State v. Gregor
| Docket Number | A-1-CA-39735 |
| Decision Date | 12 July 2023 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. GARY GREGOR, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
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 Mary Marlowe Sommer, District Court Judge
Raul Torrez, Attorney General Santa Fe, NM Van Snow, Assistant Attorney General Albuquerque, NM for Appellee
Bennett J. Baur, Chief Public Defender Thomas J. Lewis Assistant Appellate Defender Santa Fe, NM for Appellant
{¶1} After a jury trial, Defendant Gary Gregor was convicted of four counts of first-degree kidnapping, contrary to NMSA 1978, Section 30-4-1 (2003); three counts of criminal sexual penetration of a minor under the age of thirteen (CSPM), a first-degree felony, contrary to NMSA 1978, Section 30-9-11(D)(1) (2007, amended 2009); and three counts of criminal sexual contact of a minor under the age of thirteen (CSCM), a third-degree felony, contrary to NMSA 1978, Section 30-9-13(C)(1) (2003). On appeal Defendant argues that (1) double jeopardy principles require us to vacate two of his CSPM convictions and one of his CSCM convictions and (2) insufficient evidence supports his convictions for kidnapping, CSPM, and CSCM. We conclude that Defendant's first argument has merit under New Mexico double jeopardy precedent, including State v. Serrato, 2021-NMCA-027, 493 P.3d 383, which controls our analysis here and which we decline the State's invitation to overrule. Serrato requires that three of Defendant's nine convictions be vacated. However, six of Defendant's convictions stand because we reject Defendant's arguments that the evidence is insufficient.
{¶2} Defendant argues that two of his CSPM convictions and one of his CSCM convictions are each based on the same evidence as a corresponding conviction for first-degree kidnapping and that a double jeopardy violation will occur if the convictions for both the sexual offense and the kidnapping in each pair are left in place. We agree for the following reasons.
{¶3} Defendant raises a double description challenge, which we review under a two-part test. See Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. First, we must determine "whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes." Id. If the conduct is unitary, we must determine whether the Legislature intended to permit dual punishment for that conduct. See State v. Swick, 2012-NMSC-018, ¶ 11, 279 P.3d 747.
{¶4} This Court has applied the two-prong test to a double jeopardy challenge that was substantially the same as Defendant's. In Serrato, the defendant contended he could not be convicted of both first-degree kidnapping and CSCM. 2021-NMCA-027, ¶ 21. This Court agreed. As to the unitary conduct prong, this Court explained that the defendant was convicted of CSCM for touching the victim's breasts, and that the defendant was convicted of first-degree kidnapping because he committed a sexual offense against the victim during the kidnapping. Id. ¶¶ 23-26; see § 30-4-1 (); accord UJI 14-403 NMRA (describing essential elements of kidnapping). This Court observed that the state only presented evidence of "one sexual offense that occurred during the course of the kidnapping: the touching of [the victim's] breasts." Serrato, 2021-NMCA-027, ¶ 26. Rejecting the notion that the defendant completed the first-degree kidnapping before he committed CSCM, this Court explained that commission of a sexual offense during the kidnapping is an essential element of first-degree kidnapping, and that "the elements of first-degree kidnapping were not satisfied until a sexual offense was committed." Id. Because "the facts presented at trial demonstrate[d] that the first-degree kidnapping and CSCM charges were based on the same conduct," this Court "conclude[d] that the conduct underlying both offenses [was] unitary." Id. ¶ 27 (emphasis omitted).
