State v. McClendon

• Decision Date: 03 August 2001
• Docket Number: No. 26,296.,26,296.
• Citation: 2001 NMSC 23,28 P.3d 1092,130 N.M. 551
• Court: New Mexico Supreme Court
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Chris McCLENDON, Defendant-Appellant.

28 P.3d 1092

130 N.M. 551

2001 NMSC 23

STATE of New Mexico, Plaintiff-Appellee, v. Chris McCLENDON, Defendant-Appellant.

No. 26,296.

Supreme Court of New Mexico.

August 3, 2001.

Patricia A. Madrid, Attorney General, Elizabeth Blaisdell, Assistant Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Christopher Bulman, Assistant Public Defender, Santa Fe, NM, for Appellant.

OPINION

BACA, Justice.

{1} Defendant was convicted of kidnapping contrary to NMSA 1978, § 30-4-1(A)(4) (1995), two counts of second-degree criminal sexual penetration (fellatio) contrary to NMSA 1978, § 30-9-11(D) (1995), and misdemeanor aggravated battery as a lesser included offense to criminal sexual penetration contrary to NMSA 1978, § 30-3-5(B) (1969). Defendant also admitted that he had been convicted of two prior felonies, one of which was a prior violent sexual offense. Based on his prior conviction for a violent sexual offense, Defendant was sentenced to two mandatory terms of life imprisonment in addition to the basic sentence of nine years on each count of sexual penetration. See NMSA 1978, § 31-18-25 (1997) (stating that "the defendant shall, in addition to the punishment imposed for the second violent sexual offense conviction, be punished by a sentence of life imprisonment"). The district court also sentenced Defendant to a term of nine years on the kidnapping offense with a four year habitual offender enhancement, and three hundred sixty-four days on the aggravated battery conviction. In sum, Defendant received a total sentence of thirty-two years less one day plus two life sentences. Defendant's life sentences confer jurisdiction in this Court. See N.M. Const. art. VI, § 2.

{2} Defendant posits four claims of error, of which we will evaluate two in detail in this opinion. After evaluating both the facts and law applicable to Defendant's two remaining claims, we have determined that they are without merit and are hereby denied.¹,² See, e.g., State v. Gonzales, 2000-NMSC-028, ¶ 2, 129 N.M. 556, 11 P.3d 131

(disposing of claims deemed unworthy of extended discussion). The first issue that we address is whether Defendant's two criminal sexual penetration convictions by fellatio violate the federal constitutional protection against double jeopardy. See U.S. Const. amend. V.³ The second issue that we address is whether the Legislature authorized the enhancement of both of Defendant's convictions for criminal sexual penetration through the enactment of Section 31-18-25. This second question is purely a question of statutory construction that we review de novo. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995).

{3} This case arises from events that occurred on the evening of February 16 and the morning of February 17, 1999. Defendant and the victim were passing acquaintances. Defendant frequented the bar and restaurant where the victim worked. The victim and Defendant told greatly differing accounts of the events that transpired during the evening. The victim stated that she agreed to go for a short ride with the Defendant and that Defendant took her to an isolated area where he sexually attacked her. Defendant told an account of a consensual sexual encounter that ended in a verbal and physical fight. In evaluating Defendant's claim, we view the evidence in the light most favorable to the verdict and resolve all conflicts and indulge all inferences in favor of upholding the verdict. State v. Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 (1993). We recognize that Defendant told a differing story from the victim but "[t]he fact finder may reject defendant's version of the incident." State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Since the specific facts regarding the attack are only pertinent to the double jeopardy analysis, we will include specific factual allegations when relevant.

I.

{4} Defendant claims that his two convictions for criminal sexual penetration by fellatio violate the federal Double Jeopardy Clause. The starting point for our analysis is the language of the Fifth Amendment: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." U.S. Const. amend. V. In Swafford v. State, this Court described the critical question in multiple punishment cases as "whether the defendant is being punished twice for the same offense." 112 N.M. 3, 7-8, 810 P.2d 1223, 1227-28 (1991). Swafford teaches that there are two distinct "facets" of multiple punishment jurisprudence. Id. at 8, 810 P.2d at 1228. The first type of multiple punishment case identified in Swafford was the "unit of prosecution cases." Id. "In those cases the defendant has been charged with multiple violations of a single statute based on a single course of conduct." Id. That is compared with the "double-description cases" where "the defendant is charged with violations of multiple statutes that may or may not be deemed the same offense for double jeopardy purposes." Id. This is a unit of prosecution case, where Defendant has been charged with multiple violations of the criminal sexual penetration statute based on a single course of conduct.

