October 24, 2012 – State of New Mexico v. Jorge Luis Sotelo, No. 31,061

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ October 24, 2012

NO. 31,061
STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
JORGE LUIS SOTELO,
Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
J. Richard Brown, District Judge
Gary K. King, Attomey General
Margaret E. McLean, Assistant Attomey General
Joel Jacobsen, Assistant Attomey General
Santa Fe, NM
for Appellee
Jacqueline L. Cooper, Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	Defendant appeals his convictions for kidnapping, battery on a household
member, and intimidation of a witness on grounds that (1) the district court erred in
denying an instruction on the lesser-included offense of false imprisonment, (2)
convictions for kidnapping and battery violate the prohibition against double jeopardy,
(3) the conduct constituting kidnapping was incidental to the battery, and (4) his
counsel was ineffective because he failed to object to improper character evidence at
trial and to seek mitigation of Defendant’s sentence. Defendant also argues that the
district court did not consider mitigating evidence and, therefore, the case should be
remanded for resentencing.
{2} 	We conclude that there is no reasonable view of the evidence such that false
imprisonment was the greatest offense committed and, thus, the district court did not
err in refusing the request for a lesser-included offense instruction. We determine also
that the conduct underlying the kidnapping and battery charges was neither factually
unitary nor unitary as a matter of law. 	Therefore, there was no violation of the
prohibition against double jeopardy. 	Furthermore, the restraint and/or movement
involved in this case was not incidental to the battery, and Defendant failed to
establish a prima facie case of ineffective assistance based on failure to object to

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improper character evidence because, even if there were error, there is no evidence
that Defendant was prejudiced by the error. We affirm Defendant’s convictions. We
remand for resentencing after consideration of mitigating circumstances.
BACKGROUND
{3} 	Defendant and Victim lived together at the time of the incident giving rise to
the charges in this case. They have one child. Victim has two other children, one of
whom was fifteen years old on July 13, 2009, the date of the incident. Victim testified
that Victim and Defendant were at Victim’s parents’ house on July 12 but left together
late in the evening in Victim’s car, with Victim driving because Defendant did not
have a driver’s license. They stopped to get gas, and Defendant got into the vehicle
in the driver’s seat. Defendant said he would drive the rest of the way to their home
half a mile away. Instead, Defendant drove in the opposite direction. Victim asked
where they were going, and Defendant responded that he was taking a drive.
Defendant continued driving down the Hobbs Highway away from town and, after
turning off the highway, drove ten to fifteen minutes to a deserted area. On the way,
he told Victim that he wanted to take her to a place with “no cops [and] no phones.”
Defendant pulled Victim out of the vehicle and started pulling her hair, kicking her,
and throwing her into bushes. Victim testified that during this time, Defendant told
her he was going to kill her or leave her there to die, and repeatedly stated that he “did

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not want to go back to jail.” She stated that when she refused to swear that she would
not call the police, he continued beating her. 	Defendant held Victim’s arm while
driving to another location on Derrick Road, where he beat her some more. When
Victim attempted to run away, Defendant chased her, put her back in the car, and
drove to a third location on Hidalgo Road. Victim testified that Defendant beat her
again and forced her to have intercourse with him. After driving around for an hour
or two, Defendant drove to their home in the early morning of July 13. 	Victim’s
daughter opened the door and told Victim to call the police. Defendant went to the
bedroom. Victim then went to the sheriff’s department to report the incident.
{4} 	At trial, Defendant moved for a jury instruction on false imprisonment on the
ground that false imprisonment was a lesser-included charge of kidnapping. 	The
judge denied this motion. 	Defendant was convicted of kidnapping, battery on a
household member, and intimidation of a witness. 	He was acquitted of criminal
sexual penetration. At the sentencing hearing, Defendant requested a continuation to
prepare a motion for mitigation of the kidnapping sentence, which was granted. A
second hearing on November 8, 2010, was also continued. Defendant was sentenced
on November 29, 2010. A motion for mitigation was not filed.
{5} 	Defendant was sentenced to a total of twenty-one years: 	eighteen years for
kidnapping, three years for intimidation of a witness, and 364 days for battery against

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a household member. 	The sentences for the latter charges were ordered to run
concurrent to each other and consecutive to the kidnapping sentence.
DISCUSSION
{6} 	We address Defendant’s arguments in the order presented.
A. 	Defendant Was Not Entitled to a Jury Instruction on a Lesser-Included
Offense
{7} 	“The propriety of jury instructions given or denied is a mixed question of law
and fact. Mixed questions of law and fact are reviewed de novo.” State v. Salazar,
1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. 	On appeal, the evidence is
viewed “in the light most favorable to the giving of the requested instruction.” State
v. Hill, 2001-NMCA-094, ¶ 5, 131 N.M. 195, 34 P.3d 139.
{8} 	There are two prerequisites for a lesser-included offense instruction. First, the
district court should “grant the request when the statutory elements of the lesser crime
are a subset of the statutory elements of the charged crime.” State v. Meadors, 121
N.M. 38, 44, 908 P.2d 731, 737 (1995). Second,
the trial court should grant . . . an instruction [on a lesser-included
charge] if (1) the defendant could not have committed the greater offense
in the manner described in the charging document without also
committing the lesser offense . . . ; (2) the evidence adduced at trial is
sufficient to sustain a conviction on the lesser offense; and (3) the
elements that distinguish the lesser and greater offenses are sufficiently
in dispute such that a jury rationally could acquit on the greater offense
and convict on the lesser.

