State v. Walker ( 1993 )

OPINION

RANSOM, Chief Justice.

Linda Sue Walker was convicted as an accessory (as defined by NMSA 1978, § 30-1-13 (Repl.Pamp.1984)) on ten counts of criminal sexual penetration of her minor daughter (CSPM) under NMSA 1978, Section 30-9-ll(B) (Cum.Supp.1992), and on ten counts of contributing to the delinquency of a minor (CDM) under NMSA 1978, Section 30-6-3 (Cum.Supp.1992). She appealed her convictions to the Court of Appeals, and, pursuant to NMSA 1978, Section 34-5-14(0 (Repl. Pamp.1990), that Court certified the case for our review because it contained a double jeopardy issue then being addressed in two cases for which we had issued writs of certiorari to the Court of Appeals. We are today filing opinions in those two eases, State v. Trevino, 116 N.M. 528, 865 P.2d 1172 (1993), and State v. Henderson, 116 N.M. 537, 865 P.2d 1181 (Ct.App.1993). We base our decision in this case on our holding in Trevino: that convictions based on unitary conduct for both criminal sexual contact with a minor and contributing to delinquency do not violate principles of double jeopardy. See also Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991) (setting out double jeopardy analysis to be followed in New Mexico).

We presume for purposes of this appeal that Walker’s convictions for CSPM and CDM are based on the same ten incidents, i.e., that the conduct was unitary. In comparing the elements of the two statutes, we reach the same conclusions as in Trevino— neither of the two statutes subsumes the other. CSPM requires proof of sexual penetration and CDM requires proof that the defendant’s act or omission contributed to the delinquency of a minor, and neither of those facts is required to prove the other. Examination of other indicia of legislative intent leads us to the same conclusion we reached in Trevino. We hold that the legislature intended separate punishments for CSPM and CDM when the same conduct violates both statutes.

We limit our review of this case to the double jeopardy issue for which it was certifled in common with Trevino and Henderson. For resolution of the other issues Walker raises on appeal, we remand this case to the Court of Appeals for proceedings consistent with this opinion.

IT IS SO ORDERED.

FROST, J., concurs. MONTGOMERY, J. (specially concurring).