January 30, 2020- State of New Mexico v. Teddy Sosa, No. A-1-CA-36936

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in 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-36936	4
TEDDY SOSA,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY	7
Kea W. Riggs, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
Meryl E. Francolini, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Bennett J. Baur, Chief Public Defender	14
Mary Barket, Assistant Appellate Defender	15
Santa Fe, NM	16
for Appellant	17
MEMORANDUM OPINION	18
ATTREP, Judge.	19
{1} 	A jury convicted Defendant Teddy Sosa of aggravated burglary (commits	20
battery) (NMSA 1978, § 30-16-4(C) (1963)), aggravated assault with a deadly	21
weapon (NMSA 1978, § 30-3-2(A) (1963)), abuse of a child (does not result in death	22
or great bodily harm) (NMSA 1978, § 30-6-1(D) (2009)), and battery (NMSA 1978,	23
Court of Appeals of New Mexico
Filed 1/30/2020 11:49 AM

2
§ 30-3-4 (1963)). On appeal, Defendant argues his convictions for aggravated	1
burglary, battery, and child abuse violate double jeopardy, and the district court	2
made evidentiary errors that, when considered together, deprived him of a fair trial.	3
We conclude Defendant’s convictions for both aggravated burglary and battery	4
violate double jeopardy. We otherwise affirm.	5
BACKGROUND	6
{2} 	Defendant’s convictions arise from a violent incident that occurred at the	7
home of his ex-wife, Lorina Rodriguez. At the time of the incident, Rodriguez lived	8
with her three children: Tommy (age eighteen), A.S. (age fourteen), and R.S. (age	9
ten). Defendant is the father of R.S., but is not biologically related to Tommy or A.S.	10
Defendant and Rodriguez informally shared custody of R.S., who would go to	11
Defendant’s home—located about a half a block away—about every other week.	12
Rodriguez testified that she unsuccessfully sought child support from Defendant and	13
that she had frequent disputes with Defendant’s girlfriend, Giovannah Vaughn,	14
about Vaughn staying at Defendant’s home, which Rodriguez believed was R.S.’s.	15
{3} 	On the day in question, Defendant called Rodriguez, demanding that she take	16
R.S. to him. Rodriguez took R.S. to Defendant’s house, but he was not there.	17
Rodriguez then went home and minutes later, Defendant called her again. Defendant	18
was angry and did not believe that Rodriguez had tried to take R.S. to his house.	19
Defendant said he was on his way over. He drove to Rodriguez’s house, came to the	20

3
door, and pushed Rodriguez by the neck, making his way into the house without	1
Rodriguez’s permission.	2
{4} 	While inside, Defendant got a kitchen knife, and after dropping it, he picked	3
up a knife sharpener and ran after A.S. Rodriguez hit Defendant in the neck with a	4
bat. Defendant continued pursuing A.S., pinned her against the wall, and slapped	5
her. Defendant held the knife sharpener as if he was going to stab A.S. Tommy tried	6
to calm Defendant down, but Defendant only turned his attention to Tommy,	7
punching him in the face repeatedly. Rodriguez and A.S. hit Defendant with baseball	8
bats to try to make Defendant stop punching Tommy, to no avail. Defendant then	9
turned back to A.S., chasing her around and calling her a “whore” and a “slut.”	10
Eventually, Defendant got tired and left. Further discussion of relevant facts is	11
reserved for our analysis.	12
DISCUSSION	13
I. 	Double Jeopardy	14
{5} 	Defendant argues that his convictions for aggravated burglary and battery, or	15
alternatively, child abuse, violate his constitutional right to be free from double	16
jeopardy. “A double jeopardy challenge is a constitutional question of law which we	17
review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. Defendant	18
advances a “double description” challenge, contending “the same conduct result[ed]	19
in multiple convictions under different statutes.” Id. In such cases, we apply the two-	20

