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 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   No. 30,443

10 JOHN FIERRO,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 John A. Dean, District Judge

14 Gary K. King, Attorney General
15 Ann M. Harvey, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Jacqueline L. Cooper, Acting Chief Public Defender
19 Kathleen T. Baldridge, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 SUTIN, Judge.
 1        Defendant John Fierro was convicted of two counts of criminal sexual

 2 penetration in the fourth degree based on his penile penetration of the anus and digital

 3 penetration of the vagina of his fifteen-year-old cousin. We must decide whether the

 4 sequential penetrations of the victim’s orifices, with two different objects, were

 5 sufficiently distinct to warrant separate counts of criminal sexual penetration and pass

 6 scrutiny under our double jeopardy protections. We hold that Defendant’s resulting

 7 two convictions do not violate double jeopardy. We therefore affirm the convictions

 8 on both counts.

 9 Background

10        After Defendant was originally charged with two counts of criminal sexual

11 penetration in the second degree under NMSA 1978, Section 30-9-11(E) (2009), he

12 filed a pretrial motion to dismiss one count on double jeopardy grounds. Defense

13 counsel conceded the facts as alleged by the victim and asked the district court to rule

14 on Defendant’s double jeopardy claim. Relying on the State’s affidavit for arrest

15 warrant and the summary of facts presented to the court, we set forth the facts as

16 follows.

17        The victim’s family explained to investigators that Defendant had been kicked

18 out of his own house and was residing at their house in the meantime. According to

19 the victim, on the night of the incident Defendant bought soft drinks from a local fast-


                                              2
 1 food restaurant for the victim and other family members. After drinking the beverage

 2 given to her, the victim claimed she became tired and went to her room to sleep. She

 3 remembered awakening to Defendant entering her room, approaching her bed, and

 4 saying “What’s up?” She responded, “I’m sleeping” and attempted to go back to sleep

 5 by closing her eyes. After which, she felt Defendant pull her pants down and felt “a

 6 whole bunch of . . . pain in [her] butt.” She remembered the pain “went away,” and

 7 she was “going to sleep a little bit,” but then felt “a lot of pressure in [her] vagina.”

 8 Afterward she returned to sleep. The victim’s penetration claim was corroborated, in

 9 the State’s opinion, by the results of a medical evaluation that found “evidence of

10 physical injuries or contusions to [both] her anal . . . [and] vaginal opening[s].”

11        Defendant offered further details to the police investigator regarding the

12 penetrations, stating that he was “fingering her vagina” for five to ten minutes when

13 he decided he “was going to go inside her” anus with his penis. He stated that she

14 “turned around,” but that he “barely put [his] penis against her ass” when he

15 ejaculated.

16 Sufficiency of the Evidentiary Record for Double Jeopardy Analysis

17        As a threshold matter, the State argues that this Court should forego its double

18 jeopardy analysis because Defendant “has failed to assure an adequate record for

19 review of his claim.” While we acknowledge the general validity of the State’s legal


                                               3
 1 citations—that defendants shoulder the evidentiary burden for double jeopardy claims,

 2 that counsel’s assertions of double jeopardy are neither evidence nor sufficient for

 3 double jeopardy review, and that double jeopardy claims must be rejected if they are

 4 without a factual basis in the record—we disagree that any of these principles require

 5 dismissal of Defendant’s claim without further review.

 6        Facing two counts of second degree criminal sexual penetration, Defendant

 7 attempted to have one count dismissed on double jeopardy grounds, but this attempt

 8 failed. He then accepted a plea agreement for two lesser counts of fourth degree

 9 criminal sexual penetration. Accordingly, Defendant’s case never proceeded to trial

10 and no evidence was submitted through factual hearings. The district court record,

11 however, contains a sufficient factual basis for our review. During the pretrial motion

12 hearing, the parties presented summaries of the facts based on interviews and

13 statements of Defendant and the victim. The affidavit used to support Defendant’s

14 arrest warrant provided an additional summary of the facts based on the assigned

15 detective’s investigation and was entered into the district court record. And finally,

16 the State provided a summary of the evidence supporting the convictions at the plea

17 hearing.

18        While this Court has recognized that double jeopardy claims require meticulous

19 review of the facts and can rarely be determined on the face of an indictment, State v.


