State v. Torres, S-1-SC-38484

Case DateOctober 03, 2022
CourtSupreme Court of New Mexico

STATE OF NEW MEXICO, Plaintiff-Petitioner,

GERARDO TORRES, Defendant-Respondent,


STATE OF NEW MEXICO, Plaintiff-Petitioner,

KENDALE HENDRIX, Defendant-Respondent,

STATE OF NEW MEXICO, Plaintiff-Petitioner,

SKEETER W. CHADWICK, Defendant-Respondent.

Nos. S-1-SC-38484, S-1-SC-38546

Supreme Court of New Mexico

October 3, 2022

Original Proceeding on Certiorari Steven Blankinship, District Judge


Hector H. Balderas, Attorney General Benjamin L. Lammons, Assistant Attorney General Santa Fe, NM for Petitioner

Bennett J. Baur, Chief Public Defender Victor E. Sanchez, Jr., Assistant Appellate Defender Caitlin C.M. Smith, Associate Appellate Defender Santa Fe, NM for Respondents Gerardo Torres and Kendale Hendrix

Gary C. Mitchell, P.C. Gary C. Mitchell Ruidoso, NM for Respondent Skeeter W. Chadwick





{¶1} In this consolidated matter, Defendants Gerardo Torres, Kendale Hendrix, and Skeeter Chadwick challenge their indictments under double-jeopardy principles, standing accused of stealing several head of cattle from ranches in Otero County. The State charged each Defendant with one count of livestock larceny per animal allegedly stolen, resulting in multiple-count criminal informations. Prior to trial, Defendants filed motions to merge or dismiss the multiple charges, asserting that they instead may only be prosecuted for each episode of theft. The Twelfth Judicial District Court agreed with Defendants and dismissed the charges that it determined to be multiplicitous. 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 (N.M. Ct. App., Sept. 30, 2020) (nonprecedential). The State petitioned for certiorari, and we granted review and consolidated the appeals.

{¶2} We affirm the Court of Appeals conclusion that the livestock larceny statute, NMSA 1978, § 30-16-1(G) (2006), does not express an intent to prosecute


Defendants for an alleged larceny of each animal. Torres, 2021-NMCA-045, ¶ 21. However, we reach this result through a different path and write to explain our reasoning. In particular, we rely on the two-step analysis developed by this Court in Herron v. State, 1991-NMSC-012, ¶¶ 6, 15, 111 N.M. 357, 805 P.2d 624, which provides framework for construing the unit of prosecution of a statute applied to multiple counts charged against a defendant. Using Herron, we ascertain that the Legislature has not expressed an intent to authorize multiple punishments for livestock larceny, § 30-16-1(G), based on the theft of multiple animals. We construe the statute as instead expressing an intent to prosecute Defendants for each episode of theft. We remand for further proceedings.


{¶3} Because each Defendant challenged the multiple counts of livestock larceny in his indictment prior to conviction as violative of the Double Jeopardy Clause, we consider whether the indictment of each was multiplicitous, which is "the charging of a single offense in several counts." State v. Lente, 2019-NMSC-020, ¶ 25, 453 P.3d 416 (internal quotation marks and citation omitted); see Herron, 1991-NMSC-012, ¶ 6 n.4 ("We use the term 'multiplicity' to describe the situation when an indictment charges a single offense in different counts."). Our analysis draws factual background from affidavits and grand jury testimony supporting each indictment.


A. Factual Background

{¶4} In July 2017, an operations manager at Crossroads Cattle Company's ranch in Otero County was branding calves in the ranch's Wimberly pasture. The operations manager noticed a significant discrepancy between the number of calves expected in the pasture and the number of calves branded. Suspicions arose that some calves had been stolen because the pasture was remote and situated in such a way as to make cattle easily amenable to undetected theft. Another ranch hand later informed the operations manager that he had helped Defendant Torres round up calves from the pasture and may have unwittingly assisted in the theft. Defendant Torres later confessed to stealing thirteen head of cattle from the ranch. Records from a Texas livestock auction house showed that Defendant Torres sold eighteen calves at the auction house on two occasions, in January 2017 and March 2017. The State charged Defendant Torres with eighteen counts of livestock larceny, one for each animal.

