State v. Garcia

• Decision Date: 30 June 2009
• Docket Number: No. 27,939.,27,939.
• Citation: 2009 NMCA 107,217 P.3d 1048
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Mark GARCIA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

217 P.3d 1048

2009 NMCA 107

STATE of New Mexico, Plaintiff-Appellee, v. Mark GARCIA, Defendant-Appellant.

No. 27,939.

Court of Appeals of New Mexico.

June 30, 2009.

Certiorari Denied, No. 31,853, August 18, 2009.

Gary K. King, Attorney General, Farhan Khan, Assistant Attorney General, Santa Fe, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} Defendant Mark Garcia appeals his convictions of petty-misdemeanor battery and aggravated battery on Javier Jimenez. We hold that Defendant's convictions violate double jeopardy. We reject the remaining claims. We affirm the aggravated battery conviction. We reverse the petty-misdemeanor battery conviction and instruct the district court to vacate that conviction and the sentence accompanying that conviction.

BACKGROUND

{2} Defendant and Jimenez were inmates in the Curry County, New Mexico, Detention Center. Jimenez testified at trial as follows. One day Defendant called Jimenez into his cell and began to question Jimenez about Jimenez's uncle, who was implicated in an unrelated criminal matter. Defendant was angry and pushed Jimenez, and Jimenez pushed back. Defendant punched Jimenez and while Jimenez stepped back and swung at Defendant, something hit Jimenez from behind, and he fell to the floor. Jimenez stated that he did not know who hit him from behind. While Jimenez was on the floor, Defendant got on top of him and continued to punch him, and then Defendant got up and stomped on Jimenez's leg, shattering the leg.

{3} Other testimony indicated that when detention officers arrived, they saw blood on Jimenez's hands, and Jimenez told the officers that he slipped and fell. When looking around for anyone else in the cell, the officers found Defendant in a bunk with covers pulled over his head. Defendant had a cut on his forehead and blood on his hands. Defendant told an officer that he was taking a nap, that the cut on his forehead was from bumping his head earlier, and that the blood was from a scab he had removed. An officer testified that the bunk in which Defendant was found belonged to an inmate named Ralph Flores. When Jimenez was in the hospital, he stated that it was Defendant who injured him. Detention officers testified that inmates may not like to tell what happened in these incidents until they are out of jail and the fear of retaliation has passed.

{4} Defendant's only witness was Ralph Flores, who testified that no beating took place. He also testified that he did not see exactly what occurred, that he and Defendant had been cleaning the floor, and that while the floor was still wet, he heard a snap and saw another inmate lying on the floor. Flores stated that the bunk in which Defendant was lying was assigned to Defendant. Contrary to Flores's testimony, an officer testified that the bunk Defendant was in belonged to Flores.

{5} Defendant was first charged with aggravated battery in violation of NMSA 1978, Section 30-3-5(C) (1969), a third degree felony. Just before trial, he was charged by amended information, not only with aggravated battery, but also with battery contrary to NMSA 1978, Section 30-3-4 (1963), a petty misdemeanor. Petty-misdemeanor battery is a lesser-included offense of aggravated battery. State v. Pettigrew, 116 N.M. 135, 138, 860 P.2d 777, 780 (Ct.App.1993). The difference is that simple battery does not require an intent to injure. Id.

{6} At trial, Defendant moved for a directed verdict on the ground that the evidence did not support two separate battery counts and convictions; the State argued that these were separate battery counts that did not merge. The district court denied Defendant's motion, ruling that "if there had been two counts charged of battery, that might be different and they may merge, but in this instance, there is a distinct, in my mind, separation between the jumping on the leg and the initial shove or push so I'll deny the motion." Defendant was found guilty and convicted of aggravated battery and petty-misdemeanor battery.

{7} Defendant appeals the convictions on the grounds that (1) the convictions violate double jeopardy; (2) his attorney was ineffective for not objecting when the State added the misdemeanor battery charge just four days before trial; (3) insufficient evidence existed to convict Defendant of the charges; (4) the court erred in classifying the aggravated battery charge as a serious, violent offense; and (5) the court erred when it enhanced, pursuant to NMSA 1978, § 31-18-17 (2003), the misdemeanor battery.

