October 21, 2019- State of New Mexico v. Roy Cavazos, No. A-1-CA-36625

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Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-36625	4
ROY CAVAZOS,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY	7
Matthew E. Chandler, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Roy Cavazos	13
Clovis, NM	14
Pro Se Appellant	15
MEMORANDUM OPINION	16
MEDINA, Judge.	17
{1} 	Defendant Roy Cavazos appeals his convictions of four counts of second-	18
degree criminal sexual penetration (CSP), in violation of NMSA 1978, Section 30-	19
9-11(E)(6) (2009), one count of kidnapping, in violation of NMSA 1978, Section	20
30-4-1 (2003), one count of assault with intent to commit a violent felony, in	21
violation of NMSA 1978, Section 30-3-3 (1977), and one count of trafficking a	22
Court of Appeals of New Mexico
Filed 10/21/2019 10:54 AM

2
controlled substance, in violation of NMSA 1978, Section 30-31-20 (2006).	1
Defendant raises the following issues on appeal: (1) the district court erred in	2
summarily dismissing Defendant’s Batson challenge; (2) the prosecutor engaged in	3
prosecutorial misconduct during closing argument; (3) the omission of a deadly	4
weapon 	instruction 	resulted 	in 	fundamental 	error; 	(4) 	Defendant’s 	multiple	5
convictions for CSP violate double jeopardy; and (5) there was insufficient evidence	6
to support Defendant’s convictions for trafficking a controlled substance and	7
kidnapping.1 We affirm.	8
BACKGROUND	9
{2} 	Because this is a memorandum opinion and the parties are familiar with the	10
facts of this case, we provide the following summary of events taken from testimony	11
adduced at trial, and reserve discussion of additional pertinent facts for our analysis.	12
Around 11:00 p.m. one evening, Defendant approached Victim, who was sitting on	13
1Defendant makes numerous additional arguments against the propriety of his
convictions. However, these arguments are unclear, conclusory, and undeveloped.
We therefore decline to address them. See State v. Guerra, 2012-NMSC-014, ¶ 21
278 P.3d 1031 (acknowledging that appellate courts are under no obligation to
review unclear or undeveloped arguments). We encourage litigants to limit the
number of issues they choose to raise on appeal in order to ensure that the issues
presented are ones that can be adequately supported by argument, authority, and
factual support in the record. See Rio Grande Kennel Club v. City of Albuquerque,
2008-NMCA-093, ¶¶ 54-55, 144 N.M. 636, 190 P.3d 1131 (“[W]e encourage
litigants to consider carefully whether the number of issues they intend to appeal
will negatively impact the efficacy with which each of those issues can be
presented.”).

3
her front porch outside her apartment, and told her he lost his wallet. After helping	1
Defendant search for his wallet, Victim told Defendant she had to work the next day	2
and began to enter her apartment, at which point Defendant suddenly pushed her	3
door open. Victim sprayed Defendant with pepper spray but was unsuccessful in	4
keeping him from entering her apartment. Once inside, Defendant broke Victim’s	5
cell phone, closed the front door, walked Victim to her kitchen, and made sure her	6
back door was locked. Defendant then took butter knives from the kitchen and	7
wedged them into the frame of the front and back door in such a manner that the	8
doors could not be opened from the outside. At the time, Victim’s ten-month-old	9
daughter was asleep in one of the bedrooms.	10
{3} 	Defendant told Victim to go to her couch and remove her clothes. Defendant	11
sexually assaulted Victim by penetrating her vagina with his penis, despite her	12
requests to stop. Defendant then made Victim go to her bathroom and enter the	13
shower, where he washed her vagina and made her shave her pubic hair. After	14
showering, Defendant made Victim put on different underwear and return to the	15
living room. At some point after showering, Defendant penetrated Victim’s vagina	16
with his penis again while she was on the bed that pulled out from the couch.	17
Defendant also forced Victim to perform fellatio. Additionally, sometime after the	18
first sexual assault but before the next morning, Defendant gave Victim a pipe	19
containing methamphetamine and instructed her to smoke it, which she did.	20