{¶5} As to the legislative intent prong, this Court recognized that a modified Blockburger analysis was necessary because the kidnapping and CSCM statutes do not expressly allow multiple convictions and that there are alternative ways of committing kidnapping. Id. ¶ 28; see also State v. Franco, 2005-NMSC-013, ¶ 14, 137 N.M. 447, 112 P.3d 1104 (). That analysis entails "look[ing] to the [s]tate'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." Serrato, 2021-NMCA-027, ¶ 16 (internal quotation marks and citation omitted). If this inquiry reveals that, under the state's trial theory, "one statute is subsumed within the other, then the analysis ends and the statutes are considered the same for double jeopardy purposes." State v. Silvas, 2015-NMSC-006, ¶ 12, 343 P.3d 616. To pinpoint the state's trial theory in Serrato, this Court reviewed the indictment, the jury instructions, and the state's closing argument, which indicated that the basis for both the kidnapping conviction and the CSCM conviction was the touching of the victim's breasts. 2021-NMCA-027, ¶¶ 30-32. Accordingly, this Court accepted the defendant's argument that the CSCM conviction was subsumed in the first-degree kidnapping conviction, and that the defendant was being punished twice for the same offense. Id. ¶¶ 21, 32. The remedy for the double jeopardy violation was to vacate the defendant's conviction for the less serious offense, CSCM. Id. ¶ 32.
{¶6} Serrato controls our analysis of Defendant's double jeopardy claims. We conclude that all of Defendant's claims involve a first-degree kidnapping conviction paired with either a CSPM or CSCM conviction that is based on the same conduct, and that, under the State's theory at Defendant's trial, each CSPM or CSCM conviction is subsumed by the corresponding kidnapping conviction. We explain each conclusion in turn.
{¶7} As to the unitary conduct prong of the Swafford test, the same straightforward analysis applies to all three pairs of kidnapping and sex offense convictions: CSPM in Count 1 and kidnapping in Count 4; CSPM in Count 2 and kidnapping in Count 5; and CSCM in Count 12 and kidnapping in Count 8.[1]One of the essential elements in all three kidnapping instructions is that Defendant "inflicted a sexual offense upon [the victim] during the course of the kidnapping," and the State concedes on appeal that each kidnapping instruction referred to the underlying sexual offense in the pairing described above. Each pair of convictions is therefore based on unitary conduct because, as in Serrato, the elements of first-degree kidnapping were not satisfied until Defendant committed the underlying sexual offense. See Serrato, 2021-NMCA-027, ¶ 26.
{¶8} Turning to the legislative intent prong, we apply the modified Blockburger test to each pair of convictions. As to each pair, we conclude that the kidnapping charge subsumes the sexual offense charge.
{¶9} The jury instruction for the CSPM conviction in Count 1 indicates that Defendant was convicted of that crime for inserting one or more fingers "into the vulva of [N.H.] while she was wearing a skirt." The jury instruction for the corresponding kidnapping conviction in Count 4 describes the underlying sexual offense generically but indicates that Defendant "restrained [N.H.] by intimidation by having her sit at council table right next to him and putting his hands on her thighs." On appeal, the State acknowledges that the act of penetration charged in Count 1 occurred while Defendant restrained N.H. at council table as charged in Count 4. Additionally, during its closing argument, the State described the elements of the various sex offences; stated that "[for] kidnapping, we're looking at the same sex offenses"; and noted, as to the kidnapping charge related to Count 1, "it was that intimidation that caused her to stay, so that he could commit the sex act against her."
{¶10} The jury instruction for the CSPM conviction in Count 2 indicates that Defendant was convicted of that crime for inserting one or more fingers "into the vulva of [N.H.] while she was wearing pants." The jury instruction for the corresponding kidnapping conviction in Count 5 describes the sexual offense generically but indicates that Defendant "restrained [N.H.] by intimidation by keeping her chair close to him, the difference in their size, and his position as her teacher." On appeal, the State acknowledges that the act of penetration charged in Count 2 occurred while Defendant restrained N.H. in exactly the manner charged in Count 5. And in its closing argument the State noted the direct relationship between the kidnapping in Count 5 and the CSPM in Count 2. When explaining the elements of the former, the prosecutor stated, "[T]his is the kidnapping that is connected to Count 2."
{¶11} The jury instruction for the CSCM conviction in Count 12 indicates that Defendant was convicted of that crime because he "touched or applied force to the buttock(s) of [A.L.] while in the closet." The jury instruction for the corresponding kidnapping conviction in Count 8, while generic as to the underlying sexual offense, indicates that Defendant ...
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