State v. Azamar-Nolasco

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: June 24, 2021

No. S-1-SC-37760

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ALEJANDRO AZAMAR-NOLASCO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY
Emilio J. Chavez, District Judge

Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General
Eran Shemuel Sharon, Assistant Attorney General
Santa Fe, NM

for Appellee

DECISION

VIGIL, Justice.

{1} A jury convicted Defendant Alejandro Azamar-Nolasco of first-degree, willful and
deliberate murder, aggravated burglary, and aggravated stalking. Sentenced to life plus
ten and one-half years, Defendant exercised his right of direct appeal to this Court. See
N.M. Const. art VI, § 2; Rule 12-102(A)(1) NMRA. Defendant raises four issues on
appeal, three of which he argues created a “fundamentally unfair trial” process and
justify reversal of his convictions: (1) the prosecutor commented on Defendant’s
invocation of his right to counsel, (2) the district court denied his motion to sever the
aggravated stalking charge from the other charges for purposes of trial, and (3) the
district court admitted surveillance video that was not properly authenticated. Fourth and
finally, Defendant argues that his convictions violate the prohibition against multiple
punishments for the same offense under the Double Jeopardy Clause of the United
States Constitution. See U.S. Const. amend. V. Based on the following reasoning, we
conclude that Defendant’s convictions and sentences for aggravated burglary and first-
degree, willful and deliberate murder result in a violation of double jeopardy. We
therefore vacate Defendant’s aggravated burglary conviction and sentence. We affirm
Defendant’s convictions of first-degree murder and aggravated stalking. Because the
legal issues in this case “have been previously decided by the Supreme Court or the
Court of Appeals[,]” we exercise our discretion under Rule 12-405(B) NMRA to issue
this non-precedential decision.

I. BACKGROUND

{2} The story of Mandy Vanlandingham’s death is one of escalating domestic
violence. The trial evidence tells the following tragic story. Mandy Vanlandingham
(Victim) and Defendant dated for approximately two years. After Victim ended the
relationship, Defendant would not leave Victim alone, repeatedly calling and texting her.
Defendant developed a pattern of driving by Victim’s house and following her. In
response to this behavior, and after Defendant slashed a tire on Victim’s mother’s
vehicle, Victim obtained a restraining order against Defendant. Defendant was alleged
to have violated the restraining order on multiple occasions. The culmination of this
stalking and harassment was Defendant’s brutal murder of Victim.

{3} Victim’s mother was the one who found Victim dead in her bathroom. Captain
James Valdez of the Raton Police Department was called to the scene. When he
arrived, he observed Victim “lying on her back in the bathtub.” He noticed that the
bathroom was humid, and the bath mat was fully saturated with water. According to
Captain Valdez, Victim’s mouth was open and full of standing water, and she appeared
to have bruising and abrasions around her chin, neck, shoulders, and lower abdomen.
Captain Valdez also noticed that Victim’s head was positioned directly underneath the
bathtub faucet. Captain Valdez observed two blood smears and some blood spatter on
the bathtub, as well as a large clump of Victim’s hair on the edge of the bathtub.
Following an autopsy, the medical examiner determined that Victim’s cause of death
was strangulation and drowning, and the manner of death was homicide.

{4} After a three-day trial, the jury convicted Defendant on all counts: aggravated
stalking, contrary to NMSA 1978, § 30-3A-3.1(A)(1) (1997), aggravated burglary,
contrary to NMSA 1978, § 30-16-4(C) (1963), and first-degree, willful and deliberate
murder, contrary to NMSA 1978, § 30-2-1(A)(1) (1994). Defendant does not challenge
the sufficiency of the evidence to support his convictions but appeals on four other
grounds. Additional factual background is provided as necessary in the following
analysis of Defendant’s arguments on appeal.
II. DISCUSSION

{5} We address Defendant’s four issues in turn: (1) the prosecutor’s comments in
closing argument, (2) the denial of Defendant’s motion to sever, (3) the admission of the
surveillance video, and (4) the violation of Defendant’s double jeopardy rights. Following
our analysis of each, we conclude that Defendant received a fair trial, but we vacate his
conviction and sentence for aggravated burglary on double jeopardy grounds.

A. The Prosecutor’s Comments in Closing Argument were not Fundamental
Error

{6} During trial, the State introduced and played a video recording of Defendant’s
interview with police. The video included footage of Defendant invoking his right to
counsel. Later, in closing argument, the defense attempted to bolster Defendant’s
credibility by emphasizing that Defendant willingly spoke to police during the
investigation even though he was not required to do so. Defense counsel argued, “Mr.
Azamar-Nolasco was under no obligation to speak to police. He was under no obligation
to testify here today.” In rebuttal, the State addressed this point, stating,

[Defense counsel] said [Defendant] didn’t have to go talk to police. That’s
right he didn’t and when did he stop? As soon as the police said we put
you at the house of [Victim]. Guess who stopped talking then, right? And
everything that he said ever since doesn’t line up with what everyone else
has said—everyone he called to the stand to corroborate his story—
doesn’t match up. So I won’t talk when I’m cornered, but when I’m not,
and I get to talk, and I allow my attorney to correct my story, I’ll say
something. Okay. Good. Go ahead. And he did.

Defense counsel then asked, “Your Honor, may we approach?” The record is not clear
whether defense counsel objected to the prosecutor’s comment during the ensuing
bench conference or whether the district court made a formal ruling. After the bench
conference, the prosecutor wrapped up the rebuttal.

{7} Defendant now contends that the State improperly commented on his right to
counsel and his right to remain silent by introducing the video recording and then using
his invocation of the right to counsel to insinuate that he was guilty. Defendant asserts
that, by doing so, the State violated his right to a fair trial and due process, which would
amount to fundamental error.

