May 22, 2019- State of New Mexico v. Kyle Sanchez, No. A-1-CA-35775

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-35775
5 KYLE SANCHEZ,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 David N. Williams, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	Jane A. Bernstein, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 Bennett J. Baur, Chief Public Defender
15 	Allison H. Jaramillo, Assistant Appellate Defender
16 	Santa Fe, NM
17 for Appellant
18 	MEMORANDUM OPINION
19 MEDINA, Judge.
20 	{t} 	Defendant Kyle Sanchez was convicted of two counts of attempted criminal
21 	sexual penetration of a minor (CSPM). He raises three issues on appeal. First, he
22 challenges the sufficiency of the evidence supporting each conviction. Second, he
23 	argues the State should have charged him with attempted child solicitation by
Court of Appeals of New Mexico
Filed 5/22/2019 11:16 AM

1 electronic device, and not CSPM. Third, he argues that his two convictions violate
2 double jeopardy. We reverse one of Defendant's convictions on double jeopardy
3 ·grounds, affirm the other, and remand to the district court for resentencing.
4 BACKGROUND
5 	{2} 	Albuquerque Police Department Detective Steven Walsh, posing as "Stu
6 Wall," placed an ad captioned "glory hole party" on Craigslist as part of a sting
7 operation to catch would-be sexual predators, Defendant replied to the ad, "[S]ounds
8 like fun," and asked, "How young are they?" Stu Wall responded, "[Y]es fun is one
9 word that could be used. [J]ust so we don[']t waste each other's time they are very
10 young." Defendant replied, "That's ok with me! 	Count me in." Stu Wall ·and
11 	Defendant continued communicating by email and eventually changed to cell phone
12 texting.
13 	{3} 	Through these communications, Defendant learned that the children at the
14 "glory hole party" would be eleven and nine years old. Defendant expressed his
15 	excitement about the "glory hole party," and asked Stu Wall if it were possible to
16 "play" 1 with the children before the "party" which was scheduled for a month away.
17 The two men arranged for a pre-party meeting between Defendant and "Kim," Stu
18 	Wall's fictitious eleven-year-old step-daughter. Stu Wall asked Defendant vyhat he
1Detective Walsh testified he understood "play" to mean to be sexually active
with children.
2

1 would like to 	do 	with Kim. Defendant replied that he intended to engage m
2 cunnilingus and fellatio with Kim, as well as watch Kim engage in activities with
3 Stu Wall.
4 	{4} 	Stu Wall suggested that Defendant bring a CD for Kim as a present to "win
5 her over" and informed Defendant that he had no condoms. Defendant agreed to
6 bring the CD and offered to bring his own condoms. On the evening of the arranged
7 pre-party meeting, Stu Wall notified Defendant that he could head over and provided
8 Defendant with an address at an apartment complex. Defendant told Stu Wall that
9 he had forgotten the CD, and Stu Wall suggested that Defendant instead bring orange
10 Fanta. Defendant spent twenty to twenty-five minutes searching for the soda. Stu
11 	Wall eventually provided Defendant with a list of possible purchase locations and
\
12 Defendant found an open convenience store. After purchasing the orange Fanta,
13 	Defendant drove to the apartment complex, parked, and texted Stu Wall that he was
14 "here."
15 	{5} 	Defendant then asked Stu Wall for a show of "good faith" by letting Kim
16 come outside of the apartment so Defendant could see her. Stu Wall denied this
17 request, but offered to stand in the doorway of his apartment with Kim. Not being
18 	able to see either Stu Wall or Kim, Defendant put his car into reverse and b~gan to
19 	leave.
3

1 {6} 	Other officers participating in the sting operation and positioned in the parking
2 lot of the apartment complex stopped and arrested Defendant. Officers found two
3 bottles of orange Fanta in his vehicle, but did not find condoms in the vehicle or on
4 Defendant's person. At the police station, Defendant stated he knew what a "glory
5 hole" was and that he brought the Fantas to make Kim feel comfortable with him
6 and to exchange them for sex with her. Detective Walsh asked Defendant ifhe went
7 to the apartment complex to "either have or get oral sex from an eleven-year-old,"
8 Defendant responded, "[Y]es, I'll say yes to that."
9 {7} 	A jury convicted Defendant of two counts of attempted CSPM, pursuant to
10 NMSA 1978, Section 30-9-ll(A), (D)(l) (2009), and NMSA 1978, Section 30-28-
11 	1 (1963). The district court entered a conditional discharge and pl~ced Defendant on
12 probation for five years.
13 	DISCUSSION
14 I.
15
16 {8}
Sufficient Evidence Supports Defendant's Convictions for Attempted
CSPM
Defendant contends the evidence was insufficient to support his convictions
17 for two reasons: first, he claims because an actual child was not involved in the sting
18 	operation that it was impossible for him to commit the goal crimes of CSPM, and
19 	second, he claims the State failed to prove that he "took a substantial step b~yond
20 	mere_ preparation" toward committing the crimes 	of CSPM. 	The 	State argues
21 	Defendant's 	"impossibility" 	argument 	is 	misplaced 	because 	Defendant 	was
4

