State v. Cook
| Decision Date | 13 June 2006 |
| Docket Number | No. 24,957.,24,957. |
| Citation | 142 P.3d 944,2006 NMCA 110 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Jesse COOK, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Appellee.
John Bigelow, Chief Public Defender, Cordelia A. Friedman, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} A jury convicted Defendant of kidnaping, two counts of criminal sexual penetration, and two counts of tampering with evidence. The jury instructions on the tampering charges were identical except for references to different counts in the indictment, and those counts were also identically worded. On appeal, Defendant challenges (1) his convictions for two counts of tampering with evidence on the ground that they violate his right to be free from double jeopardy, and (2) the enhancement of his sentence on the ground that the trial court's factual findings violated his Sixth Amendment right to a jury. In addition, the State asks us to review whether Defendant should have been sentenced for evidence tampering as third, rather than fourth, degree felonies. Because we conclude that convicting Defendant for two counts of tampering with evidence violates his right to be free from double jeopardy, we remand to the trial court for dismissal of one of Defendant's convictions for evidence tampering. We affirm both the enhancement of Defendant's sentence and his sentence for tampering with evidence as a fourth degree felony.
{2} In July 2003, Victim was working at a grocery store when Defendant kidnapped her from the parking lot, drove her out of town, and raped her inside his truck. Victim testified that after penetrating her, Defendant ejaculated on her hand and thigh. Victim later agreed with the State that Defendant had ejaculated on her hand, thigh, and the seat of the truck. She stated that Defendant then scrubbed the semen off with a T-shirt. Victim did not know where this T-shirt was because she could not see and only remembered "feeling the cloth on my leg and on my hand."
{3} Defendant proceeded to tell Victim that she needed to "clean that off, that's DNA, that's evidence." He led Victim down to the riverbank, giving her a paper cup to scoop up water to wash herself. Victim scooped up one cup of water and acted as if she was washing herself thoroughly while trying to save some of the evidence. Defendant later released Victim, after which he was apprehended and made statements to police consistent with Victim's statements.
{4} The grand jury indicted Defendant on two counts of tampering with evidence as fourth degree felonies. Each identical count did not reveal the specific factual basis for the charge. Both Counts 4 and 5 read as follows:
Tampering with Evidence, on or about July 17, 2003, in Dona Ana County, New Mexico, the above-named defendant did destroy body fluids, trace evidence and/or physical evidence with the intent to prevent the apprehension, prosecution or conviction of himself, a fourth degree felony, contrary to [NMSA 1978, §] 30-22-5 [(2003)].
The record reveals that there was initially some confusion between the parties as to the basis for the two counts of evidence tampering. However, after the defense rested, defense counsel informed the trial court that there was no dispute about the jury instructions. Those instructions read as follows:
For you to find the defendant guilty of tampering with evidence as charged in Count 4 [or Count 5], the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant destroyed body fluids, trace evidence and/or physical evidence;
2. The defendant intended to prevent the apprehension, prosecution or conviction of himself;
3. This happened in New Mexico on or about the 17th day of July, 2003.
In closing, the State argued to the jury that Count 4 referred to Defendant's beginning to wipe Victim and wiping his truck and that Count 5 was based on making Victim wash at the river. Defense counsel asserted that Count 4 was based on Victim's testimony that Defendant attempted to clean the truck seat and that Count 5 was based on Victim's washing in the river. Defendant argued that he should be acquitted on Count 5 because Victim did not destroy evidence when she washed at the river. The jury found Defendant guilty on both counts.
{5} The State then filed a notice that it sought enhancement of Defendant's basic sentence for kidnaping under NMSA 1978, § 31-18-15.1 (1993). At sentencing, the trial court found that aggravating circumstances existed and enhanced Defendant's sentence by three years.
{6} Defendant raises two issues on appeal: (1) whether the identical jury instructions violated Defendant's rights to due process and freedom from double jeopardy, and (2) whether the enhancement of Defendant's sentence violated his Sixth Amendment right to have a jury find the facts supporting the enhancement of his sentence. In its answer brief, the State raises the issue of whether Defendant was correctly sentenced for the two counts of evidence tampering. We address each issue in turn.
