State v. Ford, 24,934.

• Decision Date: 08 March 2007
• Docket Number: No. 24,934.,24,934.
• Citation: 157 P.3d 77,2007 NMCA 052
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Winston FORD, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

157 P.3d 77

2007 NMCA 052

STATE of New Mexico, Plaintiff-Appellee, v. Winston FORD, Defendant-Appellant.

No. 24,934.

Court of Appeals of New Mexico.

March 8, 2007.

Certiorari Denied, No. 30,320, April 24, 2007.

Gary K. King, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender, Jennifer Byrns, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

ROBINSON, Judge.

{1} Following a jury trial, Winston Ford (Defendant) was convicted of the following offenses: Count I — Battery Upon a Peace Officer, contrary to NMSA 1978, § 30-22-24 (1971) (involving Officer Allen); Count II — Assault Upon a Peace Officer, contrary to NMSA 1978, § 30-22-21 (1971) (also involving Officer Allen); Count III — Assault Upon a Peace Officer, contrary to Section 30-22-21 (involving Sergeant Plowman); and Count V — Resisting, Evading or Obstructing an Officer, contrary to NMSA 1978, § 30-22-1 (1981) (again involving Officer Allen).

{2} On appeal, Defendant argues (1) that he has been subject to multiple punishments stemming from his convictions for resisting, evading, or obstructing an officer, and battery on an officer, contrary to the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, and that he is entitled to have his resisting, evading, or obstructing an officer conviction reversed; (2) that the State presented insufficient evidence on its charge of assault on a peace officer because it presented no testimony or evidence that Officer Allen feared intrusion upon his bodily integrity as a result of Defendant's conduct; (3) that the State presented insufficient evidence on its charge of battery on a peace officer, arguing that Defendant's own testimony renders the evidence of battery insubstantial; and (4) that he was deprived of effective assistance of counsel due to counsel's failure to investigate the case and discover corroborating witnesses for the defense.

{3} We conclude that Defendant's convictions for resisting, evading, or obstructing an officer and battery on an officer are based on unitary conduct and are subsumed within one another. Therefore, there was a double jeopardy violation in the convictions of both crimes. Defendant's convictions for both assault and battery upon Officer Allen are each supported by substantial evidence, and we therefore affirm those convictions. We, however, decline to rule on the ineffective assistance of counsel contention because there is not a sufficient record on which to decide the issue.

I. BACKGROUND

{4} On April 18, 2003, three members of the Lordsburg Police Department — Sergeant Rodney Plowman, Officer Marcus Martinez, and Officer Dason Allen — responded to a report of a man with a gun at the Nugget Lounge. When they arrived, they saw Defendant's uncle, Elfigo Graham (Uncle), standing at the entrance to the bar with a gun in his hand. The officers approached him and ordered him to put the gun down, but Uncle did not respond and walked off behind a van. The officers approached Uncle, who no longer had the gun in his hand, and after telling him to stop several times, tried to grab him and handcuff him. They were attempting to arrest Uncle for being a felon in possession of a firearm and for possessing a firearm in a bar. Uncle began calling out for Defendant to help him.

{5} During trial, the State presented the testimony of the three officers, who stated that while they were in the process of arresting Uncle, Defendant exited a vehicle in the parking lot and aggressively approached the officers. Defendant refused to comply after the officers ordered him to go away, and began telling the officers to leave Uncle alone. Defendant was told several times to get back into his car, and then approached the officers coming within inches of them while shaking his fists at them. Defendant then "chest-butted" Officer Allen. Following the chest-butt, Defendant was told he was under arrest. The act underlying the charge of resisting, evading, or obstructing then took place. Officers Allen and Plowman attempted to escort Defendant away. Defendant began to pull his arms away from them and struggled to loosen their grip on him. The struggle persisted as Defendant was physically moved away from the area of Uncle's arrest. After Defendant had been placed in a prone position against a nearby car and the officers were attempting to handcuff him, Defendant kicked Officer Allen in the "right knee, right in the shin area." This evidence was the basis for the conviction of battery on a peace officer.

