State v. Nieto

536 P.3d 534

STATE of New Mexico, Plaintiff-Appellee,

v.Michael NIETO, Defendant-Appellant.

No. A-1-CA-39807

Court of Appeals of New Mexico.

Filing Date: July 25, 2023

Raúl Torrez, Attorney General, Santa Fe, NM, Van Snow, Assistant Attorney General, Albuquerque, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant

YOHALEM, Judge.

{1} A jury convicted Defendant Michael Nieto of battery upon a peace officer, contrary to NMSA 1978, Section 30-22-24 (1971) ; aggravated assault upon a peace officer (deadly weapon), contrary to NMSA 1978, Section 30-22-22 (1971) ; aggravated fleeing a law enforcement officer, contrary to NMSA 1978, Section 30-22-1.1 (2003, amended 2022) ; reckless driving, contrary to NMSA 1978, Section 66-8-113 (1987) ; resisting, evading or obstructing an officer (arrest), contrary to NMSA 1978, Section 30-22-1 (1981) ; and leaving the scene of an accident (property damage), contrary to NMSA 1978, Section 66-7-202 (1978), based on an encounter with police officers on June 16, 2019, in Albuquerque, New Mexico. The district court dismissed Defendant's reckless driving conviction on double jeopardy grounds. Defendant claims on appeal that several of his six remaining convictions are based on the same conduct and violate double jeopardy. Defendant also challenges the sufficiency of the evidence to support his conviction for leaving the scene of an accident. We agree that Defendant's convictions for resisting, evading or obstructing an officer and for aggravated fleeing a police officer violate double jeopardy and must be vacated. Otherwise, we affirm.

BACKGROUND

{2} All of the charges in this case arose out of events that occurred on June 16, 2019. That morning, Albuquerque Police Officers Mares and Briones responded to a call about a man who was asleep behind the wheel of a pickup truck. That man was later identified as Defendant. Officer Mares arrived first and pulled up behind Defendant's truck. Officer Mares was in uniform, was driving a marked police vehicle, and his emergency lights were on. Leaving his vehicle with its emergency lights flashing, Officer Mares approached Defendant's pickup truck. Through the window, Officer Mares saw Defendant unconscious in the driver's seat. According to Officer Mares, Defendant "kind of pop[ped] up," and Officer Mares identified himself as a police officer. At that time, Officer Mares saw a handgun in the passenger seat. Officer Mares opened the driver's side door, grabbed and held one of Defendant's hands to his side, and told Defendant to step out of his truck. Defendant refused. By this time Officer Briones had arrived and was assisting Officer Mares. Officer Briones was able to take the gun from the passenger seat and place it on the hood of the truck, out of Defendant's reach.

{3} Officer Mares testified that, at that point, Defendant put the truck in drive, grabbed him, and pulled him into the truck. Defendant then accelerated and continued to drive for several miles with Officer Mares partially hanging out the door, clinging to the headrest to keep himself from falling to the road, until Defendant's truck crashed head-on into another vehicle driven by Joaquin Sisneros and came to a stop, injuring Sisneros and damaging his car.

{4} Defendant threw Officer Mares out of his truck and began to run with Officer Mares chasing him. Defendant was tackled 25 to 50 feet away from the impact with Sisneros's vehicle in a Burger King parking lot, after having crossed over a couple of lanes of traffic, a sidewalk, and some landscaping.

DISCUSSION

I. Double Jeopardy

{5} The double jeopardy clause "protects defendants from receiving multiple punishments for the same offense." State v. Ramirez , 2018-NMSC-003, ¶ 38, 409 P.3d 902 (internal quotation marks and citation omitted); see U.S. Const. amend. V ; N.M. Const. art. II, § 15. Defendant raises what is known as a double description double jeopardy claim, "in which a single act results in multiple charges under different criminal statutes." State v. Bernal , 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289.

{6} In analyzing double description claims, we apply the two-part test set forth in Swafford v. State , 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223, determining first: (1) whether the conduct underlying the offenses is unitary; and (2) if so, whether the Legislature intended to punish the offenses separately. See State v. Begaye , 2023-NMSC-015, ¶ 13, 533 P.3d 1057. " ‘Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.’ " Id. (quoting Swafford , 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223.)

