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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. 33,782

 5 ANDREW COPPLER,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Judith Nakamura, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Steven H. Johnston, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Bauer, Acting Chief Public Defender
15 Will O’Connell, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 KENNEDY, Judge.
 1   {1}   Defendant engaged in an altercation with his father, during which his father lost

 2 consciousness while in a choke hold. Father died some days later, never having

 3 regained consciousness. An autopsy determined that Defendant’s father suffered from

 4 a heart arrhythmia and died from insufficient oxygen reaching his brain. During trial,

 5 the State presented evidence that the arrhythmia caused the father’s death and that

 6 Defendant’s actions likely triggered the father’s abnormal heart rhythm. Defendant

 7 requested a causation instruction, so that the jury would have to determine whether he

 8 was a “significant cause” of his father’s death. Defendant was convicted of second

 9 degree murder, misdemeanor battery, and aggravated battery.

10   {2}   Defendant asserts that the district court erred in denying his proffered

11 instructions. We disagree. First, the district court did not deny the instruction;

12 Defendant abandoned it. The record shows that after discussion with the court about

13 the instruction, Defendant, upon further overnight research on the issue, decided not

14 to pursue the instruction. This is likely because there was insufficient evidence or

15 justification proffered by Defendant to support giving the instruction. Defendant’s

16 withdrawal of the instruction constitutes a waiver of the issue, and the district court

17 did not err in not giving the instruction.

18   {3}   Defendant also argues that his convictions for misdemeanor battery and

19 aggravated battery violated double jeopardy because they arose from the same conduct

20 that gave rise to his conviction for second degree murder. We agree with respect to the

21 conviction for misdemeanor battery alone. The conduct giving rise to the aggravated

22 battery conviction and the conduct giving rise to the second degree

                                                2
 1 murder conviction was not unitary and therefore did not violate double jeopardy. As

 2 such, we therefore reverse only Defendant’s misdemeanor battery conviction and

 3 remand for resentencing.

 4 I.      BACKGROUND

 5   {4}   On November 19, 2012, Defendant, his friend Desi Marin, and his father, Keith

 6 Coppler, were in Defendant’s back yard1 grilling and drinking alcohol. Defendant was

 7 sitting across from Keith and eating his meal with a steak knife. An argument broke

 8 out between Defendant and Keith, though it is unclear what the argument was about.

 9 According to Defendant, while he and Keith were arguing, Keith had a machete sitting

10 next to him on the table. Defendant slashed at Keith with the steak knife that was

11 already in his hand, thinking that Keith was going to attack him with the machete.

12 Marin testified that Defendant was the aggressor and made the first attack using the

13 steak knife that was already in his hand. After Defendant slashed at Keith with the

14 steak knife, both men stood up from the picnic table and Keith attacked Defendant

15 with the machete, hitting him in the torso and head. Endeavoring to remove the

16 machete from Keith’s grasp, Defendant wrestled Keith to the ground. Once the two

17 men fell to the ground, Defendant briefly put Keith into a headlock,2 releasing him




         1
17         The home belonged to Defendant’s mother. Both Defendant and Keith were
18 staying there temporarily.
         2
19         The description of Defendant’s actions here varies between choke hold and
20 headlock.

                                             3
 1 as soon as he stopped fighting back.3 Defendant, seeing that Keith was unconscious

 2 and beginning to turn blue, called 911 and began administering CPR. Emergency

 3 personnel arrived, and Keith was taken to the hospital, where he died five days later,

 4 never regaining consciousness.

 5   {5}   A grand jury indicted Defendant on charges of second degree murder,

 6 aggravated battery against a household member, and battery against a household

 7 member. Defendant’s case was tried in front of a jury.

 8   {6}   The State called Dr. Sam Andrews, a forensic pathologist with the Office of the

 9 Medical Investigator. Dr. Andrews testified that the cause of Keith’s death was

10 “anoxic encephalopathy,” which is an injury to the brain due to a lack of oxygen. This

11 condition could be caused by a natural event such as a heart attack or abnormal heart

12 rhythm, an infection causing low blood pressure, or compressed vessels in the neck.

