                                                                 I attest to the accuracy and
                                                                  integrity of this document
                                                                    New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'05- 16:41:09 2018.01.30

Certiorari Denied, December 20, 2017, No. S-1-SC-36767

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMCA-015

Filing Date: October 25, 2017

Docket No. A-1-CA-34773

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

PHILLIP SIMMONS,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Benjamin Chavez, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

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

for Appellant

                                        OPINION

SUTIN, Judge.

{1}     Defendant Phillip Simmons was convicted by a jury of two counts of criminal sexual
penetration in the second degree (in the commission of a felony) (CSP II-felony) in violation
of NMSA 1978, Section 30-9-11(E)(5) (2009), one count of criminal sexual penetration in
the second degree (by force or coercion, child 13-18) (CSP II-force/coercion) in violation
of Section 30-9-11(E)(1), one count of kidnapping in the first degree in violation of NMSA

                                             1
1978, Section 30-4-1 (2003), one count of distribution of a controlled substance to a minor
in the second degree in violation of NMSA 1978, Section 30-31-21 (1987), and one count
of contributing to the delinquency of a minor in violation of NMSA 1978, Section 30-6-3
(1990).1

{2}     On appeal, Defendant argues that (1) the district court failed to instruct the jury on
a required element for the CSP II-felony convictions; (2) there was insufficient evidence to
support the jury’s guilty verdicts; and (3) this Court must vacate the kidnapping, distribution
of a controlled substance to a minor, or contributing to the delinquency of a minor
convictions, or else reduce the CSP II-felony convictions to CSP IV because allowing all
convictions to stand would violate double jeopardy. We affirm in part and remand in order
to vacate Defendant’s CSP II-felony convictions.

BACKGROUND

{3}     On an evening in July 2010, Victim, a fifteen-year-old boy, went to a concert with
his family. After the concert, Victim planned on attending a party with his family and got
a ride with his cousin and his cousin’s friend. While in the car, Victim got into an argument
with his cousin, at which point his cousin’s friend kicked Victim out of the car in downtown
Albuquerque near the Alvarado Transportation Center (ATC). Victim, wanting to get home,
tried to get a ride home from ATC but was initially unsuccessful. After some time,
Defendant pulled up to Victim and offered Victim a ride home. Defendant told Victim he
needed to do something first and drove to a salon. After going to the salon, Defendant drove
Victim to Defendant’s apartment.

{4}    Once at the apartment, Defendant told Victim he had “to get something real quick,”
and they entered the apartment. Victim testified that he felt “a little bit forced” to enter the
apartment and believed he was threatened. Once inside, Defendant offered Victim a beer,
as well as “[c]rack, weed, [and] coke.” Victim, feeling pressured, accepted a beer and
cocaine, which made him feel “woozy.” At that point, Defendant began touching Victim and
sucked Victim’s penis. Victim testified that he was “worried about getting home” and that
the encounter “made [him] feel . . . gross” and “[a]shamed of [himself].” Thereafter,
Defendant sucked Victim’s penis again, and they smoked more cocaine. Victim asked to go
home, but Defendant told him that Defendant would take Victim home “in the morning[.]”
Victim protested, telling Defendant that he had to go see his probation officer because
Victim was on probation. Defendant then asked for anal sex, and Victim complied because
he was afraid that if he did not, he would be anally penetrated. Victim testified that
Defendant was larger than him, and he was scared.


       1
        We note that although the jury clearly found Defendant guilty of two counts of CSP
II-felony and one count of CSP II-force/coercion and the district court recognized those
verdicts, the judgment erroneously states that Defendant was convicted of three counts of
CSP II-force/coercion.

                                               2
{5}    Defendant eventually took Victim home around 7:00 a.m. When Defendant dropped
Victim off, Defendant provided his name and phone number to Victim, told Victim to call
him, and made promises of money and access to his car. When Victim arrived home he cried,
took multiple showers, and told his mother, aunt, and grandmother what had happened.
Victim was examined by a sexual assault nurse examiner (SANE), who testified that Victim
disclosed that he felt coerced to have anal sex with Defendant and reported being “woken
up with his genitals being sucked on[.]”

