May 29, 2019- State of New Mexico v. Salvador Bravo, No. A-1-CA-36025

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-36025
5 	SALVADORBRAVO,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
8 Jennifer E. DeLaney, District Judge
9 Hector H. Balderas, Attorney General
10 Anita Carlson, Assistant Attorney General
11 	Santa Fe, NM
12 	for Appellee
13 	Bennett J. Baur, Chief Public Defender
14 Aja Oishi, Assistant Appellate Defender
15 	Santa Fe, NM
16 	for Appellant
17 	MEMORANDUM OPINION
18 	VARGAS, Judge.
19 	{1} 	Defendant Salvador Bravo appeals his two criminal sexual penetration of a
20 minor (CSPM) convictions and his contributing to the delinquency of a. minor
21 	(CDM) conviction on double jeopardy grounds. Because his CDM conviction and
22 his 	CSPM convictions violate· double jeopardy, we reverse and remand with
Court of Appeals of New Mexico
Filed 5/29/2019 11:05 AM

1 instructions to vacate the CDM conviction and one of the CSPM convictions.
2 Finding no merit to Defendant's other arguments, all of which are raised pursuant to
3 State v. Franklin, 1967-NMSC-151, 78 N.M. 127,428 P.2d 982, and State v. Boyer,
4 	1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, we affirm Defendant's remaining
5 CSPM conviction. Because this is a memorandum opinion, we limit our recitation
6 	of the facts to those relevant to our analysis.
7 BACKGROUND
8 	{2} 	Victim, a minor, frequented the Bravos household, both as an invited guest
9 visiting the 	children living there 	and as 	a 	babysitter. 	According to 	Victim's
10 testimony, she was sleeping on a couch in the living room when Defendant entered
11 	the room, pulled her onto the floor, and stated, "I can't take it any more." Defendant
12 then laid Victim on her back and briefly straddled her before removing Victim's
13 	pants and underwear and vaginally penetrating her with his finger. Defendant then
14 vaginally penetrated Victim with his penis. When he pen~trated Victim, Defendant
15 	whispered to her that he wanted to go deeper and feel what it was like to ejaculate
16 inside of her. A jury convicted Defendant of contributing to the delinquency of a
17 minor (CDM) and two count of criminal sexual penetration of a minor (CSPM).
18 	DISCUSSION
19 {3} 	Defendant argues that his convictions-two for CSPM and one for CDM-
20 violate double jeopardy. Defendant also argues that his CDM conviction is premised
2

1 on a flawed interpretation of the statute. Pursuant to Franklin and Boyer, Defendant
2 makes four additional arguments: (1) the prosecutor's misconduct at trial amounted
3 to fundamental error; (2) he received ineffective assistance of trial counsel; (3) the
4 evidence proffered at trial was insufficient to support any of his convictions; and (4)
5 the errors that occurred in the trial resulted in cumulative error requiring reversal.
6 A. 	Double Jeopardy
7 {4} 	The double jeopardy clause protects against multiple punishments for the
8 same offense. Swafford v. State, 1991-NMSC-043, 16, 112 N.M. 3, 810 P.2d 1223;
9 U.S. Const. amend. V. ("[N]or shall any person be subject for the same offense to
10 be twice put in jeopardy of life or limb[.]"). There are two types of multiple
11 	punishment cases: unit of prosecution, and double description. Unit of prosecution
12 	cases involve a defendant who is "charged with-multiple violations of a single statute
13 	based on a single course of conduct," while double descriptions cases involve a
14 4efendant who is "charged with violations of multiple statutes that may or may not
15 	be deemed the same offense for double jeopardy purposes." Swafford, 1991-NMSC-
16 043, ,, 8-9.
17 	{5} 	Defendant makes two double jeopardy arguments--one unit of prosecution
18 and one double description. First, Defendant argues that his two convictions for
19 CSPM violate double jeopardy, presenting a unit of prosecution issue. Defendant
20 also argues that his convictions for both CDM and CSPM violate double jeopardy,
3

