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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. 31, 174


 5 HENRY HERNANDEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Thomas A. Rutledge, Judge

 9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender
14 Eleanor Brogan, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION
 1 HANISEE, Judge.

 2   {1}   Henry Hernandez (Defendant) appeals his convictions for aggravated battery

 3 on a household member and the first degree kidnapping of Hilda Huerta (Victim),

 4 Defendant’s then-girlfriend. Defendant argues that (1) the district court abused its

 5 discretion by admitting prejudicial evidence related to severed counts, (2) the State

 6 committed misconduct by obtaining admission of this same evidence in violation of

 7 the severance order, (3) evidence of Defendant’s bad acts was impermissibly admitted

 8 at trial, (4) there was insufficient evidence to support Defendant’s convictions, (5) his

 9 convictions violate double jeopardy, and (6) there was cumulative error. We affirm.

10 I.      BACKGROUND

11   {2}   Victim testified to the following series of events. On November 2, 2008,

12 Defendant, his brother Robert Hernandez, and Victim used methamphetamine together

13 at Defendant’s home. Defendant thereafter began exhibiting paranoid behavior,

14 declared that someone was after him, and armed himself with a baseball bat. Robert

15 left the house to go out with a friend, James Carrillo. Around 6:30 a.m. the following

16 morning, Robert and Carrillo returned to Defendant’s home and fell asleep on couches

17 in Defendant’s living room. When Defendant observed the two men sleeping in his

18 living room, he informed Victim that Carrillo was the person that had tried to kill him

19 the previous night. Defendant then walked into the living room, assumed a batter’s

                                               2
 1 stance, swung, and hit Carrillo in the forehead with the baseball bat. Robert awoke

 2 and sought to explain, to no avail, that Carrillo was present with him. Defendant hit

 3 Carrillo again in the forehead with the bat, and Carrillo’s forehead began to bleed.

 4   {3}   Defendant yelled to Victim to clean up the blood, which Victim wiped away

 5 from Carrillo’s face and the sofa upon which he had slept and was struck. While

 6 doing this, Victim overheard Defendant say to Robert, “well, should I get rid of her

 7 too?” Victim maintained that she understood Defendant to have referred to her when

 8 he made this comment. Robert then drove Carrillo home. When he returned ten

 9 minutes later, Robert suggested that he, Victim, and Defendant drive to Victim’s

10 apartment. Once there, Victim prepared breakfast burritos, and Defendant threw

11 several baseball bats that he had gathered from his home into a dumpster outside of

12 the apartment.

13   {4}   Within minutes, several police officers stopped by pursuant to their

14 investigation of the assault perpetrated upon Carrillo. The officers initially spoke with

15 Defendant and Robert, and then asked Victim whether she lived in the apartment and

16 how she was doing since they were aware Carrillo was her friend. Victim testified

17 that she did not talk to the police about what she had witnessed because she was never

18 alone to do so; Defendant actively remained in her immediate proximity while the

19 police were at her apartment.


                                               3
 1   {5}   Eventually, Robert, Defendant, and Victim drove to Victim’s cousin’s tire shop

 2 to obtain lugnuts for their vehicle. Victim testified that she did not tell her cousin

 3 what had happened that day because Defendant was constantly by her side. The three

 4 left the tire shop and drove toward Defendant’s house, but as previously feared, their

 5 car became immobilized due to a failure associated with its wheels. Defendant and

 6 Robert’s request, Victim walked alone through nearby fields to Defendant’s aunt’s

 7 home, located approximately one mile from the broken-down vehicle, to obtain a tool

 8 to fix the wheels. When queried why she did not avail herself of the opportunity for

 9 freedom presented by this task, Victim stated that she feared that Defendant and

10 Robert would hurt her son if she fled. Nor did she tell their aunt about Defendant,

11 Carrillo, and the baseball bat for the same reason and based upon her concern

12 regarding the familial relationships between the aunt and her nephews. In any event,

13 the aunt did drive Victim back to the broken-down car, which the brothers succeeded

14 in restoring to mobility.

15   {6}   At about 9:00 p.m. that same evening, Defendant, Robert, and Victim returned

16 to Defendant’s house, from which Robert quickly departed, and Defendant and Victim

17 went to bed together. Early the next morning, Defendant awoke, turned on the air

18 conditioner, pulled the sheet off Victim’s naked body, and told her that he was going

19 to tie her up. While Victim was still unclothed on the bed, he hog-tied her with


                                              4
 1 speaker wire, binding her hands and feet together in front of her torso. When Victim

 2 screamed loudly and struggled with him, Defendant inserted a small towel in her

 3 mouth. Defendant removed the towel just before Victim lost consciousness, and then

 4 pushed her off the bed while she was still tied up. Victim landed on her side and

 5 Defendant stepped on her head and face. While she was still tied up, he punched her

 6 twice in the face, knocking out one of her teeth. Defendant then covered Victim with

 7 a sheet, and informed her that if he had a car, he would drive her out to the country in

 8 order to bury her alive. He effectuated a “head lock” upon Victim until she lost

 9 consciousness.