13 Dr. Andrews expressed his opinion that, in Keith’s case, a compression of the neck

14 led to an abnormal heart rhythm and ineffective blood flow for the brain. Dr. Andrews

15 also acknowledged that other contributing, secondary causes of death were Keith’s

16 very enlarged heart. As an obese male with high blood pressure and an electrically

17 unstable heart, Keith could develop an abnormal heart rhythm at any time. Dr.

18 Andrews also acknowledged that Keith’s actions prior to Defendant’s choke

          3
21          Although the State characterizes Marin’s testimony to indicate the choke hold
22 lasted five minutes, subsequent testimony reveals that Marin most likely meant that
23 the entire encounter lasted, at most, five minutes.

                                              4
 1 hold—sudden movements and exertion—could potentially have caused an arrhythmia.

 2   {7}   Prior to the completion of evidence, defense counsel proffered an instruction

 3 based on UJI 14-252 NMRA. UJI 14-252 is a proximate cause instruction to be given

 4 if the negligence of the decedent or a third person is “the only significant cause of

 5 death[.]” Id. The district court reserved its ruling on the instruction until all the

 6 evidence was presented. After Dr. Andrews’ testimony, the district court heard more

 7 argument regarding the propriety of submitting UJI 14-252 to the jury. Defense

 8 counsel was clear that the purpose of requesting UJI 14-252 rested on Dr. Andrews’

 9 testimony that Keith’s own physical condition could have caused his death. At that

10 time, the district court indicated its inclination that UJI 14-252 would not be given

11 without also giving UJI 14-251 NMRA, a homicide instruction concerning proximate

12 cause. Defense counsel stated that he previously “didn’t see that [UJI 14-]251 had to

13 go with [UJI 14-]252,” believing that “[UJI 14-]251 was a third person . . . like . . . a

14 car or something like that.” The district court suggested that defense counsel take

15 another look at the instructions, and adjourned for the day. When the proceedings

16 resumed the next day, defense counsel indicated he would not pursue his proffer of

17 UJI 14-252, based on his “reviewing the notes and the rule.” The parties immediately

18 moved on to other instructions, UJI 14-252 was not mentioned again, and the jury was

19 not instructed on either UJI 14-251 or -252, though it was instructed on self-


                                               5
 1 defense. It found Defendant guilty on all charges. Defendant appealed his convictions.

 2 II.      DISCUSSION

 3   {8}    Defendant makes two arguments on appeal. He first argues that the district court

 4 erred when it refused to give his proffered jury instruction on causation. Next, he

 5 asserts that his convictions for misdemeanor battery, aggravated battery, and second

 6 degree murder violated double jeopardy. The district court’s failure to instruct the jury

 7 on causation does not constitute reversible error, and only the misdemeanor battery

 8 conviction violates double jeopardy.

 9 A.       The Jury Instruction in Question Was Withdrawn and Unsupported by
10          Evidence

11   {9}    Defendant argues that the district court erred in denying his requested

12 instruction on causation because Dr. Andrews testified that Keith’s heart arrhythmia

13 could have been caused either by Defendant’s choke hold or could have arisen

14 spontaneously as a result of the stress of the machete attack on Defendant.4

15 1.       Preservation

16   {10}   We do not agree with Defendant that the district court “erred when it refused

            4
16           For reasons stated in this Opinion, we caution defense counsel that nowhere
17   in the record does it appear that the district court ruled on the propriety of the
18   instruction, where the record supports the view that the instruction was withdrawn.
19   See Rule 12-213(A)(3) NMRA (stating that the statement of facts must “contain
20   citations to the record proper . . . supporting each factual representation”). Counsel’s
21   duty to present a fair view of the evidence is something we take seriously.


