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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. 32,497

 5 SABINO JAQUES,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Fernando R. Macias, District Judge


 9 Gary K. King, Attorney General
10 Becca Salwin, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee


13   Jorge A. Alvarado, Chief Public Defender
14   Kathleen T. Baldridge, Assistant Appellate Defender
15   Nina Lalevic, Assistant Appellate Defender
16   Santa Fe, NM

17 for Appellant
 1                             MEMORANDUM OPINION

 2 KENNEDY, Chief Judge.

 3   {1}   Sabino Jaques (Defendant) appeals from the district court’s judgment and

 4 sentence entered pursuant to a jury trial, convicting him for misdemeanor battery

 5 against a household member and aggravated battery against a household member with

 6 a deadly weapon. Defendant raises three issues on appeal. First, Defendant contends

 7 that the district court committed fundamental error by failing to include the

 8 unlawfulness element in the jury instructions for his battery charges. Second,

 9 Defendant argues that the State presented insufficient evidence to support either of his

10 battery convictions. Third and last, Defendant argues that his convictions for

11 misdemeanor and aggravated battery against a household member violate the Double

12 Jeopardy Clause because the convictions subjected him to multiple punishments for

13 the same offense. We are not persuaded by any of Defendant’s arguments and affirm.

14 I.      DISCUSSION

15 A.      Missing Unlawfulness Element in Jury Instructions is not Fundamental
16         Error

17   {2}   Conceding that he failed to object below, Defendant contends that it was

18 fundamental error to omit the element of unlawfulness from the jury instructions

19 where the self-defense instruction was given. We agree with Defendant that his

20 objection to the missing unlawfulness element was not preserved below and that he,


                                              2
 1 therefore, must establish fundamental error. See State v. Barber, 2004-NMSC-019,

 2 ¶ 20, 135 N.M. 621, 92 P.3d 633; State v. Cunningham, 2000-NMSC-009, ¶ 11, 128

 3 N.M. 711, 998 P.2d 176. We also agree that our Supreme Court in State v. Sosa held

 4 that “where a defendant raises the defense of self-defense, unlawfulness becomes a

 5 necessary element of the crime charged.” 1997-NMSC-032, ¶ 26, 123 N.M. 564, 943

 6 P.2d 1017 (explaining that “[o]nce the defendant claims that the conduct in question

 7 was lawful, the prosecution must prove unlawfulness beyond a reasonable doubt”).

 8 However, we observe that, even where an element is omitted from the instructions, the

 9 error will not be fundamental where “the jury could not have reached its verdict

10 without also finding the element omitted from the instructions.” Barber, 2004-

11 NMSC-019, ¶ 29. “Our task is to determine whether a reasonable juror would have

12 been confused or misdirected by the jury instruction.” Cunningham, 2000-NMSC-

13 009, ¶ 14 (internal quotation marks and citation omitted).

14   {3}   In the present case, the jury instructions for the battery charges did not explain

15 that the jury had to find that Defendant’s actions were unlawful in order to convict

16 him of the batteries and reject his self-defense claim. Nevertheless, the jury was

17 properly instructed on Defendant’s theory of self-defense. See UJI 14-5181 NMRA.

18 The jury instruction states that “[t]he burden is on the state to prove beyond a

19 reasonable doubt that the defendant did not act in self[-]defense. If you have a

20 reasonable doubt as to whether the defendant acted in self[-]defense, you must find

                                               3
 1 the defendant not guilty.” In Cunningham, our Supreme Court held that identical

 2 language properly instructed the jury on self-defense and prevented confusion in a

 3 reasonable juror. 2000-NMSC-009, ¶ 14. Like our Supreme Court in Cunningham,

 4 we hold that, despite the omission of unlawfulness among the elements in the charged

 5 offenses, the separate self-defense instruction properly instructed the jury and required

 6 it to consider whether the State proved that Defendant’s actions were done in self-

 7 defense or were unlawful beyond a reasonable doubt. See id. ¶ 15; Barber, 2004-

 8 NMSC-019, ¶ 29. Accordingly, consistent with our case law, we reject Defendant’s

 9 claim of fundamental error.

