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

 2 Opinion Number: _____________

 3 Filing Date: MARCH 6, 2019

 4 No. A-1-CA-36122

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 MILO BENALLY,

 9         Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
11 John A. Dean Jr., District Judge

12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   Walter M. Hart III, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17 Bennett J. Baur, Chief Public Defender
18 Nina Lalevic, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant
 1                                        OPINION

 2 HANISEE, Judge.

 3   {1}   Defendant appeals from his convictions for two counts of possession of a

 4 deadly weapon by a prisoner in violation of NMSA 1978, Section 30-22-16 (1986),

 5 for which he was sentenced to consecutive nine-year terms, or a total of eighteen

 6 years’ incarceration. 1 He contends that neither conviction was supported by

 7 substantial evidence and that the separate convictions violate his right to be free

 8 from double jeopardy. We reject Defendant’s challenge to the legal sufficiency of

 9 the evidence, but agree that the two convictions violate the prohibition against

10 double jeopardy.

11 BACKGROUND

12   {2}   Prison staff received information from an inmate that prompted a

13 “shakedown” of the particular area of the prison where Defendant was housed.

14 This entailed the systematic removal of inmates and an ensuing search for

15 contraband, including the bunk and shower areas of the “pod” that was the subject

16 of concern. The area searched by prison staff was an open, dormitory-style space

17 with approximately six to eight recessed bunk units, each containing about six

18 bunks.


           1
            Defendant also received an eight-year habitual offender enhancement for
     each count of conviction, resulting in a total prison sentence of thirty-four years for
     the two possession charges.
 1   {3}   Defendant slept on the bottom mattress of a three-stack bunk, with the

 2 middle bunk being vacant. In Defendant’s bunk area were pieces of legal

 3 paperwork, mail, and other items that bore only Defendant’s name. On an “L”

 4 shaped support bar of the vacant, middle bunk at the top of Defendant’s bunk area,

 5 prison staff found a shaving razor with a playing card folded around it to form a

 6 handle (razor weapon). Upon discovering the razor weapon, prison staff removed

 7 the mattress from Defendant’s bunk and noticed a four- to five-inch slit in its side.

 8 They cut open the mattress and found a sharpened piece of the end of a plastic mop

 9 handle (mop weapon) concealed within. Approximately eighty feet away in the

10 shower area of the pod, prison staff next found orange plastic shavings that

11 matched the end of a mop handle found in a shower stall and similar residue

12 ground into the concrete lip of the shower pan. After checking a utility closet that

13 contained items used by inmates to clean their cells, prison staff also determined

14 that an end to one of the plastic mop handles had been removed.

15   {4}   Upon discovery of the two makeshift weapons, Deputy Jason Sherman

16 spoke with Defendant but did not inform him of any specifics associated with the

17 discovery of the weapons. Deputy Sherman told Defendant only that he wanted to

18 “speak with him about the incident at the jail today.” During the conversation,

19 Defendant expressed feelings of “hate and anger” toward a particular inmate and

20 stated that he wanted to “cut that guy’s head off.” Obliquely referring to what was

                                             2
 1 found during the prison search, though not identifying any specific item or object

 2 by name, Defendant also stated, “Check this out, Sherman. What if that thing is

 3 mine?” Defendant went on to say that (1) the prison staff should be glad they found

 4 what they were looking for; (2) had he been asked, he simply would have told the

 5 prison staff to “pull all the mattresses and that would have been the end of it”; and

 6 (3) some things “could have gone down, but that God was looking out” and pulled

 7 Defendant through the situation before he “lost it” and “something . . . [went]

 8 down.” Despite these statements, when asked to admit the weapons were his,

 9 Defendant declared, “I don’t believe in statements because I could lie and say it

10 ain’t mine and be lying out my ass and still get charged. Or I could say, ‘Yes, it’s

11 mine,’ and still get charged with it.”

12   {5}   Defendant was charged with two counts of possession of a deadly weapon or

13 explosive by a prisoner, contrary to Section 30-22-16. At trial, Defendant testified

14 that the razor and mop weapons were not his and he did not know what Deputy

15 Sherman was referring to during their conversation following the discovery of the

16 weapons. The jury returned guilty verdicts on both counts.

