State v. Ortiz

STATE OF NEW MEXICO, Plaintiff-Appellee, v. CRYSTAL ORTIZ, Defendant-Appellant.

No. A-1-CA-34419

COURT OF APPEALS OF THE STATE OF NEW MEXICO

July 27, 2020

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Stan Whitaker, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Walter Hart, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

HANISEE, Chief Judge.

{1} This case is before us on remand from our New Mexico Supreme Court to address the double jeopardy arguments raised by Defendant Crystal Ortiz that were not resolved in our original opinion filed on December 13, 2017. State v. Ortiz (Ortiz I), 2018-NMCA-018, ¶ 1, 412 P.3d 1132, rev'd, State v. Ortiz (Ortiz II), 2020-NMSC-___, ¶ 27, ___P.3d ___ (No. S-1-SC-36865, Apr. 23, 2020). The jury convicted Defendant of four charges: (1) great bodily harm by vehicle (GBHV) (driving while intoxicated (DWI)), contrary to NMSA 1978, Section 66-8-101(B), (C) (2004, amended 2016); (2) aggravated battery (deadly weapon-vehicle), contrary to NMSA 1978, Section 30-3-5(A), (C) (1969); (3) aggravated DWI, contrary to NMSA 1978, Section 66-8-102(D)(1), (2010, amended 2016); and (4) leaving the scene of an accident (great bodily harm), contrary to NMSA 1978, Section 66-7-201(A), (C) (1989). Defendant argues her convictions for aggravated battery, aggravated DWI, as well as GBHV (DWI) violate double jeopardy. Defendant does not appeal her fourth conviction of leaving the scene of an accident. We affirm in part and reverse in part.

BACKGROUND

{2} The charges arose from an incident in which Defendant, while intoxicated, drove her vehicle (an SUV) into Brandon Hughes (Victim), her ex-boyfriend. After striking Victim, Defendant crashed her SUV into a fence where it became stuck. Ortiz II, 2020-NMSC-___, ¶ 4. Victim's leg was severely injured, and Defendant fled from the scene on foot and was located by the police soon thereafter. Id. Defendant claimed that she had no idea that she struck Victim and that she must have accidently struck him with her vehicle, leading our Supreme Court to conclude that Defendant was therefore not entitled to a duress instruction. Id. ¶¶ 22-23. We now evaluate whether Defendant's convictions for aggravated battery and aggravated DWI arising out of the underlying events for which Defendant was convicted of GBHV (DWI) violated Defendant's right to be free from double jeopardy. Because this a memorandum opinion and the parties are familiar with the facts and procedural history of this case, we reserve further discussion of specific facts where necessary to our analysis.

DISCUSSION

I. Defendant's Conviction for Aggravated DWI Violates Double Jeopardy but Defendant's Conviction for Aggravated Battery Does Not Violate Double Jeopardy

{3} Defendant argues that her right to be free from double jeopardy was violated because her convictions for aggravated DWI and aggravated battery were subsumed in her third degree GBHV (DWI) conviction. We agree that Defendant's misdemeanor offense for aggravated DWI should be vacated because it is a lesser included offense of GBHV (DWI) upon which Defendant has also been convicted, and thus violates double jeopardy; however, we disagree that her conviction for aggravated battery violates double jeopardy. We explain.

{4} We review double jeopardy claims de novo. State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747 ("A double jeopardy challenge is a constitutional question of law which we review de novo."). "Double jeopardy protects against both successive prosecutions and multiple punishments for the same offense." State v. Serrato, 2020-NMCA-___, ¶ 11, ___P.3d ___ (No. A-1-CA-36381, Feb. 17, 2020) (alteration, internal quotation marks, and citation omitted). Here, Defendant's case involves the latter—multiple punishments for the same offense. Multiple punishment cases are classified in one of two ways: the first is the double-description case, where a single act results in multiple charges under different criminal statutes; the second is the unit of prosecution case, where a defendant challenges convictions for multiple violations under the same criminal statute. Id. Because, here, Defendant alleges the same conduct resulted in multiple convictions under different statutes, we apply a double-description analysis.

{5} For 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. We first evaluate whether the conduct underlying the offenses is unitary, that is, whether the same conduct violates both statutes. Id. "If the conduct is not unitary, there is no double jeopardy violation." State v. Lucero, 2015-NMCA-040, ¶ 21, 346 P.3d 1175. If the conduct is unitary, we then interpret the statute "to determine whether the Legislature intended to create separately punishable offenses." Id. (alteration, internal quotation marks, and citation omitted). We address each of Defendant's double jeopardy challenges in turn.

