State v. Osterholt

1

STATE OF NEW MEXICO, Plaintiff-Appellee, v. STEVEN R. OSTERHOLT, Defendant-Appellant.

No. A-1-CA-40822

Court of Appeals of New Mexico

July 31, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Steven Blankinship District Court Judge.

Raúl Torrez, Attorney General Santa Fe, NM Leland M Churan, Assistant Attorney General Albuquerque, NM for Appellee.

Bennett J. Baur, Chief Public Defender Santa Fe, NM Steven J. Forsberg, Assistant Appellate Defender Albuquerque, NM for Appellant.

MEMORANDUM OPINION

GERALD E. BACA, Judge

{¶1} Defendant appeals his convictions for aggravated assault by use of a deadly weapon, contrary to NMSA 1978, Section 30-3-2(A) (1963); shooting at or from a motor vehicle, contrary to NMSA 1978, Section 30-3-8(B) (1993); and tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003). Defendant advances the following arguments on appeal: (1) his convictions for aggravated assault by use of a deadly weapon and shooting at or from a motor vehicle constitute double jeopardy; (2) insufficient evidence supports his conviction for tampering with evidence; and (3) one of his prior convictions is not usable to enhance his sentence. We conclude that Defendant's convictions for aggravated assault by use of a deadly weapon and shooting at or from a motor vehicle violate his right to be free from double jeopardy, and therefore, one of the convictions must be vacated. We affirm the remaining convictions.

BACKGROUND

{¶2} Because this is an unpublished memorandum opinion written solely for the benefit of the parties, see State v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M. 218, 794 P.2d 361, and the parties are familiar with the factual and procedural background of this case, we omit a background section and leave the discussion of the facts for our analysis of the issues.

DISCUSSION

I. Double Jeopardy

A. Standard of Review

{¶3} Defendant first argues that his convictions for aggravated assault by use of a deadly weapon and shooting at or from a motor vehicle violate his constitutional right to be free from double jeopardy. "[A d]efendant's double jeopardy challenge[] present[s] a constitutional question of law, which we review de novo." State v. Serrato, 2021-NMCA-027, ¶ 11, 493 P.3d 383.

B. Defendant's Convictions for Aggravated Assault by Use of a Deadly Weapon and Shooting at or From a Motor Vehicle Violate Double Jeopardy

{¶4} "The double jeopardy clause protects defendants from receiving multiple punishments for the same offense." State v. Gonzales, 2019-NMCA-036, ¶ 14, 444 P.3d 1064 (internal quotation marks and citation omitted). Because Defendant "alleges the same conduct resulted in multiple convictions under two different statutes . . . we apply a double-description analysis." See Serrato, 2021-NMCA-027, ¶ 11. "First, we analyze the factual question, whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes, and if so, we consider the legal question, whether the Legislature intended to create separately punishable offenses." State v. Ramirez, 2016-NMCA-072, ¶ 14, 387 P.3d 266 (alterations, internal quotation marks, and citation omitted). "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." Serrato, 2021-NMCA-027, ¶ 12. We begin our analysis by determining whether the conduct is unitary.

1. Unitary Conduct

{¶5} When determining whether the conduct underlying the offenses is unitary, we examine "whether the same conduct violates both statutes." Id. Therefore, "[t]he unitary conduct analysis turns on whether the acts underlying the two offenses are separated by sufficient indicia of distinctness." State v. Lorenzo, 2024-NMSC-003, ¶ 6, 545 P.3d 1156 (internal quotation marks and citation omitted). To determine if the acts are separated by sufficient indicia of distinctness, "we look to the elements of the charged offenses, the facts presented at trial, and the instructions given to the jury." Id. (alteration, omission, internal quotation marks, and citation omitted).