                                              4
 1 Sanchez, 1996-NMCA-089, ¶¶ 8, 11, 122 N.M. 280, 923 P.2d 1165, we have relied

 2 on evidence outside factual hearings that is established from the record of a guilty plea

 3 without trial. State v. Andazola, 2003-NMCA-146, ¶ 2, 134 N.M. 710, 82 P.3d 77

 4 (“Because the charges were resolved by a plea agreement, we have the factual

 5 background in the record proper, including the affidavit to the criminal complaint and

 6 the sworn depositions of the victims, as well as the transcript of the hearings in this

 7 case.”); State v. Handa, 120 N.M. 38, 40-42, 897 P.2d 225, 227-29 (Ct. App. 1995)

 8 (relying on facts from a pretrial motion to strike and from a sentencing memorandum

 9 to determine double jeopardy claim); State v. Jackson, 116 N.M. 130, 132, 860 P.2d

10 772, 774 (Ct. App. 1993) (basing double jeopardy review on the summary of facts

11 presented at the plea hearing); State v. Tsethlikai, 109 N.M. 371, 372-74, 785 P.2d

12 282, 283-85 (Ct. App. 1989) (relying on an exhibit that reported pertinent events and

13 was tendered by the defendant at a sentencing hearing for a double jeopardy analysis).

14        Unlike in Sanchez, where the defendant “base[d] his double jeopardy claim

15 solely on the indictment with no underlying factual record[,]” the factual record here,

16 as presented to the district court in affidavit and summary form, is sufficient for our

17 double jeopardy review. 1996-NMCA-089, ¶ 8. The procedural posture and factual

18 record of this case are indistinguishable from those reviewed in Andazola, Handa, and




                                               5
1 Jackson, and no legally sound reason exists to forego a full review of Defendant’s

2 double jeopardy claim.




                                          6
 1 Defendant’s Convictions Do Not Violate Double Jeopardy

 2        Defendant contends that one of his two fourth degree criminal sexual

 3 penetration convictions violates the constitutional guarantee against double jeopardy

 4 because it subjected him to multiple punishments for the same offense. Specifically,

 5 Defendant argues that although he pleaded no contest to penile penetration of the

 6 victim’s anus and digital penetration of the victim’s vagina, both penetrations were

 7 merely part of “a singular intent to engage in sexual relations with one individual, i.e.,

 8 a single course of conduct” and cannot be punished separately.

 9        Defendant’s claim is governed by our double jeopardy jurisprudence as applied

10 to unit-of-prosecution cases. Swafford v. State, 112 N.M. 3, 8, 810 P.2d 1223, 1228

11 (1991) (describing unit-of-prosecution cases as ones in which “the defendant has been

12 charged with multiple violations of a single statute based on a single course of

13 conduct”). In this context, multiple punishments will violate double jeopardy unless

14 (1) “the [L]egislature intended to create a separate offense for each violation of the

15 statute that occurred during a continuous series of events[,]” or (2) the violations are

16 in some sense distinct. State v. Haskins, 2008-NMCA-086, ¶¶ 16-17, 144 N.M. 287,

17 186 P.3d 916. Because our Supreme Court has held that the Legislature has not

18 unambiguously declared its intention to punish separately each penetration, we must




                                               7
 1 determine whether Defendant’s anal penetration of the victim was in some sense

 2 distinct from the vaginal penetration. Id.

 3        There are six factors to consider in determining distinctness according to

 4 Herron v. State, 111 N.M. 357, 805 P.2d 624 (1991). Those factors are:

 5        (1) temporal proximity of penetrations (the greater the interval between
 6        acts the greater the likelihood of separate offenses); (2) location of the
 7        victim during each penetration (movement or repositioning of the victim
 8        between penetrations tends to show separate offenses); (3) existence of
 9        an intervening event; (4) sequencing of penetrations (serial penetrations
10        of different orifices, as opposed to repeated penetrations of the same
11        orifice, tend to establish separate offenses); (5) defendant’s intent as
12        evidenced by his conduct and utterances; and (6) number of victims
13        (although not relevant here, multiple victims will likely give rise to
14        multiple offenses).

15 Id. at 361, 805 P.2d at 628. The Herron Court clarified that none of these factors

16 alone is determinative, “[e]xcept for penetrations of separate orifices with the same

17 object,” which alone can establish distinct acts. Id. at 362, 805 P.2d at 629.

18        In evaluating Defendant’s claim, which was raised as a pretrial motion to

19 dismiss, we accept the State’s factual allegations and review the legal determination

20 de novo. State v. Johnson, 2009-NMSC-049, ¶¶ 3-4, 147 N.M. 177, 218 P.3d 863

21 (“Since this matter is before us on review of [the d]efendant’s motion to dismiss, we

22 briefly set forth the allegations in the [prosecution’s] criminal complaint. . . . A

23 defendant’s pretrial motion to dismiss cannot contradict allegations of fact supported

24 by probable cause; to do so would raise a factual issue for the jury to decide.” (internal

                                                8
 1 quotation marks and citations omitted)). Moreover, we apply a de novo standard of

 2 review to the constitutional question of whether there has been a double jeopardy

 3 violation. Andazola, 2003-NMCA-146, ¶ 14.

