State v. Reed

Decision Date22 December 2021
Docket NumberA-1-CA-37734
Citation510 P.3d 1261
Parties STATE of New Mexico, Plaintiff-Appellee, v. Kevin Barlow REED, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Hector H. Balderas, Attorney General, Anne Minard, Assistant Attorney General, Santa Fe, NM, Charles J. Gutierrez, Assistant Attorney General, Albuquerque, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Caitlin C.M. Smith, Assistant Appellate Defender, Santa Fe, NM, for Appellant


{1} A jury convicted Defendant Kevin Reed of one count each of armed robbery, contrary to NMSA 1978, Section 30-16-2 (1973) ; conspiracy to commit armed robbery, contrary to NMSA 1978, Section 30-28-2 (1979) ; false imprisonment, contrary to NMSA 1978, Section 30-4-3 (1963) ; possession of a firearm by a felon, contrary to NMSA 1978, Section 30-7-16(A)(1) (2001, amended 2020) ; aggravated battery with a deadly weapon, contrary to NMSA 1978, Section 30-3-5(C) (1969) ; and two counts of aggravated assault with a deadly weapon, contrary to NMSA 1978, Section 30-3-2(A) (1963). Defendant appeals his convictions, claiming that he received ineffective assistance of counsel and that a number of his convictions violate his protection against double jeopardy. We reject Defendant's claim that the record on direct appeal establishes a prima facie case of ineffective assistance of counsel. However, we reverse Defendant's convictions for aggravated battery with a deadly weapon, one count of aggravated assault with a deadly weapon, and false imprisonment as we conclude that they violate his protection against double jeopardy. We remand this case to the district court to amend the judgment and sentence accordingly.


{2} Two men robbed a restaurant in Alamogordo, New Mexico. In the evening, as the restaurant's owner, Katherine Budak, attempted to close the restaurant's door, the taller of the two men hit her on the head with a gun, causing her to fall to the floor and lose control of the door. In response to screams from Ms. Budak, a restaurant employee, Joanna Gunn, ran to the door, where she found Ms. Budak on the floor being physically attacked by the shorter man. The taller man stepped over Ms. Budak and entered the restaurant.

{3} The taller man pointed guns at Ms. Gunn and the restaurant's other two employees and ordered them to lie down on the floor. Once Ms. Gunn was on the floor, he approached her and touched her near her throat with a gun. Ms. Gunn offered to retrieve the restaurant's money for the taller man, at which point he physically lifted her from the floor and ordered her to do so. The two men left the restaurant with between sixty and one hundred and fifty dollars.

{4} About one month later, as Ms. Budak shopped in an Albertson's grocery store, she recognized a store employee, D'Andre Howell, as the shorter man from the robbery, and she contacted law enforcement. During their investigation, law enforcement officers had previously identified Mr. Howell and Defendant as suspects in the robbery. When questioned by law enforcement, Mr. Howell admitted to his involvement in the robbery and identified Defendant as the taller man who was with him that evening. A grand jury returned an indictment charging Defendant with several crimes based on the events from the evening of the robbery.

{5} At trial, Mr. Howell testified against Defendant. Upon stipulation of fact by the parties, the district court relayed Defendant's status as a felon to the jury. The jury convicted Defendant of one count each of the following: armed robbery, conspiracy to commit armed robbery, false imprisonment, possession of a firearm by a felon, aggravated battery with a deadly weapon, and two counts of aggravated assault with a deadly weapon. He now appeals. We reserve further discussion of the pertinent facts for our analysis.

I. Defendant's Convictions for Aggravated Battery With a Deadly Weapon, One Count of Aggravated Assault With a Deadly Weapon, and False Imprisonment Must Be Vacated Because They Violate Defendant's Protection Against Double Jeopardy

{6} Defendant argues that his convictions for armed robbery, aggravated battery with a deadly weapon, aggravated assault with a deadly weapon, and false imprisonment, violate his protection against double jeopardy.

Specifically, Defendant maintains that his conviction for armed robbery subsumes his convictions for the lesser offenses of aggravated battery with a deadly weapon, one count of aggravated assault with a deadly weapon, and false imprisonment. He further argues that his conviction for one count of aggravated assault with a deadly weapon subsumes his conviction for false imprisonment. We agree.

{7} The United States and New Mexico Constitutions guarantee that criminal defendants may not "be twice put in jeopardy" for the same offense. U.S. Const. amend. V.; N.M. Const. art II, § 15. "The defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment." NMSA 1978, § 30-1-10 (1963). Claimed violations of the protection against double jeopardy are questions of law, which require de novo review. State v. Contreras , 2007-NMCA-045, ¶ 18, 141 N.M. 434, 156 P.3d 725.

