State v. Cruz ( 2024 )

This decision of the New Mexico Court of Appeals was not selected for publication in
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40422
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ANTHONY CRUZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Cindy Leos, District Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
MEDINA, Judge.
{1} Defendant Anthony Cruz appeals his convictions for criminal sexual penetration
(CSP) in the third degree, contrary to NMSA 1978, Section 30-9-11(F) (2009); and false
imprisonment, contrary to NMSA 1978, Section 30-4-3 (1963). Defendant argues: (1)
the district court erred by admitting expert testimony as lay testimony; (2) the district
court’s accommodations for a hearing impaired juror and a discussion of the
accommodations without Defendant’s presence resulted in reversible structural error;
(3) Defendant’s false imprisonment conviction was incidental to the CSP conviction and
therefore his right to be free from double jeopardy was violated; and (4) the district court
erred by denying Defendant’s motion for a new trial. We affirm.
BACKGROUND
{2} Because this is a memorandum opinion and the parties are familiar with the facts
and procedural history of this case, we set forth only a brief overview of the historical
facts of the case. We include discussion of additional facts where necessary to our
analysis.
{3} In May 2020, Defendant approached Victim and her boyfriend while they were
panhandling. Victim and her boyfriend were homeless, and Victim was addicted to
Fentanyl at the time. Defendant told Victim’s boyfriend that he was going to give them
money for food and pay for a hotel room. Defendant first took Victim and her boyfriend
to their broken-down car to retrieve their belongings, and then took them to a hotel,
rented a room, and took Victim’s boyfriend to buy groceries.
{4} Victim took a shower when Defendant and her boyfriend left because she was
beginning to withdraw. Victim propped the hotel door open because Defendant and
Victim’s boyfriend did not take a hotel key with them. A short time later Defendant
entered the bathroom and opened the shower curtain. Defendant prevented Victim from
pulling the shower curtain closed to cover herself, grabbed Victim by the back of the
head, and began kissing her. Defendant also began to put his hands down Victim’s
body and grabbed her vagina. Victim attempted to back away and get around
Defendant, but Defendant grabbed Victim’s shoulders, picked her up, and carried her
from the bathroom to the bed. On the bed, Defendant performed oral sex and digitally
penetrated Victim vaginally. Defendant then turned Victim around, took off his pants,
penetrated her vaginally with his penis, and ejaculated.
{5} Victim went back to the bathroom to put on her clothes and to call her boyfriend.
Defendant followed Victim into the bathroom, attempted to take Victim’s phone from her,
and demanded that she take a shower and clean off. Victim stepped into the shower
after Defendant’s demand, but then ran from the room as soon as Victim heard
Defendant leave. Victim testified that she complied with Defendant’s demands because
she was afraid.
{6} Defendant was charged with three counts of CSP and one count of kidnapping,
contrary to Section 30-9-11(F) and NMSA 1978, Section 30-4-1 (2003). At trial, the
State amended the kidnapping charge to one count of false imprisonment. During jury
deliberation, a juror’s note alleged that one juror had not heard testimony from the first
day of trial. Defendant requested that the juror remain on the jury and approved the
district court’s accommodation of sending the juror home with a copy of the trial audio to
ensure he could properly deliberate. The jury convicted Defendant of one count of CSP
and false imprisonment. This appeal followed.
DISCUSSION
{7} We begin our analysis with Defendant’s argument that the district court
improperly allowed the investigating detective to give an expert opinion during his lay
witness testimony. We hold that the district court did not abuse its discretion by allowing
the testimony. We next turn to Defendant’s arguments that the district court’s
accommodations for a hearing impaired juror were inadequate, constituted structural
error, and that reversal is required. We hold that Defendant’s presence at the status
hearing, wherein the district court and both counsel discussed whether the juror
followed his accommodations, was not required because it was not a critical stage of
the proceedings. We decline to address the remainder of Defendant’s arguments
relating to his absence from the status hearing because Defendant invited the error of
which he now complains. We then address Defendant’s various arguments that we
should vacate his false imprisonment conviction. We hold that the false imprisonment
was not incidental to the CSP, and that Defendant’s double jeopardy rights were not
violated because the conduct was not unitary.1 Finally, we review Defendant’s argument
that the district court abused its discretion by denying his motion for a new trial filed
approximately six months after his guilty verdicts. We hold that the district court
correctly held it did not have jurisdiction to hear the motion under Rule 5-614(C) NMRA.