4
{4} 	During each sexual assault and throughout the entire encounter, Defendant	1
either carried knives or kept them accessible. Victim testified that she did not scream,	2
attempt to leave, or fight back, explaining, “I couldn’t, he was walking, he had	3
knives, he was walking around with the knives from my kitchen, there were the ones	4
in the doors, . . . he was walking around with them. I didn’t want to try to get out	5
and leave my daughter” and “I didn’t want to do anything to make him mad to hurt	6
my daughter.” The following day, Victim’s mother stopped by the apartment to	7
check on Victim. Defendant did not let Victim answer the door and instead made	8
Victim sit in the bathroom with her daughter until her mother left. After Victim’s	9
mother left, Defendant again penetrated Victim’s vagina with his penis. Victim’s	10
mother returned to the apartment around 5:00 p.m., at which point Victim convinced	11
Defendant to let her leave with her daughter. Defendant was eventually arrested and	12
convicted after a jury trial. This appeal followed.	13
DISCUSSION	14
I. 	The Batson Challenge	15
{5} 	Defendant first claims the district court erred in summarily rejecting his	16
Batson challenge to the State’s peremptory strike of a Hispanic surnamed juror, in	17
violation of his equal protection rights.2 See State v. Aragon, 1989-NMSC-077, ¶ 8,	18
2Defendant additionally appears to claim that the State violated his right to
equal protection by using two of its three peremptory challenges to exclude males
from the jury. However, beyond this bare-bones assertion, Defendant advances no

5
109 N.M. 197, 784 P.2d 16 (“[A] defendant may challenge the constitutionality of	1
the state’s selection of members of the petit jury when the defendant shows that he	2
is a member of a cognizable racial group and establishes a prima facie case that	3
potential jurors from his group were excluded from the jury for reasons of race.”	4
(citing Batson v. Kentucky, 476 U.S. 79 (1986))).	5
{6} 	New Mexico district courts follow a three-step analysis to determine whether	6
a party has improperly used a peremptory challenge in a racially discriminatory	7
manner. State v. Jones, 1997-NMSC-016, ¶ 3, 123 N.M. 73, 934 P.2d 267. First, a	8
defendant must make a prima facie showing of racial discrimination. Id. ¶ 3. To	9
establish a prima facie case, the challenging party must show that “(1) a peremptory	10
challenge was used to remove a member of a protected group from the jury panel,	11
and (2) the facts and other related circumstances raise an inference that the individual	12
was excluded solely on the basis of his or her membership in a protected	13
group.” State v. Salas, 2010-NMSC-028, ¶ 31, 148 N.M. 313, 236 P.3d 32. The	14
challenging party may do this by establishing a pattern of strikes against jurors of a	15
particular racial group. State v. Gonzales, 1991-NMCA-007, ¶ 14, 111 N.M. 590,	16
argument as to how the State exercised its peremptory strikes against males in a
discriminatory manner. “[C]ounsel should properly present this court with the issues,
arguments, and proper authority. Mere reference in a conclusory statement will not
suffice and is in violation of our rules of appellate procedure.” State v. Clifford,
1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254. We therefore do not address
this claim.

6
595, 808 P.2d 40, modified on other grounds by State v. Dominguez, 1993-NMCA-	1
042, ¶ 24, 115 N.M. 445, 853 P.2d 147. Second, if the challenging party makes its	2
prima facie case, the proponent of the peremptory strike must articulate a racially	3
neutral explanation for its challenge. Jones, 1997-NMSC-016, ¶ 3. Third, if the	4
district court accepts the proponent’s explanation, the challenging party must show	5
that the reason given is actually a pretext for a racially discriminatory intent. Id. In	6
reviewing a claim of racial discrimination in the use of peremptory challenges, we	7
defer to the district court’s factual findings, but review its legal conclusions de novo.	8
State v. Martinez, 2002-NMCA-036, ¶ 21, 131 N.M. 746, 42 P.3d 851.	9
{7} 	Here, Defendant objected and raised a Batson challenge after the State	10
exercised a peremptory challenge against a Hispanic surnamed juror. In response,	11
the State argued that no pattern of discrimination had been established. The district	12
court agreed and stated that if a pattern was established, it would require the State to	13
provide a racially neutral reason for the strike. On appeal, Defendant argues that “a	14
pattern had already been established because two of the four jurors the prosecutor	15
requested 	stricken 	for 	cause 	were 	Hispanic 	surnamed.” 	We 	disagree. 	While	16
Defendant relies on jurors who the State sought to excuse for cause to establish a	17
pattern of strikes against jurors of a particular protected class, Defendant fails to	18
provide us with authority that those jurors should be considered in our analysis, and	19
we therefore assume none exists. See Salas, 2010-NMSC-028, ¶ 31 (requiring a	20