1 convicted of the crimes of attempted CSPM. The State further argues that the
2 evidence was sufficient to support the jurors finding that he took overt acts in
3 furtherance of the commission of the crimes.
4 	{9} 	"The test for sufficiency of the evidence is whether substantial evidence of
5 either a direct or circumstantial nature exists to support a verdict of guilty beyond a
6 reasonable doubt with respect to every element essential to a conviction." State v.
7 Montoya,' 2015-NMSC-010, , 	52, 345 P.3d 1056 (internal quotation marks and
8 citation omitted). We "view the evidence in the light most favorable to the guilty
9 verdict, 	indulging 	all reasonable 	inferences 	and resolving 	all 	conflicts 	in . the
10 evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009,, 26, 128
11 	N.M. 711, 998 P.2d 176. We disregard all evidence and inferences that support a
12 different result. See State v. Rojo, 1999-NMSC-001,, 19, 126 N.M. 438, 971 P.2d
13 	829. Substantial evidence is "such relevant evidence as a reasonable mind might
14 accept as adequate to support a coriclusion." Staie v. Salgado, 1999-NMSC-008,
15 , 25, 126 N.M. 691,974 P.2d 661 (internal quotation marks and citation omitted).
16 	{to} 	We agree with Defendant that a conviction for criminal sexual penetration of
17 a minor requires evidence that the crime was committed on a child under thirteen
18 years of age. Section 30-9-1 l(A) ("Criminal sexual penetration is the unlawful and
19 intentional causing of a person to engage in ... cunnilingus, fellatio .. ~ whether or
20 	not there is any emission."); Section 30-9-1 l(D)(l) ("Criminal sexual penetration in
5

1 the first degree consists of all criminal sexual penetration perpetrated ... on a child
2 under thirteen years of age[.]"). Defendant, however, was not convicted of criminal
3 sexual penetration of a minor. He was convicted of two counts of attempted CSPM.
4 The crime of attempt to commit a felony "consists of an overt act in furtherance of
5 and with intent to commit a felony and tending but failing to effect its commission."
6 Section 30-28-1.
7 	{11} 	While other jurisdictions recognize two types of an "impossibility" defense,
8 "legal impossibility" and "factual impossibility," we do not distinguish between the
9 two. See State v. Lopez, 1983-NMSC-069, 114, 8, 100 N.M. 291, 669 P.2d 1086.
. 10 	Instead, we treat a defendant in accordance with the facts as he believes them to be.
. 11 	See Id. 	11 8-9 ("The fact that the pocket was empty should not insulate the
12 pickpocket from prosecution for an attempt to steal." (internal quotation marks and
13 	citation omitted)). Therefore, if the evidence established that Defendant believed he
14 was going to meet a child under thirteen years of age in the apartment for the purpose
15 	of engaging in criminal sexual penetration, the State was not required to present
16 evidence that there was an actual child involved in the sting operation.
17 	{12} 	Here, Defendant admitted during his police interview that he drove: to the
18 	apartment believing he was going to meet an eleven-year-old child for the purpose
19 	of performing and receiving oral sex. According to Defendant he brought the .orange
20 Fanta to make the child feel comfortable.with him and to exchange the soda·for sex
6