10   {7}   When Victim awoke on the floor of Defendant’s bedroom, Defendant utilized

11 a pair of pliers to squeeze her nipples and forcibly remove her earrings. He then

12 placed the sheet over Victim’s head and carried her to what she surmised was the

13 living room, placing her on a desk’s edge while she was still hog-tied. He then told

14 her that if she moved, she would fall to the ground. At that point in time, Victim

15 heard water running. Defendant announced to Victim, “well, I guess I’ll just drown

16 you,” and proceeded to transport her into the bathroom where he dunked her head

17 under water twice. Defendant finally untied Victim and directed her to take a shower.

18 Afterward, Defendant washed his clothes in the tub, and he and Victim got dressed

19 and hung Defendant’s wet garments on the clothesline outside. Defendant remained


                                              5
 1 constantly by Victim’s side the remainder of the day.

 2   {8}   The next day, both went outside to retrieve Defendant’s dried clothing. When

 3 Defendant momentarily strayed from Victim toward the back of his yard, she noticed

 4 that the gate was open and she dashed through it. Defendant gave chase, yet Victim

 5 was able to reach a neighbor’s yard, where she screamed for help and implored the

 6 neighbor to call the police. Defendant caught up with Victim and tried to pull her

 7 away from a fence onto which she clung. Victim again escaped and dashed into the

 8 street and in front of a pickup truck, which was able to swiftly halt. Victim asked the

 9 truck’s occupants to call police, and pleaded with them to prevent Defendant from

10 hauling her away. When Defendant caught up, he asserted that Victim was on drugs

11 and that he needed to take her home.

12   {9}   When the police arrived, Victim told the officers that she did not want to go

13 with Defendant because she was scared of him. Defendant told the officers that

14 Victim was on drugs and that he wanted to take her home in order to care for her.

15 Victim denied being on drugs, but she did not tell the officers about Defendant’s

16 actions because she continued to be afraid of Defendant. Victim went with the

17 officers to Defendant’s house to retrieve her belongings. The officers then drove

18 Victim back to her own apartment. Although she did not report the abuse to those

19 officers, seven days later Victim told her cousin, Lieutenant Guy Chavarria of the


                                              6
 1 Artesia Police Department, about Defendant’s behavior during the course of the

 2 preceding days. Lieutenant Chavarria put Victim in contact with Detective Miguel

 3 (Mike) Garcia of the Eddy County Sheriff’s Office, to whom she also described the

 4 series of events that transpired on November 3, 4, and 5. As a result of Defendant’s

 5 actions, Victim incurred injuries to her lips, face, wrists, and feet; lost a tooth; and

 6 experienced an absence of feeling in her arms and legs.

 7   {10}   Defendant was charged with kidnapping in the first degree (count one),

 8 aggravated battery against a household member (count two), aggravated battery with

 9 a deadly weapon (count three), and tampering with evidence (count four). Counts one

10 and two pertained to offenses committed against Victim. Counts three and four dealt

11 with the crimes Defendant committed against Carrillo. Prior to trial, Defendant

12 moved for severance of these charges, arguing that counts one and two were not of the

13 same or similar character, or part of the same conduct or series of acts as the latter

14 counts.    See Rule 5-203(A) NMRA (stating grounds for joinder of offenses).

15 Defendant also requested that the court limit the State’s evidence concerning the

16 crimes against Carrillo, but conceded that some evidence of those crimes was

17 admissible to prove motive. The court granted Defendant’s motion, ordering separate

18 trials for counts one and two from counts three and four. With regard to evidentiary

19 issues, the court directed that:


                                              7
 1          [T]he State’s inquiry into the details of the case involving . . . Carrillo
 2          shall be limited to questions to establish what [Victim] saw Defendant
 3          do to . . . Carrillo, what Defendant told [Victim] to do afterward, and the
 4          reasonableness of her compliance with . . . Defendant’s commands given
 5          what she had witnessed. Unless the defense opens the door on cross
 6          examination or in its case in chief, there shall be no graphic inquiry into
 7          or testimony about the nature or extent of . . . Carrillo’s injuries and the
 8          use of photographs or medical reports of such injuries shall not be
 9          permitted.

10   {11}   At the trial on counts one and two, Victim provided the testimony set forth

11 above. When Victim began to describe how Defendant assumed a batter’s stance and

12 hit Carrillo in the forehead, causing Carrillo’s forehead to bleed profusely, Defendant

13 objected to the State’s line of questioning. Defendant argued that this level of detail

14 concerning the crime against Carrillo violated the district court’s severance order. The

15 court overruled the objection.

16   {12}   When Victim testified that Defendant threw his baseball bats in the dumpster

17 while she cooked burritos, Defendant objected again, arguing that the testimony

18 violated the court’s severance order. That objection too was overruled. Victim went

19 on to state that Defendant told her that he threw the bats into the dumpster. Defendant

20 then moved for a mistrial, arguing that the State and its witness were in perpetual

21 violation of the severance order. The motion was denied.