4
part test set forth in Swafford v. State, 1991-NMSC-043, ¶¶ 9, 25, 112 N.M. 3, 810	1
P.2d 1223: (1) whether the conduct is unitary and (2) if so, whether the Legislature	2
intended to punish the offenses separately. State v. Silvas, 2015-NMSC-006, ¶ 9, 343	3
P.3d 616. “Only if the first part of the test is answered in the affirmative, and the	4
second in the negative, will the double jeopardy clause prohibit multiple punishment	5
in the same trial.” Id. (internal quotation marks and citation omitted).	6
A. 	Aggravated Burglary and Battery	7
{6} 	Defendant’s conviction for aggravated burglary was based on the theory that,	8
after he entered Rodriguez’s home without authorization, he committed a battery	9
upon Tommy, Rodriguez, or A.S. See § 30-16-4(C) (requiring the commission of a	10
battery to support aggravated burglary conviction); § 30-3-4 (defining “battery” as	11
“the unlawful, intentional touching or application of force to the person of another,	12
when done in a rude, insolent or angry manner”). Defendant separately was	13
convicted of committing battery upon Tommy. The State thus relied, at least in part,	14
upon unitary conduct—Defendant’s battery of Tommy—for both convictions. See	15
Silvas, 2015-NMSC-006, ¶¶ 18-19 (confirming that the conduct was unitary based	16
on the jury instructions, in which the state “directed the jury to the same act for both	17
crimes . . . as the basis to convict for both crimes”).	18
{7} 	Although the State argues that the jury could have convicted Defendant of the	19
aggravated burglary charge based on Defendant’s separate battery of Rodriguez or	20

5
A.S., it nevertheless acknowledges that unitary conduct must be presumed in this	1
case under our Supreme Court’s decision in State v. Foster, 1999-NMSC-007, 126	2
N.M. 646, 974 P.2d 140, abrogation on other grounds recognized by Kersey v.	3
Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683. See Foster, 1999-	4
NMSC-007, ¶ 27 (“[T]he Double Jeopardy Clause . . . require[s] a conviction under	5
a general verdict to be reversed if one of the alternative bases for conviction provided	6
in the jury instructions is legally inadequate because it violates a defendant’s	7
constitutional right to be free from double jeopardy[.]” (internal quotation marks	8
omitted)). Indeed, “[w]hen the conduct underlying two convictions could be unitary	9
under the facts, but we are unsure if the jury relied on that unitary conduct for both	10
convictions, we nevertheless assume for the purposes of our double jeopardy	11
analysis 	that 	the 	conduct 	was 	unitary 	because 	one 	of 	the	12
options/alternatives/scenarios 	is 	legally 	inadequate.” 	State 	v. 	Simmons, 	2018-	13
NMCA-015, ¶ 27, 409 P.3d 1030.	14
{8} 	Having presumed unitary conduct, we turn to the second part of the Swafford	15
analysis. See Silvas, 2015-NMSC-006, ¶ 9. The State concedes that Defendant’s	16
battery conviction is subsumed within the aggravated burglary charge, and thus	17
Defendant’s conviction for battery violates double jeopardy. While we are not bound	18
by the State’s concession, see State v. Guerra, 2012-NMSC-027, ¶ 9, 284 P.3d 1076,	19
we agree. Because battery was the aggravating element of Defendant’s aggravated	20

6
burglary conviction, the entire crime of battery was subsumed within aggravated	1
burglary. See Silvas, 2015-NMSC-006, ¶ 12 (providing that where “one statute is	2
subsumed within the other, then the analysis ends and the statutes are considered the	3
same for double jeopardy purposes”). Therefore, “the inquiry is over and the statutes	4
are the same for double jeopardy purposes—punishment cannot be had for both.”	5
Swafford, 1991-NMSC-043, ¶ 30. Consequently, Defendant’s conviction for battery	6
must be vacated. See State v. Santillanes, 2001-NMSC-018, ¶ 37, 130 N.M. 464, 27	7
P.3d 456 (concluding that when double jeopardy has been violated, the lesser offense	8
is vacated).	9
B. 	Aggravated Burglary and Child Abuse	10
{9} 	Defendant also argues that his convictions for aggravated burglary and child	11
abuse violate double jeopardy. As with his previous argument, Defendant contends	12
that his conduct was unitary because the State relied upon his battery of A.S. for both	13
charges, and the State concedes that the conduct is presumed unitary under Foster.	14
We thus turn to the second Swafford prong to determine whether the Legislature	15
intended to punish the offenses separately. See Silvas, 2015-NMSC-006, ¶ 9; State	16
v. Franco, 2005-NMSC-013, ¶ 12, 137 N.M. 447, 112 P.3d 1104 (stating that “[t]he	17
sole limitation on multiple punishments is legislative intent” (alteration, internal	18
quotation marks, and citation omitted)).	19