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Id. Although the Meadors test applied to a prosecution request for an instruction on
a lesser-included charge and focused on protection of the defendant’s due process
rights, this Court applied it to a defendant’s request for such an instruction in Darkis.
See State v. Darkis, 2000-NMCA-085, ¶ 14, 129 N.M. 547, 10 P.3d 871. When it is
the defendant requesting a lesser-included offense instruction, “the appropriate focus
is . . . on the facts the [s]tate had arrayed and the theory of its case.” Id. ¶ 15. This
analysis entitles a defendant to a lesser-included offense instruction when the evidence
supports the lesser-included offense. Id. ¶ 17.
{9} 	In reviewing on appeal whether a reasonable jury could find that the lesser-
included offense is the highest offense committed, “[w]e will not ‘fragment the
testimony . . . to such a degree as to distort it’ in order to construct a view of the
evidence which would support the giving of the instruction.” State v. Gaitan, 2002-
NMSC-007, ¶ 24, 131 N.M. 758, 42 P.3d 1207 (second alteration in original) (citation
omitted). In State v. Wilson, the Court held that a lesser-included offense instruction
was properly denied where the defendant sought to show that the jury could have
believed portions of testimony by both the victim and defendant and rejected other
portions. 117 N.M. 11, 15, 868 P.2d 656, 660 (Ct. App. 1993). It held that “there
must be some evidence other than that obtained by taking portions of the victim’s and
portions 	of 	the 	defendant’s 	testimony 	to 	support 	the 	lesser-included 	offense

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instruction. . . . When there is other evidence [to support the lesser-included offense
instruction], then the risk of impermissible distortion [of the testimony] is eliminated.”
Id.
{10} 	Defendant argues that “[t]he jury was free to reject [Victim’s] . . . testimony that
[Defendant] expressed a kidnapping intent . . . , especially in light of the significant
impeachment of her credibility which resulted in acquittal for the [criminal sexual
penetration] charge” and, therefore, there was “some view of the evidence that [false
imprisonment] was the most serious offense committed.” 	The State responds, in
essence, that no reasonable juror could find that false imprisonment was the highest
offense committed because to do so would “requir[e] an impermissible fragmentation
of the evidence, picking and choosing among elements of a single witness’s
testimony.”
{11} 	It is clear that the first Meadors prerequisite is met because false imprisonment
is a subset of kidnapping. 	False imprisonment is “intentionally confining or
restraining another person without his consent and with knowledge that he has no
lawful authority to do so.” NMSA 1978, § 30-4-3 (1963). Kidnapping requires “the
unlawful taking, restraining, transporting or confining of a person, by force,
intimidation or deception, with intent . . . to inflict death, physical injury[,] or a sexual
offense on the victim.” NMSA 1978, § 30-4-1(A)(4) (2003). The difference between

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these two statutes is found in kidnapping’s intent requirements. See State v. Clark, 80
N.M. 340, 343, 455 P.2d 844, 847 (1969) (“Merely to confine or restrain against a
person’s will without the requisite intention is not kidnapping. 	This is false
imprisonment . . . when done with knowledge of an absence of authority.” (citations
omitted)).
{12} 	The second Meadors prerequisite has three components. 	Two are satisfied
readily: Defendant could not have committed kidnapping without committing false
imprisonment since false imprisonment is a subset of kidnapping, and there is
sufficient evidence to support a conviction for false imprisonment found in Victim’s
testimony 	that 	Defendant 	restrained 	her 	in 	the 	vehicle. 	It 	is 	the 	last
component—whether “a jury rationally could acquit on the greater offense and convict
on the lesser”—that is contested by the parties and on which the bulk of our analysis
rests. 121 N.M. at 44, 908 P.2d at 737.
{13} 	This part of the Meadors test requires that (1) “the elements that distinguish the
lesser and greater offenses are sufficiently in dispute such that [(2)] a jury rationally
could acquit on the greater offense and convict on the lesser.” Id. Defendant argues
that the jury could have found that he did not intend to cause Victim harm. He points
to Victim’s testimony that Defendant “did not become angry or violent until after they
had arrived in a secluded location” as an indication that Defendant “lacked the intent

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to injure [Victim] at the time he drove out there.” 	He argues that the fact he
intentionally battered Victim does not prove that he transported her to the deserted
area with the intent to do so because “false imprisonment can involve a resulting
injury without constituting kidnapping.” The State counters that Victim’s testimony
that Defendant told her that he wanted to bring her to a place with “no cops [and] no
phones” shows that “the only rational conclusion is that he took her there [to beat
her].” These arguments focus on whether Defendant intended to batter Victim during
the period starting at the gas station and ending when Defendant began beating Victim
at the Hobbs Highway location. Essentially, the parties disagree as to when Defendant
formed the intent to cause Victim physical injury. 	Victim’s testimony, the only
evidence presented on what happened during the drive, permits a legitimate dispute
on this issue, thus satisfying the first component of this test.
{14} 	We are not limited to analysis of the dispute over this period, however, because
this is not the only period relevant to the kidnapping charge. 	Even if the jury
concluded that Defendant did not intend to harm Victim during the initial transport
from the gas station to the Hobbs Highway location, there was restraint and movement
to satisfy the requirements of kidnapping because, after beating Victim there,
Defendant drove to two other locations where he continued to beat her. 	Victim
testified as to the battery, and both the police officer to whom she reported the