22   {13}   At trial, Carrillo also testified regarding the incident when Defendant hit him

23 twice in the forehead with the bat. When the State asked Carrillo what his injuries


                                                 8
 1 looked like before he went to the hospital, Defendant objected and argued that such

 2 a question violated the purpose of the severance order. The district court overruled

 3 the objection. Carrillo subsequently testified that he suffered injuries to his eye and

 4 forehead, to the length of his ensuing hospital stay, and about whether Robert visited

 5 him in the hospital. Defendant also objected to the State’s questioning of a police

 6 officer regarding Defendant’s disposal of items in the dumpster.

 7   {14}   The jury found Defendant guilty of first degree kidnapping of Victim and

 8 aggravated battery on a household member. Immediately following the trial on counts

 9 one and two, Defendant pleaded guilty to counts three and four. Defendant appeals

10 his convictions for counts one and two.

11 II.      DISCUSSION

12 A.       The District Court Did Not Abuse Its Discretion by Admitting Evidence
13          Related to the Severed Case and Evidence of Defendant’s Prior Bad Acts

14   {15}   Although Defendant couches this issue as the district court’s failure to fully

15 sever counts one and two from counts three and four, his legal challenge is to the

16 admission of evidence regarding the latter severed charges at Defendant’s trial for

17 counts one and two. Defendant argues that the district court abused its discretion by

18 admitting unfairly prejudicial evidence related to the crimes alleged in severed counts

19 three and four. Defendant also asserts the State committed misconduct in seeking to

20 admit that same evidence. Defendant additionally contends that the district court

                                               9
 1 violated his due process rights by admitting evidence indicating that he made prior

 2 threats against Victim’s life.

 3   {16}   “We review the admission of evidence under an abuse of discretion standard

 4 and will not reverse in the absence of a clear abuse.” State v. Sarracino, 1998-NMSC-

 5 022, ¶ 20, 125 N.M. 511, 964 P.2d 72. We review preserved issues of prosecutorial

 6 misconduct “under the deferential abuse of discretion standard because the trial court

 7 is in the best position to evaluate the significance of any alleged prosecutorial errors.”

 8 State v. Trujillo, 2002-NMSC-005, ¶ 49, 131 N.M. 709, 42 P.3d 814 (internal

 9 quotation marks and citation omitted). “An abuse of discretion occurs when the ruling

10 is clearly against the logic and effect of the facts and circumstances of the case. We

11 cannot say the trial court abused its discretion by its ruling unless we can characterize

12 it as clearly untenable or not justified by reason.” State v. Otto, 2007-NMSC-012, ¶

13 9, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation omitted).

14   {17}   Generally, “[e]vidence of a crime, wrong, or other act is not admissible to prove

15 a person’s character in order to show that on a particular occasion the person acted in

16 accordance with the character.” Rule 11-404(B)(1) NMRA. Nonetheless, “[t]his

17 evidence may be admissible for another purpose, such as proving motive, opportunity,

18 intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

19 Rule 11-404(B)(2). “This list is not exhaustive and evidence of other wrongs may be


                                               10
 1 admissible on alternative relevant bases so long as it is not admitted to prove

 2 conformity with character.” Otto, 2007-NMSC-012, ¶ 10 (internal quotation marks

 3 and citation omitted).

 4   {18}   To admit evidence under Rule 11-404(B), counsel must “identify the

 5 consequential fact to which the proffered evidence of other acts is directed. The

 6 proponent of the evidence must demonstrate its relevancy to the consequential facts,

 7 and the material issue, such as intent, must in fact be in dispute.” State v. Serna,

 8 2013-NMSC-033, ¶ 17, ___ P.3d ___ (internal quotation marks and citations omitted).

 9 After the proponent shows “that evidence of other acts has a legitimate alternative use

10 that does not depend upon an inference of propensity, the proponent must establish

11 that under Rule 11-403 NMRA, the probative value of the evidence used for a

12 legitimate, non-propensity purpose outweighs any unfair prejudice to the defendant.”

13 State v. Kerby, 2005-NMCA-106, ¶ 25, 138 N.M. 232, 118 P.3d 740, aff’d, 2007-

14 NMSC-014, ¶ 25, 141 N.M. 413, 156 P.3d 704. With regard to “evidence of other

15 uncharged bad acts, unfair prejudice refers to the risk that the jury, notwithstanding

16 limiting instructions, see Rule 11-105 NMRA, nevertheless will draw unfavorable

17 inferences about the defendant’s propensity for criminal conduct from evidence of

18 non-charged bad acts[.]” Kerby, 2005-NMCA-106, ¶ 25

19   {19}   “The fact that competent evidence may tend to prejudice [the] defendant is not


                                              11
 1 grounds for exclusion of that evidence. The question is whether the probative value

 2 of the evidence was outweighed by its prejudicial effect.” State v. Hogervorst,

 3 1977-NMCA-057, ¶ 46, 90 N.M. 580, 566 P.2d 828 (citation omitted). In reviewing

 4 whether the district court abused its discretion in evaluating whether “the prejudicial

 5 impact of evidence outweighs its probative value[,] . . . . the appellate court considers

 6 the probative value of the evidence, [and notes that] the fact that some jurors might

 7 find this evidence offensive or inflammatory does not necessarily require its

 8 exclusion[.]” State v. Rojo, 1999-NMSC-001, ¶ 48, 126 N.M. 438, 971 P.2d 829

 9 (internal quotation marks and citations omitted).