7
{10} 	“When, as here, the statutes themselves do not expressly provide for multiple	1
punishments, 	we 	begin 	by 	applying 	the 	rule 	of 	statutory 	construction 	from	2
Blockburger v. United States, 284 U.S. 299 . . . (1932), to determine whether each	3
provision requires proof of a fact that the other does not.” State v. Branch, 2018-	4
NMCA-031, ¶ 24, 417 P.3d 1141. When a statute is “vague and unspecific” or	5
“written with many alternatives,” however, we apply a modified Blockburger	6
analysis, State v. Gutierrez, 2011-NMSC-024, ¶ 59, 150 N.M. 258 P.3d 1024—	7
“look[ing] to the state’s trial theory to identify the specific criminal cause of action	8
for which the defendant was convicted [and] filling in the case-specific meaning of	9
generic terms in the statute when necessary,” Branch, 2018-NMCA-031, ¶ 25. We	10
do so “independent of the particular facts of the case . . . by examining the charging	11
documents and the jury instructions given in the case.” Swick, 2012-NMSC-018,	12
¶ 21. If, under modified Blockburger, “each statute requires proof of a fact that the	13
other does not, it may be inferred that the Legislature intended to authorize separate	14
punishments under each statute.” Id. ¶ 13.	15
{11} 	Here, under the State’s theory as set out in the jury instructions, Defendant’s	16
convictions for child abuse and aggravated burglary each require proof of a fact that	17
the other does not. For aggravated burglary, the State was required to prove that	18
Defendant entered a dwelling without authorization with the intent to commit a	19
felony therein—a fact not required for child abuse. Compare § 30-16-4(C), with §	20

8
30-6-1(D)(1). For child abuse, the State was required to prove not only that	1
Defendant “slapped” A.S., but also that he “threatened to kill [A.S.] with a knife	2
sharpener,” “caused [A.S.] to be placed in a situation that endangered the life or	3
health of [A.S.],” and “showed a reckless disregard for the safety or health of	4
[A.S.]”—all facts that were not required to sustain the aggravated burglary charge.	5
Compare § 30-6-1(D)(1), with § 30-16-4(C). Because one offense is not subsumed	6
within the other, we presume that the Legislature intended separate punishments for	7
each crime. See Swafford, 1991-NMSC-043, ¶ 31.	8
{12} 	This presumption is not conclusive, but rather “may be overcome by other	9
indicia of legislative intent.” Id. The only indicium discussed by the parties is	10
whether the statutes are “directed toward protecting different social norms and	11
achieving different policies.” Id. ¶ 32. If, as here, the statutes address different social	12
harms, then they “can be viewed as separate and amenable to multiple punishments.”	13
Id. In this case, “one purpose of the child-abuse-by-endangerment statute is to assure	14
the protection of children, a highly vulnerable population.” State v. Ramirez, 2018-	15
NMSC-003, ¶ 54, 409 P.3d 902. By contrast, the purpose of the aggravated-burglary	16
statute is to protect the possessory interest in excluding others from property. See	17
State v. Office of Pub. Def. ex rel. Muqqddin, 2012-NMSC-029, ¶ 41, 285 P.3d 622.	18
(“Chief among the possessory interests that burglary is designed to protect is the	19
right to exclude.”). In light of this, and also having considered the other indicia of	20

