March 24, 2026- State of New Mexico v. Marcus Lovato, No. A-1-CA-42347

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Court of Appeals of New Mexico Filed 3/24/2026 12:20 PM
Filing Date: March 24, 2026
Mark Reynolds
No. A-1-CA-42347
STATE OF NEW MEXICO,
Plaintiff-Appellee,
8 MARCUS LOVATO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Britt M. Baca, District Court Judge
Raúl Torrez, Attorney General Santa Fe, NM Tyler Sciara, Assistant Solicitor General Albuquerque, NM
Bennett J. Baur, Chief Public Defender
Thomas J. Lewis, Assistant Appellate Defender
Santa Fe, NM
1 2 3 4 5 6 7 V. 9 10 11 12 13 14 15 16 for Appellee 17 18 19 20 for Appellant

OPINION	1
HENDERSON, Judge.	2
{1} 	Defendant Marcus Lovato appeals his convictions for two counts of criminal	3
sexual penetration (CSP) in the second degree, contrary to NMSA 1978, Section 30-	4
9-11(E)(4) (2009); conspiracy to commit CSP in the second degree, contrary to	5
NMSA 1978, Section 30-28-2 (1979) and Section 30-9-11(E)(4); attempt to commit	6
CSP in the second degree, contrary to NSMA 1978, Section 30-28-1 (1963, amended	7
2024) 1 and Section 30-9-11(E)(4); criminal sexual contact (CSC) in the fourth	8
degree, contrary to NMSA 1978, Section 30-9-12(A), (C) (1993); and voyeurism,	9
contrary to NMSA 1978, Section 30-9-20 (2007). On appeal, Defendant makes	10
multiple claims that his various convictions violate his right to be free from double	11
jeopardy, and argues that the district court erred in denying his requests for a jury	12
instruction on duress. Concluding that Defendant’s convictions do not violate double	13
jeopardy and that Defendant failed to make a prima facie showing of duress, we	14
affirm.	15
1 Defendant’s acts occurred on June 4, 2021, before the statute was amended
in 2024. We use the original statute throughout, as that was the statute in effect at
the time Defendant was charged, and the 2024 amendment is not relevant to our
analysis.

2
BACKGROUND	1
{2} 	On June 3, 2021, Defendant and his friend rented a motel room that was next	2
door to a room that the codefendant, Isadore Gordon and Victim had rented. The	3
pairs did not know each other and first met when they had a conversation on the	4
shared motel balcony. The codefendant repeatedly invited Defendant to have a drink	5
with him and Victim, and Defendant eventually agreed after the codefendant came	6
to Defendant’s room to ask. Defendant testified that while they were drinking on the	7
balcony, the codefendant told Defendant to go into the codefendant’s room because	8
Victim needed to show him something. Defendant entered the codefendant’s room	9
and heard loud noises coming from the bathroom, Victim then stumbled out of the	10
bathroom and passed out on the bed.	11
{3} 	Once in the room, the codefendant testified that he flirted with Defendant,	12
their conversation became sexual in nature, and they kissed. Defendant testified that	13
he was scared because the codefendant was blocking the door and had threatened	14
him that on codefendant’s tribal reservation, “his kind of people know how to get	15
rid of people,” and that if Defendant did not do what the codefendant told him to do	16
that he would “take [Defendant] out there and have [him] go missing.” Both parties	17
testified that the codefendant then told Defendant to perform sexual acts on Victim,	18
who was now “passed out” and “flopped” over on the bed, while the codefendant	19
recorded 	the 	acts 	on 	his 	cell 	phone. 	The 	codefendant 	recorded 	twenty-two	20

3
noncontinuous videos showing acts occurring in the codefendant and Victim’s motel	1
room, which were admitted as evidence and timestamped for varying durations	2
between 1:13:47 a.m. and 4:09:16 a.m. on June 4, 2021. The codefendant testified	3
that the videos were not continuous, such that there were moments not captured on	4
video. Defendant testified that he repeatedly asked to leave the room to get lube and	5
to shower as excuses to get out of the situation, but was told he could not leave by	6
the codefendant. Defendant also testified that after he performed the acts with	7
Victim, the codefendant sexually assaulted him, and he was only able to leave the	8
room after the codefendant drunkenly fell over.	9
{4} 	Defendant testified that after he left the codefendant’s motel room he returned	10
to his own room in a panicked state and his friend called the police. The police	11
arrived to investigate and Defendant attended a sexual assault nurse examination	12
(SANE) interview that day. Victim testified that he had no memory of the events	13
after he had blacked out in the motel room. Victim also attended a SANE interview	14
approximately one month later, but bodily fluids could not be recovered or analyzed	15
given the time that had elapsed since the sexual assault. During the investigation, the	16
police extracted the videos from the codefendant’s phone, and Defendant and the	17
codefendant became co-suspects. As a result, Defendant was indicted on four counts	18
of CSP, one count of conspiracy to commit CSP, one count of attempted CSP, one	19
count of CSC, one count of voyeurism, and one count of making a false report in	20