10 1.       Evidence Related to the Severed Case Was Properly Admitted

11   {20}   Over Defendant’s objection, the district court allowed the State to question

12 Victim about how Defendant hit Carrillo and about Defendant’s ensuing disposal of

13 baseball bats in the dumpster; to question Carrillo about his injuries, length of hospital

14 stay, and whether Robert visited him in the hospital; and to question a police officer

15 about witnessing Defendant dispose of items in a dumpster outside of Victim’s

16 apartment. Prior to trial, the State explained that Defendant’s crimes against both

17 Carrillo and Victim were part of an interlinked series of acts which supplied the

18 incentive for Defendant’s crimes against Victim. Thus, the State argued that the

19 evidence regarding Defendant’s crimes against Carrillo was admissible under Rule 11-


                                               12
 1 404(B) to show Defendant’s motive of preventing Victim “from reporting what she

 2 had observed.” Additionally, the State argued that the crux of Defendant’s theory of

 3 the case was that Victim’s testimony was a fabrication and that the evidence related

 4 to counts three and four countered this assertion by corroborating Victim’s testimony.

 5   {21}   As mentioned, the court had previously authorized the admission of evidence

 6 that established what Victim “saw Defendant do to Mr. Carrillo, what Defendant told

 7 [Victim] to do afterward, and the reasonableness of her compliance with . . .

 8 Defendant’s commands given what she had witnessed.” When Defendant objected

 9 at trial to the State’s questions, the State reasserted that its objective was to establish

10 Defendant’s motive, demonstrate the reasonableness of Victim’s fear, and support

11 Victim’s challenged credibility.

12   {22}   We agree that the evidence regarding Defendant’s battery of Carrillo and

13 disposal of the bats was probative of Defendant’s motive, and the reasonableness of

14 Victim’s fear of Defendant and compliance with his commands during the three-day

15 ordeal. Prior to trial, Defendant raised an alibi defense, claiming that he was

16 elsewhere at the time and place the crimes occurred. Defendant’s entire defense thus

17 rested on the theory that Victim had fabricated the story of Carrillo’s baseball bat

18 beating, as well as Victim’s own kidnapping and torture. Thus, the contested evidence

19 was responsive to Defendant’s theory of the case: the Victim’s credibility. Victim’s


                                               13
 1 testimony about Defendant’s sudden assault on Carrillo and his subsequent removal

 2 and disposal of evidence demonstrated Defendant’s intent to cover up his crime and

 3 explained the basis for her fear of Defendant, who had in the immediate aftermath of

 4 his assault on Carrillo proposed to “get rid” of her as well. Likewise, Carrillo’s

 5 testimony about his injuries and the police officer’s testimony about the dumpster

 6 supported Victim’s testimony and lent credibility to the testimony of Victim which

 7 Defendant chose to assail. In sum, the evidence offered jurors an explanation as to

 8 why Victim did not escape from Defendant’s presence sooner and that Victim’s fear

 9 of Defendant was rational, points Defendant chose to highlight at trial both during his

10 cross examination of Victim and in his closing argument.

11   {23}   We also agree that the probative value of this evidence was not outweighed by

12 the prejudice it may have caused Defendant. “Unfair prejudice does not mean the

13 damage to a defendant’s case that results from the legitimate probative force of the

14 evidence; rather it refers to evidence that tends to suggest decision on an improper

15 basis.” State v. Anderson, 1994-NMSC-089, ¶ 63, 118 N.M. 284, 881 P.2d 29. This

16 evidence presented a picture of events inconsistent with Defendant’s alibi and theory

17 of the case. Nonetheless, it did not do so unfairly. Had not Defendant challenged

18 Victim’s credibility or sought to undermine her assertion of fear, the probative

19 component of the evidence admitted would have been greatly reduced.


                                              14
 1   {24}   To the extent that Defendant contends Victim’s statement that blood “gushed”

 2 from the wounds inflicted on Carrillo’s forehead was unfairly prejudicial, we again

 3 disagree. This level of detail was appropriate to convey the sudden and violent

 4 circumstances under which Victim maintained she became fearful of Defendant.

 5 Indeed, a reasonable jury could remain safely within its fact-finding autonomy, not to

 6 mention its employment of common sense, to have anticipated the likelihood of

 7 profuse bleeding following the two-time purposeful collision between a baseball bat

 8 and a sleeping man’s head. See UJI 14-5060 NMRA (instructing jurors to employ

 9 “reason and common sense” in their determination of guilt beyond a reasonable

10 doubt). Moreover, Defendant was on notice that Victim would likely go into this level

11 of detail to show her fear was reasonable. Prior to trial, the district court made it clear

12 that although photographic evidence would be inadmissable, Victim would likely

13 explain that she witnessed “a brutal attack, with a baseball bat, blood all over the

14 place. She couldn’t tell whether he was dead or alive—he was so badly beaten. And

15 then she was ordered to clean it up and she fe[lt] like she [wa]s constrained.”

