 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                     NO. 28,930

 5 JEREMY MUMAU,

 6        Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Stephen Bridgforth, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, New Mexico
11   Max Shepherd, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Hugh W. Dangler, Chief Public Defender
15 Allison H. Jaramillo, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant



18                              MEMORANDUM OPINION

19 CASTILLO, Judge.

20        Defendant appeals his convictions for aggravated assault against a household
 1 member and battery against a household member and contends that the enhancement

 2 of his sentence as a habitual offender needs to be set aside because it was based on

 3 inadmissible evidence. We proposed to affirm Defendant’s convictions but to reverse

 4 the habitual offender enhancement in a notice of proposed summary disposition.

 5 Defendant and the State have filed timely memoranda in opposition. Remaining

 6 unpersuaded by the memoranda filed by the parties, we affirm Defendant’s

 7 convictions and reverse and remand the habitual offender enhancement portion of

 8 Defendant’s sentence.

 9 Double Jeopardy

10       Defendant contends that his convictions for aggravated assault against a

11 household member and battery against a household member violate his constitutional

12 right to be free from double jeopardy. [DMIO 1-5] We disagree.

13       We apply a de novo standard of review to the constitutional question of whether

14 there has been a double jeopardy violation. See State v. Andazola, 2003-NMCA-146,

15 ¶ 14, 134 N.M. 710, 82 P.3d 77. Defendant was convicted of aggravated battery

16 against a household battery with a deadly weapon pursuant to NMSA 1978, Section

17 30-3-13(A) (1995), and battery against a household member pursuant to NMSA 1978,

18 Section 30-3-15 (2008). [RP 113-118] The evidence shows that the victim,

19 Defendant’s mother, testified that Defendant came home in the morning and appeared


                                            2
 1 to be high on drugs. [DMIO 1] When the victim tried to question Defendant, he

 2 grabbed a circular saw and grabbed the victim by the back of the neck and hair.

 3 [DMIO 1-2] He raised the saw up to her face and asked, “[H]ow would you like

 4 this?” [DMIO 2] The victim testified that she was afraid Defendant might hit her

 5 with the saw. [DMIO 2]

 6        Defendant claims that both his convictions are based on the same conduct,

 7 grabbing the victim by the neck and threatening her with a circular saw. [DMIO 3]

 8 He then argues that, since his conduct was unitary, his conviction and sentence for

 9 both offenses violates the prohibition against double jeopardy. [DMIO 3-5] We

10 disagree.

11        Defendant is being charged with crimes under two different statutes. In

12 determining whether the two charges should merge or one charge be dismissed to

13 avoid a double jeopardy violation, we undertake a two-part test. See State v.

14 Carrasco, 1997-NMSC-047, ¶ 22, 124 N.M. 64, 946 P.2d 1075. First, we ask whether

15 the conduct underlying the offenses is unitary, i.e., whether the charges under both

16 statutes are based upon the same conduct. Id. If so, we then ask “whether the

17 Legislature intended to impose multiple punishments for the unitary conduct.” Id.

18        In this case, we presume without deciding that Defendant is correct that his

19 conduct was unitary because his actions in grabbing the victim’s head and neck and


                                            3
 1 threatening her with the circular saw occurred at the same time and in the same place.

 2 [DMIO 3-4] However, contrary to Defendant’s contention, our review of the

 3 aggravated assault against a household member and battery against a household

 4 member statutes indicate that the Legislature intended to impose multiple punishments

 5 for those two crimes. [DMIO 4] See State v. Cowden, 1996-NMCA-051, ¶¶ 5-14,

 6 121 N.M. 703, 917 P.2d 972 (holding that the defendant’s convictions for assault with

 7 intent to commit a violent felony and aggravated battery with a deadly weapon did not

 8 violate double jeopardy because the Legislature intended to separately punish these

 9 crimes).

