 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                     No. 28,782

10 FRANK LASKY,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
13 Stephen K. Quinn, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Jacqueline R. Medina, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Chief Public Defender
20 Mary Barket, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 SUTIN, Judge.
 1        Defendant Frank Lasky appeals his convictions of armed robbery, attempted

 2 armed robbery, two counts of assault with intent to commit armed robbery, criminal

 3 damage to property, and possession of a firearm by a felon. The charges arose from

 4 the armed robbery of Kay’s Oriental Store in Clovis, New Mexico in August 2006.

 5        On appeal Defendant argues that his convictions violate double jeopardy, that

 6 he was denied the right to a fair and impartial jury, that his felon in possession of a

 7 firearm charge should have been severed from the other charges, and that he was

 8 prejudiced by prosecutorial misconduct. We address each of Defendant’s arguments

 9 in turn.

10 BACKGROUND

11        On the day of the robbery, Soon Cho and Song Beams were working at Kay’s

12 Oriental Store. Defendant attempted to enter the store through a side door as Cho was

13 taking out the trash. Cho told him to go to the front door, which he did. Defendant

14 perused the store’s aisles for approximately fifteen minutes. Cho asked if she could

15 help Defendant, and they discussed the different types of candy that were available.

16 Cho also offered for Defendant to use the phone to call his mother about what kind of

17 candy he was looking for. As Defendant was standing next to Cho, discussing candy,

18 he pulled out a handgun, pointed it at Cho’s head, and demanded money. Cho

19 complied by giving Defendant all the money from the cash register. Defendant, at this


                                              2
 1 point, had the gun pointed at Beams’ back and said “[b]itches, give me your purse.”

 2 When Beams told Defendant they did not have a purse, Defendant told her to shut up,

 3 and fired his gun at the ceiling and at a wall.

 4        Karole Greco, Defendant’s ex-girlfriend encountered Defendant on the day of

 5 the robbery. Defendant told Greco that the police were chasing him and that he had

 6 just robbed the store. He asked for her help, and she refused. Greco called the police

 7 to tell them what she had learned.

 8        Within a week of the robbery, Beams and Cho were presented with separate

 9 photo arrays that included Defendant’s picture. Both women identified Defendant as

10 the man who had robbed them, and at trial both stated they were one hundred percent

11 certain that they had made a proper identification.

12 DISCUSSION

13        We examine each of Defendant’s appellate arguments successively. First, we

14 determine that the district court did not abuse its discretion by refusing to sever the

15 felon in possession of a firearm charge. Next, we determine that Defendant’s claims

16 of prosecutorial misconduct do not warrant reversal of his convictions. We then

17 conclude that Defendant was not deprived of his right to a fair and impartial jury.

18 Finally, we hold that Defendant’s two convictions for assault with intent to commit

19 armed robbery violate double jeopardy. We vacate the two counts of assault with


                                              3
 1 intent to commit armed robbery and remand to the district court for re-sentencing. On

 2 all other counts, we affirm.

 3 Severance

 4        Defendant argues that the district court erred by refusing to sever the felon in

 5 possession of a firearm charge from the other charges. He reasons that evidence of

 6 his prior felony, and thus his probation status, would not have been admissible in a

 7 separate trial of his other offenses and the knowledge of his prior conviction “infused

 8 distrust in him” and “blinded the jury to his defense.” Defendant also argues the

 9 denial of severance constrained his constitutional right to remain silent because, once

10 the jury learned of his prior conviction, Defendant was forced to testify in an effort

11 to rebuild his character.

12        Under Rule 5-203(A)(2) NMRA, joinder is mandated for offenses based on the

13 same conduct. Rule 5-203(C) allows the district court to grant severance “[i]f it

14 appears that a defendant or the [prosecution] is prejudiced by a joinder of offenses[.]”

