State v. Torres

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:

3 Filing Date: October 3, 2022

4 NO. S-1-SC-38484

5 STATE OF NEW MEXICO,

6 Plaintiff-Petitioner,

7 v.

8 GERARDO TORRES,

9 Defendant-Respondent,

10 and

11 STATE OF NEW MEXICO,

12 Plaintiff-Petitioner,

13 v.

14 KENDALE HENDRIX,

15 Defendant-Respondent,

16 CONSOLIDATED WITH

17 NO. S-1-SC-38546

18 STATE OF NEW MEXICO,

19 Plaintiff-Petitioner,
1 v.

2 SKEETER W. CHADWICK,

3 Defendant-Respondent.

4 ORIGINAL PROCEEDING ON CERTIORARI
5 Steven Blankinship, District Judge

6 Hector H. Balderas, Attorney General
7 Benjamin L. Lammons, Assistant Attorney General
8 Santa Fe, NM

9 for Petitioner

10 Bennett J. Baur, Chief Public Defender
11 Victor E. Sanchez, Jr., Assistant Appellate Defender
12 Caitlin C.M. Smith, Associate Appellate Defender
13 Santa Fe, NM

14 for Respondents Gerardo Torres and Kendale Hendrix

15 Gary C. Mitchell, P.C.
16 Gary C. Mitchell
17 Ruidoso, NM

18 for Respondent Skeeter W. Chadwick
1 OPINION

2 THOMSON, Justice.

3 INTRODUCTION

4 {1} In this consolidated matter, Defendants Gerardo Torres, Kendale Hendrix, and

5 Skeeter Chadwick challenge their indictments under double-jeopardy principles,

6 standing accused of stealing several head of cattle from ranches in Otero County.

7 The State charged each Defendant with one count of livestock larceny per animal

8 allegedly stolen, resulting in multiple-count criminal informations. Prior to trial,

9 Defendants filed motions to merge or dismiss the multiple charges, asserting that

10 they instead may only be prosecuted for each episode of theft. The Twelfth Judicial

11 District Court agreed with Defendants and dismissed the charges that it determined

12 to be multiplicitous. On interlocutory appeals by the State, the Court of Appeals

13 affirmed the orders of the district court in all three cases. State v. Torres, 2021-

14 NMCA-045, ¶ 29, 495 P.3d 1141 (affirming in both Torres and Hendrix); State v.

15 Chadwick, A-1-CA-38561, mem. op. ¶ 5 (N.M. Ct. App., Sept. 30, 2020)

16 (nonprecedential). The State petitioned for certiorari, and we granted review and

17 consolidated the appeals.

18 {2} We affirm the Court of Appeals conclusion that the livestock larceny statute,

19 NMSA 1978, § 30-16-1(G) (2006), does not express an intent to prosecute
1 Defendants for an alleged larceny of each animal. Torres, 2021-NMCA-045, ¶ 21.

2 However, we reach this result through a different path and write to explain our

3 reasoning. In particular, we rely on the two-step analysis developed by this Court in

4 Herron v. State, 1991-NMSC-012, ¶¶ 6, 15, 111 N.M. 357, 805 P.2d 624, which

5 provides framework for construing the unit of prosecution of a statute applied to

6 multiple counts charged against a defendant. Using Herron, we ascertain that the

7 Legislature has not expressed an intent to authorize multiple punishments for

8 livestock larceny, § 30-16-1(G), based on the theft of multiple animals. We construe

9 the statute as instead expressing an intent to prosecute Defendants for each episode

10 of theft. We remand for further proceedings.

11 BACKGROUND

12 {3} Because each Defendant challenged the multiple counts of livestock larceny

13 in his indictment prior to conviction as violative of the Double Jeopardy Clause, we

14 consider whether the indictment of each was multiplicitous, which is “the charging

15 of a single offense in several counts.” State v. Lente, 2019-NMSC-020, ¶ 25, 453

16 P.3d 416 (internal quotation marks and citation omitted); see Herron, 1991-NMSC-

17 012, ¶ 6 n.4 (“We use the term ‘multiplicity’ to describe the situation when an

18 indictment charges a single offense in different counts.”). Our analysis draws factual

19 background from affidavits and grand jury testimony supporting each indictment.

2
1 A. Factual Background

2 {4} In July 2017, an operations manager at Crossroads Cattle Company’s ranch in

3 Otero County was branding calves in the ranch’s Wimberly pasture. The operations

4 manager noticed a significant discrepancy between the number of calves expected

5 in the pasture and the number of calves branded. Suspicions arose that some calves

6 had been stolen because the pasture was remote and situated in such a way as to

7 make cattle easily amenable to undetected theft. Another ranch hand later informed

8 the operations manager that he had helped Defendant Torres round up calves from

9 the pasture and may have unwittingly assisted in the theft. Defendant Torres later

10 confessed to stealing thirteen head of cattle from the ranch. Records from a Texas

11 livestock auction house showed that Defendant Torres sold eighteen calves at the

12 auction house on two occasions, in January 2017 and March 2017. The State charged

13 Defendant Torres with eighteen counts of livestock larceny, one for each animal.

14 {5} In a factually unrelated incident, Defendants Hendrix and Chadwick allegedly

15 rustled twenty-five unbranded calves from Defendant Chadwick’s employer, the

16 Ganada Cattle Company. The theft was discovered in August 2018 when an off-duty

17 livestock inspector observed Defendant Hendrix’s truck hauling cattle near

18 Carlsbad. The inspector recognized a distinctive mark on the side of the truck and

19 observed two occupants, later identified as Defendants Hendrix and Chadwick. The

3
1 inspector was suspicious that the cattle had been stolen because they had not been

2 inspected prior to shipment, as required by law. See NMSA 1978, § 77-9-30 (1999).

3 The inspector contacted an area supervisor from the New Mexico Livestock Board

4 and reported the suspected theft.

5 {6} The Livestock Board investigator determined that Defendants were probably

6 hauling the cattle to an auction house near San Angelo, Texas. The area supervisor

7 alerted Texas Rangers to a possible theft, and the Rangers confiscated twenty-four

8 calves from Defendants Chadwick and Hendrix upon their arrival at the auction

9 house. Another calf was too ill to be unloaded from the trailer. This calf was later

10 euthanized, and Defendant Hendrix disposed of its carcass. The Livestock Board

11 area supervisor confirmed that all twenty-five calves had been stolen from the

12 Ganada ranch and that the calves were taken from a herd that had been quarantined

13 to prevent the spread of a livestock disease. The State charged Defendants Chadwick

14 and Hendrix with twenty-five counts of livestock larceny, one count for each head.

15 B. Procedural History

16 {7} Prior to trial, each of the three Defendants filed motions to merge the multiple

17 livestock larceny charges in their respective cases, arguing that their charges should

18 be merged under the common-law single-larceny doctrine or double-jeopardy

19 principles. The Twelfth Judicial District Court granted each of these motions,

4
1 reducing Defendant Torres’s eighteen livestock larceny charges to two counts and

2 Defendant Chadwick’s and Defendant Hendrix’s twenty-five livestock larceny

3 charges each to one count each.

4 {8} On appeal, the Court of Appeals affirmed the district court’s orders in the

5 proceedings against Defendant Torres and Defendant Hendrix, also concluding that

6 these Defendants could not be punished for each animal stolen during a single

7 episode of theft.1 Torres, 2021-NMCA-045, ¶¶ 28-29. The Court of Appeals

8 reasoned that Section 30-16-1(G) was ambiguous and that the statute’s unit of

9 prosecution could not be ascertained under Herron’s unit-of-prosecution framework.