10        To convict Defendant of aggravated assault against a household member, the

11 State had to prove beyond a reasonable doubt that: (1) Defendant threatened the victim

12 with a circular saw which caused her to believe Defendant was about to intrude on her

13 bodily integrity or personal safety by touching or applying force to her in a rude,

14 insolent or angry manner; (2) a reasonable person in the same circumstances as the

15 victim would have had the same belief; (3) Defendant used a deadly weapon; and (4)

16 the victim was a household member. [RP 76; DMIO 4] Cf. UJI 14-305 NMRA. To

17 convict Defendant of battery against a household member, the State had to prove that

18 (1) Defendant intentionally touched or applied force to the victim by “hitting,

19 grabbing, pushing or pulling” her; (2) Defendant “acted in a rude, insolent or angry


                                             4
 1 manner;” and (3) the victim was a household member. [RP 80] Cf. UJI 14-320

 2 NMRA. Review of the essential elements of these two crimes shows that “each crime

 3 contains an element that the other does not[; therefore,] we presume that the

 4 legislature intended to punish these offenses separately.” Cowden, 1996-NMCA-051,

 5 ¶ 7.

 6        Defendant contends that the crime of aggravated assault against a household

 7 member is subsumed in the elements of the crime of battery against a household

 8 member. [DMIO 5] He cites to the statutory language defining aggravated assault

 9 against a household member as “unlawfully assaulting or striking at a household

10 member with a deadly weapon” and battery against a household member as “unlawful,

11 intentional touching or application of force . . . when done in a rude, insolvent or

12 angry manner.” [DMIO 4] See §§ 30-3-13(A)(1) and -15. We are unpersuaded.

13        The aggravated assault and battery statutes contain alternatives which may

14 overlap. However, “we focus on the legal theory of the case and disregard any

15 inapplicable statutory elements.” Cowden, 1996-NMCA-051, ¶ 7; see Carrasco,

16 1997-NMSC-047, ¶ 27. In this case, as in Cowden, “each crime requires proof of at

17 least one element that the other does not.” Cowden, 1996-NMCA-051, ¶ 10. The

18 aggravated assault charge required proof that the victim believed Defendant was about

19 to intrude on her bodily integrity or personal safety and that Defendant used a deadly


                                             5
 1 weapon. [RP 76] The battery charge required proof that Defendant hit, grabbed,

 2 pushed, or pulled the victim. [RP 80]

 3        Finally, we note that the two crimes address different social evils. Id. ¶ 12

 4 (stating that, in determining if there is a double jeopardy violation, we “examine the

 5 particular social evil addressed by each statute”). Assault is proscribed because it puts

 6 the victim in fear while battery in this case is an actual physical injury. Id. (stating

 7 that the harm to the victim protected by the assault statutes is mental harm, i.e., putting

 8 persons in fear, while the harm protected by the battery statutes is physical harm, i.e.,

 9 physical injury to persons). Therefore, we affirm Defendant’s convictions and

10 punishment for both crimes. See id. ¶ 10.

11 Defendant’s Sentence as an Habitual Offender

12        Defendant challenges the admissibility and the sufficiency of the evidence

13 relied upon by the State in the course of the habitual offender proceedings. [DS 7]

14 In our notice of proposed summary disposition, we proposed to reverse on this issue.

15        In order to obtain a sentencing enhancement pursuant to the Habitual Offender

16 Act, NMSA 1978, §§ 31-18-17 to -20 (1977, as amended through 2003), the State

17 must prove by a preponderance of evidence that the defendant has prior convictions.

18 See State v. Smith, 2000-NMSC-005, ¶¶ 9, 11, 128 N.M. 588, 995 P.2d 1030. The

19 State bears the initial burden of establishing a prima facie case of a defendant’s


                                                6
 1 previous convictions; the defendant is then entitled to bring forth contrary evidence.

 2 See State v. Sedillo, 2001-NMCA-001, ¶ 5, 130 N.M. 98, 18 P.3d 1051. “In

 3 determining whether the evidence supports a criminal charge, this Court views the

 4 evidence in the light most favorable to the State.” Id. ¶ 6. The State ultimately bears

 5 the burden of persuasion. See State v. O’Neil, 91 N.M. 727, 729, 580 P.2d 495, 497

 6 (Ct. App. 1978).

 7        In this case, the State sought to enhance Defendant’s sentence as an habitual

 8 offender by presenting a copy of a prior Texas conviction for aggravated assault. [RP

 9 105, 134] Defendant objected because the State failed to submit a certified copy and

10 could not confirm the authenticity of the document. [SMIO 2; DS 5-6] In addition

11 to the copy of the conviction, the State introduced the testimony of Defendant’s

12 mother regarding the Texas conviction, but she could not remember the exact date of

13 the conviction nor the specific crime of which Defendant was convicted. [SMIO 3]

14 In our notice of proposed summary disposition, we proposed to hold that the district

15 court erred in enhancing Defendant’s sentence because the State failed to establish the

16 prior conviction by a preponderance of the evidence.