4
June 2021.2 The codefendant accepted a plea deal conditioned on him testifying	1
against Defendant.	2
{5} 	At trial, the State called Victim, the codefendant, the responding officer, the	3
detective on the case, and Victim’s SANE nurse to testify. At the close of the State’s	4
evidence, the district court granted Defendant’s motion for a directed verdict on	5
Count 1 and the remaining counts were renumbered. Defendant also requested a jury	6
instruction on duress, which was denied on grounds that Defendant had not	7
introduced evidence of fear of imminent bodily harm. Defendant then testified	8
during his case in chief that he only performed the sexual acts on Victim out of fear	9
of the codefendant. Following this testimony, Defendant again requested a jury	10
instruction on duress. The district court again denied his request, finding that	11
Defendant had not shown that he was in fear of imminent danger, did not admit to	12
the offenses, and did not act reasonably. The jury returned a verdict finding	13
Defendant guilty of Count 2, CSP by anal penetration; Count 3, CSP by fellatio;	14
Count 4, conspiracy to commit CSP; Count 5, attempt to commit CSP; Count 6,	15
CSC; and Count 7, voyeurism. The jury found Defendant not guilty of Count 1, CSP	16
by anal penetration. Defendant later filed a motion for a new trial on grounds that	17
the district court erred by denying his request for a jury instruction on duress. The	18
2 Prior to trial, the State entered a nolle prosequi for the count of making a false
report, contrary to NMSA 1978, Section 30-39-1 (1979).

5
district court denied his motion, again finding that Defendant did not make a	1
sufficient showing of duress. Defendant now appeals his convictions.	2
DISCUSSION	3
{6} 	On appeal, Defendant contends that (1) his various convictions violate his	4
right to be free from double jeopardy on both unit of prosecution and double	5
description grounds; and (2) the district court erred in denying his request for a jury	6
instruction 	on 	duress. 	We begin 	by 	discussing 	Defendant’s 	double jeopardy	7
arguments.	8
I. 	Double Jeopardy	9
{7} 	“The Double Jeopardy Clause of the Fifth Amendment, enforced against the	10
states by the Fourteenth Amendment, protects defendants from receiving multiple	11
punishments for the same offense.” State v. DeGraff, 2006-NMSC-011, ¶ 25, 139	12
N.M. 211, 131 P.3d 61 (internal quotation marks and citation omitted). “The defense	13
of double jeopardy may not be waived and may be raised by the accused at any stage	14
of a criminal prosecution, either before or after judgment.” NMSA 1978, § 30-1-10	15
(1963). “We review double jeopardy claims de novo.” State v. Mora, 2003-NMCA-	16
072, ¶ 16, 133 N.M. 746, 69 P.3d 256. There are two types of multiple punishment	17
cases: “First, there are double description cases in which a single act results in	18
multiple charges under different criminal statutes. Second, there are unit of	19
prosecution cases in which an individual is convicted of multiple violations of the	20

6
same criminal statute.” State v. Begaye, 2023-NMSC-015, ¶ 12, 533 P.3d 1057	1
(alterations, internal quotation marks, and citation omitted). In this case, Defendant	2
argues that his convictions violate his right to be free from double jeopardy on both	3
grounds.	4
A. 	Unit of Prosecution	5
{8} 	Defendant first raises a unit of prosecution challenge to his convictions for	6
Count 2, CSP by anal penetration; and Count 3, CSP by fellatio. The central inquiry	7
in a unit of prosecution analysis is “whether the Legislature intended to allow	8
multiple convictions under the same statute for the defendant’s particular conduct in	9
a given case.” State v. Valverde, 2025-NMCA-024, ¶ 7, 576 P.3d 395. The courts	10
use a two-step analysis when determining unit of prosecution violations. See State	11
v. Bernal, 2006-NMSC-050, ¶ 14, 140 N.M. 644, 146 P.3d 289. “First, we review	12
the statutory language for guidance on the unit of prosecution.” Id. “If the language	13
is not clear, then we move to the second step, in which we determine whether a	14
defendant’s acts are separated by sufficient indicia of distinctness to justify multiple	15
punishments under the same statute.” Id. (internal quotation marks and citation	16
omitted). “If the acts are not sufficiently distinct, then the rule of lenity mandates an	17
interpretation that the [L]egislature did not intend multiple punishments, and a	18
defendant cannot be punished for multiple crimes.” Id.; see State v. Phillips, 2024-	19
NMSC-009, ¶ 11, 548 P.3d 51.	20

7
{9} 	Here, Defendant was charged pursuant to Section 30-9-11(E)(4) for both	1
Counts 2 and 3. Regarding the first step of a unit of prosecution analysis, our	2
Supreme Court has previously determined that Section 30-9-11 is ambiguous as to	3
the unit of prosecution. See Herron v. State, 1991-NMSC-012, ¶ 8, 111 N.M. 357,	4
805 P.2d 624 (stating that the language of Section 30-9-11 “does not indicate	5
unambiguously whether the [L]egislature intended . . . to create a separate offense	6
for each penetration occurring during a continuous sexual assault”). Therefore, our	7
analysis 	focuses 	on 	the 	second 	step 	to 	determine 	whether 	Defendant’s 	acts	8
supporting each conviction were separated by sufficient indicia of distinctness.	9
{10} 	In making the determination, we consider six factors outlined in Herron: (1)	10
the temporal proximity of penetrations; (2) the location of the victim during each	11
act; (3) the existence of intervening events; (4) the sequencing of acts; (5) the	12
defendant’s intent as evidenced by their conduct and utterances; and (6) the number	13
of victims. 1991-NMSC-012, ¶ 15.	14
{11} 	In this case, Defendant’s conviction for Count 2 was based on evidence that	15
he caused Victim to engage in anal intercourse and Defendant’s conviction for	16
Count 3 was based on evidence that he caused Victim to engage in fellatio. In closing	17
arguments, the State directed the jury’s attention to different videos from the record	18
that it argued proved each count. For Count 2, the State referenced a two-minute-	19
and-twenty-nine-second-long 	video 	timestamped 	at 	2:33:10 	a.m. 	showing	20