10 Id. ¶ 13. Stepping outside of the Herron framework, the Court of Appeals relied on

11 the common-law rule known as the single-larceny doctrine, stating that “[w]hen we

12 apply the single-larceny doctrine to interpret the unit of prosecution in the larceny

13 of livestock provision, it clarifies that a taking of multiple head of cattle at the same

14 time and place (single transaction), or a series of takings from a single owner with a

15 single criminal intent (single intent), constitute[s] but one larceny” and holding that

16 Defendants Torres and Hendrix could be prosecuted for each episode of

1
The Court of Appeals memorandum opinion in Chadwick, A-1-CA-38561,
mem. op. ¶ 4, affirmed the merger of Defendant Chadwick’s charges under its
reasoning in Torres, 2021-NMCA-045.

5
1 theft⸻respectively, two episodes for Defendant Torres and one for Defendant

2 Hendrix. Id. ¶¶ 27-28.

3 {9} The State petitioned for certiorari review. We granted the petitions and

4 consolidated all three proceedings for review.

5 STANDARD OF REVIEW

6 {10} The United States and New Mexico Constitutions provide that an individual

7 shall not “be twice put in jeopardy” for “the same offense.” U.S. Const. amend. V;

8 N.M. Const. art. II, § 15; see Benton v. Maryland, 395 U.S. 784, 794 (1969)

9 (concluding that the Due Process Clause of the Fourteenth Amendment makes the

10 double-jeopardy protections of the Fifth Amendment applicable to the states). We

11 have explained that “[t]he double jeopardy clause . . . affords three levels of

12 protection to a criminal defendant” in that (1) “[i]t protects against a second

13 prosecution for the same offense after acquittal,” (2) “[i]t protects against a second

14 prosecution for the same offense after conviction,” and (3) “it protects against

15 multiple punishments for the same offense.” State v. Gallegos, 2011-NMSC-027, ¶

16 30, 149 N.M. 704, 254 P.3d 655.

17 {11} In this appeal, Defendants focus on the double-jeopardy protection against

18 multiple punishments for the same offense. See Swafford v. State, 1991-NMSC-043,

19 ¶ 8, 112 N.M. 3, 810 P.2d 1223 (“The pivotal question in multiple punishment cases

6
1 is whether the defendant is being punished twice for the same offense.”). Although

2 this question is one of constitutional dimension, we must ultimately inquire into

3 legislative intent, because “in the multiple punishment context, the Double Jeopardy

4 Clause does no more than prevent the sentencing court from prescribing greater

5 punishment than the legislature intended.” Id. ¶ 7 (brackets, internal quotation

6 marks, and citation omitted).

7 {12} “Multiple punishment problems can arise from both ‘double-description’

8 claims, in which a single act results in multiple charges under different criminal

9 statutes, and ‘unit-of-prosecution’ claims, in which an individual is convicted of

10 multiple violations of the same criminal statute.” State v. Bernal, 2006-NMSC-050,

11 ¶ 7, 140 N.M. 644, 146 P.3d 289 (citation omitted). Defendants stand accused of

12 multiple counts of livestock larceny, so we here consider the intended unit of

13 prosecution of Section 30-16-1(G). See Swafford, 1991-NMSC-043, ¶ 8 (explaining

14 that “unit of prosecution” challenges are appropriate when “the defendant has been

15 charged with multiple violations of a single statute based on a single course of

16 conduct”). In a unit-of-prosecution case, “the relevant inquiry . . . is whether the

17 legislature intended punishment for the [defendant’s] entire course of conduct or for

18 each discrete act.” Id. “This analysis requires courts to determine the unit of

19 prosecution intended by the Legislature by employing a two-part test, both parts of

7
1 which are concerned with legislative intent.” State v. Swick, 2012-NMSC-018, ¶ 33,

2 279 P.3d 747. We review this question of law de novo. State v. Olsson, 2014-NMSC-

3 012, ¶ 14, 324 P.3d 1230.

4 DISCUSSION
5 A. We Construe the Unit of Prosecution of a Statute Using Herron’s Two-
6 Step Framework

7 {13} In Herron, this Court elucidated a two-step framework for analyzing questions

8 regarding the intended unit of prosecution of a criminal statute. 1991-NMSC-012,

9 ¶¶ 6, 15. Both steps of our Herron analysis focus on discerning “whether a defendant

10 has received more punishments than the number of punishments that the Legislature

11 intended to authorize under the facts and circumstances of the case.” State v. Benally,

12 2021-NMSC-027, ¶ 12, 493 P.3d 366. Thus, “[w]e are mindful that both stages of

13 the unit of prosecution analysis turn on legislative intent.” Gallegos, 2011-NMSC-

14 027, ¶ 32. We first briefly outline these two steps and then apply them to this statute.

15 1. Step one: construing the statutory offense
16 {14} Under the first step of the Herron framework, the Court examines the charging

17 statute for the intended unit of prosecution or, in other words, construes the statutory

18 language “to determine what conduct the Legislature has defined as a statutory

19 offense.” Benally, 2021-NMSC-027, ¶ 13 (brackets, internal quotation marks, and

20 citation omitted). In construing the intended unit of prosecution of a statute, the

8
1 Court considers “all markers of legislative intent . . . including the wording,

2 structure, legislative history, legislative purpose, and quantum of punishment

3 prescribed under the statutory scheme.” Id. If the Court determines that the statute

4 defines the unit of prosecution, “then the [C]ourt follows that language and the

5 inquiry is complete.” Olsson, 2014-NMSC-012, ¶ 18.

6 {15} If, after consideration of the applicable canons of construction, the Court is

7 still unable to construe the intended unit of prosecution, then the Court applies the

8 rule of lenity and resolves the ambiguity in favor of the defendant. Swafford, 1991-

9 NMSC-043, ¶ 34 (“Unless an intent to punish separately can be found through

10 application of the canons of construction . . . , lenity is indicated, and in that event,

11 it is to be presumed the legislature did not intend pyramiding punishments for the

12 same offense.”). The rule of lenity essentially recognizes that a criminal defendant

13 should be given “fair warning” as to what conduct is prohibited and as to what level

14 of punishment will be accorded to that prohibited conduct. State v. Santillanes, 2001-

15 NMSC-018, ¶ 34, 130 N.M. 464, 27 P.3d 456 (“[I]n the context of assessing a

16 legislative intent to create multiple punishments, the application of the rule of lenity

17 is consistent with the rule’s purposes of ensuring that criminal statutes will provide

18 fair warning concerning conduct rendered illegal.” (brackets, internal quotation

19 marks, and citation omitted)). However, “we will construe a statute in favor of a

9
1 defendant only when a reasonable doubt persists about a statute’s intended unit of

2 prosecution even after resort to the statute’s wording, structure, legislative history,

3 legislative purpose, and the quantum of punishment prescribed.” Benally, 2021-

4 NMSC-027, ¶ 15 (internal quotation marks and citation omitted). This is because

5 “the meaning of language is inherently contextual,” and thus a “court should rely on

6 lenity only if, after seizing everything from which aid can be derived, it is left with

7 an ambiguous statute.” State v. Edmondson, 1991-NMCA-069, ¶ 12, 112 N.M. 654,

8 818 P.2d 855 (brackets and internal quotation marks omitted) (quoting Moskal v.

