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                                                              New Mexico Compilation
                                                            Commission, Santa Fe, NM
                                                           '00'04- 15:15:09 2013.05.31
         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-016

Filing Date: March 28, 2013

Docket No. 33,077

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,
v.

ALICIA VICTORIA GONZALES,

       Defendant-Respondent.

APPEAL FROM THE SECOND JUDICIAL DISTRICT COURT
Neil C. Candelaria, District Judge

Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
James W. Grayson, Assistant Attorney General
Nicole Beder, Assistant Attorney General
Albuquerque, NM

for Petitioner

Law Offices of Jane B. Yohalem
Jane B. Yohalem
Santa Fe, NM

for Respondent

                                        OPINION

BOSSON, Justice.

{1}     After an evening of heavy drinking, Alicia Gonzales (Defendant) got into her car and
began to drive to the Albuquerque International Sunport to pick up her husband. On I-25
near the Avenida Cesar Chavez exit, Defendant, drunk and driving recklessly, sideswiped
one vehicle and plowed into the back of another in which two children, Manuel Delfino and
Deandre Fortune, were riding. While the adults in the front seats were uninjured, the
children were not so fortunate. The crash killed Manuel and resulted in minor injuries to

                                             1
Deandre.

{2}     Defendant was later indicted on multiple charges stemming from the crash. She was
charged with one count of intentional child abuse resulting in death (or negligent in the
alternative), see NMSA 1978, § 30-6-1(F & H) (2005) (amended 2009), one count of
intentional child abuse not resulting in death or great bodily harm (or negligent in the
alternative), see NMSA 1978, § 30-6-1(E) (2005) (amended 2009), one count of aggravated
DWI, see NMSA 1978, § 66-8-102 (2005) (amended 2010), and one count of leaving the
scene of an accident, see NMSA 1978, §§ 66-7-202 (1978), -203 (1989). Curiously, the
State did not charge Defendant with vehicular homicide. See NMSA 1978, § 66-8-101
(2004).

{3}     At trial, Defendant was convicted of negligent child abuse, but that charge was later
reversed by the Court of Appeals for lack of substantial evidence. She was also convicted
of DWI and leaving the scene of an accident which are not relevant to this appeal. The State,
barred by double jeopardy from retrying Defendant for child abuse, then sought to prosecute
Defendant for vehicular homicide, a charge the State could have brought initially but chose
not to. Once again, the Court of Appeals ruled against the State based on principles of
double jeopardy. On certiorari, we review only that portion of the Court of Appeals opinion
denying the State a new trial for vehicular homicide. We affirm the Court of Appeals but
on somewhat different grounds.

BACKGROUND

Trial Court Proceedings

{4}     Child abuse is defined by statute to include: “knowingly, intentionally or
negligently, and without justifiable cause, causing or permitting a child to be: (1) placed in
a situation that may endanger the child’s life or health . . . .” Section 30-6-1(D). Before
trial, Defendant moved to dismiss the child abuse charges, arguing that to be charged with
child abuse, she must have been aware that her actions endangered a known, particular
child. For example, if the children had been passengers in her own vehicle, then her conduct
would have fit the statutory profile of child abuse. State v. Castañeda, 2001-NMCA-052,
¶ 11, 130 N.M. 679, 30 P.3d 368. Since these children were not her passengers, however,
she was not even aware of their presence when she caused their injuries, and thus, her
conduct necessarily did not fall within the meaning of child endangerment.

{5}     Responding to the motion to dismiss, the State disagreed with Defendant’s
characterization of the law. Specifically, the State argued that it “is not required to show that
the [D]efendant had the specific intent of harming a particular child. Rather, the State must
only show the [D]efendant acted with reckless disregard.” The State also argued, in the
alternative, that if it were required to show that Defendant was aware of the children in the
other vehicle, the State was prepared to do so with testimony from other motorists on the
road that night who allegedly saw the children in the back seat of their car.

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{6}     The district court held a hearing on the motion. Significantly, the court asked the
prosecutor why the State had not charged Defendant with vehicular homicide in the
alternative. Initially, the prosecutor could not answer the question, adding only that she
“wish[ed] they had charged the alternative vehicular homicide just to be safe.” The State
later characterized it as a discretionary decision on the part of the district attorney’s office.

{7}     Following argument, the district court ruled in favor of the State. The court
explained that “the current statute as it stands under child abuse does not necessitate or need
an awareness factor.” The court further concluded “that all that’s required as far as
knowledge is that the [D]efendant knows or should have known that the defendant’s conduct
created the substantial or foreseeable risk” without actually being aware of the danger to an
identifiable child.