9
incident and her daughter testified as to the resultant bruising. The jury viewed photos
of the bruising at trial. 	Based on this evidence, the jury convicted Defendant of
battery against a household member. For the jury to believe that Defendant did not
intend to batter Victim when he drove her from Hobbs Highway to Derrick Road and
from there to Hidalgo Road would require substantial fragmentation of the evidence.
In essence, such an interpretation would require the jury to believe that Defendant
committed the battery but did not intend to do so while driving from place to place.
This is not “a reasonable view of the evidence [that] could lead a fact[]finder to
conclude that the lesser offense is the highest degree of crime committed.” State v.
Neatherlin, 2007-NMCA-035, ¶ 22, 141 N.M. 328, 154 P.3d 703. Thus, the second
component of this test fails.
{15} 	Although we agree with Defendant that it is the intent to cause injury, not the
injury itself, that distinguishes kidnapping from false imprisonment, evidence of
injury may be used by the jury as circumstantial evidence of intent. See State v. Allen,
2000-NMSC-002, ¶ 65, 128 N.M. 482, 994 P.2d 728 (“[W]e [allow] a jury to ‘infer,
from evidence of acts committed at some later point during the commission of a
kidnapping, that the necessary criminal intent existed at the time the victim first was
restrained.’ ” (citation omitted)). If the incident had ended with Defendant driving
Victim home after beating her at the Hobbs Highway location, there may have been

10
a reasonable interpretation of the evidence that the battery was a spontaneous act not
preceded by kidnapping. But that is not what happened. Instead, the transportation
of Victim from Hobbs Highway to Derrick Road was preceded by an intentional
battery and followed by an intentional battery. 	So was the transport from Derrick
Road to Hidalgo Road. Defendant presented no evidence that such transport either did
not occur or that he had another purpose for driving from place to place. The only
rational view of the evidence is that Defendant intended to injure Victim as they
traveled between these locations. The district court did not err in denying Defendant’s
request for an instruction on the lesser-included offense of false imprisonment.
B. 	Defendant’s Convictions Do Not Violate Double Jeopardy
{16} 	“The constitutional prohibition against double jeopardy ‘protects against both
successive prosecutions and multiple punishments for the same offense.’” 	State v.
Armijo, 2005-NMCA-010, ¶ 15, 136 N.M. 723, 104 P.3d 1114 (citation omitted); see
U.S. Const. amends. V, XIV; N.M. Const. art. II, § 15. 	Defendant argues that his
convictions for kidnapping and battery violate this prohibition because his conduct
was unitary both based on the facts and as a matter of law and the Legislature did not
intend to punish battery and kidnapping separately. The State responds that (1) the
issue was not preserved properly; and (2) the conduct is not unitary under the facts or

11
as a matter of law and, therefore, double jeopardy does not apply. 	We agree that
Defendant’s double jeopardy rights were not violated.
{17} 	Defendant need not have preserved this issue in order to raise it on appeal. See
State v. Martinez, 2007-NMCA-160, ¶ 5, 143 N.M. 96, 173 P.3d 18. 	“Double
jeopardy presents a question of law, which we review de novo.” State v. Saiz, 2008-
NMSC-048, ¶ 22, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State
v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. “[T]he sole limitation
on multiple punishments is legislative intent[.]” Swafford v. State, 112 N.M. 3, 13,
810 P.2d 1223, 1233 (1991). Under New Mexico’s double jeopardy jurisprudence,
our inquiry into legislative intent proceeds in two stages. Id.; State v. Frazier, 2007-
NMSC-032, ¶¶ 18-19, 142 N.M. 120, 164 P.3d 1. “The first part of our inquiry [is]
whether the conduct underlying the offenses is unitary, i.e., whether the same conduct
violates both statutes. 	The second part [is] whether the [L]egislature intended to
create separately punishable offenses.” Swafford, 112 N.M. at 13, 810 P.2d at 1233.
If the evidence is such “that the jury reasonably could have inferred independent
factual bases for the charged offenses[,]” the conduct is not unitary. 	Saiz, 2008-
NMSC-048, ¶ 30 (internal quotation marks and citation omitted). Independent factual
bases “may be established by determining whether the acts constituting the two
offenses are sufficiently separated by time or space, looking to the quality and nature

12
of the acts, the objects and results involved, and the defendant’s mens rea and goals
during each act.” Id.
{18} 	In certain situations, two offenses are “unitary by definition.” Frazier, 2007-
NMSC-032, ¶ 23. In those cases, where the Legislature has “define[d] the offenses
as greater and lesser included, and the jury instructions require the jury to make the
factual finding of unitary conduct,” the court need not assess whether the conduct was
unitary. 	Id. ¶ 20. An example is the felony murder statute, which requires that the
killing be committed “in the commission of or attempt to commit any felony[.]”
NMSA 1978, § 30-2-1(A)(2) (1994). 	The construction of this statute requires a
factual finding that one crime was committed in conjunction with another. Frazier,
2007-NMSC-032, ¶ 23. “Thus, when a jury finds a defendant guilty of felony murder,
it has already determined the fact-based unitary conduct question—it has found that
the killing happened during the commission of the underlying felony.” 	Id. 	Taken
together with State v. Contreras, 120 N.M. 486, 903 P.2d 228 (1995), in which the
Court held that “when the conduct is unitary, the defendant cannot be convicted of
both felony murder and the underlying predicate felony[,]” Frazier’s holding means
that a defendant can never be convicted of both felony murder and the predicate
felony because the conduct is always unitary. 2007-NMSC-032, ¶¶ 16, 23.
1. 	Defendant’s Conduct Was Not Factually Unitary

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{19} 	With this background in mind, we turn back to the facts of this case. 	We
address first whether Defendant’s conduct was factually unitary, then whether it was
unitary as a matter of law. Defendant argues that his conduct was factually unitary
because “[t]he physical contact was constant” and “[Defendant’s] mental state of
anger was also constant[.]” 	We are unpersuaded. 	Here, Victim testified that at
different times during the encounter, Defendant kicked her, punched her, pulled her
hair, and pushed her into bushes. She testified that he transported her from place to
place while holding her by the shirt and arm and that when she tried to run, he dragged
her back to the car. To convict for kidnapping, the jury was instructed they must find
that Defendant “took, restrained, confined, or transported [Victim] by force or
intimidation . . . to inflict physical injury on her[.]” They were instructed that in order
to convict for battery, they must find that Defendant “intentionally touched or applied
force to [Victim] by hitting or kicking her[.]” (Emphasis added.) Thus, based on these
instructions and Victim’s testimony, the jury could have found independent factual
bases for kidnapping and battery because the instructions limited the conduct
constituting battery to hitting or kicking Victim, thereby precluding inclusion of the
conduct by which Defendant restrained or transported Victim in the car from place to
place. 	See State v. Pisio, 119 N.M. 252, 260, 889 P.2d 860, 868 (Ct. App. 1994)
(“The key to the restraint element in kidnapping is the point at which [the v]ictim’s