7
challenging party to show that “(1) a peremptory challenge was used to remove a	1
member of a protected group from the jury panel.” (emphasis added)); In re Doe,	2
1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating that when a party fails	3
to cite authority for an argument, we may assume none exists). Absent these two	4
jurors, Defendant points to the single Hispanic surnamed juror who the State excused	5
using a peremptory challenge. Even if we were to consider those jurors who the State	6
sought to excuse for cause to determine whether the State had engaged in an	7
impermissible pattern of strikes, Defendant fails to show how the facts and other	8
related circumstances raise an inference that the jurors were excluded solely on the	9
basis of his or her membership in a protected group. See Salas, 2010-NMSC-028,	10
¶ 31. Therefore, we conclude the district court was not obligated to proceed to the	11
next step of a Batson challenge. See Salas, 2010-NMSC-028, ¶ 32 (stating that the	12
burden shifts to the proponent of the peremptory strike to articulate a racially neutral	13
explanation for its challenge only after the opponent makes a prima facie showing).	14
II. 	Prosecutorial Misconduct	15
{8} 	Defendant next contends he was deprived of a fair trial due to prosecutorial	16
misconduct during closing arguments because the prosecutor offered personal	17
opinions, vouched for the Victim’s credibility, and argued facts outside the record.	18
We find no error, fundamental or otherwise, in the prosecutor’s remarks.	19

8
{9} 	“When an issue of prosecutorial misconduct is preserved by a timely objection	1
at trial, we review the [district] court’s ruling under the deferential standard of abuse	2
of discretion, because the [district] court is in the best position to evaluate the	3
significance of any alleged prosecutorial errors[.]” State v. Allen, 2000-NMSC-002,	4
¶ 95, 128 N.M. 482, 994 P.2d 728 (internal quotation marks and citations omitted).	5
We review unpreserved claims of prosecutorial misconduct for fundamental error.	6
State v. Rojo, 1999-NMSC-001, ¶ 55, 126 N.M. 438, 971 P.2d 829. “Fundamental	7
error occurs when prosecutorial misconduct in closing statements compromises a	8
defendant’s right to a fair trial[.]” State v. Sosa, 2009-NMSC-056, ¶ 35, 147 N.M.	9
351, 223 P.3d 348. “To find fundamental error, we must be convinced that the	10
prosecutor’s conduct created a reasonable probability that the error was a significant	11
factor in the jury’s deliberations in relation to the rest of the evidence before them.”	12
Id. (internal quotation marks and citation omitted). “[W]e will upset a jury verdict	13
only (1) when guilt is so doubtful as to shock the conscience, or (2) when there has	14
been an error in the process implicating the fundamental integrity of the judicial	15
process.” Id.	16
{10} 	“During closing argument, both the prosecution and defense are permitted	17
wide latitude, and the [district] court has wide discretion in dealing with and	18
controlling closing argument.” State v. Smith, 2001-NMSC-004, ¶ 38, 130 N.M. 117,	19
19 P.3d 254 (internal quotation marks and citations omitted). “Nevertheless, remarks	20