{8}     During trial, at the close of the State’s case, Defendant raised the same issue in the
form of a motion for directed verdict on the child abuse charges. Defendant was again
denied.

{9}      Ultimately, the jury found Defendant guilty of one count of child abuse resulting in
death, negligently caused, one count of child abuse not resulting in death or great bodily
harm, negligently caused, aggravated DWI, and leaving the scene of an accident. The jury
was unable to agree on a verdict for intentional child abuse. The State never requested an
instruction on vehicular homicide, and the jury was never asked to consider that crime. The
district court sentenced Defendant to 15 years, 364 days, partially suspended, for a total of
12 years in prison. Defendant appealed, continuing to argue that the crime of child abuse
based on child endangerment required some knowledge of an identifiable child present and
at risk.

The Court of Appeals

{10} Before the Court of Appeals, Defendant again emphasized that “she was unaware that
her conduct posed a particular and foreseeable risk of likely injury to the children” and
importantly, that there was no evidence to the contrary. State v. Gonzales, 2011-NMCA-
081, ¶ 2, 150 N.M. 494, 263 P.3d 271. The Court of Appeals agreed with Defendant. Id.

{11} The Court concluded that to be convicted of child abuse a “defendant’s conduct must
create a substantial and foreseeable risk of harm to an identified or identifiable child within
the zone of danger.” Id. ¶ 21. Further, “[t]he child victim cannot become identified simply
by being injured by Defendant: identification of the child and the risk to that child must
precede the injury.” Id. In addition, “[t]he defendant must do more than act in a way that
endangers the public as a whole.” Id. ¶ 24. This Court did not grant certiorari to review the
Court of Appeals opinion in this respect.

{12} Defendant also argued to the Court of Appeals that if her child abuse convictions
were overturned, double jeopardy would also preclude a new charge of vehicular homicide,

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a charge that could have been brought initially but was not. Id. ¶ 3. Again, the Court of
Appeals agreed. Id. Relying on State v. Meadors, 121 N.M. 38, 908 P.2d 731 (1995), the
Court concluded that the offense of vehicular homicide, under the facts of this case, was a
lesser included offense of child abuse. Gonzales, 2011-NMCA-081, ¶ 36. Accordingly,
double jeopardy barred “any subsequent prosecution for vehicular homicide.” Id. ¶ 38. We
granted certiorari on the issue of subsequent prosecution and now proceed to that analysis.

DISCUSSION

Standard of Review

{13} “A double jeopardy challenge is a constitutional question of law which we review
de novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747.

Double Jeopardy

{14} The Fifth Amendment of the United States Constitution states, among other things,
that no person “be subject for the same offense to be twice put in jeopardy of life or limb.”
U.S. Const. amend. V. The New Mexico Constitution contains a similar provision. N.M.
Const. art. II, § 15.

{15} The Double Jeopardy Clause “protects against successive prosecutions for the same
offense after acquittal or conviction and against multiple criminal punishments for the same
offense.” Monge v. California, 524 U.S. 721, 727-28 (1998). The United States Supreme
Court has stated “that the prohibition against multiple trials is the controlling constitutional
principle.” United States v. DiFrancesco, 449 U.S. 117, 132 (1980) (internal quotation
marks and citation omitted). “This prohibition stops the State, with all its resources and
power, from mounting abusive, harassing reprosecutions, which subject a defendant to
embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found
guilty even though innocent.” Blueford v. Arkansas, 132 S. Ct. 2044, 2053-54 (2012)
(internal quotation marks and citations omitted).

{16} The State makes various arguments as to why double jeopardy should not preclude
a trial for vehicular homicide, starting with the fact that Defendant was never charged with
that particular offense. The State maintains that “[i]f vehicular homicide is a[n] [uncharged]
lesser[]included offense, retrial is not barred.” The State also argues that “[t]he finding of
insufficient evidence on the greater charge [of child abuse] does not preclude a retrial on the
lesser charge especially when the jury was not instructed on the lesser charge . . . . This
second prosecution does not violate the double jeopardy prohibition against successive
prosecutions.” For the following reasons, we are not persuaded.

{17} It is settled law that if a conviction is overturned for insufficient evidence, the
reversal is treated as an acquittal for double jeopardy purposes. As the United States
Supreme Court has stated,

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       Since we necessarily afford absolute finality to a jury’s verdict of acquittal-
       no matter how erroneous its decision-it is difficult to conceive how society
       has any greater interest in retrying a defendant when, on review, it is decided
       as a matter of law that the jury could not properly have returned a verdict of
       guilty.

