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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. 30,318

 5 JOSE MARTINEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Kenneth Martinez, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   Francine A. Chavez, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Liane E. Kerr
15 Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 SUTIN, Judge.
 1        A jury convicted Defendant Jose Martinez of two counts of kidnapping in

 2 violation of NMSA 1978, Section 30-4-1 (2003), two counts of armed robbery with

 3 a firearm enhancement in violation of NMSA 1978, Section 30-16-2 (1973) and

 4 NMSA 1978, Section 31-18-16(C) (1993), and one count of conspiracy to commit

 5 armed robbery in violation of NMSA 1978, Section 30-28-2 (1979) and Section 30-

 6 16-2. Defendant appeals raising issues of double jeopardy, insufficient evidence,

 7 ineffective assistance of counsel, and improper admission of prejudicial evidence.

 8 Because we conclude that Defendant’s convictions for kidnapping and armed robbery

 9 violated his right to be free from double jeopardy, we remand to the district court with

10 instructions to vacate the kidnapping convictions. On all other counts, we affirm.

11 BACKGROUND

12        As background, we provide the following summary of the facts. We provide

13 more detailed facts pertinent to our analysis within the body of the Opinion. In April

14 2006, Monica Zamora and Valerie Ramos (Victims) reported to law enforcement that

15 their sister, Regina Salazar (a known drug user), and their niece (the child) were

16 missing. Following the report, they commenced their own search to find Regina and

17 the child. They drove to a neighborhood where Regina was known to have been

18 “back and forth” in “several houses.” As they drove around, they saw a woman,

19 Claudia, walking down the street, and because Regina had previously “stayed with”


                                              2
 1 Claudia, they requested her help with the search. They gave Claudia a ride to a house

 2 where she said she could “talk to a few people [to] see if they ha[d] seen [Regina,]”

 3 but no one had. Moncia and Valerie parted with Claudia and continued their search.

 4        Later, as they drove by another house looking for Regina they again saw

 5 Claudia, but this time she was standing in the driveway of a house. Claudia waved

 6 them down and told them that she knew where Regina was. Claudia had Monica and

 7 Valerie wait while she made a phone call, then she got into the car and directed them

 8 to an apartment complex, where Defendant was outside. Claudia told Monica and

 9 Valerie that Defendant knew where Regina and the child were and that he would take

10 them there. Defendant and Claudia got into the backseat, Valerie drove, and Monica

11 sat in the passenger’s seat.

12        Valerie drove according to Defendant’s directions.         Shortly thereafter,

13 Defendant began demanding money, and when Valerie told him that they (Monica and

14 Valerie) did not have any money, Defendant pulled a gun out of his pants. This

15 incident, which gave rise to the charges and subsequent convictions, will be discussed

16 in greater detail later in this Opinion.

17        After considering each of Defendant’s arguments, we conclude that his double

18 jeopardy rights were violated by the kidnapping and armed robbery convictions, and

19 we remand with instructions to vacate the lesser offense of kidnapping. We further


                                              3
 1 conclude that the State presented sufficient evidence to support each of Defendant’s

 2 convictions, that any error in the admission of evidence at trial did not constitute

 3 fundamental error, and that Defendant failed to make a prima facie showing of

 4 ineffective assistance of counsel. Consequently, we reverse Defendant’s kidnapping

 5 convictions and affirm his convictions of armed robbery and conspiracy to commit

 6 armed robbery.

 7 DISCUSSION

 8 Double Jeopardy

 9        Defendant argues that his sentence was unconstitutional because it violated his

10 right to be free from double jeopardy. He maintains that the armed robbery

11 convictions and the kidnapping convictions were based on unitary conduct and that

12 the kidnapping was subsumed within the armed robbery. Accordingly, Defendant

13 requests that we “remand with instructions to vacate the lesser offense.” We review,

14 de novo, Defendant’s claim that his right to be free from double jeopardy was

15 violated. State v. Quick, 2009-NMSC-015, ¶ 6, 146 N.M. 80, 206 P.3d 985.