17 DISCUSSION

18 I.      Sufficiency of the Evidence

19   {6}   Defendant argues that his convictions are not supported by substantial

20 evidence. Specifically, he contends that because “[t]he weapons in this case were

                                             3
 1 accessible to anyone in the pod[,] every inmate in the pod could have exercised

 2 control over them[,]” thus precluding a finding that Defendant, and not any other

 3 inmate, possessed the weapons.

 4   {7}   “To determine whether the evidence presented was sufficient to sustain the

 5 verdict, we must decide whether substantial evidence of either a direct or

 6 circumstantial nature exists to support a verdict of guilty beyond a reasonable

 7 doubt with respect to every element essential to a conviction.” State v. Brietag,

 8 1989-NMCA-019, ¶ 9, 108 N.M. 368, 772 P.2d 898. Substantial evidence consists

 9 of relevant evidence that a reasonable mind might accept as adequate to support a

10 conclusion. See State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d

11 661. We view the evidence in the light most favorable to the verdict, “indulging all

12 reasonable inferences and resolving all conflicts in the evidence in favor of the

13 verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d

14 176. We disregard all evidence and inferences that support a different result. See

15 State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “We do not

16 reweigh the evidence and may not substitute our judgment for that of the fact[-

17 ]finder, so long as there is sufficient evidence to support the verdict.” Brietag,

18 1989-NMCA-019, ¶ 9.

19   {8}   In it is entirety Section 30-22-16 provides:

20               Possession of deadly weapon or explosive by prisoner in lawful
21         custody consists of any inmate of a penal institution, reformatory, jail
                                              4
 1         or prison farm or ranch possessing any deadly weapon or explosive
 2         substance.

 3               Whoever commits possession of deadly weapon or explosive by
 4         prisoner is guilty of a second degree felony.

 5 The only element at issue in this appeal is the statutory requirement that the

 6 forbidden weapons at issue were possessed by Defendant. Because the weapons

 7 were not found on Defendant’s person but were discovered concealed above his

 8 bunk and within his mattress, this case turns on constructive, not actual,

 9 possession. See State v. Barber, 2004-NMSC-019, ¶ 22, 135 N.M. 621, 92 P.3d

10 633 (describing the differences between actual and constructive possession and

11 explaining that “[w]hen actual physical control cannot be directly proven,

12 constructive possession is a legal fiction used to expand possession and include

13 those cases where the inference that there has been possession at one time is

14 exceedingly strong” (internal quotation marks and citation omitted)).

15   {9}   “Constructive possession exists when the accused has knowledge of [the

16 prohibited items] and exercises control over them.” State v. Phillips, 2000-NMCA-

17 028, ¶ 8, 128 N.M. 777, 999 P.2d 421. While “the mere presence of the contraband

18 is not enough to support an inference of constructive possession[,]” id., a person

19 can be convicted of possession even “without proof that he [or she] was the

20 exclusive occupant” of the area where the contraband was located. State v. Muniz,

21 1990-NMCA-105, ¶ 15, 110 N.M. 799, 800 P.2d 734. When exclusive control is at

                                            5
 1 issue, “[a]dditional circumstances or incriminating statements are required.”

 2 Phillips, 2000-NMCA-028, ¶ 8. “The accused’s own conduct may afford sufficient

 3 additional circumstances for constructive possession.” Id. We “must be able to

 4 articulate a reasonable analysis that the fact-finder might have used to determine

 5 knowledge and control.” State v. Garcia, 2005-NMSC-017, ¶ 13, 138 N.M. 1, 116

 6 P.3d 72 (alteration, internal quotation marks, and citation omitted).

 7   {10}   Based on the evidence at trial, we conclude that the jury could have

 8 reasonably inferred that Defendant had knowledge of and control over both

 9 weapons. To begin, numerous statements were attributed to Defendant that the jury

10 could have taken as evidence that Defendant had knowledge of the weapons. Even

11 though Deputy Sherman did not inform Defendant of the specific items found by

12 prison staff, Defendant posed a question to the deputy—“Check this out, Sherman.