{7} Defendant argues that the identical jury instructions on two counts of tampering with evidence violate his right to due process and his right to be free from double jeopardy. More specifically, Defendant argues that the undifferentiated jury instructions, combined with identical counts in the indictment, provided no guidance for the jury about which facts were relevant to each count. Thus, Defendant argues, the jury could have relied on the same facts to convict him of two crimes.
{8} While we note that Defendant did not object to the jury instructions, Defendant may raise a double jeopardy challenge on appeal regardless of whether the issue was preserved. State v. Rodriguez, 2004-NMCA-125, ¶ 4, 136 N.M. 494, 100 P.3d 200, cert. granted, 2004-NMCERT-10, 136 N.M. 542, 101 P.3d 808; State v. Soto, 2001-NMCA-098, ¶ 12, 131 N.M. 299, 35 P.3d 304. Relying on State v. Elliott, 89 N.M. 756, 557 P.2d 1105 (1977), the State urges us to consider Defendant's argument as an unpreserved attack on the jury instructions. In Elliott, our Supreme Court held that the defendant had committed four separate acts for purposes of double jeopardy. Id. at 758, 557 P.2d at 1107. However, our Supreme Court also stated that defendant's single-intent doctrine argument was not preserved because the defendant had not sought an instruction on the issue. Id. In this case, we also take up the issue of double jeopardy.
{9} Because Defendant was charged with two counts of tampering with evidence, the double jeopardy issue raised in this appeal arises from a subset of multiple punishment claims: a unit-of-prosecution claim. That is, Defendant was charged with more than one violation of the same statute. See Swafford v. State, 112 N.M. 3, 8, 810 P.2d 1223, 1228 (1991). "The pivotal question in multiple punishment cases is whether the defendant is being punished twice for the same offense." Id. at 7-8, 810 P.2d at 1227-28. In such cases, we first inquire "whether the legislature intended punishment for the entire course of conduct or for each discrete act." Id. at 8, 810 P.2d at 1228. We then look to see "whether the charged acts were sufficiently distinct." State v. Stewart, 2005-NMCA-126, ¶ 13, 138 N.M. 500, 122 P.3d 1269.
{10} Our Supreme Court has noted that "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." State v. Pierce, 110 N.M. 76, 84-85, 792 P.2d 408, 416-17 (1990) (internal quotation marks and citation omitted). Thus, if the legislative intent is unclear, we presume "the legislature did not intend to fragment a course of conduct into separate offenses." Swafford, 112 N.M. at 8, 810 P.2d at 1228. In other words, we presume that the statute was not intended to impose "multiple punishments for acts that are not sufficiently distinct." State v. DeGraff, 2006-NMSC-011, ¶ 32, 139 N.M. 211, 131 P.3d 61. We apply this "rule of lenity" because "criminal statutes should be interpreted in the defendant's favor when insurmountable ambiguity persists regarding the intended scope of a criminal statute." State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994).
{11} The record demonstrates that the State and Defendant initially did not agree about the factual basis for each count. The parties differed considerably, at times representing Defendant's telling Victim to wash herself, keeping Victim's undergarments, destroying evidence on Victim's body, wiping the truck seat, and having Victim wash in the river as the facts underlying either of the two counts at different times during the trial. The facts supporting criminal convictions should not be capable of such shifting. The parties' "clarifications" of the instructions only served to confuse the factual bases for each count.
{12} The evidence itself was occasionally vague and equivocal, as shown concerning whether Defendant wiped the truck seat. Victim initially testified that Defendant ejaculated "on my hand and my thigh," and that "he scrubbed it off with a T-shirt." Victim did not mention the truck seat. Subsequently, the following interchange took place:
[State]: You said he had ejaculated and got some on your leg and your hand and on the seat?
[Victim]: Uh-hum.
[State]: Do you know where that T-shirt was that he cleans the seat with?
[Victim]: No, I don't. At the time, I assumed it was the shirt taken from me. But I have no proof of that. I just remember feeling the cloth on my leg and on my hand.
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