{6}     Victim identified Defendant as the perpetrator in a photo array, gave the police a
fairly accurate description of Defendant’s apartment, and identified Defendant as the
perpetrator at trial. A forensic examiner testified at trial that she identified saliva that
contained Defendant’s DNA on the inside of Victim’s boxer shorts.

{7}     The jury found Defendant guilty of two counts of CSP II-felony, one count of CSP
II-force/coercion, one count of kidnapping, one count of distribution of a controlled
substance to a minor, and one count of contributing to the delinquency of a minor. For the
CSP II-felony counts, the jury was instructed that the State must prove that Defendant caused
Victim to engage in fellatio and anal intercourse during the commission of kidnapping or
distribution of a controlled substance to a minor or contributing to the delinquency of a
minor. However, the jury was not asked to identify which felony it relied upon in reaching
its verdicts on the CSP II-felony counts. Defendant was ultimately sentenced to twenty-seven
years in prison, with nine years of the sentence suspended, for a total sentence of eighteen
years. This appeal followed.

DISCUSSION

I.      Jury Instructions—CSP II-felony

{8}     Defendant argues that the district court failed to instruct the jury that in order to find
Defendant guilty of the CSP II-felony counts, it had to find that there was a causal link
between the felony committed and the CSP. Defendant admits that trial counsel did not
request that an instruction be given on the causal link between the CSP II-felony charges and
the associated felonies.

{9}     When a party fails to object to a tendered jury instruction, we review the issue for
fundamental error. See State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d
1134. Fundamental error “only applies in exceptional circumstances when guilt is so
doubtful that it would shock the judicial conscience to allow the conviction to stand.” State
v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, overruled on other grounds
by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.

{10} In support of his position that fundamental error occurred, Defendant highlights State
v. Stevens, 2014-NMSC-011, 323 P.3d 901, arguing when charging CSP II-felony, the
associated felony “must be a felony that is committed against the victim of, and that assists

                                                3
in the accomplishment of, sexual penetration perpetrated by force or coercion or against a
victim who, by age or other statutory factor, gave no lawful consent.” Id. ¶ 39. According
to Defendant, the State never argued and the jury never found a “nexus” between the
associated felony, i.e., distribution of a controlled substance to a minor, kidnapping, and/or
contributing to the delinquency of a minor, on the one hand, and the two counts of CSP II-
felony, on the other hand. Defendant argues that the jury should have been asked to consider
the causal link between the associated felony and the CSP when rendering its verdict on CSP
II-felony, and because the jury never was instructed to find that the felony assisted in the
accomplishment of the CSP, there was fundamental error.

{11} In Stevens, our Supreme Court considered the adequacy of a given CSP II-felony jury
instruction and whether the inadequacies in the instruction constituted fundamental error. Id.
¶¶ 1-3. The defendant in Stevens was charged with two counts of CSP-II felony, with the
associated felony being distribution of a controlled substance to a minor, after the defendant
provided her minor daughter with methamphetamine and told her daughter to perform oral
sex on the defendant’s boyfriend on two occasions. Id. ¶¶ 4-6. The defendant argued that her
“convictions for CSP II-felony resulted from fundamental error because the jury was not
instructed that the [prosecution] had to prove that the sexual activity occurring during the
commission of a felony was otherwise criminal[.]” Id. ¶ 12 (internal quotation marks
omitted). The at-issue instruction required, in relevant part, that the prosecution prove
(1) “[t]he defendant caused [her] daughter to engage in fellatio on [the defendant’s]
boyfriend[,]” and (2) “[t]he defendant committed the act during the commission of
distribution of a controlled substance to a minor[.]” Id. ¶ 13 (internal quotation marks
omitted). Our Supreme Court ultimately held that “when a CSP II charge is based on the
commission of a felony, it must be a felony that is committed against the victim of, and that
assists in the accomplishment of, sexual penetration perpetrated by force or coercion or
against a victim who, by age or other statutory factor, gave no lawful consent.” Id. ¶ 39. The
Stevens Court concluded, however, that although the jury instruction was deficient, the error
was unpreserved and “did not rise to the level of fundamental error.” Id. ¶¶ 42-43, 46. The
Court noted that in convicting the defendant, the jury necessarily determined that the
defendant caused her boyfriend to sexually penetrate her daughter during the commission
of a felony. Id. ¶ 43. Additionally, the Court looked to testimony from the defendant’s
daughter that she acquiesced to the defendant’s request after she was injected with
methamphetamine. Id. ¶ 45. Thus, the Court did “not consider guilt to be so doubtful that a
conviction would shock the judicial conscience” and affirmed the defendant’s convictions.
Id. ¶¶ 45, 58.