8
Defendant standing over Victim, masturbating, rubbing himself against Victim’s	1
unclothed buttock, and seemingly penetrating Victim’s anus while saying, “He’s so	2
tight.” For Count 3, the State referred to a one-minute-and forty-one-second-long	3
video timestamped at 2:25:57 a.m. showing Defendant repositioning Victim,	4
kneeling, and performing fellatio on Victim.	5
{12} 	Turning to the Herron factors, we agree with Defendant that the acts occurred	6
over the course of one night, on the same bed, and with the same Victim. The videos	7
show Defendant performing both acts after encouragement from the codefendant,	8
and Defendant testified that his intent was to appease the codefendant. And, while	9
“touching different parts of a victim’s body is alone insufficient to support multiple	10
convictions,” see Valverde, 2025-NMCA-024, ¶ 19, the timing, sequencing of acts,	11
and the nature of Defendant’s acts here support a conclusion that the conduct	12
underlying his convictions for CSP in Counts 2 and 3 is sufficiently distinct. See	13
Herron, 1991-NMSC-012, ¶ 15. First, the videos used to prove each act were	14
separated by approximately six minutes. 	See Phillips, 2024-NMSC-009, ¶ 32	15
(concluding that an approximate two-minute break between batteries was significant	16
when analyzing indicia of distinctness). 3 Victim also shifted onto his side and	17
3 Although the State references other video evidence on appeal to argue that
the acts were separated by an hour and a half, the videos relied on to prove Counts
2 and 3 at trial were filmed less than ten minutes apart. See State v. Lorenzo, 2024-
NMSC-003, ¶ 11, 545 P.3d 1156 (analyzing whether conduct was unitary based on
the state’s legal theory presented in closing arguments at trial and not the state’s

9
Defendant repositioned Victim multiple times between the acts of fellatio and the	1
penetration. See Herron, 1991-NMSC-012, ¶ 15 (asserting that “movement or	2
repositioning of the victim between penetrations tends to show separate offenses”);	3
State v. Haskins, 2008-NMCA-086, ¶ 18, 144 N.M. 287, 186 P.3d 916 (concluding	4
that a victim’s position was sufficiently distinct to support a finding of separate CSC	5
of a minor (CSCM) offenses when the victim moved from being face down to lying	6
on her back). Perhaps most significant, after performing fellatio, Defendant stood	7
up, disrobed, repeatedly asked for lotion or lube, and stepped away to get his phone	8
to watch pornography minutes before the penetration occurred. 	See State v.	9
Boergadine, 2005-NMCA-028, ¶ 23, 137 N.M. 92, 107 P.3d 532 (noting that the	10
Herron factor for sequencing of the acts is specifically tailored to address unit of	11
prosecution issues for sexual offenses). Finally, the conduct in this case involves	12
serial penetrations of different orifices with different body parts. See Herron, 1991-	13
NMSC-012, ¶ 15 (“[S]erial penetrations of different orifices, as opposed to repeated	14
penetrations of the same orifice, tend to establish separate offenses.”).	15
{13} 	Therefore, the conduct underlying Defendant’s two convictions for CSP	16
pursuant to Section 30-9-11(E)(4) was sufficiently distinct to constitute separate	17
crimes and his convictions do not violate his right to be free from double jeopardy.	18
argument on appeal). Thus, we rely on the State’s theory of the case as presented at
trial, and the evidence introduced at trial to support that theory.

10
B. 	Double Description	1
{14} 	Defendant next raises a series of double description challenges, generally	2
contending that his convictions violate double jeopardy because they are based on	3
unitary conduct. When reviewing double description arguments, courts use the two-	4
part test set out in Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d	5
1223. For part one, we determine “whether the conduct underlying the offenses is	6
unitary, i.e., whether the same conduct violates both statutes.” Id. If the underlying	7
conduct is unitary, we proceed to part two and look to “the statutes at issue to	8
determine whether the [L]egislature intended to 	create separately 	punishable	9
offenses.” Id. “Only if the first part of the test is answered in the affirmative, and the	10
second in the negative, will the double jeopardy clause prohibit multiple punishment	11
in the same trial.” Id.	12
{15} 	Our Supreme Court recently reaffirmed that “we are doing a substantially	13
similar analysis when we conduct a unitary conduct inquiry in double description	14
cases as when we conduct a unit-of-prosecution inquiry.” Phillips, 2024-NMSC-	15
009, ¶ 13 (internal quotation marks and citation omitted). Accordingly, the inquiry	16
for unitary conduct turns on whether there is “sufficient indicia of distinctness”	17
between the acts at issue. Swafford, 1991-NMSC-043, ¶ 26. “The court may consider	18
as indicia of distinctness the separation of time or physical distance between the	19
illegal acts, the quality and nature of the individual acts, and the objectives and	20