I. The District Court’s Admission of the Detective’s Testimony
{8} We review Defendant’s argument that the district court improperly allowed the
detective to give an expert opinion for an abuse of discretion. See State v. Vargas,
2016-NMCA-038, ¶ 10, 368 P.3d 1232 (stating we “review the admission of evidence for
an abuse of discretion”). “A court abuses its discretion when its evidentiary rulings
indicate a misapprehension of the law.” Id. We review de novo “[t]he threshold question
of whether the trial court applied the correct evidentiary rule or standard.” State v.
Carrillo, 2017-NMSC-023, ¶ 26, 399 P.3d 367 (internal quotation marks and citation
omitted).
{9} During the detective’s direct testimony, the State asked him to explain what a
Sexual Assault Nurse Examiner (SANE) examination is and how it relates to law
enforcement investigations. The detective responded in part that they are forensic
examinations that are conducted by a nurse who is certified. The State then asked,
“And in your experience, how often in your cases do victims get SANE exams?”
Defendant objected and argued that the State was attempting to elicit expert testimony
from a witness who was not qualified as an expert. The district court overruled the
objection, and the State restated the question—“In your experience as a sex crimes
detective, in what percentage of your cases do people not get SANE exams?” The
1To the extent that Defendant argues that the false imprisonment charge was not supported by sufficient
evidence, this argument is based on Defendant’s claims that the charge was either incidental or violated
his right to be free from double jeopardy. As such, we resolve Defendant’s sufficiency argument within our
double jeopardy analysis that the conduct was not unitary.
detective responded, “I would say about one-third of the time they don’t appear for the
exam.”
{10} Defendant argues that the detective’s testimony—that in about a third of his
cases, the victims do not appear for the exam—constituted expert testimony. We
disagree. The rules of evidence distinguish between what is an appropriate opinion for
expert and lay testimony. See Rule 11-701(C) NMRA (stating in part that that lay
witness testimony is “not based on scientific, technical, or other specialized knowledge
within the scope of Rule 11-702 NMRA”). Lay testimony opinion “is based on personal
perception or personal observation by the witness” and is “generally confined to matters
which are within the common knowledge and experience of an average person.”
Vargas, 2016-NMCA-038, ¶ 15 (internal quotation marks and citation omitted). Relevant
to our analysis here, “testimony moves from lay to expert if an officer is asked to bring
[their] law enforcement experience to bear on [their] personal observations and make
connections for the jury based on that specialized knowledge.” Id. ¶ 19 (internal
quotation marks and citation omitted).
{11} Defendant specifically contends that the district court erred by admitting the
detective’s answer as lay testimony because it was based on general statistics.
Defendant cites to State v. Duran, 2015-NMCA-015, 343 P.3d 207 to support his
argument. In Duran, a S.A.F.E. House forensic interviewer testified about the content of
her interview with the victim. See id. ¶¶ 4-8 (description of testimony). The forensic
interviewer “was not qualified as an expert.” Id. ¶ 6. Over the defendant’s objection, the
forensic interviewer testified broadly about the percentage of children who delay
reporting sexual abuse at the S.A.F.E. House. Id. The forensic interviewer stated, “It’s
been awhile since I reviewed the statistics, but its greater than 50 percent”; “I was really
referring to what I’m remembering about the data. I certainly can’t say what percentage
of kids I interviewed, because I didn’t keep track of that”; and “in the majority of children
that I’ve interviewed at the S.A.F.E. House, there is a delay in disclosure.” Id. ¶¶ 7-8
(alterations and internal quotation marks omitted).
{12} This Court reversed the defendant’s conviction, holding that “statements [made]
about the behavior of children alleging sexual assault is not a proper subject for lay
[person] testimony because it is neither the kind of personal observation that a lay
person is capable of making nor common knowledge within the general public.” Id. ¶ 15.
