State v. Torres ( 2022 )

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: October 3, 2022
4 NO. S-1-SC-38484
5 STATE OF NEW MEXICO,
6 Plaintiff-Petitioner,
7 v.
8 GERARDO TORRES,
9 Defendant-Respondent,
10 and
11 STATE OF NEW MEXICO,
12 Plaintiff-Petitioner,
13 v.
14 KENDALE HENDRIX,
15 Defendant-Respondent,
16 CONSOLIDATED WITH
17 NO. S-1-SC-38546
18 STATE OF NEW MEXICO,
19 Plaintiff-Petitioner,
1 v.
2 SKEETER W. CHADWICK,
3 Defendant-Respondent.
4 ORIGINAL PROCEEDING ON CERTIORARI
5 Steven Blankinship, District Judge
6 Hector H. Balderas, Attorney General
7 Benjamin L. Lammons, Assistant Attorney General
8 Santa Fe, NM
9 for Petitioner
10 Bennett J. Baur, Chief Public Defender
11 Victor E. Sanchez, Jr., Assistant Appellate Defender
12 Caitlin C.M. Smith, Associate Appellate Defender
13 Santa Fe, NM
14 for Respondents Gerardo Torres and Kendale Hendrix
15 Gary C. Mitchell, P.C.
16 Gary C. Mitchell
17 Ruidoso, NM
18 for Respondent Skeeter W. Chadwick
1 OPINION
2 THOMSON, Justice.
3 INTRODUCTION
4 {1} In this consolidated matter, Defendants Gerardo Torres, Kendale Hendrix, and
5 Skeeter Chadwick challenge their indictments under double-jeopardy principles,
6 standing accused of stealing several head of cattle from ranches in Otero County.
7 The State charged each Defendant with one count of livestock larceny per animal
8 allegedly stolen, resulting in multiple-count criminal informations. Prior to trial,
9 Defendants filed motions to merge or dismiss the multiple charges, asserting that
10 they instead may only be prosecuted for each episode of theft. The Twelfth Judicial
11 District Court agreed with Defendants and dismissed the charges that it determined
12 to be multiplicitous. On interlocutory appeals by the State, the Court of Appeals
13 affirmed the orders of the district court in all three cases. State v. Torres, 2021-
14 NMCA-045, ¶ 29, 495 P.3d 1141 (affirming in both Torres and Hendrix); State v.
15 Chadwick, A-1-CA-38561, mem. op. ¶ 5 (N.M. Ct. App., Sept. 30, 2020)
16 (nonprecedential). The State petitioned for certiorari, and we granted review and
17 consolidated the appeals.
18 {2} We affirm the Court of Appeals conclusion that the livestock larceny statute,
19 NMSA 1978, § 30-16-1(G) (2006), does not express an intent to prosecute
1 Defendants for an alleged larceny of each animal. Torres, 2021-NMCA-045, ¶ 21.
2 However, we reach this result through a different path and write to explain our
3 reasoning. In particular, we rely on the two-step analysis developed by this Court in
4 Herron v. State, 1991-NMSC-012, ¶¶ 6, 15, 111 N.M. 357, 805 P.2d 624, which
5 provides framework for construing the unit of prosecution of a statute applied to
6 multiple counts charged against a defendant. Using Herron, we ascertain that the
7 Legislature has not expressed an intent to authorize multiple punishments for
8 livestock larceny, § 30-16-1(G), based on the theft of multiple animals. We construe
9 the statute as instead expressing an intent to prosecute Defendants for each episode
10 of theft. We remand for further proceedings.
11 BACKGROUND
12 {3} Because each Defendant challenged the multiple counts of livestock larceny
13 in his indictment prior to conviction as violative of the Double Jeopardy Clause, we
14 consider whether the indictment of each was multiplicitous, which is “the charging
15 of a single offense in several counts.” State v. Lente, 2019-NMSC-020, ¶ 25, 453
16 P.3d 416 (internal quotation marks and citation omitted); see Herron, 1991-NMSC-
17 012, ¶ 6 n.4 (“We use the term ‘multiplicity’ to describe the situation when an
18 indictment charges a single offense in different counts.”). Our analysis draws factual
19 background from affidavits and grand jury testimony supporting each indictment.
2
1 A. Factual Background
2 {4} In July 2017, an operations manager at Crossroads Cattle Company’s ranch in
3 Otero County was branding calves in the ranch’s Wimberly pasture. The operations
4 manager noticed a significant discrepancy between the number of calves expected
5 in the pasture and the number of calves branded. Suspicions arose that some calves
6 had been stolen because the pasture was remote and situated in such a way as to
7 make cattle easily amenable to undetected theft. Another ranch hand later informed
8 the operations manager that he had helped Defendant Torres round up calves from
9 the pasture and may have unwittingly assisted in the theft. Defendant Torres later
10 confessed to stealing thirteen head of cattle from the ranch. Records from a Texas
11 livestock auction house showed that Defendant Torres sold eighteen calves at the
12 auction house on two occasions, in January 2017 and March 2017. The State charged
13 Defendant Torres with eighteen counts of livestock larceny, one for each animal.
14 {5} In a factually unrelated incident, Defendants Hendrix and Chadwick allegedly
15 rustled twenty-five unbranded calves from Defendant Chadwick’s employer, the
16 Ganada Cattle Company. The theft was discovered in August 2018 when an off-duty
17 livestock inspector observed Defendant Hendrix’s truck hauling cattle near
18 Carlsbad. The inspector recognized a distinctive mark on the side of the truck and
19 observed two occupants, later identified as Defendants Hendrix and Chadwick. The
3
1 inspector was suspicious that the cattle had been stolen because they had not been
2 inspected prior to shipment, as required by law. See NMSA 1978, § 77-9-30 (1999).
3 The inspector contacted an area supervisor from the New Mexico Livestock Board
4 and reported the suspected theft.
5 {6} The Livestock Board investigator determined that Defendants were probably
6 hauling the cattle to an auction house near San Angelo, Texas. The area supervisor
7 alerted Texas Rangers to a possible theft, and the Rangers confiscated twenty-four
8 calves from Defendants Chadwick and Hendrix upon their arrival at the auction
9 house. Another calf was too ill to be unloaded from the trailer. This calf was later
10 euthanized, and Defendant Hendrix disposed of its carcass. The Livestock Board
11 area supervisor confirmed that all twenty-five calves had been stolen from the
12 Ganada ranch and that the calves were taken from a herd that had been quarantined
13 to prevent the spread of a livestock disease. The State charged Defendants Chadwick
14 and Hendrix with twenty-five counts of livestock larceny, one count for each head.
15 B. Procedural History
16 {7} Prior to trial, each of the three Defendants filed motions to merge the multiple
17 livestock larceny charges in their respective cases, arguing that their charges should
18 be merged under the common-law single-larceny doctrine or double-jeopardy
19 principles. The Twelfth Judicial District Court granted each of these motions,
4
1 reducing Defendant Torres’s eighteen livestock larceny charges to two counts and
2 Defendant Chadwick’s and Defendant Hendrix’s twenty-five livestock larceny
3 charges each to one count each.
4 {8} On appeal, the Court of Appeals affirmed the district court’s orders in the
5 proceedings against Defendant Torres and Defendant Hendrix, also concluding that
6 these Defendants could not be punished for each animal stolen during a single
7 episode of theft.1 Torres, 2021-NMCA-045, ¶¶ 28-29. The Court of Appeals
8 reasoned that Section 30-16-1(G) was ambiguous and that the statute’s unit of
9 prosecution could not be ascertained under Herron’s unit-of-prosecution framework.
