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                                                                  New Mexico Compilation
                                                                Commission, Santa Fe, NM
                                                               '00'05- 09:15:18 2015.12.09
Certiorari Denied, November 5, 2015, No. 35,550

        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-118

Filing Date: October 5, 2015

Docket No. 33,921

STATE OF NEW MEXICO,

        Plaintiff-Appellee,

v.

FERLIN BEN,

        Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Grant L. Foutz, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Kenneth H. Stalter, Assistant Attorney General
Albuquerque, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Karl Erich Martell, General Counsel
Santa Fe, NM

for Appellant

                                          OPINION

VANZI, Judge.

{1}     At issue in this appeal is a unique application of the constitutional bar against retrial
after acquittal. Defendant Ferlin Ben was charged and convicted in a nonjury trial in
magistrate court for driving while intoxicated (DWI), contrary to NMSA 1978, Section 66-8-
102 (2010). Defendant’s conviction was expressly based on the “per se” provision of

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Subsection (C)(1), which is one of two statutory alternative means of committing the single
offense of DWI. See State v. Lewis, 2008-NMCA-070, ¶ 27, 144 N.M. 156, 184 P.3d 1050.

{2}     After a de novo appeal to the district court, Defendant was subsequently acquitted
of the per se violation and convicted of the alternative provision in Subsection (A), which
requires a finding of impairment to the slightest degree. Defendant now contends that double
jeopardy and jurisdictional principles prevented the State from arguing impaired DWI to the
jury after the magistrate court failed to convict him on that theory in the first trial.
Unpersuaded, we affirm.

BACKGROUND

{3}     The scant record from the magistrate court sets forth the following facts and
allegations, which, for our purposes, are not in dispute. On September 19, 2013, state police
stopped Defendant after observing multiple traffic violations. Defendant admitted to drinking
“two beers,” performed poorly on field sobriety tests, and later registered a breath alcohol
concentration (BAC) of .08. The State charged Defendant in the McKinley County
Magistrate Court with several traffic offenses, including misdemeanor DWI. That offense
is committed when a person drives a vehicle with a BAC of .08 or higher (a per se violation),
see § 66-8-102(C)(1), or, in the alternative, when a person drives while “under the influence”
of intoxicating liquor or drugs (an impaired to the slightest degree violation), see § 66-8-
102(A).

{4}      After a nonjury trial, the court found Defendant guilty of DWI. Although the
criminal complaint asserted violations of both subsections of the DWI statute, the court
specified in its judgment and sentence that Defendant violated Subsection (C)(1), which is
the per se violation. The judgment and sentence did not refer to the impaired DWI provision
of Subsection (A).

{5}     Defendant sought de novo review in the district court, where, over Defendant’s
objection, the State alleged both theories of DWI. A jury convicted Defendant of impaired
DWI under Subsection (A) but found no violation of per se DWI under Subsection (C)(1).
On appeal, Defendant now contends that (1) the magistrate court’s silence as to Subsection
(A) impliedly acquitted him of impaired DWI, precluding the district court’s retrial on that
theory according to principles of double jeopardy, and (2) the district court lacked
jurisdiction to consider the theory. We review these related contentions de novo. See Victor
v. N.M. Dep’t of Health, 2014-NMCA-012, ¶ 22, 316 P.3d 213; State v. Andazola, 2003-
NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77.

DISCUSSION

Double Jeopardy

{6}    “All appeals from inferior tribunals to the district courts shall be tried anew in said

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courts on their merits, as if no trial had been had below, except as otherwise provided by
law.” NMSA 1978, § 39-3-1 (1955). By its own terms, this statute is necessarily subject to
the Constitutions of the United States and New Mexico, which guarantee that no person shall
be “twice put in jeopardy” for the same offense.1 U.S. Const. amend. V; N.M. Const. art. II,
§ 15; NMSA 1978, § 30-1-10 (1963); Ludwig v. Massachusetts, 427 U.S. 618, 631 (1976);
State v. Baca, 2015-NMSC-021, ¶¶ 2, 21, 46, 352 P.3d 1151 (applying double jeopardy
retrial principles to a de novo appeal from magistrate court). In this case, jeopardy attached
to the nonjury trial in the magistrate court “when the trial judge first start[ed] hearing
evidence.” Baca, 2015-NMSC-021, ¶ 46.