10 B.      Sufficient Evidence Was Presented to Support Defendant’s Convictions

11   {4}   “The test for sufficiency of the evidence is whether substantial evidence of

12 either a direct or circumstantial nature exists to support a verdict of guilty beyond a

13 reasonable doubt with respect to every element essential to a conviction.” State v.

14 Riley, 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks

15 and citation omitted), overruled on other grounds by State v. Montoya, 2013-NMSC-

16 020, ¶ 2, 306 P.3d 426. The reviewing court “view[s] the evidence in the light most

17 favorable to the guilty verdict, indulging all reasonable inferences and resolving all

18 conflicts in the evidence in favor of the verdict.” Cunningham, 2000-NMSC-009,

19 ¶ 26. The question for us on appeal is whether the trial court’s “decision is supported

20 by substantial evidence, not whether the [trial] court could have reached a different

                                               4
 1 conclusion.” In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d

 2 318. We emphasize that we do not consider the merit of evidence that may have

 3 supported a different result. See State v. Kersey, 1995-NMSC-054, ¶ 11, 120 N.M.

 4 517, 903 P.2d 828. Substantial evidence is defined as “such relevant evidence as a

 5 reasonable mind might accept as adequate to support a conclusion[.]” State v.

 6 Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation

 7 marks and citation omitted).

 8   {5}   Defendant’s brief-in-chief sets forth the applicable jury instructions against

 9 which the evidence is measured and the testimony from Victim that supports

10 Defendant’s convictions for misdemeanor and aggravated battery of a household

11 member. See State v. Castillo, 2011-NMCA-046, ¶ 24, 149 N.M. 536, 252 P.3d 760

12 (“We measure the sufficiency of the evidence against the jury instructions.”). We see

13 no need to restate that information here. Defendant contends that the evidence is

14 insufficient because his testimony disputed Victim’s account of events. “As an

15 appellate court, however, we are not in a position to judge the credibility or weight of

16 [the d]efendant’s testimony. If it were otherwise, we would become in effect a second

17 jury to determine whether the defendant is guilty.”                State v. Johnson,

18 2004-NMSC-029, ¶ 43, 136 N.M. 348, 98 P.3d 998 (internal quotation marks and

19 citation omitted). Instead, resolving inconsistencies in the testimony, weighing the

20 evidence, and making credibility determinations are for the jury. See State v.

                                              5
 1 Marquez, 2009-NMSC-055, ¶ 17, 147 N.M. 386, 223 P.3d 931 (explaining that “it is

 2 well established that [c]ontrary evidence supporting acquittal does not provide a basis

 3 for reversal because the jury is free to reject [the d]efendant’s version of the facts”

 4 (first alteration in original) (internal quotation marks and citations omitted)),

 5 overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

 6   {6}   Mindful of these considerations and viewing the evidence in the light most

 7 favorable to the verdict, we hold that the evidence was sufficient to support his

 8 convictions for misdemeanor and aggravated battery of a household member because

 9 it showed that Defendant beat Victim, his girlfriend, with whom he lived at the time,

10 on her face with his fists and on her head with a large, heavy flashlight. See State v.

11 Bennett, 2003-NMCA-147, ¶¶ 2, 18-20, 134 N.M. 705, 82 P.3d 72 (rejecting the

12 defendant’s argument that the victim, his live-in girlfriend, was drunk during the

13 incident and thus not credible, and affirming the defendant’s conviction for battery

14 and aggravated battery against a household member based on the victim’s testimony

15 that the defendant hit her on the head with a telephone and a glass bottle). We affirm

16 Defendant’s convictions on these grounds.

17 C.      Defendant’s Convictions do not Violate Double Jeopardy Protections

18   {7}   Defendant contends that his convictions for misdemeanor and aggravated

19 battery against a household member violate the constitutional protections against

20 double jeopardy because they subjected him to multiple punishments for the same

                                              6
 1 offense. The parties dispute whether this double jeopardy, multiple punishment case

 2 is properly characterized as a double-description case or a unit-of-prosecution case.