15 We review for abuse of discretion the denial of a motion to sever. See State v.

16 Dominguez, 2007-NMSC-060, ¶ 10, 142 N.M. 811, 171 P.3d 750. “[O]ne test for

17 abuse of discretion is whether prejudicial testimony, inadmissible in a separate trial,

18 is admitted in a joint trial.” Id. (internal quotation marks and citation omitted). “[The

19 d]efendant has the burden of proving that he suffered prejudice[.]” Id. ¶ 14.


                                               4
 1        Defendant’s defense was that he was working in Albuquerque when the robbery

 2 took place. In order to refute Defendant’s alibi, the State presented evidence

 3 that (1) Defendant was on probation when the robbery occurred and that he was not

 4 allowed to leave Clovis without a travel permit from the probation office;

 5 (2) Defendant was aware of the travel restriction and had actually used travel permits

 6 in the past; and (3) exactly one month prior to the robbery, Defendant used a travel

 7 permit to go to Albuquerque.

 8        The State’s theory of the case was that Defendant was in Clovis on the day of

 9 the robbery as evidenced, in part, by the fact that he had not requested a travel permit

10 for the day of the robbery. Evidence is relevant when it “tends to establish a material

11 proposition.” State v. Romero, 86 N.M. 99, 102, 519 P.2d 1180, 1183 (Ct. App.

12 1974); see Rule 11-401 NMRA. Here, the fact that Defendant did not ask for a travel

13 permit on the day of the robbery tends to establish the State’s proposition that he did

14 not travel outside of Clovis on that day. Thus, Defendant’s probation status was

15 relevant to rebut his alibi defense. Relevant evidence is generally admissible, except

16 where its probative value is substantially outweighed by the danger of unfair

17 prejudice. Rule 11-402 NMRA; Rule 11-403 NMRA. Defendant does not argue that

18 the evidence of his probation was more prejudicial than probative and, for the reasons

19 we just expounded, we do not agree with his argument that this evidence would not


                                              5
 1 have been admitted in a separate trial. Thus, we hold that the district court did not err

 2 in allowing the State to elicit testimony about Defendant’s probation status from his

 3 probation officer.

 4        With regard to the assertion that Defendant was forced to testify in order to

 5 rebuild his character, this argument was not preserved in the district court, therefore,

 6 we will not consider it on appeal. See Vill. of Angel Fire v. Bd. of Cnty. Comm’rs of

 7 Colfax Cnty., 2010-NMCA-038, ¶ 15, 148 N.M. 804, 242 P.3d 371 (stating that “[i]n

 8 order to properly preserve an issue, it must appear that the party fairly invoked a

 9 ruling of the district court on the same grounds argued in the appellate court” and

10 stating that “[w]e will not review arguments that were not preserved in the district

11 court” (alterations omitted) (internal quotation marks and citation omitted)).

12 Prosecutorial Misconduct

13        Defendant describes four incidents of alleged prosecutorial misconduct that he

14 believes deprived him of a fair trial. On this basis, he seeks reversal of his convictions

15 and a new trial. We examine each claim of misconduct individually. In doing so, we

16 apply an abuse of discretion standard of review. State v. Stills, 1998-NMSC-009,

17 ¶ 49, 125 N.M. 66, 957 P.2d 51.




                                               6
 1 A.      Brady Material

 2         Defendant claims that the State repeatedly failed to disclose Brady v. Maryland,

 3 373 U.S. 83 (1963), material pertaining to Greco. Specifically, Defendant alleges that

 4 the State possibly exchanged benefits for Greco’s testimony and that the State

 5 withheld the fact that Greco’s mental competency had been questioned in another

 6 case.

 7         Brady is violated when the prosecution suppresses evidence favorable to the

 8 defense, thereby violating a defendant’s due process rights. State v. Balenquah, 2009-

 9 NMCA-055, ¶ 12, 146 N.M. 267, 208 P.3d 912. In order to prevail in a Brady claim,

10 a defendant must prove three elements: (1) “the evidence must have been suppressed

11 by the prosecution[; (2)] the evidence must have been favorable to the defendant[;]

12 and [(3)] the evidence must have been material to the defense.” Id. (internal

13 quotation marks omitted). “[E]vidence is material under Brady only if there is a

14 reasonable probability that, had the evidence been disclosed to the defense, the result

15 of the proceeding would have been different.” State v. Trujillo, 2002-NMSC-005, ¶

16 50, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citation omitted).

