State v. Comitz

                                                                    Office of Director     New Mexico
                                                                           2019.07.01      Compilation
                                                                                           Commission
                                                                     '00'06- 07:52:08
              IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: May 23, 2019

NO. S-1-SC-36060

STATE OF NEW MEXICO,

     Plaintiff-Appellee,

v.

JASON COMITZ,

     Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Cristina Jaramillo, District Judge

Released for Publication July 2, 2019

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General
M. Victoria Wilson, Assistant Attorney General
Santa Fe, NM

for Appellee

                                        OPINION

VIGIL, Justice.

{1}    Defendant Jason Comitz appeals from his convictions of first-degree felony
murder (by shooting at a dwelling) and second-degree murder for the death of the same
person, four counts of aggravated battery of two other victims, two counts of aggravated
assault of the same two victims, two counts of conspiracy to commit aggravated battery
of the same two victims, and one count each of conspiracy to commit aggravated
assault, shooting at a dwelling, conspiracy to shoot at the same dwelling, and child
abuse. We discuss (1) whether the State’s evidence was sufficient to prove the crime of
shooting at a dwelling and conspiracy to shoot at a dwelling, (2) whether multiple
convictions violate Defendant’s right under the United States Constitution to be free
from double jeopardy, and (3) whether the district court erred in failing to declare a
mistrial on grounds that the State allegedly elicited bad-act evidence in violation of its
pretrial ruling. We affirm in part and reverse in part.

I.     BACKGROUND

{2}     On January 28, 2015, Defendant went to the home of his friend Paul Randy Rael
(Randy) to pick up $30 that Randy owed him for drugs. When Defendant arrived at the
Raels’ home, he came into contact with Randy’s stepson, Manuel Ramirez (Manuel)—
who was just getting home—in front of the house. They argued about the $30
Defendant claimed Randy owed him, which escalated into a fist fight after Manuel saw
Defendant reaching for what looked to him like a gun. Manuel punched Defendant
multiple times and knocked him to the ground. Randy, his wife Sita Rael (Sita), and their
sons Paul Rael Junior (Paul) and Andrew Rael intervened and stopped the fight.
Defendant collected the belongings that he had dropped during the fight and left. As
Defendant drove off, he held his fingers like a gun and made a shooting gesture at the
family.

{3}    Four days later, on February 1, 2015, Defendant and two companions, each
armed with a hand gun, returned to the Raels’ home. Defendant parked his truck across
the street from the house, and the three men jumped out of Defendant’s truck and
started toward the Raels’ home. Randy, Sita, Manuel, Paul, and Paul’s ten-year-old
daughter were at the house.

{4}    Paul saw that Defendant and his companions were walking toward the front door,
that Defendant had an angry look on his face, and that Defendant was “fidgeting” with
something that appeared to be metal. Paul alerted Manuel that Defendant was outside.
Paul and Manuel also alerted Sita that Defendant was outside and told Paul’s daughter
to go into Sita’s bedroom.

{5}   From the sidewalk in front of the Raels’ home, Defendant began calling for
Manuel to come outside. Paul and Manuel came out and stood in the doorway on the
porch steps in front of the house, with Randy standing next to Paul and Manuel.

{6}     While in their respective positions, the two groups argued and exchanged insults.
During the argument, Manuel called Defendant a “bitch” for showing up with two men to
try to hurt his family. Defendant and his companions responded by drawing their pistols
and pointing them at the Raels. One of Defendant’s companions moved forward onto
the Raels’ porch and hit Paul on the head with the handle of his pistol, causing the gun
to fire and shoot Paul. This prompted Manuel to reach for his shotgun, which was
located inside the front door of the house, whereupon Defendant and his companions
started shooting at the Raels. Manuel fired a single shotgun round at Defendant and his
companions.
{7}     After Manuel fired the shotgun, Defendant and his companions stopped shooting
and “disappeared.” Manuel testified that he fired the shotgun at Defendant and his
companions after they started firing at him and his family. Defendant testified in his own
defense and acknowledged that he and his companions shot at the Raels but insisted
that it was only after Manuel shot at them first.