16   {25}   We reject Defendant’s argument that the State engaged in prosecutorial

17 misconduct when it introduced evidence related to the severed case. First and

18 foremost, we have already decided that it was not error to admit such evidence as its

19 probative value was not outweighed by the prejudice it may have caused Defendant,


                                               15
 1 which we determine not to be unfair in nature. In addition, the court’s evidentiary

 2 ruling associated with its order of severance expressly allowed the State to elicit

 3 testimony regarding Defendant’s actions that showed why Victim’s fear and inaction

 4 were reasonable. That is precisely what the State did here. In sum, we conclude that

 5 the State did not engage in misconduct through its questioning of Victim, Carrillo, and

 6 the police officer in relation to facts associated with the severed case.

 7 2.       Evidence of Defendant’s Prior Threats Toward Victim Was Properly
 8          Admitted

 9   {26}   Defendant contends that his right to due process was violated when the court

10 allowed Victim to testify to Defendant’s uncharged prior threats toward Victim. The

11 district court admitted the evidence on redirect following defense counsel’s vigorous

12 and extensive cross examination which the district court determined to purposefully

13 call into question the reasonableness of Victim’s fear and her inaction during the

14 three-day ordeal with Defendant. Despite Defendant’s due process objection, the

15 district court concluded that “this door has been opened” and permitted the State to

16 introduce the evidence to “establish that there was more than just this isolated

17 occurrence to justify the [Victim’s] fear and failure to initiate action.”

18   {27}   Pursuant to this ruling, Victim testified to a prior incident where she wanted to

19 leave Defendant’s home against Defendant’s wishes. During the incident, Defendant

20 forced Victim to sit in a chair while he poured kerosene on her head and subsequently

                                               16
 1 tossed a lit match toward her. Defendant also threatened Victim with a knife, assuring

 2 her she would be slain should she try to leave. Victim additionally testified about

 3 another incident where Defendant refused to allow her to go to work. With regard to

 4 these topics of testimony, the court provided a limiting instruction to the jury, stating:

 5 “The [c]ourt allowed [Victim] to be questioned about contacts with Defendant prior

 6 to the first part of November, 2008. This testimony was given only for the limited

 7 purpose of your determining the reasonableness of [Victim]’s alleged fear during the

 8 first part of November 2008, and for no other purpose.”

 9   {28}   On appeal, Defendant argues that “[o]nce the jury heard bad act evidence that

10 [Defendant] had poured kerosene on [Victim] and threw a lit match on her and

11 threatened to kill her with a knife, it was a foregone conclusion that the jury would

12 convict him of the crimes charged in the present case.” Defendant asserts that

13 admission of the evidence of uncharged prior threats was fundamentally unfair and

14 violated his right to due process.

15   {29}   The admission of uncharged acts evidence, generally permissible only pursuant

16 to Rule 11-404, may also gain admissibility based on the defense employed by a

17 defendant and the content of cross examination designed to suggest a witness’s

18 testimony is a product of bias. In State v. Abril, 2003-NMCA-111, ¶ 10, 134 N.M.

19 326, 76 P.3d 644, overruled on other grounds by State v. Torres, 2012-NMCA-026,


                                               17
 1 ¶ 38, 272 P.3d 689, we held that, when accompanied by a properly requested limiting

 2 instruction in accordance with Rule 11-105, “evidence of [the d]efendant’s character

 3 and prior acts was admissible to rebut the inference of bias raised by [the d]efendant’s

 4 questioning of [the state’s witness] regarding her negative feelings toward [the

 5 d]efendant, even though this evidence may have been inadmissible for other purposes

 6 under Rule 11-404.” Notably, Rule 11-105 requires that “[i]f the court admits

 7 evidence that is admissible against a party or for a purpose—but not against another

 8 party or for another purpose—the court, on timely request, must restrict the evidence

 9 to its proper scope and instruct the jury accordingly.”

10   {30}   Like the Court in Abril, we too conclude that evidence of Defendant’s prior bad

11 acts was admissible to rebut the inference of bias raised by the defense’s line of

12 questioning. Defendant’s theory of the case was that Victim contrived the kidnapping

13 and batteries. During cross examination, defense counsel stressed the fact that Victim

14 stayed with Defendant after his attack on Carrillo and waited one week to alert anyone

15 about Defendant’s actions. Indeed, Defendant dissected every perceived opportunity

16 Victim may have had for escape or to obtain help. For example, Defendant asked

17 Victim: “You were right by the sheriff’s office, and you didn’t try running to the

18 sheriff’s office and calling for help?” And, after establishing that Victim had spoken

19 with her cousin at the tire shop after Victim witnessed Defendant assault Carrillo,


                                              18
 1 Defendant asked:

 2          Defense Counsel: You said you know your cousin pretty well?

 3          Victim: Yes I do.

 4          Defense Counsel: And you are kind of close to him?

 5          Victim: Yes sir.

 6          Defense Counsel: But you didn’t say anything to him at that time?

 7          Victim: No I didn’t.

 8          Defense Counsel: You didn’t try to give him some kind of eye signal or
 9          something?

10          Victim: No I didn’t . . .

11 Defendant also questioned the level of Victim’s fear by pointing out that she did not

12 try to escape even though she was alone as she walked to Defendant’s aunt’s home.

