 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-Appellant,

 9 v.                                                                           NO. 29,805

10 GREG COLLIER,

11          Defendant-Appellee.

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

14   Gary K. King, Attorney General
15   Margaret McLean, Assistant Attorney General
16   Joel Jacobsen, Assistant Attorney General
17   Santa Fe, NM

18 for Appellant

19 Caren I. Friedman
20 Santa Fe, NM

21 The Pickett Law Firm
22 Lawrence M. Pickett
23 Las Cruces, NM

24 for Appellee

25                                 MEMORANDUM OPINION

26 VANZI, Judge.
 1        The State appeals from a district court order granting Defendant’s motion to

 2 dismiss. The district court found that misdemeanor cruelty to animals is not a lesser

 3 included offense of felony extreme cruelty to animals and that the State may not

 4 proceed with a prosecution for cruelty to animals when no indictment or information

 5 ever charged Defendant with that crime. On appeal, the State argues that the district

 6 court erred in granting Defendant’s motion to dismiss prior to a third trial because (1)

 7 the prosecution of misdemeanor cruelty to animals is a continuation of the prosecution

 8 of felony extreme cruelty to animals because the first is a lesser included crime of the

 9 second, and thus, Defendant was charged within the limitations period; or in the

10 alternative (2) Defendant waived the statute of limitations on prosecution of

11 misdemeanor cruelty to animals when Defendant did not object to the giving of a jury

12 instruction on cruelty to animals at the second trial. We hold that cruelty to animals

13 is a lesser included offense of extreme cruelty to animals and that the statute of

14 limitations did not bar trial on the misdemeanor charge. We further hold that

15 subsequent prosecution of the Defendant on the misdemeanor charge following his

16 acquittal on the felony charge would violate the constitutional guarantee against

17 double jeopardy. We therefore affirm.

18 BACKGROUND

19        Defendant Greg Collier was indicted on August 31, 2006, on one count of

20 extreme cruelty to animals, a fourth degree felony, in violation of NMSA 1978,

                                              2
 1 Section 30-18-1(E) (2007). The indictment was based on an incident in February

 2 2006 in which a colt Defendant was training died.

 3        Defendant was tried twice and filed a motion to dismiss prior to the

 4 commencement of a third trial. At the first trial in March 2008, the jury was

 5 instructed on the charged felony offense, Section 30-18-1(E), extreme cruelty to

 6 animals. The jury was unable to reach a unanimous verdict, and the district court

 7 declared a mistrial. Defendant’s second trial took place in January 2009. After the

 8 close of evidence, the jury was again instructed on the extreme cruelty to animals

 9 charge. The district court—at the State’s request—also instructed the jury on a

10 misdemeanor charge of cruelty to animals in violation of Section 30-18-1(B). The

11 defense did not object to the instruction on the misdemeanor offense, and both charges

12 went to the jury. The second trial jury found Defendant not guilty of felony extreme

13 cruelty to animals and could not reach a unanimous verdict on misdemeanor cruelty

14 to animals. The district court acquitted Defendant of the felony charge and declared

15 a mistrial on the misdemeanor charge based on manifest necessity due to the hung

16 jury. Defense counsel prepared the order on the verdict and noted that the State’s

17 “power to retry . . . Defendant on the lesser included misdemeanor charge of [c]ruelty

18 to [a]nimals upon which the mistrial was declared, is reserved.”

19        Following the second trial, the State sought to retry Defendant again on

20 misdemeanor cruelty to animals. The third trial was set for July 2009. Prior to the

                                             3
 1 commencement of trial, Defendant filed a motion to dismiss based on statute of

 2 limitations and double jeopardy grounds. In his motion, Defendant argued that he had

 3 been acquitted of the only crime for which he was ever charged, Section 30-18-1(E),

 4 extreme cruelty to animals. Defendant further contended that he had never been

 5 charged with misdemeanor cruelty to animals, that the elements of such a charge are

 6 mutually exclusive of the felony charge, and as a result, the new prosecution of the

 7 misdemeanor charge was barred by the two-year statute of limitations. The district

 8 court agreed and granted the motion to dismiss on the grounds that: (1) the

 9 misdemeanor cruelty to animals is not a lesser included offense of extreme cruelty to

10 animals, and (2) the State failed to commence prosecution on the misdemeanor within

11 the two-year time period provided for by the statute of limitations. The State appeals.

12 DISCUSSION

13        The first question in this case is whether misdemeanor cruelty to animals is a

14 lesser included offense of extreme cruelty to animals. That determination is a

15 question of law, and we review it de novo. See State v. Hernandez, 1999-NMCA-105,

16 ¶ 24, 127 N.M. 769, 987 P.2d 1156 (“Whether the trial court erred by convicting [the

17 d]efendant at a bench trial of an uncharged lesser offense is a question of law that we

18 review de novo.”). “When facts relevant to a statute of limitations issue are not in

19 dispute, the standard of review is whether the district court correctly applied the law

20 to the undisputed facts. We review questions of law de novo.” State v. Kerby, 2007-

                                              4
 1 NMSC-014, ¶ 11, 141 N.M. 413, 156 P.3d 704 (internal quotation marks and citations

 2 omitted).