{7}     The Double Jeopardy Clause operates to protect an individual from repeated attempts
by the state, “with all its resources and power[,]” to secure a conviction, with the consequent
anxiety, embarrassment, and undue expense to a defendant that results from retrial. Cnty. of
Los Alamos v. Tapia, 1990-NMSC-038, ¶ 16, 109 N.M. 736, 790 P.2d 1017 (internal
quotation marks and citation omitted), overruled on other grounds by City of Santa Fe v.
Marquez, 2012-NMSC-031, ¶ 25, 285 P.3d 637. In common parlance, the state, upon failing
to convict a defendant after a full and fair opportunity to do so “is barred from a second bite
of the apple.” State v. Orosco, 1982-NMCA-181, ¶ 11, 99 N.M. 180, 655 P.2d 1024; see also
Burks v. United States, 437 U.S. 1, 16 (1978) (noting that the United States Supreme Court
necessarily affords “finality to a jury’s verdict of acquittal—no matter how erroneous its
decision” (emphasis omitted)).

{8}      On the other hand, there is no constitutional prohibition against retrial after a
conviction is set aside, except where the conviction is vacated for insufficient evidence. State
v. Lizzol, 2007-NMSC-024, ¶¶ 13-14, 141 N.M. 705, 160 P.3d 886. The distinction between
retrial after an acquittal and retrial after a conviction reversed for trial error has historically
been justified on various rationales, including the legal fiction of waiver—that a defendant
who successfully appeals his conviction for trial error “waives” any objection to a second
prosecution, see Trono v. United States, 199 U.S. 521, 530-31 (1905), and the doctrine of
continuing jeopardy—that jeopardy terminates upon an acquittal but continues through an
appeal and into the subsequent retrial. Justices of Bos. Mun. Ct. v. Lydon, 466 U.S. 294, 308
(1984) (“Interests supporting the continuing jeopardy principle involve fairness to society,
lack of finality, and limited waiver.”).

{9}    However justified, these principles unquestionably govern our state’s two-tier system
of de novo appeals from off-record inferior courts, including, of course, the McKinley
County Magistrate Court.



        1
         Neither party has argued that there is any difference in the application of the state
and federal constitutional provisions to this case. We therefore “assume the two clauses
require the same analysis and result.” State v. O’Kelley, 1991-NMCA-049, ¶ 5, 113 N.M.
25, 822 P.2d 122.

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        A defendant who elects to be tried [d]e novo . . . is in no different position
        than is a convicted defendant who successfully appeals on the basis of the
        trial record and gains a reversal of his conviction and a remand of his case for
        a new trial. Under these circumstances, it long has been clear that the [s]tate
        may reprosecute.

Ludwig, 427 U.S. at 631-32; see also Lydon, 466 U.S. at 309 (“While technically the
defendant is tried again, the second stage proceeding can be regarded as but an enlarged,
fact-sensitive part of a single, continuous course of judicial proceedings during which,
sooner or later, a defendant receives more—rather than less—of the process normally
extended to criminal defendants in this nation.” (alteration, internal quotation marks, and
citation omitted)). Thus, having been convicted—and not acquitted—of DWI in the
magistrate court, Defendant was in the same position as any individual who successfully
appeals his conviction for trial error. “Under these circumstances, it has long been clear that
the [s]tate may reprosecute.” Lydon, 466 U.S. at 305. To escape this conclusion, Defendant
divides the single offense of DWI into its alternative theories, contending that his conviction
in the first trial on one theory of DWI (the per se theory) necessarily constitutes an implied
acquittal on the alternative theory on which no conviction was entered (the impaired DWI
theory).

