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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. 34,330

 5 MICHAEL FARMER,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 Kea W. Riggs, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Tonya Noonan Herring, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Robert E. Tangora, L.L.C.
15 Robert E. Tangora
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 VIGIL, Judge.
 1   {1}   Following an altercation involving a shotgun, Defendant was convicted of one

 2 count of aggravated battery with a deadly weapon contrary to NMSA 1978, Section

 3 30-3-5(A), (C) (1969), and one count of aggravated assault with a deadly weapon

 4 contrary to NMSA 1978, Section 30-3-2(A) (1963). At sentencing, Defendant

 5 received two one-year firearm enhancements pursuant to NMSA 1978, Section 31-18-

 6 16(A) (1993).

 7   {2}   Defendant appeals, contending: (1) the firearm enhancements violate double

 8 jeopardy; (2) the firearm enhancements must be vacated because the special

 9 interrogatory required by Section 31-18-16(C) was not submitted to the jury; (3) the

10 prosecutor committed plain and fundamental error by eliciting testimony that

11 constituted an impermissible comment on Defendant’s right to remain silent; and (4)

12 the prosecutor committed fundamental error in disregarding the district court’s rulings

13 and arguing that Defendant conspired to frame his stepson for the shootings. We

14 reverse in part and remand for resentencing. Because this is a memorandum opinion,

15 we only set forth the facts that are directly pertinent to the issues.

16 I.      BACKGROUND

17   {3}   About a month prior to June 10, 2013, Ben Florez (Ben) and his wife Gabriella

18 had an altercation with Defendant’s stepson, Joe Paul Martinez, who was married to

19 Ben’s sister, Amanda. Ben and Gabriella went to the Martinez’ home after Amanda

20 told Ben that Joe Paul had beat her. When they arrived, Joe Paul physically assaulted

                                               2
 1 Gabriella. Ben and Joe Paul then fought each other. Ben and Joe Paul did not have any

 2 more contact with each other until June 10, 2013.

 3   {4}   On June 10, 2013, Ben and Gabriella drove to the home of Ben’s mother, Sally

 4 Moreno, to pick up their son. Sally lived across the street from Defendant. When Ben

 5 and Gabriella arrived at Sally’s home, they saw Amanda sitting in her truck parked

 6 on the street in front of Defendant’s home. Amanda and Joe Paul had been arguing

 7 earlier, and Joe Paul had locked the gate to the fence surrounding Defendant’s house.

 8 Joe Paul was inside Defendant’s house taking a shower and would not let Amanda in.

 9 Gabriella went to speak to Amanda while Ben went to Sally’s house to get their son.

10 Sally told Ben that his son was taking a bath and that she would take him to Ben’s

11 home later.

12   {5}   Joe Paul came out of Defendant’s house in his boxers and unlocked Defendant’s

13 gate. Defendant and Joe Paul then started yelling and swearing at Ben, so Ben and

14 Gabriella decided to leave and avoid a confrontation. After Ben and Gabriella got in

15 Ben’s truck, Ben changed his mind and decided to get his son because he did not want

16 to have to deal with Defendant later. Ben went back to Sally’s house, and when he got

17 out of his truck, Defendant and Joe Paul were now swearing at Amanda. Ben tried to

18 get Amanda to leave with him and Gabriella, and Defendant and Joe Paul started

19 yelling at Ben again.



                                             3
 1   {6}   At some point, Defendant went into his home, retrieved his shotgun, returned

 2 and stood next to Joe Paul at the gate. Defendant testified that Ben was about fifteen

 3 to twenty feet away from him in the street and that Gabriella was standing by

 4 Defendant’s fence yelling at him. Ben, Amanda, Gabriella, and Sally then heard

 5 Defendant say “I got something for you motherf****er!” Defendant shot Ben with his

 6 shotgun, and then pointed the shotgun at Gabriella. Sally testified that she saw

 7 Defendant pick something up from the ground after he shot Ben, but she did not know

 8 what it was.

