, he argues	17
that the destruction of jury questionnaires to protect the privacy of the jurors, even	18
when no issue is raised on appeal requiring review of those questionnaires, violates	19

30
his constitutional rights to due process, equal protection, and his right to appeal, and	1
requires reversal of the judgment against him. We are not persuaded.	2
{59} Defendant’s argument on appeal, as best we are able to discern, is that he is	3
entitled to reversal of his convictions because jury questionnaires have not been	4
preserved for a future hunt for any sort of error not previously identified, in the hope	5
that he may be able to bring a collateral challenge to the judgment if error is found.	6
Defendant has cited no authority, which would support the remedy of reversal of his	7
conviction on direct appeal when trial counsel, who reviewed the questionnaires,	8
was present in the district court for this portion of the case, filed the motion to retain	9
the questionnaires, and has made no claim of error that requires review of these	10
questionnaires.	11
{60} Reversal of a conviction on appeal requires a defendant establish that the	12
district court erred. See Hall v. City of Carlsbad, 2023-NMCA-042, ¶ 5, 531 P.3d	13
642 (“[I]t is the appellant’s burden to persuade us that the district court erred.”). “On	14
appeal, there is a presumption of correctness in the rulings and decisions of the	15
district court, and the party claiming error must clearly show error.” Id. (internal	16
quotation marks and citation omitted). Moreover, generally, Defendant must have	17
brought that error to the district court’s attention, preserving it for review on appeal	18
by timely alerting the district court and the State to the claimed error, thereby giving	19
the State an opportunity to respond, and the district court an opportunity to correct	20

31
the error. See Rule 12-321; see also Barreras v. N.M. Corr. Dep’t, 1992-NMSC-	1
059, ¶ 22, 114 N.M. 366, 838 P.2d 983 (“We will not consider a matter not properly	2
brought before the trial court for the first time on appeal.”). Even the exception to	3
preservation for fundamental error places the burden on the Defendant to identify	4
and establish that an error occurred. See State v. Ocon, 2021-NMCA-032, ¶ 7, 493	5
P.3d 448 (“Our review involves two basic steps. The first is to determine whether	6
error occurred. In other words, our analysis begins at the same place as the analysis	7
for reversible error.” (text only) (citation omitted)).	8
{61} Defendant having failed to identify any error that requires the jury	9
questionnaires for review, we apply our presumption of correctness and do not	10
consider Defendant’s unpreserved argument further. Our ruling does not prevent	11
Defendant from pursuing relief by way of a petition for writ of habeas corpus. See	12
Campos v. Bravo, 2007-NMSC-021, ¶ 5, 141 N.M. 801, 161 P.3d 846.	13
VI. Cumulative Error	14
{62} We are not persuaded by Defendant’s claim that there was pervasive error at	15
trial in this case. We see no error requiring reversal of Defendant’s conviction for	16
CSP by force or coercion.	17

32
CONCLUSION	1
{63} We vacate Defendant’s conviction of aggravated battery on a household	2
member and remand for retrial on that count. We also vacate Defendant’s conviction	3
of false imprisonment on double jeopardy grounds. We otherwise affirm.	4
{64} IT IS SO ORDERED.	5
__________________________________	6
JANE B. YOHALEM, Judge	7
WE CONCUR:	8
_________________________________	9
GERALD E. BACA, Judge	10
_________________________________	11
KATHERINE A. WRAY, Judge	12