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physical association with [the d]efendant was no longer voluntary.”). The conduct
was not factually unitary. 	State v. Urioste, 2011-NMCA-121, ¶ 28, 267 P.3d 820
(“[Where] the jury could reasonably have inferred an independent factual basis
for . . . [d]efendant’s convictions, . . . we do not second-guess the factual conclusions
of a jury.”), cert. granted, 2011-NMCERT-012, 	P.3d 	(No. 33,287, Dec. 7,
2011).
2. 	Defendant’s Conduct Was Not Unitary as a Matter of Law
{20} 	Neither is the conduct unitary as a matter of law. Defendant argues that the
kidnapping statute functions like the felony murder statute in Frazier. See Section
30-4-1(B); Frazier, 2007-NMSC-032, ¶ 23. Section 30-4-1(B) allows punishment of
kidnapping as a second degree felony if the defendant “voluntarily frees the victim in
a safe place and does not inflict physical injury or a sexual offense upon the victim.”
Therefore, Defendant argues, the elevation of a kidnapping charge to first degree
based on physical injury is analogous to elevation of a killing to first degree murder
based on a predicate felony. The State maintains that the kidnapping statute is not
similar to the felony murder statute because, unlike that statute, it does not include a
requirement of a predicate crime that is subsumed into kidnapping. 	We are not
persuaded by Defendant’s analogy to the felony murder statute because the statutes
at issue are neither facially nor functionally the same.

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{21} 	Frazier’s analysis of the felony murder statute relies on the legislative intent
behind the statute. 	2007-NMSC-032, ¶ 26; see § 30-2-1(A)(2). 	Although that
analysis “turn[ed] entirely on the unitary conduct prong of Swafford[,]” the Court
stated that, in essence, both Swafford prongs depend on whether the Legislature
intended multiple punishments. 	Frazier, 2007-NMSC-032, ¶¶ 17-18. 	The factual
inquiry into “independent factual bases” is based on an “assum[ption] that the
[L]egislature intended to authorize separate punishments” when “criminal acts are
sufficiently separate in time and space[.]” 	Id. 	¶ 19. 	Thus, the unitary conduct
analysis is “a proxy for legislative intent when the [L]egislature is silent.” 	Id. 	The
Court went on to determine that the Legislature was not silent in the felony murder
statute: 	its intent to treat certain crimes as unitary is evinced by the “expres[s]
require[ment] that the killing happen ‘in the commission of’ the underlying felony.”
Id. ¶ 23.
{22} 	Here, there is no such legislative intent indicated in the kidnapping statute.
Unlike the felony murder statute, the kidnapping statute does not include as an
element “in the commission of [a] felony.” Compare § 30-2-1(A)(2), with § 30-4-1.
Thus, on its face, the kidnapping statute is not like the felony murder statute. 	In
addition, there is no evidence that the Legislature has ever intended to make the
kidnapping statute like the felony murder statute. “We presume that the [L]egislature

16
knows the law when enacting a statute.” State v. Bennett, 2003-NMCA-147, ¶ 11, 134
N.M. 705, 82 P.3d 72. Yet, although the felony murder statute has been part of New
Mexico’s schema for homicide since well before 1963, see NMSA 1953, § 40-24-4
(Vol. 6, 1965) (defining first degree murder), the Legislature has not added a similar
provision to the kidnapping statute even though it has amended that statute three times
since 1963. 	See § 30-4-1. Finally, New Mexico has declined to follow the Model
Penal Code’s kidnapping statute, adopted in 1962 and followed by some other states,
which includes a provision such that kidnapping may be charged for restraint intended
to facilitate another crime. See § 30-4-1; Model Penal Code § 212.1 (1962); see, e.g.,
Kan. Stat. Ann. § 21-5408(a)(2) (2010).
{23} 	Defendant argues that, in spite of the difference in wording, the kidnapping
statute functions like the felony murder statute. We disagree for two reasons. First,
the kidnapping statute does not require that the jury find there was a crime that caused
physical injury. In the felony murder context, the uniform jury instructions require
the jury to find that the defendant committed a felony and that the murder was
committed during the commission of that felony. See UJI 14-202 NMRA. “There can
be no conviction for killing in the course of a felony without proof of all of the
elements of the [underlying] felony.” State v. DeGraff, 2006-NMSC-011, ¶ 26, 139
N.M. 211, 131 P.3d 61.