A. Aggravated DWI and GBHV (DWI)

{6} Defendant contends that her misdemeanor conviction for aggravated DWI violates double jeopardy because it is subsumed within her third degree felony conviction for GBHV (DWI). The State, however, argues that there was no double jeopardy violation because the conduct supporting these two convictions was not unitary since the crime of aggravated DWI was complete before the crime of GBHV (DWI). We explain below our conclusions that the underlying conduct of both GBHV (DWI) and aggravated DWI was unitary and that the Legislature did not intended to punish the two crimes separately.

1. Unitary Conduct

{7} In determining "whether a defendant's conduct was unitary, we consider whether a defendant's acts are separated by sufficient indicia of distinctness." State v. Jackson, 2020-NMCA-___, ¶ 34, ___ P.3d ___ (No. A-1-CA-36400, Feb. 26, 2020) (alterations, internal quotation marks, and citation omitted). "[W]e may consider as indicia of distinctness the separation of time or physical distance between the illegal acts, the quality and nature of the individual acts, and the objectives and results of each act." Id. (internal quotation marks and citation omitted).

{8} The night of the incident, Defendant, Defendant's father, and Victim went out drinking, and eventually, Victim drove Defendant to Victim's house. Ortiz I, 2018-NMCA-018, ¶ 7. Defendant planned to "spend the night at [Victim's] house as she had done before[, however, Victim] made unwanted sexual advances that she rejected." Ortiz II, 2020-NMSC-___, ¶ 19. Defendant "explained that these unwanted advances distressed her because . . . she alleged that [Victim] had raped her during the time they dated one another." Id.

{9} Defendant then left Victim's house and entered her vehicle, but Victim also jumped in, so she drove away from Victim's house with Victim in the front passenger seat. Id. Defendant ordered Victim out of the vehicle several times, but he would not leave. Ortiz I, 2018-NMCA-018, ¶ 10. Defendant testified that she tried to call her father, but Victim "grabbed the phone from her hand and, in doing so, caused her to 'jerk' the steering wheel of her [vehicle]." Ortiz II, 2020-NMSC-___, ¶ 20. When this happened, Defendant testified that Victim jumped out of the car and started to run around to the front of the car; simultaneously, the car jumped the curb and hit a fence. Id. ¶¶ 20-21. "This chain of events was, according to [Defendant], how she came to hit the fence and [Victim]." Id. ¶ 20. "[Defendant] went on to testify that she had no knowledge that she hit [Victim] when she accidentally drove onto the sidewalk and through the fence." Id. ¶ 22.

{10} The State's presentation of events differed in important respects, and the State contends that Defendant's version of events—that Victim simultaneously grabbed Defendant's phone, jumped out of the vehicle, and ran around the vehicle such that Defendant did not know she hit Victim—was a "law-of-physics-defying explanation." In contrast to Defendant's testimony, Victim testified that Defendant ordered him out of her vehicle, and that Victim grabbed the phone from Defendant so he could speak to Defendant's father. Victim stepped out of the vehicle and started walking on the sidewalk towards his home a few blocks away. Soon thereafter, he saw a flash of light behind him before Defendant hit him, causing Victim to land on the hood of the vehicle before crashing with him on the hood through a fence. Victim suffered an open tibia fracture from the accident.

{11} The State argues that Defendant's conduct is not unitary because Defendant was intoxicated at the time she began to drive her vehicle away from Victim's residence towards her home, and thus, Defendant's guilt for aggravated DWI was established as soon as she began to drive. The State contends that such conduct is separate and distinct from when Defendant ordered Victim out of the vehicle and proceeded to hit Victim with her vehicle. To support its position, the State relies heavily on State v. Dominguez, arguing that the kidnapping charge there is comparable to the aggravated DWI charge here. 2014-NMCA-064, ¶ 10, 327 P.3d 1092. There, we held that the kidnapping charge was factually distinct from the second degree criminal sexual penetration charge and that "[t]he crime of kidnapping [was] complete when the defendant, with the requisite intent, restrain[ed] the victim, even though the restraint continue[d] through the commission of a separate crime." Id.

{12} We do not consider Dominguez to be...