1 with her. Defendant's admissions, along with the evidence consisting of his text .
2 messages in which he stated his intent to engage in cunnilingus and fellatio with the
3 eleven-year-old child, were sufficient evidence from which a reasonable jury could
4 conclude that Defendant believed he was going to engage in two acts of sexual
5 penetration with 	an 	11-year'..old child. 	See Lopez, 	1983-NMSC-069, 	,r,r ·8-9.
6 Therefore, treating the facts as Defendant believed them to be, impossibility was not
7 an applicable defense to attempted CSPM.
8 {13} 	Defendant next contends the evidence was insufficient to demonstrate that he
·9 "took a substantial step beyond mere preparation" to support his convictions for
10 attempted CSPM. The crime of attempt has two essential elements: (1) "[a]n overt
11 	act in furtherance of but failing to consummate the goal crime"; and (2) "the intent
12 to commit the goal crime." State v. Green, 1993-NMSC-056, ,r 21, 116 N.M. 273,
13 	861 P.2d 954. "[E]ven slight acts in furtherance of the crime will constitute an
14 attempt." State v. Brenn, 2005-NMCA-121, ,r 14, 138 N.M. 451, 121 P.3d 1050
15 	(alteration, internal quotation marks, and citation omitted); State v. 	Trejo, 	1972-
16 NMCA-019, ,r 8, 83 N.M. 511, 494 P.2d 173 ("The overt act must be more than
17 preparation; it must be in part execution of the intent to-commit the crime. However,
18 	slight acts in furtherance of that intent will constitute an attempt.").
19 	{14} 	We recognize that the line between preparation and the overt act is not always
20 clear and is heavily dependent upon the surrounding factual circumstances. See
7

1 Brenn, 2005-NMCA-121, ,r 23. We apply the following principal when called upon
2 to review the sufficiency of evidence in attempt convictions:
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
In order that there may be an attempt to commit a crime, whether
statutory or at common law, there must be some overt act in part
execution of the intent to commit the crime. The act must reach far
enough toward the accomplishment of the desired result to amount to
the 	commencement 	of the 	consummation. 	It must 	not 	be 	merely
preparatory, 	and 	it 	need 	not 	be 	the 	last 	proximate 	act 	to 	the
consummation of the offense attempted to be perpetrated. However, it
must approach sufficiently near to it to stand either as the first or some
subsequent step in a direct movement toward the commission of the
offense after the preparation or solicitation is made. Slight acts done in
furtherance of that design will constitute an attempt. No definite rule
can be laid down by which an act might be characterized as overt in any
particular case. The general principle of law concerning attempts must
be applied in each case as nearly as it can with a view to substantial
justice.
18 State v. Lopez, 1969-NMCA-l 15, ,r 3, 81 N.M. 107, 464 P.2d 173, overruled on
19 other grounds by State v. Ruffins, 1990-NMSC-035, ,r 17, 109 N.M. 668, 789 P.2d
20 	116.
21 	{15} 	Brenn, 2005-NMCA-.121, further informs the analysis we undertake when
22 reviewing the sufficiency of evidence supporting an overt act. The defendant in
23 	Brenn appealed her conviction for attempted trafficking in methamphetamine by
24 manufacture on the grounds that the evidence was insufficient to show that she had
25 	taken on overt act towards completion of the crime. Id ,r 1. The facts showed that
26 the defendant drove to a motel room in a rented vehicle. Id. Officers knocked on the
27 motel room door, and once inside observed the defendant and another person in the
8

I room smoking methamphetamine. Id. ,r 2 .. A later search of the room revealed a large
2 amount 	of pseudoephedrine 	pills, 	an 	ingredient used 	in 	the 	manufacture 	of
3 methamphetamine. Id. ,r,r 2, 9. Officers also found a large amount of iodine in the
4 back of the car the defendant drove to the motel room, another ingredient used in the
5 manufacturing ofmethamphetamine. Id. ,r,r 2, 7-11. Based on this evidence,·we held
6 that "[t]he jury could infer that [the d]efendant was attempting to manufacture
7 methamphetamine because there is no legal purpose for [the d]efendant to possess
8 _such a large amount ofpseudoephedrine and iodine." Id. ,r 15. We further stated, "In
9 light 	of [the 	d]efendant's 	failure 	to 	adequately explain the 	large 	amount 	of
10 unpackaged 	pseudoephedrine, 	the 	jury 	could 	disbelieve 	[the 	d]efendant's
11 	explanation that the iodine was purchased for resale." Id. ,r 16. We concluded that
12 the possession of large amounts of pseudoephedrine and iodine, renting a car to
13 	purchase the 	iodine at a low . price, renting the motel room and storing the
14 pseudoephedrin~ therein, and smoking methamphetatnine. in the motel room were
15 	sufficient actions "to constitute an overt act in furtherance of the manufacture of
16 methamphetamine[,]" and affirmed the defendant's conviction. Id. ,r 23.
17 	{16} 	We now review Defendant's acts and determine whether they were surficient
18 to support the jury's determination that he crossed the line from mere preparation to
19 committing an overt act. "View[ing] the evidence in the light most favorable to the
20 guilty verdict, indulging all reasonable inferences and resolving all conflicts in the
9