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{24} 	The jury instruction for first degree kidnapping requires that the jury find two
things: 	that there was a physical injury or sexual offense and that the victim was
voluntarily released. 	See § 30-4-1(B); UJI 14-6018 NMRA. If a sexual offense is
alleged, the jury must find that the elements of that crime are satisfied. See UJI 14-
6018 Use Note 5 (stating that the jury must be instructed in the elements of the sexual
offense). This part of the statute is similar to the felony murder statute. See UJI 14-
202 Use Note 3. The jury may convict for first degree kidnapping, however, if there
is evidence of physical injury even if there is no charge for a crime associated with
that injury. 	See UJI 14-6018 Use Note 4 (in which there is no requirement that the
jury be instructed in the elements of a crime causing physical injury). In other words,
the jury may find that the defendant inflicted physical injury on the victim without
considering the elements of a specific crime against the person. 	The absence of a
requirement for the jury to find that another crime was committed indicates that the
Legislature intended to punish as first degree kidnapping conduct that meets the basic
elements of second degree kidnapping and results in physical injury, even if the
defendant is not charged with a crime for the conduct causing the injury. 	Contra
Frazier, 2007-NMSC-032, ¶ 24 (“[T]he conduct required to commit felony murder
will always support a parallel charge with respect to the underlying felony.”). In this
case, the jury could have determined that Victim suffered physical injury when

18
Defendant dragged her to the car, threw her into the bushes, pulled her hair, or
otherwise restrained her—all actions distinct from the hitting and kicking on which
the battery charge was based.
{25} 	Second, Frazier is inapposite because the problem in that case does not exist
here. 	Critical to Frazier’s analysis is the fact that the underlying felony increases
punishment for a killing to the same level as an intentional killing even when there is
no “premeditation or a depraved mind.” Id. ¶ 26. In the felony murder context, “the
killer’s mental state is consistent with second[]degree murder.” 	Id. ¶ 9. 	Thus, if
punished for both felony murder and the underlying felony, the “defendant will
receive a greater punishment than a defendant who is shown to have killed with a
more culpable mental state such as deliberate intent murder.” Id. ¶ 10. The key to this
analysis is the recognition that different mental states determine the level of
culpability for murder. See § 30-2-1; State v. Ortega, 112 N.M. 554, 564, 817 P.2d
1196, 1206 (1991), abrogated on other grounds as recognized by Kersey v. Hatch,
2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. For example, first degree murder
requires the intent to kill or “indifference for the value of human life.” State v. Ibn
Omar-Muhammad, 102 N.M. 274, 278, 694 P.2d 922, 926 (1985); see § 30-2-1(A).
Second degree murder, however, requires only the knowledge that the defendant’s
conduct “create[s] a strong probability of death or great bodily harm.” Section 30-2-

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1(B). 	It is axiomatic that we punish intentional conduct more severely than
unintentional conduct. See 1 Wharton’s Criminal Law § 27 (15th ed. 2012); Ortega,
112 N.M. at 562, 817 P.2d at 1204. In the felony murder context, when a defendant
is sentenced for both felony murder and the underlying felony, he is punished more
severely than one who acted with intent to kill, a result contrary to the schema of the
murder statute. See Frazier, 2007-NMSC-032, ¶ 10. In contrast, in the kidnapping
context, the mental state for first and second degree kidnapping is the same: in this
case, the intent to inflict physical injury. The mental state that makes a perpetrator
culpable for kidnapping is constant whether there is a physical injury or not.
Punishment for both kidnapping and the conduct that caused physical injury,
therefore, does not create the same arbitrary result as discussed in Frazier because the
defendant is not punished more severely than someone with a “more culpable mental
state.” Id.
{26} 	We conclude that the kidnapping statute is not analogous to the felony murder
statute and the battery and kidnapping in this case were not unitary as a matter of law.
Since we determine that Defendant’s conduct was neither factually unitary nor unitary
as a matter of law, there is no reason to proceed to the second prong of the Swafford
analysis. 	See Swafford, 112 N.M. at 14, 810 P.2d at 1234 (“If it reasonably can be
said that the conduct is unitary, then one must move to the second part of the inquiry.

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Otherwise, if the conduct is separate and distinct, inquiry is at an end.”). Defendant’s
convictions for first degree kidnapping and battery against a household member do
not violate the constitutional prohibitions against double jeopardy.
C. 	Kidnapping Was Not Incidental to Battery
{27} 	Defendant next argues that the Legislature did not intend to punish restraint that
is incidental to another crime as kidnapping and cites to other jurisdictions that have
interpreted kidnapping statutes to apply only when the restraint or movement has
significance independent from the underlying crime. See, e.g., State v. Salamon, 949
A.2d 1092, 1121 (Conn. 2008); People v. Daniels, 459 P.2d 225, 238 (Cal. 1969) (in
bank); State v. Buggs, 547 P.2d 720, 723 (Kan. 1976). Defendant argues that because
this issue is “an alternative basis for finding [a] double jeopardy [violation]” and
double jeopardy arguments need not be preserved, preservation was not required. See
Martinez, 2007-NMCA-160, ¶ 5.
{28} 	We disagree that the question of whether the Legislature intended to punish
Defendant’s conduct as kidnapping must be analyzed within a double jeopardy
framework. The question is one of statutory construction. 	State v. Trujillo, 2012-
NMCA-___, ¶ 16, ___ P.3d ___ (No. 30,563, Aug. 27, 2012). 	As such, it is a
preliminary inquiry that must occur before analysis of any other issues, including a
double jeopardy analysis, in which it is assumed that the alleged conduct constitutes

21
a crime. See id. ¶ 22. Since this question is not part of the double jeopardy analysis,
it must be preserved properly before it may be addressed on appeal. 	See Rules 11-
103(A) and 12-216 NMRA. In order to preserve an issue for appeal, the defendant
must make a timely objection that apprises the trial court of the nature of the claimed
error and invokes an intelligent ruling thereon. See State v. Varela, 1999-NMSC-045,
¶ 25, 128 N.M. 454, 993 P.2d 1280.
{29} 	Here, defense counsel stated at trial that the Legislature may not have intended
to punish Defendant’s conduct with an eighteen-year sentence. 	This assertion,
however, was made in the context of a request for time to file a motion for mitigating
circumstances and did not call for a ruling from the judge on the issue. It appears that
at no point in the trial did defense counsel argue that Defendant was charged
improperly or that the Legislature did not intend his conduct to fall within the
kidnapping statute. See State v. Rojo, 1999-NMSC-001, ¶ 44, 126 N.M. 438, 971 P.2d
829 (stating that the Court will not search the record to find whether an issue was
preserved where defendant did not refer the court to appropriate transcript references).
Since no ruling was invoked in the district court, this issue was not preserved.
{30} 	Even if it were preserved, Defendant’s argument would fail. Kidnapping occurs
once the “[v]ictim’s physical association with [the d]efendant [is] no longer
voluntary.” Pisio, 119 N.M. at 260, 889 P.2d at 868. As discussed above, the jury

