State v. Idrovo

• Docket Number: A-1-CA-39827
• Decision Date: 30 November 2023
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. JORGE IDROVO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

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STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JORGE IDROVO, Defendant-Appellant.

No. A-1-CA-39827

Court of Appeals of New Mexico

November 30, 2023

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 DONA ANA COUNTY Douglas R. Driggers, District Court Judge

Raul Torrez, Attorney General Benjamin L. Lammons, Assistant Attorney General Santa Fe, NM for Appellee

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

MEMORANDUM OPINION

ZACHARY A. IVES, JUDGE

{¶1} After a jury trial, Defendant Jorge Idrovo was convicted of aggravated battery against a household member (NMSA 1978, § 30-3-16(0) (2018)); aggravated assault against a household member (NMSA 1978, Section 30-3-13(A)(1) (1995)); criminal damage to property of a household member over $1,000 (NMSA 1978, Section 30-348(A) (2009)); arson over $500 (NMSA 1978, Section 30-17-5(A) (2006)); and

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violation of a restraining order (NMSA 1978, Section 40-13-6 (2013)). On appeal, Defendant argues that (1) the convictions for aggravated battery and aggravated assault as well as the convictions for arson and criminal damage to property violate double jeopardy; (2) the failure to provide a definitional jury instruction amounted to fundamental error; (3) insufficient evidence supports Defendant's conviction for aggravated battery; and (4) Defendant's Sixth Amendment right to selfrepresentation was infringed. We agree that Defendant's double jeopardy rights were violated with regard to the convictions for arson and criminal damage to property and therefore remand for the district court to vacate one of those convictions and to resentence Defendant accordingly. We affirm in all other respects.

DISCUSSION

I. Double Jeopardy

{¶2} Defendant argues that his convictions for aggravated assault and aggravated battery, as well as his convictions for arson and criminal damage to property, violate double jeopardy protections. We review Defendant's double description claims de novo, State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747, under the two-part test in Swafford v. State, 1991-NMSC-043, ¶¶ 9, 25112 N.M. 3, 810 P.2d 1223. First, we consider "whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes." Id. ¶ 25. If the conduct is unitary, we ask "whether the legislature intended to create separately punishable offenses." Id.

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Double jeopardy is violated "if the first part of the test is answered in the affirmative, and the second in the negative." Id.

A. Defendant's Convictions for Aggravated Battery and Aggravated Assault Do Not Violate Double Jeopardy

{¶3} Reviewing the first set of convictions for aggravated battery and aggravated assault, we ask whether the factual circumstances underlying the convictions constituted unitary conduct. For reasons we will explain, we conclude that the evidence presented at trial provided distinct factual bases for the charged offenses and the conduct was therefore not unitary.

{¶4} To determine whether conduct is unitary, we consider whether "the offenses are separated by sufficient indicia of distinctness." Statev. Ford, 2007-NMCA-052, ¶ 12, 141 N.M. 512, 157 P.3d 77 (text only). In conducting this analysis, we ask whether "the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses." Swafford, 1991-NMSC-043, ¶ 29. We look at factors such "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." Ford, 2007-NMCA-052, ¶ 12. Additionally, we consider whether "one crime is completed before another is committed, or [if] the force used to commit a crime is separate from the force used to commit another crime." State v. Sena, 2020-NMSC-011, ¶ 46, 470 P.3d 227.

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{¶5} Defendant asks us to conclude that the State failed to show sufficient indicia of distinctness between the aggravated battery and the aggravated assault, as both attacks involved strangulation. The record, however, establishes that the conduct was not unitary because (1) there was an intervening event between the two incidents and (2) the force used to commit the battery was distinct from the force used to commit the assault.