17         In a May 29, 2008, motion for a new trial, Defendant alerted the district court

18 to the possibility that the district attorney’s office had, in exchange for Greco’s

19 testimony, reduced charges and sentences that Greco was facing in unrelated criminal


                                               7
 1 matters. Based on these allegations, Defendant requested that the district court grant

 2 him a new trial. On June 6, 2008, before the district court ruled on the motion,

 3 Defendant filed a notice of appeal.

 4        Rule 5-614(C) NMRA provides that when an appeal is pending a district court

 5 may grant a motion for a new trial only on remand. Here, Defendant did not request

 6 that his case be remanded for a decision on his motion, except in a footnote in his brief

 7 in chief to this Court. The motion was deemed automatically denied under a now

 8 obsolete provision of Rule 5-614(C) which read “[i]f a motion for new trial is not

 9 granted within thirty . . . days from the date it is filed, the motion is automatically

10 denied.”1 Regardless, we will address the denial of the motion on its merits.

11        The claims made in Defendant’s motion before the district court and in his brief

12 in chief to this Court regarding “a potentially undisclosed deal between Greco and the

13 State” are unsupported by the record. While Defendant included exhibits with his

14 motion showing that Greco’s criminal charges were disposed of through plea

15 agreements, dismissals, probation, and pre-sentence confinement credit, there is

16 nothing to indicate that the State’s method of handling Greco’s case was part of an

17 exchange for her testimony against Defendant. Further, at a hearing on Defendant’s



         1
18         The 2009 amendment to Rule 5-614 removed the automatic-denial provision
19 quoted here.

                                               8
 1 motion, the prosecutor who handled Greco’s criminal cases explained, under oath,

 2 why Greco’s cases were handled as they were and testified that there was no benefit

 3 exchanged for Greco’s testimony, and the handling of her case had nothing to do with

 4 Defendant. Likewise, the prosecutor in the case against Defendant swore in an

 5 affidavit that Greco was not given a deal in exchange for her testimony against

 6 Defendant. Conversely, with the exception of his own argument, Defendant did not

 7 present any evidence to contradict the prosecutor’s statements or to otherwise support

 8 Defendant’s position. See State v. Cochran, 112 N.M. 190, 192, 812 P.2d 1338, 1340

 9 (Ct. App. 1991) (“Argument of counsel is not evidence.”). As there is no evidence in

10 the record to support Defendant’s claim, there is no issue for this Court to review. See

11 State v. Hunter, 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296 (“Matters not of

12 record present no issue for review.”).

13         We turn now to Defendant’s argument that the State violated Brady by

14 withholding the fact that Greco’s competency to stand trial for her own unrelated

15 criminal charges had been questioned. The record in this case indicates that the State

16 did not suppress the fact that Greco’s competency had been questioned.

17 Approximately five months before trial, Defendant filed a motion to determine

18 Greco’s competency. In a hearing on that motion, the State informed the district court

19 that there had been concerns regarding Greco’s competency in the past and suggested


                                              9
 1 that a psychological evaluation be conducted to determine whether she would be a

 2 competent witness in the present case. Defendant therefore fails to meet the first

 3 element of the Brady test, which requires proof that the evidence in question was

 4 suppressed by the prosecution. See Balenquah, 2009-NMCA-055, ¶ 12.

 5          On the morning of trial, a competency hearing was held regarding Greco. The

 6 district court examined Greco and determined that she was competent to testify. At

 7 the hearing, defense counsel stated, “we believe [Karole Greco] is one hundred

 8 percent competent.” Defendant has not shown how he was prejudiced or deprived of

 9 due process. His arguments lack merit. We need not address the two remaining

10 Balenquah elements, as we determine that Defendant does not prevail on the first. See

11 id. (explaining a defendant “must prove three elements” in order to prevail).