22
was instructed that a battery conviction required finding that Defendant hit or kicked
Victim. 	Driving Victim between locations while restraining her in the car is not
merely incidental to hitting or kicking her. See Trujillo, 2012-NMCA-___, ¶¶ 37-38.
D. 	Appellant 	Has 	Not 	Established 	a 	Prima 	Facie 	Case 	of 	Ineffective
Assistance Based on Defense Counsel’s Failure to Object
{31} 	Defendant maintains that his counsel was ineffective because he did not object
to character evidence presented at trial and because he failed to file a motion or argue
for mitigation at the sentencing hearing. Claims of ineffective assistance of counsel
are reviewed de novo. State v. Quiñones, 2011-NMCA-018, ¶ 28, 149 N.M. 294, 248
P.3d 336, cert. denied, 2011-NMCERT-001, 150 N.M. 559, 263 P.3d 901. The two
prongs of the test for ineffective assistance claims were stated concisely in State v.
Hernandez:
To prevail on his claim of ineffective assistance of counsel, . . . [the
d]efendant bears the burden of showing both that his attorney’s
performance fell below that of a reasonably competent attorney, and that,
as a result of his attorney’s incompetence, he suffered prejudice. Absent
a showing of both incompetence and prejudice, counsel is presumed
competent.
115 N.M. 6, 16, 846 P.2d 312, 322 (1993) (citation omitted); see Strickland v.
Washington, 466 U.S. 668, 687 (1984). The range of conduct that is reasonable is
broad; “[i]f we can conceive of a reasonable trial tactic which would explain the
counsel’s performance, we should not find ineffective assistance.” Quiñones, 2011-

23
NMCA-018, ¶ 29 (alteration, internal quotation marks, and citation omitted).
Prejudice is present when there is a “reasonable probability that ‘but for’ counsel’s
unprofessional error, the result of the proceeding would have been different.”
Hernandez, 115 N.M. at 17, 846 P.2d at 323 (internal quotation marks and citation
omitted). 	A showing of prejudice presents a high barrier because “[c]ounsel’s
deficient performance must represent so serious a failure of the adversarial process
that it undermines judicial confidence in the accuracy and reliability of the outcome.”
Quiñones, 2011-NMCA-018, ¶ 30 (internal quotation marks and citation omitted).
{32} 	Defendant argues that defense counsel was ineffective because he failed to
object to testimony referring to prior bad acts which was “clearly intended to prove
conformity therewith” in violation of Rule 11-404(B)(1) NMRA (“Evidence of a
crime, wrong, or other act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the
character.”). Specifically, he argues that references in the testimony to his impending
court date, prior jail time, and previous altercations were objectionable. During the
trial, Victim stated three times that Defendant had a court date the day following the
incident. In the course of her testimony, she stated six times that Defendant had said
that he did not want to go “back to jail.” At one point, Victim made reference to an
incident that allegedly occurred several days earlier. 	Finally, Victim’s daughter

24
testified that she advised her mother to call the police because “why would you want
to deal with stuff like this, like someone hitting you all the time?” (Emphasis added).
She also stated that she had “seen bruises on [Victim]” in the past. Both the State and
defense counsel made reference to Defendant’s court date during closing arguments.
Defense counsel also mentioned in closing arguments Defendant’s alleged statement
that he did not want to go back to jail. Defense counsel did not object to any of these
statements, nor did he file any motions in limine to exclude this evidence or request
a curative instruction for the jury.
{33} 	We agree with the State that even if defense counsel’s failure to object was
unreasonable, Defendant has not demonstrated that the outcome of the trial would
have been different but for this failure. See Hernandez, 115 N.M. at 16-17, 846 P.2d
at 322-23 (“On review, we need not consider the two prongs of the test in any
particular order.”). “Although the statement[s] may have had some prejudicial effect,
Defendant has not demonstrated that had th[ese] statement[s] not come in, the result
of the proceeding would have been different.” 	State v. Trujillo, 2002-NMSC-005,
¶ 45, 131 N.M. 709, 42 P.3d 814. In State v. Roybal, the Court considered whether
defense counsel was ineffective when he failed to redact portions of a witness’
statement implicating the defendant in a prior murder. 2002-NMSC-027, ¶ 14, 132
N.M. 657, 54 P.3d 61. After finding that “[t]here is little question . . . that [defense]

25
counsel’s” conduct was unreasonable, id. ¶ 22, the Court stated that the defendant was
prejudiced because “evidence that he had committed a prior murder invites the
impermissible inference that, because he had killed in the past, it is more likely that
he committed this murder.” Id. ¶ 26. “Under the Strickland measure of ineffective
assistance of counsel, [however,] mere evidentiary prejudice is not enough.” Roybal,
2002-NMSC-027, ¶ 25. 	The Court considered the prejudicial effect “against the
totality and strength of the evidence of . . . guilt [to] determine if the outcome of the
trial has been rendered unreliable.” Id. ¶ 26. The Court determined that, compared
to the evidence against the defendant in that case, the statement “do[es] not make the
reliability of the trial suspect and do[es] not deprive [the d]efendant of his due process
right to a fair trial.” Id. ¶ 28.
{34} 	Similarly, here the State presented testimony by Victim, the officer to whom
Victim reported the incident, and Victim’s daughter. 	The State also presented
photographs of Victim’s injuries. Defense counsel’s strategy was to attack Victim’s
credibility; he did not call any witnesses nor did he present other evidence. 	“The
cumulative effect of these . . . items of evidence, even considering Defendant’s efforts
to discredit them, are simply too strong for us to conclude” that the trial would have
been “any different absent [defense] counsel’s error.” Id. ¶ 29. Defendant has failed
to establish a prima facie case of ineffective assistance based on failure to object.