{12} In this case, as in Stevens, there is no fundamental error. Here, the jury instructions
on CSP-II felony stated, in relevant part, that the State must prove: (1) Defendant caused
Victim to engage in fellatio and anal intercourse, and (2) Defendant committed the acts
during the commission of kidnapping or distribution of a controlled substance to a minor or
contributing to the delinquency of a minor. These instructions are similar to the instruction
in Stevens in that they did not instruct the jury to find that the associated felony must be
“committed against the victim of[] and . . . assist[] in the accomplishment of” the CSP. Id.

                                              4
¶ 39. But, also as in Stevens, this deficiency does not rise to the level of fundamental error.
See id. ¶¶ 42-43, 46. Here, a reasonable juror would not be confused by the instruction, and
the connection between the associated felonies and the acts of CSP is so readily apparent that
the CSP II-felony convictions do not shock the judicial conscience. In this case, the
associated felonies, i.e., kidnapping, distribution of a controlled substance to a minor, and
contributing to the delinquency of a minor, were all committed against Victim, as evidenced
by the guilty verdicts for those felonies. Additionally, there can be no doubt that Defendant
was assisted in carrying out the CSPs against Victim by the commission of the associated
felonies.

II.     Sufficiency of the Evidence

{13} Defendant argues that there was insufficient evidence to support his convictions for
kidnapping, distribution of a controlled substance to a minor, CSP II, and contributing to the
delinquency of a minor. “In reviewing the sufficiency of the evidence, [the appellate courts]
must view the evidence in the light most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.”
State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “The relevant
question is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. (alteration, emphasis, internal quotation marks, and citation omitted).
Further, “[c]ontrary evidence supporting acquittal does not provide a basis for reversal
because the jury is free to reject [the d]efendant’s version of the facts[,]” State v. Rojo, 1999-
NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829, and we defer to the fact-finder “when it
weighs the credibility of witnesses and resolves conflicts in witness testimony.” State v.
Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482.

A.      Distribution of a Controlled Substance to a Minor, CSP II, and Contributing to
        the Delinquency of a Minor

{14} Defendant’s argument regarding the distribution of a controlled substance to a minor
conviction is that, although Victim testified he was offered various drugs, a drug test was not
performed, and thus the evidence is insufficient. His argument against the three CSP II
convictions is that Victim’s testimony was “almost nonsensical.” And Defendant’s argument
against contributing to the delinquency of a minor is that there was no evidence that
Defendant gave Victim alcohol or controlled substances. We reject all of these arguments
because they request that this Court usurp the role of the jury as fact-finder and supplant the
jury’s view of the evidence with our own.

{15} At trial, Victim testified that Defendant provided him with drugs and alcohol and that
there were three sexual encounters. Victim identified Defendant as the perpetrator at trial,
and a forensic examiner testified at trial that she identified saliva that contained Defendant’s
DNA on the inside of Victim’s boxer shorts. See id. Simply because the evidence presented
at trial could have been bolstered by a drug test or clearer testimony does not mean that there

                                                5
was insufficient evidence to convict Defendant of his crimes. See Rojo, 1999-NMSC-001,
¶ 19. Given the testimony, we hold there was sufficient evidence to uphold Defendant’s
convictions for distribution of a controlled substance to a minor, CSP II, and contributing
to the delinquency of a minor.

B.      Kidnapping

{16} Defendant argues that there was insufficient evidence of kidnapping because the
Victim willingly entered Defendant’s car and that, after driving to the salon and Defendant’s
apartment, “a savvy boy like [Victim] would have begun to suspect that the ride home was
not going to happen any time soon.” Defendant argues that there was no kidnapping by
deception because Victim went voluntarily into Defendant’s apartment, and Victim never
testified that he was physically restrained by Defendant. Defendant argues that it is unclear
at what point the physical association between him and Victim was no longer voluntary, and
thus it was unreasonable for the jury to convict Defendant of kidnapping.