Burks v. United States, 437 U.S. 1, 16 (1978). Thus, “the Double Jeopardy Clause precludes
a second trial once the reviewing court has found the evidence legally insufficient . . . .” Id.
at 18. The State does not get a second chance to amass additional evidence of guilt.

{18} In addition, an acquittal of a greater offense prevents retrial of lesser included
offenses that could have been, but were not submitted to the jury. According to the Ninth
Circuit,

               If no instructions are given on lesser included offenses, the jury’s
       verdict is limited to whether the defendant committed the crime explicitly
       charged in the indictment. In such cases, an acquittal on the crime explicitly
       charged necessarily implies an acquittal on all lesser offenses included within
       that charge. In re Nielsen, 131 U.S. 176, 189-190, 9 S.Ct. 672, 676-677, 33
       L.Ed. 118 (1889). An acquittal on the explicit charge therefore bars
       subsequent indictment on the implicit lesser included offenses. Id.

United States v. Gooday, 714 F.2d 80, 82 (9th Cir. 1983).

{19} In this case, the Court of Appeals clearly overturned Defendant’s child abuse
convictions for insufficient evidence, stating that “double jeopardy applies where Defendant
challenges her convictions for sufficiency of the evidence and she has successfully done so
with regard to negligent child abuse here . . . .” Gonzales, 2011-NMCA-081, ¶ 33 (emphasis
added). We acknowledge that the Court overturned these convictions based on a new
interpretation of the child abuse statute, one that required additional evidence from the
prosecution. Id. ¶ 1 (describing the issue presented as “an issue of first impression”). The
State had to prove that Defendant, while driving recklessly, was aware or should have been
aware of the children in the other car and the risk of harm her conduct posed to them. The
State failed to produce such evidence. “The State failed to prove that Defendant’s behavior
endangered a particular child that was foreseeable at the time of the accident.” Id. ¶ 32.
Applying the principle of Gooday, therefore, reversal of the greater offense, child abuse, for
insufficient evidence would also appear to “bar[] [a] subsequent indictment on the implicit
lesser included offenses” that were never presented to the jury. 714 F.2d at 82.

{20} The State failed to attack directly the sufficiency of the evidence determination, and
for good reason. Such a ruling is not without precedent in New Mexico law. See, e.g., State
v. Kirby, 2007-NMSC-034, 141 N.M. 838, 161 P.3d 883 (providing a new interpretation of
a criminal statute and concluding that, under the new interpretation, the evidence was
sufficient to support the conviction); State v. Valino, 2012-NMCA-105, 287 P.3d 372

                                               5
(interpreting the battery on a health care worker statute to include knowledge as a required
element and concluding that the evidence was sufficient to support the conviction).
Accordingly, if vehicular homicide is a lesser included offense of negligent child abuse in
the context of this case, then double jeopardy bars a new trial on that charge.

{21} Rather than attack the sufficiency of the evidence determination, the State argues
that Montana v. Hall, 481 U.S. 400 (1987), governs the double jeopardy analysis and does
not bar retrial. In that case, Hall was charged with felony sexual assault of his stepdaughter.
Id. at 401. On the eve of trial, Hall filed a motion to dismiss, claiming that he could only be
prosecuted for the more specific crime of incest. Id. The motion was granted and the state
promptly filed a new information charging Hall with incest, for which he was duly
convicted. Id.

{22} On appeal, Hall reversed fields, arguing that he could not be convicted of incest, but
only sexual assault, because the legislature had amended the incest statute to include
stepchildren only after he had assaulted his stepdaughter. Id. at 401-02. The Montana
Supreme Court agreed with Hall and after declaring the incest conviction void, barred retrial
for sexual assault on double jeopardy grounds. Id. at 402. The United States Supreme Court
reversed, concluding that the “case falls squarely within the rule that retrial is permissible
after a conviction is reversed on appeal.” Id. at 404.

{23} We find the State’s reliance on Hall misplaced. Most importantly the Hall Court
reiterated the “venerable principl[e] of double jeopardy jurisprudence that [t]he successful
appeal of a judgment of conviction, on any ground other than the insufficiency of the
evidence to support the verdict, poses no bar to further prosecution on the same charge.” Id.
at 402 (internal quotation marks and citations omitted). The reversal in Hall was based on
grounds other than insufficient evidence, which enabled the Court to conclude that the “case
falls squarely within the rule” that reversal does not bar retrial. Id. at 404. The Court stated
that Hall’s conviction was reversed “on grounds unrelated to guilt or innocence,” and
because “[t]here is no suggestion that the evidence introduced at trial was insufficient to
convict respondent,” the Court did not preclude a subsequent retrial. Id. at 403. Thus, the
holding of Hall simply does not apply to a case such as this, in which the Court of Appeals
specifically determined that the child abuse convictions were unsupported by substantial
evidence.