9 United States, 498 U.S. 103, 108 (1990)). If lenity is warranted, we will “presume

10 that the Legislature did not intend to separately punish discrete acts in a defendant’s

11 course of conduct absent proof that each act was in some sense distinct from the

12 others.” Benally, 2021-NMSC-027, ¶ 16 (brackets, ellipsis, internal quotation marks,

13 and citation omitted).

14 2. Step two: indicia of distinctness

15 {16} The second step of the unit-of-prosecution framework analyzes the indicia of

16 distinctness in light of the facts and circumstances of the case. See Herron, 1991-

17 NMSC-012, ¶ 15; State v. Ramirez, 2018-NMSC-003, ¶ 56, 409 P.3d 902. This

18 inquiry considers whether a defendant’s course of conduct gives rise to a single,

19 “same statutory offense” or whether the defendant’s acts were distinct as to give rise

10
1 to multiple statutory offenses. See Benally, 2021-NMSC-027, ¶¶ 17, 23 (“[I]f we can

2 reasonably infer that a defendant’s acts were distinct under the applicable indicia of

3 distinctness, then we will presume that the defendant has not received more

4 punishments than were statutorily authorized.”); see also Swafford, 1991-NMSC-

5 043, ¶ 26 (“Clearly, if the defendant commits two discrete acts violative of the same

6 statutory offense but separated by sufficient indicia of distinctness, then a court may

7 impose separate, consecutive punishments for each offense.”). Because the Court

8 must be “mindful that both stages of the unit of prosecution analysis turn on

9 legislative intent,” our analysis of the indicia of distinctness is also “guided by the

10 statute at issue, including its language, history, and purpose, as well as the quantum

11 of punishment that is prescribed.” Gallegos, 2011-NMSC-027, ¶¶ 32-33. Thus, “[i]n

12 examining the indicia of distinctness, courts may inquire as to the interests protected

13 by the criminal statute, since the ultimate goal is to determine whether the legislature

14 intended multiple punishments.” Bernal, 2006-NMSC-050, ¶ 14; see also Swafford,

15 1991-NMSC-043, ¶ 27 (“The conduct question depends to a large degree on the

16 elements of the charged offenses and the facts presented at trial.”). Deciding whether

17 a defendant’s acts were sufficiently distinct so as constitute separate offenses may

18 involve factual determinations resolved by a jury. Herron, 1991-NMSC-012, ¶ 16.

19 Whether the Legislature intended punishment for the entire course of conduct or for

11
1 each discrete act is a question of law subject to de novo review. See, e.g., Benally,

2 2021-NMSC-027, ¶ 11 (indicating that Benally was “a unit of prosecution case

3 where the relevant inquiry” was “whether the Legislature intended punishment for

4 the entire course of conduct or for each discrete act. We review this question de

5 novo.” (brackets, internal quotation marks, and citations omitted)). Under this

6 standard, we consider whether, on the facts herein, each Defendant’s multiple

7 charges violate double jeopardy.

8 {17} If, after analysis of a defendant’s conduct under the indicia of distinctness, the

9 Court “can reasonably infer that a defendant’s acts were distinct” offenses of the

10 statute, “then we will presume that the defendant has not received more punishments

11 than were statutorily authorized.” Id. ¶ 23.; see also State v. Morro, 1999-NMCA-

12 118, ¶ 10, 127 N.M. 763, 987 P.2d 420 (describing the indicia of distinctness as a

13 “presumption” of legislative intent “that a defendant can be prosecuted for two

14 separate offenses if the defendant’s acts are ‘separated by sufficient indicia of

15 distinctness’” (citation omitted)). If, however, the defendant’s acts did not

16 reasonably give rise to multiple distinct offenses of the statute, then the Court

17 presumes that the Legislature did not authorize multiple punishments. See Herron,

18 1991-NMSC-012, ¶¶ 21-22; see also Bernal, 2006-NMSC-050, ¶ 14 (“If the acts are

19 not sufficiently distinct, then the rule of lenity mandates an interpretation that the

12
1 legislature did not intend multiple punishments, and a defendant cannot be punished

2 for multiple crimes.”).

3 B. Section 30-16-1(G) Does Not Authorize Multiple Punishments Based on
4 the Number of Animals Stolen in a Single Episode

5 {18} Applying the first step of our Herron framework, we hold that Section 30-16-

6 1(G) does not express an intent to prosecute Defendants for each animal they have

7 allegedly stolen; instead, the statute expresses an intent to prosecute Defendants for

8 each episode of theft.

9 1. Statutory language

10 {19} We begin with an analysis of the statutory language as the “primary indicator

11 of legislative intent.” Olsson, 2014-NMSC-012, ¶ 18. New Mexico’s larceny statute

12 defines larceny as “the stealing of anything of value that belongs to another.” Section

13 30-16-1(A). Subsection (G), the subsection with which we are primarily concerned,

14 provides, “Whoever commits larceny when the property of value stolen is livestock

15 is guilty of a third degree felony regardless of its value.” Section 30-16-1(G).

16 {20} The parties advocate for vastly different readings of this language. They

17 primarily center their dispute on the word livestock, with each party suggesting that

18 the word supports the party’s proffered unit of prosecution. The Court of Appeals

19 concluded that the word livestock could be “both singular and plural” and thus

20 “provide[d] no clear indication of a unit-of-prosecution.” Torres, 2021-NMCA-045,

13
1 ¶ 13 (internal quotation marks omitted) (quoting State v. Tidey, 2018-NMCA-014, ¶

2 10, 409 P.3d 1019). We disagree with the Court of Appeals conclusion that, because

3 the word livestock can be read as singular or plural, the wording of the statute

4 provides no clear indication of a unit of prosecution.

5 {21} The New Mexico Criminal Code does not define the term livestock.

6 Nevertheless, various other statutory provisions define livestock as referring to herds

7 or groups of domesticated animals. See, e.g., NMSA 1978, § 7-35-2(D) (2018) (“As

8 used in the Property Tax Code . . . ‘livestock’ means cattle, buffalo, horses, mules,

9 sheep, goats, swine, ratites and other domestic animals useful to humans.”); NMSA

10 1978, § 77-2-1.1(A) (2015) (“As used in the Livestock Code . . . ‘animals’ or

11 ‘livestock’ means all domestic or domesticated animals that are used or raised on a

12 farm or ranch, including the carcasses thereof, and exotic animals in captivity and

13 includes horses, asses, mules, cattle, sheep, goats, swine, bison, poultry, ostriches,

14 emus, rheas, camelids and farmed cervidae upon any land in New Mexico.”); NMSA

15 1978, § 77-1B-2(K) (2017, repealed effective July 1, 2024) (“‘[L]ivestock’ means

16 all domestic or domesticated animals that are used or raised on a farm or ranch and

17 exotic animals in captivity and includes horses, asses, mules, cattle, sheep, goats,

18 swine, bison, poultry, ostriches, emus, rheas, camelids and farmed cervidae but does

19 not include canine or feline animals.”); NMSA 1978, § 77-16-2 (1977)

14
1 (“‘[L]ivestock’ shall include domestic animals such as cattle, horses, sheep, hogs,

2 goats and buffaloes.”). In ordinary usage, livestock is a noncount or mass noun,

3 which is neither singular nor plural, but describes an “aggregation” which is “taken

4 as an indeterminate whole.”2 Bryan A. Garner, The Chicago Guide to Grammar,

5 Usage, and Punctuation 22 (2016). Thus, we understand livestock to refer either to

6 a single animal or to multiple animals in indeterminate numbers.

