State v. Torres
| Citation | 495 P.3d 1141 |
| Decision Date | 13 August 2020 |
| Docket Number | Nos. A-1-CA-37642,A-1-CA-38099,s. A-1-CA-37642 |
| Parties | STATE of New Mexico, Plaintiff-Appellant, v. Gerardo TORRES, Defendant-Appellee. State of New Mexico, Plaintiff-Appellant, v. Kendale Hendrix, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Hector H. Balderas, Attorney General, Marko D. Hananel, Assistant Attorney General, Santa Fe, NM, for Appellant
Bennett J. Baur, Chief Public Defender, Santa Fe, NM, Victor E. Sanchez, Jr., Assistant Appellate Defender, Albuquerque, NM, for Appellees
{1} These appeals arise from separate and apparently unrelated incidents of cattle rustling in Otero County occurring some eighteen months apart. Defendant Gerardo Torres, accused of thefts occurring on two dates in early 2017, and Defendant Kendale Hendrix, accused of a theft occurring in August 2018, were each charged with multiple counts of larceny (livestock)—one count per head—contrary to NMSA 1978, Section 30-16-1(G) (2006). In both cases, the district court granted Defendants’ motions to merge the larceny counts in their respective indictments based on the single-larceny doctrine and on double jeopardy grounds. Because the State's appeals in both cases address identical issues on substantially similar facts, we exercise our discretion to consolidate them for decision. See Rule 12-317(B) NMRA. We conclude the district court correctly determined the unit of prosecution and affirm both orders.
{2} For purposes of evaluating Defendants’ multiplicity arguments, the district court accepted the parties’ stipulations to treat as true the factual allegations contained in affidavits accompanying the criminal complaint or the arrest warrant in their respective cases. See Herron v. State , 1991-NMSC-012, ¶ 6 n.4, 111 N.M. 357, 805 P.2d 624 (). On appeal, the parties do not dispute the factual predicate underlying the charges,1 and pursuant to State v. Foulenfont , we review the legal issues raised in these appeals in light of the uncontested factual predicates presented to the district court. 1995-NMCA-028, ¶¶ 4-6, 119 N.M. 788, 895 P.2d 1329 ().
{3} Defendant Torres was an employee at Crossroads Cattle Company. On June 1, 2017, the ranch foreman at Crossroads observed that the calf crop in one of the pastures was substantially low—about 40-50 percent compared to 80-90 percent in the other pastures. Approximately three weeks later, Peewee Serna advised the ranch foreman that Defendant Torres had stolen and sold unbranded calves; Peewee stated that he had unwittingly helped Defendant Torres load about thirteen unbranded calves in January and more later. When questioned by the foreman, Defendant Torres admitted to stealing thirteen head in January 2017. Officer Skylar Davis, an enforcement officer with the New Mexico Livestock Board, obtained copies of market inspections for sales at the Rio Grande Livestock Auction in El Paso, Texas, which showed that Defendant Torres had sold a total of eighteen calves on two dates. The ranch foreman at Crossroads told Officer Davis that Crossroads had never sold cattle at that auction and employees are not allowed to keep their own cattle on the ranch. The State subsequently filed a criminal information charging Defendant Torres with eighteen counts of larceny of livestock.
{4} Defendant Hendrix was "known to be a hauler of cattle for the Ganada Cattle Company." Although Defendant Hendrix's own accounts varied, he generally admitted that he and Skeeter Chadwick, an employee of Ganada, made arrangements to take twenty-five head of no-brand cattle from Ganada to San Angelo, Texas to sell them. Chadwick apparently offered to pay Defendant Hendrix three times the normal rate for hauling.
