State v. Porter

Decision Date03 August 2020
Docket NumberNO. S-1-SC-37111,S-1-SC-37111
Citation476 P.3d 1201
Parties STATE of New Mexico, Plaintiff-Respondent, v. Benny V. PORTER, Defendant-Petitioner.
CourtNew Mexico Supreme Court

THOMSON, Justice

{1} The district court imposed consecutive sentences for aggravated assault with a deadly weapon and shooting from a motor vehicle after a jury convicted Defendant Benny V. Porter of both offenses based on the fact that he fired a single gunshot at a single victim. "The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense ." Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (emphasis added); accord Swafford v. State , 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223 (observing that "the sole limitation on multiple punishments is legislative intent"). Because we conclude that the district court imposed multiple punishments for the "same offense," we reverse. See U.S. Const. amend. V ("No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb."); accord N.M. Const. art. II, § 15 ("[N]or shall any person be twice put in jeopardy for the same offense.").


{2} The undisputed facts in this case, "like all too many that come before our courts, erupted from a toxic mixture of testosterone and guns." State v. Montoya, 2013-NMSC-020, ¶ 4, 306 P.3d 426. Defendant dated a woman that victim Jason Swapp had also dated, during a time period when Swapp and the woman were "on a break." After Swapp and the woman reconciled, Defendant began regularly driving through Swapp's neighborhood, which irritated Swapp.

{3} On May 11, 2013, Swapp was walking along a road in his neighborhood carrying a beer bottle. Defendant was driving slowly down the road in Swapp's direction when he stopped or almost stopped his vehicle and pointed a .40 caliber pistol out of the vehicle's window at Swapp. Swapp threw the beer bottle he was carrying toward the vehicle as Defendant fired a single shot and drove away. The bullet did not hit Swapp. No one else was in the street or in front of the vehicle.

{4} Based on the fact that Defendant shot a single bullet at Swapp, a jury convicted Defendant of one count of aggravated assault with a deadly weapon and one count of shooting from a motor vehicle. The district court sentenced Defendant for both crimes. Defendant appealed and argued that double jeopardy required the district court to vacate one of his convictions. The Court of Appeals affirmed his convictions. State v. Porter , A-1-CA-35597, mem. op., 2018 WL 2999977 (May 30, 2018) (nonprecedential). Defendant appealed to this Court, and we granted certiorari pursuant to NMSA 1978, Section 34-5-14(B) (1972) and Rule 12-502 NMRA.


{5} Defendant argues that the district court violated his double jeopardy protections when it imposed "multiple punishments for the same offense" because the same conduct forms the basis for his convictions under two statutes. See NMSA 1978, § 30-3-2(A) (1963) (defining the crime of aggravated assault with a deadly weapon); NMSA 1978, § 30-3-8(B) (1993) (defining the crime of shooting at or from a motor vehicle). "The double jeopardy protections of the United States Constitution and the New Mexico Constitution guarantee that a state may not compel a person to be twice put in jeopardy for the same criminal offense." State v. Torres , 2018-NMSC-013, ¶ 15, 413 P.3d 467 (internal quotation marks and citation omitted) (identifying multiple punishments for the same offense as one of "three levels of protection" against double jeopardy provided by the federal and state constitutions). In this case, "the role of the constitutional guarantee is limited to assuring" that the district court did "not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown, 432 U.S. at 165, 97 S.Ct. 2221 ; accord Torres , 2018-NMSC-013, ¶ 21, 413 P.3d 467.

{6} The Court of Appeals affirmed Defendant's multiple punishments because it concluded that State v. Sosa , 1997-NMSC-032, 123 N.M. 564, 943 P.2d 1017, controlled as binding precedent. See Porter , A-1-CA-35597, ¶¶ 5-8 ("We are bound by our Supreme Court's decision."). We pause to address the precedential value of our holding in Sosa before we address the arguments that Defendant made before this Court.

{7} In Sosa , the Court held that "the legislature intended separate punishments" for the two statutes at issue in this case. 1997-NMSC-032, ¶¶ 36-40, 123 N.M. 564, 943 P.2d 1017 (holding that the district court did not violate double jeopardy by imposing punishments for convictions of both Section 30-3-2(A) (prohibiting aggravated assault with a deadly weapon), and Section 30-3-8(B) (prohibiting shooting at or from a motor vehicle)). The Sosa Court applied a mechanical Blockburger test, which compared the elements of the statutes in the abstract. See 1997-NMSC-032, ¶¶ 36-37, 123 N.M. 564, 943 P.2d 1017 (presuming "that the legislature intended separate punishments for each offense" so long as both statutes require one element the other does not to establish the offense). The mechanical Blockburger test is sometimes referred to as the "strict elements" test. Montoya , 2013-NMSC-020, ¶ 31, 306 P.3d 426. Our double jeopardy jurisprudence has evolved significantly since we decided Sosa , and therefore, for the following two reasons, we explicitly abrogate Sosa to the extent that its conclusion was premised upon the application of an analysis that we have rejected.