The Duran Court explained that the testimony fell outside the scope of lay testimony
because the forensic interviewer stated, “[H]er statement on delayed disclosure was
based not just on her personal observations, but also on specific statistics compiled in
the S.A.F.E. House’s specialized work environment.” Id. ¶ 17. Therefore, the testimony
was “based on specialized knowledge and thus should not have been admitted” as lay
testimony. Id. (internal quotation marks omitted).
{13} Based on our review of the statement at issue here, Defendant’s reliance on
Duran is unpersuasive. Rather, this Court’s analysis in Duran supports the district
court’s admission of the detective’s testimony. Unlike the forensic interviewer’s
testimony in Duran, the detective’s testimony did not reference data or a statistical
analysis, nor did he make a connection for the jury based on his specialized knowledge.
Rather, the testimony “was simply a recollection of the detective’s own sensory
observations” regarding how many victims appeared for SANE exams in his cases.
Vargas, 2016-NMCA-038, ¶ 20 (emphasis added). The frequency of an observed event
is within “the common knowledge and experience of an average person.” Id. ¶ 15
(internal quotation marks and citation omitted).
{14} Defendant admits that the detective “did not state that his observations were
based on specific compiled statistics” but contends that “his testimony suggested as
much.” We disagree. The State’s question specifically asked for his own personal
experience and did not call for the detective to give a broad or general statement about
SANE examinations. The detective’s statement did not contain any specialized or
technical information and did not cross the line into expert testimony. Cf. id. ¶ 22 (Thus,
[the detective]’s testimony was not simply commentary on observations he witnessed
during the investigation, but instead he applied his law enforcement training and
experience to make connections for the jury.” (internal quotation marks and citation
omitted)). Therefore, we hold that the district court did not abuse its discretion by
allowing the detective’s testimony as a lay witness.
II. The District Court’s Juror Accommodations
{15} We next turn to Defendant’s contention that the district court’s accommodations
for a hearing impaired juror were inadequate and that conducting a status hearing
regarding the accommodations without Defendant’s presence requires reversal because
the status hearing was a critical stage of the proceedings. On September 9, 2021, about
two hours into jury deliberation, the district court notified the parties that it had received
a note about a potential problem. The district court stated that a juror “just now notified
us that he has not been able to hear the trial, and therefore cannot make a decision”
and that the alternative jurors had already been released. The district court proposed
three possible solutions: (1) check how far into deliberations the jury was and see if it
was possible to call back an alternate; (2) proceed with an eleven person jury if the
parties agreed; or (3) question the juror to determine what he missed and have him
explain why he did not alert the court to any issues. The district court and the parties
agreed to question the juror outside of the presence of the rest of the jury and provide
defense counsel an opportunity to discuss the matter with Defendant.
{16} During the district court’s questioning, the juror stated that he did not hear the
hearing on the very first day. The district court asked the juror if he meant the jury
selection process, and the juror, describing aspects of jury selection, clarified that he did
not know what was going on. However, the juror stated that he could hear the testimony
of the witnesses during trial. Although he heard the witness testimony, the juror could
not hear the rest of the jury during deliberations. The only additional question the State
and Defendant requested was whether there was a possible accommodation that would
allow the juror to continue deliberating. The juror responded that he would be able to go
back and continue deliberating on this case if the district court made it easier for the
juror to hear the rest of the jury deliberations.
{17} After discussion with the parties, the district court proposed allowing the jury to
deliberate in the courtroom, which would enable the juror to use headsets and other
audio accommodations. Defense counsel agreed that the juror should be
accommodated, and requested that the court allow the jury to continue deliberating in
the courtroom. Defense counsel stated that “he was strongly in favor of keeping [the
juror] at this time” and even though the juror stated that he did not hear voir dire,
defense counsel believed he asked the juror a question and the juror had responded.
{18} The district court then brought the entire jury into the courtroom and read an
instruction that both parties approved on how to deliberate in the courtroom with the
new accommodation. A few minutes after reading the instruction to the jury, the jury
sent a new note to the district court. The note stated that the juror was actually “unable
to hear the testimony and evidence until receiving assistance, and even after that, could
not hear well.” The note ended by asking how the jury could be unanimous under these
circumstances.