{17} We are unpersuaded. To support a conviction for kidnapping, the jury instruction
required proof, in relevant part, that Defendant “took or restrained or confined or transported
[Victim] by force or intimidation or deception[, and] intended to hold [Victim] against
[Victim’s] will to inflict death, physical injury or a sexual offense on [Victim.]” See § 30-4-
1(A)(4) (“Kidnapping is the unlawful taking, restraining, transporting or confining of a
person, by force, intimidation or deception, with intent . . . to inflict death, physical injury
or a sexual offense on the victim.”).

{18} Kidnapping by deception “can occur when an association [between a victim and a
defendant] begins voluntarily but the defendant’s actual purpose is other than the reason the
victim voluntarily associated with the defendant.” State v. Jacobs, 2000-NMSC-026, ¶ 24,
129 N.M. 448, 10 P.3d 127; see State v. Laguna, 1999-NMCA-152, ¶¶ 2, 12, 17, 128 N.M.
345, 992 P.2d 896 (describing kidnapping by deception where the victim was offered a ride
and the defendant “conceal[ed his] intent of exploring sexual involvement with [the
victim]”).

{19} Here, Victim testified that he was led to believe that Defendant was going to give
him a ride home, even though Defendant made two stops. Once at the apartment, Victim
testified that he felt “a little bit forced” to enter the apartment and believed he was
threatened. The jury could have reasonably found that Victim’s association with Defendant
was based on a deception when Defendant (1) lied by offering Victim a ride home with
another intent in mind, (2) lied to Victim when he said he would drive Victim home after
stopping at the salon, or (3) lied to Victim when he said he would drive Victim home after
stopping at the apartment “to get something real quick[.]” Additionally, as noted by the
State, the jury could have reasonably found that Defendant used intimidation as part of the
kidnapping as evidenced by the physical disparities between Defendant and Victim, Victim’s
testimony that Defendant told him to go into the apartment, and Victim’s testimony that he
felt forced.

                                               6
{20} We are also unpersuaded by Defendant’s argument that “a savvy boy like [Victim]
would have begun to suspect that the ride home was not going to happen any time soon.” As
with his sufficiency of the evidence arguments regarding his other convictions, Defendant
is essentially asking this Court to re-weigh the evidence and make alternative determinations
about Victim’s credibility and what Victim should have believed. As we have stated, we
defer to the fact-finder regarding such issues. See Salas, 1999-NMCA-099, ¶ 13. And we do
“not re-weigh the evidence to determine if there was another hypothesis that would support
innocence[.]” State v. Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72.

III.   Double Jeopardy

{21} Defendant argues on appeal that, with respect to each of the two CSP II-felony
convictions, this Court on double jeopardy grounds must vacate either the kidnapping,
distribution of a controlled substance to a minor, or contributing to the delinquency of a
minor convictions. Defendant compares CSP II-felony to felony murder, arguing that CSP
II-felony is a compound crime that requires a finding of CSP and the associated felony and
that the associated felony is thus subsumed within the CSP II-felony. See State v. Frazier,
2007-NMSC-032, ¶ 1, 142 N.M. 120, 164 P.3d 1 (holding under double jeopardy principles
that “the predicate felony is always subsumed into a felony murder conviction, and no
defendant can be convicted of both”); State v. Tsethlikai, 1989-NMCA-107, ¶ 8, 109 N.M.
371, 785 P.2d 282 (noting that CSP II-felony is a compound crime). Defendant argues in his
brief in chief that kidnapping “is the most likely crime to be violative of double jeopardy”
and thus suggests that the kidnapping conviction is “subsumed into the CSP II[-felony]
convictions” and must be vacated. However, in his reply brief, Defendant appears to change
his position, suggesting that “the proper remedy in this case would be to reduce the CSP II
to a CSP IV2 because it is impossible to know upon which alternative [associated felony] the
jury relied.” And Defendant requests that “this Court vacate the CSP II and enter the lesser
included offense [of CSP IV] that is not based upon a finding that violates double jeopardy.”

{22} In its answer brief, the State agrees that a conviction must be vacated. But the State
argues that the conviction for contributing to the delinquency of a minor, the lesser of the
three predicate felonies, should be vacated because, per Frazier, “if the facts support
multiple charges of a particular felony which can be sustained under a unit[]of[]prosecution
analysis, then the [prosecution] is free to use one of those charges as the predicate felony and
obtain separate convictions for the other charges.” 2007-NMSC-032, ¶ 27. Additionally, the
State notes that our Supreme Court has held that if a double jeopardy violation is found, the
appellate courts “must vacate the conviction for the lesser offense.” State v. Gonzales, 2007-
NMSC-059, ¶ 10, 143 N.M. 25, 172 P.3d 162.