13 What if that thing was mine?”—from which, in context, the jury could reasonably

14 infer that Defendant had knowledge of the contraband found, i.e., the weapons

15 hidden in the bottom bunk area. Significant to our analysis are Defendant’s

16 expression of hatred and anger toward another inmate, his acknowledgement that

17 he wanted to do harm to that person, and his stated appreciation that prison staff

18 conducted the search when they did, i.e., before Defendant “lost it” and

19 “something . . . [went] down.” These statements, coupled with Defendant’s

20 acknowledgement that had prison staff asked, he would have told them to “pull all

                                             6
 1 the mattresses and that would have been the end of it[,]” provided sufficient

 2 evidence from which the jury could infer that Defendant had knowledge of the

 3 weapons. See State v. Jimenez, 2017-NMCA-039, ¶ 48, 392 P.3d 668 (holding that

 4 the state can prove knowledge through circumstantial evidence demonstrating “that

 5 the defendant knows of the presence and character of the item possessed” (internal

 6 quotation marks and citation omitted)).

 7   {11}   Further, and with respect to the essential element of control, prison staff

 8 discovered numerous items bearing Defendant’s name in the bottom bunk where

 9 the weapons were discovered, supporting the conclusion that the bunk was, indeed,

10 Defendant’s. Additionally, both weapons were easily accessible to—and, indeed,

11 only within arm’s reach of—the person occupying that bunk, i.e., Defendant. See

12 Barber, 2004-NMSC-019, ¶ 27 (providing that “[e]vidence of control includes the

13 power to produce or dispose of” the contraband). This takes on added import in

14 light of the testimony elicited from a fellow inmate indicating that if one inmate

15 had an issue with another inmate, the first inmate was likely to keep a weapon in

16 his mattress for easy access.

17   {12}   Because there is evidence from which the jury could reasonably infer that

18 Defendant had knowledge of and control over the weapons, we conclude that

19 Defendant’s convictions are supported by substantial evidence.

20 II.      Double Jeopardy

                                             7
 1   {13}   Defendant contends that his convictions violate his right to be free from

 2 double jeopardy. Whether multiple convictions violate the prohibition against

 3 double jeopardy involves “a constitutional question of law which we review de

 4 novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. “The Double

 5 Jeopardy Clause protects criminal defendants against multiple punishments for the

 6 same offense.” State v. Bernard, 2015-NMCA-089, ¶ 15, 355 P.3d 831 (alteration,

 7 internal quotation marks, and citation omitted). There are two types of “multiple

 8 punishments” cases: “double description” cases, “in which a defendant’s single

 9 course of conduct results in multiple charges under different criminal statutes,” and

10 “unit-of-prosecution” cases, “in which a defendant faces multiple charges under

11 the same criminal statute for the same conduct.” Id. ¶ 16. This is a unit-of-

12 prosecution case.

13   {14}   In unit-of-prosecution cases, the “relevant inquiry . . . is whether the

14 [L]egislature intended punishment for the entire course of conduct or for each

15 discrete act.” Swafford v. State, 1991–NMSC–043, ¶ 8, 112 N.M. 3, 810 P.2d

16 1223. To discern the Legislature’s intent, we apply a two-step analysis. See

17 Bernard, 2015-NMCA-089, ¶ 17. “First, we review the statutory language for

18 guidance on the unit of prosecution.” State v. Bernal, 2006-NMSC-050, ¶ 14, 140

19 N.M. 644, 146 P.3d 289. If the plain language of the statute is unclear or

20 ambiguous, “we move to the second step, in which we determine whether a

                                             8
 1 defendant’s acts are separated by sufficient ‘indicia of distinctness’ to justify

 2 multiple punishments under the same statute.” Id. If the second step of the analysis

 3 does not demonstrate sufficient distinctions between the acts, we apply the rule of

 4 lenity and presume that the Legislature did not intend to impose multiple

 5 punishments where the acts are not sufficiently distinct. See State v. Tidey, 2018-

 6 NMCA-014, ¶ 16, 409 P.3d 1019 (explaining that “the rule of lenity favors a single

 7 unit of prosecution and disfavors multiple units of prosecution” (alterations,

 8 internal quotation marks, and citation omitted)); Bernard, 2015-NMCA-089, ¶ 17

 9 (explaining that “[t]he rule of lenity requires that we interpret the statute in the

10 defendant’s favor by invoking the presumption that the Legislature did not intend

11 to create separately punishable offenses”).

