State v. Autrey
| Decision Date | 12 April 2022 |
| Docket Number | A-1-CA-38116 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. TANNER R. AUTREY, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
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 CURRY COUNTY Drew D. Tatum District Judge.
Hector H. Balderas, Attorney General Van Snow, Assistant Attorney General Santa Fe, NM for Appellee
Bennett J. Baur, Chief Public Defender William O'Connell Assistant Appellate Defender Santa Fe, NM for Appellant
{¶1} Defendant Tanner Autrey appeals his convictions for first-degree kidnapping (NMSA 1978, § 30-4-1 (2003)); second-degree criminal sexual penetration (CSP) (NMSA 1978, § 30-9-11(E) (2009)); misdemeanor aggravated battery against a household member (NMSA 1978, § 30-3-16 (2008, amended 2018)); and interference with communications (NMSA 1978, § 30-12-1 (1979)). We conclude that Defendant's convictions for CSP and kidnapping violate the prohibition against double jeopardy, and we accordingly remand to the district court to vacate the lesser of these convictions. Concluding Defendant's additional claims of error lack merit, we otherwise affirm.
{¶2} Defendant's convictions arose from an incident in December 2016 involving Victim, a twenty-one-year old, married woman whom Defendant had known since their teenage years.
{¶3} Victim testified to the following at trial. In the month prior to the incident, Victim and Defendant had been communicating with each other and had had sexual intercourse three times. Victim did not consent on any of these occasions. She decided to give Defendant thirty minutes to explain his conduct, so she agreed to go to his home. Having arrived around midnight, and having let the thirty minutes pass, Victim tried to leave and a struggle between the two ensued. Defendant forced Victim into his bedroom. Defendant undressed Victim, and he took her phone and put it in a drawer. Defendant also choked, struck, and spit on Victim, and he duct-taped her hands behind her back. At some point during the struggle, Defendant penetrated Victim vaginally with his penis; he also attempted to penetrate her anally and to put his genitalia in her mouth. Eventually, Victim managed to retrieve her phone, call for help, and leave. Victim testified that the entire ordeal lasted about four hours, and the rape happened at the end but she did not remember how long it lasted-possibly an hour or two.
{¶4} Defendant testified in his defense, maintaining that Victim consented to the entire incident. The jury received the case late in the evening and finished its deliberations shortly after midnight. The jury convicted Defendant of first-degree kidnapping, based on his inflicting a sexual offense; second-degree CSP, based on vaginal penetration and physical injury; aggravated battery against a household member; and interference with communications.
{¶5} Defendant raises several claims on appeal. First, Defendant argues that his CSP and kidnapping convictions violate the prohibition against double jeopardy. Second, Defendant argues the district court erred in permitting evidence of his post-indictment flight. Additionally, Defendant contends the district court unconstitutionally limited the evidence of Victim's past sexual conduct and the jury's deliberation late into the night deprived him of a fair trial.
{¶6} Defendant first contends that his convictions for CSP and first-degree kidnapping violate his right to be free from double jeopardy. As relevant here, 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.
{¶7} 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: (1) whether the conduct underlying the offenses is unitary and (2) if so, whether the Legislature intended to punish the offenses separately. State v. Silvas, 2015-NMSC-006, ¶ 9, 343 P.3d 616. "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. (internal quotation marks and citation omitted). "A double jeopardy challenge is a constitutional question of law which we review de novo." State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747.
{¶8} Defendant specifically contends that, because his conviction for CSP was used to elevate his kidnapping conviction from a second- to a first-degree offense, his CSP conviction was effectively subsumed in his first-degree kidnapping conviction and punishment for both offenses violates his right to be free from double jeopardy. In light of this Court's recent decision in State v. Serrato, 2021-NMCA-027, 493 P.3d 383, cert. denied, 2020-NMCERT-___ (No. S-1-SC-38204, May 4, 2020), which squarely addressed and decided a substantially identical double jeopardy claim, we agree with Defendant.[1]
A. Unitary Conduct
{¶9} As for the first Swafford prong, unitary conduct, "[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." State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (internal quotation marks and citation omitted). In making this determination, we examine the evidence produced at trial against the elements of the offenses, as stated in the jury instructions. See id. ¶ 9 (); State v. Foster, 1999-NMSC-007, ¶ 39, 126 N.M. 646, 974 P.2d 140 (), abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683; see also Swafford, 1991-NMSC-043, ¶ 27 ().
{¶10} In Serrato, this Court addressed whether the defendant's convictions for criminal sexual contact of a minor (CSCM) and first-degree kidnapping violated his right to be free from double jeopardy. 2021-NMCA-027, ¶ 21. To determine whether the conduct underlying these convictions was unitary, the Court first examined the elements of first-degree kidnapping. Serrato concluded that the state had to prove the elements of the base crime of second-degree kidnapping-i.e., in relevant part, "the unlawful taking, restraining, transporting or confining of a person, by force, intimidation or deception, with intent . . . to inflict . . . a sexual offense on the victim," § 30-4-1(A)(4)-as well as the element that elevated the offense to a first-degree felony-i.e., in relevant part, "inflict[ing] . . . a sexual offense upon the victim," § 30-4-1(B). See Serrato, 2021-NMCA-027, ¶¶ 23-26; see also Foster, 1999-NMSC-007, ¶¶ 33-34 (). In so holding, the Court rejected the state's argument that first-degree kidnapping was complete, for double jeopardy purposes, as soon as the unlawful taking, restraining, transporting or confining occurred, but prior to the commission of a sexual offense. See Serrato, 2021-NMCA-027, ¶¶ 24-25; see also id. ¶ 26 (). The Court then held that because "the elements of first-degree kidnapping were not satisfied until a sexual offense was committed" and there was evidence of only one sexual offense (CSCM), "[t]he conduct underlying efendant's convictions for first-degree kidnapping and CSCM [wa]s unitary." Id. ¶ 26.
{¶11} Applying these concepts to the facts of this case, we likewise conclude that unitary conduct underlies Defendant's convictions for CSP and first-degree kidnapping. Consistent with Serrato, the elements of first-degree kidnapping were not satisfied until a sexual offense was committed. See id. The first-degree kidnapping instruction provided in relevant part that "[D]efendant inflicted a sexual offense upon [Victim] during the course of the kidnapping." See UJI 14-403(5) NMRA. The jury instructions did not identify which "sexual offense" the State contended Defendant inflicted. On appeal, however, the State effectively concedes that the sexual offense used to prove first-degree kidnapping was Defendant's CSP conviction. The State nonetheless contends that Defendant's CSP and first-degree kidnapping convictions are not unitary on two grounds. We are not persuaded.
{¶12} First, as in Serrato, the State contends that the CSP and the kidnapping occurred at separate times because the kidnapping was completed when Defendant restrained Victim prior to committing a...
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