9
legislative intent, we conclude the presumption that the Legislature intended	1
multiple punishments has not been overcome. Therefore, Defendant’s convictions	2
for aggravated burglary and child abuse do not violate double jeopardy.	3
II. 	Evidentiary Challenges	4
{13} 	Defendant argues the district court made three evidentiary errors that, when	5
considered together, deprived him of a fair trial. The admission or exclusion of	6
evidence is reviewed “under an abuse of discretion standard and [we] will not reverse	7
in the absence of a clear abuse.” State v. Candelaria, 2019-NMCA-032, ¶ 41, 446	8
P.3d 1205 (internal quotation marks and citation omitted). “An abuse of discretion	9
occurs when a ruling is against logic and is clearly untenable or not justified by	10
reason.” Id. (internal quotation marks and citation omitted).	11
A. 	Defendant’s Video of Rodriguez and Vaughn Arguing at Defendant’s	12
House	13
{14} 	Defendant’s first alleged evidentiary error is the district court’s exclusion of	14
a 	cell-phone 	video 	depicting 	an 	argument 	between 	Rodriguez 	and 	Vaughn,	15
Defendant’s girlfriend, at Defendant’s house. Prior to trial, the State filed a motion	16
in limine to exclude the video, arguing, among other things, that the video was not	17
relevant. The district court, after watching a portion of the video, agreed with the	18
State and excluded the video, stating that the court did not believe the video was	19
relevant and that it was more prejudicial than probative. On appeal, Defendant	20
argues that the video was relevant because it was probative (1) of Rodriguez’s bias	21

10
or motive to fabricate; (2) as impeachment evidence of Rodriguez’s testimony that	1
she was afraid of Defendant, wanted nothing to do with him, and tried to prevent	2
R.S. from seeing Defendant following the incident; and (3) of Rodriguez’s demeanor	3
following the incident. As we explain, we conclude the district court did not abuse	4
its discretion in excluding the video.1
5
{15} 	The video depicts an agitated and aggressive Rodriguez, who repeatedly uses	6
disparaging and racially-charged language toward Vaughn. Rodriguez accuses	7
Vaughn of “bum[ming] off of [Defendant]” and says Vaughn will not live at the	8
house for free. Rodriguez repeatedly states that the house is her daughter’s and not	9
Vaughn’s. Rodriguez also suggests that she is closer to Defendant than Vaughn,	10
saying that Defendant called her from jail that morning and that Defendant does not	11
want Vaughn at his house.	12
{16} 	Defendant first argues the video should have been admitted as evidence of	13
Rodriguez’s bias or motive to fabricate. See State v. Santillanes, 1974-NMCA-092,	14
¶ 5, 86 N.M. 627, 526 P.2d 424 (“Bias of a witness is always relevant.” (internal	15
quotation marks and citation omitted)). He asserts the video tended to show “an	16
ongoing property dispute between [Defendant] and [Rodriguez]” and that Rodriguez	17
“wanted to control the property and ensure that it went to R.S.” Defendant, however,	18
1 We assume for purposes of our analysis that the video was properly
authenticated.

11
has not demonstrated how the video, which depicted a dispute between Rodriguez	1
and Vaughn, tended to show that there was a dispute between Rodriguez and	2
Defendant, that Rodriguez was biased against Defendant, or that Rodriguez had a	3
motive to fabricate what happened in this case. On the contrary, in the video,	4
Rodriguez seems inclined to protect Defendant, at least from Vaughn.	5
{17} 	Defendant next argues that the video was relevant to rebut Rodriguez’s claims	6
that she was afraid of Defendant, wanted to avoid him, and wanted to keep R.S. from	7
seeing him after the incident. Defendant argues that by going over to his house,	8
Rodriguez “virtually guarantee[d]” continued contact with Defendant. Rodriguez,	9
however, did not come into contact with Defendant in the video. Indeed, in the video,	10
Rodriguez told Vaughn that Defendant had called her from jail that morning, which	11
suggests Rodriguez had reason to believe Defendant was not home at the time.	12
Likewise, there is no suggestion in the video that Rodriguez did or did not want to	13
keep R.S. from Defendant. Finally, as for the video’s probative value to show	14
Rodriguez’s demeanor following the incident, the record is silent on how close in	15
time the video occurred to the incident. Given this, the video does not, as Defendant	16
suggests, rebut the State’s evidence of Defendant’s demeanor right after the incident.	17
{18} 	On this record, we cannot say the district court erred in determining that the	18
video was not relevant. See Rule 11-401 NMRA (defining relevant evidence); Rule	19
11-402 NMRA (“Irrelevant evidence is not admissible.”); see also State v. Wesson,	20