12 B.       Opening Statement

13          Defendant claims that the State’s comments regarding Defendant’s alibi during

14 its opening statement amounted to prosecutorial misconduct. Defendant did not object

15 to the opening statement during trial. Defendant asserts that the comments constitute

16 plain error or fundamental error and that his convictions should be reversed on this

17 basis.




                                              10
 1        Where an issue was not preserved at the district court level, this Court may

 2 nonetheless review for fundamental error or plain error. Rule 12-216(B)(2) NMRA;

 3 Rule 11-103(D) NMRA.

 4        The rule of fundamental error applies only if there has been a
 5        miscarriage of justice, if the question of guilt is so doubtful that it would
 6        shock the conscience to permit the conviction to stand, or if substantial
 7        justice has not been done. The rule of plain error applies to errors that
 8        affect substantial rights of the accused and only applies to evidentiary
 9        matters.

10 State v. Dartez, 1998-NMCA-009, ¶ 21, 124 N.M. 455, 952 P.2d 450 (internal

11 quotation marks and citation omitted).

12        “Whether this Court reviews for fundamental error or plain error, it must be

13 convinced that [the error] constituted an injustice that creates grave doubts concerning

14 the validity of the verdict.” Id. ¶ 22 (internal quotation marks and citation omitted).

15 As Defendant’s argument does not concern an evidentiary matter, we limit our review

16 to fundamental error. See id. ¶ 21. “Prosecutorial misconduct rises to the level of

17 fundamental error when it is so egregious and had such a persuasive and prejudicial

18 effect on the jury’s verdict that the defendant was deprived of a fair trial.” State v.

19 Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728 (internal quotation marks

20 and citation omitted).

21        In this case, there was ample evidence of Defendant’s guilt. The State

22 presented testimony from two eyewitnesses who claimed, with one hundred percent

                                               11
 1 certainty, that Defendant was the man who robbed them at gunpoint. The State also

 2 presented evidence that Defendant confessed the crime to Greco. Additionally, the

 3 State played a recorded statement made by Defendant to the police in which he

 4 claimed to have been in Clovis on the day of the crime. When Defendant made the

 5 statement he knew he was a suspect in the robbery, yet he did not tell the police that

 6 he was working in Albuquerque that day, which is what he later claimed at trial.

 7 Considering the copious body of evidence supporting an inference of Defendant’s

 8 guilt, we are not convinced that the prosecutor’s comments during opening statement

 9 creates “grave doubts concerning the validity of the verdict.” Dartez, 1998-NMCA-

10 009, ¶ 22 (internal quotation marks and citation omitted).

11        Further, we are not convinced that the prosecutor’s comments rose to the level

12 of fundamental error. “An opening statement is intended to serve as a preview of the

13 evidence to be admitted by one or both of the parties.” State v. Gilbert, 99 N.M. 316,

14 319, 657 P.2d 1165, 1168 (1982). Here, the prosecutor told the jury that the defense

15 had provided a notice of its alibi, urged the jury to question any biases the alibi

16 witnesses might have, and to note the alibi’s lack of proof. The defense also

17 mentioned these alibi witnesses in its opening statement. Three alibi witnesses

18 testified at trial, and both parties questioned them. Thus, the jury had an opportunity

19 to hear from each alibi witness. The jury was also given UJI 14-101 NMRA that


                                             12
 1 instructed the jury to draw its own conclusions about the witnesses’ credibility,

 2 interest, bias, prejudice, and reasonableness. As we presume that the jury followed

 3 its instructions, State v. Sellers, 117 N.M. 644, 650, 875 P.2d 400, 406 (Ct. App.

 4 1994), we are not convinced that the State’s comments during opening statement were

 5 sufficiently “persuasive and prejudicial” such that Defendant was deprived of a fair

 6 trial. Allen, 2000-NMSC-002, ¶ 95 (internal quotation marks and citation omitted).