1 evidence 	in 	favor 	of ·the 	verdict[,]" 	Cunningham, 	2000-NMSC-009, 	, 26, 	a
2 reasonable jury could have conclude.d that Defendant committed overt acts towards
3 committing CSPM.
4 {17} 	The evidence revealed that Defendant responded to an advertisement inviting
5 people to a "glory hole party." Once he discovered children ages nine and eleven
6 would be involved in the party, Defendant expressed his interest in "playing" with
7 the children prior to the date of the party. A reasonable jury could infer from this
8 evidence that Defendant possessed a lewd and lascivious attraction to children and
r
9 that he wanted to engage in sex acts with children. The evidence further revealed
10 that when the undercover officer granted Defendant's request to attend a pre-party
11 	meeting with Kim, Defendant expressed his wish to engage in cunnilingus and
12 fellatio with her. From this, a reasonable jury could conclude that Defendant
13 	intended to engage in fellatio and ·cunnilingus with an eleven-year-old-child.
14 	{18} 	On the evening of the arranged pre-party meeting, Detective Walsh, posing as
15 	Stu Wall, provided Defendant with an address to an apartment complex and notified
16 Defendant that he would be provided with the apartment number once he arrived.
17 Defendant advised Stu Wall that he was on his way but forgot to bring a gift. Stu
18 	Wall suggested that Defendant instead bring orange Fanta. Defendant drove to a
19 convenience store hoping to purchase orange Fanta only to discover it was closed.
20 While looking for an open convenience store, Defendant began texting Stu Wall
10

1 asking for photog~aphs of eleven-year-old Kim. After learning that Defendant was
2 having trouble finding an open store selling orange Fanta, Stu Wall provided
3 Defendant suggested locations that might be open. Defendant spent twenty to
4 twenty-five minutes driving to different convenience stores looking for o·range
5 Fanta. A reasonable j.ury could conclude from this evidence that Defendant was
6 preparing for his sexual encounter with Kim, because Defendant admitted that he
7 intended to give Kim the orange Fanta to make her feel comfortable with him and
8 exchange the soda for sex. After locating an open store and purchasing two bottles
9 of orange Fanta, Defendant drove to the address provided to him by Stu Wall. Once
10 there, he parked in the parking lot and texted Stu Wall that he was "here." -
11 	{19} 	A reasonable jury could conclude that Defendant's arrival at the apartment
12 complex, with "gifts" he intended to give the child in exchange for sex and in order
13 	to facilitate her comfort with him, along with his announcement of his arrival at the
14 apartment complex where he believed the child was waiting for him and would
15 	engage 	in 	sex 	acts 	with him, 	constituted 	sufficient 	overt 	acts 	beyond 	mere
· 16 preparation towards committing criminal sexual penetration of a m1nor. See State v. _
17 Stettheimer, 1980-NMCA-023, 1 25, 94 N.M. 149, 607 P.2d 1167 (reviewing the
18 	elements of the completed crime to determine if the defendant had committed an
19 	overt act towards completion of that crime). A reasonable jury could conclude that
20 these acts constitute -a substantial step in both meeting the child and substantial
11