 3 Because Defendant’s conduct resulted “in multiple convictions under different

 4 statutes[,]” rather than “multiple convictions under the same statute[,]” we agree with

 5 Defendant that this is a double-description case. State v. Swick, 2012-NMSC-018, ¶

 6 10, 279 P.3d 747. Regardless, Defendant’s double jeopardy challenge turns on

 7 whether his conduct underlying both offenses is unitary, which requires us to conduct

 8 “a substantially similar analysis” under the double-description and unit-of-prosecution

 9 inquiries. State v. Bernal, 2006-NMSC-050, ¶ 16, 140 N.M. 644, 146 P.3d 289

10 (noting that double-description cases have adopted Herron v. State, 1991-NMSC-012,

11 111 N.M. 357, 805 P.2d 624, factors from the unit-of-prosecution cases for purposes

12 of determining whether a defendant’s conduct was unitary). “In each case, we attempt

13 to determine, based upon the specific facts of each case, whether a defendant’s activity

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

15 legislative intent.” Bernal, 2006-NMSC-050, ¶ 16.

16   {8}   Our courts have recognized that the factual permutations of each case preclude

17 the usefulness of a “mechanical formula” in determining whether a defendant’s

18 conduct is unitary. Id. Instead, we apply general principles to assist our analysis of

19 whether the defendant’s acts are separated by a “sufficient indicia of distinctness.”

20 State v. DeGraff, 2006-NMSC-011, ¶ 27, 139 N.M. 211, 131 P.3d 61 (internal

                                              7
 1 quotation marks and citation omitted); see Bernal, 2006-NMSC-050, ¶ 16 (stating that

 2 “[the Supreme] Court sought instead to provide ‘general principles’ to aid in the

 3 [unitary conduct] analysis”). “[I]n general terms, [t]ime and space considerations

 4 would help to determine distinctness. If time and space considerations cannot resolve

 5 the case, then a court may look at the quality and nature of the acts, or the objects and

 6 results involved.” Id. ¶ 16 (second alteration in original) (internal quotation marks

 7 and citations omitted). “In our consideration of whether conduct is unitary, we have

 8 looked for an identifiable point at which one of the charged crimes had been

 9 completed and the other not yet committed.” DeGraff, 2006-NMSC-011, ¶ 27. “We

10 have also looked for an event that intervened between the initial use of force and the

11 acts that caused death.” Id.

12   {9}    In the present case, the testimony of Victim about the incident is not particularly

13 detailed or linear about the sequence of events. Viewing all the evidence, however,

14 we can extrapolate from Victim’s testimony and discern distinct acts by Defendant

15 that separately complete the charged crimes of battery and aggravated battery against

16 a household member.

17   {10}   Victim’s testimony indicates that Defendant was shoving and beating her with

18 his fists in the kitchen of her apartment while she was trying to defend herself and

19 leave the apartment to get away from him. The State’s photographic evidence shows

20 that Victim suffered at least one laceration on her face, had a large tear in the front of

                                                 8
 1 her shirt, and appeared bloody and beaten. Detective Jose Higareda testified that the

 2 injuries he observed on Victim’s face were consistent with being punched.

 3   {11}   Victim’s testimony indicates that she was able to get away from Defendant and

 4 go outside. While they were outside, Defendant began beating Victim on the back

 5 right side of her head with a large, heavy flashlight while she was knocked down and

 6 lying on the ground. The photographic evidence and the testimony from Victim and

 7 Detective Higareda indicate that she was badly beaten from the flashlight and suffered

 8 a large, painful laceration to her head that bled substantially. Victim testified that her

 9 neighbors called the police and pulled Defendant away from her. Marc Wood, the

10 neighbor who called 911, saw the end of the incident as it occurred outside and

11 testified that he saw Victim lying on the ground with blood all over her. Defendant

12 was standing over her, and Wood’s brother was pushing Defendant off of her.