10 Id. ¶ 13. Stepping outside of the Herron framework, the Court of Appeals relied on
11 the common-law rule known as the single-larceny doctrine, stating that “[w]hen we
12 apply the single-larceny doctrine to interpret the unit of prosecution in the larceny
13 of livestock provision, it clarifies that a taking of multiple head of cattle at the same
14 time and place (single transaction), or a series of takings from a single owner with a
15 single criminal intent (single intent), constitute[s] but one larceny” and holding that
16 Defendants Torres and Hendrix could be prosecuted for each episode of
1
The Court of Appeals memorandum opinion in Chadwick, A-1-CA-38561,
mem. op. ¶ 4, affirmed the merger of Defendant Chadwick’s charges under its
reasoning in Torres, 2021-NMCA-045.
5
1 theft⸻respectively, two episodes for Defendant Torres and one for Defendant
2 Hendrix. Id. ¶¶ 27-28.
3 {9} The State petitioned for certiorari review. We granted the petitions and
4 consolidated all three proceedings for review.
5 STANDARD OF REVIEW
6 {10} The United States and New Mexico Constitutions provide that an individual
7 shall not “be twice put in jeopardy” for “the same offense.” U.S. Const. amend. V;
8 N.M. Const. art. II, § 15; see Benton v. Maryland, 395 U.S. 784, 794 (1969)
9 (concluding that the Due Process Clause of the Fourteenth Amendment makes the
10 double-jeopardy protections of the Fifth Amendment applicable to the states). We
11 have explained that “[t]he double jeopardy clause . . . affords three levels of
12 protection to a criminal defendant” in that (1) “[i]t protects against a second
13 prosecution for the same offense after acquittal,” (2) “[i]t protects against a second
14 prosecution for the same offense after conviction,” and (3) “it protects against
15 multiple punishments for the same offense.” State v. Gallegos, 2011-NMSC-027, ¶
16 30, 149 N.M. 704, 254 P.3d 655.
17 {11} In this appeal, Defendants focus on the double-jeopardy protection against
18 multiple punishments for the same offense. See Swafford v. State, 1991-NMSC-043,
19 ¶ 8, 112 N.M. 3, 810 P.2d 1223 (“The pivotal question in multiple punishment cases
6
1 is whether the defendant is being punished twice for the same offense.”). Although
2 this question is one of constitutional dimension, we must ultimately inquire into
3 legislative intent, because “in the multiple punishment context, the Double Jeopardy
4 Clause does no more than prevent the sentencing court from prescribing greater
5 punishment than the legislature intended.” Id. ¶ 7 (brackets, internal quotation
6 marks, and citation omitted).
7 {12} “Multiple punishment problems can arise from both ‘double-description’
8 claims, in which a single act results in multiple charges under different criminal
9 statutes, and ‘unit-of-prosecution’ claims, in which an individual is convicted of
10 multiple violations of the same criminal statute.” State v. Bernal, 2006-NMSC-050,
11 ¶ 7, 140 N.M. 644, 146 P.3d 289 (citation omitted). Defendants stand accused of
12 multiple counts of livestock larceny, so we here consider the intended unit of
13 prosecution of Section 30-16-1(G). See Swafford, 1991-NMSC-043, ¶ 8 (explaining
14 that “unit of prosecution” challenges are appropriate when “the defendant has been
15 charged with multiple violations of a single statute based on a single course of
16 conduct”). In a unit-of-prosecution case, “the relevant inquiry . . . is whether the
17 legislature intended punishment for the [defendant’s] entire course of conduct or for
18 each discrete act.” Id. “This analysis requires courts to determine the unit of
19 prosecution intended by the Legislature by employing a two-part test, both parts of
7
1 which are concerned with legislative intent.” State v. Swick, 2012-NMSC-018, ¶ 33,
2 279 P.3d 747. We review this question of law de novo. State v. Olsson, 2014-NMSC-
3 012, ¶ 14, 324 P.3d 1230.
4 DISCUSSION
5 A. We Construe the Unit of Prosecution of a Statute Using Herron’s Two-
6 Step Framework
7 {13} In Herron, this Court elucidated a two-step framework for analyzing questions
8 regarding the intended unit of prosecution of a criminal statute. 1991-NMSC-012,
9 ¶¶ 6, 15. Both steps of our Herron analysis focus on discerning “whether a defendant
10 has received more punishments than the number of punishments that the Legislature
11 intended to authorize under the facts and circumstances of the case.” State v. Benally,
12 2021-NMSC-027, ¶ 12, 493 P.3d 366. Thus, “[w]e are mindful that both stages of
13 the unit of prosecution analysis turn on legislative intent.” Gallegos, 2011-NMSC-
14 027, ¶ 32. We first briefly outline these two steps and then apply them to this statute.
15 1. Step one: construing the statutory offense
16 {14} Under the first step of the Herron framework, the Court examines the charging
17 statute for the intended unit of prosecution or, in other words, construes the statutory
18 language “to determine what conduct the Legislature has defined as a statutory
19 offense.” Benally, 2021-NMSC-027, ¶ 13 (brackets, internal quotation marks, and
20 citation omitted). In construing the intended unit of prosecution of a statute, the
8
1 Court considers “all markers of legislative intent . . . including the wording,
2 structure, legislative history, legislative purpose, and quantum of punishment
3 prescribed under the statutory scheme.” Id. If the Court determines that the statute
4 defines the unit of prosecution, “then the [C]ourt follows that language and the
5 inquiry is complete.” Olsson, 2014-NMSC-012, ¶ 18.
6 {15} If, after consideration of the applicable canons of construction, the Court is
7 still unable to construe the intended unit of prosecution, then the Court applies the
8 rule of lenity and resolves the ambiguity in favor of the defendant. Swafford, 1991-
9 NMSC-043, ¶ 34 (“Unless an intent to punish separately can be found through
10 application of the canons of construction . . . , lenity is indicated, and in that event,
11 it is to be presumed the legislature did not intend pyramiding punishments for the
12 same offense.”). The rule of lenity essentially recognizes that a criminal defendant
13 should be given “fair warning” as to what conduct is prohibited and as to what level
14 of punishment will be accorded to that prohibited conduct. State v. Santillanes, 2001-
15 NMSC-018, ¶ 34, 130 N.M. 464, 27 P.3d 456 (“[I]n the context of assessing a
16 legislative intent to create multiple punishments, the application of the rule of lenity
17 is consistent with the rule’s purposes of ensuring that criminal statutes will provide
18 fair warning concerning conduct rendered illegal.” (brackets, internal quotation
19 marks, and citation omitted)). However, “we will construe a statute in favor of a
9
1 defendant only when a reasonable doubt persists about a statute’s intended unit of
2 prosecution even after resort to the statute’s wording, structure, legislative history,
3 legislative purpose, and the quantum of punishment prescribed.” Benally, 2021-
4 NMSC-027, ¶ 15 (internal quotation marks and citation omitted). This is because
5 “the meaning of language is inherently contextual,” and thus a “court should rely on
6 lenity only if, after seizing everything from which aid can be derived, it is left with
7 an ambiguous statute.” State v. Edmondson, 1991-NMCA-069, ¶ 12, 112 N.M. 654,
8 818 P.2d 855 (brackets and internal quotation marks omitted) (quoting Moskal v.