11
results of each act.” Mora, 2003-NMCA-072, ¶ 18 (internal quotation marks and	1
citation omitted). Conduct is not unitary “when one crime is completed before	2
another is committed, or when the force used to commit a crime is separate from the	3
force used to commit another crime.” State v. Sena, 2020-NMSC-011, ¶ 46, 470 P.3d	4
227. In conducting our analysis, we may consider “the elements of the charged	5
offenses, the facts presented at trial, and the instructions given to the jury.” Id. We	6
also consider, “whether the facts presented at trial establish that the jury reasonably	7
could have inferred independent factual bases for the charged offenses.” State v.	8
Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (internal quotation	9
marks and citation omitted).	10
{16} 	When analyzing legislative intent under part two of the Swafford test, we first	11
determine “whether the Legislature intended to permit multiple punishments” under	12
each statute. State v. Porter, 2020-NMSC-020, ¶ 15, 476 P.3d 1201. If statutes are	13
vague or written in the alternative, we apply the modified Blockburger test which	14
considers the elements of each offense and the state’s legal theory of how each	15
statute was violated. See Begaye, 2023-NMSC-015, ¶ 17. We look to the evidence,	16
charging documents, and jury instructions when analyzing the theory of a case, and	17
may also review “testimony, opening arguments, and closing arguments to establish	18
whether the same evidence supported a defendant’s convictions under both statutes.”	19
Id. ¶ 18 (internal quotation marks and citation omitted).	20

12
{17} 	Defendant asserts that the conduct used as the basis for his convictions on all	1
counts was unitary, and specifically argues that his convictions for attempted CSP	2
and CSC violate double jeopardy and should merge into his CSP conviction, his	3
convictions for conspiracy to commit CSP and CSP violate double jeopardy, and	4
that his convictions for voyeurism and CSP overlap to violate double jeopardy. We	5
address each argument in turn.	6
1. 	CSP, Attempted CSP, and CSC	7
{18} 	Defendant’s first double description challenge argues that his convictions for	8
Count 5, attempted CSP, and Count 6, CSC, should merge into his conviction for	9
Count 2, CSP by anal intercourse, because his actions were not separated by	10
sufficient indicia of distinctness. The State argues that Defendant’s conduct was not	11
unitary.	12
{19} 	In relevant part, the jury instruction for Count 2, CSP by anal intercourse,	13
required the State to prove that “[D]efendant caused [Victim] to engage in anal	14
intercourse.” See § 30-9-11(A), (E)(4). The instruction for Count 5, attempted CSP,	15
required the State to prove that Defendant intended to commit CSP and “began to	16
do an act which constituted a substantial part of the [CSP] when aided or abetted by	17
another but failed to commit the [CSP].” See § 30-28-1; § 30-9-11(E)(4). The	18
instruction for Count 6, CSC, required the State to prove that “[D]efendant touched	19

13
or applied force to the unclothed buttocks of [Victim] without [Victim]’s consent.”	1
See § 30-9-12.	2
{20} 	Defendant contends that the video evidence used to prove each count shows a	3
continuous course of unitary conduct because the acts occurred over a short period	4
of time, with the same Victim, on the same bed, and there were no intervening events	5
or movements to a different room. Defendant compares his case to Mora, where this	6
Court concluded that a defendant’s convictions for CSCM and attempted CSP of a	7
minor violated double jeopardy because the underlying conduct was unitary when it	8
took place in “the same short space of time, with no physical separation between the	9
illegal acts.” 2003-NMCA-072, ¶ 18. However, in Mora the state relied on a singular	10
instance of a defendant laying on top of and “preparing to hump” a victim to	11
constitute both CSC and attempted CSP. Id. ¶¶ 18, 20 (internal quotation marks	12
omitted). Although we agree with Defendant that the events here occurred in a short	13
span of time with Victim in the same bed, we find this case distinguishable. Our	14
inquiry is whether acts are separated from each other by other indicia of distinctness.	15
See Sena, 2020-NMSC-011, ¶ 46. As explained below, here the acts necessary to	16
establish CSP occurred before the acts constituting CSC and attempted CSP, as	17
lotion was applied to Victim and Victim was repositioned in between acts.	18

14
{21} 	In presenting its theory of the case, the State used specific video evidence	1
presented at trial to prove each offense.4 For Count 2, CSP, the State referred the	2
jury to the two-minute-and-twenty-nine second video timestamped at 2:33:10 a.m.	3
showing Defendant masturbating over Victim, rubbing himself against Victim’s	4
unclothed buttock, and seemingly penetrating Victim while saying, “[H]e’s so tight.”	5
To prove Count 5, attempted CSP, the State pointed the jury to two videos. The first,	6
timestamped at 2:37:09 a.m. with a duration of three minutes and forty-nine seconds,	7
shows Defendant seemingly trying to penetrate Victim while being encouraged by	8
the codefendant, but being unable to because he could not maintain an erection. The	9
State also used this video to prove Count 6, CSC, as it shows Defendant rubbing	10
himself against Victim’s unclothed buttock. It is clear from review of the evidence	11
that Defendant committed the CSP in the video timestamped at 2:33:10 a.m. a few	12
minutes before the next video, timestamped at 2:37:09 a.m., shows Defendant	13
committing the CSC and attempted CSP by touching himself while Victim shifted	14
onto his side, then kneeling on the bed above Victim before touching and attempting	15
4 On appeal, the State relies on video evidence not referenced in its closing
arguments to reason that Defendant’s conduct was distinct. The video relied upon in
their appellate briefing to argue that Defendant’s conduct is not unitary was evidence
relied upon at trial to prove Count 1, a separate count of CSP by anal penetration.
The jury found Defendant not guilty of Count 1. Again, we remind counsel that in
conducting our analysis, we focus on the State’s presentation at trial and not its
argument on appeal. See Lorenzo, 2024-NMSC-003, ¶ 11 (concluding conduct was
unitary based on the state’s legal theory presented in its closing arguments at trial
and not the state’s argument on appeal).