26
E. 	The District Court Failed to Consider Mitigating Circumstances in
Sentencing
{35} 	In his second claim of ineffective assistance, Defendant argues that defense
counsel failed to argue for mitigating circumstances because he misunderstood the
difference between the judge’s power to defer or suspend under NMSA 1978, Section
31-20-3 (1985), and the judge’s power to reduce the sentence by one-third under
NMSA 1978, Section 31-18-15.1 (2009). Defendant also argued, albeit glancingly,
that the district court failed to consider mitigating circumstances. Both the judge and
defense counsel made statements in the sentencing hearings about the judge’s lack of
discretion in the kidnapping sentence.
{36} 	In order to make a fully informed decision on whether the district court erred
by not considering mitigating circumstances, we requested supplemental briefing. See
State v. Clemonts, 2006-NMCA-031, ¶ 10, 139 N.M. 147, 130 P.3d 208; see State v.
Nozie, 2009-NMSC-018, ¶ 15, 146 N.M. 142, 207 P.3d 1119 (stating that “an
appellate court may decline to address [a claim not fully briefed by the parties], [but]
it is not required to do so if the transcripts and briefs are sufficient to present the
essential question for review on the merits,” and that “NMRA 12-213 does not require
th[e] Court to disregard an issue when an appellant fails to comply with its
provisions”) (alterations, internal quotation marks, and citations omitted)). 	The
supplemental briefs addressed the interplay, if any, between Sections 31-18-15.1 and

27
31-20-3, whether the district court considered mitigating circumstances, and the
holding of State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314, as it relates
to this case.
{37} 	“We review the trial court’s sentencing for an abuse of discretion.” 	State v.
Jensen, 1998-NMCA-034, ¶ 19, 124 N.M. 726, 955 P.2d 195. A trial court abuses its
discretion when it exercises its discretion based on a misunderstanding of the law. See
State v. Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209, overruled on
other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. We remand for
resentencing because the district court did not consider mitigating circumstances in
sentencing. 	Because our holding renders it unnecessary, we do not address
Defendant’s arguments regarding ineffective assistance of counsel based on a failure
to move for mitigation.
{38} 	At the first sentencing hearing, defense counsel argued that the judge had
discretion to suspend a portion of the eighteen-year sentence. He also argued that,
although “some time is not inappropriate,” eighteen years is “extravagant.” At that
point, the judge asked for the reference to the governing statute and was referred to
Section 31-18-15 by defense counsel. This is the statute governing basic sentences,
not suspension or deferral of sentences nor mitigation of sentences. 	The State
interjected that the judge “ha[d] to read that section in conjunction with [Section] 31-

28
20-3,” which is the statute governing suspensions and deferrals. The judge agreed
with the State that under Section 31-20-3, he did not have the authority to suspend or
defer sentences for first degree felonies. 	Later in the hearing, defense counsel
requested that the hearing be continued to allow him to prepare a motion for
mitigating circumstances. The judge continued the hearing and gave Defendant ten
days to file a motion.
{39} 	Defense counsel did not file the motion and stated at the next hearing on the
matter, “after an extensive review[,] I would have to . . . agree with the court and [the
prosecutor] that this is not one, the two lesser offenses would be available for
mitigation, but not the first degree kidnapping.” 	(Emphasis added.) 	The judge
responded, “what I recall reacting to was whether or not I had any discretion in
suspending any portion of that eighteen-year sentence, which I don’t. But mitigation,
I didn’t even really look at the mitigation statutes, haven’t seen a formal request for
mitigation.” He proceeded to hear argument from counsel on sentencing. Defense
counsel stated that “as to count one, I think we are basically dealing with something
that the court doesn’t have a lot of discretion with . . . in a situation like this, you’re
looking at basically having to hand down an eighteen-year sentence.” He also stated
that “like I said, there’s not much we can do with [the kidnapping sentence], there’s
not much argument I can make to that.” After hearing from Defendant, the judge said,

29
“I don’t have any discretion in count one, it’s an eighteen-year mandatory sentence,
I don’t have any discretion in that count at all.”
{40} 	This understanding of the scope of his authority is partially correct. The judge
determined correctly that Section 31-20-3 does not apply to first degree felonies. See
§ 31-20-3 (stating that a court may defer or suspend a sentence only for crimes “not
constituting a capital or first degree felony”). This statute does not have any effect,
however, on the judge’s ability to alter a sentence based on mitigating circumstances.
See State v. Cook, 2006-NMCA-110, ¶ 21, 140 N.M. 356, 142 P.3d 944. 	Under
Section 31-18-15.1(G), the court may reduce the sentence by up to one-third. Had the
court found mitigating circumstances here, the sentence could have been reduced by
up to six years.
{41} 	The State argues that the district court has no obligation to consider mitigating
evidence “sua sponte, in the absence of a request from the defense” and that, therefore,
this issue is not relevant to this appeal. We disagree. The plain language of the statute
imposes a duty on the court. Section 31-18-15.1(A) states that “[t]he court shall hold
a sentencing hearing to determine if mitigating or aggravating circumstances exist.”
(Emphasis added.); see State v. Ayala, 2006-NMCA-088, ¶ 6, 140 N.M. 126, 140 P.3d
547. The statute does not prescribe any prerequisites to the district court’s exercise
of this duty.