1 which is a double description argument. In analyzing Defendant's double jeopardy
2 arguments, we consider the evidence proffered at trial in the light most favorable to
3 the verdict, keeping in mind that although some accounts may differ, the fad-finder
4 may reject the defendant's version of events. State v. McClendon, 2001-NMSC-023,
5 13, 130 N.M. 551, 28 P.3d 1092. We review double jeopardy matters de novo. State
6 v. Swick, 2012-NMSC-018, 110,279 P.3d 747.
7 1. 	Two CSPM Convictions
8 {6} 	A unit of prosecution analysis of Section 30-9-11 conyictions is a matter of
9 statutory interpretation. See ·Herron v. State, 1991-NMSC-012, 11 6-8, 111 N.M.
10 357, 805 P.2d 624 (noting that double jeopardy serves to prevent the prosecutor and
11 ·sentencing court from imposing greater punishments than the Legislature intended,
12 and applying principles of statutory interpretation to discern Legislature's intent
13 	behind Section 30-9-11); see also McClendon, 2001-NMSC-023, 1 5 (recognizing
14 that 	whether the 	Legislature 	intended to 	"punish 	separately 	each 	penetration
15 	occurring during a continuous attack" is a matter of statutory construction). Because
16 the language of Section 3 0-9-11 does not indicate the Legislature intended to punish
17 each penetration during a sexual attack separately, courts conducting a unit of
18 prosecution analysis under this statute look to whether "sufficient evidence exists to
19 establish that each penetration is distinct from the others." McClendon, 	2001-
4

1 NMSC-023, 15. To determine whether the acts are distinct our courts consider six
2 factors:
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4
5
6
7
8
9
10
11
12
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(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 tend 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) [the] defendant's intent as evidenced by his conduct and
utterances; and (6) number of victims (although not relevant here,
multiple victims will Hkely give rise to multiple offenses).
14 Herron, 1991-NMSC-012, 1 15; State v. 	Glascock, 2008-NMCA-006, 1 14, 14~
15 	N.M. 328, 176 P.3d 317 (stating that Herron factors are flexible and are intended to
16 	guide courts conducting a unit of prosecution analysis).
17 {7} 	Applying the factors identified in Herron, the penetrations that occurred in
18 this case were not sufficiently distinct to warrant separate CSPM charges and
19 therefore violate double jeopardy principles. Defendant's conduct giving rise to his
20 two CSPM convictions included his digital penetration of Victim's vagina and his
21 	ensuing penile penetration 	of her vagina. 	Those 	acts 	occurred 	in 	immediate
22 sequence, in the same room, and without any intervening events. In fact, none of the
23 	six Herron factors suggest the availability of separate charges for the brief, albeit
24 rapidly escalating, attack on Victim, and the trial testimony shows no intervening
25 	event or period of time from the beginning to the end of the sexual abuse. Notably,
26 in supplying the factors we are to consider in this analysis, Herron declined to state,
5

1 as a matter of law, that digital penetration of the vagina followed by penile
2 penetration of the vagina constitutes two punishable acts under Section 30-9-11.
3 1991-NMSC-012, 113. 	Relying on Herron's guidance, we conclude that under the
4 facts 	of this 	case 	Defendant's 	convictions 	for 	two 	counts 	of 	CSPM 	were
5 insufficiently distinct and therefore violate double jeopardy.
6 2. 	CDM and CSPM Convictions
7 {8} 	To analyze Defendant's double description argument-that his convictions
8 for both CDM and CSPM violate double jeopardy-we apply the two-part test set
9 forth in Swafford. 	1991-NMSC-043, 1 25. The first part of the inquiry questions
10 "whether the conduct underlying the offenses is unitary, i.e., whether the same
11 	conduct violates both statutes." Id. "The second part focuses on the statutes at issue
· 12 to determine whether the [L]egislature intended to create separately punishable
13 	offenses." Id. Where the conduct is unitary, but the Legislature did not intend to
14 	create separately punishable offenses, one of the convictions must be vacated. Id.;
15 	see generally Swick, 2012-NMSC-018, 131 (providing that the remedy for double
16 jeopardy violation is to vacate offending convictions).
17 	{9} 	Whether conduct is considered unitary for purposes of a double jeopardy
18 	analysis "depends to a large degree on the elements of the charged offenses and the
19 facts 	presented 	at 	trial." 	Swafford, 	1991-NMSC-043, 	1 27. 	Courts 	look 	to
20 	considerations like time or physical space to determine whether the conduct giving
6