{19} The district court proposed giving a new instruction stating that the issue had
been discussed with the juror and the district court was confident that deliberations
could proceed, but stated it was open to other suggestions. During this conversation,
the district court received a third note. The note stated that the juror with the hearing
difficulty could not hear court proceedings on the morning of September 7, 2021—the
first day of trial. The note asked if the juror could rely on discussions during jury
deliberations. After discussing the notes with the parties, the district court stated, “We
either go with eleven jurors, or I do an instruction saying that the court has resolved this
and the chips fall where they fall.”
{20} The district court took a recess to enable counsel to discuss the matter with
Defendant, after which defense counsel stated that he “did go through all the potential
ramifications of the decision here with . . . Defendant . . . and he is in agreement with
the instruction that the court proposed to the jurors to move forward with [the juror] in
the deliberations.” The district court commented that it had thought of another option—
pause deliberations, provide a copy of the trial audio to the juror, and instruct the juror to
review the entire trial. Defense council agreed that providing trial audio would resolve all
issues, but that he preferred to reserve that option as a fallback in the event additional
problems came up. After discussion with the parties, the district court created a jury
instruction notifying the jury that deliberations would continue the following week on
September 14, 2021, after the juror reviewed the trial and voir dire, excluding bench
conferences. Both parties approved the new jury instruction.
{21} On September 14, 2021, the district court held a status hearing at the State’s
request. Defendant was not present and defense council declined the district court’s
offer to bring Defendant to the hearing. The State asked the district court to question the
juror to ensure that he reviewed the audio, that he did not come across something from
voir dire that would disqualify him from service, and that he would be able to continue
deliberations. Defense council objected, arguing that the juror was present for voir dire,
that the parties had the opportunity to engage the juror, and that the State could have
struck him during jury selection. Defense council continued
with respect to the other issues, if he is now, as we speak, engaged in
deliberations with the other jurors, I have a real problem with pulling him
out again. Because I think everybody’s got everything, you know, figured
out or worked out as to how they’re going to proceed and accommodate
the situation. And unless we get a question from the jury or from that juror
in particular, I do not think it would be appropriate after everything that
we’ve been through to disturb this jury if they are currently deliberating.
{22} The district court then stated for the record that the juror had listened to the trial
audio under the supervision of court staff, stated he had listened to everything he
needed to listen to, and that he was ready to deliberate. The district court further stated
that it had not heard any information that would disqualify the juror from deliberating
based on the questions from voir dire. Defense council requested an opportunity to
relay this information to Defendant, but declined the district court’s offer to redo the
status hearing with Defendant present. Rather, Defense council stated that he would
meet with Defendant separately. The jury deliberated and returned its guilty verdicts.
{23} Defendant now argues that the September 14, 2021 status hearing, was a critical
stage of the proceedings and his absence created structural error requiring reversal.
Defendant also contends that the district court’s accommodations for the hearing
impaired juror were inadequate because the district court failed to verify whether the
hearing impaired juror had reviewed the accommodations, and that the district court’s
decision to proceed with the juror functionally forced Defendant to proceed with an
eleven-person jury, even though he did not waive his right to a twelve-person jury. We
first hold that the September 14, 2021 status hearing, was not a critical stage of the
proceedings. We decline to address the remainder of Defendant’s arguments because
Defendant invited the claimed error of which he now complains.
A. The Status Hearing Was Not a Critical Stage of the Proceedings
{24} “There is no dispute that a criminal defendant charged with a felony has a
constitutional right to be present and to have the assistance of an attorney at all critical
stages of a trial.” State v. Sloan, 2019-NMSC-019, ¶ 9, 453 P.3d 401 (internal quotation
marks and citation omitted). Critical stages “of a criminal proceeding include any stage
in which the defendant’s presence has a relation, reasonably substantial, to the fullness
of his opportunity to defend against the charge.” Id. ¶ 10 (text only) (citation omitted).
{25} Defendant argues that we review his critical stage argument for structural error,
or harmless error in the alternative. Defense counsel did not object to Defendant’s
absence at the September 14, 2021, status hearing and instead rejected the district
court’s offer to redo the hearing in Defendant’s presence. Defendant therefore failed to
preserve this issue for our review. See Rule 12-321(A) NMRA. As such, we review this
claim for fundamental error. See State v. Astorga, 2016-NMCA-015, ¶ 3, 365 P.3d 53(reviewing the defendant’s unpreserved argument that he was absent from a critical
stage of his trial for fundamental error).