 7 C.     Prior Conviction

 8        Prior to trial, the district court ruled that the State was permitted to elicit

 9 testimony from a probation officer regarding the fact that Defendant had a prior felony

10 conviction, but that the State was not permitted to name the conviction. Nevertheless,

11 during closing argument to the jury, the State mentioned that Defendant had a prior

12 conviction for bribery of a witness. Defendant requested a mistrial based on the

13 conviction being named.

14        The State argued that the judgment and sentence, which had been admitted into

15 evidence without objection during Defendant’s testimony reflected the name of the

16 conviction and that the prosecutor therefore believed it was fair to name the

17 conviction. The State also pointed to the fact that defense counsel had an opportunity

18 to examine the document before it was admitted, yet failed to posit an objection.

19 Defense counsel responded, stating, “I believe it is purely a misunderstanding,” and


                                             13
 1 “it is defense’s fault if we did not look at the judgment and sentence before it was

 2 admitted.” Defense counsel assumed the document had been redacted based on the

 3 district court’s ruling that the State could not elicit the name of Defendant’s prior

 4 crime from the probation officer.

 5        The district court declined to declare a mistrial. However, the district court

 6 warned the State against making further comment regarding the prior conviction and

 7 had the parties redact the documentary evidence to avoid further exposing the jury to

 8 the name of Defendant’s prior felony. In the district court’s determination, the State’s

 9 mention of the prior conviction was ameliorated by the redaction and was minor as

10 compared with the substantial amount of information that had been presented to the

11 jury, thus rendering a mistrial unnecessary.

12        “The trial court has broad discretion in controlling the conduct and remedying

13 the errors of counsel during trial.” State v. Duffy, 1998-NMSC-014, ¶ 46, 126 N.M.

14 132, 967 P.2d 807. We note that “the trial court is in the best position to evaluate the

15 significance of any alleged prosecutorial errors.” Id. “Only in the most exceptional

16 circumstances should we, with the limited perspective of a written record, determine

17 that all the safeguards at the trial level have failed. Only in such circumstances should

18 we reverse the verdict of a jury and the judgment of a trial court.” State v. Sosa, 2009-

19 NMSC-056, ¶ 25, 147 N.M. 351, 223 P.3d 348.


                                              14
 1        The conduct in question in this case does not rise to the type or level of

 2 persistent or egregious misconduct determined by our courts to require a new trial.

 3 See State v. Breit, 1996-NMSC-067, ¶ 42, 122 N.M. 655, 930 P.2d 792 (describing

 4 the prosecutorial misconduct as being “pervasive” where direct admonitions by the

 5 court were ignored and despite objections being raised and sustained, the prosecutor

 6 continued to solicit irrelevant testimony, directed belligerent remarks at defense

 7 counsel, and throughout trial, exhibited verbal and nonverbal conduct that were highly

 8 prejudicial); State v. Huff, 1998-NMCA-075, ¶ 23, 125 N.M. 254, 960 P.2d 342

 9 (describing prosecutorial misconduct where there was a persistent and inappropriate

10 line of questioning despite repeated warnings from the court and consistently

11 sustained objections).

12        In this case, while the prosecutor may have disregarded or misconstrued a

13 ruling, the district court immediately exercised its discretion in remedying the

14 misconduct, and the indiscretion was not repeated after the district court warned the

15 prosecutor. Under these circumstances, reversal is not warranted. We agree with the

16 district court’s discretionary ruling and determine that the comments did not so taint

17 the trial as to require a mistrial. Cf. Breit, 1996-NMSC-067, ¶ 32 (barring retrial

18 “when [prosecutorial misconduct] is so unfairly prejudicial to the defendant that it

19 cannot be cured by means short of a mistrial or a motion for a new trial”).


                                             15
 1        Defendant further argues that the cumulative impact of the irregularities he

 2 asserts so prejudiced him that he was deprived the fundamental right to a fair trial.