1. Preservation and standard of review

{8} Generally, “eliciting testimony or commenting on a defendant’s exercise of his or
her right to counsel is . . . reversible error.” State v. McDowell, 2018-NMSC-008, ¶ 5,
411 P.3d 337. However, when a defendant fails to object to the testimony or comment,
as Defendant concedes was the case here, we only reverse if the error was
fundamental. Id. ¶ 7. The qualifications for preservation are governed by Rule 12-321(A)
NMRA. That rule instructs that an error is preserved only if “a ruling or decision by the
trial court was fairly invoked.” It is not clear whether a ruling of the district court was
fairly invoked in this instance. We therefore conclude that Defendant did not preserve
this issue, and we review for fundamental error. See McDowell, 2018-NMSC-008, ¶¶ 7-
18.

{9} Under a fundamental error analysis, “[w]e first determine whether any error
occurred, i.e., whether the prosecutor commented on the defendant’s protected
silence.” State v. DeGraff, 2006-NMSC-011, ¶ 21, 139 N.M 211, 131 P.3d 61. If such an
error occurred, we then determine whether “there is a reasonable probability that the
error was a significant factor in the jury’s deliberations relative to the other evidence
before them.” Id. ¶ 22. However, we do not conduct this analysis if we conclude that the
defendant invited the prosecutor’s mistake. See State v. Ortega, 2014-NMSC-017, ¶ 34,
327 P.3d 1076 (“The doctrine of fundamental error cannot be invoked to remedy the
defendant’s own invited mistakes.” (quoting State v. Campos, 1996-NMSC-043, ¶ 47,
122 N.M. 148, 921 P.2d 1266)).

2. Defendant invited any error of which he complains

{10} Assuming without deciding that the State committed error by commenting on
Defendant’s invocation of his right to counsel, we conclude that Defendant invited the
error and thus, we decline to reverse his convictions on this ground. Before the
prosecutor commented on Defendant’s request for an attorney and subsequent silence
during the police investigation, defense counsel attempted to buttress Defendant’s
credibility by highlighting his willingness to speak with police and testify at trial. Based
on this willingness to talk, the defense asked the jury to infer that Defendant was not
guilty. The prosecutor’s comment was made in response to this line of argument. In
other words, the defense invited the mistake that Defendant now alleges was
fundamental error. Because Defendant invited the prosecutor’s presumably improper
comment, he cannot rely on the doctrine of fundamental error to seek reversal. See
Ortega, 2014-NMSC-017, ¶ 34 (“A party may not be rewarded . . . when it invites . . .
error and subsequently complains about that very error.”). Accordingly, we reject
Defendant’s argument on this ground, and we turn to address whether the district court
abused its discretion by denying Defendant’s motion to sever the aggravated stalking
charge.

B. Denial of Defendant’s Motion to Sever was not an Abuse of Discretion

{11} Prior to trial, Defendant moved to sever the aggravated stalking count, arguing
that evidence relevant to that charge was inadmissible against the murder charge. In
particular, Defendant sought to exclude from the murder trial any evidence of his prior
conviction of petty misdemeanor criminal damage to property arising from the incident
when Defendant slashed the tire on Victim’s mother’s vehicle. After hearing argument
from both parties, the district court denied the motion to sever, ruling that the evidence
was “cross-admissible and not unfairly prejudicial.” Defendant now asserts that the
district court abused its discretion when it denied the motion to sever.
1. Standard of review

{12} We review the denial of a motion to sever for an abuse of discretion. See State v.
Garcia, 2011-NMSC-003, ¶ 16, 149 N.M. 185, 246 P.3d 1057 (“The decision to grant [or
deny] a severance motion lies within the trial judge’s discretion and will not be
overturned on appeal unless the joinder of offenses results in actual prejudice against
the moving party.”). See Rule 5-203(C) NMRA (“If it appears that a defendant or the
state is prejudiced by a joinder of offenses . . . , the court may order separate trials of
offenses . . . or provide whatever other relief justice requires.”). The “[d]efendant bears
the burden of establishing that he was actually prejudiced by a failure to sever.” Garcia,
2011-NMSC-003, ¶ 16. We will not infer prejudice if the evidence supporting one charge
is also admissible to support the remaining charges. See State v. Gallegos, 2007-
NMSC-007, ¶ 20, 141 N.M. 185, 152 P.3d 828.

2. Defendant failed to establish actual prejudice

{13} To determine whether there was “actual prejudice to an accused in the failure-to-
sever context[,]” we consider various factors on both sides of the question. State v.
Lovett, 2012-NMSC-036, ¶ 56, 286 P.3d 265. Those factors that demonstrate the
presence of actual prejudice include:

(1) the prosecution intertwining the offenses in opening statement, during
its case-in-chief, or in closing argument; (2) the defendant being found
guilty on all counts; (3) factual similarities linking the offenses; (4) offenses
that are inflammatory in nature; (5) unusually long and complex trials; and
(6) a conviction on a charge where the evidence is thin.

Id. Conversely, the factors that indicate a lack of prejudice include:

(1) dissimilar offenses such that a jury would not confuse them; (2) the
defendant being acquitted of some charges; and (3) proper jury
instructions that adequately make clear to the jury that it must not consider
evidence inadmissible to a particular count when coming to a verdict on
that count.

Id. “The factors may have varying degrees of relevancy in different cases.” Id.

{14} Defendant claims that all the factors demonstrating actual prejudice are met in
this case. We consider each factor as presented by Defendant. First, without citation to
the record, Defendant asserts that the State intertwined the offenses “throughout the
trial and in closing argument.” We disagree that the offenses were impermissibly
intertwined. Any intertwining in this case results from the fact that Defendant was
accused of committing all three crimes against a single victim. For this reason, the
cases that Defendant cites in his brief to support his argument on this factor are
inapposite.
{15} A defendant is more likely to be actually prejudiced by the joinder of offenses if
the prosecution intertwines a defendant’s distinct criminal conduct against separate
victims committed at different times in an effort to convict on all charges. In Lovett, a
single defendant was charged and convicted of two counts of first-degree murder,
arising from the killing of “two women in two separate, unrelated incidents.” 2012-
NMSC-036, ¶ 1. The two murder charges were joined in a single trial. Id. We concluded
that Defendant was actually prejudiced by this joinder and vacated one of his murder
convictions. Id. ¶¶ 84-85. The Court explained that the State “immediately intertwined
the two cases,” relying on “the jury’s perception that the crimes were related and that
[the d]efendant acted similarly in each.” Id. ¶ 58. In addition, the Court observed that
“the State went out of its way to question certain witnesses about both murders and to
intertwine the testimony about each murder.” Id. ¶ 74. Similarly, in Gallegos, the
defendant was charged with several counts for sexual crimes against two victims on
various occasions. 2007-NMSC-007, ¶¶ 4-6. The Court concluded that the district court
erred in failing to sever the charges and trial. Id. ¶¶ 3, 47. In that case, the defendant
was actually prejudiced by the failure to sever, in part because “the State intertwined the
evidence relating to the separate offenses by presenting the testimony of [each victim]
back-to-back at the very beginning of trial[,]” thereby “urg[ing] the jury to consider
together the evidence pertaining to [both victims].” Id. ¶ 43. In the instant case, since
Defendant was charged with three crimes against one victim, the State did not
inappropriately intertwine the offenses in its presentation of evidence or argument to the
jury.