{8}    As a result of the gunfight, Randy was shot in the neck and died from his injuries.
Paul was shot in the head and lived. Manuel was shot in the leg and lived. Sita and
Paul’s daughter were unharmed. The ballistic evidence presented at trial indicated that
the bullet that killed Randy was not fired from Defendant’s gun.

{9}  The State charged Defendant with committing twenty offenses, together with
enhancements, in an eleven-count indictment as follows:

      •      Count 1, first-degree murder (willful and deliberate) of Randy or the lesser
      included offenses of second-degree murder (firearm enhancement) or voluntary
      manslaughter (firearm enhancement), or alternatively, felony murder,

      •    Count 2, conspiracy to commit first-degree murder, or alternatively, to
      commit felony murder,

      •      Count 3, attempt to commit first-degree murder of Paul (willful and
      deliberate) (firearm enhancement), or alternatively, either aggravated battery
      (great bodily harm) (firearm enhancement) or aggravated battery (deadly
      weapon) (firearm enhancement),

      •      Count 4, attempt to commit first-degree murder of Manuel (willful and
      deliberate) (firearm enhancement), or alternatively, either aggravated battery
      (great bodily harm) (firearm enhancement) or aggravated battery (deadly
      weapon) (firearm enhancement),

      •      Count 5, conspiracy to commit aggravated battery (great bodily harm), or
      alternatively, conspiracy to commit aggravated battery (deadly weapon),

      •     Count 6, aggravated assault (deadly weapon) (firearm enhancement) of
      Paul,

      •    Count 7, aggravated assault (deadly weapon) (firearm enhancement) of
      Manuel,

      •      Count 8, conspiracy to commit aggravated assault (deadly weapon),

      •    Count 9, child abuse (no death or great bodily harm) (firearm
      enhancement),
       •      Count 10, shooting at a dwelling or occupied building resulting in injury,
       and

       •      Count 11, conspiracy to commit shooting at a dwelling or occupied
       building.

{10} Defendant claimed self-defense. The jury rejected the claim and returned guilty
verdicts for first-degree felony murder and second-degree murder of Randy, four counts
of aggravated battery of Paul and Manuel, two counts of aggravated assault of Paul and
Manuel, one count of conspiracy to commit aggravated assault, two counts of
conspiracy to commit aggravated battery, one count of child abuse, one count of
conspiracy to shoot at a dwelling or occupied building, and one count of shooting at a
dwelling or occupied building. The district court sentenced Defendant to a term of life
imprisonment for the felony-murder conviction and additional terms of incarceration for
the remaining convictions and associated firearm enhancements.

{11} Defendant appeals directly to this Court. N.M. Const. art VI, § 2 (“Appeals from a
judgment of the district court imposing a sentence of death or life imprisonment shall be
taken directly to the supreme court.”); Rule 12-102(A)(1) NMRA.

II.    DISCUSSION

A.     Defendant’s Felony-Murder Conviction

{12} First-degree murder in New Mexico includes murder committed “in the
commission of or attempt to commit any felony[.]” NMSA 1978, § 30-2-1(A)(2) (1994).
This is commonly referred to as felony murder. State v. Frazier, 

,

, 

. Notwithstanding the broad statutory language, we have
repeatedly stated that, owing to legislative intent, there are many limitations to this
crime. See State v. Marquez, 

, 

 (listing cases that
have limited the scope of the felony-murder rule). One such limitation is “the collateral-felony rule.” 

 Under the collateral-felony rule, the predicate felony must “be
independent of or collateral to the homicide.” 

 (internal quotation marks and citation
omitted).

{13} Challenging his felony-murder conviction, Defendant argues that shooting at a
dwelling or occupied building, as defined in NMSA 1978, Section 30-3-8(A) (1993),
cannot serve as a predicate felony for felony murder. Defendant relies on this Court’s
rationale in Marquez, 

, in which we held that the offense of
shooting at or from a motor vehicle as defined in Section 30-3-8(B) cannot serve as the
predicate felony for a felony-murder conviction because “shooting at or from a motor
vehicle is an elevated form of aggravated battery” and does not have a felonious
purpose independent from the purpose of injuring the victim. Marquez, 2016-NMSC-
025, ¶ 23 (internal quotation marks and citation omitted). Defendant asserts that,
likewise, the crime of shooting at a dwelling does not have a felonious purpose
independent from the purpose of injuring another. He argues that, under the collateral-
felony limitation, shooting at a dwelling cannot serve as a predicate felony for felony
murder. See State v. O’Kelly, 

