STATE OF NEW MEXICO v. JAMES SIMPSON

There was no trial below, and the record is mostly devoid of any factual13

background, but a few details were elicited at the plea hearing. Had the case gone to14

trial, Officer Austin Barnes of the Taos Police Department would have testified that15

Defendant crashed into his patrol car after “fail[ing] to yield,” causing over $1000 in16

damages. Officer Victor Flores of the New Mexico State Police would have testified17

that Defendant then submitted to a blood alcohol test and was determined to be18

driving while intoxicated. The parties agreed in separate hearings that the evidence19

was sufficient for a reasonable jury to convict Defendant of both DWI and criminal1

damage to property. 2

{3} Prior to pleading guilty, Defendant cited several of our felony murder3

precedents and argued to the district court that DWI was being used by the State as a4

“predicate” to the charge of criminal damage to property. According to Defendant, the5

State could not prove an element of criminal damage to property (the intent element)6

without also proving DWI; one crime was thus subsumed by the other; and Defendant7

was therefore facing two convictions for a single course of conduct. He now raises8

those same contentions on appeal. Our review is de novo. State v. Bernal, 2006-9

NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289.10

DISCUSSION11

{4} The constitution protects against both successive prosecutions and multiple12

punishments for the same offense. Swafford v. State, 1991-NMSC-043, ¶ 6, 112 N.M.13

3, 810 P.2d 1223. There are two types of multiple punishment cases: unit-of-14

prosecution cases, in which an individual is convicted of multiple violations of the15

same criminal statute, and double-description cases, in which a single act results in16

multiple convictions under different statutes. Id. ¶¶ 8-9. Defendant’s argument17

involving the separate crimes of DWI and criminal damage to property raises double-18

description concerns.19

4

{5} Our courts apply a two-part inquiry to double-description claims. State v.1

Gutierrez, 2011-NMSC-024, ¶ 51, 150 N.M. 232, 258 P.3d 1024. First, we analyze2

the factual question “whether the conduct underlying the offenses is unitary, i.e.,3

whether the same conduct violates both statutes,” and if so, we consider the legal4

question “whether the [L]egislature intended to create separately punishable offenses.”5

Id. (internal quotation marks and citation omitted). “If it reasonably can be said that6

the conduct is unitary, then [we] must move to the second part of the inquiry.7

Otherwise, if the conduct is separate and distinct, [the] inquiry is at an end.” Swafford,8

1991-NMSC-043, ¶ 28.9

Unitary Conduct10

{6} Defendant argues that the conduct of DWI and criminal damage to property in11

this case was both factually unitary and “unitary by definition.” The latter argument12

relies on a narrow doctrine—sometimes referred to as “unitary conduct as a matter of13

law”—that arose in the context of felony murder, where a jury necessarily resolves the14

fact-based unitary conduct question when it decides that a killing occurred during the15

commission of the underlying felony. See State v. Frazier, 2007-NMSC-032, ¶¶ 21-23,16

142 N.M. 120, 164 P.3d 1; State v. Sotelo, 2013-NMCA-028, ¶ 19, 296 P.3d 1232.17

However, despite making the argument as a matter of law, Defendant somewhat18

paradoxically contends that the conduct is unitary by definition “under the facts of his19

5

case” because the State could not prove the requisite intent for criminal damage to1

property without proving DWI. 2

{7} We note at the outset that there is an inherent difficulty in resolving3

Defendant’s arguments without the benefit of a trial below. In conducting our unitary4

conduct analysis, we are tasked with considering such factual questions “as whether5

the acts were close in time and space, their similarity, the sequence in which they6

occurred, whether other events intervened, and the defendant’s goals for and mental7

state during each act.” State v. Melendrez, 2014-NMCA-062, ¶ 8, 326 P.3d 11268

(internal quotation marks and citation omitted), cert. denied, 2014-NMCERT-006, 3289

P.3d 1188. The ultimate question is whether “the jury reasonably could have inferred10

independent factual bases for the charged offenses.” State v. Franco, 2005-NMSC-11

013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (internal quotation marks and citation12

omitted); State v. Sanchez, 1996-NMCA-089, ¶ 8, 122 N.M. 280, 923 P.2d 116513

(“[U]nitary conduct is fact specific; it requires meticulous review of the factual14

scenario and can rarely be determined on just the face of the indictment.”); Swafford,15

1991-NMSC-043, ¶ 27 (“The conduct question depends to a large degree on the16

elements of the charged offenses and the facts presented at trial.”). 17

{8} Since Defendant pleaded guilty, we have no trial record to look to evaluate his18

contention that “[t]he State’s legal theory in this case was that the criminal damage to19

property arose out of [Defendant’s] decision to drive drunk.” (Emphasis omitted.)20