{5} This Court addressed a unit of prosecution case in the context of criminal sexual penetration in Herron v. State, 111 N.M. 357, 358-63, 805 P.2d 624, 625-30 (1991). The precedent set by Herron is binding on this Court, and its analysis is persuasive in this case. In Herron, the defendant alleged that his nineteen convictions for second-degree criminal sexual penetration violated the Double Jeopardy Clause. Id. at 358, 805 P.2d at 625. This Court recognized that the issue essentially becomes one of statutory construction. Id. at 359, 805 P.2d at 626. After evaluating authority from other jurisdictions, and considering the implication of the rule of lenity, this Court held that "Section 30-9-11 cannot be said as a matter of law to evince a legislative intent to punish separately each penetration occurring during a continuous attack absent proof that each act of penetration is in some sense distinct from the others." Id. at 361, 805 P.2d at 628. Therefore, our primary concern in this context is to ensure that sufficient evidence exists to establish that each penetration is distinct from the others. In reviewing the facts of the case to determine if each penetration is distinct from the others, we must indulge "in all presumptions in favor of the verdict." Herron, 111 N.M. at 362, 805 P.2d at 629.

{6} To aid in determining whether each penetration is distinct from the others, Herron identified a number of factors relevant to the inquiry:

(1) temporal proximity of penetrations (the greater the interval between acts the greater the likelihood of separate offenses); (2) location of the victim during each penetration (movement or repositioning of the victim between penetrations tends to show separate offenses); (3) existence of an intervening event; (4) sequencing of penetrations (serial penetrations of different orifices, as opposed to repeated penetrations of the same orifice, tend to establish separate offenses); (5) defendant's intent as evidenced by his conduct and utterances; and (6) number of victims (although not relevant here, multiple victims will likely give rise to multiple offenses).

Id. at 361, 805 P.2d at 628 (citations omitted). Regarding the relative weight to be accorded to each factor, Herron stated that, "Except for penetrations of separate orifices with the same object, none of these factors alone is a panacea, but collectively they will assist in guiding future prosecutions under Section 30-9-11." Id. at 362, 805 P.2d at 629. After evaluating the facts in Herron, this Court concluded that the evidence only supported five distinct convictions. Id.

{7} Applying these factors to this case, we conclude that the facts clearly demonstrate that the two acts of fellatio were distinct from one another, and therefore, there is no double jeopardy violation. We find that there was sufficient evidence presented at trial to prove that the first act of fellatio occurred shortly after Defendant pulled off the main road and stopped his vehicle. The initial assault occurred while Defendant was still in the driver's seat. The victim testified that the following events occurred shortly after pulling off the main road: "The next thing I know my head was in his lap and his pants were already open and he told me that I better give him head because that's all that I knew how to do." The victim resisted, but Defendant forced the initial oral copulation at this time.

{8} The victim testified that she was forced to perform fellatio on Defendant several other times that evening. She also testified to a number of intervening events following the first act of fellatio. She testified that Defendant pinned her in the passenger's seat and beat her head against the window. He forced her to have vaginal intercourse and continued to beat her head against the window of his truck. She also described Defendant's attempt to drag her from the truck, in an effort to penetrate her anally with both his penis and his finger. We find that there is sufficient evidence to conclude that: (1) there were a number of significant intervening acts between the two instances of fellatio including the beating, the attempted removal of the victim from the truck, and the attempted anal penetration; (2) there were serial penetrations of different orifices and attempted penetrations of different orifices; and (3) there was a sufficient time interval between the acts for us to conclude that the two acts of fellatio were sufficiently distinct in both time and location. Based on this, we conclude that each act of fellatio was distinct from the other. Therefore, Defendant's conviction of two counts of criminal sexual penetration by fellatio does not violate the Double Jeopardy Clause.

II.

{9} We now turn to the issue of whether the Legislature...