7 {22} In contrast to the Court of Appeals, we do not conclude that this indeterminacy

8 renders the statutory language ambiguous. As a general principle, the use of singular

9 or plural language in a criminal statute may, in some circumstances, clarify the

10 intended unit of prosecution. See, e.g., Ramirez, 2018-NMSC-003, ¶¶ 52-53 (“It is

11 well established . . . that where a statute prohibits the doing of some act to a victim

12 specified by a singular noun, ‘a person’ for example, then ‘the person’ is the unit of

13 prosecution.”). However, the use of singular or plural language is not always

2
It also should be noted that “[m]any nouns can be both count . . . and mass
. . . depending on the sense.” Bryan A. Garner, Garner’s Modern English Usage,
227 (4th ed. 2016). Indeed, the Oxford Dictionary identifies “livestock” as either a
mass or a plural noun. Livestock, Oxford Advanced American Dictionary,
https://www.oxfordlearnersdictionaries.com/us/definition/american_english/livesto
ck (last visited Sept. 20, 2022) (“noun (uncountable, plural)”); see also Livestock,
Black’s Law Dictionary (11th ed. 2019) (defining “livestock” in the plural as “n.
(18c) Farm animals; specif., domestic animals and fowls . . . .”). Thus, the term
livestock is potentially either a mass noun or a plural noun, depending on use. Either
usage suggests that the Legislature did not intend to authorize multiple punishments
based on the number of animals stolen.

15
1 dispositive as to legislative intent. See, e.g., NMSA 1978, § 12-2A-5(A) (1997)

2 (“Use of the singular number includes the plural, and use of the plural number

3 includes the singular.”). We view this canon as relevant here. Specifically, the word

4 livestock, which is neither singular nor plural, suggests that the Legislature did not

5 contemplate a unit of prosecution based on the count or number of animals stolen in

6 a single episode of theft.

7 {23} The language of the livestock larceny statute supports this reading. The statute

8 punishes the larceny of livestock as “a third degree felony regardless of its value.”

9 Section 30-16-1(G) (emphasis added). This contrasts with the portion of the larceny

10 statute addressing the theft of generic property, which provides for “gradations of

11 punishment based on the monetary value of the property.” State v. Alvarez-Lopez,

12 2004-NMSC-030, ¶ 41, 136 N.M. 309, 98 P.3d 699; see also State v. Graves, 1915-

13 NMSC-076, ¶ 7, 21 N.M. 556, 157 P. 160 (concluding that an 1884 statute

14 prohibiting the larceny of livestock was not impliedly repealed by an 1891 act

15 addressing general larceny, explaining that livestock larceny is “an act in special

16 form, enacted for the particular protection of livestock, while the other was a general

17 act defining the punishment of larceny, graded according to the value of the property

18 stolen”). Subsections (B) through (F) of the larceny statute address the theft of

19 generic property, with gradations of punishment accorded in relation to the value of

16
1 property stolen. Compare § 30-16-1(B) (punishing the larceny of property valued at

2 $250 or less as a petty misdemeanor), with § 30-16-1(F) (punishing the larceny of

3 property valued over $20,000 as a second-degree felony). See also State v. Alvarez-

4 Lopez, 2004-NMSC-030, ¶ 41, (discussing the structure of the larceny statute).

5 Subsection (H) punishes, as a fourth-degree felony, the theft of the specific property

6 of a firearm valued less than $2,500. Section 30-16-1(H). The Legislature’s choice

7 to punish the livestock larceny “regardless of its value” suggests that neither the

8 potential market value of the property stolen nor, by logical extension, the number

9 of animals stolen is relevant to prosecution under Section 30-16-1(G). As it stands,

10 the language of the statute does not draw divisions based on number.

11 {24} In short, the State’s suggested per-animal unit of prosecution is neither

12 supported nor contemplated by the statutory language, and we will not construe

13 Section 30-16-1(G) as meting out punishment for each animal stolen when the

14 statute contemplates prosecution for the theft of anywhere from a single animal to

15 an entire herd. Cf. Swick, 2012-NMSC-018, ¶ 35 (refusing the state’s asserted unit

16 of prosecution of the aggravated burglary statute because the state’s “contentions are

17 not supported or contemplated by the statute and we therefore decline to divide one

18 offense into separate means used to accomplish the ultimate goal”). Although the

19 unit of prosecution under Section 30-16-1(G) is not immediately clear based on the

17
1 statutory language alone, what is clear is that it does not support a unit of prosecution

2 based on the number of animals stolen. Rather, we understand the language as

3 focusing prosecution on the prohibited act of larceny itself. See § 30-16-1(A), (G)

4 (“Larceny consists of the stealing of anything of value that belongs to another . . . [,

5 and w]hoever commits larceny when the property of value stolen is livestock is

6 guilty of a third degree felony regardless of its value.” (emphasis added)).

7 2. Legislative history

8 {25} Our reading of Section 30-16-1(G) as creating a unit of prosecution based on

9 an episode of theft is also supported by the history of the statute. Once the practice

10 of livestock raising gained foothold, the ownership and keeping of livestock became

11 of vital significance to many New Mexicans. See Carol Raish & Alice McSweeney,

12 Livestock Ranching and Traditional Culture in Northern New Mexico, 41 Nat. Res.

13 J. 713, 714-18 (2001). Even today, the ranching industry remains an economic

14 mainstay of the state. 3

3
See U.S. Dep’t of Agric., 2017 Census of Agriculture – New Mexico, Vol. 1,
Part 31, at 9, https://www.nass.usda.gov/Publications/AgCensus/2017/Full_Report/
Volume_1,_Chapter_1_State_Level/New_Mexico/nmv1.pdf (last visited Sept. 20,
2022) (reporting approximately $1.93 billion in market value of agricultural
products sold in the 2017 calendar year for New Mexico farms producing
“[l]ivestock, poultry, and their products”).

18
1 {26} Since the mid-nineteenth century, our territorial and state legislatures have

2 made special provision for the punishment of livestock larceny. 4 Throughout this