 4          Reviewing the facts as alleged by the victim, along with consistent details

 5 provided by Defendant himself, the result under Herron is clear. Defendant’s serial

 6 penetrations of the victim’s two different orifices (anus and vagina), with two

 7 different objects (penis and finger), are distinct acts and double jeopardy does not

 8 prohibit their separate punishment. Herron identified only one scenario that provides

 9 a definitive answer on the issue of distinctness—penetrations of different orifices with

10 the same object. 111 N.M. at 362, 805 P.2d at 629. Although Defendant penetrated

11 different orifices with different objects, he did not do so simultaneously, and thus

12 Defendant’s scenario is conceptually equivalent to the one specifically identified in

13 Herron as determinative. The factual scenario alone, serial penetration of different

14 orifices, is enough to surmount any double jeopardy concern. But this determination

15 is bolstered by the fact that the remaining Herron factors do not weigh in Defendant’s

16 favor.

17          The fact that Defendant targeted one victim may indicate a single act occurred.

18 But Defendant’s ejaculation during his penetration of the victim’s anus, the cessation

19 of pain as reported by the victim, and her attempt to return to sleep, all occurring


                                               9
 1 before the subsequent penetration of the victim’s vagina, weigh in favor of the

 2 existence of an intervening event and mark a break in time sufficient to divorce the

 3 two penetrations into distinct criminal acts. Additionally, Defendant admitted that the

 4 victim turned over between penetrations, suggesting some change in position, which

 5 under Herron is indicative of two offenses. Id. (“Two offenses were committed upon

 6 returning to the living room—one digital penetration of the vagina and, after

 7 repositioning the victim, one penile penetration of the vagina.”). Finally, Defendant’s

 8 intent, as evidenced by his conduct, does not appear to clearly indicate a single act,

 9 especially where he moved from penile penetration of the anus resulting in ejaculation

10 to digital penetration of the vagina, with no apparent connection between the two

11 violations.

12        Defendant’s arguments with respect to State v. Ervin, 2008-NMCA-016, 143

13 N.M. 493, 177 P.3d 1067, State v. Segura, 2002-NMCA-044, 132 N.M. 114, 45 P.3d

14 54, and State v. Laguna, 1999-NMCA-152, 128 N.M. 345, 992 P.2d 896, are equally

15 unpersuasive. Segura and Laguna analyzed double jeopardy with respect to multiple

16 charges for repeated attempts of criminal sexual contact of a minor to a single private

17 area. Segura, 2002-NMCA-044, ¶ 9; Laguna, 1999-NMCA-152, ¶ 38. In the criminal

18 sexual penetration context, those scenarios would be tantamount to repeated attempts




                                             10
 1 to penetrate the same orifice, which is legally different from the multiple orifice

 2 penetrations endured by the victim here.

 3        Ervin, on the other hand, does address distinct areas of the body—similar to

 4 multiple orifice penetration, but is inapplicable due to the distinct treatment of

 5 simultaneous and serial contacts or penetrations. The Ervin Court noted that “[the

 6 d]efendant massaged [the c]hild’s nude body, touching her breasts, buttocks, and

 7 vagina [in] one continuous course of conduct . . . . There was no lapse in time between

 8 the times [the d]efendant touched [the c]hild’s different body parts and no intervening

 9 event.” 2008-NMCA-016, ¶ 46. In stark contrast, the victim in the present case

10 described a clear break between the two penetrations she endured and therefore

11 Ervin’s reasoning does not control our analysis here. In a penetration context, Ervin

12 is equivalent to simultaneous penetration of different orifices which could constitute

13 a single act of penetration, depending on the factual circumstances. Herron, 111 N.M.

14 at 361, 805 P.2d at 628 (“Simultaneous penetration of different orifices with different

15 objects raises a similar problem.”). Herron clearly distinguished the Ervin-like

16 scenario of simultaneous penetrations from “serial penetrations of different orifices”

17 that “tend to establish separate offenses[.]” Id.

18 Conclusion

19        The convictions are affirmed.


                                              11
1      IT IS SO ORDERED.




2                               __________________________________
3                               JONATHAN B. SUTIN, Judge

4 WE CONCUR:


5 ___________________________________
6 CELIA FOY CASTILLO, Chief Judge


7 ___________________________________
8 MICHAEL E. VIGIL, Judge




                                  12