{¶5} In a factually unrelated incident, Defendants Hendrix and Chadwick allegedly rustled twenty-five unbranded calves from Defendant Chadwick's employer, the Ganada Cattle Company. The theft was discovered in August 2018 when an off-duty livestock inspector observed Defendant Hendrix's truck hauling cattle near Carlsbad. The inspector recognized a distinctive mark on the side of the truck and observed two occupants, later identified as Defendants Hendrix and Chadwick. The


inspector was suspicious that the cattle had been stolen because they had not been inspected prior to shipment, as required by law. See NMSA 1978, § 77-9-30 (1999). The inspector contacted an area supervisor from the New Mexico Livestock Board and reported the suspected theft.

{¶6} The Livestock Board investigator determined that Defendants were probably hauling the cattle to an auction house near San Angelo, Texas. The area supervisor alerted Texas Rangers to a possible theft, and the Rangers confiscated twenty-four calves from Defendants Chadwick and Hendrix upon their arrival at the auction house. Another calf was too ill to be unloaded from the trailer. This calf was later euthanized, and Defendant Hendrix disposed of its carcass. The Livestock Board area supervisor confirmed that all twenty-five calves had been stolen from the Ganada ranch and that the calves were taken from a herd that had been quarantined to prevent the spread of a livestock disease. The State charged Defendants Chadwick and Hendrix with twenty-five counts of livestock larceny, one count for each head.

B. Procedural History

{¶7} Prior to trial, each of the three Defendants filed motions to merge the multiple livestock larceny charges in their respective cases, arguing that their charges should be merged under the common-law single-larceny doctrine or double-jeopardy principles. The Twelfth Judicial District Court granted each of these motions,


reducing Defendant Torres's eighteen livestock larceny charges to two counts and Defendant Chadwick's and Defendant Hendrix's twenty-five livestock larceny charges each to one count each.

{¶8} On appeal, the Court of Appeals affirmed the district court's orders in the proceedings against Defendant Torres and Defendant Hendrix, also concluding that these Defendants could not be punished for each animal stolen during a single episode of theft.[1] Torres, 2021-NMCA-045, ¶¶ 28-29. The Court of Appeals reasoned that Section 30-16-1(G) was ambiguous and that the statute's unit of prosecution could not be ascertained under Herron's unit-of-prosecution framework. Id. ¶ 13. Stepping outside of the Herron framework, the Court of Appeals relied on the common-law rule known as the single-larceny doctrine, stating that "[w]hen we apply the single-larceny doctrine to interpret the unit of prosecution in the larceny of livestock provision, it clarifies that a taking of multiple head of cattle at the same time and place (single transaction), or a series of takings from a single owner with a single criminal intent (single intent), constitute[s] but one larceny" and holding that Defendants Torres and Hendrix could be prosecuted for each episode of


theft-respectively, two episodes for Defendant Torres and one for Defendant Hendrix. Id. ¶¶ 27-28.

{¶9} The State petitioned for certiorari review. We granted the petitions and consolidated all three proceedings for review.


{¶10} The United States and New Mexico Constitutions provide that an individual shall not "be twice put in jeopardy" for "the same offense." U.S. Const. amend. V; N.M. Const. art. II, § 15; see Benton v. Maryland, 395 U.S. 784, 794 (1969) (concluding that the Due Process Clause of the Fourteenth Amendment makes the double-jeopardy protections of the Fifth Amendment applicable to the states). We have explained that "[t]he double jeopardy clause . . . affords three levels of protection to a criminal defendant" in that (1) "[i]t protects against a second prosecution for the same offense after acquittal," (2) "[i]t protects against a second prosecution for the same offense after conviction," and (3) "it protects against multiple punishments for the same offense." State v. Gallegos, 2011-NMSC-027, ¶ 30, 149 N.M. 704, 254 P.3d 655.

{¶11} In this appeal, Defendants focus on the double-jeopardy protection against multiple punishments for the same offense. See Swafford v. State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223 ("The pivotal question in multiple punishment cases


is whether the defendant is being punished twice for the same offense."). Although this question is one of constitutional dimension, we must ultimately inquire into legislative intent, because "in the multiple punishment context, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Id. ¶ 7 (brackets, internal quotation marks, and citation omitted).

{¶12} "Multiple punishment problems can arise from both 'double-description' claims, in which a single act results in multiple charges under different criminal statutes, and 'unit-of-prosecution' claims, in which an individual is convicted of multiple violations of the same criminal statute." State v. Bernal, 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289 (citation omitted). Defendants...

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