12 The Unit of Prosecution in Cases Involving Crimes of Possession

13   {15}   As our Supreme Court recently observed, “the unit of prosecution defines

14 how many offenses the defendant has committed.” State v. Ramirez, 2018-NMSC-

15 003, ¶ 46, 409 P.3d 902 (internal quotation marks and citation omitted). Ordinarily,

16 the unit of prosecution is defined by “the actus reus, the physical conduct of the

17 defendant.” Id. (internal quotation marks and citation omitted). However, when it

18 comes to possession-based crimes, our jurisprudence suggests the unit of

19 prosecution may be defined in two ways: (1) by the physical conduct of the

20 defendant—i.e., the act of possessing contraband as of a specific point in time—or

                                            9
 1 (2) by the individual items possessed. Compare State v. Olsson, 2014-NMSC-012,

 2 ¶¶ 3, 47, 324 P.3d 1230 (considering whether possession of multiple, distinct

 3 images of child pornography were separately punishable acts or “one unitary act of

 4 possession[,]” and concluding that the defendants could “only be charged with one

 5 count of possession”), and Tidey, 2018-NMCA-014, ¶¶ 9, 15 (applying a unit-of-

 6 prosecution analysis to determine whether the simultaneous possession of two

 7 different types of drug paraphernalia constituted “one unitary act” or separately

 8 punishable acts, and concluding that possession of two items of contraband was a

 9 single punishable act), with Bernard, 2015-NMCA-089, ¶¶ 16, 31 (considering

10 whether the defendant’s possession of four stolen vehicles “constitutes a single

11 course of conduct that is punishable as only one violation” and concluding that the

12 defendant could be punished separately for each stolen vehicle he possessed). The

13 recent cases cited above, addressing double jeopardy challenges to multiple

14 convictions under possession statutes, have all concluded that the statute under

15 consideration was ambiguous as to the unit of prosecution. See Olsson, 2014-

16 NMSC-012, ¶ 23 (concluding that the plain meaning as to the proper unit of

17 prosecution under the possession of child pornography statute, NMSA 1978, § 30-

18 6A-3 (2016), is ambiguous); Tidey, 2018-NMCA-014, ¶ 10 (same with respect to

19 the possession of drug paraphernalia statute, NMSA 1978, § 30-31-25.1 (2001));




                                           10
1 Bernard, 2015-NMCA-089, ¶¶ 18-19 (same with respect to the possession of a

2 stolen vehicle statute, NMSA 1978, § 30-16D-4 (2009)).

3




                                        11
 1 Section 30-22-16 Is Ambiguous as to the Applicable Unit of Prosecution

 2   {16}   Here, the State concedes that the plain language of Section 30-22-16 does

 3 not clearly and unambiguously express the applicable unit of prosecution. While

 4 we are not bound by the State’s concession, see State v. Caldwell, 2008-NMCA-

 5 049, ¶ 8, 143 N.M. 792, 182 P.3d 775 (refusing to be bound by the state’s

 6 concession that the defendant’s conduct in that case was unitary and undertaking

 7 its own analysis after noting that “[t]he public interest in criminal appeals does not

 8 permit their disposition by party stipulation” (internal quotation marks and citation

 9 omitted)), we agree that Section 30-22-16 does not plainly define the Legislature’s

10 intended unit of prosecution for violations of that statute.