4
Multiple laws have been enacted to address various methods of unlawfully
taking livestock, such as by the driving away, selling, or butchering of the animal or
animals; but for laws specifically addressing the larceny of livestock, see Kearny
Code of Laws, Crimes and Punishments, Art. I, § 4 (1846) (“[A]ny person convicted
of stealing any horse, mare, gelding, mule, ass, sheep, hog or goat, shall be sentenced
to not more than seven, nor less than two years imprisonment at hard labor, or to
receive not more than one hundred nor less than twenty stripes well laid on his bare
back.”); Revised Laws of the Territory of New Mexico, Art. XXIII, Ch. LII, § 37
(1865) (punishing theft of a “horse, mare, colt, or filly, horsemule or maremule, ass
or jennet, bullock, cow or calf, sheep, goat or hog” with “not less than thirty lashes,
well laid on his bare back, nor more than sixty” and confinement “until the costs of
the prosecution are paid and the sentence fully complied with”); 1880 Gen. Laws of
New Mexico, Art. XXIII, Ch. LII, § 37 (1870) (“Every person who shall be
convicted of stealing a horse, mare, colt or filly, horsemule or maremule, ass or
jennet, bullock, cow or calf, sheep, goat or hog . . . shall be fined not less than ten
dollars nor more than five hundred dollars, or be imprisoned not less than one month
nor more than five years, or both, in the discretion of the court.”); 1884 Compiled
Laws of New Mexico, Title II, Ch. 1, § 68 (punishing the stealing of “any neat cattle,
horse, mule, sheep, goat, swine, or ass” with one to five years imprisonment and a
fine of $500 to $5,000); 1884 Compiled Laws of New Mexico, Title II, Ch. 1, § 69
(explaining that “[a]ll cases which are by this act declared to be larceny, and in all
cases of felonious taking . . . of any animal or animals herein referred to, the same
shall be deemed . . . grand larceny” which is punished by imprisonment for one to
ten years, “notwithstanding the value of such animal or animals may be less than
twenty dollars”). The 1884 livestock larceny statutes persisted in essentially the
same form until 1963. See 1897 Compiled Laws of New Mexico, Title II, Ch. 1, §§
79-80; NMSA 1915, Ch. XXVI, Art. XX, §§ 1613-14; NMSA 1929, Ch. 35, Art. 24,
§§ 35-2405 to -2406; NMSA 1941, Ch. 41, Art. 4, §§ 41-419 to -420; NMSA 1953,
§§ 40-4-17 to -18 (repealed 1963); NMSA 1953, § 40A-16-1 (1963) (Vol. 6, Repl.
1964) (“Whoever commits larceny when the thing of value stolen is livestock is
guilty of a third degree felony regardless of its value.”).

19
1 time, “New Mexico has consistently treated the larceny of livestock differently from

2 the larceny of other things, in that the punishment for the larceny of livestock has

3 never depended upon the value of the particular animal stolen.” State v. Pacheco,

4 1969-NMCA-127, ¶ 12, 81 N.M. 97, 463 P.2d 521; see also State v. Lucero, 1913-

5 NMSC-011, ¶ 3, 17 N.M. 484, 131 P. 491 (recognizing that “value is not material”

6 in a prosecution for livestock larceny). This special treatment has been accorded to

7 the crime of livestock larceny in order “to protect the ownership of a certain class of

8 property.” Pacheco, 1969-NMCA-127, ¶¶ 12, 15 (internal quotation marks and

9 citation omitted). As such, laws prohibiting the larceny of livestock often operated

10 as part of comprehensive regulatory schemes designed to protect the owners and

11 keepers of livestock and New Mexico’s ranching industry. See id.; 1897 Compiled

12 Laws of New Mexico, Title II, §§ 64-240 (setting forth the New Mexico “Animals”

13 code, of which the 1884 livestock larceny statutes were a part).

14 {27} The livestock larceny statute was amended to its present form in 1963, with

15 the most notable changes being the substitution of the word livestock for the former

16 statutory listings of the “animal or animals,” NMSA 1953, §§ 40-4-17, -18, and the

17 incorporation of the crime as a subsection of the larceny statute under the revised

18 Criminal Code. 1963 N.M. Laws, Ch. 303, § 16-1; NMSA 1953, § 40A-16-1 (1963)

19 (Vol. 6, Repl. 1964). By 1963, technological advancements had transformed the

20
1 historic crime of livestock larceny in that the wider availability of motorized vehicles

2 and trailers enabled the theft of a greater number of animals in a single episode of

3 theft. Yet, we understand that many of the policies that motivated our territorial and

4 early state legislatures in punishing livestock larceny also likely motivated our 1963

5 Legislature in enacting what is now Section 30-16-1(G). Cf. Pacheco, 1969-NMCA-

6 127, ¶ 15 (quoting Wilburn v. Territory, 1900-NMSC-028, ¶ 7, 10 N.M. 402, 62 P.

7 968 (describing, as the purpose of laws prohibiting livestock larceny, to protect the

8 industry of stock raising), overruled on other grounds as recognized by State v.

9 Smith, 1915-NMSC-085, ¶ 6, 21 N.M. 173, 153 P. 256).

10 {28} In the first years of statehood, this Court considered a question of duplicity

11 under the 1884 livestock larceny statutes. State v. Klasner, 1914-NMSC-015, ¶¶ 1-

12 5, 19 N.M. 474, 145 P. 679. Duplicity is a question that is corollary to the question

13 of multiplicity that we consider here. See Herron, 1991-NMSC-012, ¶ 6 n.4 (“We

14 use the term ‘multiplicity’ to describe the situation when an indictment charges a

15 single offense in different counts.”); 41 Am. Jur. 2d, Indictments and Informations

16 § 198 (2015) (“A duplicitous count of an indictment or information joins two or

17 more distinct and separate offenses in the same count.”). The defendant in Klasner

18 was charged with taking the animals “at the same time and place.” Klasner, 1914-

19 NMSC-015, ¶ 2. This Court concluded that an indictment charging the defendant in

21
1 one count with stealing several head of cattle from multiple owners was not faulty

2 due to duplicity. Id. ¶ 5. The Court held that the taking of multiple animals from

3 multiple owners at one time was “but a single act or transaction in violation of the

4 law against larceny,” and thus the indictment could be said to allege “but a single

5 offense.” Id. ¶¶ 3, 5 (internal quotation marks and citation omitted).

6 {29} As a basis for its holding, Klasner applied the same doctrine applied by the

7 Court of Appeals in this case: the single-larceny doctrine. Id. ¶¶ 3-5. The single-

8 larceny doctrine was expressly adopted by this Court in State v. Allen, 1955-NMSC-

9 015, ¶¶ 4-7, 59 N.M. 139, 280 P.2d 298. It counsels, “when several articles of

10 property are stolen by the defendant from the same owner at the same time and at

11 the same place, only one larceny is committed.” State v. Rowell, 1995-NMSC-079,

12 ¶ 15, 121 N.M. 111, 908 P.2d 1379 (brackets and internal quotation marks omitted)

13 (quoting 3 Charles E. Torcia, Wharton’s Criminal Law § 358 (14th ed. 1980)). The

14 doctrine is justified by the rationale that “there has been but one transaction” or “but

15 one criminal intent” in the act of theft. State v. Boeglin, 1977-NMCA-004, ¶¶ 7-8,

16 90 N.M. 93, 559 P.2d 1220; see also 50 Am. Jur. 2d, Larceny § 4 (2017) (“The

17 rationale behind the rule is that the taking of several articles at the same time from

18 the same place is pursuant to a single intent and design and is part of a single scheme

19 or continuing course of conduct.” (footnote omitted)). In the multiple-punishment

22
1 context this doctrine is best explained by the analogy, as “a theft of one thousand

2 dollars is one theft and not a thousand thefts, and the defendant can be prosecuted

3 only once for the offense.” Boeglin, 1977-NMCA-004, ¶ 9.

4 {30} In the opinion now under review, the Court of Appeals relied on the single-

5 larceny doctrine to resolve what it perceived to be a stalemate in its Herron analysis.

6 Torres, 2021-NMCA-045, ¶¶ 22-28. We disagree with that reasoning, as we do not

7 view the doctrine as providing an alternative to Herron’s unit-of-prosecution

8 framework. Cf. State v. Bernard, 2015-NMCA-089, ¶ 21, 355 P.3d 831 (“We decline

9 to extend the single-larceny doctrine to this case. Even though our courts have

10 recognized the validity of the single-larceny doctrine, we see no indication that the

11 doctrine supersedes the well-established two-step legislative intent inquiry in a unit

12 of prosecution case.” (citation omitted)).