13 Defense counsel asked, “Did you make any attempt to flag somebody down on your

14 way over there? . . . Did you make an attempt to go to any other houses [near the

15 aunt’s home] and get help? . . . And when you got to [the aunt’s house], you didn’t say

16 anything to her either, right?” Defendant also pointed out that Victim did not disclose

17 the kidnapping and battery to the officers who arrived after she escaped from

18 Defendant’s home.

19   {31}   As in the context of the evidence that we determined was properly admitted

20 with regard to the severed counts, evidence of Defendant’s threats was both

                                             19
 1 prejudicial yet probative of why Victim did not try to escape or seek police assistance

 2 sooner. In State v. Aguayo, 1992-NMCA-044, ¶ 25, 114 N.M. 124, 835 P.2d 840, we

 3 recognized the “damning species of evidence” that uncharged misconduct can be and

 4 stating that evidence of prior bad acts “should not be received when very probably its

 5 sole result, or at least its overwhelming result, will be that of establishing [the]

 6 defendant’s bad character, or his disposition or propensity to commit crime, as the

 7 basis for an inference that he committed the crime with which he is charged and for

 8 which he is being tried.” Id. ¶ 26 (emphasis added) (internal quotation marks and

 9 citation omitted). Unlike Aguayo, the purpose of Victim’s testimony was to explain

10 her fear of Defendant. This rationale supports the trial court’s exercise of its

11 discretion to allow the evidence despite its simultaneously prejudicial character. As

12 we explained above with regard to the evidence related to counts three and four, the

13 State would not have needed this evidence for its case had not Defendant elected to

14 attack the rationality of Victim’s fear and inaction. Since Defendant opened the door

15 to such inquiries, we do not consider the testimony more unfairly prejudicial than

16 probative.

17   {32}   Also, in accordance with Rule 11-105, the district court issued a limiting

18 instruction regarding this bad-act evidence upon Defendant’s request. The instruction

19 appropriately limited the evidence to its intended purpose: for the jury to determine


                                             20
 1 the reasonableness of Victim’s fear. It is well-established under New Mexico case law

 2 that juries are presumed to follow the court’s instructions. Otto, 2007-NMSC-012, ¶

 3 17; State v. Gonzales, 1992-NMSC-003, ¶ 35, 113 N.M. 221, 824 P.2d 1023 (“The

 4 jury is presumed to follow the court’s [limiting] instructions.”) overruled on other

 5 grounds by State v. Montoya, 2013-NMSC-020, ¶ 2, ___P.3d___.

 6   {33}   Because this evidence was relevant, responsive to defense counsel’s effort to

 7 establish bias, not unfairly prejudicial under Rule 11-403, and its use was restricted

 8 by the district court, Defendant’s due process rights were not violated.

 9 B.       Sufficient Evidence Supports Defendant’s Convictions

10   {34}   Defendant maintains that there is insufficient evidence to support his

11 convictions for kidnapping and aggravated battery on a household member. “The test

12 for sufficiency of the evidence is whether substantial evidence of either a direct or

13 circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt

14 with respect to every element essential to a conviction.” State v. Riley, 2010-NMSC-

15 005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation omitted)

16 overruled on other grounds by Montoya, 2013-NMSC-020. We view the evidence “in

17 the light most favorable to the guilty verdict, indulging all reasonable inferences and

18 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,

19 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “Because an appellate tribunal


                                              21
 1 does not enjoy the same exposure to the evidence and witnesses as the jury at trial, our

 2 review for sufficiency of the evidence is deferential to the jury’s findings.” State v.

 3 Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057.

 4 1.       Sufficient Evidence Supports Defendant’s Aggravated Battery Conviction

 5   {35}   With regard to his conviction for aggravated battery against a household

 6 member, Defendant argues that the State failed to prove the third element of the

 7 offense: That Defendant “caused great bodily harm to [Victim] or acted in a way that

 8 would likely result in death or great bodily harm to [Victim].” Because this element

 9 presents us with alternative bases for guilt, we note that “due process does not require

10 a general verdict of guilt to be set aside so long as one of the two alternative bases for

11 conviction is supported by sufficient evidence.” State v. Salazar, 1997-NMSC-044,

12 ¶ 43, 123 N.M. 778, 945 P.2d 996.