, 

, 

 (“[T]he
‘collateral-felony’ limitation dictates that the predicate felony may not be a lesser
included offense of second degree murder.” (citation omitted)). In light of Marquez,
Defendant also contends that this Court should overrule State v. Varela, 1999-NMSC-
045, 

, 

. In Varela we held that shooting at a dwelling is not a
lesser included offense of second-degree murder under a strict elements test and
therefore that the collateral-felony limitation does not preclude shooting at a dwelling as
a predicate felony to felony murder. See id. ¶¶ 18, 20-21.

{14} The State responds that shooting at a dwelling is a proper predicate for
Defendant’s felony-murder conviction. Specifically, the State argues that a
determination that shooting at a dwelling or occupied building may serve as the
predicate felony for felony murder is consistent with the Marquez “felonious purpose”
analysis under the collateral felony doctrine and does not require overruling Varela.

{15} However, a felony-murder conviction rests upon proof beyond a reasonable
doubt that the predicate felony was committed. See UJI 14-202 NMRA. A failure of
proof is fundamental error. See State v. Vance, 

, 

,

 (“‘If the evidence is insufficient to legally sustain one of the elements of a
crime, the error is fundamental.’” (alteration omitted) (citation omitted)). We may review
an issue of the sufficiency of the evidence on appeal even if the issue is not argued by
the parties. See State v. Doe, 

, ¶ 4, 

, 

. Based
on our review of the facts of this case, we conclude that a significant issue exists as to
whether the State proved the essential elements of the predicate felony used to obtain
Defendant’s felony-murder conviction—shooting at a dwelling. Therefore, on our own
motion, we consider whether sufficient evidence supports Defendant’s conviction for
shooting at a dwelling. We also consider whether the evidence supports Defendant’s
conviction for conspiring to commit shooting at a dwelling.

{16} “In reviewing the sufficiency of the evidence, ‘the reviewing court views the
evidence in the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.’” State v.
Montoya, 

, 

 (alterations omitted) (citation omitted).
“‘The test for sufficiency of the evidence is whether substantial evidence of either a
direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable
doubt with respect to every element essential to a conviction.’” 

 (citation omitted).
“‘Substantial evidence is relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.’” Id. ¶ 53 (alteration omitted) (citation omitted). “We
do ‘not evaluate the evidence to determine whether some hypothesis could be designed
which is consistent with a finding of innocence,’ and we do ‘not weigh the evidence or
substitute our judgment for that of the fact finder so long as there is sufficient evidence
to support the verdict.’” Id. ¶ 52 (alterations omitted) (citation omitted); see also State v.
Torrez, 

, 

 (discussing the standard of review for
sufficiency of the evidence).
{17} The jury was instructed that in order to find Defendant guilty of felony murder, the
State was required to prove beyond a reasonable doubt, in pertinent part, that
“[D]efendant committed the crime of Shooting at a Dwelling resulting in great bodily
harm under circumstances or in a manner dangerous to human life” and “caused the
death of [Randy] during the commission of Shooting at a Dwelling resulting in great
bodily harm.” The crime of shooting at a dwelling or occupied building is substantively
defined as “willfully discharging a firearm at a dwelling or occupied building.” Section 30-
3-8(A). Consistent with Section 30-3-8(A), the elements instruction given to the jury
required the State to prove beyond a reasonable doubt that “[D]efendant willfully shot a
firearm at a dwelling.”