{16} Turning to the second factor for determining actual prejudice—guilty verdicts on
all counts—Defendant accurately states that he was convicted on every count, but he
does not contest the sufficiency of the evidence supporting any count. Although we may
consider whether Defendant was “found guilty on all counts,” this factor does not
necessarily support a determination of prejudice if sufficient evidence supports each
conviction. Cf. Lovett, 2012-NMSC-036, ¶¶ 84-86 (concluding that the district court
“committed reversible error . . . by failing to sever the two prosecutions” but affirming the
defendant’s convictions for the murder and criminal sexual penetration of the second
victim based on the strength of the evidence against the defendant in the second case).
Accordingly, we are not persuaded by Defendant’s argument regarding this factor.

{17} Third, Defendant concludes that “the offenses were similar,” but he fails to
explain how he reaches that conclusion. He does not demonstrate how the evidence
underlying the aggravated stalking conviction, for which he requested severance, was
factually similar to the evidence supporting the aggravated burglary and first-degree
murder convictions. Unlike our review of this factor in Lovett, we fail to see how the jury
in this case might have confused the evidence of aggravated stalking with the evidence
of aggravated burglary and murder. See id. ¶ 74 (highlighting the factual similarities
between the two murders, as evidenced in the State’s comment in closing argument
that “[t]here is no question in these two cases these women were deliberately
murdered” and that “the amount and the type of injuries that they suffered can lead to
no other conclusion” (alteration in original)). For this reason, we conclude that the
aggravated stalking offense was not similar to the remaining offenses.
{18} Fourth, Defendant asserts that the offenses were “inflammatory.” All crimes may
be characterized as somewhat inflammatory. In this case, Defendant does not articulate
why we should consider the charged offenses to be especially inflammatory, so we
decline to consider this factor in our analysis of actual prejudice.

{19} Fifth, Defendant claims that the trial was unusually long and complex. We
disagree. Defendant’s jury trial spanned three days and included testimony of nineteen
witnesses, including expert scientific testimony. Contrasted with other criminal trials,
which may last several weeks or longer depending on the circumstances, we consider
Defendant’s trial to have been manageable. For example, in Lovett, the defendant’s trial
lasted “two full weeks” and the jury was tasked with reviewing copious evidence of “two
death-penalty-eligible murders . . . involv[ing] two unrelated victims, different defenses,
dozens of witnesses, and a significant amount of expert testimony.” 2012-NMSC-036, ¶
75. We observed in that case that “[t]he fact that the State was confused at times, using
the wrong victim’s name, indicating the wrong jury instruction, and confusing the
locations where the victims were found, suggests that the jury was also confused at
times.” Id. There is no indication that the length and complexity of Defendant’s trial
resulted in juror confusion or difficulty in keeping track of the evidence that supported
each of the joined offenses. Therefore, this factor does not demonstrate actual prejudice
to Defendant.

{20} Finally, Defendant argues that the evidence supporting the murder charge “was
fairly weak.” He also asserts that he was actually prejudiced by joinder because “the
jury convicted despite [Defendant’s] alibi evidence.” Again, we disagree. We note once
more that Defendant did not challenge the sufficiency of the evidence to support the
murder conviction in his appeal. This suggests that the evidence supporting this
conviction was not “thin.” See Lovett, 2012-NMSC-036, ¶ 56. Furthermore, the jury had
a fair opportunity to observe and listen to Defendant’s testimony in which he detailed his
version of events on the morning of Victim’s death. The jury then judged the testimony
and weighed the credibility of the evidence. “New Mexico appellate courts will not
invade the jury’s province as fact-finder by second-guess[ing] the jury’s decision
concerning the credibility of witnesses.” See Garcia, 2011-NMSC-003, ¶ 5 (alteration in
original) (internal quotation marks and citation omitted). Defendant fails to show how the
jury’s rejection of his alibi supports a determination that he was actually prejudiced by
the joinder of his offenses.

{21} Having assessed each of Defendant’s claims on this issue, we conclude that
Defendant failed to meet his burden to show that he was actually prejudiced by the
district court’s denial of his motion to sever. In further support of this conclusion, we
proceed to address whether the evidence of Defendant’s pattern of harassing behavior
was cross-admissible to prove each of the charged offenses.

3. The evidence was cross-admissible

{22} If the evidence of one offense is also admissible to prove the elements of the
other joined offenses, “then any inference of prejudice is dispelled and our inquiry is
over.” See Gallegos, 2007-NMSC-007, ¶ 20. Evidence is cross-admissible if it would
have been admissible in a separate trial for each of the charged crimes. See Lovett,
2012-NMSC-036, ¶ 11. Undoubtedly, the evidence of a “pattern of harassing conduct”—
including Defendant’s prior misdemeanor conviction—would have been admissible in a
trial on only the aggravated stalking charge. See NMSA 1978, § 30-3A-3(A) (2009)
(defining stalking as “knowingly pursuing a pattern of conduct, without lawful authority,
directed at a specific individual when the person intends that the pattern of conduct
would place the individual in reasonable apprehension of death, bodily harm, sexual
assault, confinement or restraint of the individual or another individual”). To determine if
this evidence is cross-admissible, we must determine whether it would also be
admissible in separate trials for aggravated burglary and murder.