1 rise to multiple charges carries some indicia or distinctness. Id. 1 28. Defendant's
2 convictions for both CDM and CSPM are based on a single encounter between
3 Defendant and Victim that occurred in one room over a short period of time. As
4 such, the relevant conduct-is unitary for purposes of our double jeopardy analysis.
5 	{IO} 	The second portion of a double description analysis-whether the Legislature
6 intended to create separately punishable offenses-is guided by the language of the
7 statute and the test articulated in Blockburger v. United States, 284 U.S. 299 (1932).
8 See State v. Luna, 2018-NMCA-025, 19, _ 	P.3d _. Under Blockburger, courts
9 consider whether each statute "requires proof of a fact which the other does not" to
10 	determine whether the offenses are intended to be punished separately. Swick, 2012-
11 	NMSC-018, 11 11-12, 13. However, where a statute is "vague and unspecific" or
12 written in the alternative, courts apply a modified version of the Blockburger test,
13 	State v. Gutierrez, 2011-NMSC-024, 1158-59, 150 N.M. 232, 258 P.3d 1024, and
14 	look to the state's legal theory as the basis for establishing the comparable provisions
15 	of each conviction. Luna, 2018-NMCA-025, 110. Under this modified approach, a
16 court may use the charging documents, jury instructions, and the state's closing
17 argument to determine the state's legal theory. Id.
7

1 {11} 	In Luna, this court recently undertook a modified Blockburger analysis of the
2 	same statute at issue in this _appeal. 1 In that aspect of our ruling directly applicable
3 to 	this 	appeal, 	we 	held that the 	CDM 	statute 	is 	"a 	quintessentially 	generic,
4 multipurpose statute" warranting application of the modified Blockburger approach.
5 Id. 1 14. Thus, here we look to the charging document, jury instructions, and the
6 	State's 	closing 	argument 	to 	determine 	whether 	the 	conduct 	giving 	rise 	to
7 Defendant's CDM conviction is separately punishable or is subsumed by the CSPM
8 conviction. See id. 113 (instructing that "we must look to the [s]tate's theory of the
9 case to inform what particular conduct is alleged in that particular case" (internal
10 quotation marks and citation omitted)).
11 	{12} 	While the charging document's boilerplate language offers little assistance in
12 our analysis of the State's legal theory in the case, the jury instructions are more
13 	informative, with most of the requirements for conviction overlapping. The CDM
14 instruction submitted to the jury includes four elements:
15
16
1.
intercourse;
[D]efendant 	caused 	the 	victim 	to 	engage 	m 	sexual
1The State filed its answer brief six days prior to our opinion in Luna. In its
brief, the State argued that CDM requires proof of an element that CSPM do:es not,
and that therefore Defendant's convictions for both do not violate double jeopardy.
Because the State's argument fails under Luna, we decline to address it further. 	See
Luna,.2018-NMCA-025, 1 17 (holding that "[w]hile it is true that the CDM"statute
requires proof of an additional element," that alone is insufficient to. establish a basis .
for multiple convictions when no further proof in addition to that required to prove
CDM is needed to attain conviction for the other offense).
8

1
2
3
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2. 	This 	caused 	[Victim] 	to 	conduct herself in a manner
injurious to the morals, health, or welfare of [Victim];
3. 	[Victim] was under the age of 18;
4. 	This happened in New Mexico on or about the 15th day of
February, 2015.
6 See UJI 14-601 NMRA. The CSPM instruction also required that the jury find four
7 elements:
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9
10
11
12
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1. 	[D]efendant 	caused 	[Victim] 	to 	engage 	m 	sexual
intercourse;
2.
3.
[D]efendant used physical force or physical violence;
[Victim] was at least 13 but less than 18 years old;
4. 	This happened in New Mexico on or about the 15th day of
February, 2015.
14 See UJI I4-956A NMRA. The State's closing argument is even more informative.
15 	The State described the encounter between Defendant and Victim and outlined the...
16 elements listed in the CSPM instruction, matching the relevant conduct with each
17 element. When presenting its argument regarding the CDM charge, the State again
18 	outlined the elements listed in the instruction, but when matching the conduct to the
19 elements, the State pointed to the same sexual intercourse that gave rise to the CSPM
20 charge and used the same description of that encounter as evidence that De~endant
21 	caused Victim to act in a manner that was injurious to her health.
9

•
I
1 {13} 	The record reflects that under the State's theory of the case, CDM requires no
2 additional proof beyond that which was used to prove CSPM. The State relied on
3 the same encounter and the same act of sexual intercourse as the basis for both
4 convictions. In fact, according to the State's theory of prosecution, the second
5 element of the CDM instruction required no more proof than the first element of that
6 same instruction. The injurious conduct referred to in the second element of CDM
7 is, according to the State's theory, the sexual intercourse that allegedly occurred
8 between Defendant and Victim. According to the State's argument regarding the
9 applicable jury instructions, CSPM required proof of all of the elements of CDM,
10 and under that theory of prosecution CDM was therefore subsumed within the CSPM
11 	conviction. See State v. Montoya, 2011-NMCA-074,, 42, 150 N.M. 415, 259 P.3d
12 	820 (considering "whether each offense requires proof of an element that the other
13 	does not"). Because the jury could, and apparently did, convict Defendant of CDM
14 based solely on the same evidence used to convict Defendant of CSPM, under Luna
15 	Defendant's CDM convict10n violates double jeopardy. 2018-NMCA-025,, 17.
16 {14} 	We reverse and remand so that the district court may vacate Defendant's CDM
17 conviction. See Swick, 2012-NMSC-018,, 31 (providing that remedy for double
18 jeopardy violation is to vacate offending conviction); see also NMSA 1978, § 30-6-
19 3 (1990) (identifying CDM as a fourth degree felony); § 30-9-1 l(E)(l) (identifying
20 CSPM as a second degree felony). Because Defendant's CDM conviction must be
10