{¶6} First, Victim's attempts to protect herself from Defendant's attack spurred an intervening act, which separated the battery from the assault. This Court has "characterized a victim's efforts to protect themself from a defendant during an attack with different weapons as an intervening event." State v. Phillips, 2021-NMCA-062, ¶ 14, 499 P.3d 648; see also State v. DeGraff, 2006-NMSC-011, ¶ 30, 139 N.M. 211, 131 P.3d 61 (finding an intervening event between an aggravated burglary and subsequent murder when the defendant used multiple weapons during the attack and evidence suggested a struggle between the defendant and victim where the victim defended themselves). After repeatedly telling Defendant to get off, Victim "pushed [Defendant] off," and "[Defendant] ran into the kitchen and grabbed a knife." After returning from the kitchen, Defendant initiated the second attack. Victim pushing Defendant off after the first attack and Defendant leaving the room to obtain a weapon constituted an intervening event and a demonstrable break between the two acts.

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{¶7} Second, Defendant's conduct was not unitary because the force used to commit the battery was different than the force used to commit the assault. See Sena, 2020-NMSC-011, ¶ 46. During the initial attack, Victim was seated on the couch, and Defendant got on top of Victim and began to strangle Victim with his hands. When Defendant returned from the kitchen after the initial strangulation, Defendant used one hand to strangle Victim while using the other hand to hold a knife to Victim's throat. The use of a weapon in the second attack was a force distinct from the initial strangulation.

{¶8} Because the conduct underlying the two convictions was not unitary, there was no violation of double jeopardy, and we do not reach the second prong of the Swafford analysis to determine legislative intent. See State v. Reed, 2022-NMCA-025, ¶ 8, 510 P.3d 1261.

B. Defendant's Convictions for Criminal Damage to Property and Arson Violate Double Jeopardy

{¶9} Defendant also argues that the convictions for criminal damage to property and arson violate double jeopardy. We again begin by determining whether the conduct in question was unitary considering the indicia of distinctness. See Ford, 2007-NMCA-052, ¶ 12. We conclude that the conduct underlying the arson and the criminal damage to property was one continuous act of property destruction and was therefore unitary because (1) the conduct was not separated by time or physical distance and (2) Defendant acted with the same intent-to destroy Victim's property.

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{¶10} First, the acts underlying arson and criminal damage to property were not separated by "either time or physical distance," State v. Barrera, 2001-NMSC-014, ¶ 36, 130 N.M. 227, 22 P.3d 1177, and there was no clear "sequence in which they occurred." Ford, 2007-NMCA-052, ¶ 12. The trial testimony shows that the acts of arson and criminal damage to property happened simultaneously and exclusively within Victim's home. When the responding officer arrived, there was "black smoke coming from the residence," and the officer observed a television being thrown out of the front door. Victim described acts of arson and criminal damage to property that happened at the same time, and Victim did not identify any intervening event. See DeGraff, 2006-NMSC-011, ¶ 35. In addition, Victim testified that there was no fire or any damage to the home when Victim left after being attacked. The property destruction happened within the confines of Victim's home in a short period of time, and there was no clear end to one crime before the other crime began.

{¶11} Second, with regard to Defendant's intent, see Ford, 2007-NMCA-052, ¶ 12, based on our review of the record, we are aware of no "significant change in the nature or objective of Defendant's conduct." Statev. Sorrelhorse, 2011-NMCA-095, ¶ 11, 150 N.M 536, 263 P.3d 313 (holding that attempting to force open a doorand beating on a door were unitary conduct because "[the d]efendant's intent was to open the door to the apartment by physical force"). After the altercation between Victim and Defendant, Defendant testified that he was "upset" and began "breaking stuff,"

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before "stuffing the chimney and fireplace." Defendant's remarks demonstrate that Defendant acted with one purpose-to destroy Victim's property-when Defendant set Victim's personal belongings on fire and used a bat to damage Victim's possessions. See Barrera, 2001-NMSC-014, ¶ 36 (using the defendant's remarks to identify his objectives). For these reasons, we conclude that the conduct was unitary.

{¶12} Because the conduct was unitary, we move to the second step of the Swafford analysis: whether the Legislature intended to...