{8} First, we modified the Blockburger analysis after Sosa was decided. See State v. Gutierrez , 2011-NMSC-024, ¶ 58, 150 N.M. 232, 258 P.3d 1024 (announcing the modification of the Blockburger analysis); Montoya , 2013-NMSC-020, ¶ 46, 306 P.3d 426 (observing that New Mexico jurisprudence has grown "away from the historical strict mechanical elements test and increasingly toward a substantive sameness analysis"). If the statutes can be violated in more than one way, by alternative conduct, the modified Blockburger analysis demands that we compare the elements of the offense, looking at the State's legal theory of how the statutes were violated. Gutierrez, 2011-NMSC-024, ¶ 58, 150 N.M. 232, 258 P.3d 1024 ; accord Torres , 2018-NMSC-013, ¶¶ 24-25, 413 P.3d 467. Since the two statutes at issue can be violated by alternative conduct, the strict elements test applied by the Sosa Court is not the proper analysis, which renders its conclusion unreliable.

{9} Second, the Sosa Court observed that "the social evils proscribed by ... [t]he offense of shooting into an occupied vehicle is ‘the possible property damage and the bodily injury that may result.’ " 1997-NMSC-032, ¶ 38, 123 N.M. 564, 943 P.2d 1017 (quoting State v. Gonzales , 1992-NMSC-003, ¶ 12, 113 N.M. 221, 824 P.2d 1023 ). We expressly overruled Gonzales , including the notion that "possible property damage" is one of the "distinct social evils" the Legislature intended to prohibit under Section 30-3-8(B). See Montoya , 2013-NMSC-020, ¶¶ 45, 54, 306 P.3d 426. After Montoya , the reasoning of Sosa is no longer supported.

{10} Having rejected the application of Sosa to the double jeopardy analysis in this case, we now determine (1) whether the same conduct formed the basis for both of Defendant's convictions and (2) whether aggravated assault with a deadly weapon and shooting from a motor vehicle constitute the same offense in this case.

A. Standard of Review

{11} "A double jeopardy challenge presents a question of constitutional law, which we review de novo." Torres , 2018-NMSC-013, ¶ 17, 413 P.3d 467.

B. Defendant's Convictions Were Based on Unitary Conduct

{12} A defendant's conviction is based on unitary conduct if the acts are not "separated by sufficient indicia of distinctness." Id. ¶ 18 (internal quotation marks and citation omitted); see also State v. Silvas , 2015-NMSC-006, ¶ 10, 343 P.3d 616 ("Conduct is unitary when not sufficiently separated by time or place, and the object and result or quality and nature of the acts cannot be distinguished."). "The conduct question depends to a large degree on the elements of the charged offenses and the facts presented at trial." Swafford , 1991-NMSC-043, ¶ 27, 112 N.M. 3, 810 P.2d 1223. We must identify the criminal acts and the conduct at issue, and "[i]f it reasonably can be said that the conduct is unitary," then we must conclude that the conduct was unitary. Id. ¶ 28.

{13} Although this Court is not bound by the State's concession on this point, we agree with the State that Defendant's culpable conduct was unitary.1 See State v. Comitz , 2019-NMSC-011, ¶ 25, 443 P.3d 1130 (observing that this Court may "independently assess" an issue in a criminal appeal regardless of a concession by the state). The culpable conduct that formed the basis for both convictions is clear, Defendant fired a single shot at Swapp, who was not physically injured.

{14} The State prosecuted the charge of aggravated assault with a deadly weapon based on that conduct. If the State had prosecuted a charge of aggravated assault with a deadly weapon based on Swapp's reasonable apprehension of danger from Defendant pointing the gun prior to shooting, or argued for sufficient indicia of distinctness to support that charge, a different analysis would be required. Cf. State v. Jacobs , 2000-NMSC-026, ¶ 25, 129 N.M. 448, 10 P.3d 127 (analyzing when in a sequence of the defendant's acts there may have been sufficient evidence to support a determination that the crime of kidnapping "was complete before ... the act of murder began"). In this case, Defendant's act of shooting a single bullet at Swapp supported both offenses.

C. Defendant Was Punished Twice for the Same Offense

{15} To determine whether Defendant is protected from being punished for both aggravated assault with a deadly...

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