9 United States, 498 U.S. 103, 108 (1990)). If lenity is warranted, we will “presume
10 that the Legislature did not intend to separately punish discrete acts in a defendant’s
11 course of conduct absent proof that each act was in some sense distinct from the
12 others.” Benally, 2021-NMSC-027, ¶ 16 (brackets, ellipsis, internal quotation marks,
13 and citation omitted).
14 2. Step two: indicia of distinctness
15 {16} The second step of the unit-of-prosecution framework analyzes the indicia of
16 distinctness in light of the facts and circumstances of the case. See Herron, 1991-
17 NMSC-012, ¶ 15; State v. Ramirez, 2018-NMSC-003, ¶ 56, 409 P.3d 902. This
18 inquiry considers whether a defendant’s course of conduct gives rise to a single,
19 “same statutory offense” or whether the defendant’s acts were distinct as to give rise
10
1 to multiple statutory offenses. See Benally, 2021-NMSC-027, ¶¶ 17, 23 (“[I]f we can
2 reasonably infer that a defendant’s acts were distinct under the applicable indicia of
3 distinctness, then we will presume that the defendant has not received more
4 punishments than were statutorily authorized.”); see also Swafford, 1991-NMSC-
5 043, ¶ 26 (“Clearly, if the defendant commits two discrete acts violative of the same
6 statutory offense but separated by sufficient indicia of distinctness, then a court may
7 impose separate, consecutive punishments for each offense.”). Because the Court
8 must be “mindful that both stages of the unit of prosecution analysis turn on
9 legislative intent,” our analysis of the indicia of distinctness is also “guided by the
10 statute at issue, including its language, history, and purpose, as well as the quantum
11 of punishment that is prescribed.” Gallegos, 2011-NMSC-027, ¶¶ 32-33. Thus, “[i]n
12 examining the indicia of distinctness, courts may inquire as to the interests protected
13 by the criminal statute, since the ultimate goal is to determine whether the legislature
14 intended multiple punishments.” Bernal, 2006-NMSC-050, ¶ 14; see also Swafford,
15 1991-NMSC-043, ¶ 27 (“The conduct question depends to a large degree on the
16 elements of the charged offenses and the facts presented at trial.”). Deciding whether
17 a defendant’s acts were sufficiently distinct so as constitute separate offenses may
18 involve factual determinations resolved by a jury. Herron, 1991-NMSC-012, ¶ 16.
19 Whether the Legislature intended punishment for the entire course of conduct or for
11
1 each discrete act is a question of law subject to de novo review. See, e.g., Benally,
2 2021-NMSC-027, ¶ 11 (indicating that Benally was “a unit of prosecution case
3 where the relevant inquiry” was “whether the Legislature intended punishment for
4 the entire course of conduct or for each discrete act. We review this question de
5 novo.” (brackets, internal quotation marks, and citations omitted)). Under this
6 standard, we consider whether, on the facts herein, each Defendant’s multiple
7 charges violate double jeopardy.
8 {17} If, after analysis of a defendant’s conduct under the indicia of distinctness, the
9 Court “can reasonably infer that a defendant’s acts were distinct” offenses of the
10 statute, “then we will presume that the defendant has not received more punishments
11 than were statutorily authorized.” Id. ¶ 23.; see also State v. Morro, 1999-NMCA-
12 118, ¶ 10, 127 N.M. 763, 987 P.2d 420 (describing the indicia of distinctness as a
13 “presumption” of legislative intent “that a defendant can be prosecuted for two
14 separate offenses if the defendant’s acts are ‘separated by sufficient indicia of
15 distinctness’” (citation omitted)). If, however, the defendant’s acts did not
16 reasonably give rise to multiple distinct offenses of the statute, then the Court
17 presumes that the Legislature did not authorize multiple punishments. See Herron,
18 1991-NMSC-012, ¶¶ 21-22; see also Bernal, 2006-NMSC-050, ¶ 14 (“If the acts are
19 not sufficiently distinct, then the rule of lenity mandates an interpretation that the
12
1 legislature did not intend multiple punishments, and a defendant cannot be punished
2 for multiple crimes.”).
3 B. Section 30-16-1(G) Does Not Authorize Multiple Punishments Based on
4 the Number of Animals Stolen in a Single Episode
5 {18} Applying the first step of our Herron framework, we hold that Section 30-16-
6 1(G) does not express an intent to prosecute Defendants for each animal they have
7 allegedly stolen; instead, the statute expresses an intent to prosecute Defendants for
8 each episode of theft.
9 1. Statutory language
10 {19} We begin with an analysis of the statutory language as the “primary indicator
11 of legislative intent.” Olsson, 2014-NMSC-012, ¶ 18. New Mexico’s larceny statute
12 defines larceny as “the stealing of anything of value that belongs to another.” Section
13 30-16-1(A). Subsection (G), the subsection with which we are primarily concerned,
14 provides, “Whoever commits larceny when the property of value stolen is livestock
15 is guilty of a third degree felony regardless of its value.” Section 30-16-1(G).
16 {20} The parties advocate for vastly different readings of this language. They
17 primarily center their dispute on the word livestock, with each party suggesting that
18 the word supports the party’s proffered unit of prosecution. The Court of Appeals
19 concluded that the word livestock could be “both singular and plural” and thus
20 “provide[d] no clear indication of a unit-of-prosecution.” Torres, 2021-NMCA-045,
13
1 ¶ 13 (internal quotation marks omitted) (quoting State v. Tidey, 2018-NMCA-014, ¶
2 10, 409 P.3d 1019). We disagree with the Court of Appeals conclusion that, because
3 the word livestock can be read as singular or plural, the wording of the statute
4 provides no clear indication of a unit of prosecution.
5 {21} The New Mexico Criminal Code does not define the term livestock.
6 Nevertheless, various other statutory provisions define livestock as referring to herds
7 or groups of domesticated animals. See, e.g., NMSA 1978, § 7-35-2(D) (2018) (“As
8 used in the Property Tax Code . . . ‘livestock’ means cattle, buffalo, horses, mules,
9 sheep, goats, swine, ratites and other domestic animals useful to humans.”); NMSA
10 1978, § 77-2-1.1(A) (2015) (“As used in the Livestock Code . . . ‘animals’ or
11 ‘livestock’ means all domestic or domesticated animals that are used or raised on a
12 farm or ranch, including the carcasses thereof, and exotic animals in captivity and
13 includes horses, asses, mules, cattle, sheep, goats, swine, bison, poultry, ostriches,
14 emus, rheas, camelids and farmed cervidae upon any land in New Mexico.”); NMSA
15 1978, § 77-1B-2(K) (2017, repealed effective July 1, 2024) (“‘[L]ivestock’ means
16 all domestic or domesticated animals that are used or raised on a farm or ranch and
17 exotic animals in captivity and includes horses, asses, mules, cattle, sheep, goats,
18 swine, bison, poultry, ostriches, emus, rheas, camelids and farmed cervidae but does
19 not include canine or feline animals.”); NMSA 1978, § 77-16-2 (1977)
14
1 (“‘[L]ivestock’ shall include domestic animals such as cattle, horses, sheep, hogs,
2 goats and buffaloes.”). In ordinary usage, livestock is a noncount or mass noun,
3 which is neither singular nor plural, but describes an “aggregation” which is “taken
4 as an indeterminate whole.”2 Bryan A. Garner, The Chicago Guide to Grammar,
5 Usage, and Punctuation 22 (2016). Thus, we understand livestock to refer either to
6 a single animal or to multiple animals in indeterminate numbers.