13 Detective Higareda’s testimony indicated that his investigation and his observation of

14 Victim and the bloody scene were consistent with her testimony of how, with what

15 objects, and where Defendant had beaten her.

16   {12}   We are persuaded that Defendant’s initial use of force against Victim and

17 shoving and punching her in the face while in the kitchen completed the crime of

18 battery against a household member. See id. ¶ 30 (“While the initial use of force

19 completed the crime of aggravated burglary, the evidence shows that the death was

20 not caused by this initial attack alone.”). Although Victim’s testimony does not

                                               9
 1 specifically describe the time and space attributes surrounding her struggle to defend

 2 herself against Defendant, she explained that she was able to free herself from

 3 Defendant and go outside of the apartment. We agree with the State that Victim’s

 4 success in breaking free from Defendant was an intervening event. See id. (stating the

 5 facts that the defendant used different weapons, and the evidence showed an

 6 intervening struggle during which the victim defended himself, showed that the

 7 underlying conduct supporting aggravated burglary and felony murder were not

 8 unitary); State v. Cooper, 1997-NMSC-058, ¶¶ 60-62, 124 N.M. 277, 949 P.2d 660

 9 (holding that where different deadly weapons were used against the victim, and the

10 victim struggled after the first attack, the struggle was an intervening event that

11 separated the acts of force constituting aggravated battery from the acts of force that

12 caused the victim’s death and constituted murder). This intervening event constituted

13 an identifiable point that separated Defendant’s act of punching and shoving Victim

14 from his subsequent act of beating her in the back of the head with the flashlight. See

15 DeGraff, 2006-NMSC-011, ¶ 27 (explaining that conduct may be non-unitary if there

16 is an “identifiable point at which one of the charged crimes had been completed and

17 the other not yet committed”). Also supporting our conclusion, the latter attack on

18 Victim with the flashlight constituted a qualitatively different use of force with a

19 heavy, deadly object that knocked her on the ground and caused her substantially

20 more harm than did the force Defendant used in the previous attack. See id. ¶ 30;

                                             10
 1 Cooper, 1997-NMSC-058, ¶¶ 60-62; see also Bernal, 2006-NMSC-050, ¶ 16

 2 (explaining that, in addition to time and space considerations, “a court may look at the

 3 quality and nature of the acts, or the objects and results involved” (internal quotation

 4 marks and citation omitted)).

 5   {13}   We are not persuaded by Defendant’s reliance on State v. Garcia, 2009-NMCA-

 6 107, ¶¶ 13-15, 147 N.M. 150, 217 P.3d 1048, or State v. Mares, 1991-NMCA-052, ¶¶

 7 2-4, 26-27, 112 N.M. 193, 812 P.2d 1341. Garcia involved a fight between two

 8 inmates in the same cell, and this Court did not perceive sufficient distinctness in the

 9 defendant’s acts of force, which all occurred close in time, sequence, and space and

10 did not involve any intervening event or weapons. 2009-NMCA-107, ¶¶ 2-4, 13-15.

11 In Mares, this Court perceived no distinct break in the battery upon the victim and no

12 qualitative difference between the defendant’s acts of force. 1991-NMCA-052, ¶¶ 2-

13 4, 26-27.

14   {14}   Because we hold that Defendant’s conduct underlying his convictions for

15 misdemeanor and aggravated battery against a household member was not unitary, we

16 need not proceed further with the double jeopardy inquiry into legislative intent. See

17 DeGraff, 2006-NMSC-011, ¶ 31. Based on the above analysis, we reject Defendant’s

18 double jeopardy challenge.

19 II.      CONCLUSION



                                              11
1   {15}   For the reasons stated in this Opinion, we affirm Defendant’s convictions for

2 misdemeanor battery against a household member and aggravated battery against a

3 household member.

4   {16}   IT IS SO ORDERED.



5                                          ____________________________________
6                                          RODERICK T. KENNEDY, Chief Judge


7 WE CONCUR:



8 _________________________
9 CYNTHIA A. FRY, Judge



10 _________________________
11 MICHAEL E. VIGIL, Judge




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