{8} In double description, double jeopardy cases, the defendant is convicted under multiple statutes for the same conduct. State v. Bernal , 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289. Such is the case here. We therefore apply the test articulated in Swafford v. State , 1991-NMSC-043, ¶ 12, 112 N.M. 3, 810 P.2d 1223, and first ask "whether the conduct was unitary, meaning whether the same criminal conduct is the basis for both charges." Bernal , 2006-NMSC-050, ¶ 9, 140 N.M. 644, 146 P.3d 289. If it is not, the protection against double jeopardy has not been violated and we proceed no further. Id. If it is, we proceed to ask "whether the [L]egislature intended to create separately punishable offenses." State v. Baroz , 2017-NMSC-030, ¶ 22, 404 P.3d 769. "Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment[s] in the same trial." Swafford , 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223.

{9} Our inquiry for unitary conduct turns on "sufficient indicia of distinctness" between the acts at issue. Id. ¶ 26 ; see also State v. Sena , 2020-NMSC-011, ¶ 46, 470 P.3d 227. Conduct is not unitary, rather it is separate and distinct, when space and time separates the events, or "the quality and nature of the acts or the objects and results involved are distinguishable[.]" State v. Contreras , 1995-NMSC-056, ¶ 14, 120 N.M. 486, 903 P.2d 228 (omission, internal quotation marks, and citation omitted). Likewise, conduct is not unitary "when one crime is completed before another is committed, or when the force used to commit a crime is separate from the force used to commit another crime." Sena , 2020-NMSC-011, ¶ 46, 470 P.3d 227. In conducting our analysis, we may consider "the elements of the charged offenses, the facts presented at trial, and the instructions given to the jury." Id. "We also consider whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses." State v. Schackow , 2006-NMCA-123, ¶ 18, 140 N.M. 506, 143 P.3d 745 (internal quotation marks and citation omitted).

{10} Pursuant to the statute, the district court instructed the jury that to convict Defendant of armed robbery, it must find, in relevant part, that

1. [D]efendant took and carried away U.S. currency from [Ms.] Budak and/or [Ms.] Gunn or from their immediate control intending to permanently deprive [Ms.] Budak and/or [Ms.] Gunn of the U.S. [c]urrency; [and]
3. [D]efendant took the U.S. currency by force or violence or threatened force or violence[.]

See § 30-16-2 ; UJI 14-1621 NMRA. Where, as here, the jury instructions provide alternative bases for conviction of an offense, and the record is silent as to which alternative the jury relied on for its verdict, we apply the Foster presumption, which demands that we assume that the jury relied on the alternative that may violate the protection against double jeopardy. See Sena , 2020-NMSC-011, ¶ 47, 470 P.3d 227 (citing State v. Foster , 1999-NMSC-007, ¶ 28, 126 N.M. 646, 974 P.2d 140, abrogated on other grounds by Kersey v. Hatch , 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683 ).

{11} Our Supreme Court has recently held that " Foster does not require a further presumption that the same conduct was then relied upon by the jury in convicting [the d]efendant of each crime" and that "the Foster presumption is rebutted by evidence that each crime was completed before the other crime occurred." Id. ¶ 54 ; see also State v. Vigil , 2021-NMCA-024, ¶ 21, 489 P.3d 974, cert. denied , 2021-NMCERT-–––– (No. S-1-SC-38748, Apr. 22, 2021). We have taken this direction from our Supreme Court as requiring us "to engage in an analysis of a defendant's conduct[.]" State v. Phillips , 2021-NMCA-062, ¶ 29 n.1, 499 P.3d 648, cert. granted , 2021-NMCERT-–––– (No. S-1-SC-38910, Nov. 1, 2021). In Sena , the Foster presumption was rebutted because the facts of the case made plain that the offenses at issue "were separated by both time and intervening events." Sena , 2020-NMSC-011, ¶ 56, 470 P.3d 227.

{12} The state's conduct at the trial of the defendant in Sena stands in marked contrast to its conduct at Defendant's trial in this case. Here, contrary to the State's arguments, the completed offense principle does not control. As we explain, according to the State's theory of the case, articulated to the jury during closing arguments and presented in the jury instructions, there can be no neat delineation between Defendant's actions. In Sena ,1 however, "the [s]tate never...

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