 3 The doctrine of cumulative error “requires reversal of a defendant’s conviction when

 4 the cumulative impact of errors which occurred at trial was so prejudicial that the

 5 defendant was deprived of a fair trial.” State v. Martin, 101 N.M. 595, 600-01, 686

 6 P.2d 937, 942-43 (1984). Here, only two conceivable errors occurred, namely the

 7 State’s comment regarding Defendant’s alibi during its opening statement and its later

 8 reference in closing argument to Defendant’s prior conviction. The cumulative effect

 9 of these comments did not deprive Defendant of a fair trial. See State v. Woodward,

10 121 N.M. 1, 12, 908 P.2d 231, 242 (1995) (stating that the cumulative error doctrine

11 is to be strictly applied and not invoked if the defendant received a fair trial), aff’d in

12 part, rev’d in part on other grounds sub nom. Woodward v. Williams, 263 F.3d 1135

13 (10th Cir. 2001); see also State v. Barr, 2009-NMSC-024, ¶ 63, 146 N.M. 301, 210

14 P.3d 198 (stating “a defendant is entitled to a fair trial but not a perfect one”

15 (alteration omitted) (internal quotation marks and citation omitted)). We reject

16 Defendant’s cumulative error argument.

17 Jury Issue

18        Defendant argues on appeal that his right to a fair and impartial jury and a

19 juror’s right to an interpreter were violated when the district court failed to obtain an


                                               16
 1 interpreter for a juror with limited English comprehension. On this basis, Defendant

 2 asks that we reverse his convictions.

 3         After the jury retired to deliberate, a juror sent a note to the district court

 4 stating, “Mr. [Rivera] feels that he may have only understood [sixty-five] or [seventy

 5 percent] of the words that were used. He is worried he may make a mistake.” The

 6 district court and attorneys for both sides, along with Mr. Rivera, discussed the matter.

 7 The district court explained it was too late to get a certified interpreter and considered

 8 the possibility of bringing one of the alternate jurors back to deliberate. The district

 9 court interviewed Mr. Rivera. During the interview, the juror explained that he

10 understood sixty-five to seventy percent of the testimony from eye witnesses Cho and

11 Beams, who spoke heavily accented English, and that he had trouble understanding

12 a portion of the testimony of defense witness Margaret Montano. Mr. Rivera stated

13 he fully understood the testimony from the seven other witnesses presented, including

14 that of Defendant, two alibi witnesses, an investigator from the public defender’s

15 office, and three prosecution witnesses.

16         Mr. Rivera agreed, however, that he would be willing to try to deliberate, and

17 if he found that he had trouble, he would alert the district court. After interviewing

18 the alternate and learning that the alternate had discussed her “observation of what the

19 verdict would be” with a detective and a police officer, the district court allowed the


                                               17
 1 attorneys to discuss the matter off the record to give them an opportunity to agree

 2 upon a solution.

 3        When the record resumed, defense counsel stated “we have come up with a

 4 compromise solution. At least temporarily, [we] agree to allow [Mr. Rivera] to return

 5 and at least deliberate for a period of time, perhaps an hour, [to] see if he’s able to do

 6 this. If not, maybe we can explore getting an interpreter.” The State agreed. The

 7 district court confirmed with Mr. Rivera that he would be willing to “proceed to

 8 deliberate as a juror . . . [and] work through the evidence.” Nothing further was heard

 9 from the jury until its verdict was delivered. The jury was polled and all indicated

10 agreement on the verdict.

11        Eleven days after the guilty verdict was entered, Defendant filed a motion for

12 a new trial on the grounds that Mr. Rivera had trouble understanding the testimony of

13 three witnesses and that he had been deprived his right to an interpreter. Defendant

14 also argued that he had been deprived of his right to a fair and impartial jury. At the

15 time of the hearing on the motion for a new trial, the motion had been pending for

16 more than 120 days, during which time Defendant had not taken adequate steps to

17 secure a hearing. The district court denied the motion “based upon the time limits . . .