13   {36}   Here, the State produced sufficient evidence to show that Defendant acted in

14 a way that would likely result in death or great bodily harm to Victim. In particular,

15 Victim’s testimony indicates that Defendant prevented Victim from breathing several

16 times. Defendant first placed a towel in Victim’s mouth while she was hog-tied,

17 nearly causing her to lose consciousness from lack of oxygen. Defendant then placed

18 Victim in a headlock, cutting off her air supply to the extent that she blacked out.

19 Defendant also attempted to drown Victim multiple times, holding her head under


                                               22
 1 water in the bath tub. Each act of suffocation could have resulted in her death or brain

 2 damage. As such, we conclude that Victim’s testimony about her suffocation

 3 provided the jury with substantial evidence to convict Defendant beyond a reasonable

 4 doubt with regard to the third element of aggravated battery against a household

 5 member.

 6 2.       Sufficient Evidence Supports Defendant’s Kidnapping Conviction

 7   {37}   Defendant asserts that he “presented an alternate and credible version of the

 8 events that [Victim] fabricated her allegations that [Defendant] beat and kidnapped

 9 her. Even though the jury was not required to accept his version of events, his defense

10 should not simply be disregarded by this Court.” We conclude otherwise. Based on

11 the recitation of testimony discussed above in this opinion, sufficient evidence exists

12 in the record to prove that Defendant unlawfully restrained or confined Victim by

13 force or intimidation with the intent to inflict death or physical injury on Victim. See

14 NMSA 1978, § 30-4-1 (2003) (stating the elements of kidnapping). It is for the finder

15 of fact, not an appellate court, to reconcile any conflicts in the evidence and determine

16 where the truth lies. The fact finder can choose to disregard Defendant’s version of

17 events. State v. Cabezuela, 2011-NMSC-041, ¶ 45, 150 N.M. 654, 265 P.3d 705.

18 Since this Court reviews the evidence in the light most favorable to the verdict, State

19 v. Barber, 2003-NMCA-053, ¶ 16, 133 N.M. 540, 65 P.3d 1095, aff’d, 2004-NMSC-


                                              23
 1 019, 135 N.M. 621, 92 P.3d 633, we affirm with respect to sufficiency for Defendant’s

 2 kidnapping conviction.

 3 C.       Defendant’s Convictions for Kidnapping and Aggravated Battery on a
 4          Household Member Do Not Violate Double Jeopardy

 5   {38}   Defendant lastly argues that his convictions for kidnapping and aggravated

 6 battery on a household member violate double jeopardy, contending that his

 7 convictions under the two statutes constitute the same offense.           We review

 8 constitutional questions of law, like this claim of double jeopardy, de novo. State v.

 9 Montoya, 2013-NMSC-020, ¶ 22, ___P.3d___ ; State v. Quick, 2009-NMSC-015, ¶

10 6, 146 N.M. 80, 206 P.3d 985. We analyze Defendant’s double-description double

11 jeopardy claim in accordance with the two-part test set forth in Swafford v. State,

12 1991-NMSC-043, ¶¶ 27-34, 112 N.M. 3, 810 P.2d 1223. Under Swafford, we first

13 analyze, “whether the conduct underlying the offenses is unitary, i.e., whether the

14 same conduct violates both statutes, and, if so, [we then] proceed[] to analyze whether

15 the [L]egislature intended to create separately punishable offenses.”         State v.

16 Gutierrez, 2012-NMCA-095,¶ 8, 286 P.3d 608 (internal quotation marks and citation

17 omitted) cert. denied, 2012-NMCERT-008, 296 P.3d 490.

18   {39}   Even assuming that Defendant’s conduct was unitary in this case, we conclude

19 that the Legislature intended to treat kidnapping and aggravated battery against a

20 household member as two separately punishable offenses.             The first step in

                                             24
 1 determining legislative intent is to apply the Blockburger test, and assess “in the

 2 abstract whether each statutory offense requires proof of a fact which the other does

 3 not.” Montoya, 2013-NMSC-020, ¶ 31 (internal quotation marks and citations

 4 omitted); see Blockburger v. United States, 284 U.S. 299, 304, (1932) (stating the

 5 Blockburger test). When the elements are the same, we infer that the Legislative did

 6 not intend the offenses to be separately punishable. But if neither statute “is

 7 definitionally subsumed within the other,” this court then engages in “a substantive

 8 sameness analysis.” Montoya, 2013-NMSC-020, ¶¶ 32, 46.

 9   {40}   To do so, we utilize “traditional means of determining legislative intent: the

10 language, history, and subject of the statutes, and we must identify the particular evil

11 sought to be addressed by each offense.” Id. ¶ 32 (internal quotation marks and

12 citation omitted). We take “into consideration the relationship between the statutory

13 offenses and their common commission by unitary conduct, the . . . social harms to

14 which they are directed, and their use by the State in this case.” Id. ¶ 52. Typically,

15 if the two statutes are “usually violated together, [and] seem designed to protect the

16 same social interest, the inference becomes strong that the function of the multiple

17 statutes is only to allow alternative means of prosecution.” Id. ¶ 32. Furthermore,

18 “lenity applies in cases of ambiguity regarding the reach of criminal statutes, because

19 reasonable minds can differ as to the Legislature’s intent in punishing the two crimes.”