{24} Disposing of Hall, we return to the Court of Appeals’ conclusion that, under the facts
of this case, vehicular homicide was a lesser included offense of negligent child abuse
resulting in death, and as a result, double jeopardy barred a new trial. Gonzales, 2011-
NMCA-081, ¶ 36. We have previously stated that “[t]he Double Jeopardy Clause prohibits
successive prosecutions for two offenses arising out of the same conduct if either one is a
lesser[]included offense within the other.” State v. Meadors, 121 N.M. 38, 41, 908 P.2d 731,
734, (1995). For the reasons that follow, however, we do not find it necessary to decide
whether vehicular homicide is such a lesser included offense. Instead, we come to a similar
conclusion based on the related principle of joinder.

                                               6
Compulsory Joinder

{25} Our rules of criminal procedure require that similar offenses be joined in one
prosecution and not be brought piecemeal by way of sequential trials. Rule 5-203(A)
NMRA states:

        Two or more offenses shall be joined in one complaint, indictment or
        information with each offense stated in a separate count, if the offenses,
        whether felonies or misdemeanors or both:

              (1)     are of the same or similar character, even if not part of a single
        scheme or plan; or

               (2)    are based on the same conduct or on a series of acts either
        connected together or constituting parts of a single scheme or plan.

(Emphasis added.) The rule is mandatory; it “is not a discretionary or permissive rule; it
demands that the State join certain charges.” State v. Gallegos, 2007-NMSC-007, ¶ 10, 141
N.M. 185, 152 P.3d 828; accord State v. Paiz, 2011-NMSC-008, ¶ 10, 149 N.M. 412, 249
P.3d 1235. Under the facts of this case, vehicular homicide and child abuse, two crimes
“based on the same conduct”—Defendant’s intoxicated driving resulting in death to the
victim—satisfy the criteria of the Rule. The State had no choice but to join these two
offenses “in one complaint, indictment or information,” if it wanted to pursue them both.

{26} We acknowledge that we raise this issue sua sponte. Neither the State nor Defendant
specifically claimed that retrial was barred by Rule 5-203(A). In terms of barring successive
prosecutions, however, compulsory joinder and double jeopardy are closely related—two
sides of the same coin. Joinder “is designed to protect a defendant’s double-jeopardy
interests where the [state] initially declines to prosecute him for the present offense, electing
to proceed on different charges stemming from the same criminal episode.” Commonwealth
v. Laird, 988 A.2d 618, 628 (Pa. 2010). By raising double jeopardy concerns, then,
Defendant necessarily implicated this Court’s joinder rule. We agree with the following
statement of the Supreme Court of Pennsylvania,

        The purpose of [a] compulsory joinder statute, viewed as a whole, is twofold:
        (1) to protect a defendant from the governmental harassment of being
        subjected to successive trials for offenses stemming from the same criminal
        episode; and (2) to ensure finality without unduly burdening the judicial
        process by repetitious litigation.

Commonwealth v. Fithian, 961 A.2d 66, 75-76 (2008) (internal quotations marks and citation
omitted).

{27}    The State can claim no unfair surprise. Six years ago, we made it clear in Gallegos,

                                               7
2007-NMSC-007, ¶ 14, that the compulsory joinder rule means what it says. There, we
applied the rule to require joinder of offenses “of the same or similar character,” even when
arising from two different victims. Id. ¶ 15. Here, we have offenses “based on the same
conduct” against the same victim. In Gallegos, we took the time to discuss the evolution of
the joinder rule, from permissive to mandatory, and the reasons for it.

{28} Years ago, even before adopting a compulsory joinder rule, this Court expressed its
“distaste for piecemeal prosecutions.” Id. ¶ 14 (internal quotation marks and citation
omitted). We stated in State v. Tijerina, that this Court does not

       approve [of] piecemeal prosecution. Such disorderly criminal procedures
       involve a myriad of problems which threaten the existence of our judicial
       system. The risk of prejudice to the accused, and the waste of time inherent
       in multiple trials, both perpetuate delays in the judicial process and
       unconscionable expenditures of public funds, all of which could be avoided
       by prosecutors getting their facts straight, their theories clearly in mind and
       trying all charges together.