{26} Fundamental error is case specific, and requires a defendant to “demonstrate
that any error goes to the foundation of the case or takes away a right that was
essential to the defense and which no court could or ought to permit him to waive.” Id. ¶
4 (internal quotation marks and citation omitted). “The burden of demonstrating
fundamental error is on the party alleging it, and the standard of review for reversal for
fundamental error is an exacting one.” Id. ¶ 5 (internal quotation marks and citations
omitted). A defendant “must demonstrate prejudice from the errors he alleges; absent a
showing of prejudice, [a d]efendant cannot demonstrate error, let alone fundamental
error, which we require for unpreserved claims.” Id. “[O]ur decision depends on whether
the situations of which [a d]efendant complains rise to the level of calling the process of
the trial into question to an extent sufficient to hold that its result cannot be sustained on
appeal.” Id.
{27} Defendant first argues that we should view the status hearing as an extension of
the jury selection process because the hearing involved a discussion regarding the
juror’s ability to deliberate. Defendant argues, and we agree, that “jury selection is
considered a critical stage.” Id. ¶ 19. But we disagree that the status hearing was akin to
jury selection. “The process of voir dire where a defendant and his counsel are face-to-
face with the jurors, attempting to read the reaction of jurors to the lawyer and client is
the critical stage for which our Supreme Court recognized a right to the defendant’s
presence.” Id. ¶ 20 (internal quotation marks and citation omitted). The juror was not
present at the status hearing on September 14, 2021, and therefore would not have
been “face-to-face” with Defendant. See id. Therefore, we decline to view the
September 14, 2021, status hearing as an extension of jury selection. Instead, the
juror’s ability to deliberate was discussed at the hearing on September 9, 2021, which
Defendant attended. During that hearing, Defendant ultimately pushed to keep the juror
on the jury during deliberations.
{28} Alternatively, Defendant argues that the status hearing was a critical stage of the
proceedings because it directly impacted his ability to present a defense. Defendant
makes no argument as to how his absence from the hearing prejudiced his defense.
Instead Derfendant posits that he “might have agreed with the State that [the juror]
should [have been] questioned again” despite his counsel’s objection to questioning the
juror, and that we should not consider defense counsel’s objection to any further inquiry
of the juror during our review. We are unpersuaded by this argument because it is too
speculative to establish that his absence at the September 14, 2021, status hearing
impaired his defense. See State v. Gardner, 2003-NMCA-107, ¶ 29, 134 N.M. 294, 76
P.3d 47 (“[The d]efendant presents only speculative arguments about prejudice to his
defense. In the absence of actual prejudice, we find no error.”).
{29} Therefore, we hold that the September 14, 2021, status hearing was not a critical
stage of Defendant’s trial. As such, Defendant’s absence at the status hearing does not
amount to fundamental error requiring reversal. See Sloan, 2019-NMSC-019, ¶ 13 (“If a
hearing was not a critical stage and our rules did not require [the d]efendant’s presence,
his right to be present was not violated.”).
B. Defendant Invited the Error of Which He Now Complains
{30} Defendant argues the district court’s accommodations, its subsequent failure to
verify that the juror understood and was capable of evaluating all the evidence, and
decision to proceed with the juror all require reversal. However, Defendant contributed
to each of these conditions of which he now complains. Defendant approved the district
court’s accommodations and requested that the case proceed with the juror at issue.
Additionally, defense counsel objected to verifying whether the accommodations were
followed. Regardless, the district court did notify the parties that the juror was prepared
to deliberate and that the juror had reviewed the proceedings he needed to hear at the
courthouse. “To allow a defendant to invite error and to subsequently complain about
that very error would subvert the orderly and equitable administration of justice.” State v.
Handa, 1995-NMCA-042, ¶ 35, 120 N.M. 38, 897 P.2d 225 (text only) (citation omitted).
“Furthermore, the doctrine of fundamental error has no application in cases where the
defendant, by his own actions, invites error.” Id.{31} Defendant contends we should not apply the doctrine of invited error because
there was no gamesmanship before the district court. We disagree because
gamesmanship is not a requirement prior to applying the doctrine of invited error.