9
by the prosecutor must be based upon the evidence or be in response to the	1
defendant’s 	argument.” 	Id. 	“Where 	it 	is 	alleged 	that 	improper 	prosecutorial	2
comments have been made in closing argument, the question is whether the	3
comments deprive the defendant of a fair trial.” Id. (internal quotation mark and	4
citation omitted). We give great weight in our deliberations as to: “(1) whether the	5
statement invades some distinct constitutional protection; (2) whether the statement	6
is isolated and brief, or repeated and pervasive; and (3) whether the statement is	7
invited by the defense.” Sosa, 2009-NMSC-056, ¶ 26. “In applying these factors, the	8
statements must be evaluated objectively in the context of the prosecutor’s broader	9
argument and the trial as a whole.” Id. “Our courts also consider whether the	10
evidence of guilt is overwhelming, whether the improper statement is corrected by	11
counsel or limited by the court, or whether the fact manipulated by the statement is	12
determinative to the outcome of the case.” State v. Sena, 2018-NMCA-037, ¶ 17,	13
419 P.3d 1240 cert. granted, 2018-NMCERT-___ (No. S-1-SC-36932, May 25,	14
2018). “The common thread running through the cases finding reversible error is	15
that the [State’s] comments materially altered the trial or likely confused the jury by	16
distorting the evidence, and thereby deprived the accused of a fair trial.” Id.	17
(alteration, internal quotation marks, and citation omitted).	18

10
{11} 	We first address the claims that Defendant preserved for appeal by timely	1
objecting.3 Defendant objected twice during the State’s rebuttal argument: first when	2
the State argued Defendant was a “controller,” and second when the prosecutor	3
argued that she believed she had provided sufficient evidence to convict Defendant.	4
We address each argument in turn.	5
{12} 	During closing argument, the prosecutor reviewed Victim’s testimony that	6
Defendant walked around with knives, that Victim was going to do whatever it took	7
to protect her daughter, and that Defendant controlled her with the knives. In	8
response, defense counsel argued that Victim was a methamphetamine addict who	9
was lying to destroy Defendant’s life. Defense counsel also argued that Victim let	10
Defendant into her apartment and voluntarily engaged in all of the sexual activity	11
with Defendant. During the State’s rebuttal, the prosecutor argued, “[D]o you know	12
what [Defendant] is? He’s a controller. That’s what people who rape people are,	13
they’re controllers. He’s one of those guys who believes nothing’s going to happen	14
to him[,]” at which point Defendant objected.	15
3 Defendant 	erroneously 	contends 	that 	he 	preserved 	all 	of 	his 	claims
surrounding the prosecutor’s closing arguments by raising them in a motion for a
new trial. Rather, a defendant must timely object to the prosecutor’s statements in
order to preserve a claim of prosecutorial misconduct. See Rojo, 1999-NMSC-001,
¶ 55 (“Failure to make a timely objection to alleged improper argument bars review
on appeal, unless the impropriety constitutes fundamental error.”).

11
{13} 	Defendant contends the prosecutor’s comment was improper because “[t]here	1
was absolutely no evidence submitted at trial regarding the predisposition of rapists	2
to be controllers or that [Defendant] was a controller and thus a rapist.” However,	3
defense counsel invited the prosecutor’s remarks with his argument that Victim	4
voluntarily participated in sexual activity with Defendant. See Sosa, 2009-NMSC-	5
056, ¶ 33 (“[W]e are least likely to find error where the defense has ‘opened the	6
door’ to the prosecutor’s comments by its own argument.”). Moreover, we fail to see	7
how this comment was improper, as it appeared to be based on Victim’s testimony	8
that she felt controlled by Defendant during the encounter because he was walking	9
around with knives.	10
Defendant’s second objection took place during the following exchange:	11
State: “I believe I have given you all the evidence to prove beyond a	12
reasonable doubt that [Victim]—”	13
Defendant: “Objection Your Honor, what her belief, what her personal	14
belief is, is not appropriate argument.”	15
State: “I submit I have given you the evidence—”	16
District Court: “Okay.”	17
State: “—to convict the Defendant of all the counts, that he committed,	18
on [Victim].”	19
{14} 	Defendant argues this comment was an improper personal opinion. See Rule	20
16-304(E) NMRA (“A lawyer shall not . . . state a personal opinion as to . . . the guilt	21
or 	innocence 	of 	an 	accused[.]”). 	However, 	the 	prosecutor 	self-corrected 	her	22

