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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. 32,871

 5 JOSE AGUILAR,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Stan Whitaker, District Judge

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

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender
14 Kathleen T. Baldridge, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 BUSTAMANTE, Judge.
 1   {1}   Defendant, Jose Aguilar, appeals from his convictions for battery upon a police

 2 officer, aggravated battery upon a peace officer, and resisting, evading, or obstructing

 3 an officer. [DS 3, RP 80, 84] We issued a notice proposing to affirm in part and

 4 reverse in part. Defendant filed a memorandum in partial opposition and partial

 5 support. The State filed a response stating it does not oppose our proposed summary

 6 reversal. We remain unpersuaded by Defendant’s arguments and affirm Defendant’s

 7 convictions for aggravated battery upon a peace officer and resisting, evading, or

 8 obstructing an officer. We reverse Defendant’s conviction for battery upon a police

 9 officer and remand for the limited purpose of vacating that conviction.

10 DISCUSSION

11   {2}   Defendant continues to argue that the district court erred in allowing the State

12 to recall Officer Pool to rebut Defendant’s claim of self defense because Officer Pool

13 merely repeated his direct testimony, which is not proper rebuttal evidence. [MIO 3-

14 5] We perceive no abuse of discretion in the district court’s ruling. See State v.

15 Stanley, 2001-NMSC-037, ¶ 39, 131 N.M. 368, 37 P.3d 85 (“The admission of

16 rebuttal testimony is within the discretion of the trial court and will not be disturbed

17 absent an abuse of discretion.”).

18   {3}   Defendant cites State v. Simonson, 1983-NMSC-075, ¶ 29, 100 N.M. 297, 669

19 P.2d 1092, for the proposition that “[g]enuine rebuttal evidence consists of evidence



                                               2
 1 on new matters asserted in the defense’s case.” [MIO 4] In Simonson, our Supreme

 2 Court held that the district court did not abuse its decision in allowing the State to

 3 rebut evidence that tended to contradict the defendant’s claim of insanity after the

 4 defendant presented evidence that he was not sane at the time of the incident. Id. ¶ 32.

 5 The Simonson Court recognized that “[a]scertaining whether . . . rebuttal evidence is

 6 in response to new matters established by the defense . . . is a difficult matter at times.

 7 Frequently true rebuttal evidence, in some degree, will overlap and coincide with the

 8 evidence in the State’s case-in-chief.” Id. ¶ 29.

 9   {4}   As in Simonson, we conclude that the district court did not abuse its discretion

10 in allowing the State to rebut Defendant’s claim of self-defense, even if some of

11 Officer Pool’s rebuttal testimony overlapped and coincided with his testimony on

12 direct examination. The Simonson Court recognized that the defendant “had the

13 opportunity to cross-examine [the State’s rebuttal witness] or offer contradictory

14 testimony on surrebuttal.” Id. ¶ 32. As we stated in our notice, it appears Defendant

15 would have been afforded that same opportunity here. See Rule 5-607(H), (I) NMRA

16 (listing, in the order of trial, “the state may submit evidence in rebuttal” and “the

17 defense may submit evidence in surrebuttal”). We conclude that the admission of the

18 State’s rebuttal evidence did not offend due process or deny Defendant a fair trial.




                                                3
 1   {5}   In our notice, we proposed to conclude that the district court erred in merging

 2 Defendant’s two battery convictions to remedy a double jeopardy violation, because

 3 a double jeopardy violation can only be remedied by vacating one of the offending

 4 convictions. See State v. Schoonmaker, 2008-NMSC-010, ¶ 50, 143 N.M. 373, 176

 5 P.3d 1105 (holding that, to remedy the imposition of impermissible multiple

 6 punishments for a single offense, “the district court was required not only to ‘merge’

 7 [the defendant’s] convictions on alternative counts . . . but to vacate one of those

 8 alternative convictions; simply sentencing [the defendant] for only one conviction was

 9 not enough”). The State does not oppose our proposed conclusion and we thus

10 reverse and remand for the limited purpose of vacating Defendant’s conviction for

11 battery upon a peace officer, which is the offense that carries the lesser sentence. See

12 State v. Swick, 2012-NMSC-018, ¶ 31, 279 P.3d 747 (holding the remedy for this type

13 of double jeopardy violation is to vacate the conviction that carries the lesser

14 sentence).

15 CONCLUSION

16   {6}   For the reasons discussed above and in our notice, we reverse Defendant’s

17 conviction for battery upon a peace officer and remand for the limited purpose of

18 vacating that conviction. We affirm Defendant’s convictions for aggravated battery

19 upon a peace officer and resisting, evading, or obstructing an officer.



                                              4
1   {7}   IT IS SO ORDERED.



2
3                             MICHAEL D. BUSTAMANTE, Judge

4 WE CONCUR:


5
6 CYNTHIA A. FRY, Judge


7
8 MICHAEL E. VIGIL, Judge




                               5