       2
         CSP IV requires that a defendant be guilty of sexual penetration of a child thirteen
to sixteen by a person who is at least eighteen years old and at least four years older than the
victim, and in this case, the jury was instructed as to CSP IV as a lesser included offense of
CSP II-felony. Section 30-9-11(G)(1).

                                               7
{23} Because Defendant’s argument that his CSP II-felony convictions should be vacated
and remanded for sentencing as CSP IV convictions was argued for the first time in his reply
brief, we need not and do not address that argument. See Guest v. Berardinelli, 2008-
NMCA-144, ¶ 36, 145 N.M. 186, 195 P.3d 353 (“[W]e do not consider arguments raised in
a reply brief for the first time.”); State v. Druktenis, 2004-NMCA-032, ¶ 122, 135 N.M. 223,
86 P.3d 1050 (“We will not consider issues raised for the first time in an appellant’s reply
brief.”). But even if Defendant had earlier proposed his solution of lowering his CSP II-
felony convictions to CSP IV convictions, we would not be inclined to adopt his proposed
solution because he failed to develop the argument and cited no authority in support of that
maneuver. See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 (“[A]ppellate
courts will not consider an issue if no authority is cited in support of the issue and that, given
no cited authority, we assume no such authority exists[.]”); State v. Fuentes,
2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that we will “not review
unclear or undeveloped arguments [that] require us to guess at what [a party’s] arguments
might be”); see also State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254
(reminding counsel that the appellate courts “are not required to do their research” and
stating that “conclusory statement[s] will not suffice and [are] in violation of our [R]ules of
[A]ppellate [P]rocedure”).

{24} Although it is unclear which associated felony was relied upon by the jury in
reaching its guilty verdicts for the two CSP II-felony counts, we focus on Defendant’s
argument that the kidnapping and CSP II-felony convictions violate double jeopardy.
Defendant asks this Court to consider vacating the distribution of a controlled substance
conviction or contributing to the delinquency of a minor conviction only if we disagree that
the CSP II-felony and kidnapping convictions violate double jeopardy. Because, as explained
later in this opinion, we hold that convicting Defendant for both kidnapping and CSP II-
felony would violate double jeopardy and because we instruct the district court to vacate the
CSP II-felony convictions, we need not and do not address Defendant’s alternative
arguments that his convictions for distribution and/or contributing to the delinquency would
violate double jeopardy if coupled with the CSP II-felony convictions.

{25} Double jeopardy challenges involve constitutional questions of law that we review
de novo. SeeState v. Melendrez, 2014-NMCA-062, ¶ 5, 326 P.3d 1126. The prohibition
against double jeopardy “functions in part to protect a criminal defendant against multiple
punishments for the same offense.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747
(internal quotation marks and citation omitted). Double jeopardy multiple-punishment cases
are divided into two classifications: (1) multiple convictions under a single statute are “unit
of prosecution” cases; and (2) multiple convictions under separate statutes resulting from the
same conduct are “double description” cases. Id. Because we are dealing with multiple
convictions under separate statutes, this is a double description case. For double description
cases, we apply the two-part test set forth in Swafford v. State, 1991-NMSC-043, ¶ 25, 112
N.M. 3, 810 P.2d 1223: (1) whether the conduct is unitary; and (2) if so, whether the
Legislature intended to punish the offenses separately. State v. Silvas, 2015-NMSC-006, ¶
9, 343 P.3d 616.

                                                8
A.      Unitary Conduct

{26} In analyzing a double description multiple-punishment claim, we first determine
whether the underlying conduct for the offenses is unitary. See Swafford, 1991-NMSC-043,
¶ 25. “Conduct is not unitary if sufficient indicia of distinctness separate the transaction into
several acts.” State v. Montoya, 2011-NMCA-074, ¶ 31, 150 N.M. 415, 259 P.3d 820
(internal quotation marks and citation omitted). In specifically analyzing whether the
conduct underlying kidnapping and CSP II-felony convictions is unitary, this Court has held
that “unitary conduct occurs when the [prosecution] bases its theory of [kidnapping] on the
same force used to commit CSP II[-felony] even though there were alternative ways to
charge the crime.” Id. ¶ 37. Stated another way, “because some force or restraint is involved
in every sexual penetration without consent, [kidnapping] cannot be charged out of every
CSP without a showing of force or restraint separate from the CSP.” Id. ¶ 38.