{10} The genesis of the modern implied acquittal doctrine is Green v. United States, 355
U.S. 184 (1957). In Green, the United States Supreme Court held that a verdict convicting
a defendant of a lesser included offense of second degree murder, but silent as to the greater
offense of first degree murder, constituted an implied acquittal of the greater offense,
prohibiting retrial. Id. at 190-91. In brief, the Court believed the case was no different, for
double jeopardy purposes, “than if the jury had returned a verdict which expressly read: ‘We
find the defendant not guilty of murder in the first degree but guilty of murder in the second
degree.’ ” Id. at 191; see also Price v. Georgia, 398 U.S. 323, 329 (1970) (“[T]his Court has
consistently refused to rule that jeopardy for an offense continues after an acquittal, whether
that acquittal is express or implied by a conviction on a lesser included offense when the jury
was given a full opportunity to return a verdict on the greater charge.” (footnote omitted)).

{11} Our cases have neither read Green as broadly as Defendant suggests nor applied
Green outside the context of lesser included offenses. See State v. Torrez, 2013-NMSC-034,
¶ 13, 305 P.3d 944 (citing with approval the observation that “courts have refused to imply
an acquittal unless a conviction of one crime logically excludes guilt of another crime”
(alteration, internal quotation marks, and citation omitted)); O’Kelley, 1991-NMCA-049, ¶
14 (“An implied acquittal generally occurs when the jury is instructed to choose between a
greater and a lesser offense, and chooses the lesser.”). “Only where the jury is given the full
opportunity to return a verdict either on the greater or alternatively on the lesser offense does
the doctrine of implied acquittal obtain.” O’Kelley, 1991-NMCA-049, ¶ 16. In fact, the
United States Supreme Court itself has long since disclaimed a broad reading of Green. See
United States v. Tateo, 377 U.S. 463, 465 n.1 (1964) (stating that Green “holds only that
when one is convicted of a lesser offense included in that charged in the original indictment,

                                               4
he can be retried only for the offense of which he was convicted rather than that with which
he was originally charged”).

{12} When a defendant is convicted based on one of two alternative means of committing
a single crime, which is the situation presented in this case, the near uniform majority of
jurisdictions that have considered the issue have refused to imply an acquittal on the other
alternative. See United States v. Ham, 58 F.3d 78, 84-86 (4th Cir. 1995); United States v.
Wood, 958 F.2d 963, 971-72 (10th Cir. 1992); United States ex rel. Jackson v. Follette, 462
F.2d 1041, 1047, 1049-50 (2d Cir. 1972); Beebe v. Nelson, 37 F. Supp. 2d 1304, 1308 (D.
Kan. 1999); Schiro v. State, 533 N.E.2d 1201, 1207-08 (Ind. 1989); State v. Pexa, 574
N.W.2d 344, 347 (Iowa 1998) (“A failure to consider an alternative definition of the offense
charged does not constitute an acquittal of that offense for double jeopardy purposes.”); State
v. Wade, 161 P.3d 704, 715 (Kan. 2007); Commonwealth v. Carlino, 865 N.E.2d 767, 774-75
(Mass. 2007); People v. Jackson, 231 N.E.2d 722, 728-30 (N.Y. 1967); State v. Wright, 203
P.3d 1027, 1035 (Wash. 2009) (en banc); State v. Kent, 678 S.E.2d 26, 30-33 (W. Va. 2009);
cf. State v. Terwilliger, 104 A.3d 638, 651-52 (Conn. 2014) (refusing to imply an acquittal
where a general verdict form made it impossible to know which theory supported the
defendant’s conviction); Torrez, 2013-NMSC-034, ¶¶ 10-14 (same). But see Terry v. Potter,
111 F.3d 454, 458 (6th Cir. 1997); State v. Hescock, 989 P.2d 1251, 1256-57 (Wash. Ct.App.
1999) (applying Terry).