 3 Cruelty to Animals Is a Lesser Included of Extreme Cruelty to Animals

 4        The district court in this case relied on State v. Schoonmaker, 2005-NMCA-012,

 5 136 N.M. 749, 105 P.3d 302 (Schoonmaker I), rev’d in part on other grounds by State

 6 v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105 (Schoonmaker II),

 7 to find that misdemeanor cruelty to animals is not a lesser included offense of felony

 8 extreme cruelty to animals. Specifically, in granting the motion to dismiss, the district

 9 court found that these were separate offenses and that each offense “contains an

10 element that the other offense does not: the mens rea element.” The State argues that

11 the district court erred by relying on the “strict elements” test of Schoonmaker I to

12 conclude that cruelty to animals is not a lesser included offense of extreme cruelty to

13 animals. For the reasons that follow, we agree.

14        In Schoonmaker I, this Court undertook a double jeopardy analysis and applied

15 the strict elements test set forth in Blockburger v. United States, 284 U.S. 299 (1932),

16 to determine that the Legislature intended to punish intentional child abuse and

17 negligent child abuse as separate offenses. Schoonmaker I, 2005-NMCA-012, ¶¶ 21,

18 26-27. The Schoonmaker I analysis and the analysis in other double jeopardy cases

19 involving multiple prosecutions in effect boils down to a determination of whether one

20 crime is a lesser included offense of the other. See State v. Meadors, 121 N.M. 38, 41,

                                               5
 1 908 P.2d 731, 734 (1995) (explaining that the issue of lesser included offense arises

 2 in several contexts, including the context of double jeopardy and the prohibition of

 3 “successive prosecutions for two offenses arising out of the same conduct if either one

 4 is a lesser-included offense within the other”). However, our Supreme Court in

 5 Meadors made it clear that the analysis of a lesser included offense issue depends on

 6 the context in which it arises; a different analysis applies when the issue is raised in

 7 the double jeopardy context and when it is raised in the context of a prosecutor’s

 8 request for a jury instruction on a lesser included offense. Id. at 41-44, 908 P.2d at

 9 734-37 (explaining that different interests are at stake in each context but that when

10 the state requests a lesser included offense instruction, New Mexico precedent adheres

11 to a hybrid cognate approach rather than the strict elements approach adopted in

12 Blockburger).

13        The present case is analogous to the situation involving the prosecution’s

14 request for a lesser included offense instruction because the State here sought to try

15 Defendant at the third trial on the misdemeanor offense rather than on the felony

16 offense which was the subject of the first trial. Consequently, the appropriate standard

17 to apply is the cognate approach explained in Meadors rather than the strict elements

18 approach set out in Schoonmaker I.

19        The Meadors Court described the least flexible and most straightforward

20 approach as the “strict elements” test. Id. at 42, 908 P.2d at 735. Under this test, the

                                              6
 1 “statutory elements of the lesser offense are a sub-set of the statutory elements of the

 2 greater offense such that it would be impossible ever to commit the greater offense

 3 without also committing the lesser offense.” Id. If they are, the trial court should

 4 instruct the jury on the lesser offense. Id. This strict elements analysis ensures that

 5 a defendant “is on constructive notice that he may have to defend against a lesser

 6 included, uncharged offense.” State v. McGee, 2002-NMCA-090, ¶ 9, 132 N.M. 537,

 7 51 P.3d 1191; see also Meadors, 121 N.M. at 45, 908 P.2d at 738; Hernandez, 1999-

 8 NMCA-105, ¶¶ 24-25.

 9        Meadors went on to define the “cognate approach” in order to give flexibility

10 to the “strict elements” test and stated that the trial court should grant the lesser

11 included instruction if

12        (1) the defendant could not have committed the greater offense in the
13        manner described in the charging document without also committing the
14        lesser offense, and therefore notice of the greater offense necessarily
15        incorporates notice of the lesser offense; (2) the evidence adduced at trial
16        is sufficient to sustain a conviction on the lesser offense; and (3) the
17        elements that distinguish the lesser and greater offenses are sufficiently
18        in dispute such that a jury rationally could acquit on the greater offense
19        and convict on the lesser.

20 Meadors, 121 N.M. at 44, 908 P.2d at 737. In summary, a crime is considered a lesser

21 included offense when, under either the statutory elements or the facts alleged in the

22 charging documents and supported by the evidence, the defendant could not have

23 committed the greater offense without also committing the lesser offense. Id. at 42-


                                               7
 1 43, 908 P.2d at 735-36. In addition, a defendant is considered to be on notice to

 2 defend against uncharged lesser included offenses. Id. at 45, 908 P.2d at 738.

 3        In order to determine whether Defendant could have committed the greater

 4 offense without also committing the lesser offense, we first examine the statutory

 5 elements of cruelty to animals and extreme cruelty to animals. Misdemeanor cruelty

 6 to animals is defined as “(1) negligently mistreating, injuring, killing without lawful

 7 justification or tormenting an animal; or (2) abandoning or failing to provide

 8 necessary sustenance to an animal under that person’s custody or control.” Section

 9 30-18-1(B). The elements for extreme cruelty to animals, on the other hand, consists

10 of “(1) intentionally or maliciously torturing, mutilating, injuring or poisoning an

11 animal; or (2) maliciously killing an animal.” Section 30-18-1(E).