6

That contention was contested when Defendant moved below to vacate on double1

jeopardy grounds, and it is still contested on appeal. It is certainly not established on2

the face of the indictment, which does not even mention Defendant’s intoxication with3

respect to the criminal damage to property charge. And no details were provided at the4

plea hearing regarding Defendant’s intent or the immediate circumstances surrounding5

Defendant’s collision with the police car, other than that he “failed to yield.” 6

{9} Under these circumstances, we could summarily affirm because, after a guilty7

plea, “[w]e place the burden on the defendant, the party raising the double jeopardy8

challenge, to provide a sufficient record for the court to determine unitary conduct and9

complete the remainder of the double jeopardy analysis.” Sanchez, 1996-NMCA-089,10

¶ 11; see also State v. Wood, 1994-NMCA-060, ¶ 19, 117 N.M. 682, 875 P.2d 111311

(holding that there must be a factual basis in the record to support a double jeopardy12

claim); cf. State v. Clark, 1989-NMSC-010, ¶ 9, 108 N.M. 288, 772 P.2d 322 (stating13

that the initial burden is on the defendant when challenging a plea agreement). 14

{10} Nonetheless, since we ultimately conclude that Defendant’s argument15

unquestionably fails the legal prong of the double jeopardy analysis, i.e., the16

Legislature intended to create separately punishable offenses, we will assume without17

deciding that Defendant’s conduct was unitary.18

Legislative Intent19

7

{11} Having assumed unitary conduct, we must determine whether the Legislature1

intended Sections 66-8-102(C)(1) and 30-15-1 to provide for separate punishment. See2

State v. Swick, 2012-NMSC-018, ¶ 11, 279 P.3d 747. “Determinations of legislative3

intent, like double jeopardy, present issues of law that are reviewed de novo, with the4

ultimate goal of such review to be facilitating and promoting the [L]egislature’s5

accomplishment of its purpose.” State v. Montoya, 2013-NMSC-020, ¶ 29, 306 P.3d6

426 (alterations, internal quotation marks, and citation omitted). Since the statutes7

themselves do not expressly provide for multiple punishments, we begin by applying8

the rule of statutory construction from Blockburger v. United States, 284 U.S. 2999

(1932), to determine whether each provision requires proof of a fact that the other10

does not. Swick, 2012-NMSC-018, ¶¶ 11-12. If so, “it may be inferred that the11

Legislature intended to authorize separate punishments under each statute.” Id. ¶ 13.12

But “this is only an inference that leads to an examination of other indicia of13

legislative intent.” Id. 14

{12} Needless to say, the elements of the two offenses have virtually no overlap. To15

convict Defendant of DWI as charged, the State would have had to prove that16

Defendant drove a vehicle in New Mexico with a BAC of .08 or higher. See § 66-8-17

102(C)(1). To convict Defendant of criminal damage to property (over $1000), the18

State would have had to prove that Defendant intentionally damaged the property of19

another without consent and that the amount of damage was more than $1000. See §20

8

30-15-1. DWI can be committed whether or not any property damage results; and1

criminal damage to property can be committed when the perpetrator is completely2

sober. As such, one offense does not subsume the other, and the Blockburger test3

lends no support to Defendant’s argument.4

{13} When two statutes survive Blockburger, we look to “the language, history, and5

subject of the statutes, and we must identify the particular evil sought to be addressed6

by each offense.” Montoya, 2013-NMSC-020, ¶ 32 (internal quotation marks and7

citation omitted). “[T]he social evils proscribed by different statutes must be construed8

narrowly[.]” Swafford, 1991-NMSC-043, ¶ 32.9

{14} Since 1941, the Legislature has repeatedly addressed the evils of intoxicated10

driving by augmenting DWI penalties, adding provisions for court-ordered drug and11

alcohol screening, treatment, and rehabilitation, and decreasing the BAC at which a12

driver is presumed intoxicated. State v. Hernandez, 2001-NMCA-057, ¶ 21, 130 N.M.13

698, 30 P.3d 387. The entire statutory scheme makes no reference to property damage.14

See § 66-8-102. Penalties are aggravated only for repeat offenses, an increased BAC,15

bodily injury to a human being, or the refusal to submit to chemical testing. Section16

66-8-102(D). Construed narrowly, “[t]he ultimate purpose of the DWI laws is to17

protect the health, safety, and welfare of the public by stopping people from driving18

under the influence of drugs and alcohol.” State v. Valdez, 2013-NMCA-016, ¶ 9, 29319

P.3d 909 (internal quotation marks and citation omitted). 20

9

{15} In contrast, the offense of criminal damage to property expressly protects1

against the intentional damage of property—real or personal. See § 30-15-1. The2

offense is aggravated based on the monetary value of the property damage. Id. Thus,3

the two offenses are unambiguously designed to address distinct social4

ills—intoxicated driving on the one hand, and intentional damage to property on the5

other—and they may be punished separately, even when committed during the course6

of a single act.

Defendant’s conviction for criminal damage to property (over $1000) is

affirmed