16        This is a double-description, multiple-punishment case. See Swafford v. State,

17 112 N.M. 3, 8, 810 P.2d 1223, 1228 (1991) (stating that double-description cases are

18 those in which “the defendant is charged with violations of multiple statutes that may

19 or may not be deemed the same offense for double jeopardy purposes”). In this


                                             4
 1 context, the proper analysis to determine whether a double jeopardy violation has

 2 occurred is a two-pronged test known as the Swafford test. State v. Armendariz, 2006-

 3 NMSC-036, ¶ 20, 140 N.M. 182, 141 P.3d 526. The Swafford test first requires a

 4 determination of whether the conduct underlying the offenses was unitary; in other

 5 words, whether “the same conduct violates both statutes.” Swafford, 112 N.M. at 13,

 6 810 P.2d at 1233. The second aspect of the test “focuses on the statutes at issue to

 7 determine whether the [L]egislature intended to create separately punishable

 8 offenses.” Id. Double jeopardy prohibits multiple punishments in the same trial only

 9 when the conduct was unitary and the Legislature did not intend to create separately

10 punishable offenses. Id.

11        “In determining whether [a d]efendant’s conduct was unitary, we consider

12 whether [the d]efendant’s acts were separated by sufficient indicia of distinctness.”

13 State v. Lopez, 2008-NMCA-002, ¶ 16, 143 N.M. 274, 175 P.3d 942 (internal

14 quotation marks and citation omitted). “Distinctness may . . . be established by the

15 existence of an intervening event, the defendant’s intent as evinced by his or her

16 conduct and utterances, the number of victims, and the behavior of the defendant

17 between acts.” Id. (internal quotation marks and citation omitted). Defendant

18 contends that the kidnapping and the armed robbery charges arose from the single

19 incident of Defendant having held Victims against their will in order to complete the


                                             5
 1 armed robbery. The State conceded as much at trial. And we agree. We therefore

 2 move to the second aspect of the Swafford test.

 3        Where, as here, the Legislature has not expressly provided for multiple

 4 punishments, we must determine whether one statute is subsumed within another.

 5 Swafford, 112 N.M. at 14, 810 P.2d at 1234. If we conclude that one statute is

 6 subsumed within the other, we must likewise conclude that, for double jeopardy

 7 purposes, the statutes are the same, and multiple punishments cannot stand. Id.

 8 Alternatively, if the elements of the statute are not subsumed within one another, this

 9 leads only to “a presumption that the statutes punish distinct offenses[,]” and we must

10 further examine whether “other indicia of legislative intent” are present. Id.

11        In determining whether one statute is subsumed within another, we look to the

12 statutory text to determine whether “each statute requires an element of proof not

13 required by the other[.]” Armendariz, 2006-NMSC-036, ¶ 22. If each requires proof

14 of a fact that the other does not, we presume that they describe distinct offenses,

15 “notwithstanding a substantial overlap in the proof offered to establish the crimes[.]”

16 Id. ¶ 21 (internal quotation marks and citation omitted). We turn now to the jury

17 instructions, which became the law of the case. See § 30-4-1; § 30-16-2; see also

18 State v. Armijo, 2005-NMCA-010, ¶ 22, 136 N.M. 723, 104 P.3d 1114 (“[W]e look

19 only to the elements of the statutes as charged to the jury and disregard the


                                              6
 1 inapplicable statutory elements.”); State v. Armijo, 1999-NMCA-087, ¶ 8, 127 N.M.

 2 594, 985 P.2d 764 (“[J]ury instructions become the law of the case[.]” (internal

 3 quotation marks and citation omitted)).

 4         On the kidnapping charges, the jury was instructed, in pertinent part, that to find

 5 Defendant guilty of kidnapping the State was required to prove that: “1. . . .

 6 [D]efendant restrained or confined [each Victim respectively] by force or intimidation;

 7 [and] 2. . . . [D]efendant intended to hold [each Victim respectively] against [her] will

 8 for the purpose of making [her] do something or for the purpose of keeping [her] from

 9 doing something[.]” On the other hand, for the jury to find Defendant guilty of armed

10 robbery, the State was required to prove that: “1. . . . [D]efendant took and carried

11 away [money or personal property] from [each Victim respectively], or from her

12 immediate control intending to permanently deprive [her] of the property; 2. . . .

13 [D]efendant was armed with a handgun; [and] 3. . . . [D]efendant took the [money or

14 personal property] by threatened force or violence[.]”