{23} In its order denying Defendant’s motion to sever, the district court ruled that the
evidence of an “alleged pattern of conduct by the defendant is cross-admissible and not
unfairly prejudicial.” The district court rested its ruling on Rule 11-404(B) NMRA. Under
that rule, “[e]vidence of a crime, wrong, or other act . . . may be admissible [to prove]
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Applying Rule 11-404(B), the district court explained that

[i]n this case, aggravated stalking is a continuing offense that is alleged to
have culminated in the death of the victim. . . . The pattern of conduct
alleged by the [S]tate is not being used to show conformity, but to
demonstrate that [D]efendant had the motive, intent, [or] plan to commit
the allegations.

In other words, the evidence of Defendant’s pattern of harassing conduct would have
been admissible to prove Defendant’s motive, intent, or plan to commit the aggravated
burglary and murder. We agree with the district court’s assessment of the evidence
under Rule 11-404(B). We therefore conclude that the evidence was cross-admissible.
Thus, Defendant was not actually prejudiced by the district court’s refusal to sever the
offenses for trial. See Gallegos, 2007-NMSC-007, ¶ 20. For the foregoing reasons, we
decline to reverse Defendant’s convictions based on the denial of his motion to sever.
We proceed to Defendant’s third argument concerning evidence authentication.

C. Foundational Testimony Sufficiently Authenticated the Surveillance Video

{24} Next, Defendant argues that the district court improperly admitted video
surveillance footage from Victim’s house, which depicted a person dressed in all black,
without shoes, entering through the back of the house on the morning of Victim’s death.
The district court admitted the surveillance video based on the authentication testimony
of Captain Valdez and Victim’s daughter, who lived at Victim’s house and had
independent access to the surveillance recordings. Defendant asserts that this evidence
was not properly authenticated. “In general, we review a trial court’s admission or
exclusion of evidence for abuse of discretion. An abuse of discretion arises when the
evidentiary ruling is clearly contrary to logic and the facts and circumstances of the
case.” State v. Marquez, 2016-NMSC-025, ¶ 33, 376 P.3d 815 (internal quotation marks
and citation omitted); accord State v. Imperial, 2017-NMCA-040, ¶¶ 14, 27-34, 392 P.3d
658. Based on the following analysis under this standard of review, we conclude that
the district court did not abuse its discretion in admitting the surveillance video because
this evidence was sufficiently authenticated.

{25} The proper authentication of evidence for admission at trial is governed by Rule
11-901(A) NMRA. Under that rule, “[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” When the evidence is
a photograph or video “created through [an] automated process[,]” New Mexico courts
recognize a “low bar for authentication.” Imperial, 2017-NMCA-040, ¶ 29. “Such
photographic [or video] evidence is admissible under the ‘silent witness’ theory[.]” Id.
Under the silent witness theory, “the photographic [or video] evidence is a ‘silent
witness’ which speaks for itself, and is substantive evidence of what it portrays
independent of a sponsoring witness.” State v. Henderson, 1983-NMCA-094, ¶ 8, 100
N.M. 260, 669 P.2d 736. However, a proponent of photographic or video evidence must
still lay a proper foundation. “The evidence must be authenticated. A witness with
knowledge must testify that the thing is what it purports to be.” Id. ¶ 11.

{26} In Henderson, the Court of Appeals concluded that photographic evidence was
properly admitted under the silent witness theory when an officer familiar with the
machine used to develop film “testified about the film developing procedure” and stated
that she had requested the development of the film for the date in question. Id. ¶ 12.
Likewise, in Imperial, the Court of Appeals determined that video footage was properly
admitted under the silent witness theory when a police officer testified that a
“surveillance video was downloaded in response to his request for recordings of specific
dates and times” from the cache of surveillance recordings at the store where the
crimes occurred. 2017-NMCA-040, ¶¶ 3, 31. A proper foundation was further supported
by the testimony of a store employee that

(1) the images on the surveillance video were from the [store] location at
which she works, (2) the date and time information is programed remotely,
(3) local employees do not have the ability to manipulate that information,
and (4) she is able to download surveillance video from specific dates and
times for up to ninety days.

Id. ¶ 31. All of this amounted to a sufficient foundation to admit the surveillance footage
under Rule 11-901. Id. ¶¶ 31, 34.

{27} In this case, similar to Henderson and Imperial, witnesses with knowledge of the
video evidence testified about the authenticity of the evidence. Victim’s daughter
testified that her mother had previously contracted with Vivint to provide a three-camera
security system at their house. Each camera offered a live-stream twenty-four hours a
day that she could view through the Vivint mobile application (Vivint App) on her
cellphone. The cameras were also equipped with a sensor and were enabled to activate
and record if the sensor detected any movement. Victim’s daughter received notification
when the automated system made a recording, and she could access and view the
recorded video files according to their dates and times.
{28} Victim’s daughter further testified that she had tested the operation of the
automated system and confirmed that the cameras activated and recorded as intended.
She conducted this test by moving around the house and reviewing the videos that the
system recorded. Although Victim’s daughter could access, view, and save the video
files, the Vivint App did not allow her to edit or alter the films or their time codes.
Concerning the authentication of the specific video file at issue, Victim’s daughter
testified that she downloaded and viewed the file in the Vivint App upon receiving
notification that the system had created a recording after detecting movement in the
house on the day of her mother’s death. The video footage included an image of an
unidentified person walking into the back of the house at 8:19 in the morning. Victim’s
daughter saved the video file and provided it to law enforcement.

{29} Captain Valdez also testified about the reliability of the surveillance video. He
stated that during his investigation, he requested that Vivint preserve all video
surveillance for the day before and the day of Victim’s death. After receiving a search
warrant, Vivint provided Captain Valdez with a time-sensitive, password-secured link,
which allowed him to access and download the recorded surveillance video files of
Victim’s house for the specified dates. The video files were provided in a manner that
would not allow Captain Valdez to alter or otherwise edit the files. Captain Valdez also
received instructions from Vivint on how to read the video time stamps and
accompanying time logs so that he could use the logs and video files to locate a
recording made on a specific date and time. Finally, during Captain Valdez’s
foundational testimony, he was questioned as to whether the video recordings accorded
with his observations at Victim’s house during his investigation. Captain Valdez
responded that in the video recordings he reviewed from the morning of Victim’s death,
Victim was recorded wearing the same shirt she was wearing when Captain Valdez
observed her body during the homicide investigation.