Rather, we apply invited error to situations—like here—where a defendant is
responsible for the error that he complains of on appeal, whether or not gamesmanship
was involved. See id. ¶ 35. We therefore decline to reach the merits of these arguments
because Defendant invited the error of which he now complains.
III. Defendant’s False Imprisonment Conviction
{32} We next address Defendant’s arguments that we should reverse his false
imprisonment conviction because it was incidental to his CSP conviction and therefore
violated his right to be free from double jeopardy. We hold that Defendant’s false
imprisonment conviction was not incidental to his CSP conviction and did not violate
Defendant’s double jeopardy rights. We explain.
A. False Imprisonment Was Not Incidental to the CSP Charge
{33} Citing to this court’s analysis in State v. Trujillo, 2012-NMCA-112, 289 P.3d 238,
Defendant first argues that his conviction for false imprisonment should be vacated
because the restraint for false imprisonment was incidental to the CSP charge. In
Trujillo, “[the d]efendant was convicted of aggravated burglary, conspiracy to commit
aggravated burglary, aggravated battery, conspiracy to commit aggravated battery,
kidnapping, and false imprisonment.” Id. ¶ 4. On appeal, the defendant challenged his
kidnapping conviction, arguing that the kidnapping conviction was based on restraint
that was incidental to the aggravated battery. Id. ¶¶ 5-6. The Trujillo Court agreed, and
concluded “that the Legislature did not intend to punish as kidnapping restraints that are
merely incidental to another crime.” Id. ¶ 39.
{34} Because false imprisonment is a lesser included offense to kidnapping and
involves the same actus reus, Defendant argues that the Trujillo analysis should apply
equally to both crimes. We disagree. This Court’s analysis in Trujillo applies strictly to
the offense of kidnapping and not the lesser-included offense of false imprisonment.
See id. ¶¶ 23-30 (reviewing the history of kidnapping statutes and the nature of the
offense, reviewing the history of New Mexico’s kidnapping statute, and highlighting the
distinction between the kidnapping and false imprisonment statutes and the elements
required for each offense); see also id. ¶¶ 39-42 (concluding that “the Legislature did
not intend to punish as kidnapping restraints that are merely incidental to another crime”
while emphasizing that the conclusion was based on the “factual circumstances of this
case”).
{35} This Court has repeatedly declined to extend the Trujillo analysis to false
imprisonment and has concluded that Trujillo applies exclusively to kidnapping. See,
e.g., State v. Dimas, A-1-CA-37009, mem. op. ¶¶ 19-20 (N.M. Ct. App. Apr. 27, 2020)
(nonprecedential) (noting that Trujillo has never been applied to false imprisonment and
that Trujillo “distinguish[ed] kidnapping from the lesser included offense of false
imprisonment” based on considerations specific to kidnapping); State v. Martinez, A-1-
CA-34992, mem. op. ¶ 36 (N.M. Ct. App. Feb. 7, 2018) (nonprecedential) (stating “we
note that Trujillo is inapplicable to this case because it pertains specifically and
exclusively to the offense of kidnapping” in response to the defendant’s argument that
Trujillo should apply to his false imprisonment conviction).
{36} Defendant has not persuaded us that under the circumstances here we should
expand Trujillo to false imprisonment, and we decline to consider this argument further.
We therefore hold that the false imprisonment conviction was not incidental to the CSP
conviction.
B. Defendant’s Double Jeopardy Rights Were Not Violated
{37} Defendant alternatively argues that his false imprisonment conviction violated his
double jeopardy rights because the false imprisonment charge and CSP charge were
based on unitary conduct. Defendant argues that any confinement that occurred was
unitary and fell within the CSP conduct. We disagree and explain.
{38} “Double jeopardy protects against multiple punishments for the same offense.”
State v. Silvas, 2015-NMSC-006, ¶ 8, 343 P.3d 616. Defendant was convicted of two
separate crimes each defined by different statutes, therefore this is a double-description
case. Id. We review a claim of double jeopardy de novo. State v. Swick, 2012-NMSC-
018, ¶ 10, 279 P.3d 747.