15         The State argues that the two crimes are distinct because each requires elements

16 that the other does not. Specifically, the State contends that “armed robbery does not

17 require . . . taking, restraining, transporting[,] or confining . . . a person[; and] . . . the

18 crime of kidnapping does not require the taking of anything of value with a weapon

19 by use or threatened use of force.” At trial, however, the State’s theory of the case


                                                  7
 1 was that Defendant’s having aimed the gun at Victims constituted the force or

 2 intimidation required for the kidnapping charge and that Defendant’s use of the gun

 3 likewise constituted the threatened use of force or violence required under the robbery

 4 statute. Further, the State posited that the underlying purpose of Defendant’s having

 5 held Victims against their will (for the kidnapping charge) was taking their money and

 6 property. And the State also indicated that Defendant’s having taken Victims’ money

 7 and property likewise met the robbery element of taking something of value from

 8 Victims. We think the State correctly analyzed these elements. Therefore, contrary

 9 to the State’s appellate position, under its theory of the case at trial, and as we also see

10 it, under the facts of this case, the crime of kidnapping was subsumed within the crime

11 of armed robbery, thereby rendering the crimes indistinct for purposes of double

12 jeopardy. In other words, this was not a case in which “each statute require[d] an

13 element of proof not required by the other[.]” Armendariz, 2006-NMSC-036, ¶ 22.

14        Having concluded that the conduct underlying both the kidnapping and the

15 armed robbery was unitary, and having likewise concluded that, under the facts here,

16 the kidnapping was subsumed within the robbery, we further conclude that

17 Defendant’s right to be free from double jeopardy was violated when he was

18 sentenced separately for both crimes.            On remand, Defendant’s kidnapping

19 convictions will be vacated. See Kersey v. Hatch, 2010-NMSC-020, ¶ 12, 148 N.M.


                                                8
 1 381, 237 P.3d 683 (“If double jeopardy is violated, we must vacate the conviction for

 2 the lesser offense.” (internal quotation marks and citation omitted)). Compare § 30-

 3 16-2 (stating that armed robbery with a deadly weapon, for second and subsequent

 4 offenses, is a first degree felony), with § 30-4-1(B) (stating that kidnapping is a second

 5 degree felony when the defendant voluntarily frees the victim in a safe place and the

 6 defendant has not inflicted a physical injury or a sexual offense upon the victim).

 7 Sufficiency of the Evidence

 8        Defendant claims that there was insufficient evidence to convict him of

 9 kidnapping, armed robbery, and conspiracy. Whether there was sufficient evidence

10 to support a conviction is a question of law that we review de novo. State v.

11 Neatherlin, 2007-NMCA-035, ¶ 8, 141 N.M. 328, 154 P.3d 703. “In reviewing the

12 sufficiency of evidence used to support a conviction, we resolve all disputed facts in

13 favor of the [prosecution], indulge all reasonable inferences in support of the verdict,

14 and disregard all evidence and inferences to the contrary.” State v. Rojo, 1999-

15 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We “make a legal determination of

16 whether the evidence viewed in this manner could justify a finding by any rational

17 trier of fact that each element of the crime charged has been established beyond a

18 reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994)




                                               9
 1 (internal quotation marks and citation omitted). “[W]e do not reweigh the evidence

 2 or substitute our judgment for that of the jury.” Neatherlin, 2007-NMCA-035, ¶ 8.

 3 A.     Conspiracy

 4        To support a conviction for conspiracy to commit armed robbery, the State was

 5 required to prove that Defendant and Claudia “by words or acts agreed together to

 6 commit [a]rmed [r]obbery; [and that] . . . [D]efendant and the other person intended

 7 to commit [a]rmed [r]obbery[.]” See § 30-28-2(A); § 30-16-2. Defendant argues that

 8 the evidence did not support a finding that there was “an agreement of any kind”

 9 between him and Claudia. He maintains that the State failed to present evidence of

10 Claudia’s participation in the armed robbery or to present evidence that she intended

11 or agreed to rob Victims.

12        “A conspiracy may be established by circumstantial evidence. Generally, the

13 agreement is a matter of inference from the facts and circumstances.” State v. Ross,

14 86 N.M. 212, 214, 521 P.2d 1161, 1163 (Ct. App. 1974). At trial, the State presented

15 evidence that Claudia waved Victims down and told them that she knew where their

16 sister was. Claudia told Victims to “hold on[,]” while she made a phone call. After

17 the call, she got into Victims’ car and directed them to an apartment complex where

18 Defendant was standing outside. Claudia got out of the car and spoke to, then “made

19 out” with Defendant, then she told Victims that Defendant knew where Victims’ sister


                                            10
 1 and the child were, and that Defendant had to go with them. Having driven according

 2 to Defendant’s direction for a time, “all of a sudden, [Claudia and Defendant began]

 3 talking in Spanish[.]” And subsequently, “all of a sudden, [Defendant] started . . .

 4 telling [Valerie] that he wanted money.” “Before [Valerie [knew] it, [Defendant]

 5 pulled a gun out of his pants and . . . [e]verything went crazy inside the car.” After

 6 Defendant had demanded money from Victims at gunpoint, and after Valerie told him

 7 she did not have any money, Claudia repeatedly “scream[ed]” to Defendant, “‘I’m

 8 sorry. I’m sorry.’” Following the robbery, Defendant and Claudia together “jumped

 9 out of the car[.]”