                                              25
 1 Id. ¶ 51 (alteration, internal quotation marks, and citation omitted).

 2   {41}   We applied these principles recently in Gutierrez, 2012-NMCA-095. In that

 3 case, we concluded that robbery and aggravated battery against a household member

 4 were intended by the Legislature to be separately punishable offenses. We stated that

 5 the crime of battery against a household member requires proof of an additional

 6 element that is extraneous to the elements of robbery: proof that the victim have a

 7 continuing personal relationship with the assailant. Id. ¶ 12. And, “[t]he crime of

 8 robbery likewise contains an element extraneous to the battery: the theft of anything

 9 of value.” Id. (internal quotation marks and citation omitted).

10   {42}   We further explained that robbery and battery against a household member

11 address “distinct deviant social conduct, even when simultaneously committed.” Id.

12 ¶ 20. Robbery primarily addresses takings of property by force, whereas aggravated

13 battery on a household member addresses impermissible applications of force against

14 a specific group of people: household members. Id. This Court concluded that “[t]he

15 distinct policy directives and subject matter of robbery and battery against a household

16 member, and their rare occurrence together, persuade us that the [L]egislature

17 intended these crimes to be punished separately, even when they occur as part of the

18 same criminal transaction.” Id. ¶ 18.

19   {43}   Likewise, the statutes for kidnapping and aggravated battery against a


                                              26
 1 household member each have elements not found in the other. Kidnapping requires

 2 “the unlawful taking, restraining, transporting or confining of a person.” Section 30-

 3 4-1(A). Whereas, aggravated battery on a household member requires the State to

 4 prove the battery was committed against “a person with whom a person has had a

 5 continuing . . . dating or intimate relationship.” NMSA 1978, § 30-3-11 (2010).

 6   {44}   Furthermore, the two crimes are not substantively alike. The evils sought to be

 7 addressed by each offense differ substantially. As we explained in Gutierrez, 2012-

 8 NMCA-095, ¶ 20, “battery against a household member . . . specifically protects

 9 against the use of . . . force when it is directed at a certain group of people—household

10 members. Thus, the legislative purpose of criminalizing battery against a household

11 member applies to a narrower class of persons than either aggravated or simple

12 battery.”     Dissimilarly, the offense of kidnapping seeks to address unlawful

13 restrictions on any victim’s physical liberty. The crime of kidnapping does not seek

14 to protect a particular class of victims. In sum, the statutes do not work together

15 toward extinguishing the same societal harms.

16   {45}   The statutory scheme for kidnapping further supports our conclusion that the

17 statutes permit multiple punishments for kidnapping and aggravated battery against

18 a household member. The kidnapping statute states that, when a defendant “commits

19 kidnapping[, he] is guilty of a first degree felony, except that he is guilty of a second


                                              27
 1 degree felony when he voluntarily frees the victim in a safe place and does not inflict

 2 physical injury or a sexual offense upon the victim.” Section 30-4-1. As the State

 3 observes, a defendant who fails to release Victim in a safe place will have committed

 4 a first degree felony regardless of whether or not he inflicted injury or a sexual offense

 5 during the kidnapping.       To conclude that the State could not seek separate

 6 punishments for both kidnapping and the aggravated battery committed during it

 7 would markedly diminish legislative protections for kidnapping victims, who in

 8 addition to having their liberty wrongfully taken, face a panoply of potential

 9 additional criminal wrongs.

10   {46}   Lastly, these two offenses are not typically committed with unitary conduct.

11 Aggravated battery against a household member has no inherent association with

12 kidnapping. As explained above, the latter attempts to protect a specific class of

13 victims from harm, whereas the other targets restraints on liberty of people generally.

14 And there is no evidence that these two crimes are usually committed together.

15 Aggravated battery against a household member does not characteristically involve

16 “the unlawful taking, restraining, transporting or confining of a person.” Section 30-

17 4-1(A). The fact that the person is a household member does not make it more likely

18 that they will be kidnapped.

19   {47}   As such, we conclude that these statutes address two different evils, are not


                                               28
 1 commonly commissioned by unitary conduct, and do not protect the same social

 2 interest. Defendant’s convictions for aggravated battery against a household member

 3 and kidnapping are substantively divergent and do not violate double jeopardy.

 4 D.       Defendant Was Not Deprived of a Fair Trial

 5   {48}   Lastly, Defendant contends that cumulative error deprived him of a fair trial.

 6 As we have concluded that there was no error, we disagree and affirm Defendant’s

 7 conviction.

 8 III.     CONCLUSION

 9   {49}   For the reasons stated above, we affirm.

10   {50}   IT IS SO ORDERED.


11                                                 _________________________________
12                                                 J. MILES HANISEE, Judge

13 WE CONCUR:



14 _________________________________
15 MICHAEL D. BUSTAMANTE, Judge




16 _________________________________
17 MICHAEL E. VIGIL, Judge



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