12
1972-NMCA-013, ¶ 7, 83 N.M. 480, 493 P.2d 965 (stating that “[w]here the	1
materiality of the evidence is doubtful, the admission of such evidence is within the	2
discretion of the [district] court”). But, even if the video contained some relevant	3
evidence, 	we 	conclude 	the district 	court 	acted 	well 	within 	its 	discretion 	in	4
determining that the probative value of the video was substantially outweighed by	5
its prejudicial effect. See Rule 11-403 (“The court may exclude relevant evidence if	6
its probative value is substantially outweighed by . . . unfair prejudice[.]”); State v.	7
Chamberlain, 1991-NMSC-094, ¶ 9, 112 N.M. 723, 819 P.2d 673 (“The [district]	8
court is vested with great discretion in applying Rule [11-]403, and it will not be	9
reversed absent an abuse of that discretion.”). The district court did not abuse its	10
discretion in excluding the video.	11
B. 	The State’s Videos of Surveillance Footage From Rodriguez’s House	12
{19} 	The district court admitted three cell-phone video recordings of monitors	13
playing surveillance footage from Rodriguez’s house. Defendant argues that the	14
district court erred by admitting these videos because they violate the best evidence	15
rule, are not admissible “duplicates,” and are not subject to any exception to the best	16
evidence rule. The State responds that Defendant did not preserve these objections,	17
or alternatively that the videos were admissible either as duplicates or as other	18
evidence of content.	19

13
{20} 	The best evidence rule provides that “[a]n original writing, recording, or	1
photograph is required in order to prove its content unless these rules or a statute	2
provides otherwise.” Rule 11-1002 NMRA. “A duplicate is typically admissible to	3
the same extent as an original.” State v. Hanson, 2015-NMCA-057, ¶ 7, 348 P.3d	4
1070 (citing Rule 11-1003 NMRA); see also Rule 11-1001(E) NMRA (defining	5
“duplicate” as “a counterpart produced by a mechanical, photographic, chemical,	6
electronic, or other equivalent process or technique that accurately reproduces the	7
original”). One exception to the best evidence rule provides that an original, or	8
admissible duplicate, is not required when “all the originals are lost or destroyed,	9
and not by the proponent acting in bad faith”—in which case “other evidence of the	10
content” of the recording is admissible. Rule 11-1004(A) NMRA. For evidence to	11
be admissible under Rule 11-1004, the proponent must establish by a preponderance	12
of the evidence that it did not act in bad faith in failing to obtain the original. Hanson,	13
2015-NMCA-057, ¶ 12. The proponent may so establish through “circumstantial	14
evidence that a diligent effort was made to obtain the originals or by eliciting direct	15
testimony from a witness who caused their loss or destruction.” Id. ¶ 13.	16
{21} 	In this case, the district court found that the original surveillance footage was	17
not lost by the State in bad faith. The district court reasoned	18
with the testimony of . . . Rodriguez and the testimony of the officer	19
here, that he did review the [surveillance footage] at or about the time	20
that this happened [and] that they were accurate, the court is going to	21
find that based on the testimony that the State has met its burden of	22

