State v. Pipkin

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-37264
5 ROBERT PIPKIN,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 John A. Dean, Jr., District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Gregory B. Dawkins, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Chief Judge.
18 {1} Defendant appeals from his convictions for CSPM and CSCM. We previously
19 issued a notice of proposed summary disposition in which we proposed to affirm.
1 Defendant has filed a joint memorandum in opposition and motion to amend the
2 docketing statement. After due consideration, we deny the motion and affirm.
3 {2} We will begin our discussion with the issues originally raised in the docketing
4 statement. Although Defendant does not renew his challenge to the sufficiency of the
5 evidence, he does continue to argue that his convictions violate double jeopardy.
6 [MIO 3] We will limit the scope of discussion accordingly. See, e.g., State v.
7 Martinez, 1982-NMCA-002, ¶ 1, 97 N.M. 585, 642 P.2d 188.
8 {3} As previously described in the notice of proposed summary disposition, in this
9 case the charge of CSCM was based on Defendant’s touching of S.B.’s breasts, while
10 the charge of CSPM was based on Defendant’s subsequent insertion of a finger into
11 S.B.’s vulva or vagina. [RP 237, 240] We regard this conduct as non-unitary, both
12 because the specific acts are clearly distinct in quality, and because the crime of
13 CSCM was completed before the crime of CSPM began. See, e.g., State v. Sena,
14 2018-NMCA-037, ¶¶ 37, 48, 56, 419 P.3d 1240 (reflecting that conduct underlying
15 a conviction for CSC, entailing touching of the victim’s breasts, was distinct from
16 conduct underlying a conviction for CSP, entailing digital vaginal penetration, and
17 ultimately upholding both convictions), cert. granted, ___-NMSC-____ (No. S-1-SC-
18 36932, May 25, 2018); see also State v. DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M.
21 211, 131 P.3d 61 (“In our consideration of whether conduct is unitary, we have looked
2 for an identifiable point at which one of the charged crimes had been completed and
3 the other not yet committed.”); State v. Contreras, 2007-NMCA-045, ¶ 21, 141 N.M.
4 434, 156 P.3d 725 (“[W]e will not find that a defendant’s conduct is unitary where the
5 defendant completes one of the charged crimes before committing the other.”). To the
6 extent that the conduct is non-unitary, there is no double jeopardy violation. State v.
7 Silvas, 2015-NMSC-006, ¶ 9, 343 P.3d 616.
8 {4} Furthermore, even if the conduct could be regarded as unitary, we nevertheless
9 remain of the opinion that Defendant’s convictions for CSCM and CSPM are
10 consistent with legislative intent. In this regard, we note that the offenses contain
11 different elements, and stand independently in relation to one another. See State v.
12 Swick, 2012-NMSC-018, ¶ 13, 279 P.3d 747 (“If each statute requires proof of a fact
13 that the other does not, it may be inferred that the Legislature intended to authorize
14 separate punishments under each statute.”). We have also previously recognized that
15 the statutes prohibiting sex crimes against children list five separate protected areas,
16 including the genital area and breast, and we have held that “the legislative intent was
17 to protect the victim from intrusions to each enumerated part.” State v. Haskins,
18 2008-NMCA-086, ¶ 24, 144 N.M. 287, 186 P.3d 916 (internal quotation marks and
3
1 citation omitted); see State v. Williams, 1986-NMCA-122, ¶ 9, 105 N.M. 214, 730
2 P.2d 1196. Thus, under the facts of this case, which showed first a touching of one
3 protected area and subsequently a penetration of a different protected area, we
4 conclude that Defendant was properly convicted and separately sentenced for both
5 CSCM and CSPM. See, e.g., Sena, 2018-NMCA-037, ¶¶ 37, 48, 56; Haskins,
6 2008-NMCA-086, ¶¶ 18, 24; Williams, 1986-NMCA-122, ¶¶ 7-9 (all upholding
7 multiple convictions based upon touching of the victim’s breast and genital area).
8 {5} Defendant’s memorandum in opposition does not address the foregoing
9 authorities. Instead, he relies on a case involving multiple counts of CSCM, based
10 upon touchings that occurred within a short period of time in the course of a massage.