DISCUSSION

Double Jeopardy

{8} We review double jeopardy claims de novo. State v. Dombos, 2008-NMCA-035, ¶ 9, 143 N.M. 668, 180 P.3d 675, cert. denied, 2008-NMCERT-002, 143 N.M. 666, 180 P.3d 673. This is a unit-of-prosecution, double jeopardy issue. See id. ¶ 10 (stating that unit-of-prosecution cases are those in which a defendant is convicted of multiple violations of the same criminal statute). The question is whether Defendant could be convicted of two batteries, one simple and one aggravated, stemming from the circumstances in this case. The unit-of-prosecution analysis stems from Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991). See State v. Bernal, 2006-NMSC-050, ¶¶ 13-18, 140 N.M. 644, 146 P.3d 289; Dombos, 2008-NMCA-035, ¶¶ 11-12, 143 N.M. 668, 180 P.3d 675. The unit-of-prosecution analysis is done in two steps. State v. Boergadine, 2005-NMCA-028, ¶ 15, 137 N.M. 92, 107 P.3d 532. First, we review the statutory language for guidance. See State v. Barr, 1999-NMCA-081, ¶ 13, 127 N.M. 504, 984 P.2d 185. If the statutory language is not clear, we must then determine whether the defendant's acts are separated by sufficient indicia of distinctness to justify multiple punishments under the same statute. Id. ¶ 15.

{9} Defendant contends that his double jeopardy right was violated because the Legislature intended only one punishment for the entire course of conduct during the altercation and not for each discrete act. The State contends that two distinct circumstances point to the occurrence of two separate offenses. According to the State, one circumstance was that an unknown assailant's actions that knocked Jimenez to the ground constituted an independent intervening event. See State v. Cooper, 1997-NMSC-058, ¶¶ 6-7, 60-62, 124 N.M. 277, 949 P.2d 660 (determining that separate offenses occurred where an intervening struggle separated the defendant's first having hit the victim intending to knock him out and take his car from the defendant then causing the victim's death after the victim picked up a knife and the intervening struggle and escalated violence ensued). The second circumstance claimed by the State was the change in Defendant's intent: Defendant's initial intent to commit a petty-misdemeanor battery offense, which changed to his intent to commit a separate, aggravated-battery offense.

{10} It is not disputed that the only aspect of the unit-of-prosecution analysis with which we are concerned in this case is that of distinctness. We must determine, under what is often referred to as a Herron analysis, whether the offenses were separated by sufficient indicia of distinctness, looking at (1) temporal proximity of the acts; (2) location of the victim during each act; (3) existence of an intervening act; (4) sequencing of the acts; (5) the defendant's intent as evidenced by his conduct and utterances; and (6) the number of victims. See Herron v. State, 111 N.M. 357, 361, 805 P.2d 624, 628 (1991); see also Bernal, 2006-NMSC-050, ¶¶ 15-16, 140 N.M. 644, 146 P.3d 289 ("[W]e attempt to determine, based upon the specific facts of each case, whether a defendant's activity is better characterized as one unitary act, or multiple, distinct acts, consistent with legislative intent."); Barr, 1999-NMCA-081, ¶¶ 15-16, 127 N.M. 504, 984 P.2d 185 (recognizing that acts separated by sufficient indicia of distinctness warrant separate punishments). We consider whether the acts of a defendant were "performed independently of the other acts in an entirely different manner, or whether such acts were of a different nature." Boergadine, 2005-NMCA-028, ¶ 21, 137 N.M. 92 (internal quotation marks and citation omitted).

{11} At the beginning of trial, the amended criminal information was read to the jury. Before it deliberated, the jury was instructed that each crime in the information should be considered separately. The battery charge in the amended information stated that Defendant unlawfully touched or applied force to Jimenez in a rude, insolent, or angry manner. The jury was instructed that to find Defendant guilty of battery, the State was required to prove that "[D]efendant touched or applied force to ... Jimenez by hitting and/or punching" and that "[D]efendant acted in a rude, insolent[,] or angry manner."

{12} The aggravated battery charge in the amended information stated that Defendant touched or applied force to Jimenez intending to injure him and cause great bodily harm or acted in a way that would likely result in death or great bodily harm to Jimenez. The jury was instructed that to find Defendant guilty of "aggravated battery with great bodily harm," the State had to prove that "[D]efendant touched or applied force to ... Jimenez by jumping on his leg," that "[D]efendant intended to injure ... Jimenez," and that "[D]efendant caused great bodily harm to ... Jimenez or acted in a way that would likely result in death or great bodily harm to ... Jimenez." The jury was also instructed that great bodily harm meant "an injury to a person which results in serious disfigurement or results in loss of any member or organ of the body or results in permanent or prolonged impairment of the use of any member or organ of the body."

{13} The record on appeal in this case, although not as detailed as we would like, indicates that the acts of battery occurred...