{27} In the present case, the jury could have found that Defendant’s kidnapping of Victim
was complete when he deceived Victim into entering his car by offering Victim a ride home.
The jury could also have found that the kidnapping was accomplished when Victim, feeling
forced and intimidated, entered Defendant’s apartment and remained while the ensuing acts
of CSP occurred. When the conduct underlying two convictions could be unitary under the
facts, but we are unsure if the jury relied on that unitary conduct for both convictions, we
nevertheless assume for the purposes of our double jeopardy analysis that the conduct was
unitary because one of the options/alternatives/scenarios is legally inadequate. See id. ¶ 39
(acknowledging the principle that “we must reverse a conviction if one of the alternative
bases for the conviction provided in the jury instructions is legally inadequate because it
violates a defendant’s constitutional right to be free from double jeopardy” and concluding
that the conduct in the kidnapping and CSP was unitary for the purposes of double jeopardy
because this Court was unable to determine from the record when the kidnapping was
accomplished (internal quotation marks and citation omitted)); see also State v. Foster,
1999-NMSC-007, ¶ 27, 126 N.M. 646, 974 P.2d 140 (“[T]he Double Jeopardy Clause . . .
require[s] a conviction under a general verdict to be reversed if one of the alternative bases
for conviction provided in the jury instructions is legally inadequate because it violates a
defendant’s constitutional right to be free from double jeopardy[.]” (internal quotation marks
omitted)), abrogation on other grounds recognized by Kersey v. Hatch, 2010-NMSC-020,
¶ 17, 148 N.M. 381, 237 P.3d 683.

{28} As we stated in Section (I), supra, we have no doubt that Defendant was assisted in
carrying out the acts of CSP by the commission of the associated felonies. And if the jury
could have found that the kidnapping was accomplished during the CSPs, which is possible
given the testimony, the conduct would be unitary because the force used for the kidnapping
would be the same force used for the CSPs. We therefore conclude, for the purposes of our
double jeopardy analysis, that the conduct was unitary.

B.      Legislative Intent


                                               9
{29} Where unitary conduct forms the basis for multiple convictions, we next “inquire
whether [the d]efendant has been punished twice for the same offense, and if so, whether the
Legislature intended that result.” Silvas, 2015-NMSC-006, ¶ 11. “In analyzing legislative
intent, [the appellate courts] first look to the language of the statute itself.” Swick,
2012-NMSC-018, ¶ 11. In the absence of an express statement of legislative intent, we apply
the rule of statutory construction from Blockburger v. United States, 284 U.S. 299, 304
(1932), to ensure that “each provision requires proof of a fact the other does not.” Swafford,
1991-NMSC-043, ¶ 10 (internal quotation marks omitted). “If that test establishes that one
statute is subsumed within the other, the inquiry is over and the statutes are the same for
double jeopardy purposes—punishment cannot be had for both.” Id. ¶ 30. When punishment
cannot be had for both, “[t]he general rule requires that the lesser offense be vacated . . .
[and] . . . the degree of felony . . . is an appropriate measure of legislative intent regarding
which of two offenses is a greater offense.” Swick, 2012-NMSC-018, ¶ 31 (third omission
in original) (internal quotation marks and citation omitted). “If one statute requires proof of
a fact that the other does not, then the Legislature is presumed to have intended a separate
punishment for each statute without offending principles of double jeopardy. That
presumption, however, is not conclusive and it may be overcome by other indicia of
legislative intent.” Silvas, 2015-NMSC-006, ¶¶ 12-13 (internal quotation marks and citations
omitted).

