State v. Fuentes

• Decision Date: 02 December 1994
• Docket Number: No. 15035,15035
• Citation: 1994 NMCA 158,888 P.2d 986,119 N.M. 104
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Julian FUENTES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 986

888 P.2d 986

119 N.M. 104

STATE of New Mexico, Plaintiff-Appellee, v. Julian FUENTES, Defendant-Appellant.

No. 15035.

Court of Appeals of New Mexico.

Dec. 2, 1994.

Certiorari Denied Jan. 17, 1995.

Tom Udall, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Christopher Bulman, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

BOSSON, Judge.

Defendant was convicted of both armed robbery and aggravated battery with a deadly weapon arising from a single incident at a Roswell convenience store. Defendant raises two issues: (1) whether separate convictions for armed robbery and aggravated battery arising from one continuous activity result in an unauthorized, multiple punishment for the same offense in violation of the Double Jeopardy Clause; and (2) whether the trial court committed reversible error by enhancing Defendant's armed robbery sentence based upon the aggravating circumstances surrounding the battery conviction. We affirm.

FACTS

On December 21, 1992, Defendant and his twelve-year-old cousin entered a convenience store. When the cashier asked if he could help Defendant, Defendant responded by pushing him toward the cash register and said, "Give me the money or I'm going to stab you." Thereafter, Defendant produced a knife, stabbing the cashier in the arm and back, and slashing his face. The cashier suffered four separate wounds to his face and body. Defendant stole money from the store register, five dollars from the cashier's wallet and several cigarette cartons. The State charged Defendant with one count of armed robbery and one count of aggravated battery under NMSA 1978, Sections 30-3-5(A) and 30-16-2 (Repl.Pamp.1994). A jury convicted Defendant of both counts. The trial court sentenced Defendant to eighteen years for the armed robbery conviction (supplemented because of a prior armed robbery conviction), and enhanced the sentence by six additional years based on a finding of aggravating circumstances, "namely that the [D]efendant stabbed and slashed the clerk with a knife during the robbery." The trial court also sentenced Defendant separately to three years for the aggravated battery conviction, and ordered all sentences served consecutively. Therefore, Defendant received a total sentence of twenty-seven years.

DOUBLE JEOPARDY

Defendant argues that the trial court erred in imposing separate sentences for armed robbery and aggravated battery because his conviction for aggravated battery was subsumed in the greater offense of armed robbery.

The Double Jeopardy Clause separately protects against " 'a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' " Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969) (footnotes omitted)). This case involves the third protection: multiple punishments for the same offense. In this context, we review the convictions to ensure that the sentence is not greater than the legislature intended. See State v. Franklin, 116 N.M. 565, 568-69, 865 P.2d 1209, 1212-13 (Ct.App.1993); State v. Charlton, 115 N.M. 35, 39, 846 P.2d 341, 345 (Ct.App.1992), cert. denied, 114 N.M. 577, 844 P.2d 827 (1993). Our sole inquiry is legislative intent. See Franklin, 116 N.M. at 568, 865 P.2d at 1212.

Defendant misapprehends our Supreme Court's recent opinion in Swafford, which details the appropriate analysis of double jeopardy claims based on invidious multiple punishment. He argues that the legislature did not intend separate punishments for armed robbery and aggravated battery when both charges arise out of one criminal act, as occurred here. He maintains that the facts supporting his conviction of aggravated battery were also an integral part of the armed robbery charge, and therefore, in effect, he is being punished twice for the same offensive act. Defendant asks this Court to overrule his conviction for aggravated battery because his conviction for armed robbery already punishes him for that same criminal conduct. Our discussion entails a step-by-step application of the Swafford analysis to the elements of these crimes.