30
{42} 	Furthermore, 	our 	cases 	have 	recognized 	the 	importance 	of 	mitigating
circumstances in sentencing. In Tomlinson v. State, 98 N.M. 213, 215, 647 P.2d 415,
417 (1982), the Court held that failure to allow a defendant to allocute before sentence
is imposed “renders the sentence invalid.” Allocution by the defendant is a form of
mitigation evidence. Id. Indeed, the New Mexico Supreme Court defined allocution
as “the formal inquiry or demand made by the court . . . to accused at the time for
pronouncing sentence as to whether accused has anything to say why sentence should
not be pronounced on him.” State v. Setser, 1997-NMSC-004, ¶ 20, 122 N.M. 794,
932 P.2d 484 (internal quotation marks and citation omitted). Similarly, Black’s Law
Dictionary defines allocution as “[a] trial judge’s formal address to a convicted
defendant, asking him or her to speak in mitigation of the sentence to be imposed,”
or “[a]n unsworn statement from a convicted defendant to the sentencing judge or jury
in which the defendant can ask for mercy . . . or say anything else in an effort to lessen
the impending sentence.” Black’s Law Dictionary 88 (9th ed. 2009). In Tomlinson,
the fact that the district court allowed the defendant to allocate after sentence was
imposed was “no more than an empty gesture” because of the potential impact of the
defendant’s statement on the sentence. 98 N.M. at 215, 647 P.2d at 417 (“There is no
substitute for the impact on sentencing which a defendant’s own words might have if
he chooses to make a statement.” (alteration, internal quotation marks, and citation

31
omitted)). 	Implicit in the Tomlinson holding is the recognition that if a defendant
chooses to speak, the sentencing court must consider his statement before imposing
a sentence. See id.
{43} 	In Juan, the district court reasoned that, because one-third of a life sentence
could not be calculated, a life sentence could not be altered under Section 31-18-15.1.
Juan, 2010-NMSC-041, ¶ 35. 	“Thus, the [district] court did not consider any
mitigating evidence and imposed a life sentence, stating that its ‘hands were tied.’ ”
Id. (alteration omitted). On appeal, the New Mexico Supreme Court determined that
the district court misconstrued Section 31-18-15.1 and held that its failure to consider
mitigating evidence was improper. Juan, 2010-NMSC-041, ¶¶ 39, 43. In that case,
the district court’s misapprehension of the law as to his ability to mitigate was error;
the result of the error was that mitigating factors were not considered. 	The Court
concluded that the district court “improperly failed to consider mitigating evidence at
[the d]efendant’s sentencing hearing pursuant to Sections 31-18-15 and 31-18-15.1.”
Juan, 2010-NMSC-041, ¶ 43; accord State v. Wilson, 2001-NMCA-032, ¶ 15, 130
N.M. 319, 24 P.3d 351 (stating that a sentencing “hearing is mandatory in all cases
and a sentencing court is required to consider . . . mitigating circumstances before
imposing any felony sentence”), overruled on other grounds by State v. Frawley,
2007-NMSC-057, 143 N.M. 7, 172 P.3d 144; Ayala, 2006-NMCA-088, ¶ 6 (“A

32
district court must hold a sentencing hearing to determine the existence of mitigating
or aggravating circumstances.”) (internal quotation marks and citation omitted); cf.
State v. Aragon, 2009-NMCA-102, ¶ 21, 147 N.M. 26, 216 P.3d 276 (holding that
even in the absence of a formal motion, the fact that the judge was aware of the
potentially mitigating factors when sentencing the defendant was sufficient to
eliminate prejudice where the defendant argued ineffective assistance of counsel).
{44} 	Here, the district court’s statements at the hearings suggest that he did not
consider mitigating evidence. See State v. Bonilla, 2000-NMSC-037, ¶ 11, 130 N.M.
1, 15 P.3d 491 (rejecting the State’s argument that, because the defendant received a
sentence within the statutory guidelines, the sentence was “per se non-violative of a
defendant’s 	rights” 	and 	considering 	the 	judge’s 	statements 	at 	the 	hearing).
Specifically, his statements that he “didn’t even really look at the mitigation statutes,
haven’t seen a formal request for mitigation[,]” and “I don’t have any discretion in
count one, it’s an eighteen-year mandatory sentence, I don’t have any discretion in
that count at all[,]” suggest that either he believed a formal motion was required to
trigger exercise of that authority or he did not believe he had statutory authority to
reduce the sentence. 	As the State points out, the district court judge granted a
continuance of the sentencing hearing to allow defense counsel to file a motion and
it is unlikely that he would have done so “if he believed he lacked authority to act on

33
the motion.” 	When considered in light of the district court’s later statements,
however, this circumstance indicates that the judge felt that a motion by defense
counsel was required.
{45} 	The district court has an obligation to consider mitigating factors in sentencing.
Failure to do so, whether based on a misapprehension of the authority given by statute
or a belief that a formal motion is required, is an abuse of discretion. We conclude
that the district court here did not consider mitigating circumstances and, therefore,
remand for resentencing. To be clear, our holding is not a comment on the length of
the sentence. “Defendant is entitled to no more than a sentence prescribed by law,”
State v. Cumpton, 2000-NMCA-033, ¶ 12, 129 N.M. 47, 1 P.3d 429, and there is no
abuse of discretion when mitigating circumstances are considered and rejected. Our
holding is limited to Section 31-18-15.1’s requirement that the district court consider
mitigating circumstances in sentencing.
CONCLUSION
{46} 	We affirm Defendant’s convictions and remand for resentencing consistent with
this Opinion.
{47} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

LINDA M. VANZI, Judge