13 {31} We again emphasize that “the relevant inquiry” in a unit-of-prosecution

14 analysis “is whether the legislature intended punishment for the entire course of

15 conduct or for each discrete act.” Swafford, 1991-NMSC-043, ¶ 8. We have

16 explained that “the [single-larceny] doctrine is a canon of construction used when

17 the Legislature’s intent regarding multiple punishments is ambiguous.” Alvarez-

18 Lopez, 2004-NMSC-030, ¶ 43. However, we will not apply the single-larceny

19 doctrine if legislative intent is unambiguous, id., or if the doctrine appears contrary

23
1 to legislative intent. See Rowell, 1995-NMSC-079, ¶¶ 15-20 (noting that the

2 Legislature worked to restrict the application of the single-larceny doctrine to

3 embezzlement cases after State v. Brooks, 1994-NMSC-062, 117 N.M. 751, 877

4 P.2d 557, and declining incidentally to extend the doctrine to attempted fraud under

5 the Computer Crimes Act); see also State v. Boergadine, 2005-NMCA-028, ¶ 29,

6 137 N.M. 92, 107 P.3d 532 (declining to extend the single-larceny doctrine to fraud

7 pursuant to legislative outcomes of Brooks). The single-larceny doctrine may at

8 times appear redundant to the unit-of-prosecution analysis. See State v. Brown, 1992-

9 NMCA-028, ¶ 13, 113 N.M. 631, 830 P.2d 183 (analyzing the unit of prosecution of

10 generic larceny under the Herron framework and noting that “had we applied [the

11 single-larceny doctrine] rather than Herron, we would have reached the same

12 result”). Nevertheless, resort to the single-larceny doctrine in lieu of full

13 consideration of legislative intent under Herron’s framework may lead to

14 inconsistency in results. Cf. Morro, 1999-NMCA-118, ¶ 22 (noting potential

15 inconsistency between the unit-of-prosecution analysis and the single-larceny

16 doctrine because “[t]he single-larceny doctrine is a departure from the general rule

17 that multiple charges are appropriate when there are multiple victims”). We thus

18 disavow the single-larceny doctrine as a separate basis for our decision.

19 {32} We acknowledge that the single-larceny doctrine remains useful in a

24
1 legislative-intent analysis insofar as it informs our historical understanding of the

2 livestock larceny statute. Cf. Morro, 1999-NMCA-118, ¶ 23 (“When there is a long

3 history regarding the unit of prosecution under a particular statute, as there is with

4 the single-larceny doctrine, then principles of stare decisis in statutory interpretation

5 argue strongly for continuing that interpretation, even when the tools—that is,

6 canons—of statutory interpretation have evolved with respect to analyzing the

7 question.”). Applied in this way, the doctrine suggests that the Legislature was aware

8 that the theft of multiple head of cattle at the same time and in the same place has

9 been construed to give rise to a single offense. Klasner, 1914-NMSC-015, ¶¶ 1-5;

10 see also NMSA 1978, § 12-2A-20(B)(2) (1997) (identifying as an aid to statutory

11 construction “a judicial construction of the same or similar statute or rule of this or

12 another state”). Given the construction long accorded to the crime of livestock

13 larceny, the Legislature could have defined a different unit of prosecution when it

14 promulgated Section 30-16-1(G). Cf. NMSA 1915, §§ 1624, 1625 (1897)

15 (prohibiting the detaining of another person’s cattle for purposes of milking and

16 providing that “[t]he taking up and detention of each and every cow or calf . . . shall

17 constitute a separate offense”). But the Legislature did not do so. We therefore view

18 Klasner and the history of Section 30-16-1(G) as supporting our conclusion that the

19 Legislature did not intend a unit of prosecution based on the number of animals

25
1 stolen in an episode of theft.

2 3. Legislative purpose

3 {33} In Wilburn, 1900-NMSC-028, ¶ 7, this Court described the purpose of laws

4 prohibiting livestock larceny as “either to prevent a kind of thefts peculiarly easy of

5 commission and difficult of discovery and punishment, or to afford special

6 protection to the important industry of stock-raising, or . . . upon both these

7 considerations.” While the parties do not dispute the applicability of this purpose to

8 the present appeal, they do dispute what this purpose reveals about the unit of

9 prosecution of Section 30-16-1(G).

10 {34} The State argues that this legislative purpose reveals a unit of prosecution

11 based on the number of animals stolen. The State asserts that, if the unit of

12 prosecution were held to be otherwise, then rustlers will be incentivized to steal as

13 many head as possible in one episode of theft. Defendants, on the other hand, argue

14 that Section 30-16-1(G) promotes the legislative purpose of prevention by relieving

15 the State from the discovery and punishment burdens of establishing either the value

16 or the precise number of animals taken. Defendants assert that this purpose reveals

17 that the unit of prosecution is for each episode of livestock theft.

18 {35} We agree with Defendants. Specifically, we conclude that the purpose of

19 Section 30-16-1(G) protects livestock owners by facilitating prosecution of a crime

26
1 that historically and still remains “peculiarly easy of commission and difficult of

2 discovery and punishment.” Pacheco, 1969-NMCA-127, ¶ 15 (internal quotation

3 marks and citation omitted). We reach this conclusion, in part, by construing Section

4 30-16-1(G) in light of New Mexico’s Livestock Code, NMSA 1978, §§ 77-2-1 to

5 77-18-6 (1869, as amended through 2017), and other laws addressing livestock.

6 Consistent with the history of livestock larceny, Section 30-16-1(G) clearly is

7 intended to work in collaboration with these statutes and thus should be considered

8 a part of a comprehensive regulatory scheme addressing livestock in New Mexico.

9 See § 12-2A-20(B)(2) (articulating that “the following aids to construction may be

10 considered in ascertaining the meaning of [a statute]: . . . a statute or rule on the same

11 or a related subject, even if it was enacted or adopted at a different time”); 2B

12 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Constr.

13 § 51:3, at 222 (7th ed. 2012) (“Statutes are in pari materia—pertain to the same

14 subject matter—when they relate to the same person or thing, to the same class of

15 persons or things, or have the same purpose or object.” (footnote omitted)). We thus

16 construe Section 30-16-1(G) in pari materia with these livestock laws and relevant

17 provisions of the Livestock Code.

18 {36} The stated purpose of the Livestock Code in pertinent part is “to control

19 disease, to prevent the theft or illegal movement of livestock and to oversee the New

27
1 Mexico meat inspection program.” Section 77-2-1. In pursuit of that purpose, the

2 Livestock Code contains provisions addressing the control of livestock diseases, §§

3 77-3-1 to -18, the marking or branding of animals, §§ 77-9-2 to -57, and the

4 inspection of livestock prior to transport, §§ 77-9-41, -42. The Livestock Code also

5 grants authority to the New Mexico Livestock Board to oversee and regulate

6 livestock, §§ 77-2-1 to -32.