7 {22} In contrast to the Court of Appeals, we do not conclude that this indeterminacy
8 renders the statutory language ambiguous. As a general principle, the use of singular
9 or plural language in a criminal statute may, in some circumstances, clarify the
10 intended unit of prosecution. See, e.g., Ramirez, 2018-NMSC-003, ¶¶ 52-53 (“It is
11 well established . . . that where a statute prohibits the doing of some act to a victim
12 specified by a singular noun, ‘a person’ for example, then ‘the person’ is the unit of
13 prosecution.”). However, the use of singular or plural language is not always
2
It also should be noted that “[m]any nouns can be both count . . . and mass
. . . depending on the sense.” Bryan A. Garner, Garner’s Modern English Usage,
227 (4th ed. 2016). Indeed, the Oxford Dictionary identifies “livestock” as either a
mass or a plural noun. Livestock, Oxford Advanced American Dictionary,
https://www.oxfordlearnersdictionaries.com/us/definition/american_english/livesto
ck (last visited Sept. 20, 2022) (“noun (uncountable, plural)”); see also Livestock,
Black’s Law Dictionary (11th ed. 2019) (defining “livestock” in the plural as “n.
(18c) Farm animals; specif., domestic animals and fowls . . . .”). Thus, the term
livestock is potentially either a mass noun or a plural noun, depending on use. Either
usage suggests that the Legislature did not intend to authorize multiple punishments
based on the number of animals stolen.
15
1 dispositive as to legislative intent. See, e.g., NMSA 1978, § 12-2A-5(A) (1997)
2 (“Use of the singular number includes the plural, and use of the plural number
3 includes the singular.”). We view this canon as relevant here. Specifically, the word
4 livestock, which is neither singular nor plural, suggests that the Legislature did not
5 contemplate a unit of prosecution based on the count or number of animals stolen in
6 a single episode of theft.
7 {23} The language of the livestock larceny statute supports this reading. The statute
8 punishes the larceny of livestock as “a third degree felony regardless of its value.”
9 Section 30-16-1(G) (emphasis added). This contrasts with the portion of the larceny
10 statute addressing the theft of generic property, which provides for “gradations of
11 punishment based on the monetary value of the property.” State v. Alvarez-Lopez,
12 2004-NMSC-030, ¶ 41, 136 N.M. 309, 98 P.3d 699; see also State v. Graves, 1915-
13 NMSC-076, ¶ 7, 21 N.M. 556, 157 P. 160 (concluding that an 1884 statute
14 prohibiting the larceny of livestock was not impliedly repealed by an 1891 act
15 addressing general larceny, explaining that livestock larceny is “an act in special
16 form, enacted for the particular protection of livestock, while the other was a general
17 act defining the punishment of larceny, graded according to the value of the property
18 stolen”). Subsections (B) through (F) of the larceny statute address the theft of
19 generic property, with gradations of punishment accorded in relation to the value of
16
1 property stolen. Compare § 30-16-1(B) (punishing the larceny of property valued at
2 $250 or less as a petty misdemeanor), with § 30-16-1(F) (punishing the larceny of
3 property valued over $20,000 as a second-degree felony). See also State v. Alvarez-
4 Lopez, 2004-NMSC-030, ¶ 41, (discussing the structure of the larceny statute).
5 Subsection (H) punishes, as a fourth-degree felony, the theft of the specific property
6 of a firearm valued less than $2,500. Section 30-16-1(H). The Legislature’s choice
7 to punish the livestock larceny “regardless of its value” suggests that neither the
8 potential market value of the property stolen nor, by logical extension, the number
9 of animals stolen is relevant to prosecution under Section 30-16-1(G). As it stands,
10 the language of the statute does not draw divisions based on number.
11 {24} In short, the State’s suggested per-animal unit of prosecution is neither
12 supported nor contemplated by the statutory language, and we will not construe
13 Section 30-16-1(G) as meting out punishment for each animal stolen when the
14 statute contemplates prosecution for the theft of anywhere from a single animal to
15 an entire herd. Cf. Swick, 2012-NMSC-018, ¶ 35 (refusing the state’s asserted unit
16 of prosecution of the aggravated burglary statute because the state’s “contentions are
17 not supported or contemplated by the statute and we therefore decline to divide one
18 offense into separate means used to accomplish the ultimate goal”). Although the
19 unit of prosecution under Section 30-16-1(G) is not immediately clear based on the
17
1 statutory language alone, what is clear is that it does not support a unit of prosecution
2 based on the number of animals stolen. Rather, we understand the language as
3 focusing prosecution on the prohibited act of larceny itself. See § 30-16-1(A), (G)
4 (“Larceny consists of the stealing of anything of value that belongs to another . . . [,
5 and w]hoever commits larceny when the property of value stolen is livestock is
6 guilty of a third degree felony regardless of its value.” (emphasis added)).
7 2. Legislative history
8 {25} Our reading of Section 30-16-1(G) as creating a unit of prosecution based on
9 an episode of theft is also supported by the history of the statute. Once the practice
10 of livestock raising gained foothold, the ownership and keeping of livestock became
11 of vital significance to many New Mexicans. See Carol Raish & Alice McSweeney,
12 Livestock Ranching and Traditional Culture in Northern New Mexico, 41 Nat. Res.
13 J. 713, 714-18 (2001). Even today, the ranching industry remains an economic
14 mainstay of the state. 3
3
See U.S. Dep’t of Agric., 2017 Census of Agriculture – New Mexico, Vol. 1,
Part 31, at 9, https://www.nass.usda.gov/Publications/AgCensus/2017/Full_Report/
Volume_1,_Chapter_1_State_Level/New_Mexico/nmv1.pdf (last visited Sept. 20,
2022) (reporting approximately $1.93 billion in market value of agricultural
products sold in the 2017 calendar year for New Mexico farms producing
“[l]ivestock, poultry, and their products”).
