State v. Cordova

• Docket Number: A-1-CA-38618
• Decision Date: 31 August 2022
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. JASON I. CORDOVA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

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STATE OF NEW MEXICO, Plaintiff-Appellee, v. JASON I. CORDOVA, Defendant-Appellant.

No. A-1-CA-38618

Court of Appeals of New Mexico

August 31, 2022

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 RIO ARRIBA COUNTY Jason Lidyard District Judge

Hector H. Balderas, Attorney General Santa Fe, NM Walter Hart Assistant Attorney General Albuquerque, NM for Appellee

Bennett J. Baur, Chief Public Defender Joelle N. Gonzales Assistant Appellate Defender Santa Fe, NM for Appellant

MEMORANDUM OPINION

KRISTINA BOGARDUS, JUDGE

{¶1} The opinion filed on August 11, 2022, is hereby withdrawn, and this opinion is substituted in its place. A jury convicted Defendant Jason Cordova of, among other charges, aggravated burglary, pursuant to NMSA 1978, Section 30-16-4(C) (1963); aggravated battery (great bodily harm), pursuant to NMSA 1978, Section 30-3-5(C) (1969); and tampering with evidence, pursuant to NMSA 1978, Section 30-22-5(A) (2003), based on Defendant entering Victim's home without her permission and sexually assaulting her. Defendant appeals his convictions for aggravated battery and tampering with evidence, arguing his convictions for aggravated burglary and aggravated battery violate his right to be free from double jeopardy, and insufficient evidence supports his conviction for tampering with evidence. He also argues the district court improperly denied his motion for mistrial based on jury misconduct. We vacate Defendant's convictions for aggravated battery and tampering with evidence and otherwise affirm.

{¶2} Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of this case, we reserve discussion of specific facts where necessary to our analysis.

DISCUSSION

I. Double Jeopardy

{¶3} Defendant argues that his conviction for aggravated battery violates double jeopardy and must be vacated. We review Defendant's contention de novo. See State v. Lopez, 2008-NMCA-111, ¶ 8, 144 N.M. 705, 191 P.3d 563 ("We generally apply a de novo standard of review to the constitutional question of whether there has been a double jeopardy violation.").

{¶4} As relevant here, the double jeopardy clause protects defendants from receiving "multiple punishments for the same offense." State v. Montoya, 2013-NMSC-020, ¶ 23, 306 P.3d 426 (internal quotation marks and citation omitted). "Multiple punishment cases are of two types: those cases in which a defendant is charged with multiple violations of a single statute based on a single course of conduct ('unit of prosecution' cases) and those cases in which a defendant is charged with violating different statutes in a single course of conduct ('double-description' cases)." State v. Sena, 2020-NMSC-011, ¶ 44, 470 P.3d 227. Here, Defendant's double jeopardy claim is based on a double-description multiple punishment theory.

{¶5} We apply a two-part analysis to double-description cases, the first part which determines "whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates [multiple] statutes." State v. Swafford, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. If the conduct is unitary, we look to the statutes at issue "to determine whether the [L]egislature intended to create separately punishable offenses." Id. Double jeopardy prohibits multiple punishments only when (1) the conduct is unitary, and (2) it is determined that the Legislature did not intend multiple punishments. Id. "Where we conclude that double jeopardy has been violated, we vacate the lesser offense and retain the conviction for the greater offense." State v. Padilla, 2006-NMCA-107, ¶ 36, 140 N.M. 333, 142 P.3d 921, rev'd on other grounds, 2008-NMSC-006, 143 N.M. 310, 176 P.3d 299.

{¶6} The jury was instructed, in relevant part, that to convict Defendant of aggravated burglary, the State had to prove beyond a reasonable doubt that

1. [D]efendant entered a dwelling without authorization;

2. [D]efendant entered the dwelling with the intent to commit criminal sexual penetration and/or aggravated battery once inside; [and]

3. [D]efendant touched or applied force to [Victim] in a rude or angry manner while inside.

The jury was instructed, in relevant part, that in order to convict Defendant of aggravated battery, the State had to prove beyond a reasonable doubt that Defendant "touched or applied force to [Victim] by striking and/or punching and/or hitting her."

