State v. Word
| Decision Date | 03 September 2020 |
| Docket Number | No. A-1-CA-37739,A-1-CA-37739 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. LONDON WORD, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Hector H. Balderas, Attorney General
Emily Tyson-Jorgenson, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant London Word appeals his convictions for possession of a deadly weapon by a prisoner, in violation of NMSA 1978, Section 30-22-16 (1986), and tampering with evidence, in violation of NMSA 1978, Section 30-22-5 (2003). Defendant raises three issues on appeal: (1) his convictions violate double jeopardy; (2) there was insufficient evidence to support his convictions; and (3) the district court abused its discretion in admitting testimony contrary to the best evidence rule. We affirm.
{2} During the relevant time period, Defendant occupied a single-person cell at the Metropolitan Detention Center (MDC) in Bernalillo County. On March 25, 2017, correctional officers searched his cell and found a six-inch long metal rod, sharpened on one end with a sticky black substance on one side, inside an air vent. The State charged Defendant with possession of a deadly weapon by a prisoner and tampering with evidence. A jury found Defendant guilty of both crimes.
{3} During sentencing, defense counsel argued that both convictions were based on unitary conduct and thus double jeopardy required the tampering conviction be vacated. Referring to the jury instructions, the State responded that double jeopardy did not apply because each conviction was based on "two separate and distinct acts." The district court denied Defendant's motion explaining that under the jury instructions, the two crimes "require[ed] two separate intents for purposes of completing both actions." This appeal followed.
{4} Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of this case, we reserve further discussion of specific facts where necessary to our analysis.
{5} Defendant argues that his convictions for possession of a deadly weapon by a prisoner and tampering with evidence violate double jeopardy because they arise from "unitary conduct for which the [L]egislature did not intend separate punishments." The State counters that assuming Defendant's conduct was unitary, Defendant's convictions do not violate double jeopardy because the Legislature intended separate punishments for each offense.
{6} We review double jeopardy claims de novo. See State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747 (). "[D]ouble jeopardy protects against both successive prosecutions and multiple punishments for the same offense." State v. Contreras, 2007-NMCA-045, ¶ 19, 141 N.M. 434, 156 P.3d 725 (internal quotation marks and citation omitted). Defendant raises the latter type—multiple punishments for the same offense. Multiple punishment cases are classified in one of two ways: "double description cases in which a single act results in multiple charges under different criminal statutes;" and "unit of prosecution cases in which an individual is convicted of multiple violations of the same criminal statute." State v. Gallegos, 2011-NMSC-027, ¶ 31, 149 N.M. 704, 254 P.3d 655 (alteration, internal quotation marks, and citation omitted). Because Defendant asserts that unitary conduct resulted in multiple convictions under different statutes, we apply the double-description analysis.
{7} In analyzing a double-description claim, we apply the two-part test set forth in Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. First, we determine whether the conduct underlying the offenses is unitary, that is, whether the same conduct violates both statutes. Id. "If the conduct is not unitary, there is no double jeopardy violation." State v. Lucero, 2015-NMCA-040, ¶ 21, 346 P.3d 1175. If, however, the conduct is unitary, we then look to the statute "to determine whether the Legislature intended to create separately punishable offenses." Id. (alteration, internal quotation marks, and citation omitted).
{8} Defendant argues that his conviction for tampering with evidence violates double jeopardy because the State relied on the same evidence to prove both constructive possession of a weapon by a prisoner and tampering, i.e. "possession of a shank in the vent in his jail cell." When determining whether conduct is unitary, "we consider such factors as whether acts were close in time and space, their similarity, the sequence in which they occurred, whether other events intervened, and the defendant's goals for and mental state during each act." State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104. The discovery of the shank inside the air vent in Defendant's single-person cell lead to the charges in this case and provided the factual basis supporting each of Defendant's convictions.
{9} Because there is no evidence of any intervening events or significant separation of time or physical distance between Defendant's possession of the shank in the air vent of his cell and his concealment of it there, we conclude that the conduct in this case was unitary. See Lucero, 2015-NMCA-040, ¶ 22 (). Having determined that Defendant's conduct was unitary, we turn to the second prong of our double-description analysis and determine whether the Legislature intended to create separately punishable offenses for the same conduct. Franco, 2005-NMSC-013, ¶ 11.
{10} "The test for determining whether more than one act has occurred was never intended to be the sole test for determining whether the Legislature intended to punish conduct under more than one statute." Id. ¶ 12. Therefore, "[t]o determine legislative intent, we look first to the language of the statute." State v. Silvas, 2015-NMSC-006, ¶ 11, 343 P.3d 616. Section 30-22-16 defines the crime of possession of a deadly weapon by a prisoner as "any inmate of a penal institution, reformatory, jail or prison farm or ranch possessing any deadly weapon or explosive substance." Section 30-22-5(A) on the other hand, defines the crime of tampering with evidence as "destroying, changing, hiding, placing or fabricating any physical evidence with intent to prevent theapprehension, prosecution or conviction of any person or to throw suspicion of the commission of a crime upon another."
{11} Because neither the possession of a weapon by a prisoner nor the tampering with evidence statute expressly provide for multiple punishments, we "apply the Blockburger test to the elements of each statute." Swafford, 1991-NMSC-043, ¶ 30. "Under Blockburger [v. United States, 284 U.S. 299 (1932)], the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Swick, 2012-NMSC-018, ¶ 12 (internal quotation marks and citation omitted).
{12} "If [the Blockburger analysis] establishes that one statute is subsumed within the other, the inquiry is over and the statutes are the same for double jeopardy purposes—punishment cannot be had for both." Swafford, 1991-NMSC-043, ¶ 30. Conversely, "[i]f one statute requires proof of a fact that the other does not, then the Legislature is presumed to have intended a separate punishment for each statute without offending principles of double jeopardy." Silvas, 2015-NMSC-006, ¶ 12. "That presumption, however, is not conclusive and it may be overcome by other indicia of legislative intent, which may be gleaned from statutory schemes by identifying the particular evil addressed by each statute; determining whether the statutes are usually violated together; comparing the amount of punishment inflicted for a violation of each statute; and examining other relevant factors." State v. Jackson, 2020-NMCA-___, ¶ 36, ___ P.3d ___ (No. A-1-CA-36400, Feb. 26, 2020) (alteration, internal quotation marks, and citations omitted), cert. denied, 2020-NMCERT-___ (No. S-1-SC-38203, June 9, 2020).
{13} However, when a statute is vague and unspecific or written with many alternatives, we apply a modified version of the Blockburger test. See State v. Gutierrez, 2011-NMSC-024, ¶ 48, 150 N.M. 232, 258 P.3d 1024 . Under the modified Blockburger test, "we no longer apply a strict elements test in the abstract; rather, we look to the state's trial theory to identify the specific criminal cause of action for which the defendant was convicted, filling in the case-specific meaning of generic terms in the statute when necessary." State v. Serrato, 2020-NMCA-___, ¶ 16, ___ P.3d ___ (No. A-1-CA-36381, Feb. 17, 2020) (internal quotation marks and citation omitted). Hence, instead of analyzing the "statute in the abstract, we look at...
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