1 vacated on double jeopardy grounds, we need not address Defendant's argument that
2 the district court erred in its interpretation of the CDM statute.
3 B. 	Prosecutorial Misconduct
4 {15} 	Defendant next makes an unpreserved argument that the prosecutor in this
5 case engaged in' misconduct by blocking Defendant from calling witnesses, by
6 vouching for Victim's credibility, and by "[i]ntroducing erroneous DNA evidence."
7 We review this issue for fundamental error. State v. Wildgrube, 2003-NMCA-108,
8 120, 134 N.M. 262, 75 P.3d 862.
9 	{16} 	Defendant's representations of the record are largely inaccurate and fail to
10 	demonstrate prosecutorial misconduct. The State did not make any "effort to block
11 	the defense from calling witnesses[,]" but instead alerted the district court to
12 Defendant's failure to comply with certain procedural requirements related to
13 	witness disclosure. See Rule 5-502(A)(3) NMRA (requiring that the defendant
14 	disclose a witness list within thirty days of arraignment). Defendant's argument that
15 	the prosecutor vouched for Victim's credibility "by arguing that lack of DNA and
16 	lack of injuries did not matter because [Victim] testified" is likewise not supported
17 by the record. See NMS~ 1978, § 30-9-15 (1975); State v. Nichols, 2006-NMCA-
18 	017, 1 	10, 	139 N.M. 72, 	128 P.3d 500 ("In prosecutions for criminal sexual
19 penetration, the testimony of the victim need not be corroborated and lack of
20 	corroboration has 	no 	bearing on [the] 	weight to 	be given to the testimony."
11

1 (alterations, 	internal 	quotation 	marks, 	and 	citation 	omitted)). 	Furthermore,
2 Defendant's assertion that the DNA evidence was "erroneous" is not substantiated
3 by any citations to the record or relev.ant legal authority. Defendant does not develop
4 his argument in any way, and fails to give any explanation for his characterization
5 of that evidence as "erroneous." We therefore do not address it. See State v. Guerra,
6 2012-NMSC-014, 	1 	21, 	278 	P.3d 	1031 	(declining 	to 	address 	undeveloped,
· 7 unpreserved argument that the defendant failed to support with citation to authority).
8 Defendant has not demonstrated that he was deprived of a fair trial and has not
9 demonstrated fundamental error occurred.
'
10 	C. 	Ineffective Assistance of Counsel
11 	{17} 	Defendant argues that his trial counsel provided ineffective assistance, stating
12 that counsel failed to investigate potential witnesses, failed to communicate. with
13 	Defendant, 	and 	failed 	to 	effectively 	cross-examine 	witnesses. 	The 	evidence
14 necessary to decide the merit of these claims lies outside the record on appeal. State
15 	v. Gilbert, 1983-NMSC-083, 122, 100 N.M. 392, 671 P.2d 640 ("This Court cannot
16 review matters outside the record."). "If facts necessary to a full determination are
17 not part of the record, an ineffective assistance claim is more properly brought
18 through a habeas corpus petition[.]" State v. Roybal, 2002-NMSC-027, 1 19, 132
19 N.M. 657, 54 P.3d 61. We therefore decline to remand for an evidentiary hearing on
20 the issue ofineffective assistance of counsel. See State v. Samora, 2013-NMSC-038,
12