18
1 {26} Since the mid-nineteenth century, our territorial and state legislatures have
2 made special provision for the punishment of livestock larceny. 4 Throughout this
4
Multiple laws have been enacted to address various methods of unlawfully
taking livestock, such as by the driving away, selling, or butchering of the animal or
animals; but for laws specifically addressing the larceny of livestock, see Kearny
Code of Laws, Crimes and Punishments, Art. I, § 4 (1846) (“[A]ny person convicted
of stealing any horse, mare, gelding, mule, ass, sheep, hog or goat, shall be sentenced
to not more than seven, nor less than two years imprisonment at hard labor, or to
receive not more than one hundred nor less than twenty stripes well laid on his bare
back.”); Revised Laws of the Territory of New Mexico, Art. XXIII, Ch. LII, § 37
(1865) (punishing theft of a “horse, mare, colt, or filly, horsemule or maremule, ass
or jennet, bullock, cow or calf, sheep, goat or hog” with “not less than thirty lashes,
well laid on his bare back, nor more than sixty” and confinement “until the costs of
the prosecution are paid and the sentence fully complied with”); 1880 Gen. Laws of
New Mexico, Art. XXIII, Ch. LII, § 37 (1870) (“Every person who shall be
convicted of stealing a horse, mare, colt or filly, horsemule or maremule, ass or
jennet, bullock, cow or calf, sheep, goat or hog . . . shall be fined not less than ten
dollars nor more than five hundred dollars, or be imprisoned not less than one month
nor more than five years, or both, in the discretion of the court.”); 1884 Compiled
Laws of New Mexico, Title II, Ch. 1, § 68 (punishing the stealing of “any neat cattle,
horse, mule, sheep, goat, swine, or ass” with one to five years imprisonment and a
fine of $500 to $5,000); 1884 Compiled Laws of New Mexico, Title II, Ch. 1, § 69
(explaining that “[a]ll cases which are by this act declared to be larceny, and in all
cases of felonious taking . . . of any animal or animals herein referred to, the same
shall be deemed . . . grand larceny” which is punished by imprisonment for one to
ten years, “notwithstanding the value of such animal or animals may be less than
twenty dollars”). The 1884 livestock larceny statutes persisted in essentially the
same form until 1963. See 1897 Compiled Laws of New Mexico, Title II, Ch. 1, §§
79-80; NMSA 1915, Ch. XXVI, Art. XX, §§ 1613-14; NMSA 1929, Ch. 35, Art. 24,
§§ 35-2405 to -2406; NMSA 1941, Ch. 41, Art. 4, §§ 41-419 to -420; NMSA 1953,
§§ 40-4-17 to -18 (repealed 1963); NMSA 1953, § 40A-16-1 (1963) (Vol. 6, Repl.
1964) (“Whoever commits larceny when the thing of value stolen is livestock is
guilty of a third degree felony regardless of its value.”).
19
1 time, “New Mexico has consistently treated the larceny of livestock differently from
2 the larceny of other things, in that the punishment for the larceny of livestock has
3 never depended upon the value of the particular animal stolen.” State v. Pacheco,
4 1969-NMCA-127, ¶ 12, 81 N.M. 97, 463 P.2d 521; see also State v. Lucero, 1913-
5 NMSC-011, ¶ 3, 17 N.M. 484, 131 P. 491 (recognizing that “value is not material”
6 in a prosecution for livestock larceny). This special treatment has been accorded to
7 the crime of livestock larceny in order “to protect the ownership of a certain class of
8 property.” Pacheco, 1969-NMCA-127, ¶¶ 12, 15 (internal quotation marks and
9 citation omitted). As such, laws prohibiting the larceny of livestock often operated
10 as part of comprehensive regulatory schemes designed to protect the owners and
11 keepers of livestock and New Mexico’s ranching industry. See id.; 1897 Compiled
12 Laws of New Mexico, Title II, §§ 64-240 (setting forth the New Mexico “Animals”
13 code, of which the 1884 livestock larceny statutes were a part).
14 {27} The livestock larceny statute was amended to its present form in 1963, with
15 the most notable changes being the substitution of the word livestock for the former
16 statutory listings of the “animal or animals,” NMSA 1953, §§ 40-4-17, -18, and the
17 incorporation of the crime as a subsection of the larceny statute under the revised
18 Criminal Code. 1963 N.M. Laws, Ch. 303, § 16-1; NMSA 1953, § 40A-16-1 (1963)
19 (Vol. 6, Repl. 1964). By 1963, technological advancements had transformed the
20
1 historic crime of livestock larceny in that the wider availability of motorized vehicles
2 and trailers enabled the theft of a greater number of animals in a single episode of
3 theft. Yet, we understand that many of the policies that motivated our territorial and
4 early state legislatures in punishing livestock larceny also likely motivated our 1963
5 Legislature in enacting what is now Section 30-16-1(G). Cf. Pacheco, 1969-NMCA-
6 127, ¶ 15 (quoting Wilburn v. Territory, 1900-NMSC-028, ¶ 7, 10 N.M. 402, 62 P.
7 968 (describing, as the purpose of laws prohibiting livestock larceny, to protect the
8 industry of stock raising), overruled on other grounds as recognized by State v.
9 Smith, 1915-NMSC-085, ¶ 6, 21 N.M. 173, 153 P. 256).
10 {28} In the first years of statehood, this Court considered a question of duplicity
11 under the 1884 livestock larceny statutes. State v. Klasner, 1914-NMSC-015, ¶¶ 1-
12 5, 19 N.M. 474, 145 P. 679. Duplicity is a question that is corollary to the question
13 of multiplicity that we consider here. See Herron, 1991-NMSC-012, ¶ 6 n.4 (“We
14 use the term ‘multiplicity’ to describe the situation when an indictment charges a
15 single offense in different counts.”); 41 Am. Jur. 2d, Indictments and Informations
16 § 198 (2015) (“A duplicitous count of an indictment or information joins two or
17 more distinct and separate offenses in the same count.”). The defendant in Klasner
18 was charged with taking the animals “at the same time and place.” Klasner, 1914-
19 NMSC-015, ¶ 2. This Court concluded that an indictment charging the defendant in
21
1 one count with stealing several head of cattle from multiple owners was not faulty
2 due to duplicity. Id. ¶ 5. The Court held that the taking of multiple animals from
3 multiple owners at one time was “but a single act or transaction in violation of the
4 law against larceny,” and thus the indictment could be said to allege “but a single
5 offense.” Id. ¶¶ 3, 5 (internal quotation marks and citation omitted).
6 {29} As a basis for its holding, Klasner applied the same doctrine applied by the
7 Court of Appeals in this case: the single-larceny doctrine. Id. ¶¶ 3-5. The single-
8 larceny doctrine was expressly adopted by this Court in State v. Allen, 1955-NMSC-
9 015, ¶¶ 4-7, 59 N.M. 139, 280 P.2d 298. It counsels, “when several articles of
10 property are stolen by the defendant from the same owner at the same time and at
11 the same place, only one larceny is committed.” State v. Rowell, 1995-NMSC-079,
12 ¶ 15, 121 N.M. 111, 908 P.2d 1379 (brackets and internal quotation marks omitted)
13 (quoting 3 Charles E. Torcia, Wharton’s Criminal Law § 358 (14th ed. 1980)). The
14 doctrine is justified by the rationale that “there has been but one transaction” or “but
15 one criminal intent” in the act of theft. State v. Boeglin, 1977-NMCA-004, ¶¶ 7-8,
16 90 N.M. 93, 559 P.2d 1220; see also 50 Am. Jur. 2d, Larceny § 4 (2017) (“The
17 rationale behind the rule is that the taking of several articles at the same time from
18 the same place is pursuant to a single intent and design and is part of a single scheme
19 or continuing course of conduct.” (footnote omitted)). In the multiple-punishment
22
1 context this doctrine is best explained by the analogy, as “a theft of one thousand
2 dollars is one theft and not a thousand thefts, and the defendant can be prosecuted
3 only once for the offense.” Boeglin, 1977-NMCA-004, ¶ 9.
4 {30} In the opinion now under review, the Court of Appeals relied on the single-
5 larceny doctrine to resolve what it perceived to be a stalemate in its Herron analysis.
6 Torres, 2021-NMCA-045, ¶¶ 22-28. We disagree with that reasoning, as we do not
7 view the doctrine as providing an alternative to Herron’s unit-of-prosecution
8 framework. Cf. State v. Bernard, 2015-NMCA-089, ¶ 21, 355 P.3d 831 (“We decline
9 to extend the single-larceny doctrine to this case. Even though our courts have
10 recognized the validity of the single-larceny doctrine, we see no indication that the
11 doctrine supersedes the well-established two-step legislative intent inquiry in a unit
12 of prosecution case.” (citation omitted)).