{13} In Wright, for instance, the Washington Supreme Court recognized that the logic of
Green does not follow when a defendant is prosecuted for a single offense that can be
committed in multiple ways because “jeopardy attaches to the offense as a whole rather than
to the particular form in which it is tried, so that if an individual succeeds in getting a
conviction set aside, the defendant’s ‘continuing jeopardy’ applies to any alternative way of
committing the same offense.” Wright, 203 P.3d at 1035. Several other courts have taken this
approach. See, e.g., Wood, 958 F.2d at 972 (holding that, where the jury was instructed on
one offense, and the defendant was convicted of that offense, retrial was not barred);
Terwilliger, 104 A.3d at 667-68 (Roger, C.J., concurring); Beebe, 37 F. Supp. 2d at 1307.
Their reasoning is persuasive because “[a] defendant charged and tried under multiple
statutory alternatives experiences the same jeopardy as one charged and tried on a single
theory.” Wright, 203 P.3d at 1035. That defendant “is in jeopardy of a single conviction and
subject to a single punishment, whether the [s]tate charges a single alternative or several.”
Id.

{14} In another example, the Court of Appeals of New York came to the same result by
applying the waiver theory of double jeopardy (discussed briefly above) as opposed to the
continuing jeopardy doctrine.

       The defendant’s argument stands or falls on his contention that felony murder
       and premeditated murder are separate offenses and that the jury was given
       the opportunity to return a verdict on the felony murder offense but failed to
       do so. If felony murder and premeditated murder constitute one and the same

                                              5
       offense—viz., murder in the first degree— [the defendant] was not put in
       double jeopardy at his second trial when he was tried for felony murder as
       well as premeditated murder; for if a defendant is convicted of a single
       offense and takes a successful appeal from his judgment of conviction, he
       waives his constitutional protection against double jeopardy for that
       offense[.]

Jackson, 231 N.E.2d at 729. In sum, these cases stand for the sound proposition that a
conviction on only one theory of an offense is no less a conviction, and typical double
jeopardy retrial principles apply to the offense as a whole.

{15} However, there is a limited exception to this general rule, evident in decisions that
read Green as simply applying collateral estoppel (issue preclusion) notions in a double
jeopardy case. According to this analysis, the defendant’s conviction of second degree
murder in Green “established the existence of a fact (the state of mind required for that
offense) that was inconsistent with his being guilty of first[]degree murder, so his subsequent
conviction of that offense was barred.” Kennedy v. Washington, 986 F.2d 1129, 1134 (7th
Cir. 1993). “That is all that ‘implied acquittal’ means.” Id.

{16} These issue-preclusion cases essentially state the following rule: A conviction based
on one of several statutory means of committing a single offense may imply an acquittal only
when the conviction necessarily involves a factual finding inconsistent with guilt on the
other theory. See, e.g., Schiro v. Farley, 510 U.S. 222, 236 (1994) (distinguishing Green
because “[t]he failure to return a verdict does not have collateral estoppel effect . . . unless
the record establishes that the issue was actually and necessarily decided in the defendant’s
favor”); Ham, 58 F.3d at 85 (“A jury’s failure to decide an issue will be treated as an implied
acquittal only where the jury’s verdict necessarily resolves an issue in the defendant’s
favor.”); Carlino, 865 N.E.2d at 775 (recognizing that the appellate court “[could not]
discern the jury’s intention from their silence.”); State v. Gause, 971 N.E.2d 341, 344-45
(N.Y. 2012) (holding that a conviction for depraved indifference murder necessarily
precluded a subsequent finding that the defendant committed intentional murder because
those alternative theories are inconsistent counts under New York law).