86 N.M. 31, 36, 519 P.2d 127, 132 (1973). As we later clarified in State v. Tanton, “[b]y
‘piecemeal prosecutions’ in Tijerina we referred to multiple prosecutions to which the
double jeopardy clause did not apply. Thus, we intended a statement of judicial policy rather
than a rule of law. We adhere to the stated policy.” 88 N.M. 333, 336, 540 P.2d 813, 816
(1975).1

{29} Some four years later we went further, transmuting this “judicial policy” into a court
rule, when this Court made it mandatory to join offenses arising out of the same occurrence
or transaction. See Rule 5-203 Committee Commentary (providing that a 1979 Supreme
Court order made joinder mandatory). In short, after reading our comprehensive opinion in
Gallegos, the State should have had no doubt about the consequences of its decision not to
join vehicular homicide with the other charges.

{30} Until today, we have not considered the proper remedy when the prosecution fails
to join charges under Rule 5-203(A). While the rule does not specify a remedy, we clearly
intended that the rule have force. It would make little sense to have a mandatory rule with
no method of enforcement; we would render it merely permissive. A bar against a
subsequent prosecution on charges that should have been joined under Rule 5-203(A) is the


       1
          We observe that this judicial policy against piecemeal prosecutions finds expression
in other states. Tennessee, for instance, changed its rule of joinder from permissive to
mandatory to specifically stop the practice of “saving back” charges for future prosecution.
State v. Johnson, 342 S.W.3d 468, 473 (Tenn. 2011); Tenn. R. Crim. P. 8, Advisory Comm’n
Cmts. (describing the purpose of the joinder rule as “the prevention of a deliberate and
willful ‘saving back’ of known charges for future prosecution”).

                                              8
only effective remedy to enforce the mandatory nature of the rule.

{31} We also observe that in other jurisdictions a bar against retrial is the usual remedy
for failing to join offenses under a mandatory joinder rule. Whether joinder is required by
court rule, see Ark. R.Cr. P. 21.3 (c), statute, see Colo. Rev. Stat. Ann. § 18-1-408(2) (West
2000), or judicial interpretation, see Kellet v. Super. Ct. of Sacramento Cnty., 409 P.2d 206,
210 (Cal. 1966), the remedy is the same. Violation of the requirement bars subsequent
prosecution. Thus, we hold that a failure to join offenses under Rule 5-203(A) bars
piecemeal prosecution in a subsequent trial.

{32} This is not a case in which the charge the State now seeks to bring, vehicular
homicide, was unknown at the time Defendant was indicted. The State had at least three
different opportunities to join these offenses. The first was in the original indictment, but
it chose to ask the grand jury to indict only on charges of child abuse. The second was at the
hearing on the motion to dismiss. The State was made fully aware that the charge was
available and admitted at that hearing that it knew it was taking a risk when it decided on this
particular trial strategy. Finally, under Meadors, 121 N.M. at 45, 908 P.2d at 738, the State
could have asked for a vehicular homicide instruction notwithstanding its omission from the
indictment, but again the State elected not to do so.

{33} New Jersey courts have noted “the coercive effect” that such all-or-nothing
prosecution strategies potentially “exert[] on jury deliberations.” State v. Christener, 362
A.2d 1153, 1162 (1976), overruled on other grounds by State v. Wilder, 939 A.2d 781, 792
(2008). The State continues to argue that “[t]he decision to prosecute child abuse and not
vehicular homicide was within the discretion of the State.” We agree. But decisions have
consequences. As we stated in State v. Villa, in which the State also pursued an all-or-
nothing trial strategy,

       [o]n appeal, we do not second-guess the tactical decisions of the litigants.
       Were we to adopt the State’s position, the [S]tate would have all of the
       benefits and none of the risks of its trial strategy, while the accused would
       have all the risks and none of the protections. We believe that both parties
       are entitled to the benefits and should be liable for the risks of their
       respective trial strategies.

2004-NMSC-031, ¶ 14, 136 N.M. 367, 98 P.3d 1017 (internal quotation marks and citations
omitted).

CONCLUSION

{34} For the reasons expressed in this opinion, we affirm the essential holding of the Court
of Appeals barring a subsequent prosecution of Defendant for the crime of vehicular
homicide.


                                               9
{35}   IT IS SO ORDERED.

                                          ____________________________________
                                          RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Chief Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
BARBARA J. VIGIL, Justice

Topic Index for State v. Gonzales, No. 33,077

APPEAL AND ERROR
Standard of Review
Sua Sponte Issue on Appeal
Substantial or Sufficient Evidence

CONSTITUTIONAL LAW
Double Jeopardy

CRIMINAL LAW
Child Abuse and Neglect
Vehicular Homicide

CRIMINAL PROCEDURE
Double Jeopardy
Joinder of Charges
Lesser Included Offense




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