1 movement toward the commission of the offense. Based on the foregoing, we
2 conclude that the evidence supported Defendant's convictions for attempted CSPM.
3 II. 	The General/Specific Statute Rule Does Not Apply To This Case
4 	{20} 	Defendant argues that the State should have charged him with attempted child
5 solicitation by electronic communication device, because it is the crime "[t]hat best
6 fits what happened in this case." This issue is properly raised for the first time on
7 appeal. See State v. Perea, 2001-NMCA-002, 1 8, 130 N.M. 46, 16 P.3d 1105
8 (allowing a general/specific. statute argument to be raised for the first time on
9 appeal), aff'd in part, vacated in part, 2001-NMSC-026, 130 N.M. 732, 31 P.3d
10 	1006. "The interpretation of a statute is an issue of law that is subject to de novo
11 	review." 	State 	v. 	Cleve, 	1999-NMSC-Ol 7, 	1 7, 	127 N.M. 	240, 980 P.2d 23
12 (alteration, internal quotation marks, _and citation omitted).
13 	{21} 	"The goal of the general/specific statute rule in the context of criminal law is
14 to determine whether the Legislature intends to punish particular criminal conduct
15 	under a specific statute instead of a general statute." State v. Santillanes, 2001-
16 NMSC-018, 1 11, 130 N.M. 464, 27 P.3d 456. In the context of criminal law, "the
17 general/specific [statute] rule assists courts in determining whether the Legislature
18 	intended to limit the discretion of the prosecutor in charging under one statute ~nstead
19 	of another for the commission of a particular offense." Id. 1 10. However, the
20 charging discretion of a prosecutor is extensive, "[s]o long as the prosecutor has
12

· 1 probable cause to believe that the accused committed an offense defined by st~tute,
2 the decision whether or not to prosecute, and what charge to file or bring before a
3 grand jury, generally rests entirely in his or her discretion." Id. ,-r 21 (alteration,
·4 internal 	quotation. marks, 	and 	citation 	omitted). 	"Therefore, 	in 	applying 	the
5 general/specific statute rule, courts must be wary not to infringe unnecessarily on
6 the broad charging authority of district attorneys, and [appellate courts] will require
7 clear evidence of an intent by the Legislature to limit prosecutorial discretion." Id.
8 {22} 	The general/specific statute rule requires a two-step analysis to determine if
9 the Legislature intended to divest the prosecutor of charging discretion.· However,
10 that analysis is only triggered when "two statutes, one general and one spec[ific],
11 	punish the 	same 	criminal conduct[.]" Cleve, 	1999-NMSC-O 17, 	,-r 17 	(emphasis
12 added); State v. McWhorter, 2005-NMCA-133, ,-r 11, 138 N.M. 580, 124 P.3d 215
13 	(stating that "[t]he general/specific rule is applicable when two· statutes prohibit the
14 same conduct"). Thus we must first determine whether both statutes could have
15 	punished Defendant's conduct in this case.
16 {23} 	Section 30-9-1 l(A) and (D)(l) provide:
17 	Criminal sexual penetration is the unlawful and intentional causing of
18 	a person to engage in sexual intercourse, cunnilingus, fellatio or anaJ
19 	intercourse or the causing of penetration, to any extent and with any
20 	object, of the genital or anal openings of another, whether or not there
21 	1s any em1ss10n.
13

1
2
3
Criminal sexual penetration in the first degree consists of all criminal
sexual penetration perpetrated: (1) on a child under thirteen years of
age[.]
4 Section 30-37-3.2 provides:
5 	Child solicitation by electronic communication device consists of a
6 	person knowingly and intentionally soliciting a child under sixteen
7 	years of age, by means of an electronic communication device, to
. 8 	engage in sexual intercourse, sexual contact or in a sexual or obscene
9 	performance, or to engage in any other sexual conduct when the
10 	perpetrator is at least four years older than the child.
11 	{24} 	Section 30-9-11, prohibits the act of sexual penetration, and does not include
12 the element of solicitation or the use of an electronic device. We can conceive of
13 	numerous activities that could be charged as attempted CSPM without use of an
14 electronic communication device to solicit a child to engage in CSPM or to solicit a
15 	child at all.
16 	{25} 	Section 30-37-3.2, on the other h,and, prohibits solicitation of a child under
17 the age of sixteen, by an electronic communication device, to engage in one or more	' 	'
18 	listed sex acts. See State v. Ebert, 2011-NMCA-098,, 13, 150 N.M. 576, 263 P.3d
19 918 (analyzing the statute as it existed at the time of the alleged violation, Section
20 30-37-3.2 (2005), in a vagueness challenge and determining that the statute "ensures
21 	that communications are criminalized only when knowingly made to a child under
22 the age of sixteen"). In its current form, Section 30-37-3.2 prohibits child solicitation
23 	by electronic communication devices, as opposed to solely computers, and requires
24 that the defendant is four years older than the child, as opposed to three. Otherwise,
14