{18} Viewing the evidence in the light most favorable to the guilty verdict and indulging
all reasonable inferences and resolving all conflicts in the evidence in favor of the
verdict, we conclude that the State failed to prove that Defendant committed the felony
of shooting at a dwelling. No evidence supports a finding that when Defendant fired his
pistol he willfully shot at the Raels’ home as required both by Section 30-3-8(A) and by
the elements instruction to the jury for shooting at a dwelling. See Webster’s Third New
International Dictionary 136 (3d ed. 1993) (defining “at” as “a function word to indicate
that which is the goal of an action or that toward which an action or motion is directed”);
see also Fleming v. Commonwealth, 

 (Va. Ct. App. 1991)
(stating that the word “at,” for purposes of a statute prohibiting discharge of a firearm at
an occupied dwelling, is defined as “a function word used to indicate that toward which
an action is directed” (alterations omitted) (internal quotation marks and citation
omitted)). Instead, the only reasonable inference from the evidence is that Defendant
and his companions specifically and primarily targeted the Raels themselves in the
course of a gunfight that took place in front of the dwelling. In other words, the evidence
was that the goal of Defendant and his companions was to shoot at the Raels, not at the
house. The fact that the Raels were standing in front of the house during the gunfight
did not shift Defendant’s target from the Raels to the house.

{19} The facts of this case stand in stark contrast to other cases in which we have
upheld convictions, based on challenges to the sufficiency of the evidence, for shooting
at a dwelling or occupied building in violation of Section 30-3-8(A). In those cases, the
facts clearly support a finding that the target of the defendants’ gunfire was the dwelling
or occupied building itself. In Torrez, following an altercation at a party, the defendant
left the house, armed himself, and then returned to the house. See 

, ¶¶
2-4. From the street, the defendant took out his firearm and fired at the house. See id.
¶¶ 3-4. There was no evidence presented that the defendant was aiming at any
particular individual during his assault. See id. ¶¶ 2-4, 42-43 (“[S]everal witnesses . . .
testified that when [the d]efendant returned to the house where the party was taking
place, he opened fire on the house without anyone else firing back at him.” Id. ¶ 42.). As
a result of the defendant’s indiscriminate gunfire, one partygoer was injured and another
was killed. See id. ¶ 4. Under these facts, we concluded that there was sufficient
evidence to support the defendant’s conviction of felony murder based on the predicate
felony of shooting at a dwelling. See id. ¶¶ 41-42.
{20} Similarly, in State v. Arrendondo, we affirmed the defendant’s conviction of
shooting at a dwelling, noting three pieces of evidence upon which the jury could have
relied to reasonably infer that the defendant intentionally shot into the house. See 2012-
NMSC-013, ¶¶ 36-37, 

. First, there was evidence that the defendant “was
expressing hostility towards” an occupant of the house who was not the ultimate and
intended murder victim. Id. ¶ 37. Second, there was “evidence that at least two bullets
entered the house.” Id. Finally, there was “evidence that the trajectory of the bullets that
entered the house was different from the trajectory of the bullets that entered [the
victim’s] body.” Id. In reference to the trajectories, there was testimony that “the
trajectory of the bullets that landed in the house indicate[d] that the shooter was aiming
directly at the house.” Id. ¶¶ 12, 36.

{21} Finally, in Varela, we concluded that the facts supported a conviction of
accessory to felony murder by shooting at a dwelling when, just before midnight, one of
the defendant's companions fired several shots into a dark mobile home before
speeding away. See 

. The companion who admitted to
firing the gun testified that the motive behind the attack was to “get even” with a rival
gang member whose father owned the mobile home. See id. ¶¶ 2, 4, 7. The rival gang
member’s father was killed when he was struck by one of the fired rounds while asleep
in the mobile home. Id. ¶¶ 2, 4. We held that this evidence was sufficient to support a
conviction of felony murder predicated on shooting at a dwelling. Id. ¶¶ 1, 21.

{22} By contrast, the evidence in the instant case is not sufficient to support a
conviction of felony murder predicated on the felony of shooting at a dwelling. Unlike the
defendants in Torrez, Arrendondo, and Varela, Defendant and his companions did not
target the house in their attack. They did not fire indiscriminately at the house from the
street like the defendants in Torrez and Varela. The objects of Defendant’s assault were
individual Raels. This is supported by the facts that Defendant’s group specifically urged
Manuel to come outside the house and that Paul was targeted at close range when one
of Defendant’s companions moved onto the porch before striking him and shooting him
in the head. In contrast to the evidence in Arrendondo, there was no bullet trajectory
evidence presented at Defendant’s trial to show that Defendant’s group directly aimed
at the house. Absent sufficient evidence that the dwelling was the principal target of
Defendant’s gunfire, we will not permit Defendant’s conviction of second-degree murder
to be elevated to a conviction of felony murder simply because the second-degree
murder occurred in front of a dwelling.

