805 P.2d 624 (N.M. 1991), 19224, Herron v. State

Docket Nº:19224.
Citation:805 P.2d 624, 111 N.M. 357, 1991 -NMSC- 012
Opinion Judge:[10] Ransom
Party Name:James HERRON, Petitioner, v. STATE of New Mexico, Respondent.
Attorney:Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for petitioner., Tom Udall, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for respondent., OPINION [7] Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Assistant Appellate Defender, Santa ...
Judge Panel:SOSA, C.J., and FRANCHINI, J., concur.
Case Date:February 04, 1991
Court:Supreme Court of New Mexico
 
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Page 624

805 P.2d 624 (N.M. 1991)

111 N.M. 357, 1991 -NMSC- 012

James HERRON, Petitioner,

v.

STATE of New Mexico, Respondent.

No. 19224.

Supreme Court of New Mexico.

February 4, 1991

Rehearing Denied March 5, 1991. As Amended March 6, 1991.

[111 N.M. 357] Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for petitioner.

Tom Udall, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for respondent.

Page 625

[111 N.M. 358] OPINION

RANSOM, Justice.

A jury convicted James Herron on all counts under a twenty-three count indictment. He was convicted on one count of kidnapping in violation of NMSA 1978, Section 30-4-1 (Repl.Pamp.1984), and one count of conspiracy to commit criminal sexual penetration in violation of NMSA 1978, Sections 30-28-2 and 30-9-11 (Repl.Pamp.1984). Additionally, he was convicted on twenty-one counts of second-degree criminal sexual penetration in violation of NMSA 1978, Section 30-9-11(B). 1 Two of the latter counts involved aiding and abetting and are not at issue. The court of appeals affirmed the convictions. We granted certiorari to determine whether, in light of our recent decision in State v. Pierce, 110 N.M. 76, 792 P.2d 408 (1990), convictions for nineteen of the twenty-one counts of second-degree criminal sexual penetration are contrary to the double jeopardy clauses of the New Mexico and United States Constitutions. N.M. Const. art. II, Sec. 15; U.S. Const. amend. V. We affirm in part, reverse in part, and remand.

Facts. The victim was approached by three men in a car while walking along Central Avenue in Albuquerque late in the evening of August 1, 1987. From a previous meeting in San Gabriel Park, the victim recognized two of the car's occupants, James Herron and his uncle, Marvin Herron. She entered their car. The men drove to Marvin's house and asked the victim if she would come in for a minute.

Inside the house, Marvin repeatedly asked the victim to have sex with him and at one point offered her ten dollars in return for sex. The victim laughed and refused, stating she would not do such a thing for less than fifty dollars. Marvin later offered her fifty dollars, and the victim responded that she was not serious and again refused his offer. The victim then stated to the men that she wanted to leave. James scoffed at her request and threw her to the floor, struck her, and threatened to kill her if she did not stop struggling. The victim was ordered to remove her clothing whereupon Marvin penetrated her vaginally while James forced her to perform fellatio on him. Marvin left the room, and James continued to have sex with the victim for a period spanning one hour until the victim, still naked, fled the house and obtained help.

At issue are Herron's conviction on nineteen counts of second-degree criminal sexual penetration for each penetration that occurred while he was alone with the victim. Those counts were supported, in large part, by the following testimony of the victim:

Question (by prosecutor): Do you recall, specifically, the [exact] sequencing of [events]?

Answer (by victim): No.

* * * * * *

Question: Are you sure each of those [acts] occurred?

Answer: Positive.

Question: Do you know * * * approximately how many times each act occurred?

Answer: Approximately, he penetrated me five times with his penis in my mouth, approximately five times with his penis in my vagina, approximately five times with his penis in my anus, and approximately three times with his finger in my vagina, and just once with his finger in my anus.

The victim later clarified by the term "approximately" she meant at "a minimum."

Double jeopardy. Herron contends that his convictions on each of the nineteen counts at issue violated the state and federal constitutional guarantees against double jeopardy because they subjected him to multiple punishment for the same offense. 2

Page 626

[111 N.M. 359] Specifically, he argues that his assault should be prosecuted on an "object-orifice" theory: penetration of an orifice by a distinct object is one offense, and later penetrations of the same orifice by the same object are not separate offenses. 3 Herron's argument rests on the premise that when multiple acts are committed in close temporal proximity, they are part of a continuous process and constitute but one offense. Crawford v. State, 688 P.2d 347, 348 (Okla.Crim.App.1984) (where two acts of rape have occurred within a short period of time, it is part of a continuous process and constitutes only one crime). The court of appeals, on the other hand, held that each penetration, however temporally proximate, constituted a separate and distinct offense under Section 30-9-11.

In determining whether the State's charging pattern suffered from multiplicity, 4 we first must identify the appropriate unit of prosecution under Section 30-9-11. As we recently observed in State v. Pierce, 110 N.M. 76, 792 P.2d 408 (1990), " 'the only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended.' " Id. at 84-85, 792 P.2d at 416-17 (quoting Whalen v. United States, 445 U.S. 684, 697, 100 S.Ct. 1432, 1440, 63 L.Ed.2d 715 (1980) (Blackmun, J., concurring)). The issue, though essentially constitutional, becomes one of statutory construction.

Section 30-9-11 defines criminal sexual penetration as:

[T]he unlawful and intentional causing of a person * * * to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse, or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.

That language does not indicate unambiguously whether the legislature intended under Section 30-9-11 to create a separate offense for each penetration occurring during a continuous...

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