                                                6
 1 to instruction [sic] the jury on the issue of causation.” Conversations between the

 2 court and counsel after Dr. Andrews finished testifying indicate that the court had

 3 questions about the instruction tendered by Defendant, particularly with regard to the

 4 instruction’s requiring “evidence of negligence by another person.” The court stated,

 5 “you were suggesting earlier that the other person is [Keith] himself[,]” and pointed

 6 out that UJI 14-252 is only available where “[Keith’s] negligence was the sole cause

 7 of the accident.” Defense counsel conceded that he had not read the committee notes

 8 to the instruction. The next morning, as discussion of jury instructions resumed,

 9 defense counsel said that, having read the instruction, the notes, and the rule, he was

10 not going to continue to request UJI 14-252 or object to the court giving the

11 instruction to the jury. We consider these events to indicate a mistakenly submitted

12 instruction, the request for which was abandoned by counsel upon further

13 consideration and conversation between the court and defense counsel. Nowhere does

14 there appear in the record a refusal or denial of the instruction. A defendant must

15 make a “clear and unequivocal” request for a jury instruction; tendering an instruction

16 and then notifying the court that, upon reconsideration, its tender would not be

17 pursued waives any claim of error based on the court’s failure to give the instruction.

18 State v. Aragon, 1982-NMCA-173, ¶ 17, 99 N.M. 190, 656 P.2d 240 (finding a waiver

19 of error when the defendant did not pursue tender of an instruction).


                                              7
 1 B.       Double Jeopardy

 2   {11}   The United States Constitution, which applies to New Mexico by virtue of the

 3 Fourteenth Amendment, prohibits double jeopardy and protects criminal defendants

 4 from receiving multiple punishments for the same offense. U.S. Const. amends. V &

 5 XIV, § 1; State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. We review de novo

 6 the constitutional question of whether the Double Jeopardy Clause has been violated.

 7 Swick, 2012-NMSC-018, ¶ 10. There are two types of double jeopardy cases: double

 8 description cases and unit of prosecution cases. A double description case exists where

 9 the same conduct results in multiple convictions under different statutes. Swafford v.

10 State, 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810 P.2d 1223. A unit of prosecution case

11 is one in which a defendant challenges multiple convictions for violations of a single

12 statute. Id. ¶ 8. Defendant’s case is a double description case.

13   {12}   Double description cases are subject to a two-part test that our Supreme Court

14 set forth in Swafford. See id. ¶ 25. First, we analyze “whether the conduct underlying

15 the offenses is unitary, i.e., whether the same conduct violates both statutes.” Id. The

16 proper inquiry in analyzing whether conduct is unitary is “whether the facts presented

17 at trial establish that the jury reasonably could have inferred independent factual bases

18 for the charged offenses.” State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112

19 P.3d 1104 (internal quotation marks and citation omitted). This inquiry requires a


                                               8
 1 consideration of whether a defendant’s conduct is separated by “sufficient indicia of

 2 distinctness”; if such indicia exists, conduct is not unitary. Swafford, 1991-NMSC-

 3 043, ¶ 26. Indicia of distinctness include the temporal proximity of the acts, the

 4 location of the victim during the act, the existence of an intervening event, the

 5 sequencing of the acts, the defendant’s intent, and the number of victims. Id. ¶ 28

 6 (applying factors to a double description case, particularly acknowledging time, space,

 7 results, and quality and nature of the acts involved); State v. Bernal, 2006-NMSC-050,

 8 ¶ 16, 140 N.M. 644, 146 P.3d 289 (applying factors to a unit of prosecution case,

 9 reasoning that the analysis in both cases is “substantially similar”). If conduct is

10 unitary, double jeopardy analysis continues; if the conduct is separate and distinct, our

11 double jeopardy analysis is at an end and we need not continue to the second step in

12 the analysis. Swafford, 1991-NMSC-043, ¶ 28.

13 1.       Aggravated Battery Conviction

14   {13}   Defendant asserts that his conduct was unitary and that his aggravated battery

15 conviction was subsumed within his murder conviction. The State suggests that the

16 conduct giving rise to the aggravated battery conviction and the conduct giving rise

17 to the second degree murder conviction were not unitary. In support, the State argues

18 that the aggravated battery was completed when Defendant put down the steak knife.