10        On these facts, and indulging in all reasonable inferences in support of the

11 verdict, we conclude that there was sufficient circumstantial evidence to support the

12 jury’s conspiracy finding. The jury could reasonably have inferred that Defendant and

13 Claudia agreed together to commit the armed robbery and that the agreement was

14 formed when Claudia made the phone call as Victims waited in the car, or when

15 Claudia and Defendant met in front of the apartment complex, or in the car when

16 Claudia and Defendant were speaking to each other in Spanish. Similarly, the jury

17 could reasonably have inferred that Claudia and Defendant intended to commit the

18 armed robbery from Claudia’s having told Defendant, during the armed robbery, that

19 she was sorry, or from the fact that Claudia and Defendant left the car together, or


                                             11
 1 from both of these facts together, both of which reasonably support a conclusion that

 2 Claudia and Defendant were acting in concert. In sum, the circumstantial evidence

 3 presented at trial supported the jury’s inference of conspiracy. We see no basis for

 4 reversal on this ground.

 5 B.     Armed Robbery

 6        To find Defendant guilty of armed robbery, the jury was instructed that they had

 7 to find that Defendant took and carried away money and personal property from

 8 Victims by threatened force or violence and that in doing so he used a gun. See § 30-

 9 16-2; § 31-18-16(C). Defendant argues that “[b]ecause no gun was found, a

10 reasonable jury could find there wasn’t an armed robbery[.]” Additionally, Defendant

11 appears to argue that there was no evidence that Victims’ property was taken by

12 “threatened use of force.”

13        Victims both testified that Defendant had a gun. And Victims both testified that

14 they complied with Defendant’s demands of money and personal property because he

15 had the gun “pulled out” or “point[ed]” at them. The evidence at trial was sufficient

16 to support the jury’s finding that Defendant took and carried away Victims’ property

17 by threatened use of a gun. That a hypothetical “reasonable jury could find there

18 wasn’t an armed robbery” because Defendant’s gun was not found is not persuasive

19 to this Court. See State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d


                                             12
 1 1057 (stating that the appellate courts will not “second-guess the jury’s decision

 2 concerning the credibility of witnesses, reweigh the evidence, or substitute its

 3 judgment for that of the jury” (alterations, internal quotation marks, and citation

 4 omitted)); see also Couch v. Astec Indus., Inc., 2002-NMCA-084, ¶ 39, 132 N.M. 631,

 5 53 P.3d 398 (“[T]he question is not whether substantial evidence exist[ed] to support

 6 the opposite result, but rather whether [substantial] evidence support[ed] the result

 7 reached.” (internal quotation marks and citation omitted)).

 8 C.     Kidnapping

 9        Defendant contends that his kidnapping convictions were not supported by

10 sufficient evidence. Because we remand to the district court with instructions to

11 vacate Defendant’s kidnapping convictions, we will not address this issue.

12 Evidentiary Issue

13        Defendant argues that, pursuant to the Rules of Evidence, the testimony from

14 “several witnesses” who stated that following the incident, as Victims were being

15 interviewed by the police, gun shots were heard, should have been excluded.

16 Defendant makes this claim pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982

17 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985). Because the

18 argument was not preserved, Defendant requests that we review for fundamental error.

19 Fundamental error applies “to prevent a miscarriage of justice, . . . if the question of


                                              13
 1 guilt is so doubtful that it would shock the conscience to permit the conviction to

 2 stand.” State v. Gomez, 2001-NMCA-080, ¶ 21, 131 N.M. 118, 33 P.3d 669

 3 (omission in original) (alteration, internal quotation marks, and citation omitted).

 4        Defendant maintains that the evidence of “shots fired” was not relevant to the

 5 charges of armed robbery and/or kidnapping and should have been excluded pursuant

 6 to Rule 11-401 NMRA. See id. (stating that only relevant evidence is admissible).

 7 He also contends, pursuant to Rule 11-403 NMRA, that the evidence was more

 8 prejudicial than probative and that it should have been excluded on that basis. He

 9 concludes that he was deprived of a fair trial by virtue of admission of the “unrelated,

10 prejudicial evidence” which, in his view, “tipped the balance toward conviction” by

11 “present[ing] the jury with the certainty that [he] possessed a weapon[.]”