12
argument after Defendant objected, and Defendant did not ask for a curative	1
instruction or further object to the prosecutor’s second statement. Under these	2
circumstances, we conclude the district court did not abuse its discretion for failing	3
to provide an additional remedy sua sponte. See Sena, 2018-NMCA-037, ¶ 17 (“Our	4
courts also consider . . . whether the improper statement is corrected by counsel.”).	5
{15} 	Defendant also directs this Court to several other comments made by the State,	6
contending that they were acts of prosecutorial misconduct resulting in fundamental	7
error. Specifically, Defendant takes issue with several arguments made by the	8
prosecutor, which Defendant claims either asserted an improper opinion, vouched	9
for Victim’s credibility, or improperly argued facts outside the record. However,	10
besides citing cases for general propositions regarding prosecutorial misconduct,	11
Defendant provides no real analysis as to how the prosecutor’s comments were	12
actually improper in the context in which they were made. See Smith, 2001-NMSC-	13
004, ¶ 38 (requiring that comments made during closing arguments be reviewed in	14
the context in which they occurred). Nor does Defendant explain how the statements	15
of which he complains create a “reasonable probability that the error was a	16
significant factor in the jury’s deliberations in relation to the rest of the evidence	17
before them.” Sosa, 2009-NMSC-056, ¶ 35 (internal quotation marks and citation	18
omitted). Instead, Defendant merely asserts that the prosecutor’s comments were	19
improper and prejudicial. However, a mere assertion of prejudice is not sufficient to	20

13
establish prejudice. See State v. Malloy, 2001-NMCA-067, ¶ 21, 131 N.M. 222, 34	1
P.3d 611 (“Mere assertion of prejudice is not a showing of prejudice.”). We will not	2
do Defendant’s work for him and decline to develop the substance of his argument	3
or “guess at what his argument might be.” Headley v. Morgan Mgmt. Corp., 2005-	4
NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076.	5
III. 	Jury Instructions	6
{16} 	Defendant contends the district court erred by failing to issue a jury instruction	7
defining “deadly weapon” in relation to his CSP charges. See NMSA 1978, § 30-1-	8
12(B) (1963) (defining the term “deadly weapon”). Defendant does not indicate, nor	9
can we find, where in the record he preserved this error. See State v. Jernigan, 2006-	10
NMSC-003, ¶ 10, 139 N.M. 1, 127 P.3d 537 (“Generally, to preserve error on a trial	11
court’s refusal to give a tendered instruction, the [a]ppellant must tender a legally	12
correct statement of the law.”). We accordingly review for fundamental error. See	13
State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633 (“Because [the	14
d]efendant failed to preserve any error . . . we review only for fundamental error.”).	15
{17} 	Fundamental error occurs in “cases with defendants who are indisputably	16
innocent, and cases in which a 	mistake in the process 	makes a 	conviction	17
fundamentally unfair notwithstanding the apparent guilt of the accused.” Id. ¶ 17.	18
When this Court reviews jury instructions for fundamental error, we will reverse the	19
jury verdict only if doing so is “necessary to prevent a miscarriage of justice.” State	20

14
v. Sandoval, 2011-NMSC-022, ¶ 13, 150 N.M. 224, 258 P.3d 1016 (internal	1
quotation marks and citation omitted). In reviewing a district court’s failure to	2
instruct, “[w]e must determine whether a reasonable juror would have been confused	3
or misdirected by the jury instruction.” Barber, 2004-NMSC-019, ¶ 19. “[J]uror	4
confusion or misdirection may stem . . . from instructions which, through omission	5
or misstatement, fail to provide the juror with an accurate rendition of the relevant	6
law.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134.	7
{18} 	The State charged Defendant with second-degree CSP for being armed with a	8
deadly weapon during the commission of the CSPs based on Defendant’s possession	9
of knives he took from Victim’s kitchen. See Section 30-9-11(E)(6). Defendant	10
argues that the district court should have instructed the jury to find that the knives	11
he took from Victim’s kitchen constituted deadly weapons because they are not	12
specifically enumerated as deadly weapons under Section 30-1-12(B). We agree. See	13
State v. Nick R., 2009-NMSC-050, ¶ 37, 147 N.M. 182, 218 P.3d 868 (“[O]ur cases	14
hold that . . . [i]n a simple possession case, the jury must find that the object was	15
possessed with intent to carry it as a weapon and that it was capable of causing the	16
wounds described in the statute. These are determinations that cannot be ruled on by	17
a trial court as a matter of law and taken from the jury’s consideration, no matter	18
how obvious the existence of any essential element of an offense may seem.”); State	19
v. Traeger, 2001-NMSC-022, ¶ 12, 130 N.M. 618, 29 P.3d 518 (“[I]f the item is	20