13 {31} We again emphasize that “the relevant inquiry” in a unit-of-prosecution
14 analysis “is whether the legislature intended punishment for the entire course of
15 conduct or for each discrete act.” Swafford, 1991-NMSC-043, ¶ 8. We have
16 explained that “the [single-larceny] doctrine is a canon of construction used when
17 the Legislature’s intent regarding multiple punishments is ambiguous.” Alvarez-
18 Lopez, 2004-NMSC-030, ¶ 43. However, we will not apply the single-larceny
19 doctrine if legislative intent is unambiguous, id., or if the doctrine appears contrary
23
1 to legislative intent. See Rowell, 1995-NMSC-079, ¶¶ 15-20 (noting that the
2 Legislature worked to restrict the application of the single-larceny doctrine to
3 embezzlement cases after State v. Brooks, 1994-NMSC-062, 117 N.M. 751, 877
4 P.2d 557, and declining incidentally to extend the doctrine to attempted fraud under
5 the Computer Crimes Act); see also State v. Boergadine, 2005-NMCA-028, ¶ 29,
6 137 N.M. 92, 107 P.3d 532 (declining to extend the single-larceny doctrine to fraud
7 pursuant to legislative outcomes of Brooks). The single-larceny doctrine may at
8 times appear redundant to the unit-of-prosecution analysis. See State v. Brown, 1992-
9 NMCA-028, ¶ 13, 113 N.M. 631, 830 P.2d 183 (analyzing the unit of prosecution of
10 generic larceny under the Herron framework and noting that “had we applied [the
11 single-larceny doctrine] rather than Herron, we would have reached the same
12 result”). Nevertheless, resort to the single-larceny doctrine in lieu of full
13 consideration of legislative intent under Herron’s framework may lead to
14 inconsistency in results. Cf. Morro, 1999-NMCA-118, ¶ 22 (noting potential
15 inconsistency between the unit-of-prosecution analysis and the single-larceny
16 doctrine because “[t]he single-larceny doctrine is a departure from the general rule
17 that multiple charges are appropriate when there are multiple victims”). We thus
18 disavow the single-larceny doctrine as a separate basis for our decision.
19 {32} We acknowledge that the single-larceny doctrine remains useful in a
24
1 legislative-intent analysis insofar as it informs our historical understanding of the
2 livestock larceny statute. Cf. Morro, 1999-NMCA-118, ¶ 23 (“When there is a long
3 history regarding the unit of prosecution under a particular statute, as there is with
4 the single-larceny doctrine, then principles of stare decisis in statutory interpretation
5 argue strongly for continuing that interpretation, even when the tools—that is,
6 canons—of statutory interpretation have evolved with respect to analyzing the
7 question.”). Applied in this way, the doctrine suggests that the Legislature was aware
8 that the theft of multiple head of cattle at the same time and in the same place has
9 been construed to give rise to a single offense. Klasner, 1914-NMSC-015, ¶¶ 1-5;
10 see also NMSA 1978, § 12-2A-20(B)(2) (1997) (identifying as an aid to statutory
11 construction “a judicial construction of the same or similar statute or rule of this or
12 another state”). Given the construction long accorded to the crime of livestock
13 larceny, the Legislature could have defined a different unit of prosecution when it
14 promulgated Section 30-16-1(G). Cf. NMSA 1915, §§ 1624, 1625 (1897)
15 (prohibiting the detaining of another person’s cattle for purposes of milking and
16 providing that “[t]he taking up and detention of each and every cow or calf . . . shall
17 constitute a separate offense”). But the Legislature did not do so. We therefore view
18 Klasner and the history of Section 30-16-1(G) as supporting our conclusion that the
19 Legislature did not intend a unit of prosecution based on the number of animals
25
1 stolen in an episode of theft.
2 3. Legislative purpose
3 {33} In Wilburn, 1900-NMSC-028, ¶ 7, this Court described the purpose of laws
4 prohibiting livestock larceny as “either to prevent a kind of thefts peculiarly easy of
5 commission and difficult of discovery and punishment, or to afford special
6 protection to the important industry of stock-raising, or . . . upon both these
7 considerations.” While the parties do not dispute the applicability of this purpose to
8 the present appeal, they do dispute what this purpose reveals about the unit of
9 prosecution of Section 30-16-1(G).
10 {34} The State argues that this legislative purpose reveals a unit of prosecution
11 based on the number of animals stolen. The State asserts that, if the unit of
12 prosecution were held to be otherwise, then rustlers will be incentivized to steal as
13 many head as possible in one episode of theft. Defendants, on the other hand, argue
14 that Section 30-16-1(G) promotes the legislative purpose of prevention by relieving
15 the State from the discovery and punishment burdens of establishing either the value
16 or the precise number of animals taken. Defendants assert that this purpose reveals
17 that the unit of prosecution is for each episode of livestock theft.
18 {35} We agree with Defendants. Specifically, we conclude that the purpose of
19 Section 30-16-1(G) protects livestock owners by facilitating prosecution of a crime
26
1 that historically and still remains “peculiarly easy of commission and difficult of
2 discovery and punishment.” Pacheco, 1969-NMCA-127, ¶ 15 (internal quotation
3 marks and citation omitted). We reach this conclusion, in part, by construing Section
4 30-16-1(G) in light of New Mexico’s Livestock Code, NMSA 1978, §§ 77-2-1 to
5 77-18-6 (1869, as amended through 2017), and other laws addressing livestock.
6 Consistent with the history of livestock larceny, Section 30-16-1(G) clearly is
7 intended to work in collaboration with these statutes and thus should be considered
8 a part of a comprehensive regulatory scheme addressing livestock in New Mexico.
9 See § 12-2A-20(B)(2) (articulating that “the following aids to construction may be
10 considered in ascertaining the meaning of [a statute]: . . . a statute or rule on the same
11 or a related subject, even if it was enacted or adopted at a different time”); 2B
12 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Constr.
13 § 51:3, at 222 (7th ed. 2012) (“Statutes are in pari materia—pertain to the same
14 subject matter—when they relate to the same person or thing, to the same class of
15 persons or things, or have the same purpose or object.” (footnote omitted)). We thus
16 construe Section 30-16-1(G) in pari materia with these livestock laws and relevant
17 provisions of the Livestock Code.
18 {36} The stated purpose of the Livestock Code in pertinent part is “to control
19 disease, to prevent the theft or illegal movement of livestock and to oversee the New
27
1 Mexico meat inspection program.” Section 77-2-1. In pursuit of that purpose, the
2 Livestock Code contains provisions addressing the control of livestock diseases, §§
3 77-3-1 to -18, the marking or branding of animals, §§ 77-9-2 to -57, and the
4 inspection of livestock prior to transport, §§ 77-9-41, -42. The Livestock Code also
5 grants authority to the New Mexico Livestock Board to oversee and regulate
6 livestock, §§ 77-2-1 to -32.