17        As discussed in our notice, the copy of the prior conviction was inadmissible

18 because it was not certified. See Rule 11-902(D) NMRA (providing that certified

19 copies of judgments and sentences are self-authenticating and admissible); State v.


                                              7
 1 Griffin, 108 N.M. 55, 59, 766 P.2d 315, 319 (Ct. App. 1988) (holding that the district

 2 court did not abuse its discretion in admitting copies of the defendant’s prior

 3 convictions because all of the exhibits were copies of public documents and they were

 4 self-authenticating under Rule 11-902 because they were certified by the custodian of

 5 the record in compliance with Rule 11-902(A), (B), or (C)). In addition, the State has

 6 failed to rebut our observation that it did not present extrinsic evidence to support

 7 authentication.      Cf. State ex rel. Human Services Dep’t v. McDermott,

 8 1996-NMCA-048, ¶ 13, 121 N.M. 609, 916 P.2d 228 (noting that, pursuant to Rule

 9 11-901 NMRA, judicial records may be admissible even if they are not certified and

10 stating that “[a]ll that is necessary [for admission of judicial records] is the testimony

11 of a witness who knows that the documents in fact came from the legal custodian of

12 the document”).

13        In its memorandum in opposition, the State explains that the prosecutor had

14 both a certified copy of the Texas conviction and a Xerox copy, but states that he

15 brought the wrong copy to court. [SMIO 2] We are unconvinced that the failure to

16 bring the certified copy renders the non-certified copy admissible in the absence of

17 some testimony as to its authenticity. Cf. State v. Ellis, 95 N.M. 427, 428, 622 P.2d

18 1047, 1048 (Ct. App. 1980) (recognizing that a public record is only admissible if it

19 is self-authenticating or authenticated pursuant to Rule 11-901); State v. Gallegos, 91


                                               8
 1 N.M. 107, 111, 570 P.2d 938, 942 (Ct. App. 1977) (holding that copies of verdicts in

 2 prior criminal cases involving the defendant were properly admitted when “[e]ach

 3 document was authenticated under . . . Rule [11-]902”). In this case, the document

 4 was not certified or self-authenticating and no one with knowledge testified as to its

 5 authenticity. See Rules 11-901 and -902.

 6        Other than the inadmissible copy of the Texas conviction, the only evidence

 7 introduced in support of Defendant’s prior conviction was his mother’s testimony

 8 which was vague as to the type of prior conviction or the date of the conviction.

 9 [SMIO 2-3; DS 5] We disagree that the mother’s testimony was “particularly

10 credible” or reliable given that she was the victim of the crime for which Defendant

11 was being sentenced. [SMIO 2] Therefore, the information provided by the State was

12 insufficient to prove Defendant’s prior conviction by the preponderance of the

13 evidence. Cf. State v. Clements, ___-NMSC ___, ¶¶ 31-32, ___ N.M. ___, ___ P.3d

14 [No. 26,953 (filed May 5, 2009)], (holding that the State failed to make a prima facie

15 showing of the defendant’s prior Texas conviction).

16        Therefore, we reverse the habitual offender portion of Defendant’s sentence and

17 remand for re-sentencing. See State v. Aragon, 116 N.M. 267, 269-72, 861 P.2d 948,

18 950-53 (1993) (holding that “habitual offender proceedings do not involve a

19 determination of guilt of any offense” so double-jeopardy protections generally do not


                                              9
1 apply to such proceedings).

2 CONCLUSION

3       For the foregoing reasons as well as those set forth in our notice of proposed

4 disposition, we affirm Defendant’s convictions. We reverse the sentence enhancement

5 portion of Defendant’s sentence and remand for re-sentencing.

6       IT IS SO ORDERED.



7                                              ________________________________
8                                              CELIA FOY CASTILLO, Judge

9 WE CONCUR:



10 ________________________________
11 CYNTHIA A. FRY, Chief Judge



12 ________________________________
13 LINDA M. VANZI, Judge




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