15
specifically listed in Section 30-1-12(B), it is considered a deadly weapon as a matter	1
of law. If the item is not specifically listed, the question of whether the object is a	2
deadly weapon should be given to the jury to decide.”). While Section 30-1-12(B)	3
lists specific types of knives, as well as several generic catchalls, it does not	4
reference kitchen knives or all knives in general. See Nick R., 2009-NMSC-050,	5
¶ 16. Thus, the jury was required to find that the knives Defendant possessed during	6
the CSPs were “capable of producing death or great bodily harm[.]” Section 30-1-	7
12(B); see Nick R., 2009-NMSC-050, ¶ 37.	8
{19} 	However, Defendant fails to demonstrate how this omission rises to the level	9
of fundamental error. Besides summarily asserting that the omission of a deadly	10
weapon instruction constitutes fundamental error, Defendant fails to discuss relevant	11
case law or explain how the omission constituted a miscarriage of justice under the	12
circumstances. We therefore decline to review this underdeveloped argument any	13
further and hold that the failure to issue a jury instruction defining “deadly weapon”	14
did not constitute fundamental error. See State v. Urioste, 2011-NMCA-121, ¶ 29,	15
267 P.3d 820 (“[T]his Court’s policy is to refrain from reviewing unclear or	16
undeveloped arguments which require us to guess at what parties’ arguments might	17
be[.]” (internal quotation marks and citation omitted)).	18

16
VI. 	Double Jeopardy	1
{20} 	To the extent that Defendant argues his convictions for multiple counts of CSP	2
violate double jeopardy, 4 we disagree. In light of Defendant’s acquittal on three	3
additional counts of CSP, we address Defendant’s double jeopardy argument only	4
as to his four CSP convictions, consisting of three acts of penile penetration, as	5
charged in Counts 3, 4, 5, and one act of fellatio, as charged in Count 7.	6
{21} 	Double jeopardy protects against multiple punishments for the same offense.	7
Swafford v. State, 1991-NMSC-043, ¶¶ 7-8, 112 N.M. 3, 810 P.2d 1223. Appellate	8
courts “generally review double jeopardy claims de novo.” State v. Rodriguez, 2006-	9
NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737. “However, where factual issues are	10
intertwined with the double jeopardy analysis, we review the [district] court’s fact	11
determinations under a deferential substantial evidence standard of review.” Id. We	12
review unit of prosecution claims in the context of Section 30-9-11 by reference	13
to Herron v. State, 1991-NMSC-012, ¶ 8, 111 N.M. 357, 805 P.2d 624, in which our	14
4Defendant characterizes his argument as a due process violation for allowing
carbon-copy counts of CSP to go to the jury, “making it impossible for him to be
protected from the danger of double jeopardy.” However, Defendant fails to show
where he preserved his due process argument. Nor does he argue that this constituted
fundamental error. Thus, we decline to address Defendant’s due process argument.
See State v. Martinez, 2007-NMCA-160, ¶ 4, 143 N.M. 96, 173 P.3d 18 (“Due
process claims will not be addressed when raised for the first time on appeal.”).
Instead, we address Defendant’s argument only to the extent that it raises double
jeopardy concerns. See id. ¶ 5 (stating that defendants may raise double jeopardy
challenge on appeal regardless of whether the issue was preserved) .