7 {37} The State argues that the Livestock Code reveals a legislative intent to

8 prosecute livestock larceny on a per-animal basis and particularly relies for this

9 argument on Bernard, 2015-NMCA-089, ¶¶ 15-31. In Bernard, the Court of Appeals

10 analyzed the unit of prosecution for receiving or transferring a stolen motor vehicle,

11 NMSA 1978, § 30-16D-4(A) (2009). See Bernard, 2015-NMCA-089, ¶¶ 18-19. As

12 part of its analysis of the indicia of distinctness, the Bernard Court noted that the

13 stolen vehicles were “subject to broad regulation by the State under a highly specific

14 statutory scheme found in the Motor Vehicle Code and the Criminal Code.” 2015-

15 NMCA-089, ¶ 28. That statutory scheme tracked individually identified vehicles as

16 a means to deter vehicle theft. Id. ¶¶ 28-30. In light of this scheme, the Bernard

17 Court concluded that the defendant’s receipt of each one of four stolen vehicles was

18 sufficiently distinct to warrant four separate offenses of Section 30-16D-4(A). Id. ¶

19 31.

28
1 {38} Applying Bernard, the State suggests that the Livestock Code is a highly

2 specific regulatory scheme that tracks animals like the Motor Vehicle Code tracks

3 vehicles. We disagree. The Livestock Code does not track individual animals, but

4 instead tracks an individual person’s ownership of these animals. See, e.g., § 77-2-

5 7.1 (making brands that are recorded with the New Mexico Livestock Board as the

6 “personal property of the person in whose name they are recorded,” which can be

7 “transferred in the same manner as other personal property”); § 77-9-3(A) (“A

8 person who owns livestock shall have and adopt a brand for them . . . . Each brand

9 shall be recorded in the office of the [Livestock Board].”); § 77-2-7.7. (“It is

10 unlawful for an owner of livestock in originally marking or branding livestock to

11 make use of or keep up more than one mark or brand.”); see also NMSA 1978, § 39-

12 6-1 (1889) (addressing the levy of “any writ of attachment, replevin or execution

13 under the laws of this state upon any livestock or herd of cattle that are ranging at

14 large with other livestock or cattle” through the filing of a copy of the writ on the

15 livestock owner’s brand). The portion of the Livestock Code setting forth the

16 requirements for “Brands, Ownership, Transportation and Sale of Animals,” §§ 77-

17 9-2 to -57, specifically emphasizes that a person must maintain proof of ownership

18 of livestock as a means to prevent theft. See, e.g., §§ 77-9-45, -46, -51 (addressing

29
1 circumstances in which a livestock inspector may seize livestock due to the failure

2 of a person in possession of livestock to provide proof of ownership).

3 {39} The Legislature has also specifically provided that “[i]n the prosecution of

4 any offense arising under the laws of this state in regard to the unlawful taking . . .

5 of animals of the bovine kind, the description ‘neat cattle’ in any indictment shall be

6 deemed sufficient.” NMSA 1978, § 31-7-1 (1895). An indictment identifies stolen

7 livestock through a description of the livestock owner’s brand. See id. (“[T]he proof

8 of the brand by a certified copy of the registration thereof in the brand book . . . shall

9 be sufficient to identify all horses, mules, asses or neat cattle, and shall be prima

10 facie proof that the person owning the recorded brand is the owner of the animal

11 branded with such brand.”). This suggests that the Legislature did not contemplate

12 that prosecutions for livestock larceny would draw distinctions based on the

13 description or identity of an animal.

14 {40} We thus view the Livestock Code as creating a regulatory scheme with an

15 overriding purpose of protecting livestock ownership by deterring livestock theft.

16 Section 30-16-1(G) assists in this purpose by relieving the state of the burden of

17 establishing either the value or the number of animals stolen in an episode of theft

18 and by making livestock larceny a third-degree felony whenever livestock is stolen,

19 irrespective of the enormity of the livestock owner’s loss.

30
1 {41} The facts on current appeal, which included investigations by employees of

2 the New Mexico Livestock Board, aptly demonstrate how Section 30-16-1(G)

3 operates in tandem with relevant provisions of the Livestock Code to facilitate

4 discovery and prosecution of livestock theft. Defendant Torres’s alleged crime was

5 discovered when an operations manager at the Crossroads Cattle Company’s ranch

6 noted a discrepancy between the estimated number of calves expected in a pasture

7 and the number of calves inventoried. Pursuant to a report from the ranch to the

8 Livestock Board, investigators were able to link Defendant Torres to the sale of

9 eighteen calves on two dates through the records maintained by a livestock auction

10 house. See, e.g., § 77-10-3(C) (requiring operators of New Mexico licensed auction

11 houses to allow the Livestock Board “to have convenient access to the . . . books and

12 records or any livestock that may be in [the operator’s] possession at all reasonable

13 times for the purpose of inspection”); § 77-10-4 (requiring the operator to notify the

14 Livestock Board of any livestock received). Using these records, prosecutors were

15 able to determine precisely how many animals Defendant Torres stole and connect

16 him potentially with two episodes of theft.

17 {42} Similarly, the Livestock Code also facilitated discovery of Defendants

18 Chadwick’s and Hendrix’s alleged crime. This theft was first discovered when an

19 off-duty livestock inspector saw these Defendants transporting cattle that had not

31
1 been inspected and approved for shipment. See, e.g., §§ 77-9-42 to -43 (requiring

2 inspection prior to transportation of livestock). This legislative scheme likewise

3 allowed investigators to identify these Defendants and to inspect and confiscate the

4 stolen animals when they arrived at the auction house. See, e.g., § 77-9-45 (“If any

5 duly authorized inspector should find any livestock or carcasses in the possession of

6 any person . . . [who] cannot furnish other satisfactory proof of lawful ownership or

7 said inspector has good reason to believe that said livestock or carcasses, are stolen,

8 said inspector shall . . . seize and take possession of same.”). Thus, the overall

9 legislative scheme assisted in the discovery and investigation of an offense which

10 otherwise may have escaped prosecution.

11 {43} We therefore conclude that the holding in Bernard, 2015-NMCA-089, ¶¶ 28-

12 30, is inapposite. The Motor Vehicle Code at issue in Bernard establishes “a vehicle

13 registration system that maintains a history of individual vehicle ownership, requires

14 distinct identifiers to be assigned and affixed to vehicles, and monitors the transfer

15 of vehicles from other states and between owners.” Id. ¶ 29. The Livestock Code, on

16 the other hand, establishes a system focused on maintaining a record of persons

17 owning livestock, but is not concerned with establishing the identity of any animal

18 so owned. Thus, analysis of the purpose of the livestock larceny statute, § 30-16-

19 1(G), does not support the State’s asserted per-animal unit of prosecution.

32
1 4. Quantum of punishment

2 {44} Our conclusion that livestock larceny does not support multiple punishments

3 for the theft of multiple animals in a single episode is also supported by the quantum

4 of punishment. Benally, 2021-NMSC-027, ¶¶ 31-32 (considering the severity and

5 comparative length of a sentence based on multiple punishments in construing a

6 crime’s unit of prosecution). Livestock larceny, § 30-16-1(G), is a third-degree

7 felony with a basic sentence of three years and a potential fine not exceeding $5,000.

8 NMSA 1978, § 31-18-15(A)(11), (E)(11) (2016, amended 2022). If multiple

9 punishments were to be permitted, Defendant Torres would face a potential sentence

10 of fifty-four years imprisonment and fines totaling $90,000; Defendants Chadwick

11 and Hendrix each would face potential imprisonment of seventy-five years and fines

12 totaling $125,000.