15
to penetrate Victim again. See Phillips, 2024-NMSC-009, ¶ 32 (concluding that an	1
approximate two-minute break between acts of battery is significant when analyzing	2
indicia of distinctness); see also Herron, 1991-NMSC-012, ¶ 15 (explaining that	3
“movement or repositioning of the victim between penetrations tends to show	4
separate offenses”). The acts forming the basis for the CSP charged in Count 2 are	5
sufficiently distinct from the later acts of attempted CSP charged in Count 5 and the	6
CSC charged in Count 6.	7
{22} 	Next, although the video timestamped at 2:37:09 a.m. was used as proof for	8
both Count 5, attempted CSP, and Count 6, CSC, the State also referenced a second	9
video to prove the attempted CSP. That video, timestamped at 2:40:12 a.m. and	10
lasting one minute and one second, shows Defendant attempting to penetrate Victim	11
while there is a substance on Victim’s buttock that is not visible in the earlier videos.	12
While both Defendant and the codefendant testified that the substance on Victim’s	13
buttock is lotion from the motel, Defendant testified that the codefendant got it,	14
while the codefendant testified that it was Defendant who got it. Even with	15
contradictory testimony as to who obtained the lotion, both parties testified that	16
someone applied lotion to Victim in a moment not captured on video in between the	17
acts shown in the two videos. Moreover, the codefendant reached down to touch	18
Defendant’s penis at the end of the first video, before lotion is seen on Victim in the	19
second video, further separating the acts of CSC and attempted CSP. See Sena, 2020-	20

16
NMSC-011, ¶ 56 (concluding that acts of CSP and CSC were not unitary when one	1
happened before the other and the conduct in committing each was separate and	2
distinct). The State’s reliance on the second video to prove Count 5, attempted CSP,	3
that shows acts distinct from those used to prove Count 6, CSC, gives the jury	4
“independent factual bases” for each offense. See Franco, 2005-NMSC-013, ¶ 7	5
(internal quotation marks and citation omitted).	6
{23} 	Therefore, 	the 	conduct 	underlying 	Defendant’s 	convictions 	for 	CSP,	7
attempted CSP, and CSC is not unitary and Defendant’s convictions do not violate	8
his right to be free from double jeopardy.	9
2. 	Conspiracy to Commit CSP and CSP	10
{24} 	Defendant next argues that his right to be free from double jeopardy was	11
violated because he was convicted of Count 4, conspiracy to commit CSP aided and	12
abetted by another; and Counts 2 and 3, CSP aided and abetted by another based on	13
unitary conduct. The parties agree that “conspiracy is typically treated separately	14
from the substantive offense,” for double jeopardy purposes, see State v. Silvas,	15
2015-NMSC-006, ¶ 22, 343 P.3d 616, but Defendant relies on our Supreme Court’s	16
narrow exception to this general rule that is applied when a jury is asked to infer a	17
conspiracy based on a “single moment in time” that proves both the conspiracy and	18
the underlying crime. See id. ¶ 10.	19

17
{25} 	The State argues that the conduct underlying Defendant’s convictions is	1
distinct and Defendant did not fully develop a double description argument for these	2
convictions, instead stating only generally that he was convicted twice for the same	3
unitary conduct in violation of double jeopardy. Although we have no duty to review	4
undeveloped arguments, see Headley v. Morgan Mgmt. Corp., 2005-NMCA-045,	5
¶ 15, 137 N.M. 339, 110 P.3d 1076, based on our review of the record, it is clear that	6
the 	conduct 	the 	State 	relied 	upon 	when 	proving 	that 	Defendant 	committed	7
conspiracy and each count of CSP was sufficiently distinct.	8
{26} 	First, 	to 	prove 	conspiracy, 	the 	State 	was 	required 	to 	establish 	that	9
“[D]efendant and another person by words or acts agreed together to commit	10
criminal sexual penetration when aided or abetted by another,” and intended to	11
commit CSP. 	See 	§ 30-28-2. In its closing arguments, the State argued that	12
collectively the video evidence demonstrates a pattern of Defendant and the	13
codefendant agreeing to commit CSP. The State also referred the jury to the video	14
timestamped at 2:20:38 a.m. where the codefendant tells Defendant that Victim is	15
“waiting for you,” Defendant’s testimony that he understood the codefendant wanted	16
Defendant to perform sexual acts on Victim, and a video timestamped at 2:25:57	17
a.m. where Defendant undresses while he and the codefendant discuss how to	18
position Victim, the codefendant says, “Fuck him, rape him,” and Defendant smiles	19
before performing 	fellatio 	on 	Victim. Then, to 	prove the intent 	element 	of	20

18
conspiracy, the State referenced the “numerous videos where there has been	1
penetration and you know that in order for them to have done it, they must have	2
intended for that to happen.”	3
{27} 	Next, to prove both counts of CSP when aided or abetted by another, the State	4
had to prove that “[D]efendant caused [Victim] to engage in anal intercourse,” and	5
“[D]efendant caused [Victim] to engage in fellatio,” while “[D]efendant acted with	6
the help or encouragement of one or more persons.” To prove that Defendant acted	7
with the help or encouragement of another when causing Victim to engage in anal	8
intercourse, the State argued that “we know [Defendant] was acting while he was	9
being encouraged by the codefendant . . . entire time.” To prove that Defendant acted	10
with the help or encouragement of another when causing Victim to engage in fellatio,	11
the State pointed to the video timestamped at 2:25:57 a.m. where the codefendant	12
can be heard encouraging Defendant to “fuck him, rape him,” before Defendant	13
smiled and performed fellatio on Victim.	14
{28} 	Although the State referenced the video timestamped at 2:25:57 a.m. when	15
proving both conspiracy to commit CSP and CSP by fellatio, the State separately	16
relied on the video timestamped at 2:20:38 a.m. and a general pattern of agreement	17
to prove conspiracy. Our Supreme Court has held that convictions for conspiracy to	18
commit a crime and the crime itself violate double jeopardy if the state relies on the	19
same momentary act to prove both the crime and the conspiratorial agreement and	20