17
Supreme Court observed that the language of Section 30-9-11 “does not indicate	1
unambiguously whether the [L]egislature intended . . . to create a separate offense	2
for each penetration occurring during a continuous sexual assault.” Accordingly, we	3
must determine whether Defendant’s acts were separated by sufficient “indicia of	4
distinctness” to justify multiple punishments. See State v. Bernal, 2006-NMSC-050,	5
¶ 14, 140 N.M. 644, 146 P.3d 289 (observing that the second step of a unit of	6
prosecution case involves determining whether a defendant’s acts are separated by	7
sufficient “indicia of distinctness” to justify multiple punishments under the same	8
statute). 	Whether 	Defendant’s 	acts 	were 	separated 	by 	sufficient 	indicia 	of	9
distinctness, we consider:	10
(1) temporal proximity of penetrations (the greater the interval between
acts the greater the likelihood of separate offenses); (2) location of the
victim during each penetration (movement or repositioning of the
victim between penetrations tends to show separate offenses); (3)
existence of an intervening event; (4) sequencing of penetrations (serial
penetrations of different orifices, as opposed to repeated penetrations
of the same orifice, tend to establish separate offenses); (5) defendant’s
intent as evidenced by his conduct and utterances; and (6) number of
victims[.]
Herron, 1991-NMSC-012, ¶ 15. “Except for penetrations of separate orifices with	11
the same object, none of these factors alone is a panacea, but collectively they will	12
assist in guiding future prosecutions under Section 30-9-11.” Herron, 1991-NMSC-	13
012, ¶ 15.	14

18
{22} 	Defendant argues that there was insufficient indicia of distinctness between	1
the CSPs because Victim testified that all of the sexual contact occurred in her living	2
room and that she did not know how many times sexual contact occurred. However,	3
looking at the evidence in the light most favorable to the verdict, we conclude that	4
there was sufficient evidence from which the jury could have found that each CSP	5
was in some sense distinct from the others. See State v. McClendon, 2001-NMSC-	6
023, ¶ 3, 130 N.M. 551, 28 P.3d 1092 (“In evaluating [the d]efendant’s [double	7
jeopardy] claim, we view the evidence in the light most favorable to the verdict and	8
resolve all conflicts and indulge all inferences in favor of upholding the verdict.”).	9
While it is unclear from the jury instructions which act of CSP supported the jury’s	10
verdicts for Counts 3, 4, and 5, the State presented evidence of at least three separate	11
acts of penile penetration of Victim’s vagina. Although Victim could not remember	12
how many times Defendant sexually assaulted her, she testified that Defendant	13
assaulted her more than once and that Defendant made her put on different	14
underwear after each sexual assault, which she estimated happened four times. More	15
specifically, Victim testified that, shortly after Defendant forced his way into	16
Victim’s apartment, he directed Victim to remove her clothing, after which he	17
sexually assaulted her by penetrating her vagina with his penis, despite her requests	18
to stop. After completing the first act of CSP, Victim testified that Defendant forced	19
her into her bathroom shower, where he made her shave her pubic hair, put on clean	20

19
underwear, and return to the living room. Sometime after showering, Victim testified	1
that Defendant sexually assaulted her again by penetrating her vagina with his penis	2
while the two were on the bed that comes out of the couch in the living room. Victim	3
also testified that Defendant forced her to engage in fellatio at some point during the	4
night. Additionally, Victim testified that Defendant sexually assaulted her by	5
penetrating her vagina with his penis the following morning after her mother stopped	6
by.	7
{23} 	Although all of the sexual contact occurred in the same location, we conclude	8
that sufficient indicia of distinctness separated the CSPs. Forcing Victim into the	9
shower, shaving her pubic hair, and requiring her to put on clean underwear prior to	10
committing a second act of CSP constituted sufficient intervening events to separate	11
the first CSP from the second. Cf. State v. Wilson, 1993-NMCA-074, ¶ 9, 117 N.M.	12
11, 868 P.2d 656 (holding that the defendant’s acts of forcing the victim to engage	13
in fellatio were separate and distinct because the defendant moved the victim to	14
another 	room 	and 	an 	intervening 	event 	took 	place 	between 	the 	two 	acts).	15
Furthermore, the last act of CSP did not occur until the next day after Victim’s	16
mother came by the apartment. Given the time and intervening acts between the	17
CSPs, we conclude that Defendant’s three convictions of CSP based on penile	18
penetration of the vagina were separated by sufficient indicia of distinctness to	19
justify multiple punishments. Lastly, Defendant forcing Victim to perform fellatio	20

