State v. Sandoval
| Decision Date | 08 March 1977 |
| Docket Number | No. 2737,2737 |
| Citation | 561 P.2d 1353,1977 NMCA 26,90 N.M. 260 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Jessie SANDOVAL, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant was convicted of armed robbery, § 40A--16--2, N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1975) and aggravated battery, § 40A--3--5, N.M.S.A.1953 (2d Repl.Vol. 6). Consecutive sentences were imposed. Defendant claims that, under the evidence, both charges should not have been submitted to the jury. Defendant also claims that it was error to impose consecutive sentences. The claims assert that defendant has been subjected to either prohibited multiple prosecutions or multiple punishment. We discuss three concepts: (1) included offenses, (2) same evidence, and (3) merger. Other issues listed in the docketing statement have not been briefed; they are deemed abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976).
Section 40A--16--2 reads:
'Robbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.
'Whoever commits robbery is guilty of a third degree felony.
'Whoever commits robbery while armed with a deadly weapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, is guilty of a first degree felony.'
The pertinent part of § 40A--3--5 reads:
In the docketing statement, defendant contends the aggravated battery 'is a lesser included offense under the facts of this case and should have merged' with the armed robbery charge. In arguing for a directed verdict in the trial court, defendant asserted the same evidence applied to the two offenses and claimed that the offenses had merged. These contentions involve either double jeopardy or concepts related to double jeopardy. Tanton I (State v. Tanton, 88 N.M. 5, 536 P.2d 269 (Ct.App.1975)), overruled in part in Tanton II (State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975)). The above contentions, however, confuse the concepts of included offenses, same evidence, and merger.
' A conviction or acquittal of a lesser offense necessarily included in a greater offense bars a subsequent prosecution for the greater offense.' Tanton II, supra. State v. Medina, 87 N.M. 394, 534 P.2d 486 (Ct.App.1975).
The concept of lesser included offenses is not involved in this case because a comparison of the statutory definitions shows that either offense can be committed without committing the other offense.
There is evidence that defendant shot the victim while robbing her of her purse. Defendant relies on this evidence, asserting: '(T)he evidence showed that the aggravated battery which the defendant committed upon Mrs. Baca was the force which the State was required to prove in order to obtain a conviction for the charge of armed robbery.' There is also evidence permitting the inference that the shooting occurred after the purse had been taken. However, our discussion is based on defendant's view of the evidence--that defendant got the purse by shooting the victim.
Defendant asserts: 'The force or violence used constituting an element of the crime of robbery, it cannot itself be charged as a separate offense consistent with the principles of double jeopardy.' This is incorrect.
Tanton II, supra, states the 'same evidence' test is whether the facts offered in support of one offense would sustain a conviction of the other offense. Owens v. Abram, 58 N.M. 682, 274 P.2d 630 (1954), cert. denied, 348 U.S. 917, 75 S.Ct. 300, 99 L.Ed. 719 (1955) was cited with approval in Tanton II. Tanton II, supra, quotes only the first sentence of the definition in Owens v. Abram, supra. Owens, supra, continues: 'If either information requires the proof of facts to support a conviction which the other does not, the offenses are not the same and a plea of double jeopardy is unavailing.' Compare Woods v. State, 84 N.M. 248, 501 P.2d 692 (Ct.App.1972). Taking the purse was a fact required to be proved under the armed robbery charge; the taking was not required to be proved under the aggravated battery charge. Application of force was a fact required to be proved under the aggravated battery charge; threatened use of force would be acceptable proof under the armed robbery charge. As stated in State v. Ranne, 80 N.M. 188, 453 P.2d 209 (Ct.App.1969): 'The elements of the two crimes are not the same.'
In emphasizing that he obtained the purse by force (shooting the victim), defendant is really arguing that there was only one criminal transaction. The 'same transaction' test was disapproved in Tanton II, supra. 'Certainly, a person may by one act violate more than one statute or commit more than one offense.' State v. Tijerina, 86 N.M. 31, 519 P.2d 127 (1973), cert. denied, 417 U.S. 956, 94 S.Ct. 3085, 41 L.Ed.2d 674 (1974).
The evidence shows that in shooting the victim to get her purse, defendant committed aggravated battery as well as armed robbery. Because the facts required to be proved for the two offenses differ, the 'same evidence' test does not apply.
The New Mexico decisions have discussed 'included offenses' and 'same evidence' in the context of subsequent prosecutions. 'Merger' is the name applied to the concept of multiple punishment when multiple charges are brought in a single trial. Tanton I, supra. Merger is an aspect of double jeopardy; it is concerned with whether more than one offense has occurred. See 1 Wharton's Criminal Law & Procedure, § 33 (1957). The concept is applied to prevent a person from being punished twice for the same offense. State v. McAfee, 78 N.M. 108, 428 P.2d 647 (1967).
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...... Id. at 111, 428 P.2d at 650; see also State v. Sandoval, 90 N.M. 260, 263, 561 P.2d 1353, 1355 (Ct.App.1977) (aggravated battery conviction not merged with armed robbery conviction after comparison of statutory elements under necessarily involved test). Cast as an examination of the statutory elements in the abstract, the necessarily involved test is ......
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