11   {17}   As noted above, Section 30-22-16 defines the conduct proscribed by its

12 terms in a single sentence: “Possession of deadly weapon or explosive by prisoner

13 in lawful custody consists of any inmate of a penal institution . . . possessing any

14 deadly weapon or explosive substance.” Id. As with other possession-based

15 statutes, Section 30-22-16 is facially ambiguous as to the unit of prosecution

16 because it can be construed as intending either a single punishment based on the

17 actus reus of “possession,” or instead multiple punishments based on each

18 individual deadly weapon possessed. Cf. Bernard, 2015-NMCA-089, ¶¶ 18-19

19 (concluding that the statute criminalizing possession of a stolen vehicle was

20 ambiguous where the statutory language did not “provide clear guidance as to

                                             12
 1 whether the specific type of [item possessed] may constitute the proper unit of

 2 prosecution for multiple violations” and was “silent as to whether the number of

 3 [items] unlawfully possessed by a defendant may be charged as separate

 4 offenses”). Concluding that Section 30-22-16 is ambiguous as to the intended unit

 5 of prosecution, we turn next to determining whether, based upon the facts of this

 6 case, Defendant’s conduct in possessing the razor weapon and the mop weapon “is

 7 better characterized as one unitary act, or multiple, distinct acts, consistent with

 8 legislative intent.” Tidey, 2018-NMCA-014, ¶ 9 (internal quotation marks and

 9 citation omitted).

10 “Indicia of Distinctness” Analysis

11   {18}   To determine whether separate convictions are justified under Section 30-

12 22-16 for each of the weapons found in Defendant’s possession, we consider

13 whether the convictions were supported by sufficient indicia of distinctness. We

14 may look to “time and space considerations” as well as the “quality and nature of

15 the acts, or the objects or results involved.” Tidey, 2018-NMCA-014, ¶ 11 (internal

16 quotation marks and citation omitted).

17   {19}   As to time and space considerations, the State argues that “the evidence

18 demonstrates that Defendant’s possession of each weapon commenced at a

19 different time—at the distinct moments when Defendant created each weapon[,]”

20 thereby allowing separate punishment for “distinct and separate[] . . . violations of

                                            13
 1 [Section] 30-22-16.” Yet the State fails to point to anything in the record

 2 establishing—or even supporting the inference—that it was Defendant who created

 3 either of the weapons. Granted, Daniel Webb, an officer at the detention center,

 4 testified that he found evidence in a shower stall, some eighty feet from

 5 Defendant’s bunk, suggesting that the mop weapon had been crafted there.

 6 However, the State points to no testimony or evidence from which the jury could

 7 reasonably infer that Defendant was the person who created either of the weapons,

 8 nor does our review of the record reveal any such evidence. Moreover, the State

 9 made no claim or showing that the shower area was in Defendant’s exclusive

10 control or that Defendant was seen or admitted to creating either weapon. And

11 while the State points out that Defendant made “incriminating statements” to

12 Deputy Sherman—i.e., “What if that thing is mine?” and “I could lie and say ‘It

13 ain’t mine’ . . . [o]r I could say, ‘Yes, it’s mine’ ”—those statements merely

14 establish that Defendant had knowledge of the existence of a weapon or weapons,

15 not that he created either of the weapons later found in his possession. In the

16 absence of any such evidence, we reject the State’s unsupported contention that

17 Defendant’s possession of each weapon was separated in time, thereby allowing

18 separate punishments based on separate acts. See Chan v. Montoya, 2011-NMCA-

19 072, ¶ 9, 150 N.M. 44, 256 P.3d 987 (stating that “[t]he mere assertions and

20 arguments of counsel are not evidence” (internal quotation marks and citation

                                          14
 1 omitted)); see also State v. Dominguez, 2014-NMCA-064, ¶ 26, 327 P.3d 1092

 2 (“[W]e will not search the record to find facts to support [an] argument.”).

 3   {20}   With respect to space considerations, it bears emphasis that while the

 4 weapons were found in two different places in Defendant’s bunk area—the razor

 5 weapon in the upper support beam above Defendant’s sleeping area and the mop

 6 weapon inside Defendant’s mattress—both were discovered near one another

 7 within Defendant’s limited bunk space. That the weapons were secreted and found

 8 in separate hiding places each within an arm’s-length of the other does not reflect

 9 possessory conduct sufficiently distinct in nature to support multiple punishments.