{30} Relying on the testimony of Captain Valdez and Victim’s daughter, the district
court admitted the video surveillance recordings under the silent witness theory. To
authenticate the recorded video files, the State was required to meet the “low bar” that
“a witness with knowledge [could testify] that the thing is what it purports to be.”
Imperial, 2017-NMCA-040, ¶ 29 (internal quotation marks and citation omitted). We
agree with the district court that the State satisfied this requirement during its
examination of Victim’s daughter and Captain Valdez. For this reason, the district
court’s evidentiary ruling was not “contrary to logic [or] the facts and circumstances of
this case.” Marquez, 2016-NMSC-025, ¶ 33 (internal quotation marks and citation
omitted). Therefore, we conclude that the district court did not abuse its discretion by
admitting the recorded video surveillance footage. The final question before us in this
case is whether Defendant’s convictions violate the principles of double jeopardy.

D. Defendant was Sentenced in Violation of the Double Jeopardy Clause

{31} Defendant argues that his sentences for aggravated stalking, aggravated
burglary, and first-degree, willful and deliberate murder violate the prohibition of multiple
punishments for the same offense under the Double Jeopardy Clause of the federal
constitution, incorporated to the states through the Fourteenth Amendment. U.S. Const.
amend V (“No person shall . . . for the same offense . . . be twice put in jeopardy of life
or limb.”); Benton v. Maryland, 395 U.S. 784, 794 (1969). Defendant claims that the
State impermissibly relied on his singular act of killing Victim to prove certain elements
of all three offenses for which he was convicted and sentenced. In particular, he draws
attention to the State’s closing argument, in which the prosecutor asserted that
Defendant’s murderous act proved both the battery element of aggravated burglary and
the “reasonable apprehension of death or bodily harm” element of aggravated stalking.
Defendant’s argument alleges a “double-description” violation of double jeopardy, which
we review de novo. State v. Torres, 2018-NMSC-013, ¶¶ 16-17, 413 P.3d 467.

{32} A double-description violation occurs when “a defendant is convicted under
different statutes but the same criminal conduct is the basis underlying the multiple
charges.” Id. ¶ 16. Our analysis of double-description claims proceeds in two steps.
First, we must determine “whether the conduct underlying the offenses is unitary, i.e.,
whether the same conduct violates multiple statutes.” State v. Sena, 2020-NMSC-011, ¶
45, 470 P.3d 227 (alteration omitted) (quoting Swafford v. State, 1991-NMSC-043, ¶ 25,
112 N.M. 3, 810 P.2d 1223). If we conclude that the same conduct violated more than
one statute, we then ask “whether the [L]egislature intended to create separately
punishable offenses” under the pertinent statutes. Sena, 2020-NMSC-011, ¶ 45
(quoting Swafford, 1991-NMSC-043, ¶ 25). In our ensuing analysis, we consider first
whether Defendant’s convictions of aggravated burglary and first-degree murder lead to
a double-description violation before turning to Defendant’s conviction of aggravated
stalking.

1. Aggravated burglary and first-degree, willful and deliberate murder

{33} Defendant argues that his convictions of aggravated burglary and first-degree
murder violate double jeopardy because he was punished under both statutes for one
course of conduct. Specifically, he asserts that the act of killing Victim was
unconstitutionally used twice to prove both an essential element of first-degree murder
and the aggravating element of aggravated burglary. We agree. As we explain herein,
we conclude that Defendant’s conduct underlying both convictions was unitary and that
the Legislature did not intend to permit multiple punishments under the facts and legal
theory of this case. We begin with an analysis of unitary conduct.

a. Unitary conduct

{34} To determine whether the conduct underlying each offense was unitary, we must
analyze “whether or not a defendant’s acts are separated by sufficient ‘indicia of
distinctness.’” Torres, 2018-NMSC-013, ¶ 18 (quoting DeGraff, 2006-NMSC-011, ¶¶ 26-
27). Identifying sufficient indicia of distinctness requires consideration of the following
factors: “whether acts were close in time and space, their similarity, the sequence in
which they occurred, whether other events intervened, and the defendant’s goals for
and mental state during each act.” State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M.
447, 112 P.3d 1104. Centering our analysis around these factors, we “look[] for an
identifiable point at which one of the charged crimes had been completed and the other
not yet committed.” Torres, 2018-NMSC-013, ¶ 19 (internal quotation marks and citation
omitted). To conduct this analysis, we review “the elements of the charged offenses . . .
and the instructions given to the jury” to establish the scope of the prohibited conduct
under each statute. Sena, 2020-NMSC-011, ¶ 46. We then evaluate the factual
evidence at trial to determine whether the defendant’s conduct was sufficiently distinct
to support a separate conviction of each offense. See id. ¶¶ 46, 54-55.

{35} In reviewing the elements of the charged offenses, we observe that both crimes
require an unlawful touching. First-degree murder under Section 30-2-1(A)(1) requires
“the killing of one human being by another without lawful justification or excuse . . . by
any kind of willful, deliberate and premeditated killing[.]” The jury was instructed on this
charge in accordance with these statutory elements. Aggravated burglary, as charged
against Defendant, requires a defendant to commit a battery in the course of committing
a burglary. See § 30-16-4(C). In other words, to convict on aggravated burglary in this
case, the jury was required to find the essential elements of simple burglary in addition
to the essential elements of simple battery. The crime of simple “[b]urglary consists of
the unauthorized entry of any . . . structure . . . with the intent to commit any felony or
theft therein.” NMSA 1978, § 30-16-3 (1971). The crime of simple “[b]attery is the
unlawful, intentional touching or application of force to the person of another, when
done in a rude, insolent or angry manner.” NMSA 1978, § 30-3-4 (1963). We note that
Defendant was not charged with simple burglary or simple battery, but only with the
amalgamation of the two offenses in the crime of aggravated burglary. The jury
instruction on aggravated burglary reflected the statutory elements of both burglary and
battery:

For you to find [D]efendant guilty of aggravated burglary as charged
in Count 2, the [S]tate must prove to your satisfaction beyond a
reasonable doubt each of the following elements of the crime:
1. [D]efendant entered a dwelling without authorization;
2. [D]efendant entered the dwelling with the intent to commit
first degree murder or second degree murder once inside;
3. [D]efendant touched or applied force to [Victim] in a rude or
angry manner while entering or leaving, or while inside;
4. This happened in New Mexico on or about the 20th day of
July, 2016.