{39} This Court has long applied a two-part test when analyzing double description
claims. “First, the defendant’s conduct must be unitary,” and if it is not, “the analysis
ends and double jeopardy does not apply.” Silvas, 2015-NMSC-006, ¶ 9. Second, only if
the conduct is unitary, then we must “determine if the Legislature intended to punish the
offenses separately.” Id. “Only if the first part of the test is answered in the affirmative,
and the second in the negative, will the double jeopardy clause prohibit multiple
punishment in the same trial.” Id. (internal quotation marks and citation omitted).
{40} Conduct is not unitary when “the jury reasonably could have inferred independent
factual bases for the charged offenses.” State v. Melendrez, 2014-NMCA-062, ¶ 8, 326
P.3d 1126 (internal quotation marks and citation omitted). “In our consideration of
whether conduct is unitary, we have looked for an identifiable point at which one of the
charged crimes had been completed and the other not yet committed.” State v. DeGraff,
2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61. “[W]hen reviewing whether conduct
is unitary in the double jeopardy context, we indulge in all presumptions in favor of the
verdict.” State v. Herrera, 2015-NMCA-116, ¶ 12, 362 P.3d 167 (internal quotation
marks and citation omitted).2
{41} Our review shows that Defendant’s false imprisonment and CSP convictions
were not based on unitary conduct because each conviction was premised on separate
and distinct acts. The jury instruction for false imprisonment required the jury to find, in
relevant part, (1) “[D]efendant restrained or confined [Victim] against her will”; and (2)
“[D]efendant knew that he had no authority to restrain [Victim].” In contrast, the jury
instruction for CSP required, in relevant part, (1) “[D]efendant caused [Victim] to engage
in sexual intercourse”; and (2) “[D]efendant caused [Victim] to engage in sexual
intercourse through the use of physical force or physical violence.”
{42} Victim testified that Defendant entered the bathroom while she was taking a
shower, grabbed her by the back of the head, and prevented her from leaving.
Defendant then grabbed her, carried her against her will to the bedroom, and threw her
on the bed. Based on this testimony, a reasonably juror could infer and conclude that
Defendant intentionally restrained Victim against her will based upon Defendant’s
actions while Victim was in the shower. See State v. Barrera, 2002-NMCA-098, ¶ 11,
132 N.M. 707, 54 P.3d 548 (“[W]hen a defendant’s underlying acts are unlawful, it may
be inferred that the defendant knows, too, that he has no lawful authority to restrain the
victim in the commission of those unlawful acts.”). We have held that similar evidence
supported a conviction of false imprisonment. See State v. Corneau, 1989-NMCA-040,
¶ 13, 109 N.M. 81, 781 P.2d 1159 (concluding that the defendant’s acts of threatening
the victim, and then dragging her from the living room to the bedroom where the CSP
occurred satisfied the elements of false imprisonment). Therefore, we hold that
Defendant’s conviction for false imprisonment was supported by sufficient evidence
separate and distinct from Defendant’s conviction for CSP.
2To the extent that Defendant also challenges whether sufficient evidence supports his false
imprisonment conviction, our analysis on review is the same. See State v. Hixon, 2023-NMCA-048, ¶¶
44-45, 534 P.3d 235 (“We view the evidence in the light most favorable to the guilty verdict, indulging in
all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” (internal
quotation marks and citation omitted)).
{43} Although this conduct preceeded the conduct leading to the CSP, the restraint
required for false imprisonment “need be for only a brief time.” See id. ¶ 12. Here,
Defendant’s actions of entering the bathroom, preventing Victim from leaving, and then
grabbing Victim and throwing her on the bed created a distinct restraint than the restrain
used to commit CSP. See id. ¶ 16 (“[O]n the facts we have before us, the restraint which
proceeded the act of CSP was not the same ‘force or coercion’ necessary to establish
CSP, or the same restrain inherent in CSP.”); see also State v. Dominguez, 2014-
NMCA-064, ¶ 10, 327 P.3d 1092 (“That [the d]efendant used the same type of force to
restrain [the v]ictim during the kidnapping and during the CSP does not create unitary
conduct out of the independent and factually distinct bases for these crimes.”).