18 it could have been docketed and we could have heard that within thirty days.”




                                               18
 1 Defendant appeals from the denial of the motion for a new trial, and we determine that

 2 the motion fails on its merits.

 3        We first note that at no point between learning that Mr. Rivera had somewhat

 4 limited English comprehension and the presentation of the verdict did Defendant

 5 move for a new trial. Rather, defense counsel waited until the jury delivered its

 6 verdict before filing a motion for a new trial. Second, requesting a new trial only after

 7 an unfavorable verdict may be considered “gamesmanship.” See State v. Nguyen,

 8 2008-NMCA-073, ¶ 22, 144 N.M. 197, 185 P.3d 368 (rejecting “the idea that a

 9 defendant may raise no objection to, and even encourage, a procedure designed to

10 share an interpreter and then after he is convicted claim that the procedure requires

11 reversal”); see also State v. Arellano, 1998-NMSC-026, ¶¶ 18-19, 125 N.M. 709, 965

12 P.2d 293 (expressing disdain for gamesmanship where defense counsel did not alert

13 the court to the fact that the jury had not been sworn and waited for the verdict before

14 objecting). As Defendant agreed to allow Mr. Rivera to deliberate and did not request

15 a mistrial until after a verdict was delivered, he cannot prevail on a claim that the very

16 agreement he made below requires reversal in this Court.

17 Double Jeopardy

18        Defendant argues and the State concedes that Defendant’s convictions for

19 armed robbery and assault with intent to commit armed robbery and his convictions


                                               19
 1 for attempted armed robbery and assault with intent to commit armed robbery were

 2 based on unitary conduct and violated double jeopardy. Although we are not bound

 3 by the State’s concession, State v. Caldwell, 2008-NMCA-049, ¶ 8, 143 N.M. 792,

 4 182 P.3d 775, we agree and reverse Defendant’s two convictions for assault with

 5 intent to commit armed robbery.

 6        We review the constitutional claim of a double jeopardy violation de novo.

 7 State v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77. Article II,

 8 Section 15 of the New Mexico Constitution prohibits double jeopardy, including

 9 claims “in which a single act results in multiple charges under different criminal

10 statutes[.]” State v. Bernal, 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289.

11 Defendant raises a multiple punishment, double-description issue, arguing that his

12 convictions charged under different statutes are based on the same conduct. A double-

13 description claim requires us to consider whether Defendant is “charged with

14 violations of multiple statutes that may or may not be deemed the same offense for

15 double jeopardy purposes.” Swafford v. State, 112 N.M. 3, 8, 810 P.2d 1223, 1228

16 (1991). First, we determine “whether the conduct underlying the offenses is unitary,

17 i.e., whether the same conduct violates both statutes.” Id. at 13, 810 P.2d at 1233. If

18 the conduct is unitary, we then determine whether the Legislature intended to create

19 separately punishable offenses based on the statutes at issue. Id. at 14, 810 P.2d at


                                             20
 1 1234. “Only if the first part of the test is answered in the affirmative, and the second

 2 in the negative, will the double jeopardy clause prohibit multiple punishment at the

 3 same trial.” Id. at 13, 810 P.2d at 1233.

 4        In determining whether conduct is unitary, this Court considers whether the

 5 defendant’s acts are separated by “sufficient indicia of distinctness.” Id. at 13-14, 810

 6 P.2d at 1233-34.

 7        In making this determination, we look at whether the acts in question
 8        were separated in time and space, the quality and nature of the acts, and
 9        the objectives and results of the acts. We also consider whether the facts
10        presented at trial establish that the jury reasonably could have inferred
11        independent factual bases for the charged offenses.

12 State v. Schackow, 2006-NMCA-123, ¶ 18, 140 N.M. 506, 143 P.3d 745 (internal

13 quotation marks and citations omitted). “We answer the question of whether the

14 Legislature intended multiple punishments for unitary conduct by asking whether each

15 statute proscribing the offense requires proof of a fact the other does not.” State v.