{36} With these elements and instructions in mind, we review the evidence presented
at trial to determine whether Defendant’s actions constituted two separate offenses or
one course of criminal conduct. While Defendant relies on the State’s legal theory as
expressed in closing argument to demonstrate that he was punished for unitary
conduct, we have explained that the prosecution’s legal theory alone does not
“necessarily determine[] whether conduct may be considered unitary.” Franco, 2005-
NMSC-013, ¶ 7. In this case, under a general verdict that does not identify specific
conduct concretely tied to each conviction, “[t]he proper analytical framework is whether
‘the facts presented at trial establish that the jury reasonably could have inferred
independent factual bases for the charged offenses.’” Id. (quoting Swafford, 1991-
NMSC-043, ¶ 29). There is no question that the evidence in this case supports the jury’s
finding that Defendant committed multiple batteries during his attack on Victim. The
question is whether Defendant’s acts of battery were distinct from his act of murder.
Answering this question requires a thorough examination of the evidence presented to
the jury.

{37} The jury learned that Victim died of asphyxia caused by neck compression and
drowning and that the manner of death was homicide. During trial, the medical examiner
identified injuries to Victim’s eyes, neck, shoulders, and head. Victim displayed
hemorrhaging in the small vessels of her eyes, which supported the conclusion that she
was strangled. She suffered internal injury to the muscles of her neck and multiple
abrasions to her neck and shoulders. Victim also had several spots of severe bleeding
under her scalp, indicating blunt force trauma. According to the medical testimony, the
blunt force trauma was the result of direct blows to her head and the ripping out of a
significant mass of hair. The medical examiner further explained that drowning
contributed to the death because Victim’s lungs contained excess fluid, and Victim was
found with standing water in her mouth with her head positioned below the bathtub
faucet.

{38} Our indicia of distinctness analysis requires us to scour this evidence for an
inflection point in Defendant’s conduct—a moment at which the act of battery was
completed before the act of killing had begun. See Torres, 2018-NMSC-013, ¶ 19. For
example, in DeGraff, after attacking a homeowner during a break-in, the defendant was
convicted of aggravated burglary with battery as the aggravating factor. 2006-NMSC-
011, ¶¶ 1, 3, 28-30. Because the defendant ultimately killed the victim, he was also
convicted of felony murder. Id. ¶¶ 1, 30. Like Defendant in this case, the defendant in
DeGraff argued that his dual convictions constituted a double-description violation of
double jeopardy. Id. ¶ 26. The Court disagreed, concluding that the defendant’s conduct
was not unitary because the defendant had used several types of weapons to inflict two
different modes of attack, and forensic evidence indicated an “intervening struggle”
between the initial battery and the subsequent killing. Id. ¶¶ 3, 30. In other words, the
evidence showed that the aggravated burglary was complete before the murder was
committed.

{39} Similarly, in State v. Foster, the Court held that the defendant’s convictions of
kidnapping and felony murder did not violate double jeopardy. 1999-NMSC-007, ¶¶ 31-
35, 126 N.M. 646, 974 P.2d 140 (abrogated on other grounds as recognized in Sena,
2020-NMSC-011, ¶¶ 47-53). The Court explained that the defendant’s conduct was not
unitary because different weapons were used to commit each offense and the
completion of each offense was separated by “several minutes.” Foster, 1999-NMSC-
007, ¶ 31. The defendant’s conduct consisted of two distinct offenses because he first
used one weapon to kidnap the victim by knocking her unconscious before using a
different weapon to kill the victim by strangling her. Id. Similar to the sequence of
criminal conduct in DeGraff, the kidnapping in Foster was complete before the act of
murder began.

{40} This reasoning is consistent with the Court’s additional and inverse conclusion in
Foster that a defendant’s conduct is unitary if the same weapon was used to commit
both offenses, and “[t]he evidence . . . does not show a significant separation in time or
physical distance” between two acts. Id. ¶¶ 38-40. Accordingly, the Foster Court found a
double jeopardy violation where the defendant’s single act of strangling the victim with
an extension cord was used to prove an essential element of both the armed robbery
conviction and the felony murder conviction. Id. ¶¶ 37-38. On the facts of that case, the
Court concluded that “the elements of armed robbery [were] subsumed within the
elements of first degree felony murder.” Id. ¶ 40. Put another way, the jury could have
found that the armed use of force required to prove armed robbery was the same use of
force that killed the victim. A conviction and sentence based on such a finding is a
double-description violation of the Double Jeopardy Clause. See id. ¶¶ 39-40.

{41} Applying this precedent to our review of the evidence supporting Defendant’s
aggravated burglary and first-degree murder convictions, we conclude that Defendant’s
conduct was unitary. Under the facts presented, the jury could not have “reasonably . . .
inferred independent factual bases” for the aggravated burglary and first-degree murder
convictions. Franco, 2005-NMSC-013, ¶ 7 (internal quotation marks and citation
omitted). This is because Defendant’s acts of battery cannot be separated from his act
of murder. Victim’s multiple head, neck, and shoulder injuries are consistent with the
type of prolonged death Defendant inflicted on Victim by strangling and drowning her.
These injuries reflect Defendant’s singular “goal[] . . . and mental state” to kill Victim with
his bare hands; they do not support an independent finding that Defendant committed a
distinct battery before proceeding to commit this type of murder. See id.