{¶7} Here, the two charges against Defendant that implicate double jeopardy both rely on facts demonstrating an element of force. As charged, the application of force within each act is indistinguishable. Victim testified that Defendant entered her home without permission, performed sexual acts on her, and once he was finished, stood up and punched her in the face. The State does not argue nor does the evidence suggest that separate conduct underpinned Defendant's aggravated burglary and aggravated battery convictions. We agree with Defendant, then, that the force elements for both aggravated burglary and aggravated battery were satisfied when Defendant punched Victim and that there was not an identifiable point that could distinguish between the completion of one crime and the start of another. See State v. Silvas, 2015-NMSC-006, ¶ 10, 343 P.3d 616 (noting that "[c]onduct is unitary when not sufficiently separated by time or place, and the object and result or quality and nature of the acts cannot be distinguished"). We conclude that the conduct was unitary and proceed to analyze the second step of the double-description analysis, whether our Legislature intended to punish each conduct separately. See State v. Swick, 2012-NMSC-018, ¶ 11, 279 P.3d 747.

{¶8} "When . . . statutes themselves do not expressly provide for multiple punishments, we begin by applying the rule of statutory construction from Blockburger v. United States, 284 U.S. 299 . . . (1932), to determine whether each provision requires proof of a fact that the other does not," in order to ascertain if the Legislature intended to punish each crime separately. State v. Branch, 2018-NMCA-031, ¶ 24, 417 P.3d 1141; see Swafford, 1991-NMSC-043, ¶¶ 10, 30. "When dealing with statutes that are vague and unspecific or written with many alternatives, we apply a modified version of the Blockburger analysis." State v. Gonzales, 2019-NMCA-036, ¶ 22, 444 P.3d 1064 (internal quotation marks and citation omitted). "Under the modified Blockburger analysis, we no longer apply a strict elements test in the abstract; rather, we look to the state's trial theory to identify the specific criminal cause of action for which the defendant was convicted, filling in the case specific meaning of generic terms in the statute when necessary." Id. (internal quotation marks and citation omitted).

{¶9} With this framework in mind, we continue our analysis by looking to the elements of the two offenses to ascertain if the definition of one subsumes the definition of the other. See Montoya, 2013-NMSC-020, ¶ 32. It is apparent that the two statutes have distinct elements. Section 30-3-5(A) prohibits aggravated battery and reads, in pertinent part that "[a]ggravated battery consists of the unlawful touching or application of force to the person of another with intent to injure that person." Meanwhile, the statute prohibiting aggravated burglary reads, in pertinent part that "[a]ggravated burglary consists of the unauthorized entry of any . . . dwelling or other structure, movable or immovable, with intent to commit any felony or theft therein and the person . . . commits a battery upon any person while in such place." Section 30-16-4(C). Thus, one of these offenses is not subsumed by the other based on these definitions alone.

{¶10} Because each statute requires proof of an element that the other does not, we can infer that the Legislature intended to authorize separate punishments under the aggravated battery and aggravated burglary statutes under the Blockburger test. See Swafford, 1991-NMSC-043, ¶ 12. However, this is merely an inference that allows us to presume the two statutes punish different offenses. See id. ¶ 31. We agree with Defendant that the presumption is not conclusive because the State charged him with aggravated burglary, which has three different alternative aggravating elements, making it a multipurpose statute. See § 30-16-4(A)-(C); State v. Gutierrez, 2012- NMCA-095, ¶ 14, 286 P.3d 608 (stating that we apply the modified Blockburger test when one of the statutes are written with various alternatives); see also State v. Sena, 2018-NMCA-037, ¶¶ 42-44, 419 P.3d 1240 (noting that aggravated burglary has numerous ways in which a conviction may occur so this Court must analyze it through the modified Blockburger test), aff'd in part, rev d in part, and remanded, 2020-NMSC-011, ¶ 56. We now apply the modified Blockburger test which requires us to answer whether the legal theory advanced by the State at trial results in one offense subsuming the other. See Gutierrez, 2012-NMCA-095, ¶ 18; Swick, 2012-NMSC-018, ¶¶ 21,24. More specifically, our analysis is guided by the State's theory of the specific conduct that violated the statutes at issue. See Porter, 2020-NMSC-020, ¶ 18.

{¶11} The charging document and jury instructions do not demonstrate which of Defendant's actions the State argued would satisfy the force element of each charge. See State v. Serrato, 2021-NMCA-027, ¶ 29, 493 P.3d 383 (noting that to determine the state's theory, we examine the charging documents, the...