We begin with a determination of (1) "whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes"; and (2) if so, whether the legislature intended multiple punishments for the same (unitary) conduct. Swafford, 112 N.M. at 13, 810 P.2d at 1233. Unitary conduct is a prerequisite to this defense because multiple punishments for separate acts can never constitute double jeopardy. Id. In this case the State concedes, and we agree, that Defendant was engaged in unitary conduct. Defendant stabbed and slashed the cashier with a knife and then immediately robbed both the store and the cashier. The stabbing and the robbery were not separated by any significant time or space; they were part of one continuous and compressed chain of events. See State v. Pierce, 110 N.M. 76, 85, 792 P.2d 408, 417 (1990); State v. Mares, 112 N.M. 193, 199-200, 812 P.2d 1341, 1347-48 (Ct.App.), cert. denied, 112 N.M. 235, 814 P.2d 103 (1991); cf. Swafford, 112 N.M. at 15-16, 810 P.2d at 1235-36.

The second inquiry is "whether the legislature intended multiple punishments for unitary conduct." Swafford, 112 N.M. at 14, 810 P.2d at 1234. The State concedes there is no evidence of express legislative intent to this effect. Therefore, we interpret the provisions of Section 30-16-2, by applying canons of statutory construction, including the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), to determine whether the legislature intended that one criminal act, violating two distinct statutes, would constitute two offenses or only one. Blockburger requires a comparison of the statutory elements of the separate criminal statutes before deciding whether, as structured by the legislature, one crime is really only a part of, or subsumed by, another greater offense. See State v. Trevino, 116 N.M. 528, 530, 865 P.2d 1172, 1174 (1993). If so, "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. A statute stands independently and is not subsumed by another, where each crime " 'requires proof of a fact the other does not.' " Id. (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182).

The elements of armed robbery and aggravated battery are set forth in the specific statutes as well as in SCRA 1986, 14-322 and -1621. The crime of armed robbery is defined as the enhancement of robbery; it requires the elements of robbery plus the use of a deadly weapon. See State v. Blea, 84 N.M. 595, 598, 506 P.2d 339, 342 (Ct.App.1973). Robbery is "the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence." Section 30-16-2. The crime of aggravated battery is "the unlawful touching or application of force to the person of another with intent to injure that person or another." Section 30-3-5(A). Robbery requires the specific intent to deprive the victim of his property; it is a crime primarily directed toward protection of property interests. Aggravated battery, on the other hand, requires the specific intent to injure the victim, which is not present in robbery. Compare SCRA 1986, 14-322 with SCRA 1986, 14-1621. Comparing the elements of the two criminal statutes it is evident that the element protecting against the theft of property is unique to robbery and absent from aggravated battery. Likewise, the intent to injure element is unique to aggravated battery; property protection is not an element. Therefore, crime has an element requiring proof of a fact the other does not.

Both aggravated battery and armed robbery may involve the use of force, and therefore, to that extent, the two statutes undoubtedly share common ground. Certainly prosecution of the two crimes could rely on evidence which is similar, or even identical, for proof of the different elements of the statutes. In the days before Swafford, evidence common to both statutes led this Court to conclude that aggravated battery was subsumed by the crime of robbery, precluding a conviction of each. See State v. Gammil, 108 N.M. 208, 769 P.2d 1299 (Ct.App.1989) (conviction of both aggravated battery and robbery arising from the same incident constituted double jeopardy). But see State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App.) (conviction of both aggravated battery and robbery did not constitute double jeopardy), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977). At the very least, our prior analysis based on the evidence has led to some confusion, as exhibited by Defendant's understandable, but mistaken, reliance on Gammil in this appeal.

Recently, our Supreme Court in Swafford clarified that it is the statutory elements of the crime, not the evidence, that must withstand scrutiny as to whether each crime " 'requires proof of a fact the other does not.' " Swafford, 112 N.M. at 8, 810 P.2d at 1228 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182). For this reason Gammil and other cases applying the fact-based test found in State v. DeMary, 99 N.M. 177, 655 P.2d 1021 (1982) (specific elements of the crimes must initially be construed in light of the evidence), are no longer helpful to the double jeopardy multiple punishment analysis; they expressly rely on a commonality of evidence, not elements. Our Supreme Court has stated that it "disagree[s] with application of the DeMary test in the multiple punishment context and confine[s] that test to determining the propriety of jury verdict...