19
asks the jury to infer conspiracy from that singular act. Silvas, 2015-NMSC-006,	1
¶¶ 10, 20-21. But here, the State provided additional video evidence showing distinct	2
conduct upon which the jury could base separate convictions for conspiracy to	3
commit CSP and CSP aided or abetted by another, contrary to Defendant’s argument	4
that the jury had to “infer intent to act together by committing CSP together.” See	5
Franco, 2005-NMSC-013, ¶ 7 (“The proper analytical framework is whether the	6
facts presented at trial establish that the jury reasonably could have inferred	7
independent factual bases for the charged offenses.” (internal quotation marks and	8
citation omitted)).	9
{29} 	Because the State relied on distinct acts, we conclude that Defendant’s	10
conduct is not unitary. See Swafford, 1991-NMSC-043, ¶ 28 (concluding that “if the	11
conduct is separate and distinct, [the] inquiry is at an end”). Therefore, Defendant’s	12
convictions for Count 4, conspiracy to commit CSP, and Counts 2 and 3, CSP when	13
aided or abetted by another, do not violate his right to be free from double jeopardy.	14
3. 	Voyeurism and CSP	15
{30} 	Defendant’s final double description challenge argues that his convictions for	16
CSP in Counts 2 and 3 and voyeurism in Count 7 overlap to violate his right to be	17
free from double jeopardy. The State argues that the convictions do not overlap and	18
the Legislature intended to permit separate punishments for each. Even if we assume	19
without deciding that Defendant’s conduct underlying his convictions for voyeurism	20

20
and CSP was unitary, see State v. Bahney, 2012-NMCA-039, ¶ 21, 274 P.3d 134,	1
the convictions do not overlap to violate double jeopardy under step two of our	2
double description analysis. 5 Under step two, we ask “whether the Legislature	3
intended to impose multiple punishments for the unitary conduct” in separate	4
statutes. Id. ¶ 20 (internal quotation marks and citation omitted). When statutes	5
“provide[] alternative methods by which a defendant can violate the statute,” we	6
apply a modified Blockburger test to compare the statutory language with the state’s	7
theory of a case based on the charging documents, jury instructions, testimony, and	8
arguments made at trial to “establish whether the same evidence supported a	9
defendant’s convictions under both statutes.” Begaye, 2023-NMSC-015, ¶¶ 18, 23-	10
24 (internal quotation marks and citations omitted).	11
{31} 	Pursuant to Section 30-9-20(A), voyeurism consists of	12
intentionally using the unaided eye to view or intentionally using an	13
instrumentality to view, photograph, videotape, film, webcast or record	14
the intimate areas of another person without the knowledge and consent	15
of that person:	16
5See Porter, 2020-NMSC-020, ¶ 13 n.1 (“We acknowledge that this Court
previously assumed without deciding that conduct was unitary and proceeded to
analyze legislative intent, the second prong of the Swafford analysis, in State v.
Carrasco, 	1997-NMSC-047, 	¶ 	23, 	124 	N.M. 	64, 	946 	P.2d 	1075. 	Although
permissible, such an analysis should be the exception rather than the rule because
determining what the Legislature intended—or perhaps more accurately, what the
Legislature most likely would have intended had it contemplated the potential
overlap between particular statutes—is a task for which there is no simple test.”
(alteration, internal quotation marks, and citation omitted)).

21
(1) while the person is in the interior of a bedroom, bathroom,	1
changing room, fitting room, dressing room or tanning booth or the	2
interior of any other area in which the person has a reasonable	3
expectation of privacy; or	4
(2) under circumstances where the person has a reasonable	5
expectation of privacy, whether in a public or private place.	6
CSP is “the unlawful and intentional causing of a person to engage in sexual	7
intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to	8
any extent and with any object, of the genital or anal openings of another,” and CSP	9
in the second degree involves “the use of force or coercion when the perpetrator is	10
aided or abetted by one or more persons.” Section 30-9-11(A), (E)(4). Both statutes	11
are vague as they do not clearly prescribe multiple punishments and both provide	12
alternative methods by which they could be violated, thus we proceed with	13
considering the State’s theory of the case under the modified Blockburger test. See	14
Begaye, 2023-NMSC-015, ¶ 24.	15
{32} 	Defendant asserts that the State blended the crimes of CSP and voyeurism	16
when it argued that Defendant committed voyeurism by cooperating with the	17
codefendant’s recordings of intimate areas of Victim’s body. However, the charging	18
documents and jury instructions required the State to prove different acts. Count 7,	19
voyeurism, required proof that “[D]efendant intentionally used the unaided eye or	20
an instrumentality to view, photograph, videotape, film, webcast or record intimate	21