7 {37} The State argues that the Livestock Code reveals a legislative intent to
8 prosecute livestock larceny on a per-animal basis and particularly relies for this
9 argument on Bernard, 2015-NMCA-089, ¶¶ 15-31. In Bernard, the Court of Appeals
10 analyzed the unit of prosecution for receiving or transferring a stolen motor vehicle,
11 NMSA 1978, § 30-16D-4(A) (2009). See Bernard, 2015-NMCA-089, ¶¶ 18-19. As
12 part of its analysis of the indicia of distinctness, the Bernard Court noted that the
13 stolen vehicles were “subject to broad regulation by the State under a highly specific
14 statutory scheme found in the Motor Vehicle Code and the Criminal Code.” 2015-
15 NMCA-089, ¶ 28. That statutory scheme tracked individually identified vehicles as
16 a means to deter vehicle theft. Id. ¶¶ 28-30. In light of this scheme, the Bernard
17 Court concluded that the defendant’s receipt of each one of four stolen vehicles was
18 sufficiently distinct to warrant four separate offenses of Section 30-16D-4(A). Id. ¶
19 31.
28
1 {38} Applying Bernard, the State suggests that the Livestock Code is a highly
2 specific regulatory scheme that tracks animals like the Motor Vehicle Code tracks
3 vehicles. We disagree. The Livestock Code does not track individual animals, but
4 instead tracks an individual person’s ownership of these animals. See, e.g., § 77-2-
5 7.1 (making brands that are recorded with the New Mexico Livestock Board as the
6 “personal property of the person in whose name they are recorded,” which can be
7 “transferred in the same manner as other personal property”); § 77-9-3(A) (“A
8 person who owns livestock shall have and adopt a brand for them . . . . Each brand
9 shall be recorded in the office of the [Livestock Board].”); § 77-2-7.7. (“It is
10 unlawful for an owner of livestock in originally marking or branding livestock to
11 make use of or keep up more than one mark or brand.”); see also NMSA 1978, § 39-
12 6-1 (1889) (addressing the levy of “any writ of attachment, replevin or execution
13 under the laws of this state upon any livestock or herd of cattle that are ranging at
14 large with other livestock or cattle” through the filing of a copy of the writ on the
15 livestock owner’s brand). The portion of the Livestock Code setting forth the
16 requirements for “Brands, Ownership, Transportation and Sale of Animals,” §§ 77-
17 9-2 to -57, specifically emphasizes that a person must maintain proof of ownership
18 of livestock as a means to prevent theft. See, e.g., §§ 77-9-45, -46, -51 (addressing
29
1 circumstances in which a livestock inspector may seize livestock due to the failure
2 of a person in possession of livestock to provide proof of ownership).
3 {39} The Legislature has also specifically provided that “[i]n the prosecution of
4 any offense arising under the laws of this state in regard to the unlawful taking . . .
5 of animals of the bovine kind, the description ‘neat cattle’ in any indictment shall be
6 deemed sufficient.” NMSA 1978, § 31-7-1 (1895). An indictment identifies stolen
7 livestock through a description of the livestock owner’s brand. See id. (“[T]he proof
8 of the brand by a certified copy of the registration thereof in the brand book . . . shall
9 be sufficient to identify all horses, mules, asses or neat cattle, and shall be prima
10 facie proof that the person owning the recorded brand is the owner of the animal
11 branded with such brand.”). This suggests that the Legislature did not contemplate
12 that prosecutions for livestock larceny would draw distinctions based on the
13 description or identity of an animal.
14 {40} We thus view the Livestock Code as creating a regulatory scheme with an
15 overriding purpose of protecting livestock ownership by deterring livestock theft.
16 Section 30-16-1(G) assists in this purpose by relieving the state of the burden of
17 establishing either the value or the number of animals stolen in an episode of theft
18 and by making livestock larceny a third-degree felony whenever livestock is stolen,
19 irrespective of the enormity of the livestock owner’s loss.
30
1 {41} The facts on current appeal, which included investigations by employees of
2 the New Mexico Livestock Board, aptly demonstrate how Section 30-16-1(G)
3 operates in tandem with relevant provisions of the Livestock Code to facilitate
4 discovery and prosecution of livestock theft. Defendant Torres’s alleged crime was
5 discovered when an operations manager at the Crossroads Cattle Company’s ranch
6 noted a discrepancy between the estimated number of calves expected in a pasture
7 and the number of calves inventoried. Pursuant to a report from the ranch to the
8 Livestock Board, investigators were able to link Defendant Torres to the sale of
9 eighteen calves on two dates through the records maintained by a livestock auction
10 house. See, e.g., § 77-10-3(C) (requiring operators of New Mexico licensed auction
11 houses to allow the Livestock Board “to have convenient access to the . . . books and
12 records or any livestock that may be in [the operator’s] possession at all reasonable
13 times for the purpose of inspection”); § 77-10-4 (requiring the operator to notify the
14 Livestock Board of any livestock received). Using these records, prosecutors were
15 able to determine precisely how many animals Defendant Torres stole and connect
16 him potentially with two episodes of theft.
17 {42} Similarly, the Livestock Code also facilitated discovery of Defendants
18 Chadwick’s and Hendrix’s alleged crime. This theft was first discovered when an
19 off-duty livestock inspector saw these Defendants transporting cattle that had not
31
1 been inspected and approved for shipment. See, e.g., §§ 77-9-42 to -43 (requiring
2 inspection prior to transportation of livestock). This legislative scheme likewise
3 allowed investigators to identify these Defendants and to inspect and confiscate the
4 stolen animals when they arrived at the auction house. See, e.g., § 77-9-45 (“If any
5 duly authorized inspector should find any livestock or carcasses in the possession of
6 any person . . . [who] cannot furnish other satisfactory proof of lawful ownership or
7 said inspector has good reason to believe that said livestock or carcasses, are stolen,
8 said inspector shall . . . seize and take possession of same.”). Thus, the overall
9 legislative scheme assisted in the discovery and investigation of an offense which
10 otherwise may have escaped prosecution.
11 {43} We therefore conclude that the holding in Bernard, 2015-NMCA-089, ¶¶ 28-
12 30, is inapposite. The Motor Vehicle Code at issue in Bernard establishes “a vehicle
13 registration system that maintains a history of individual vehicle ownership, requires
14 distinct identifiers to be assigned and affixed to vehicles, and monitors the transfer
15 of vehicles from other states and between owners.” Id. ¶ 29. The Livestock Code, on
16 the other hand, establishes a system focused on maintaining a record of persons
17 owning livestock, but is not concerned with establishing the identity of any animal
18 so owned. Thus, analysis of the purpose of the livestock larceny statute, § 30-16-
19 1(G), does not support the State’s asserted per-animal unit of prosecution.
32
1 4. Quantum of punishment
2 {44} Our conclusion that livestock larceny does not support multiple punishments
3 for the theft of multiple animals in a single episode is also supported by the quantum
4 of punishment. Benally, 2021-NMSC-027, ¶¶ 31-32 (considering the severity and
5 comparative length of a sentence based on multiple punishments in construing a
6 crime’s unit of prosecution). Livestock larceny, § 30-16-1(G), is a third-degree
7 felony with a basic sentence of three years and a potential fine not exceeding $5,000.
8 NMSA 1978, § 31-18-15(A)(11), (E)(11) (2016, amended 2022). If multiple
9 punishments were to be permitted, Defendant Torres would face a potential sentence
10 of fifty-four years imprisonment and fines totaling $90,000; Defendants Chadwick
11 and Hendrix each would face potential imprisonment of seventy-five years and fines
12 totaling $125,000.