 9   {7}   Sergeant Rusty Briscoe of the Roswell Police Department was one of the first

10 officers at the scene. Sergeant Briscoe reported that Defendant volunteered, without

11 being questioned, that Ben was harassing him, and about the events leading up to the

12 shooting, including his claim that Joe Paul had taken the shotgun from Defendant and

13 shot Ben. Police searched Defendant’s home and Sally’s home for the shotgun, but it

14 was never found. A spent shotgun shell was found in Joe Paul’s room in Defendant’s

15 home, on a dresser right next to Joe Paul’s wallet, but no shell was ever recovered

16 outside where the shooting had taken place.

17   {8}   Defendant was taken to the police station, and after being advised of his

18 Miranda rights by Detective Alberto Aldana, Defendant said he understood his rights,

19 and agreed to talk to Detective Aldana about what had happened. Defendant was

20 arrested and charged with aggravated battery and aggravated assault. At Defendant’s

                                             4
 1 first appearance on June 12, 2013, counsel was appointed to represent Defendant.

 2 Defendant was then released from custody after posting bond on June 21, 2013. After

 3 his release, Defendant repeatedly called Detective Aldana to tell him that Joe Paul’s

 4 wife Amanda told Defendant that she had stolen Defendant’s shotgun from his truck.

 5 Defendant did not file a police report for the theft “until two weeks after the shooting

 6 because he was incarcerated.”

 7   {9}    At trial, Defendant testified and claimed that Ben was waving a gun at him so

 8 he went and got his shotgun. Defendant testified that after he got his shotgun, he

 9 thought that it was a “wrong move” and was going to put it back. However, he

10 testified, when he went to take the shotgun back into his home, Joe Paul grabbed the

11 gun and shot Ben. Defendant further testified that Joe Paul told Amanda to meet him

12 in the alley, and Joe Paul took off running with the shotgun. Amanda testified that she

13 and Joe Paul immediately left in her truck, and she was driving. She said Joe Paul was

14 next to her in his boxers, and he did not have anything in his hands. Joe Paul testified

15 and denied that he ever tried to pull the shotgun away from Defendant. Joe Paul said

16 that he left as soon as the shot was fired, and he left in his boxers and t-shirt because

17 he is a felon and is not supposed to be around firearms. In an interview with Detective

18 Aldana, Joe Paul said that his family wanted him to take the blame for the shooting.

19   {10}   The jury found Defendant guilty of aggravated battery with a deadly weapon

20 on Ben, and aggravated assault with a deadly weapon on Gabriella. After credit for

                                               5
 1 time served, Defendant was sentenced to serve a total of five years, seventeen months,

 2 and three days at the New Mexico Department of Corrections. The sentence on each

 3 count was enhanced by one year under Section 31-18-16, known as the firearm

 4 enhancement statute. Defendant appeals.

 5 II.      DISCUSSION

 6 A.       Double Jeopardy

 7   {11}   We first address Defendant’s argument that his right to be free from double

 8 jeopardy was violated because he was punished twice for the same offense, receiving

 9 a firearm enhancement on his conviction for aggravated battery with a deadly weapon

10 and also being convicted for aggravated assault with a deadly weapon. The Double

11 Jeopardy Clause of the Fifth Amendment protects a defendant against receiving

12 multiple punishments for the same offense. See Swafford v. State, 1991-NMSC-043,

13 ¶ 6, 112 N.M. 3, 810 P.2d 1223. Our review of Defendant’s claim is de novo. State v.

14 Branch, 2016-NMCA-071, ¶ 22, 387 P.3d 250, cert. granted, 2016-NMCERT-___

15 (No. 35,951, July 28, 2016).

16   {12}   Section 31-18-16(A) provides: “When a separate finding of fact by the court or

17 jury shows that a firearm was used in the commission of a noncapital felony, the basic

18 sentence of imprisonment prescribed for the offense in [NMSA 1978], Section

19 31-18-15 [(2007)] shall be increased by one year, and the sentence imposed by this

20 subsection shall be the first year served and shall not be suspended or deferred[.]” In

                                               6
 1 Branch, we held that when the state, “according to its own theory of the case, was not

 2 required to prove any additional facts to have [a d]efendant’s sentence enhanced,” the

 3 firearm enhancement under Section 31-18-16 violates double jeopardy. 2016-NMCA-

 4 071, ¶ 38. We conclude that Branch is directly applicable.