{23} Because the State failed to prove the felony used as the predicate for
Defendant’s felony-murder conviction, it follows that Defendant’s conviction of felony
murder (Count 1 alternative) as well as Defendant’s conviction of shooting at a dwelling
(Count 10) must be vacated for a failure of proof. Therefore we do not need to address
Defendant’s argument that his felony-murder conviction must be vacated on grounds
that a flaw in the felony-murder jury instruction constituted fundamental error.

{24} In addition, and for largely the same reasons, the State failed to present sufficient
evidence that Defendant conspired to shoot at a dwelling or occupied building. The jury
was instructed in pertinent part that in order for it to find Defendant guilty of conspiracy
to commit shooting at a dwelling or occupied building, the State was required to prove
beyond a reasonable doubt that Defendant “and another person by words or acts
agreed together to commit Shooting at a Dwelling” and that Defendant “and the other
person intended to commit Shooting at a Dwelling.” The evidence presented by the
State and the inferences from that evidence fail to prove that Defendant and his
companions at any time formed an agreement to shoot at the Raels’ home or that they
intended to shoot at the Raels’ home. The fact that there was a gunfight in which
Defendant and his companions were shooting at the Raels does not equate, by itself, to
an agreement to shoot at the Raels’ home. Defendant’s conviction of conspiracy to
commit shooting at a dwelling or occupied building (Count 11) must also be set aside for
a failure of proof.

B.     Defendant’s Double Jeopardy Claims

{25} Defendant argues that several of his convictions violate his right to be free from
double jeopardy and must be vacated. The State agrees with Defendant that some
convictions violate double jeopardy and must be vacated. However, we are not bound
by the State’s concession, and we independently assess Defendant’s claims. See State
v. Martinez, 

, 

, 

 (stating that the
appellate courts are not bound by the State’s concession of an issue in a criminal
appeal).

{26} “This Court reviews claims involving alleged violations of a defendant’s right to be
free from double jeopardy de novo.” State v. Loza, 

, 

.
The Fifth Amendment, made applicable to the states by the Fourteenth Amendment,
prohibits double jeopardy and “functions in part to protect a criminal defendant against
multiple punishments for the same offense.” State v. Swick, 

, 

 (internal quotation marks and citation omitted). There are two classes of
double jeopardy multiple-punishment cases: (1) the “double-description case, where the
same conduct results in multiple convictions under different statutes,” and (2) the “unit-of-prosecution case, where a defendant challenges multiple convictions under the same
statute.” 

 Defendant’s arguments raise both double-description and unit-of-prosecution claims, and we proceed to analyze each double jeopardy argument.

1.     Defendant’s felony-murder and second-degree-murder convictions

{27} Defendant argues that double jeopardy was violated because his felony-murder
and second-degree-murder convictions both result from Randy’s killing. Because we
have concluded that Defendant’s felony-murder conviction must be vacated for a failure
of proof, Defendant’s argument is moot, and Defendant’s second-degree-murder
conviction stands.

2.     Defendant’s conviction for shooting at a dwelling
{28} Defendant argues that his conviction for shooting at a dwelling must be vacated
on double jeopardy grounds. Again, Defendant’s double jeopardy argument is moot
because we vacate Defendant’s conviction for shooting at a dwelling on the basis of
insufficient evidence.

3.     Defendant’s convictions for the aggravated batteries of Paul and Manuel

{29} Defendant argues that his two convictions for the aggravated battery of Manuel
(Count 4) and two convictions for the aggravated battery of Paul (Count 3), where each
count was charged in the alternative as aggravated battery with a deadly weapon and
aggravated battery resulting in great bodily harm, both result in multiple punishments in
violation of his double jeopardy rights. The State concedes that one aggravated battery
conviction per victim must be vacated.