10 See Bernard, 2015-NMCA-089, ¶ 27 (concluding that time and space

11 considerations failed to establish the distinctness of the defendant’s acts of

12 possessing four stolen vehicles even where there was evidence that the defendant

13 may have possessed certain vehicles at different times and in different locations).

14 Indeed, the absence of distinct acts suggested by the weapons’ proximity to one

15 another is reflected in both the fact that they were found during the same search

16 and that the discovery led to identical jury instructions with only the name of the

17 weapon differing. See Tidey, 2018-NMCA-014, ¶ 13 (concluding that there was

18 “an insignificant indicia of distinctness” supporting separate punishments where

19 separate items of drug paraphernalia were “simultaneously found” and the jury

20 received the same instruction as to both counts of possession); Bernard, 2015-

                                            15
 1 NMCA-089, ¶ 27 (noting that the four stolen vehicles were recovered “from the

 2 same location” and that the jury “was not instructed to consider whether [the

 3 d]efendant possessed the vehicles at separate times and locations”). Thus, we agree

 4 with Defendant that, based on the evidence adduced at trial, the conduct underlying

 5 the two possession charges was the single act of possessing two different weapons

 6 at the same time, and that neither time nor space considerations support multiple

 7 punishments here.

 8   {21}   We next consider whether the objects and results involved in this case

 9 supply the necessary indicia of distinctness to allow the conclusion that the

10 Legislature intended a prisoner in Defendant’s position to be punished separately

11 for each weapon possessed. See Bernard, 2015-NMCA-089, ¶ 26 (“If a case cannot

12 be resolved from time and space considerations, then resort must be had to the

13 quality and nature of the acts or to the objects and results involved.” (internal

14 quotation marks and citation omitted)). Turning first to the objects involved, the

15 two makeshift weapons found to be in Defendant’s possession, the razor weapon

16 and the mop weapon, are more similar than different. The fact that one weapon

17 was designed to inflict harm through slashing and the other designed to injure

18 through stabbing does not provide the differentiation necessary to support separate

19 convictions in this case. That is because our Legislature has defined “deadly

20 weapon” as including, inter alia,

                                           16
 1        any weapon which is capable of producing death or great bodily harm,
 2        including but not restricted to any types of daggers, brass knuckles,
 3        switchblade knives, bowie knives, poniards, butcher knives, dirk
 4        knives and all such weapons with which dangerous cuts can be given,
 5        or with which dangerous thrusts can be inflicted, including
 6        swordcanes, and any kind of sharp pointed canes, also slingshots,
 7        slung shots, bludgeons[.]

 8 NMSA 1978, § 30-1-12(B) (1963) (emphasis added). Indeed, rather than clarifying

 9 whether the Legislature intended separate punishment for possession of each

10 individual weapon meeting the definition of “deadly weapon,” the definition of

11 “deadly weapon” only amplifies the lack of clarity regarding the intended unit of

12 prosecution under Section 30-22-16. Because the razor weapon and the mop

13 weapon each qualify as a “deadly weapon” as that term is defined in the Criminal

14 Code, and there being no other reliable indicators of legislative intent, we conclude

15 that the minor differences in functionality between the two prison-made weapons

16 possessed by Defendant does not justify convicting him of separate counts under

17 Section 30-22-16. See Tidey, 2018-NMCA-014, ¶ 15 (explaining that “[t]he

18 Legislature specifically included a comprehensive list of defined items . . . that

19 constitute drug paraphernalia” and noting that the items at issue in that case—

20 empty baggies and a straw with a burnt end—both fell within the “containers and

21 other objects used” category of drug paraphernalia (internal quotation marks and

22 citation omitted)); cf. Bernard, 2015-NMCA-089, ¶¶ 28-31 (relying on various

23 legislative enactments contained in both the Motor Vehicle Code and the Criminal

                                            17
 1 Code in concluding that there existed sufficiently distinct indicia of “objects and

 2 results” to support multiple punishments).