I 	1 23, 307 P.3d 328 (stating that the Supreme Court's preference that ineffective
2 assistance claims "be brought under habeas corpus proceedings so that the defendant
3 may actually develop the record with respect to defense counsel's actions" (internal
4 quotation marks and citation omitted)).
5 D. 	Sufficiency of the Evidence
6 	{18} 	Defendant argues that the evidence presented at trial was insufficient to
7 support any of his convictions. Specifically, Defendant argues that: (1) the DNA
8 analyst should not have been allowed to testify; (2) the sexual assault nurse examiner
9 ("SANE") report constitutes "conclusive proof that [Victim] testified falsely[,]"; (3)
10 the State failed to establish the events occurred in New Mexico; and (4) the detective
11 	was not qualified to testify regarding whether Mrs. Bravo appeared intoxicated
12 during her interview on the morning of the encounter. For the reasons that follow,
13 	none of these challenges warrant reversal.
14 	{19} 	Defendant's argument regarding the DNA evidence proffered in this case was
15 	unpreserved, lacks specificity, and contains no citations to relevant legal authority.2
2Defendant frames his argument as a challenge to whether the analyst :should.
have been allowed to testify, but he then points to an article in National Geographic
magazine to 	support his assertion that "[b]ecause there was enough D;NA to
determine it was male, testing could have excluded him as the donor," suggesting a
challenge to the accuracy of the results rather than the qualifications of the witness.
See State v. Fuentes, 2010-NMCA-027, 129, 147 N.M. 761,228 P.3d 1181 (noting
we will "not review unclear or undev~loped arguments [that] require us to guess at
what a part[y's] arguments might be").
13

1 Due to the countless deficiencies in Defendant's argument, we do not address it. See
2 	Guerra, 2012-NMSC-014, 121 (acknowledging that appellate courts are under no
3 obligation to review unclear or undeveloped arguments). Defendant's argument
4 regar.ding the SANE report is unpersuasive because it is for the jury, not this court,
5 to resolve conflicts in the evidence and determine the weight and credibility of the
6 evidence. State v. Sanchez, 2000-NMSC-021, 1 32, 129 N.M. 284, 6 P.3d 486.
7 Furthermore, "the jury [was] free to reject [the d]efendant's version of the facts."
8 State v. Rojo, 1999-NMSC-001, 119, 126 N.M. 438, 971 P.2d 829.
9 {20} 	We find Defendant's argument that the State failed to establish the events
10 occurred in New Mexico unpersuasive. The victim testified that the offense occurred
11 	in Defendant's house in Deming. This evidence was sufficient, taken in the light
12 most favorable to the verdict, to establish the requisite jurisdiction. See State v.
13 -Tooke, 1970-NMCA-068, 117-8, 81 N.M. 618,471 P.2d 188 (noting that the courts
14 may take judicial notice of "boundaries of the state" and concluding that evidence
15 	that events took place in Bernalillo County was sufficient to satisfy jurisdictional
16 requirement that events occurred in New Mexico), overruled on other grounds by
17 State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616. As to Defendant's
18 	assertion that the detective was not qualified to testify regarding an appearance of
,,
'
19 	intoxication, "it is well recognized that laymen are capable of assessing the :effects
20 	of intoxication as a matter wfrliin their common knowledge and experience." State
14

1 v. Privett, 1986-NMSC-025, 120, 104 N.M. 79, 717 P.2d 55; State v. Neal, 2008-
2 NMCA-008, 127, 143 N.M. 341, 176 P.3d 330 (stating the "fact[-]finder could rely
3 on common knowledge and experience to determine whether [the d]efendant was
4 under the influence of alcohol").
5 E. 	Cumulative Error
6 	{21} 	Defendant's argument regarding cumulative error 1s 	limited to 	a· single
7 conclusory sentence in his brief in chief, in which he makes no explanation as to
8 how he was deprived of a fair trial or in what way the errors were prejudicial to his
9 interests. See State v. Huerta-Castro, 2017-NMCA-026, 148, 390 P.3d 185 (stating
10 	cumulative error standard that reversal is required where "the cumulative impact of
11 	errors which occurred at trial was so prejudicial that the defendant was deprived of
12 a fair trial" (internal quotation marks and citation omitted)). Defendant's argument
13 	on this issue is wholly undeveloped and we therefore will not address it. See State v.
14 Dickert, 2012-NMCA-004, 146,268 P.Jd 515 (declining to address the defendant's
15 	inadequately 	· developed 	argument); 	Fuentes, 	2010-NMCA-027, 	129
16 (acknowledging that this Court does not review undeveloped arguments).
17 CONCLUSION
18 	{22} 	We reverse and remand so that the district court may vacate Defendant's CDM
19 conviction as well as one ofhis CSPM convictions. We affirm his remaining.CSPM
20 conviction.
15

1 {23} 	IT IS SO ORDERED.
2
3
4 WE CONCUR:
r 	"'
5 	.,.,.~
6 J. MILES HANISEE, Judge
UELINE R. MEDINA, Judge
16