13 {45} Defendants contend that potential sentences of this severity argue against

14 prosecution for each animal stolen. Defendants posit that if this Court accepts the

15 State’s analysis, a hypothetical rustler who steals one-hundred head of cattle would

16 face a three-hundred year sentence. The State counters that “the specter of a 300-

17 year prison term” is “highly improbable” because Article II, Section 13 of the New

18 Mexico Constitution “prohibits the infliction of ‘cruel and unusual punishment.’”

33
1 {46} The State’s suggestion that the Constitution will limit the potential cruelty of

2 this hypothetical rustler’s sentence is at odds with the canon of constitutional

3 avoidance. See, e.g., State v. Radosevich, 2018-NMSC-028, ¶ 8, 419 P.3d 176

4 (“[W]e must be guided by the ‘well-established principle of statutory construction

5 that statutes should be construed, if possible, to avoid constitutional questions.’”);

6 NMSA 1978, § 12-2A-18(A)(3) (1997) (“A statute or rule is construed, if possible,

7 to . . . avoid an unconstitutional, absurd or unachievable result.”). The analysis

8 provided herein avoids the need to test the constitutional limits of a Section 30-16-

9 1(G) prosecution.

10 {47} Defendants also point out that their potential sentences for stealing a herd of

11 livestock are, by the State’s assertions, much greater than even the most serious

12 category of generic larceny, which punishes theft of property valued over $20,000

13 as a second-degree felony carrying a basic sentence of nine years. Section 30-16-

14 1(F); § 31-18-15(A)(7)(2016). Defendants would be incarcerated for much longer

15 than nine years if each potential term of imprisonment were to run consecutively.

16 We agree that this disparity is telling and further confirms that the Legislature did

17 not intend Defendants to receive multiple punishments for the theft of multiple head

18 of cattle in a single episode.

34
1 {48} We conclude that the wording, structure, purpose, history, and quantum of

2 punishment of the livestock larceny statute, § 30-16-1(G), do not express an intent

3 to prosecute Defendants for each animal stolen. We construe the statute as

4 expressing an intent to prosecute Defendants for each distinct episode of theft.

5 Because we were able to construe the intended unit of prosecution of Section 30-16-

6 1(G) through consideration of the preceding canons of construction, we do not resort

7 to the rule of lenity for this conclusion. Benally, 2021-NMSC-027, ¶¶ 14-15. We

8 therefore hold that Defendants’ indictments are multiplicitous.

9 C. Defendants May Be Prosecuted for Each Distinct Episode of Livestock
10 Larceny
11 {49} Defendants raised the issue of multiplicity prior to conviction. Multiplicity is

12 not fatal to an indictment, and a trial court in its discretion may dismiss the

13 multiplicitous charges, may require the state to elect between charges, or may

14 proceed to trial with appropriate jury instructions. See, e.g., United States v. Johnson,

15 130 F.3d 1420, 1426-27 (10th Cir. 1997) (“A decision of whether to require the

16 prosecution to elect between multiplicitous counts before trial is within the

17 discretion of the trial court.”); United States v. Roy, 408 F.3d 484, 491 (8th Cir.

18 2005) (“Although the prosecutor did not elect between or consolidate the

19 multiplicitous counts, multiplicitous indictments may be saved at the trial stage if

20 the district court submits an appropriate instruction to the jury.”); see also 42 C.J.S.

35
1 Indictments § 230, at 709 (2017) (noting that multiplicity is not fatal to an indictment

2 and listing remedies for multiplicity as including dismissal of the multiplicitous

3 counts, the state’s election of counts, or the vacating of convictions). We conclude

4 that the district court did not abuse its discretion in electing to dismiss all but one of

5 the livestock larceny charges in Defendants Chadwick’s and Hendrix’s indictments

6 and in electing to dismiss all but two of the livestock larceny charges in Defendant

7 Torres’s indictment. See, e.g., State v. Lymon, 2021-NMSC-021, ¶ 12, 488 P.3d 610

8 (“An abuse of discretion occurs when the ruling is clearly against the logic and effect

9 of the facts and circumstances of the case” or “when the trial court misapprehends

10 or misapplies the law.” (internal quotation marks and citation omitted)).

11 {50} “When an indictment includes multiple counts charging a violation of the

12 same statutory provision and a claim of multiplicity is raised, an inquiring court must

13 determine whether the facts undergirding each count can be treated as a distinct unit

14 of prosecution.” Lente, 2019-NMSC-020, ¶ 26 (internal quotation marks and citation

15 omitted). In ascertaining which of Defendants’ charges may be treated as distinct

16 units of prosecution, we are guided by the second step of our Herron analysis.

17 Herron, 1991-NMSC-012, ¶ 15. In Herron, we articulated six indicia of distinctness

18 that we may use to clarify which of a defendant’s acts gave rise to a discrete statutory

19 offense: (1) the time between the defendant’s acts, (2) the location of the victims,

36
1 (3) the existence of intervening events between acts, (4) the sequence in commission

2 of the acts, (5) the defendant’s intent, and (6) the number of victims. Id. However,

3 the Court has explained that the six indicia identified in Herron “serve as a general

4 policy for examining distinctness” but that these indicia do not provide a

5 “mechanical formula” for analysis. Benally, 2021-NMSC-027, ¶ 19 (internal

6 quotation marks and citation omitted). The specific indicia analyzed are dependent

7 on the interests protected by the statute at issue “because our focus under this second

8 step is whether a defendant’s acts can be distinguished as discrete violations of the

9 conduct the Legislature intended to proscribe.” Id. ¶ 18.

10 {51} As relevant to the crime of larceny of generic property, § 30-16-1(B)-(F), our

11 Court of Appeals has considered “the time between the criminal acts, the location of

12 the property when it was taken, the existence of any intervening events, distinctions

13 in the manner of committing the thefts, the defendant’s intent, and the number of

14 victims.” Brown, 1992-NMCA-028, ¶ 9. Although Brown considered the indicia of

15 distinctness relevant to the crime of larceny of generic property, § 30-1-16(B)-(F),

16 we view these indicia as also relevant to the crime of livestock larceny, § 30-16-

17 1(G). In keeping with the history and purpose of the livestock larceny statute, we

18 clarify that the victims of livestock larceny are the owners of the livestock.

37
1 {52} Defendants Chadwick and Hendrix—who allegedly stole livestock on one

2 occasion, from one location, and from one owner—each should be prosecuted for

3 no more than one offense of Section 30-16-1(G). Defendant Torres—who allegedly

4 stole livestock on potentially two occasions, from one location and from one

5 owner—should be prosecuted for no more than two offenses of Section 30-16-1(G).

6 Resolution of whether Defendant Torres may be punished for two offenses of

7 Section 30-16-1(G) will depend on the jury’s findings on outstanding factual issues

8 and on whether the two offenses were distinct. Herron, 1991-NMSC-012, ¶¶ 15, 16.

9 CONCLUSION

10 {53} In view of the foregoing, we affirm the holding of the Court of Appeals, with

11 amendments to its reasoning as reflected herein. We remand each of these three

12 matters to the Twelfth Judicial District Court for further proceedings consistent with

13 our opinion.

14 {54} IT IS SO ORDERED.

15
16 DAVID K. THOMSON, Justice

17 WE CONCUR:

18
19 C. SHANNON BACON, Chief Justice

38
1
2 MICHAEL E. VIGIL, Justice

3
4 JULIE J. VARGAS, Justice

5
6 BRIANA H. ZAMORA, Justice

39