1998 -NMCA- 153, State v. Duran

• Decision Date: 18 August 1998
• Docket Number: No. 18,787,18,787
• Citation: 966 P.2d 768,126 N.M. 60,1998 NMCA 153
• Parties: , 1998 -NMCA- 153 STATE of New Mexico, Plaintiff-Appellee, v. Vincent Michael DURAN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 768

966 P.2d 768

126 N.M. 60, 1998 -NMCA- 153

STATE of New Mexico, Plaintiff-Appellee, v. Vincent Michael DURAN, Defendant-Appellant.

No. 18,787.

Court of Appeals of New Mexico.

Aug. 18, 1998.

Certiorari Denied, No. 25, 353,

Oct. 13, 1998.

Tom Udall, Attorney General, M. Victoria Wilson, Ass't Attorney General, Santa Fe, for Appellee.

Phyllis H. Subin, Chief Public Defender, Karl Erich Martell, Ass't Appellate Defender, Santa Fe, for Appellant.

OPINION

DONNELLY, Judge.

¶1 Defendant appeals from a judgment and sentence entered after a jury trial, wherein he was convicted of stalking, harassment, and two counts of criminal trespass. We address the following issues on appeal: (1) whether Defendant's convictions for stalking and harassment violate constitutional double jeopardy protections, (2) whether the New Mexico criminal harassment statute, NMSA 1978, § 30-3A-2 (1993), is unconstitutionally vague, (3) whether Defendant's convictions were supported by sufficient evidence, and (4) whether Defendant was denied due process of law because of alleged bias of the trial judge. We affirm in part and reverse in part.

FACTS

¶2 On April 1, 1995, at approximately 1:30 a.m., Nancy Hills awakened and saw a man, who she subsequently identified as Defendant, on a bicycle in front of her residence. She continued to observe Defendant and saw him go up to her front yard, dismount, and then begin peering into the windows of her home. Defendant pressed his face up against the glass of her bedroom window and then, after seeing Hills, ran from her yard. Hills telephoned the police and then saw that Defendant had gone across the street, his pants were down around his legs, and he was masturbating.

¶3 A few weeks later, Hills heard noises outside the bedroom of her home. She opened the blinds and she saw Defendant in the bushes looking into the windows of a neighbor's home. One evening in August 1995, Hills again discovered Defendant standing near her house and looking into her windows. A few days later, on August 31, 1995, Hills once more heard noises outside the windows of her home. She opened the curtains and observed Defendant standing by her window. He ran away when she screamed.

¶4 On June 1, 1996, at approximately 12:30 a.m., Hills drove up to her home and observed that her porch light was out, although she had left it on earlier in the evening. She saw Defendant in some bushes near her front door. Hills stayed in her car and Defendant fled. She subsequently discovered that the light fixture on her porch had been dismantled and that, when Defendant ran away, he grabbed the light fixture which was laying on her front lawn.

¶5 Sergeant Thomas Martin, an Albuquerque City police officer, testified that on July 17, 1996, he and another officer received a radio dispatch that a person was looking into a residence. When the officers arrived, they stopped Defendant who was walking away from the area. Shortly after 11:00 p.m., Hills heard voices outside and saw the police talking to Defendant near her house. She went outside and told the officers that Defendant was the individual who had been bothering her and several of her neighbors for over a year. The following day, the police arrested Defendant and he was charged with harassment, stalking, and criminal trespass.

¶6 On another occasion that same year, Hills saw Defendant walking toward her and she told him to stay away from her. In May 1997, two weeks prior to trial, Hills again saw Defendant as she was returning from a walk at dusk. She stated that Defendant rode by her on a bicycle, then turned around and started slowly following her. She asked two women in a nearby house to accompany her to her house. When she returned home, she again called the police. Hills testified that as a result of these incidents she was angry and scared. As a result of Defendant's actions, Hills had all the bushes removed by her front door, she had iron rods put on the windows and doors, and she had a motion detector light installed. Hills also testified that because of these experiences, she tries to avoid going out of her home at night and she carries mace with her. Hills testified that she had observed Defendant walking on her property or around the area where she lived more than twenty different times.

¶7 Eugena Rodriguez testified that on May 5, 1997, she was visiting a friend in the neighborhood near where Hills lives. She stated that sometime after 9:00 p.m., Hills came to the door of her friend's home and that Hills appeared nervous and frantic. She stated that Hills asked if they would walk her home. They agreed, and they accompanied her to her home. As Rodriguez and her friend were returning back to the friend's home, a man suddenly came out of the bushes with a bicycle. They watched him ride slowly away and then ride toward Hills' home. They saw him dismount from the bicycle and run up to Hills' home. Rodriguez and her friend then returned home, got into a car, and drove to Hills' residence to see if she was safe. Hills came to the door, indicated that she was all right, but told them she had called 911.