22
areas of [Victim],” 6 and Counts 2 and 3, CSP, required proof that Defendant	1
“unlawfully and intentionally cause[d Victim] to engage in anal intercourse” and	2
“fellatio,” “with the help or encouragement of one or more persons.” The video	3
evidence relied on in the State’s closing argument further establishes that the two	4
offenses do not overlap. See Begaye, 2023-NMSC-015, ¶ 22 (describing that the	5
modified Blockburger test considers if “the statute, as applied by the [s]tate in a	6
given case, overlaps with other criminal statutes so that the accused is being	7
punished twice for the same offense” (emphasis, internal quotation marks, and	8
citation omitted)). Offenses overlap and violate double jeopardy when the state	9
“direct[s] the jury to the same act . . . as the basis to convict for both crimes.” Id.	10
¶ 29 (internal quotation marks and citation omitted). In Begaye, the state used	11
evidence that the defendant broke a window to prove both unauthorized entry for the	12
crime of burglary and the entry without permission elements of the crime of breaking	13
and entering. Id. ¶ 35. However, here the State referenced the video evidence in	14
general to show that Defendant can be seen using his eyes to look at intimate parts	15
6 The State notes that “[i]t is uncontested on appeal that the State’s legal theory
was based on the ‘instrumentality’ that is, the cell phone camera,” in the instruction
for voyeurism. The charging documents also indicted Defendant for using an
instrumentality. However, at trial the State conceded, “I think we can all agree here
that [Defendant] was not the one filming the intimate parts of [Victim]; however, he
did use his unaided eye without the use of a phone to look at the intimate parts of
[Victim].” Regardless, the voyeurism and CSP charges do not violate double
jeopardy under a double description analysis.

23
of Victim while Victim was unconscious to prove voyeurism in Count 7, and referred	1
to specific video clips showing specific acts of penetration and fellatio to prove CSP.	2
Because the State relied on separate theories and separate conduct to support charges	3
for voyeurism and CSP, Defendant’s voyeurism and CSP convictions do not overlap.	4
See State v. Serrato, 2021-NMCA-027, ¶¶ 19-20, 493 P.3d 383 (concluding two	5
charges overlapped and violated double jeopardy when the state’s legal theory “was	6
based upon the same conduct and under the same theory”).	7
{33} 	Therefore, we conclude that the Legislature intended to permit punishment for	8
Defendant’s convictions of both CSP and voyeurism such that these convictions do	9
not violate double jeopardy.	10
II. 	Duress	11
{34} 	Defendant next asks this Court to reverse his convictions and remand for a	12
new trial because the district court erred in denying his requests for a jury instruction	13
on duress pursuant to UJI 14-5130 NMRA. The State argues that duress should not	14
be available in cases of sexual assault, and even if available, Defendant did not make	15
a prima facie showing of duress. Because we conclude that the district court properly	16
denied Defendant’s request for a duress instruction, we decline to consider the	17
State’s argument that duress should not apply in cases of sexual assault.	18
{35} 	We review whether a defendant was entitled to a duress instruction de novo.	19
See State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 (providing	20

24
that whether a defendant is entitled to an instruction on their theory of the case is a	1
mixed question of law and fact reviewed de novo). “By asserting duress, the accused	2
admits performing the crime but seeks excusal from punishment on grounds that the	3
action was compelled by an imminent threat of serious harm to the accused or	4
another.” State v. Ortiz, 2020-NMSC-008, ¶ 12, 468 P.3d 833. “[D]uress is a defense	5
available in New Mexico except when the crime charged is a homicide or a crime	6
requiring intent to kill.” Esquibel v. State, 1978-NMSC-024, ¶ 8, 91 N.M. 498, 576	7
P.2d 1129, overruled on other grounds by State v. Wilson, 1994-NMSC-009, ¶ 6,	8
116 N.M. 793, 867 P.2d 1175; see UJI 14-5130. A defendant seeking a duress	9
instruction has the burden of making a prima facie case by showing three elements:	10
“(1) that the defendant committed the crime under threats; (2) that the defendant	11
feared immediate great bodily harm to himself or another person if he did not commit	12
the crime; and (3) that a reasonable person would have acted in the same way under	13
the circumstances.” State v. Duncan, 1991-NMSC-010, ¶ 4, 111 N.M. 354, 805 P.2d	14
621; Esquibel, 1978-NMSC-024, ¶ 9 (placing the burden on the defendant to	15
establish a prima facie case). “If the evidence supports a theory of the case, a	16
defendant is entitled to instruction on that theory.” State v. Castrillo, 1991-NMSC-	17
096, ¶ 4, 112 N.M. 766, 819 P.2d 1324. But, whether a person acted reasonably	18
“requires a court to determine whether, as a matter of law, sufficient evidence under	19
the circumstances of the case warranted submission to the jury.” Id. ¶ 14.	20