 5   {13}   Count 1 of the information charges aggravated battery with a deadly weapon

 6 and alleges in pertinent part that Defendant “did touch or apply force to Ben Florez

 7 with a deadly weapon.” The jury was instructed that in order to find Defendant guilty

 8 of this charge, it was required to find beyond a reasonable doubt that Defendant “did

 9 touch or apply force to Ben Florez by shooting him with a firearm, which is a deadly

10 weapon[.]” Similarly, count 4 charges aggravated assault with a deadly weapon and

11 alleges that Defendant “did assault or strike at Gabriella [Florez] with a deadly

12 weapon[.]” The jury was instructed in pertinent part that to find Defendant guilty of

13 this charge, it was required to find beyond a reasonable doubt that “[D]efendant

14 pointed a firearm at Gabriella [Florez]” and that Defendant “used a firearm, which is

15 a deadly weapon.”

16   {14}   On the basis that Defendant used his shotgun, a firearm, to commit aggravated

17 battery with a deadly weapon, and aggravated assault with a deadly weapon,

18 Defendant’s sentence was enhanced by one year for each conviction under Section 31-

19 18-16. Branch holds that this violates double jeopardy, and the enhanced sentence on

20 each count must be reversed and vacated. 2016-NMCA-071, ¶ 64.

                                              7
 1 B.       Failure to Submit a Special Interrogatory

 2   {15}   Section 31-18-16 (C) requires a special interrogatory to be submitted to the jury

 3 to find whether a firearm was used in the commission of an offense if a prima facie

 4 case has been established that a firearm was used. No interrogatory was submitted to

 5 the jury in this case. Because we reverse and vacate Defendant’s firearm

 6 enhancements on the basis of double jeopardy, it is not necessary for us to address

 7 Defendant’s argument that this omission was reversible error.

 8 C.       Post-Miranda Silence

 9   {16}   Defendant argues that the prosecutor committed plain and fundamental error in

10 eliciting Defendant’s post-arrest, post-Miranda silence as evidence that Defendant

11 was fabricating a story. “We review de novo the legal question regarding whether the

12 prosecutor improperly commented on [the d]efendant’s [post-Miranda] silence.” State

13 v. Pacheco, 2007-NMCA-140, ¶ 8, 142 N.M. 773, 170 P.3d 1011 (alteration, internal

14 quotation marks and citation omitted). In addition, because there was no objection

15 made at trial, our review is limited to whether fundamental error was committed. Id.

16 Whether fundamental error was committed “rests on whether the prosecutor’s

17 improprieties had such a persuasive and prejudicial effect on the jury’s verdict that the

18 defendant was deprived of a fair trial.” State v. Wildgrube, 2003-NMCA-108, ¶ 20,

19 134 N.M. 262, 75 P.3d 862 (internal quotation marks and citation omitted).



                                                8
 1   {17}   To determine whether the prosecutor engaged in improper questioning to

 2 constitute misconduct, we follow a two-step process. First, we examine whether the

 3 language of the prosecutor’s questions were such that the jury “would naturally and

 4 necessarily have taken them to be comments on the exercise of the right to remain

 5 silent.” Pacheco, 2007-NMCA-140, ¶ 12 (internal quotation marks and citation

 6 omitted). Second, if we determine that the prosecutor's questions constituted an

 7 improper comment on Defendant’s silence, we then determine “whether there is a

 8 reasonable probability that the error was a significant factor in the jury’s deliberations

 9 in relation to the rest of the evidence before them.” Id. (internal quotation marks and

10 citation omitted).

11   {18}   We begin with the first inquiry: whether the prosecutor’s question constituted

12 a comment on Defendant’s constitutionally protected silence. The question occurred

13 in the following context. Sergeant Briscoe, one of the first officers on the scene,

14 testified that Defendant volunteered to him that after he came out of his house with

15 the shotgun, Joe Paul took it away from him and shot Ben. Sergeant Briscoe testified

16 that the homes of Defendant and Sally were searched and the shotgun was not found.