II. DISCUSSION

A. Double Jeopardy

{6} Defendant contends that his convictions for battery on a peace officer and resisting, evading, or obstructing an officer (both involving Officer Allen) violate his right to be free from double jeopardy. We hold that the facts in this case support a conclusion that Defendant's conduct was unitary rather than distinct, and that resisting, evading, or obstructing an officer is a lesser-included offense of battery on a peace officer. Therefore, Defendant's conviction for resisting is vacated.

{7} The United States and New Mexico Constitutions each include a prohibition that no person "be twice put in jeopardy" for the same offense. N.M. Const. art. II, § 15; U.S. Const. amend. V. Both sides recognize that the question of double jeopardy may be raised at any time. NMSA 1978, § 30-1-10 (1963). Because the issue of whether there has been a double jeopardy violation is a constitutional one, our review is de novo. See State v. Attaway, 117 N.M. 141, 145-46, 870 P.2d 103, 107-08 (1994); see generally Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991).

{8} The double jeopardy prohibition against multiple punishments involves two general categories: (1) "unit of prosecution," which prohibits charging a defendant with "multiple violations of a single statute based on a single course of conduct" and (2) "double-description," which prohibits charging a defendant with "violations of multiple statutes for the same conduct" in violation of the Legislature's intent. State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61 (internal quotation marks omitted); see Swafford, 112 N.M. at 8, 810 P.2d at 1228. Defendant's arguments on his convictions of battery on a peace officer and resisting, evading, or obstructing an officer are based on the double description category that he has been charged under two statutes for the same conduct.

{9} "New Mexico multiple punishment theory is marked by a profusion of terms and tests — each with its own formulaic approach — purportedly serving different double jeopardy or policy interests." Swafford, 112 N.M. at 10, 810 P.2d at 1230. These tests were addressed in Swafford with our New Mexico Supreme Court adopting a two-part test for double-description multiple punishment cases. Id. at 13, 810 P.2d at 1233. This test is known as the "Swafford test." See State v. Armendariz, 2006-NMSC-036, ¶ 20, 140 N.M. 182, 141 P.3d 526. Therefore, we address double jeopardy claims involving double description under the two-part test set forth in Swafford, 112 N.M. at 13-14, 810 P.2d at 1233-34.

{10} Under the Swafford test, first, we determine whether the conduct is unitary. Id. at 13, 810 P.2d 1223. If the conduct is non-unitary, multiple punishments do not violate the Double Jeopardy Clause, and our examination ends. Id. at 14, 810 P.2d at 1234. But, if the conduct can reasonably be said to be unitary, second, we address "whether the [L]egislature intended multiple punishments." Id.

{11} Absent a clear expression from the Legislature to impose multiple punishments, we follow the rule of statutory construction known as the "Blockburger test," taken from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. 180. "If [the Blockburger] test establishes that one statute is subsumed within the other, the inquiry is over and the statutes are the same for double jeopardy purposes — punishment cannot be had for both." Swafford, 112 N.M. at 14, 810 P.2d at 1234. If each statute requires an element of proof not required by the other, we presume that the Legislature intended to punish the offenses separately. Id.

{12} Defendant argues that his convictions for both battery on a peace officer and resisting, evading, or obstructing an officer violate double jeopardy protections. He asserts that his conduct was unitary. We agree. Separate punishments are permissible and conduct is not unitary if the offenses are "separated by sufficient indicia of distinctness." Id. at 13, 810 P.2d at 1233. To determine whether a defendant's conduct was unitary, we consider such factors as whether the acts were close in time and space, their similarity, the sequence in which they occurred, whether other events intervened, and a defendant's goals for and mental state during each act. See State v. Dominguez, 2005-NMSC-001, ¶ 23, 137 N.M. 1, 106 P.3d 563. If conduct is separate and distinct, there is no basis for any further analysis of a double jeopardy claim. Swafford, 112 N.M. at 14, 810 P.2d at 1234.

{13} In the present case, the conduct underlying the offenses was unitary. Defendant's convictions for both crimes were based on his struggling while officers were trying to handcuff him following the chest-butt of Officer Allen, during which the officer was then kicked in the shin. The act of resisting Officer Allen occurred when Defendant was told that he was under arrest, which was after he chest-butted the officer in an attempt to, according to the officer, "challenge [his] authority." As both Officer Allen and Sergeant Plowman tried to...