16 Carrasco, 1997-NMSC-047, ¶ 23, 124 N.M. 64, 946 P.2d 1075.

17        The fact that Defendant pointed a gun at Cho’s head and demanded money

18 supported his convictions of assault with intent to commit armed robbery and armed

19 robbery. The actions were not separated by time or space as they occurred almost

20 simultaneously. Thus, they were unitary. Likewise, Defendant’s simultaneous acts

21 of pointing a gun at Beams’ back and demanding a purse were used to support


                                               21
 1 convictions for both assault with intent to commit armed robbery and attempted armed

 2 robbery. Defendant’s actions toward Beams were also unitary.

 3        Having determined that the conduct was unitary, we turn to whether the

 4 Legislature intended separate punishments for the same conduct. In doing so, “we

 5 assess whether each statutory provision requires proof of an additional fact that the

 6 other does not, focusing on the elements of the offenses, not the evidence presented

 7 at trial.” Schackow, 2006-NMCA-123, ¶ 21 (alteration omitted) (internal quotation

 8 marks and citation omitted). “Where the elements are the same, one crime may

 9 subsume the other.” Id. The “enumeration of different aggravating factors, or

10 alternative methods of committing an offense, [do] not evince a legislative intent to

11 authorize multiple punishments for the same act.” State v. Crain, 1997-NMCA-101,

12 ¶ 20, 124 N.M. 84, 946 P.2d 1095. “[W]hen an offense may be charged in alternate

13 ways, we look only to the elements of the statutes as charged to the jury and disregard

14 the inapplicable statutory elements.” Schackow, 2006-NMCA-123, ¶ 21 (internal

15 quotation marks and citation omitted). We now turn to comparison of the elements

16 of attempted armed robbery, armed robbery, and assault with intent to commit armed

17 robbery.

18        Defendant was found guilty of assault with intent to commit armed robbery as

19 to both Cho and Beams. In order to find Defendant guilty on these two counts, the


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 1 jury had to find that Defendant threatened each victim with a firearm, causing them

 2 to believe he was going to intrude on their bodily integrity or personal safety in a rude,

 3 insolent, or angry manner, and that in doing so, he intended to commit armed robbery

 4 of each victim. Defendant was also found guilty of attempted armed robbery of

 5 Beams and of armed robbery of Cho. For the jury to find Defendant guilty of these

 6 two crimes, the jury had to determine that Defendant used a deadly weapon and the

 7 threat of violent force as a means of attempting to deprive Beams and as a means of

 8 depriving Cho of their property.

 9        “An offense is a true lesser included offense of another if its elements are

10 completely subsumed by another, greater offense.” Swafford, 112 N.M. at 12, 810

11 P.2d at 1232. Here, assault with intent to commit armed robbery is subsumed by the

12 greater offenses of armed robbery and attempted armed robbery. In doing the acts that

13 constituted assault with intent to commit armed robbery, specifically, threatening the

14 victims with a firearm, Defendant simultaneously committed armed robbery of Cho

15 and attempted armed robbery of Beams. Thus, we determine that Defendant’s right

16 to be free from double jeopardy was violated. We therefore vacate the two assault

17 convictions and remand to the district court for re-sentencing in accordance with this

18 determination. See State v. Gonzales, 2007-NMSC-059, ¶ 10, 143 N.M. 25, 172 P.3d




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1 162 (“If double jeopardy is violated, [an appellate court] must vacate the conviction

2 for the lesser offense.”).

3 CONCLUSION

4        We vacate Defendant’s two convictions for assault with intent to commit armed

5 robbery and remand to the district court for re-sentencing. On all remaining

6 convictions, we affirm.

7        IT IS SO ORDERED.

8                                        ______________________________
9                                        JONATHAN B. SUTIN, Judge


10 WE CONCUR:


11 _______________________________
12 JAMES J. WECHSLER, Judge


13 _______________________________
14 LINDA M. VANZI, Judge




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