17 Defendant was arrested and taken to the police station, and Defendant voluntarily gave

18 a statement to Detective Aldana after Detective Aldana advised Defendant of his

19 Miranda rights. Defendant told Detective Aldana that he and Joe Paul struggled with

20 the shotgun and it went off, and he did not remember what happened to the shotgun.

                                               9
 1 Detective Aldana’s testimony continued that about two weeks later, Defendant called

 2 Detective Aldana and reported that Amanda had broken into his house and stolen the

 3 shotgun. The prosecutor first clarified that Defendant reported the alleged theft on

 4 June 28, 2013, which was actually more than two weeks after the incident. Defendant

 5 contends that the prosecutor commented on Defendant’s silence when he then asked:

 6 “Now, since you are the lead investigator on this case and you have investigated these

 7 cases, what do you feel about the validity of that report from [Defendant]?” Detective

 8 Aldana answered, “that [Defendant] knew where the shotgun was all along, and that

 9 Joe [Paul] never took it.” Further, when asked if he believed that Amanda had actually

10 come and taken the shotgun, Detective Aldana answered “no.”

11   {19}   Defendant argues that because he was incarcerated for two weeks after he

12 received the Miranda warnings from Detective Aldana, the prosecutor’s question

13 called attention to Defendant’s right to remain silent during that two-week period. We

14 disagree. The prosecutor asked Detective Aldana about Defendant’s report of the

15 alleged theft, and what that report meant to him. The prosecutor did not ask whether,

16 nor did the question suggest, that any meaning should be attributed to Defendant

17 exercising his right to remain silent before he voluntarily called Detective Aldana and

18 reported the alleged theft. Moreover, the prosecutor made no reference to Defendant’s

19 post-Miranda silence in the closing arguments. Therefore, we conclude that the jury

20 would not “naturally and necessarily have taken” the prosecutor’s question “to be

                                             10
 1 comments on the exercise of the right to remain silent.” Pacheco, 2007-NMCA-140,

 2 ¶ 12 (internal quotation marks and citation omitted). Because we determine that the

 3 prosecutor’s question did not constitute an impermissible comment on Defendant’s

 4 constitutional right to remain silent, there is no need to consider the second factor set

 5 forth in Pacheco. In light of what we have already observed, the question not objected

 6 to, did not rise to the level of fundamental error. We therefore reject Defendant’s

 7 argument under this point.

 8 D.       Prosecutorial Misconduct

 9   {20}   Defendant argues that the prosecutor committed prosecutorial misconduct in

10 closing argument by disregarding the district court rulings in arguing that Defendant

11 conspired to frame Joe Paul for the shooting. Defendant concedes that this argument

12 was not preserved at trial and asks that we review the prosecutor’s conduct for

13 fundamental error.

14   {21}   When an issue of prosecutorial misconduct in closing argument has not been

15 properly preserved by a timely objection at trial, we have discretion to review the

16 claim on appeal for fundamental error. State v. Trujillo, 2002-NMSC-005, ¶¶ 52, 60,

17 131 N.M. 709, 42 P.3d 814. Prosecutorial misconduct in arguments to the jury

18 constitutes fundamental error when it is egregious and so prejudicial and persuasive

19 as to affect the jury’s verdict, thereby depriving the defendant of a fair trial. State v.

20 Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728. Fundamental error only

                                               11
 1 applies to closing arguments when a defendant’s guilt is so doubtful as to shock the

 2 conscience, or the error implicates the fundamental integrity of the judicial process.

 3 State v. Sosa, 2009-NMSC-056, ¶ 35 147 N.M. 351, 223 P.3d 348.

 4   {22}   Defendant points to an instance in which the prosecutor asked Amanda if she

 5 had been pressured to implicate Joe Paul in the shooting, and she answered that

 6 Defendant’s wife did on three occasions. In addition, Defendant points out that

 7 through the prosecutor’s questioning, Detective Aldana testified that Joe Paul told him

 8 that his “family” was pressuring him to take the blame for the shooting. Defendant

 9 contends that these items of evidence were not admissible. In addition, Defendant

10 points to two instances in which the prosecutor asked Detective Aldana about whether

11 placement of the spent shotgun shell in Joe Paul’s room was a “set-up” and the district

12 court sustained objections to the questions. Defendant therefore argues that in

13 violation of the rules of evidence and the district court rulings, the prosecutor

14 improperly argued in closing argument (1) that Defendant planted the spent shotgun

15 shell in Joe Paul’s room and then pointed it out to the police; and (2) that Defendant

16 tried to get Joe Paul to take the blame for the shooting.