20
was inherently distinct from the other CSP convictions. See id. (“[T]he acts of anal	1
intercourse, sexual intercourse, and . . . fellatio constitute separate offenses under	2
Herron.”). Accordingly, Defendant’s convictions for CSP do not violate double	3
jeopardy.	4
V. 	Sufficiency of the Evidence	5
{24} 	Finally, Defendant argues there was insufficient evidence to support his	6
convictions for trafficking a controlled substance and kidnapping. We disagree. “The	7
test for sufficiency of the evidence is whether substantial evidence of either a direct	8
or circumstantial nature exists to support a verdict of guilty beyond a reasonable	9
doubt with respect to every element essential to a conviction.” State v. Montoya,	10
2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation	11
omitted). “[S]ubstantial evidence means such relevant evidence as a reasonable mind	12
might accept as adequate to support a conclusion[.]” State v. Salgado, 1999-NMSC-	13
008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation	14
omitted). The reviewing court “view[s] the evidence in the light most favorable to	15
the guilty verdict, indulging all reasonable inferences and resolving all conflicts in	16
the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26,	17
128 N.M. 711, 998 P.2d 176.	18

21
A. 	Trafficking a Controlled Substance	1
{25} 	Consistent with UJI 14-3110 NMRA, the jury was instructed that in order to	2
convict defendant of trafficking a controlled substance, it had to find, in relevant	3
part, that (1) “[D]efendant transferred, caused the transfer of, or attempted to transfer	4
methamphetamine to another;” and (2) “[D]efendant knew it was methamphetamine	5
or believed it to be methamphetamine or believed it to be some drug or other	6
substance the possession of which is regulated or prohibited by law[.]” Defendant	7
contends that there was insufficient evidence that he knew the pipe he handed to	8
Victim contained methamphetamine. We disagree. Victim testified that Defendant	9
gave her a pipe containing methamphetamine and instructed her to smoke it.	10
Furthermore, an officer testified that Defendant later told the police that he and	11
Victim had smoked methamphetamine together. We conclude that this constituted	12
“such relevant evidence as a reasonable mind might accept as adequate to support a	13
conclusion” that Defendant knew or believed the pipe he handed to Victim contained	14
methamphetamine. Salgado, 1999-NMSC-008, ¶ 25 (internal quotation marks and	15
citation omitted).	16
B. 	Kidnapping	17
{26} 	Defendant next argues that there was insufficient evidence of his kidnapping	18
conviction. Specifically, Defendant argues that there was insufficient evidence that	19
he kidnapped Victim because his confinement of Victim was incidental to the	20

22
multiple CSPs. See State v. Trujillo, 2012-NMCA-112, ¶¶ 2-3, 6, 289 P.3d 238	1
(reversing kidnapping conviction based on the defendant’s momentary restraint of	2
victim during a fight that lasted a few minutes); State v. Crain, 1997-NMCA-101,	3
¶¶ 2-4, 21, 124 N.M. 84, 946 P.2d 1095 (reversing kidnapping conviction based on	4
the defendant’s refusal to let the victim out of his car during his commission of a	5
single act of CSP). However, Defendant’s confinement of Victim was not merely	6
incidental to the CSPs. Here, Victim testified that Defendant pushed his way into	7
Victim’s apartment and confined her in the apartment against her will by wedging	8
knives into the doors. The confinement in this case lasted for a substantial period of	9
time—seventeen to eighteen hours. During that time, Defendant forced Victim into	10
different rooms and committed multiple acts of CSP. Thus, unlike Trujillo and	11
Crain, Defendant’s restraint of Victim was far from momentary and occurred both	12
before and after he committed multiple acts of CSP. We therefore conclude that there	13
was substantial evidence of restraint that was not merely incidental to the CSPs. See	14
State v. Herrera, 2015-NMCA-116, ¶ 10, 362 P.3d 167 (concluding a conviction for	15
kidnapping based on a one-and-a-half to two hour confinement was “simply not	16
incidental to or inherent in” the defendant’s other convictions).	17
CONCLUSION	18
{27} 	For the foregoing reasons, we affirm.	19

23
{28} 	IT IS SO ORDERED.	1
_________________________________	2
JACQUELINE R. MEDINA, Judge	3
WE CONCUR:	4
_________________________________	5
M. MONICA ZAMORA, Judge	6
_________________________________	7
JULIE J. VARGAS, Judge	8