{42} Comparison to the distinct conduct in DeGraff and Foster reveals the lack of
sufficient indicia of distinctness in this case. Unlike our reasoning in those cases, we
cannot rely on the number of weapons to distinguish Defendant’s conduct because
Defendant’s only weapons were his two hands. Likewise, the evidence does not show
that there was a period of time or an intervening struggle between the start of
Defendant’s ambush and the final moments of Victim’s life. Finally, the evidence
suggests that Defendant’s fatal attack took place in only one room—the bathroom—so
there is no indication that Defendant battered Victim in a different physical space from
that where he killed her. Overall, we cannot identify a moment at which the aggravated
burglary was complete and the murder had yet to begin. See Torres, 2018-NMSC-013,
¶¶ 19-20. Because Defendant’s conduct cannot be distinguished by sufficient indicia of
distinctness, we conclude that Defendant was punished twice for the unitary conduct of
killing Victim. Accordingly, we turn to the second prong of our double-description
analysis to determine whether the Legislature intended multiple punishments under both
statutes.

b. Legislative intent to permit multiple punishments

{43} Since Defendant’s unitary conduct was the basis for his convictions of both
aggravated burglary and first-degree, willful and deliberate murder, we must decide
whether “the Legislature intended to punish the crimes separately.” Torres, 2018-
NMSC-013, ¶ 21 (alterations, internal quotation marks, and citation omitted). We first
consult the plain language of the statute. Id. “If the Legislature clearly authorized
multiple punishments[,] the analysis is over, and there is no double jeopardy violation.”
Id. We agree with both parties to this case that the plain language of the statutes does
not explicitly authorize multiple punishments. See Sections 30-16-4(C) (aggravated
burglary), 30-2-1(A) (first-degree murder).

{44} In the absence of explicit authorization for multiple punishments, “we apply
canons of construction to determine legislative intent.” Torres, 2018-NMSC-013, ¶ 21.
Chief among these canons of construction in our double jeopardy jurisprudence is the
modified Blockburger test, derived from the United States Supreme Court’s test in
Blockburger v. United States, 284 U.S. 299 (1932). State v. Porter, 2020-NMSC-020, ¶
17, 476 P.3d 1201. The original Blockburger test requires a comparison of the statutes
at issue to assess whether “one statute ‘requires proof of a fact which the other does
not.’” Id. (quoting Blockburger, 284 U.S. at 304). This is a strict elements analysis, which
permits multiple punishments if there is at least one criminal element unique to each
statute. Application of a strict Blockburger analysis in this case would suggest that the
Legislature intended separate punishments for Defendant’s conduct because there are
elements of each offense that are not required of the other. For instance, the
aggravated burglary statute requires unauthorized entry of a dwelling, which the first-
degree murder statute does not. Compare Section 30-16-4(C) with Section 30-2-1(A). In
turn, the first-degree murder statute requires a killing of a human being, which is not
required to prove aggravated burglary. Compare Section 30-2-1(A) with Section 30-16-
4(C). However, this conclusion is not dispositive of our legislative intent analysis
because New Mexico appellate courts have modified the traditional Blockburger test “to
be more in line with the subsequent development of United States Supreme Court
precedent.” Porter, 2020-NMSC-020, ¶ 18 (alterations, internal quotation marks, and
citation omitted); see Torres, 2018-NMSC-013, ¶ 25 (“[O]ur law does not permit an
application of Blockburger that is so mechanical that it is enough for two statutes to
have different elements.” (internal quotation marks and citation omitted)).

{45} Under our modified Blockburger test, “we consider the state’s legal theory of the
case applied to the statutes at issue to determine the elements of each offense the
defendant committed.” Porter, 2020-NMSC-020, ¶ 18. In other words, the state’s
allegations of how the defendant violated each statute informs our determination of
whether the Legislature intended multiple punishments under the alleged
circumstances. See id. To ascertain the state’s legal theory, we look first to “the
statutory language, charging documents, and jury instructions used at trial.” Id. ¶ 19.
After consulting these sources, if doubt remains as to the state’s legal theory, “we also
review testimony, opening arguments, and closing arguments to establish whether the
same evidence [was used to support] a defendant’s convictions under both statutes.” Id.
We then return to the elements of the crimes as alleged by the state and ask whether
“one of the offenses subsumes the other.” Id. ¶ 20. If so, we conclude that the
Legislature did not intend multiple punishments, and we find a violation of double
jeopardy. Id. (quoting Swick, 2012-NMSC-018, ¶ 27).

{46} To identify the State’s legal theory of how Defendant committed aggravated
burglary, we start with the statutory language. Section 30-16-4 contains several
alternatives for completion of the offense. To commit aggravated burglary, the
defendant must gain “unauthorized entry of any [structure, including a dwelling], with
intent to commit any felony or theft therein” and the defendant must either be armed at
some point during the burglary or must “commit[] a battery upon any person while in [the
structure] or in entering or leaving [the structure].” Section 30-16-4 (emphasis added). In
this case, the State charged Defendant with aggravated burglary on the allegation that
he entered Victim’s dwelling with the requisite intent to commit a felony therein and then
“committed a battery upon [Victim] while in said place or while entering or leaving said
place.”

{47} The jury instruction on this count provided additional clarity to the State’s legal
theory of how the intent element was met, but it did not provide clarity as to the State’s
theory of how the battery element was met. Pertinent to our analysis, the jury was
instructed that to convict on aggravated burglary, the State must prove beyond a
reasonable doubt that “[D]efendant entered the dwelling with the intent to commit first
degree murder or second degree murder once inside[,]” and that “[D]efendant touched
or applied force to [Victim] in a rude or angry manner while entering or leaving, or while
inside[.]” Neither the charging document nor the jury instruction identify the specific
touching that would support a finding of the battery element of the crime. Therefore, we
must consider the State’s arguments to the jury in light of the testimony at trial to
ascertain the State’s theory as to how Defendant committed battery.

{48} Once we consider the State’s closing argument, it is clear that the State relied on
the act of murder to prove the battery. In explaining the aggravated burglary instruction
to the jury, the State asserted, “Clearly he touched her in a rude or angry manner
because he murdered her.” This reveals that the State’s legal theory was that
Defendant committed aggravated burglary when he killed Victim and not at any point
before.