11 [MIO 11-12] We do not find this to be persuasive or to require a different result. In
12 summary therefore, we conclude that the convictions do not violate double jeopardy.
13 {6} We turn next to the issue that Defendant seeks to raise by his motion to amend,
14 concerning the withdrawal of his attorney prior to trial. [MIO 4-9] The record reflects
15 that this occurred upon his attorney’s motion, which he filed after Defendant’s
16 unexplained failure to appear at his scheduled jury trial. [RP 142-48] A hearing was
17 conducted on that motion, and Defendant registered no opposition. [RP 158-60]
18 Shortly thereafter the district court granted the attorney’s motion, substitution of
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1 counsel occurred, and the rescheduled trial was repeatedly continued to accommodate
2 defense preparation. [RP 161, 165, 167, 176, 183]
3 {7} Defendant contends that the withdrawal of his attorney was procured by the
4 prosecution, and this effectively denied him his Sixth Amendment right to counsel of
5 choice. [MIO 4-9] To succeed on his argument, Defendant must establish a sufficient
6 causal link between the State’s actions and the withdrawal of Defendant’s attorney.
7 See State v. Gamlen, 2009-NMCA-073, ¶ 10, 213 P.3d 818 (explaining).
8 However, the record before us reflects that counsel sought to withdraw due to
9 Defendant’s failure to uphold his obligations to counsel, when he failed to appear at
10 the originally-schedule jury trial. [RP 148] To the extent that Defendant’s own
11 conduct motivated his attorney to withdraw, we perceive no merit to Defendant’s
12 argument.
13 {8} Although Defendant does not acknowledge the role that his own conduct played
14 in his attorney’s withdrawal, he does argue that the prosecutor’s announced intention
15 to pursue a separate criminal action against Defendant based upon his failure to appear
16 created a conflict of interest for his attorney, insofar as his attorney would be a likely
17 witness in that separate action. [MIO 4-9] We will assume, for the present purposes,
18 that this situation could supply the requisite causal link between State action and the
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1 attorney’s withdrawal. See id. Nevertheless, we conclude that Defendant has failed to
2 demonstrate that the prosecutor’s behavior had “a demonstrable impact on [his
3 attorney’s] ability to represent [the d]efendant or upon the outcome of the case.” Id.4 ¶ 13. In this regard we note that although the prospect of a subpoena may have been
5 distasteful, we fail to see how it created an irreconcilable conflict. Neither Rule 16-
6 108(B) NMRA, nor Rule 16-109(C)(1) NMRA (prohibiting lawyers from using
7 information relating to representation to the disadvantage of a client unless the client
8 gives informed consent, except as permitted or required by the rules), both of which
9 Defendant invokes, [MIO 6] nor any other authority of which we are aware, would
10 have precluded the attorney from continuing the representation. And in any event, if
11 Defendant wished the attorney to continue the representation, he was at liberty to
12 waive the perceived conflict. State v. Barnett, 1998-NMCA-105, ¶ 26, 125 N.M. 739,
13 965 P.2d 323.
14 {9} Under the circumstances presented in this case, and in light of the foregoing
15 considerations, we conclude that the evidence is insufficient to establish a Sixth
16 Amendment violation. See, e.g., Gamlen, 2009-NMCA-073, ¶¶ 6-16 (rejecting a Sixth
17 Amendment claim of deprivation of the right to counsel of choice, where an attorney
18 withdrew following hostile and combative interaction with the State, where the
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1 defendant did not object to the withdrawal, and the facts of the case did not indicate
2 that the State’s behavior had, or would have had, a demonstrable impact on the
3 attorney’s ability to represent the defendant or upon the outcome of the case). We
4 therefore deny the motion to amend, on grounds that the issue is not viable. See, e.g.,
5 State v. Sommer, 1994-NMCA-070, ¶ 11, 118 N.M. 58, 878 P.2d 1007 (indicating that
6 a motion to amend will be denied if the putative issue is not viable).
7 {10} Accordingly, for the reasons stated above and in the notice of proposed
8 summary disposition, we affirm.
9 {11} IT IS SO ORDERED.
10
11 LINDA M. VANZI, Chief Judge
12 WE CONCUR:
13
14 M. MONICA ZAMORA, Judge
15
16 JENNIFER L. ATTREP, Judge
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