12        Any error in the admission of the “shots fired” testimony did not rise to the

13 level of fundamental error. See State v. Cunningham, 2000-NMSC-009, ¶ 13, 128

14 N.M. 711, 998 P.2d 176 (“The doctrine of fundamental error is to be resorted to in

15 criminal cases only for the protection of those whose innocence appears indisputably,

16 or open to such question that it would shock the conscience to permit the conviction

17 to stand.” (internal quotation marks and citation omitted)). Considering the strength

18 of the legitimate evidence arrayed against Defendant regarding his having used a gun

19 in the commission of the robbery and kidnapping, this is not a case in which


                                              14
 1 Defendant’s innocence appears indisputable or otherwise so questionable that it would

 2 shock the conscience of this Court to permit the conviction to stand.

 3 Defendant’s Ineffective Assistance of Counsel Claim

 4        Defendant claims that his counsel was ineffective. He identifies a number of

 5 alleged mistakes by his trial counsel and requests reversal on this basis. “We review

 6 claims of ineffective assistance of counsel de novo.” State v. Quinones, 2011-NMCA-

 7 018, ¶ 28, 149 N.M. 294, 248 P.3d 336. “The test for ineffective assistance of counsel

 8 is whether defense counsel exercised the skill of a reasonably competent attorney.”

 9 State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384.

10        To establish a prima facie case of ineffective assistance of counsel, [the
11        d]efendant must show that (1) counsel’s performance was deficient in
12        that it fell below an objective standard of reasonableness; and (2) that
13        [the d]efendant suffered prejudice in that there is a reasonable probability
14        that, but for counsel’s unprofessional errors, the result of the proceeding
15        would have been different.

16 Id. (internal quotation marks and citation omitted).

17        Although Defendant points to various alleged errors by his counsel, he fails to

18 make any argument that would establish a prima facie case of ineffective assistance

19 of counsel under either aspect of the test stated in Aker, 2005-NMCA-063, ¶ 34.

20 Specifically, Defendant claims that his counsel erred in failing to object to or cross-

21 examine witnesses regarding the “shots fired” testimony. He fails, however, to show



                                              15
 1 how “the result of the proceeding would have been different” had his counsel acted

 2 differently. Id. (internal quotation marks and citation omitted).

 3        Defendant further contends that although he wanted to testify, at the direction

 4 of his counsel, he did not testify. There is no indication in the record, however, that

 5 Defendant wanted to testify or that he asked his counsel to put him on the witness

 6 stand. Nor was there any indication that counsel failed to discuss with him the

 7 positive and negative aspects of taking the witness stand. Further, there was no

 8 indication that Defendant’s counsel told him that he could not testify or that he

 9 otherwise improperly refused to allow him to testify. Defendant’s counsel may well

10 have made a tactical decision to advise Defendant not to testify, and “[o]n appeal, [the

11 appellate court] will not second guess the trial strategy and tactics of the defense

12 counsel.” Lytle v. Jordan, 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666

13 (internal quotation marks and citation omitted). Moreover, Defendant has not argued

14 that his counsel’s advice in this regard fell below an objective standard of

15 reasonableness or that, but for the alleged error, the result of the proceeding would

16 have been different. Aker, 2005-NMCA-063, ¶ 34.

17        Finally, Defendant argues that his counsel “failed to file a [n]otice of [a]ppeal

18 or [d]ocketing [s]tatement” and that his counsel “only filed a [d]ocketing [s]tatement

19 at the directive of the [district] court.” Notwithstanding any error on behalf of his


                                              16
 1 counsel in this regard, Defendant fails to indicate how, “but for [his] counsel’s

 2 unprofessional error[], the result of the proceeding would have been different.” Id.

 3 (internal quotation marks and citation omitted). As Defendant’s appeal was timely

 4 filed and is, in this Opinion, being addressed by this Court, we fail to see how

 5 Defendant was prejudiced by ineffective assistance of counsel by his attorney’s

 6 failure, without direction from the district court, to file a docketing statement. As

 7 Defendant has failed to make a prima facie showing that any of his counsel’s alleged

 8 errors constituted ineffective assistance of counsel, his argument in this regard does

 9 not provide a basis for reversal.

10 CONCLUSION

11        On remand to the district court, Defendant’s kidnapping convictions shall be

12 vacated. On all other counts, we affirm.

13        IT IS SO ORDERED.


14                                         __________________________________
15                                         JONATHAN B. SUTIN, Judge
16 WE CONCUR:


17 ______________________________________
18 CYNTHIA A. FRY, Judge


19 ______________________________________
20 RODERICK T. KENNEDY, Judge

                                              17