17   {23}   With regard to the spent shotgun shell, the following evidence was admitted at

18 trial. Defendant admitted he owned the shotgun that was used in the shooting, and a

19 box of ammunition for the shotgun was found in Defendant’s room. The shotgun was

20 fired once, and Sally saw Defendant bend down and pick up something off the ground

                                              12
 1 after the shooting. Defendant testified that after the shooting, he went back into his

 2 house, and there is no evidence that Joe Paul went back into the house after the

 3 shooting. The spent shotgun shell was found in Defendant’s house on a dresser next

 4 to Joe Paul’s wallet right after the shooting. No other spent shell was found at the

 5 scene of the shooting following a thorough search. Based on the foregoing evidence,

 6 which Defendant does not contend was inadmissible, the prosecutor’s argument that

 7 Defendant planted the spent shotgun shell on Joe Paul’s dresser next to his wallet was

 8 permissible. “During closing argument, both the prosecution and defense are

 9 permitted wide latitude[.]” State v. Smith, 2001-NMSC-004, ¶ 38, 130 N.M. 117, 19

10 P.3d 254. Moreover, “[s]tatements having their basis in the evidence, together with

11 reasonable inferences to be drawn therefrom, are permissible and do not warrant

12 reversal.” State v. Herrera, 1972-NMCA-068, ¶ 8, 84 N.M. 46, 499 P.2d 364 (internal

13 quotation marks and citation omitted). See State v. Jimenez, 2017-NMCA-039, ¶ 75,

14 392 P.3d 668 (reiterating these principles).

15   {24}   With regard to the argument that Defendant tried to get Joe Paul to take the

16 blame for the shooting, the evidence was clear that from the beginning, Defendant

17 claimed that Joe Paul shot the shotgun, and he later claimed that Amanda had broken

18 into his house and stolen the shotgun. Thus, even if we assume that the evidence

19 attributed to Defendant’s wife on three occasions pressuring Amanda to implicate Joe

20 Paul, and the evidence that Joe Paul told Detective Aldana that his “family” was

                                             13
 1 pressuring him to take the blame was inadmissible, and that argument based on this

 2 evidence was therefore improper, there was no fundamental error in light of

 3 Defendant’s repeated statements that Joe Paul did the shooting and his attempts to

 4 implicate Joe Paul in stealing the shotgun. Even if we assume misconduct, therefore,

 5 it was not so prejudicial and persuasive as to affect the jury’s verdict, thereby

 6 depriving Defendant of a fair trial. Moreover, the evidence we have set forth in this

 7 opinion demonstrates that Defendant’s guilt is not so doubtful as to shock the

 8 conscience or bring into doubt the integrity of the judicial process leading to

 9 Defendant’s convictions. We therefore conclude that the prosecutor did not commit

10 fundamental error in arguing to the jury that Defendant tried to blame the aggravated

11 battery of Ben and the aggravated assault of Gabriella on Joe Paul.

12   {25}   The prosecutor’s closing argument neither rose to the level of fundamental error

13 nor justifies setting aside the jury’s verdict. We therefore reject Defendant’s

14 arguments under this point.

15 CONCLUSION

16   {26}   The case is remanded to the district court to vacate the firearm enhancements

17 to the judgment and sentence. In all other respects the Defendant’s convictions are

18 affirmed.

19   {27}   IT IS SO ORDERED.



                                               14
1                                  __________________________________
2                                  MICHAEL E. VIGIL, Judge


3 WE CONCUR:


4 ______________________________
5 JAMES J. WECHSLER, Judge


6 ______________________________
7 TIMOTHY L. GARCIA, Judge




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