13 {45} Defendants contend that potential sentences of this severity argue against
14 prosecution for each animal stolen. Defendants posit that if this Court accepts the
15 State’s analysis, a hypothetical rustler who steals one-hundred head of cattle would
16 face a three-hundred year sentence. The State counters that “the specter of a 300-
17 year prison term” is “highly improbable” because Article II, Section 13 of the New
18 Mexico Constitution “prohibits the infliction of ‘cruel and unusual punishment.’”
33
1 {46} The State’s suggestion that the Constitution will limit the potential cruelty of
2 this hypothetical rustler’s sentence is at odds with the canon of constitutional
3 avoidance. See, e.g., State v. Radosevich, 2018-NMSC-028, ¶ 8, 419 P.3d 1764 (“[W]e must be guided by the ‘well-established principle of statutory construction
5 that statutes should be construed, if possible, to avoid constitutional questions.’”);
6 NMSA 1978, § 12-2A-18(A)(3) (1997) (“A statute or rule is construed, if possible,
7 to . . . avoid an unconstitutional, absurd or unachievable result.”). The analysis
8 provided herein avoids the need to test the constitutional limits of a Section 30-16-
9 1(G) prosecution.
10 {47} Defendants also point out that their potential sentences for stealing a herd of
11 livestock are, by the State’s assertions, much greater than even the most serious
12 category of generic larceny, which punishes theft of property valued over $20,000
13 as a second-degree felony carrying a basic sentence of nine years. Section 30-16-
14 1(F); § 31-18-15(A)(7)(2016). Defendants would be incarcerated for much longer
15 than nine years if each potential term of imprisonment were to run consecutively.
16 We agree that this disparity is telling and further confirms that the Legislature did
17 not intend Defendants to receive multiple punishments for the theft of multiple head
18 of cattle in a single episode.
34
1 {48} We conclude that the wording, structure, purpose, history, and quantum of
2 punishment of the livestock larceny statute, § 30-16-1(G), do not express an intent
3 to prosecute Defendants for each animal stolen. We construe the statute as
4 expressing an intent to prosecute Defendants for each distinct episode of theft.
5 Because we were able to construe the intended unit of prosecution of Section 30-16-
6 1(G) through consideration of the preceding canons of construction, we do not resort
7 to the rule of lenity for this conclusion. Benally, 2021-NMSC-027, ¶¶ 14-15. We
8 therefore hold that Defendants’ indictments are multiplicitous.
9 C. Defendants May Be Prosecuted for Each Distinct Episode of Livestock
10 Larceny
11 {49} Defendants raised the issue of multiplicity prior to conviction. Multiplicity is
12 not fatal to an indictment, and a trial court in its discretion may dismiss the
13 multiplicitous charges, may require the state to elect between charges, or may
14 proceed to trial with appropriate jury instructions. See, e.g., United States v. Johnson,
15 130 F.3d 1420, 1426-27 (10th Cir. 1997) (“A decision of whether to require the
16 prosecution to elect between multiplicitous counts before trial is within the
17 discretion of the trial court.”); United States v. Roy, 408 F.3d 484, 491 (8th Cir.
18 2005) (“Although the prosecutor did not elect between or consolidate the
19 multiplicitous counts, multiplicitous indictments may be saved at the trial stage if
20 the district court submits an appropriate instruction to the jury.”); see also 42 C.J.S.
35
1 Indictments § 230, at 709 (2017) (noting that multiplicity is not fatal to an indictment
2 and listing remedies for multiplicity as including dismissal of the multiplicitous
3 counts, the state’s election of counts, or the vacating of convictions). We conclude
4 that the district court did not abuse its discretion in electing to dismiss all but one of
5 the livestock larceny charges in Defendants Chadwick’s and Hendrix’s indictments
6 and in electing to dismiss all but two of the livestock larceny charges in Defendant
7 Torres’s indictment. See, e.g., State v. Lymon, 2021-NMSC-021, ¶ 12, 488 P.3d 6108 (“An abuse of discretion occurs when the ruling is clearly against the logic and effect
9 of the facts and circumstances of the case” or “when the trial court misapprehends
10 or misapplies the law.” (internal quotation marks and citation omitted)).
11 {50} “When an indictment includes multiple counts charging a violation of the
12 same statutory provision and a claim of multiplicity is raised, an inquiring court must
13 determine whether the facts undergirding each count can be treated as a distinct unit
14 of prosecution.” Lente, 2019-NMSC-020, ¶ 26 (internal quotation marks and citation
15 omitted). In ascertaining which of Defendants’ charges may be treated as distinct
16 units of prosecution, we are guided by the second step of our Herron analysis.
17 Herron, 1991-NMSC-012, ¶ 15. In Herron, we articulated six indicia of distinctness
18 that we may use to clarify which of a defendant’s acts gave rise to a discrete statutory
19 offense: (1) the time between the defendant’s acts, (2) the location of the victims,
36
1 (3) the existence of intervening events between acts, (4) the sequence in commission
2 of the acts, (5) the defendant’s intent, and (6) the number of victims. Id. However,
3 the Court has explained that the six indicia identified in Herron “serve as a general
4 policy for examining distinctness” but that these indicia do not provide a
5 “mechanical formula” for analysis. Benally, 2021-NMSC-027, ¶ 19 (internal
6 quotation marks and citation omitted). The specific indicia analyzed are dependent
7 on the interests protected by the statute at issue “because our focus under this second
8 step is whether a defendant’s acts can be distinguished as discrete violations of the
9 conduct the Legislature intended to proscribe.” Id. ¶ 18.
10 {51} As relevant to the crime of larceny of generic property, § 30-16-1(B)-(F), our
11 Court of Appeals has considered “the time between the criminal acts, the location of
12 the property when it was taken, the existence of any intervening events, distinctions
13 in the manner of committing the thefts, the defendant’s intent, and the number of
14 victims.” Brown, 1992-NMCA-028, ¶ 9. Although Brown considered the indicia of
15 distinctness relevant to the crime of larceny of generic property, § 30-1-16(B)-(F),
16 we view these indicia as also relevant to the crime of livestock larceny, § 30-16-
17 1(G). In keeping with the history and purpose of the livestock larceny statute, we
18 clarify that the victims of livestock larceny are the owners of the livestock.
37
1 {52} Defendants Chadwick and Hendrix—who allegedly stole livestock on one
2 occasion, from one location, and from one owner—each should be prosecuted for
3 no more than one offense of Section 30-16-1(G). Defendant Torres—who allegedly
4 stole livestock on potentially two occasions, from one location and from one
5 owner—should be prosecuted for no more than two offenses of Section 30-16-1(G).
6 Resolution of whether Defendant Torres may be punished for two offenses of
7 Section 30-16-1(G) will depend on the jury’s findings on outstanding factual issues
8 and on whether the two offenses were distinct. Herron, 1991-NMSC-012, ¶¶ 15, 16.
9 CONCLUSION
10 {53} In view of the foregoing, we affirm the holding of the Court of Appeals, with
11 amendments to its reasoning as reflected herein. We remand each of these three
12 matters to the Twelfth Judicial District Court for further proceedings consistent with
13 our opinion.
14 {54} IT IS SO ORDERED.
15
16 DAVID K. THOMSON, Justice
17 WE CONCUR:
18
19 C. SHANNON BACON, Chief Justice
38
1
2 MICHAEL E. VIGIL, Justice
3
4 JULIE J. VARGAS, Justice
5
6 BRIANA H. ZAMORA, Justice
39