\
1 the statute prohibits the same conduct today as when w_e decided Ebert. Accordingly,
2 COlJllTiunications remain criminalized only when knowingly made to a child under
3 the age of sixteen or to a peace officer posing as a child under sixteen years of age.
4 See Ebert, 2011-NMCA-098, 121 (providing that it is not a defense that the intended
5 victim of the defendant was a peace officer posing as a child under sixteen years of
6 age); see also Section 30-37-3.2(£).
7 {26} 	Under the facts of this case, Defendant could not have been convicted of
8 attempted 	child 	solicitation 	by 	electronic 	communication 	device 	when 	he
9 communicated only with a person he believed to be the child's step-father and not
10 the child. Thus, the general/specific statute rule does not apply and we reject
11 	Defendant's contention that he should have been charged with attempted child
12 	solicitation by electronic communication device.
13 	III. 	Two 	Convictions 	for 	Attempted 	CSPM 	Violate 	Double 	Jeopardy
14 	Protections
15 	{27} 	Defendant argues that his convictions for attempted CSPM violate double
16 jeopardy protections. "The Double Jeopardy Clause 	of the Fifth Amendment,
17 enforced against the states by the Fourteenth Amendment, protects defendants from
18 receiving multiple punishments for the same offense." State v. 	Ramirez,. 2018-
19 NMSC-003, 1 38, 409 P.3d 902 (internal quotation marks and citation omitted).
20 Multiple punishment problems arise in both unit-of-prosecution claims, "in·which
21 	an individual is convicted of multiple violations of the same criminal statute[,]" and
15

1 double-description claims, "in which a single act results in multiple charges under
2 different criminal statutes." State v. Bernal, 2006-NMSC-050, 1 7, 140 N.M. 644,
. 3 146 P .3d 289. Defendant raises a unit-of-prosecution challenge to his convictions
4 because he is claiming his two convictions under the same statute were based on
5 unitary conduct and both arose from a single intent. "A _double jeopardy claim is a
6 question of law that we review de novo." Id. 16.
7 {28} 	To determine whether Defendant committed two attempts, "[t]he relevant
8 inquiry ... is whether the Legislature intended punishment for the entire course of
9 conduct. or for each discrete act." State v. Alvarez-Lopez, 2004-NMSC-030, 1 40,
10 	136 N.M. 309, 98 P.3d 699 (alteration, internal quotation marks, and citation
11 	omitted). There are two steps to the unit-of-prosecution analysis. B~rnal, 2006-
12 NMSC-050, 1 14. ·"First, we review the statutory language for guidance on the unit
13 	of prosecution. If the statutory language spells out the unit of prosecution, then we
14 follow the language, and the unit-of-prosecution inquiry is complete." Id. (citation
15 	omitted). "If the language is not clear, then we move to the second step, in which we
16 	determine 	whether a 	defendant's 	acts 	are 	separated by 	sufficient 	'indicia 	of
17 distinctness' 	to justify multiple punishments · under the 	same statute." 	Id. 	"In
18 	examining the indicia of distinctness, courts may inquire as to the interests pr?tected
19 by the 	criminal 	statute, 	since the ultimate goal 	is 	to 	determine whether the
20 [L]egislature intended multiple punishments." Id. "Finally, if we have not found a
16

1 clear indication of legislative intent, we apply the 'rule of lenity,' a presumption
2 against 	imposing 	multiple 	punishments 	for 	acts 	that 	are 	not 	sufficiently
3 distinct." State v. DeGraff, 2006-NMSC-Ol 1,, 32, 139 N.M. 211, 131 P.3d 61.
4 	{29} 	Defendant argues that neither the attempt statute, Section 30-28-1, nor the
5 CSPM statute, Section 30-9-1 l(A) and (D)(l), defines a unit of prosecution and that
6 his actions did not have 	sufficient indicia of distinctness. The State concedes
7 Defendant's acts were not separated by sufficient indicia of distinctness to justify
8 multiple punishments, but contends that this Court need not reach the second step of
9 the 	analysis 	because 	the 	CSPM 	statute 	defines 	the 	unit-of-prosecution
10 unambiguously to allow prosecution for both cunnilingus and· fellatio.
11 	{30} 	We begin our analysis looking first at the specific statutes for attempted
12 CSPM, Section 30-9-11 (CSP), and Section 30-28-1 (attempt). Section 30-9-11,
13 	defines criminal sexual penetration of a minor as:
14
15
16
17
18
19
20
[T]he unlawful and intentional causing of a person to engage in sexual
intercourse, cunnilingus, fellatio or anal intercourse or the causing of
penetration, to any extent and with any object, of the genital or anal
openings of another, whether or not there is any emission.
Criminal sexual penetration in the first degree consists of all criminal
sexual penetration perpetrated: (1) on a child under thirteen years of
age[.}
21 	Section 30-9-1 l(A), (D)(l). Attempt to commit a felony "consists of an overt act in
22 furtherance ofand with intent to commit a felony and tending but failing to effect its
23 	commission." Section 30-28-1.
17