¶8 Rodriguez stated that although she could not clearly see the individual who she observed come out of the bushes and ride off on his bicycle, he had long hair that covered his face. She believed the individual was in his late twenties.

¶9 Nanette Concotelli-DeFronzo also testified as a witness for the State. She stated that she moved into the neighborhood near Hills at the end of May 1995. In mid-July 1995 she stated that she saw Defendant at Hills' home peering into the windows of her home. Some months later, on June 28, 1996, she stated that she was packing her belongings to move and she heard noises outside her bedroom window. She went to her kitchen and pulled the window blinds up and saw Defendant standing outside looking at her. She subsequently discovered that the outside light on her house had been unscrewed and that a similar thing had happened to the porch light on Hills' house. She stated that when she saw Defendant's face, she became frightened and phoned both Hills and the police. The police arrived and informed her that they had not found anybody outside her home, but they had seen somebody riding a bicycle away from the area as they drove up.

¶10 At the conclusion of the jury trial, the jury returned verdicts convicting Defendant of harassment, stalking, and two counts of criminal trespass.

DISCUSSION

Claim of Double Jeopardy

¶11 Defendant argues that the jury verdicts convicting him of both harassment under Section 30-3A-2 and stalking under NMSA 1978, § 30-3A-3 (1993), and the trial court's imposition of consecutive sentences for both offenses improperly subjected him to multiple punishments and violated his right to be free from double jeopardy.

¶12 In addition to the prohibition contained in the Fifth Amendment to the United States Constitution, New Mexico has adopted both constitutional and statutory prohibitions against an individual being placed in double jeopardy. See N.M. Const. art. II, § 15; NMSA 1978, § 30-1-10 (1963). The protections against double jeopardy provide safeguards against successive prosecutions after an acquittal, a second prosecution after conviction, and multiple punishments for the same offenses. See State v. Cooper, 1997-NMSC-058, p 52, 124 N.M. 277, 949 P.2d 660; State v. Trevino, 113 N.M. 804, 808, 833 P.2d 1170, 1174 (Ct.App.1991); see also State v. Mora, 1997-NMSC-060, p 64, 124 N.M. 346, 950 P.2d 789. It is the latter protection that Defendant invokes in the instant case.

¶13 The grand jury indictment charging Defendant with stalking and the separate charge of harassment alleged that the acts of Defendant underlying both offenses occurred "on or between April 1, 1995 and July 17, 1996." The versions of the harassment and the stalking statutes under which Defendant was indicted and convicted, were enacted by the Legislature in 1993. See 1993 N.M.Laws, ch. 86, §§ 2, 3.¹

¶14 In analyzing Defendant's double jeopardy claim, a reviewing court first determines whether the conduct of Defendant was unitary in nature so that the same acts were used to prove a violation of both statutes. See State v. Livernois, 1997-NMSC-019, p 19, 123 N.M. 128, 934 P.2d 1057; see also State v. Fuentes, 119 N.M. 104, 105, 888 P.2d 986, 987 (Ct.App.1994). As set forth in Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991), multiple punishment for conduct that is not unitary does not contravene double jeopardy protections. Conversely, however, if the conduct is unitary, the court must then examine the statutes in question to determine whether the Legislature intended that multiple punishments could be imposed for different criminal offenses resulting from the same conduct. See id.

¶15 The first inquiry, whether the conduct is unitary, is a mixed question of law and fact necessitating a careful review of the elements of the offenses in question and the facts elicited at trial, which we review de novo. See State v. Attaway, 117 N.M. 141, 144, 870 P.2d 103, 106 (1994). The second inquiry, however, is a legal question involving scrutiny of the elements of the statutes in question. See Swafford, 112 N.M. at 8, 810 P.2d at 1228.

¶16 Defendant argues, and the State does not dispute Defendant's claim, that the same pattern of conduct was used to prove both the crimes of harassment and of stalking. Thus, we turn our inquiry to the issue of whether Defendant may be punished separately for identical acts underlying the charges of both harassment and stalking. Whether the Legislature intended multiple punishments for unitary conduct, involves a determination of whether either of the statutes in question requires proof of one or more elements which the other does not. See Mora, 1997-NMSC-060, p 66, 124 N.M. 346, 950 P.2d 789 (applying test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)); State v....