12        Considering the greater and lesser offenses in this case, the only difference

13 between misdemeanor cruelty to animals and felony extreme cruelty to animals is the

14 mens rea requirement. That element alone is insufficient to distinguish the two

15 offenses as being sufficiently in dispute. See Meadors, 121 N.M. at 44, 908 P.2d at

16 737 (noting that based on the allegations in the indictment and the evidence adduced

17 at trial, a jury could reasonably conclude that the defendant had intended to throw

18 gasoline on victim and ignite him, but that defendant had lacked the intent to take

19 victim’s life, and that such evidence would support a conviction of aggravated battery

20 but not of attempted murder.) We conclude that based on the statutory elements of the

                                              8
 1 misdemeanor and felony offenses, Defendant can be convicted of the lesser included

 2 offense of cruelty to animals.

 3         The district court erred in applying a Schoonmaker analysis to this case, and in

 4 finding that the misdemeanor offense of cruelty to animals is not a lesser included

 5 offense of felony extreme cruelty to animals. Consequently, because the indictment

 6 was filed before the statute of limitations ran on the lesser included misdemeanor

 7 charge, the district court also erred in dismissing the charge on the basis of the statute

 8 of limitations. Cf. Rule 5-611(D) NMRA (stating that a jury may find a defendant

 9 “guilty of an offense necessarily included in the offense charged”).

10 Subsequent Prosecution of the Misdemeanor Charge After Acquittal on the
11 Felony Charge Would Violate Principles of Double Jeopardy

12         Because we conclude that the district court erroneously relied on the statute of

13 limitations in dismissing the misdemeanor charge, we consider whether the dismissal

14 can be affirmed on the basis of Defendant’s claim that prosecution of the

15 misdemeanor would violate the constitutional guarantee against double jeopardy.

16 Although the State argues that we do not have jurisdiction to address the double

17 jeopardy issue, we disagree. It is established law that we may affirm the district

18 court’s decision if it is right for any reason, so long as it is not unfair to the appellant.

19 State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d 828. Here,

20 Defendant clearly raised the issue below, and the State had the opportunity to respond.


                                                 9
 1 Moreover, double jeopardy claims are not subject to waiver and can be raised at any

 2 time before or after entry of a judgment. NMSA 1978, § 30-1-10 (1963).

 3        Turning to the merits of Defendant’s double jeopardy argument, the federal

 4 constitution’s double jeopardy clause “protect[s] a defendant from a second

 5 prosecution for the same offense after an acquittal or a conviction (multiple

 6 prosecutions) and from multiple punishments.” Schoonmaker, 2005-NMCA-012, ¶ 19

 7 (internal quotation marks and citation omitted). We review double jeopardy questions

 8 de novo. Id.

 9        We inquire “whether the offenses are unitary, that is, whether the same conduct

10 violates both statutes, or whether the conduct is distinguishable.” Id. ¶ 21 (internal

11 quotation marks and citation omitted). In determining whether the offenses are

12 unitary, “[i]f one statute is subsumed within the other, the inquiry is over and the

13 statutes are the same for double jeopardy purposes.” Id. (alteration omitted) (internal

14 quotation marks and citation omitted).

15        In the present case, misdemeanor cruelty to animals is subsumed within felony

16 extreme cruelty to animals. In order to obtain the conviction of a defendant for the

17 misdemeanor, the State must prove that the defendant either negligently mistreated,

18 injured, killed, or tormented an animal or that the defendant abandoned or failed to

19 provide required sustenance. Section 30-18-1(B). In order to prove the felony, the

20 State must prove that the defendant caused some injury to occur, such as the types of

                                             10
 1 injuries listed for the misdemeanor, or that the defendant tortured, mutilated, poisoned,

 2 or killed an animal “intentionally” or “maliciously”. Section 30-18-1(E). Thus, the

 3 difference is that the felony requires proof of an additional element—an intentional

 4 or malicious mens rea. Cf. State v. Quick, 2009-NMSC-015, ¶ 15, 146 N.M. 80, 206

 5 P.3d 985 (explaining that possession of a controlled substance is subsumed within the

 6 offense of possession with intent to distribute because in order to prove the latter, the

 7 state must prove the elements of possession plus the intent to transfer the substance

 8 to another). For double jeopardy purposes, the two offenses are the same, and

 9 Defendant may not be prosecuted for the misdemeanor following his acquittal on the

10 felony charge. See id. ¶ 13 (holding that a lesser included offense is the same as the

11 greater offense charged for double jeopardy purposes).

12 CONCLUSION

13        For the foregoing reasons, we affirm the judgment of the district court.

14        IT IS SO ORDERED.



15                                          __________________________________
16                                          LINDA M. VANZI, Judge

17 WE CONCUR:



18 ______________________________
19 CYNTHIA A. FRY, Chief Judge

                                              11
1 ______________________________
2 JONATHAN B. SUTIN, Judge




                                   12