 3   {22}   Turning next to the results involved, the only “result” of Defendant’s

 4 possession of the razor and mop weapons was the completed act of possession

 5 itself, a violation of Section 30-22-16. Indeed, this is neither a case in which a

 6 further consequence of possession of a deadly weapon by a prisoner materialized—

 7 e.g., where multiple deadly weapons simultaneously possessed are used to inflict

 8 multiple injuries on a victim or separate injuries on multiple victims—nor one in

 9 which the “results involved” bear the evidentiary capacity to supply the necessary

10 indicia of distinctness to support multiple punishments under Section 30-22-16. Cf.

11 Bernal, 2006-NMSC-050, ¶ 20 (concluding that indicia of distinctness supported

12 separate punishment for two attempted robberies where “there were two victims,

13 and most notably, each victim suffered separate and distinct harms at the hands of

14 [the d]efendant”); State v. Baca, 1992-NMSC-055, ¶¶ 1-2, 114 N.M. 668, 845 P.2d

15 762 (involving a case where the prisoner used a “shank” or “crude jail-made knife”

16 to kill another inmate and was convicted of both first degree murder and

17 possession of a deadly weapon by a prisoner). That Defendant admitted to having

18 feelings of “hate and anger” toward a particular inmate and wanting to “cut that

19 guy’s head off” at most supplies evidence of a contemplated and potential “result”

20 of Defendant’s possession. Fortuitously, however, no such result ever occurred

                                           18
 1 thanks to the diligence of prison personnel. Thus, on the facts of this case, the

 2 “result” of Defendant’s prohibited conduct—i.e., the completed act of possessing

 3 deadly weapons—also fails to establish sufficient indicia of distinctness to justify

 4 multiple punishments.

 5   {23}   As a final matter, we briefly address the State’s argument centering on the

 6 “policy considerations” underlying and the “interests protected” by Section 30-22-

 7 16, an argument the State advances as part of its “objects and results” discussion

 8 and one which reflects a misunderstanding of the focus of this aspect of a unit-of-

 9 prosecution analysis. The State argues that the statute evinces the Legislature’s

10 “clear and self-evident policy . . . to prohibit and minimize the availability of

11 deadly weapons to prisoners in a confined place of incarceration.” According to the

12 State, “the Legislature must have intended that there be as few deadly weapons as

13 possible available to inmates.”2 With this much, we agree. See Baca, 1992-NMSC-

14 055, ¶ 16 (describing a violation of Section 30-22-16 as “a crime closely

15 approaching a strict liability crime” and noting that the purpose of the statute “is to

16 protect inmates and officers from assaults with dangerous weapons perpetrated by

            2
             The State cites Ramirez, 2018-NMSC-003, ¶ 54, in support of this
     contention. Notably, however, Ramirez’s discussion of “[p]olicy considerations”
     and what the Legislature “must have intended” informed our Supreme Court’s
     interpretation of the statute there at issue under the first step of a unit-of-
     prosecution analysis, i.e., in resolving whether the statute was ambiguous as to the
     unit of prosecution, not under step two’s “indicia of distinctness” analysis, which
     focuses on whether the unit of prosecution is discernible vis-à-vis the specific facts
     of the case.
                                               19
 1 armed prisoners”). However, the relevant inquiry does not involve a determination

 2 of the legislative purpose and intent in enacting the statute itself, but rather whether

 3 the Legislature intended for multiple punishments to be imposed under the specific

 4 facts of a given case. As previously discussed, we cannot say that that there are

 5 sufficient indicia of distinctness to support Defendant’s separate convictions under

 6 Section 30-22-16. Applying the rule of lenity, we hold that Defendant’s

 7 convictions for simultaneously possessing two deadly weapons violate his right to

 8 be free from double jeopardy. We, therefore, reverse with instructions to the

 9 district court to vacate one of Defendant’s convictions.

10 CONCLUSION

11   {24}   We conclude that sufficient evidence supports Defendant’s convictions

12 under Section 30-22-16. However, because we hold that those convictions violate

13 the prohibition against double jeopardy, we remand to the district court to vacate

14 one of the convictions.

15   {25}   IT IS SO ORDERED.


16                                                 ______________________________
17                                                 J. MILES HANISEE, Judge

18 WE CONCUR:


19 ____________________________
20 MEGAN P. DUFFY, Judge

                                              20
1 ____________________________________
2 BRIANNA H. ZAMORA, Judge




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