19   {14}   The evidence supports the State’s theory that a jury could reasonably have


                                               9
 1 distinguished a distinct factual bases for the aggravated battery charge and the second

 2 degree murder charge. The actions that occurred during the fight involved two

 3 distinguishable acts—slashing Keith with a steak knife and putting Keith in a

 4 headlock. Although the fight morphed from a slashing while sitting at a table, to a

 5 standing altercation, during which both men dropped their weapons, to wrestling on

 6 the ground, the evidence clearly established a sequence of events. Based on that

 7 sequence of events, the fact finder could attribute Keith’s injuries to Defendant’s

 8 distinct actions during the fight. It is reasonable for a jury to distinguish the act of

 9 slashing with a steak knife, which gave rise to the aggravated battery charge, with the

10 act of putting someone in a headlock, after Keith’s intervening attack with the

11 machete, which gave rise to the second degree murder charge. Because the evidence

12 presented reveals that the acts were factually different in both intention and method,

13 this distinction exists despite the physical and temporal proximity of the two acts.

14 While the fight occurred in a confined location, namely the back yard, there was some

15 spatial separation between both acts—from sitting, to standing, to the ground.

16 Furthermore, the established sequence of events helps to establish that the dropping

17 of the machete and knife constitutes a minor intervening event that de-escalated the

18 situation. Because the jury could, from the evidence presented at trial, infer an

19 independent factual bases for each offense, we conclude that the conduct giving rise


                                              10
 1 to each claim was not unitary. See Franco, 2005-NMSC-013, ¶ 7. We therefore need

 2 not continue with our double jeopardy analysis as to the aggravated battery

 3 conviction.

 4 2.       Battery Conviction

 5   {15}   Defendant’s argument regarding his battery conviction is the same as stated

 6 above; he argues his conduct was unitary and that battery is subsumed by the murder

 7 conviction. The State agrees that Defendant’s conduct with respect to battery and

 8 second degree murder was unitary but provides no further analysis regarding

 9 legislative intent. Instead, it requests that we vacate Defendant’s misdemeanor battery

10 conviction. While we are not bound to accept the State’s concession, we agree that the

11 misdemeanor battery conviction should be vacated. See State v. Foster, 1999-NMSC-

12 007, ¶ 25, 126 N.M. 646, 974 P.2d 140 (stating appellate courts are not bound by the

13 state’s concessions), abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-

14 020, ¶ 17, 148 N.M. 381, 237 P.3d 683. The elements of battery are subsumed by

15 those of aggravated battery. Compare UJI 14-320 NMRA, with UJI 14-322.

16 Additionally, both are in place in order to “punish overt acts against a person’s safety

17 but take different degrees into consideration.” Swick, 2012-NMSC-018, ¶ 29.

18   {16}   Defendant’s conviction for misdemeanor battery should be vacated as violative

19 of double jeopardy. See State v. Santillanes, 2001-NMSC-018, ¶ 28, 130 N.M. 464,


                                              11
 1 27 P.3d 456 (citing State v. Pierce, 1990-NMSC-049, ¶ 46, 110 N.M. 76, 792 P.2d

 2 408 (acknowledging the rule that requires lesser offense be vacated in the event that

 3 two convictions impose impermissible multiple punishments)); see also State v.

 4 Duran, 1969-NMCA-048, ¶ 11, 80 N.M. 406, 456 P.2d 880 (acknowledging that

 5 battery is included within, and therefore suspended by, the offense of aggravated

 6 battery).

 7 III.     CONCLUSION

 8   {17}   Defendant’s proffer of UJI 14-252 adequately alerted the district court to his

 9 causation theory of defense, and as such, preserved the issue for appellate review, but

10 Defendant’s withdrawal from the proffer constitutes a waiver of the instruction, and

11 no evidence shows that the district court either refused or denied the instruction,

12 which was also unsupported by the evidence. There was no error attending the fact

13 that UJI 14-252 was not given. The conduct giving rise to Defendant’s aggravated

14 battery conviction is distinguishable from the conduct that gave rise to the second

15 degree murder conviction. Accordingly, we affirm Defendant’s convictions for second

16 degree      murder   and   aggravated    battery.   We    remand    for   vacation   of

17 Defendant’s conviction for misdemeanor battery as violative of double jeopardy.

18   {18}   IT IS SO ORDERED.

19                                                 ______________________________
20                                                 RODERICK T. KENNEDY, Judge

                                              12
1 WE CONCUR:


2 _________________________________
3 JONATHAN B. SUTIN, Judge


4 _________________________________
5 LINDA M. VANZI, Judge




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