{30} “When applying Blockburger to statutes that are vague and unspecific or written with
many alternatives, we look to the charging documents and jury instructions to identify the
specific criminal causes of action for which the defendant was convicted.” State v. Ramirez,
2016-NMCA-072, ¶ 18, 387 P.3d 266, cert. denied, 2016-NMCERT-___ (No. S-1-SC-
35949, July 20, 2016). The jury instructions in the present case for the CSP II-felonies
required the jury to find that Defendant caused Victim to engage in fellatio and anal
intercourse during the commission of kidnapping or distribution of a controlled substance
to a minor or contributing to the delinquency of a minor. The jury instruction for the separate
crime of kidnapping required the jury to find that Defendant took, restrained, or transported
Victim by force, intimidation, or deception with the intent to hold Victim against his will to
inflict a sexual offense on him.

{31} In comparing the two offenses of CSP II-felony and kidnapping as charged, we look
to Montoya, 2011-NMCA-074, ¶ 42, as instructive. In Montoya, this Court considered
whether the defendant’s right to be free from double jeopardy was violated when he was
convicted of both CSP II-felony and the associated felony of either aggravated burglary or
kidnapping. Id. ¶ 28. After holding that the conduct underlying the CSP II-felony conviction
and the aggravated burglary conviction was not unitary, but that the conduct underlying the
CSP II-felony conviction and kidnapping conviction could be unitary, this Court turned to
legislative intent. Id. ¶¶ 34, 39-40. In evaluating legislative intent, we looked to the jury
instructions provided for the CSP II-felony count and the kidnapping count and determined
that the CSP II-felony instruction “required the jury to find that [the d]efendant caused [the
v]ictim to engage in sexual intercourse during the commission of [kidnapping] or aggravated
burglary.” Id. ¶ 41. Per the jury instructions, this Court concluded that CSP II-felony

                                              10
required proof of all of the elements of kidnapping, and thus the kidnapping conviction was
subsumed within the CSP II-felony conviction. Id. ¶ 42.

{32} Here, similar to Montoya, our analysis of the jury instructions for the CSP II-felony
and kidnapping charges supports a conclusion that kidnapping is subsumed within the CSP
II-felony convictions. See id. We therefore remand to the district court with instructions to
vacate Defendant’s conviction for the lesser offense, see id. ¶ 43, which means “vacat[ing]
the conviction carrying the shorter sentence.” State v. Montoya, 2013-NMSC-020, ¶ 55, 306
P.3d 426. Under the facts of this case, because Defendant’s conviction for kidnapping was
a first degree felony conviction and his convictions for CSP II-felony were second degree
felony convictions, the CSP II-felony convictions are the lesser offenses. We, therefore,
instruct the district court to vacate the CSP II-felony convictions, leaving the kidnapping
conviction.3 See Montoya v. Driggers, 2014-NMSC-009, ¶ 9, 320 P.3d 987 (noting that the
district court complied with this Court’s mandate to vacate the lesser conviction of CSP II-
felony because, between CSP II-felony and kidnapping (first degree), CSP II-felony was the
lesser conviction); Swick, 2012-NMSC-018, ¶ 31 (“The general rule requires that the lesser
offense be vacated . . . [and] . . . the degree of felony . . . is an appropriate measure of
legislative intent regarding which of two offenses is a greater offense.” (third omission in
original) (alteration, internal quotation marks, and citation omitted)).

CONCLUSION

{33} For the reasons set forth in this opinion, we remand to the district court with
instructions to vacate Defendant’s CSP II-felony convictions. We affirm the district court’s
judgment in all other respects.

{34}   IT IS SO ORDERED.

                                              ____________________________________
                                              JONATHAN B. SUTIN, Judge

WE CONCUR:


       3
         We acknowledge that stating the kidnapping is subsumed, while holding that
kidnapping was the greater offense as compared to CSP II-felony, seems irregular.
“Subsume” means to “include or place something within something larger or more
comprehensive[.]” Merriam-Webster’s Collegiate Dictionary 490 (11th ed. 2005). Yet here
we are also holding that the subsumed offense is the greater offense. As noted by our
Supreme Court in Montoya, 2013-NMSC-020, ¶ 56, “as a matter of policy, it would be
unacceptable for us to hold that where a person’s criminal conduct would have violated
either of two statutes, a defendant can escape liability for the one carrying the greater
punishment by committing the crime in such a manner as to also violate the statute carrying
the lesser penalty.”

                                             11
____________________________________
M. MONICA ZAMORA, Judge

____________________________________
STEPHEN G. FRENCH, Judge




                                   12