{5} Defendant Hendrix picked up twenty-five head from Ganada on August 28, 2018, and while he and Chadwick were on the road to Texas, an off-duty cattle inspector spotted them and reported a possible illegal shipment to the New Mexico Livestock Board. Once the men arrived at the San Angelo Sale Barn, a special ranger for the Texas Southwest Cattle Raisers noted that the men unloaded twenty-four head of no-brand cattle, mixed in breed and color, with no ear tags or ear marks; one calf was too weak to walk off the trailer on its own and was later euthanized. When questioned, Defendant Hendrix stated that he had loaded up the cattle alone in Dell City, Texas, and that the cattle belonged to him. Defendant Hendrix then checked the cattle into the Sale Barn under his name. In a later interview with an inspector for the New Mexico Livestock Board, Defendant Hendrix indicated that he acted at Chadwick's direction, but stated that Chadwick told him "that he could get the money for the cattle, keep his $1200, and Chadwick would get the rest." A grand jury indicted Defendant Hendrix on twenty-five counts of larceny of livestock.2
{6} Defendant Torres filed a pretrial motion asking the district court to merge the larceny counts into a single charge. He argued that the multiple larceny charges violate double jeopardy principles under the circumstances and that the single larceny doctrine, which defines the taking of multiple articles of property from the same owner at the same time and place as a single transaction, allows the court to merge the larceny charges into a single count before trial as a matter of law. See State v. Alvarez-Lopez , 2004-NMSC-030, ¶ 43, 136 N.M. 309, 98 P.3d 699 (). The State did not file a response. After conducting a hearing and considering the oral arguments of both the State and Defendant Torres, the district court granted the motion on June 13, 2018, holding that under the facts stipulated to by the parties, no more than two larcenies occurred. After the district court declined the State's motion to reconsider, the State sought an interlocutory appeal.
{7} When Defendant Hendrix was indicted later that year, his case was assigned to the same district court judge. Defendant Hendrix also filed a motion to merge his larceny charges on substantially the same basis. The district court considered the State's response but ultimately granted the motion, applying the same analysis set forth in its earlier order in Defendant Torres's case. The State pursued pretrial appeals in both cases.3
{8} The State's appeals ask us to consider the unit of prosecution for larceny of livestock under Section 30-16-1(G) and determine whether, under the circumstances presented in these cases, the Legislature intended to punish the theft of multiple animals as a single offense or to allow separate punishments for each animal taken. See State v. Ramirez , 2018-NMSC-003, ¶ 46, 409 P.3d 902 ( ; Swafford v. State , 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223 (). For three decades, our courts have evaluated the Legislature's intent with respect to the unit of prosecution by applying the analytical approach set forth in Herron , 1991-NMSC-012, 111 N.M. 357, 805 P.2d 624. First, we ask "whether the statute clearly defines the unit of prosecution, which is purely a legal question." State v. Olsson (Olsson I ), 2008-NMCA-009, ¶ 5, 143 N.M. 351, 176 P.3d 340 (alterations, internal quotation marks, and citation omitted). If the statutory language spells out the unit of prosecution, the inquiry is complete. State v. Gallegos , 2011-NMSC-027, ¶ 31, 149 N.M. 704, 254 P.3d 655. But if it does not, then courts traditionally move to the second step, "in which we determine whether a defendant's acts are separated by sufficient ‘indicia of distinctness’ to justify multiple punishments under the same statute." Id. (internal quotation marks and citation omitted). But see Olsson I , 2008-NMCA-009, ¶¶ 5-10, 143 N.M. 351, 176 P.3d 340 (). "[B]oth stages of the unit of prosecution analysis turn on legislative intent." Gallegos , 2011-NMSC-027, ¶ 32, 149 N.M. 704, 254 P.3d 655.
{9} Under the first step of the unit of prosecution analysis, we are mindful that "[t]he issue, though essentially constitutional, becomes one of statutory construction." Herron , 1991-NMSC-012, ¶ 6, 111 N.M. 357, 805 P.2d 624. While our courts often go no further than evaluating the plain language of the statute, see, e.g. , Olsson I , 2008-NMCA-009, ¶ 5, 143 N.M. 351, 176 P.3d 340 (), in Herron , the Court also considered whether the legislative...
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State v. Torres
...On interlocutory appeals by the State, the Court of Appeals affirmed the orders of the district court in all three cases. State v. Torres , 2021-NMCA-045, ¶ 29, 495 P.3d 1141 (affirming in both Torres and Hendrix ); State v. Chadwick , A-1-CA-38561, mem. op. ¶ 5, 2020 WL 5835347 (N.M. Ct. A......