1 {31} 	Unit of prosecution claims in the context of Section 30-9-11 are reviewed by
2 reference to Herron, in which our Supreme Court observed that the language of
3 Section 30-9-11 	"does not 	indicate 	unambiguously whether the 	[L]egislature
-4 intended to create a separate offense for each penetration occurring during a
5 continuous sexual assault." Herron v. State, 1991-NMSC-012,, 8, 111 N.M. 357,
6 	805 P.2d 624. Our Supreme Court went on to "conclude that Section 30-9-11 cannot
7 be said as a matter of law to evince a legislative intent to punish separately each
8 penetration occurring during a continuous attack absent proof that each act of
9 penetration is in some sense distinct' from the others." Id., 15; cf State v. Wilson,
· 10 	1993-NMCA-074,, 9, 117 N.M. 11, 868 P.2d 656 (resorting to Herron factors to
11 	determine whether multiple acts of CSP including anal intercourse and fellatio
12 	during a continuous attack constituted separate offenses). Section 30-28-1, attempt,
13 	similarly does not "provide guidance as to the proper unit of prosecution for multiple
14 attempts." Bernal, 2006-NMSC-050,, 19.
15 	{32} 	Thus, we tum to the next step of our unit-of-prosecution analysis to determine
16 whether Defendant's acts were separated by sufficient indicia of distinct~ess to
_17 justify multiple punishments under the same statute. We consider the following
18 	factors in determining whether an act is distinct: (1) temporal proximity of the acts,
19 (2) the location of the victim during each act and whether there was movement or
20 repositioning of the victim, (3) the existence of an intervening event, (4) the
18

1 sequencing of the acts, (5) the defendant's intent as evidenced by his conduct and
2 utterances, and (6) the number of victims. Herron, 1991-NMSC-012,, 15.
3 	{33} 	Herron additionally 	indicated that "[e]xcept for 	penetrations 	of separate
4 orifices with the 	same object, none 	of these factors 	alone is a panacea, but
5 collectively they will assist in guiding future prosecutions under Section 3 0-9-
. 6 11." Id Therefore, urider Herron, two convictions for CSPM, one for cunnilingus
7 and the other for fellatio, would constitute separate offenses.
8 	{34} 	Here, however, Defendant was convicted of two counts of attempted CSPM
9 and the applicable Herron factors do not weigh in favor of multiple punishments.
10 Under the first factor, the temporal proximity of the acts, Defendant expressed his
11 	intent to engage in cunnilingus and fellatio with Kim in the same text and he prepared
12 for both acts of anticipated CSPM by looking for and purchasing two bottles of
13 	o·range Fanta at the same time. He then arrived with both bottles of orange Fanta in
14 the parking lot ~fter being told that Kim was in the apartment, intending to give them
15 	to Kim in exchange for sex. Defendant's intent did not change during the events
16 preceding his arrest. See State v. Haskins, 2008-NMCA-086, , 20, 144 N.M. 287,
17 	186 P.3d 916 ("[The d]efendant's conduct may fairly be construed to indicate one
18 	continuous intent[.]").
19 {35} 	As to the location of the victim, Defendant believed Kim to have been in the
20 apartment, but since Kim was non-existent there was no physical contact, movement
19

1 or repositioning of Kim. As to intervening and sequencing of events and acts, again,
2 given that Kim was non-existent there were no intervening or sequencing of events
3 or acts. Finally, each of Defendant's attempted CSPM convictions involved only one
4 fictitious victim. Based on the foregoing, the evidence supports only one conviction
5 for attempted CSPM.
6 CONCLUSION
7 	{36} 	We affirm one of Defendant's convictions for attempted CSPM, vacate the
8 other, and remand to the district court for resentencing consistent with this opinion.
9 {37} 	IT IS SO ORDERED.
10
11
12 WE CONCUR:
13 	,-.~
14 J. MILES HANISEE, Judge
15~t,--~~~16 	~STINAB 	GARDAS, Judge
20