{44} Defendant cites to State v. Crain to support his claim that the conduct was
unitary, but his reliance on Crain is misplaced. In Crain, this Court held “[b]ecause both
forms of CSP II and the kidnapping charge involve the use of force during the same act
of sexual intercourse, we conclude that the conduct underlying all of Defendant’s
convictions is unitary.” 1997-NMCA-101, ¶ 17, 124 N.M. 84, 946 P.2d 1095; see also
State v. Fielder, 2005-NMCA-108, ¶¶ 32-33, 138 N.M. 244, 118 P.3d 752 (explaining
that the holding in Crain there was a double jeopardy violation that was specifically
based on the seriousness of the offenses and how one count of CSP was based on the
kidnapping charge). The facts in this case demonstrated an act of false imprisonment
took place prior to the CSP.
{45} Based on the foregoing, we conclude that Defendant’s false imprisonment and
CSP convictions were not based on unitary conduct and therefore we do not continue to
the second step of our double jeopardy analysis. See Silvas, 2015-NMSC-006, ¶ 8. We
hold that Defendant’s convictions did not violate Defendant’s double jeopardy rights.
IV. Defendant’s Motion for a New Trial
{46} Finally, we address Defendant’s argument that the district court erred by denying
his motion to set aside the verdict and for a new trial, filed more than six months after a
jury convicted him. Defendant raised two issues in support of his motion for a new trial:
(1) improper influence during jury deliberations by the jury foreman; and (2) intimidation
of Defendant by State witnesses to prevent Defendant’s testimony at trial. Citing Rule 5-
614, the State responded in relevant part that the grounds for a new trial did not consist
of new information and therefore the motion was untimely and the district court lacked
jurisdiction to rule on the motion.
{47} The district court denied the motion, because the issues were known and
therefore the motion should have been filed within ten days of the verdict. The district
court entered an order denying the motion for lack of jurisdiction because the motion did
not comply with the time requirements of Rule 5-614. The State asserts that the district
court lacked jurisdiction to rule on Defendant’s untimely motion.
{48} “Generally, an appellate court will not disturb the district court’s exercise of
discretion in denying or granting a motion for a new trial unless there is a manifest
abuse of discretion.” State v. Bryant, 2023-NMCA-016, ¶ 39, 525 P.3d 367 (text only)
(citation omitted), cert. denied, 2023-NMCERT-002 (S-1-SC-39550). “An abuse of
discretion occurs when the ruling is clearly against the logic and effect of the facts and
circumstances of the case.” Id. (internal quotation marks and citation omitted). We
review the district court’s decision that it lacked jurisdiction to hear Defendant’s motion
de novo. See State v. Moreland, 2007-NMCA-047, ¶ 9, 141 N.M. 549, 157 P.3d 728(“The question of whether the district court had jurisdiction to grant [the d]efendant’s
motion for [a] new trial presents a question of law, which we review de novo.”).
{49} Rule 5-614(C) states that a “motion for new trial based on the ground of newly
discovered evidence may be made only before final judgment, or within two (2) years
thereafter.” Otherwise, a “motion for new trial based on any other grounds shall be
made within ten (10) days after verdict or finding of guilty or within such further time as
the court may fix during the ten (10) day period.” Id. “[T]he filing requirement in Rule 5-
614(C) is jurisdictional.” State v. Lucero, 2001-NMSC-024, ¶ 9, 130 N.M. 676, 30 P.3d
365.
{50} Defendant concedes on appeal and at the motion hearing that the threats against
him occurred before and during trial. Similarly, Defendant concedes that he learned of
the possible improper juror influence shortly after the jury returned its verdict. As such,
the district court did not abuse its discretion by finding that Defendant failed to provide
newly discovered evidence or err in determining that Defendant did not comply with the
ten-day filing requirement under Rule 5-614(C). Therefore, we affirm the district court’s
denial of Defendant’s motion for a new trial on jurisdictional grounds.
CONCLUSION
{51} For the foregoing reasons, we affirm Defendant’s convictions.
{52} IT IS SO ORDERED.
JACQUELINE R. MEDINA, Judge
WE CONCUR:
KRISTINA BOGARDUS, Judge
RICHARD C. BOSSON, Justice,
Retired, sitting by Designation