{17} This approach was taken by the highest court in Massachusetts in an opinion that has
been discussed favorably by our own Supreme Court. See Torrez, 2013-NMSC-034, ¶¶ 12-
14 (discussing Carlino for double jeopardy purposes). In Carlino, the defendant was tried
and convicted on two alternative theories of first degree murder. 865 N.E.2d at 769.
However, the defendant was also charged with a third alternative theory (felony murder), but
the verdict slip did not indicate whether he was acquitted or convicted on that theory. Id. The
murder conviction was later reversed, and the defendant was tried again and found guilty
under all three theories, including felony murder. Id. at 770. He appealed and made the same
argument that Defendant makes in this case: that the fact finder’s failure to mark one of
several alternative theories on a verdict slip is tantamount to an acquittal on that theory,
prohibiting retrial. Id. at 772-73. The Carlino court rejected that argument because “a true

                                               6
acquittal requires a verdict on the facts and merits.” Id. at 775 (alteration, internal quotation
marks, and citation omitted). Nothing in the defendant’s convictions for two theories of first
degree murder “logically require[d] the conclusion that the jury must have acquitted the
defendant of felony-murder.” Id. at 774.

{18} We can think of no reason that the principles discussed at length in this Opinion do
not apply in the present context, involving a de novo appeal from a nonjury trial in
magistrate court. See Ludwig, 427 U.S. at 631 (“A defendant who elects to be tried [d]e novo
. . . is in no different position than is a convicted defendant who successfully appeals on the
basis of the trial record and gains a reversal of his conviction and a remand of his case for
a new trial.”). Defendant has not made any factual argument about what occurred in the off-
record proceedings below. He has limited his argument to the doctrine of implied acquittal,
while citing to cases that are inapposite to that doctrine.

{19} We hold that there is no implied acquittal when a fact finder convicts an individual
for violation of one of multiple alternative means of committing a single offense, unless the
conviction necessarily resolves a fact in the defendant’s favor. This holding is consistent
with the analysis of implied acquittal and collateral estoppel applied in the majority of
jurisdictions and discussed with approval by our own Supreme Court in Torrez, 2013-
NMSC-034, ¶ 13 (“[C]ourts have refused to imply an acquittal unless a conviction of one
crime logically excludes guilt of another crime.” (internal quotation marks and citation
omitted)). It is also supported by society’s interest in a decision on the merits in a criminal
case and by our state’s general understanding “that what constitutes an acquittal . . . is
whether the ruling of the judge . . . actually represents a resolution, correct or not, of some
or all of the factual elements of the offense charged.” Lizzol, 2007-NMSC-024, ¶ 9 (internal
quotation marks and citations omitted). Since Defendant was convicted in magistrate court
based on the per se theory of DWI, and since that conviction is not logically inconsistent
with a finding of impaired DWI, Defendant’s double jeopardy rights were not violated when
he was retried de novo on the impaired theory in the district court.

Jurisdiction

{20} Defendant also makes a cursory argument that the district court lacked jurisdiction
to consider the impaired DWI theory since the magistrate court never ruled on it. “All
appeals from inferior tribunals to the district courts shall be tried anew in said courts on their
merits, as if no trial had been had below, except as otherwise provided by law.” Section 39-
3-1. In this case, the district court had appellate jurisdiction to “conduct[] a new trial, as if
the trial in the lower court had not occurred.” State v. Heinsen, 2004-NMCA-110, ¶ 11, 136
N.M. 295, 97 P.3d 627 (alteration, internal quotation marks, and citation omitted), aff’d,
2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040. The only potential limitation on its
authority to retry Defendant de novo was the Double Jeopardy Clause, and we have already
held that double jeopardy was not violated.

CONCLUSION

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{21}   Defendant’s conviction is affirmed.

{22}   IT IS SO ORDERED.

                                             ____________________________________
                                             LINDA M. VANZI, Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
TIMOTHY L. GARCIA, Judge




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