{¶6} Moreover, "[t]he proper analytical framework is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses." Gonzales, 2019-NMCA-036, ¶ 15 (internal quotation marks and citation omitted). "When examining the factual record, courts consider such factors as whether the acts were close in time and space, their similarity, the sequence in which they occurred, whether other events intervened, and the defendant's goals for and mental state during each act." Lorenzo, 2024-NMSC-003, ¶ 6 (alteration, internal quotation marks, and citation omitted). "Unitary conduct is not present when one crime is completed before another is committed, or when the force used to commit a crime is separate from the force used to commit another crime." State v. Phillips, 2024-NMSC-009, ¶ 38, 548 P.3d 51 (internal quotation marks and citation omitted). As well, we consider the state's theory of the case as it may be articulated in its closing argument. See Gonzales, 2019-NMCA-036, ¶ 20; State v. Silvas, 2015-NMSC-006, ¶¶ 10, 19, 343 P.3d 616; Ramirez, 2016-NMCA-072, ¶ 17. Finally, "[l]ooking at the totality of the circumstances, if it reasonably can be said that the conduct is unitary, then we must conclude that the conduct was unitary." Lorenzo, 2024-NMSC-003, ¶ 6 (internal quotation marks and citation omitted).

{¶7} Considering these factors as applied to this case, we conclude that the conduct was unitary. We explain. a. The indictment and jury instructions

{¶8} Here, as to the charge of aggravated assault by use of a deadly weapon, the "Grand Jury Indictment" alleges:

Count 2: Aggravated Assault (Deadly Weapon) . . ., on or about May 21, 2021, . . . [D]efendant did assault or strike at [the victim], with a 9 mm semi-automatic handgun, a deadly weapon, a fourth degree felony, contrary to . . . Section 30-3-2(A).

{¶9} As to the charge of shooting at or from a motor vehicle, the indictment alleges:

Count 3: Shooting At or From a Motor Vehicle (No Great Bodily Harm) . . ., on or about May 21, 2021, . . . [D]efendant did willfully and unlawfully discharge a firearm at/from a motor vehicle with reckless disregard for the safety of any other person, a fourth degree felony, contrary to . . . Section 30-3-8(B).

{¶10} The allegations for each of these charges does little to help this Court determine whether "the acts underlying the two offenses are separated by sufficient indicia of distinctness." See Lorenzo, 2024-NMSC-003, ¶ 6 (internal quotation marks and citation omitted). In other words, apart from the allegations in the indictment that Defendant used a firearm in the commission of each crime, there is a paucity of other factual detail in the indictment that inhibits this Court's determination of whether the acts giving rise to these charges "were close in time and space, their similarity, the sequence in which they occurred, whether other events intervened, and the defendant's goals for and mental state during each act." State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104. We therefore cannot rely on the indictment to determine unity of conduct for these charges.

{¶11} Concluding that the indictment does not assist us in determining unity of conduct, we next consider the jury instructions. See Lorenzo, 2024-NMSC-003, ¶ 6 ("In determining sufficiency, we look to the elements of the charged offenses . . . and the instructions given to the jury." (alteration, omission, internal quotation marks, and citation omitted)). Here, as to the charge of aggravated assault by use of a deadly weapon, jury instruction number 6 instructs the jury that to find Defendant guilty of that charge, the State must prove each of the following elements beyond a reasonable doubt:

1. [D]efendant shot at [the victim];

2. [D]efendant's conduct caused [the victim] to believe [D]efendant was about to intrude on [the victim's] bodily integrity or personal safety by touching or applying force to [the victim] in a rude, insolent or angry manner; 3. A reasonable person in the same circumstances as [the victim] would have had the same belief;

4. [D]efendant used a handgun;

5. This happened in New Mexico on or about the 21st day of May, 2021.

{¶12} As to the charge of shooting at or from a motor vehicle, jury instruction number 7 instructs the jury that to find Defendant guilty of that charge, the State must prove each of the following elements beyond a reasonable doubt:

1. [D]efendant willfully shot a firearm at or from a motor vehicle with reckless disregard for another person;

2. This happened in New Mexico on or about the 21st day of May, 2021.

{¶13} Like the indictment, the jury instructions do not meaningfully assist this Court in determining the presence of unitary conduct as to these charges. Apart from requiring that Defendant shot a firearm in the commission of each crime, the instructions do not provide further detail as to whether the acts giving rise to the charges "were close in time and space, their similarity, the sequence in which they occurred, whether other events intervened, and the defendant's goals for and mental state during each act." See Franco, 2005-NMSC-013, ¶ 7. We therefore cannot rely on the instructions to determine unity of conduct for these charges.

{¶14} Because neither the...