14
establishing 	by 	preponderance 	of 	the 	evidence 	that 	the 	original	1
recordings were lost or destroyed and that they were not done as a result	2
of bad faith, and I am going to allow them to be admitted during the	3
trial.	4
These findings were supported by the direct testimony of Rodriguez regarding the	5
circumstances of the loss of the original surveillance footage and her efforts to	6
reclaim the original. 	To the extent Defendant argues that the evidence was	7
insufficient to support the district court’s ruling, we are unpersuaded. We detect no	8
error in the district court’s finding that the original surveillance footage was not lost	9
in bad faith and its conclusion that the alternative evidence of the surveillance	10
footage—the cell-phone videos—was admissible as “other evidence of content,”	11
pursuant to Rule 11-1004. As such, we need not discuss preservation or consider	12
whether the videos constitute admissible duplicates.	13
C. 	Defendant’s Statements to the Detective	14
{22} 	Defendant 	argues 	he 	should 	have 	been 	allowed 	to 	question 	Detective	15
Christopher Bradley regarding the content of statements Defendant 	made to	16
Detective Bradley after the incident. Defendant contends that he said he never	17
touched the knife or knife sharpener during the incident and he asked Detective	18
Bradley to test these items for fingerprints and DNA. Defendant also contends that	19
he told Detective Bradley he did not call Rodriguez on the day of the incident and	20
that law enforcement’s 	failure to 	follow up on this 	statement 	indicated the	21

15
investigation was inadequate. The State responds that Defendant’s argument was not	1
preserved or, alternatively, that any error was harmless.	2
{23} 	Even if we assume Defendant’s argument was preserved and the district court	3
erred in excluding the statements, any such error does not warrant reversal here.	4
“Improperly admitted [or excluded] evidence is not grounds for a new trial unless	5
the error is determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ¶ 25,	6
275 P.3d 110. Where, as here, the error is evidentiary, rather than constitutional, we	7
evaluate whether there is a reasonable probability that the error affected the verdict.	8
Id. ¶ 36. “Defendant bears the initial burden of demonstrating that he was prejudiced	9
by the error.” State v. Astorga, 2015-NMSC-007, ¶ 43, 343 P.3d 1245. The State	10
contends—and we agree—that the error, if any, was harmless because Defendant	11
was still able to examine Detective Bradley regarding the investigation, without his	12
statements, and has not demonstrated the exclusion of the statements may have	13
changed the outcome of the trial.	14
{24} 	Although Defendant argues that “the court effectively prevented counsel from	15
pursuing [a] line of defense[,]” he has not shown that his defense theory was	16
foreclosed, 	given 	his 	ability 	to 	cross-examine 	Detective 	Bradley 	about 	the	17
investigation. Indeed, Detective Bradley was asked whether he took any action to	18
investigate what Defendant had told him, to which he responded, “No.” And	19
Defendant specifically asked 	Detective Bradley whether the knife and knife	20

16
sharpener were tested for fingerprints or DNA, to which he again answered in the	1
negative. And while Defendant baldly argues that had his statements been admitted,	2
“Detective Bradley’s failure[s] would have seemed more egregious,” this falls short	3
of demonstrating prejudice. See State v. Cox, A-1-CA-35997, mem. op. ¶¶ 17, 18	4
(N.M. Ct. App. May 30, 2019) (non-precedential) (concluding the defendant had not	5
met his burden when he made only conclusory assertions of prejudice, articulated no	6
theory of prejudice, and cited no legal authority to support his claim of prejudice).	7
Because Defendant has not met his initial burden to demonstrate prejudice, we	8
conclude, even if it was error to exclude Defendant’s statements, it was harmless.2
9
III. 	Clerical Error	10
{25} 	The parties agree that the amended judgment and sentence contains a	11
typographical error, indicating that Defendant’s conviction followed a no-contest	12
plea instead of a jury trial. We agree that this apparent clerical error should be	13
corrected on remand.	14
CONCLUSION	15
{26} 	We reverse Defendant’s battery conviction and remand to the district court to	16
vacate this conviction and resentence Defendant accordingly and to correct the	17
2 Having found no other error by the district court, we need not address
Defendant’s cumulative error argument. See State v. Aragon, 1999-NMCA-060,
¶ 19, 127 N.M. 393, 981 P.2d 1211.

17
amended judgment and sentence to reflect that Defendant was convicted following	1
a jury trial. We otherwise affirm.	2
{27} 	IT IS SO ORDERED.	3
______________________________	4
JENNIFER L. ATTREP, Judge	5
WE CONCUR:	6
___________________________	7
MEGAN P. DUFFY, Judge	8
___________________________	9
BRIANA H. ZAMORA, Judge	10