{7} A defendant's conduct is unitary "if the acts are not separated by sufficient indicia of distinctness." State v. Porter , 2020-NMSC-020, ¶ 12, 476 P.3d 1201 (internal quotation marks and citation omitted). Our Supreme Court in State v. Barrera , 2001-NMSC-014, ¶ 36, 130 N.M. 227, 22 P.3d 1177 stated,

The "indicia of distinctness" include the separation between the illegal acts by either time or physical distance, "the quality and nature" of the individual acts, and the objectives and results of each act. Distinctness may also be established by the existence of an intervening event, the defendant's intent as evinced by his or her conduct and utterances, the number of victims, and the behavior of the defendant between acts.

(internal quotation marks and citation omitted). In determining whether conduct is unitary, we consider "the elements of the charged offenses, the facts presented at trial, and the instructions given to the jury." State v. Sena , 2020-NMSC-011, ¶ 46, 470 P.3d 227. If we determine that the conduct was not unitary, there is no double jeopardy violation and our analysis need not proceed further. If we determine, however, that the conduct was unitary, then we must proceed to the second inquiry: "whether the [L]egislature intended multiple punishments for the unitary conduct." State v. Andazola , 2003-NMCA-146, ¶ 15, 134 N.M. 710, 82 P.3d 77.

{8} In answering this second question, we begin, as we always do when analyzing legislative intent, by looking to the plain language of the statute. Begaye , 2023-NMSC-015, ¶ 21, 533 P.3d 1057. If the statute does not explicitly authorize multiple punishments, we next apply the Blockburger test. Id. ¶¶ 21-22. We use the strict-elements Blockburger test if the statutory language is clear and provides only a single alternative. If the statutory language is vague or states alternative bases for conviction, we use the modified Blockburger test. Id. Both Blockburger tests—strict-elements and modified—operate as "a kind of surrogate for construing legislative intent." Id. ¶ 22 (internal quotation marks and citation omitted). The strict-elements test is applied directly to clear statutory language to determine whether each statute requires proof of a fact that the other does not. See State v. Silvas , 2015-NMSC-006, ¶ 12, 343 P.3d 616 (describing the strict-elements Blockburger test).

{9} Where the statutory language serves multiple purposes and can be violated in multiple ways, we apply the modified Blockburger test and instead consider "whether the statute, as applied by the [s ]tate in a given case , overlaps with the other criminal statutes so that the accused is being punished twice for the same offense." Begaye , 2023-NMSC-015, ¶ 22, 533 P.3d 1057 (internal quotation marks and citation omitted). We determine how a statute was applied by the state in a given case by looking first to the statutory language, the charging documents, and the jury instructions. See id. ¶¶ 25-26. If these sources, considered together, do not reveal the state's legal theory, we turn to the opening and closing statements and the evidence at trial to "establish whether the same evidence supported" both convictions. Id. ¶ 26 (internal quotation marks and citation omitted). Our focus is to ascertain not simply whether the elements differ, "but whether the same evidence, that is, the same underlying conduct, is used to support both charges. Id. ¶ 28. If the same evidence supports both convictions, double jeopardy is violated and the lesser offense must be vacated. See id. ¶¶ 28, 36.

{10} We apply these legal principles to each of the convictions challenged by Defendant as violating his right to be free of double jeopardy.

A. Defendant's Convictions for Battery Upon a Peace Officer and Aggravated Assault Upon a Peace Officer Do Not Violate Double Jeopardy

{11} We turn first to Defendant's argument that the conduct underlying his convictions for battery upon a peace officer and aggravated assault upon a peace officer is unitary and was not intended by the Legislature to be separately punished. We conclude that the conduct was not unitary and therefore, there is no double jeopardy violation.

{12} In determining whether the conduct was unitary, we must determine whether the offenses were separated by sufficient indicia of distinctness by looking at (1) the temporal proximity of the acts, (2) the location of the victim during each act, (3) the existence of an intervening act, (4) the sequencing of the acts, (5) the defendant's intent as evidenced by his conduct and utterances, and (6) the number of victims. See Herron v. State , 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624 ; see also Bernal , 2006-NMSC-050, ¶¶ 15, 16, 140 N.M. 644, 146 P.3d 289 ("[W]e attempt to determine, based upon the specific facts of each case, whether a defendant's activity is better characterized as one unitary act, or multiple, distinct acts, consistent with legislative intent."); State v. Barr , 1999-NMCA-081, ¶¶ 15, 16, 127 N.M. 504, 984 P.2d 185 (recognizing that acts separated by sufficient indicia of distinctness warrant separate punishments). We consider whether the acts of a defendant were "performed independently of the...