{49} When comparing the elements of the statutes under the State’s theory, the first-
degree murder statute does not contain an element that the aggravated burglary statute
does not. To convict Defendant of first-degree, willful and deliberate murder, the jury
would have to find that Defendant killed Victim with the deliberate intention to take away
her life. See Section 30-2-1(A). The following jury instruction, altered to incorporate the
State’s legal theory, demonstrates that all the elements of first-degree murder were
subsumed in the elements of aggravated burglary in this case. To convict Defendant of
aggravated burglary, the jury was asked to find:

1. [D]efendant entered a dwelling without authorization;
2. [D]efendant entered the dwelling with the intent to commit first degree
murder or second degree murder once inside;
3. [D]efendant touched or applied force to [Victim] in a rude or angry
manner [by killing Victim] while entering or leaving, or while inside;
4. This happened in New Mexico on or about the 20th day of July, 2016.

{50} Since both elements of first-degree murder were required to convict Defendant of
aggravated burglary, we cannot say that the Legislature intended separate punishments
in this case. Based on the foregoing review of the State’s legal theory and the evidence
presented at trial, we conclude that Defendant’s double jeopardy rights were violated
when he was convicted and sentenced for first-degree murder and aggravated burglary.
As a result of this conclusion, we vacate Defendant’s conviction of aggravated burglary,
which carries a shorter sentence than that of first-degree murder. NMSA 1978, §§ 31-
18-14 (2009), 31-18-15(A)(7) (2019); see Torres, 2018-NMSC-013, ¶ 28 (“When double
jeopardy protections require one of two otherwise valid convictions to be vacated, we
vacate the conviction carrying the shorter sentence.”).

2. Aggravated stalking and first-degree, willful and deliberate murder

{51} We next address Defendant’s argument that his convictions of aggravated
stalking and first-degree, willful and deliberate murder also constitute a double-
description violation of double jeopardy. Defendant claims that the State relied on the
murder to prove that Defendant “intended to place [Victim] in reasonable apprehension
of death or bodily harm[,]” which is one of the elements required to prove aggravated
stalking. We start with an analysis of unitary conduct.

{52} Once again, we ask whether “the jury reasonably could have inferred
independent factual bases for the charged offenses” of aggravated stalking and first-
degree murder. See Franco, 2005-NMSC-013, ¶ 7 (internal quotation marks and citation
omitted). The jury was instructed to find Defendant guilty of aggravated stalking if it
determined beyond a reasonable doubt that (1) Defendant “committed the crime of
stalking” and (2) “[a]t the time of the offense [Defendant] knowingly violated a
permanent or temporary order of protection issued by a court.” To convict on
aggravated stalking, the jury was also required to find the essential elements of simple
stalking. In pertinent part, the jury was instructed on those elements as follows:

1. [Defendant] maliciously pursued a pattern of conduct that would
cause a reasonable person to feel frightened, intim[id]ated, or
threatened on more than one occasion by:
a. following [Victim] in a place other than in the residence of
[D]efendant, or;
b. placing [Victim] under surveillance by being present outside
[her] residence, and/or vehicle, and/or places frequented by
[her], or;
c. harassing [Victim]; [and]

2. [Defendant] intended to place [Victim] in a reasonable
apprehension of death or bodily harm[.]

{53} The jury heard evidence to satisfy the first element of simple stalking. Trial
testimony established that Defendant had been following Victim, surveilling her
residence, and harassing her with phone calls and text messages. The jury also heard
evidence to support the aggravating element that Defendant repeatedly violated the
restraining order against him. The sole issue then is whether a sufficient independent
factual basis, aside from the murder, supports the second element of simple stalking:
that Defendant intended to cause Victim “a reasonable apprehension of death or bodily
harm.”
{54} We conclude that there is sufficient evidence to prove this intent element without
resort to any evidence of the murder. Defendant’s intent to cause Victim to reasonably
fear for her life or safety is clear from the testimony of Victim’s mother, boyfriend, and
daughter. Victim’s mother testified that she would frequently see Defendant drive by
Victim’s house and this caused Victim to be “very nervous [and] afraid.” Victim’s
boyfriend stated that he would “quite often” see Defendant’s vehicle near Victim’s house
and that Victim was “very scared” and “worried” about Defendant, to the point that she
did not like to spend the night alone. Victim’s daughter testified similarly, explaining that
her mother was “scared” of Defendant following the breakup and installed a surveillance
system at their house due to those fears. The volume and consistency in the testimony
of Victim’s closest companions supports the jury’s determination that Victim’s
apprehension was reasonable. Defendant’s multiple violations of the restraining order
and the frequency with which his vehicle was spotted near Victim’s location supports a
reasonable inference that Defendant intended to scare and threaten Victim. For this
reason, we hold that Defendant’s conduct was not unitary and that his convictions of
aggravated stalking and first-degree murder do not offend the prohibition against
multiple punishments under the Double Jeopardy Clause.

III. CONCLUSION

{55} Based on the foregoing analysis, we conclude that Defendant received a fair trial,
and we affirm his convictions of aggravated stalking and first-degree, willful and
deliberate murder. Because Defendant was punished in violation of the principles of
double jeopardy, we vacate his conviction and sentence for aggravated burglary. We
remand to the district court for resentencing consistent with this opinion.

{56} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

C. SHANNON BACON, Justice

JUDITH K. NAKAMURA, Justice, Retired,
Sitting by Designation

DAVID K. THOMSON, Justice (concurring in part and dissenting in part)

THOMSON, Justice (concurring in part, dissenting in part).

{57} I concur with the majority on all issues except the conclusion in Section II(D) that
Defendant was sentenced in violation of the Double Jeopardy Clause. More specifically,
I do not agree that Defendant’s convictions for aggravated burglary and first-degree
(willful and deliberate) murder were based on unitary conduct. Respectfully, in my view,
Torres, DeGraff, and Foster do not support the conclusion made by the majority herein.
I would affirm all of Defendant’s convictions because the evidence presented supports a
determination that non-unitary conduct supports the convictions for aggravated burglary
and first-degree (willful and deliberate) murder. Therefore, I dissent in part.

DAVID K. THOMSON, Justice