25
{36} 	In this case, even if Defendant had admitted to committing all of the crimes	1
charged under threat,7 and we assume without deciding that Defendant was in fear	2
of imminent great bodily harm because he claimed that the codefendant threatened	3
him, Defendant’s actions were not reasonable. When reviewing the request for a	4
duress instruction, “[f]ear of immediate harm must be viewed together with whether	5
a reasonable person in the defendant’s position would have acted the same way under	6
the circumstances.” Castrillo, 1991-NMSC-096, ¶ 15. “[A] reasonable person would	7
not violate the law if legal alternatives are available.” Id.; see State v. Perry, 2009-	8
NMCA-052, ¶ 41, 146 N.M. 208, 207 P.3d 1185 (“The keystone of the duress	9
analysis is that the defendant must have no alternative—either before or during the	10
event—to avoid violating the law.” (alteration, internal quotation marks, and citation	11
omitted)).	12
7 Defendant denied committing CSP by anal penetration. Therefore, Defendant
was not entitled to a duress instruction on this count. See Ortiz, 2020-NMSC-008,
¶ 26 (“[I]t is a necessary and immovable presupposition of duress that the accused
admit performing the criminal act with which [they are] charged.”). However,
Defendant did not deny the remaining counts that can be seen in video evidence. The
State argues that since Defendant was not entitled to a duress instruction on some
counts because he did not admit to them, it would mislead the jury to instruct on
duress for the other admitted counts. See State v. Nieto, 2000-NMSC-031, ¶ 17, 129
N.M. 688, 12 P.3d 442 (“A trial court’s refusal to submit a jury instruction is not
error if the submission of the instruction would mislead the jury by promoting a
misstatement of the law.”). Regardless of whether instructing on duress for only
some counts charged could have mislead the jury, we conclude that Defendant did
not make a prima facie showing of duress and thus was not entitled to a duress
instruction on any counts.

26
{37} 	Defendant repeatedly testified that he was confused, scared, helpless, and did	1
not want to be involved in the situation. Defendant testified that earlier in the night	2
he thought the codefendant had “creepo status” after the codefendant came up to him	3
without shoes on in the motel parking lot. However, Defendant testified that later	4
when the codefendant knocked on Defendant’s door, he disregarded his initial fears	5
of the codefendant and voluntarily joined him for a drink on the motel balcony	6
instead of rejecting his offer and staying in his own room. Defendant also testified	7
that he then voluntarily entered the codefendant and Victim’s room when the	8
codefendant told him to, despite his apparent fears. Additionally, at no point did	9
Defendant attempt to call the police or message anyone, despite having his cell	10
phone and laptop with him. In fact, video evidence shows Defendant using his phone	11
to watch pornography during the duration of the events in question, and the search	12
of Defendant’s phone during investigation found thirty-six searches for pornography	13
made during the same time period. Defendant even testified that he attempted to	14
make audio recordings on his phone, yet did not attempt to call emergency services.	15
Perhaps most significant is that Defendant did not take advantage of opportunities	16
to escape and seek help, even though Defendant testified that he tried to get himself	17
out of the situation by asking the codefendant if he could go get lube, go to the	18
bathroom, and go take a shower as excuses to go back to his motel room. Defendant’s	19
motel room, where Defendant’s friend was also staying, was directly next door to	20

27
the codefendant’s room. And although the codefendant testified that he closed his	1
motel room door and it remained closed, Defendant testified that he told police the	2
door was cracked open and he was going to try to escape through it. Defendant even	3
testified that the codefendant fell over multiple times throughout the night. During	4
the first fall, Defendant did not attempt to flee after the codefendant stopped him	5
from walking towards the door. Then, instead of trying to escape the second time the	6
codefendant fell over, Defendant can be heard asking the codefendant if he is alright	7
in the video timestamped at 4:09:16 a.m., and admits he only left the room later after	8
the codefendant fell over for a third time.	9
{38} 	Given all of the evidence presented, Defendant did not make a prima facie	10
showing that he acted as a reasonable person would in this scenario because he chose	11
to enter the codefendant and Victim’s room despite his fears and concerns, at no	12
point attempted to seek or call for help during the three-hour assault even though he	13
had access to his phone and his friend was in the room next door, and made no	14
attempt to flee the situation despite having opportunities to do so.8 See State v.	15
8 Defendant argues that the district court erred in making a determination on
the reasonableness of his conduct as reasonableness is for the jury to assess.
However, it is clear that a defendant bears “the burden to present a prima facie case
of duress warranting its submission to the jury.” Castrillo, 1991-NMSC-096, ¶ 5.
The district court judge then properly determined whether Defendant’s conduct was
reasonable such that a duress instruction was warranted. See State v. Swick, 2012-
NMSC-018, ¶¶ 64-65, 279 P.3d 747 (holding that the district court properly denied
a defendant’s request for a self-defense instruction when it found that the defendant’s
response to the threat was unreasonable).

28
LeMarr, 1971-NMSC-082, ¶¶ 12, 17, 83 N.M. 18, 487 P.2d 1088 (holding that a	1
defendant was not entitled to a duress instruction when testimony revealed they had	2
opportunities to escape but did not try to); 	Castrillo, 1991-NMSC-096, ¶ 18	3
(concluding that a defendant had reasonable alternatives to committing a crime	4
including calling the police and avoiding the situation and thus was not entitled to a	5
duress instruction). Defendant had alternative courses of action available to him, but	6
instead chose to cooperate with the codefendant to commit the acts charged. See	7
Castrillo, 1991-NMSC-096, ¶ 15 (“[A] reasonable person would not violate the law	8
if legal alternatives are available.”).	9
{39} 	Therefore, Defendant did not meet his burden of making a prima facie	10
showing of duress warranting submission to the jury, see Esquibel, 1978-NMSC-	11
024, ¶ 9, and we conclude that the district court did not err in denying Defendant’s	12
requests for a jury instruction on duress.	13
CONCLUSION	14
{40} 	For the foregoing reasons, we affirm.	15
{41} 	IT IS SO ORDERED.	16
___________________________________	17
SHAMMARA H. HENDERSON, Judge	18

1
WE CONCUR:
Megan P Duffy
MEGAN P. DUFFY, Cudge
Katherine a. Wraz
KATHERINE A. WRAY, Judge
29
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