{30} In State v. Cooper, this Court reviewed whether multiple convictions for a single
count of aggravated battery charged under multiple theories of the crime violated double
jeopardy. See 

, 

, 

. We held that the
defendant’s two convictions for one count of aggravated battery charged under two
theories—“battery with a deadly weapon and battery in a manner that could cause great
bodily harm”—constituted a violation of double jeopardy. 

 Therefore, the Court
vacated one of the defendant’s aggravated battery convictions. Id. ¶¶ 53, 63.

{31} Under the circumstances of this case, Cooper is on point. Defendant was
charged with two counts of attempt to commit deliberate first-degree murder, relating to
the shooting of Manuel and Paul, respectively. Each attempted murder count included
as alternatives two aggravated battery charges brought under theories of use of a
deadly weapon and resulting in great bodily injury. The jury was further instructed that it
could find Defendant guilty of the attempted murder of Manuel and of Paul, or
alternatively of the aggravated battery of each. The jury received separate instructions
for aggravated battery as to each victim, Manuel and Paul, under both theories: battery
with a deadly weapon and battery resulting in great bodily harm. The jury returned four
aggravated battery convictions against Defendant—two for the shooting of Manuel
under each of the two charged theories and two for the shooting of Paul under each of
the two charged theories. Because the indictment and jury instructions reflect that
Defendant was charged in Counts 3 and 4 with only one act of battering each of the two
victims—Manuel and Paul—under two theories of the crime, we conclude following
Cooper that one aggravated battery conviction per count must be vacated. See also
State v. Garcia, 

, 

, 

(determining that the defendant’s aggravated-battery and simple-battery convictions
arising from the same conduct violated his double jeopardy rights).

4.     Defendant’s conspiracy convictions

{32} Defendant argues that the State failed to establish the existence of distinct
conspiracies at trial, and as a result, three of his four conspiracy convictions must be
vacated. The State agrees.
{33} In State v. Gallegos, we concluded that based on “the text, history, and purpose
of our conspiracy statute . . . the Legislature established . . . a rebuttable presumption
that multiple crimes are the object of only one, overarching, conspiratorial agreement
subject to one, severe punishment set at the highest crime conspired to be committed.”

, 

, 

. “At trial, the state has an
opportunity to overcome the Legislature’s presumption of singularity, but doing so
requires the state to carry a heavy burden.” 

{34} In determining whether the State has overcome the Legislature’s presumption of
singularity and demonstrated the existence of more than one conspiracy, this Court has
adopted a multifactor totality of circumstances test used by federal courts. Id. ¶¶ 42, 56.
The factors used to determine the number of agreements where more than one
conspiracy is alleged include whether the alleged conspiracies (1) have the same
location, (2) overlap significantly in time, (3) involve the same or overlapping personnel,
(4) involve similar overt acts charged against the defendant, and (5) involve the
defendant performing a similar role. Id. ¶ 42. “While New Mexico law does not require
the existence of an overt act, our courts may still rely on this factor to help determine
whether a defendant entered into one or more conspiratorial agreements.” Id. ¶ 56 n.3.

{35} The jury returned four conspiracy convictions against Defendant arising from the
shooting: (1) conspiracy to commit aggravated battery (great bodily harm), as charged
in Count 5, (2) conspiracy to commit aggravated battery (deadly weapon), charged as
an alternate in Count 5, (3) conspiracy to commit aggravated assault (deadly weapon),
as charged in Count 8, and (4) conspiracy to commit shooting at a dwelling (great bodily
harm), as charged in Count 11. However, because we have already concluded that the
evidence fails to prove a conspiracy to shoot at a dwelling, we limit our discussion to the
remaining three conspiracy convictions. Applying the totality of circumstances test, we
conclude that the evidence at trial established the existence of only one conspiracy.
First, the location and time of the alleged conspiracies were the same, and they
overlapped temporally. The direct and circumstantial evidence showed that the
agreement to shoot at the Rael family was formed between Defendant and his
companions while they were on the way to the Raels’ home or during the verbal
exchange that preceded the exchange of gunfire. See State v. Trujillo, 2002-NMSC-
005, ¶ 62, 

, 

 (“The agreement [necessary to establish
conspiracy] may be established by circumstantial evidence.”). Second, the personnel
involved in the several charged conspiracies, Defendant and his two companions, were
the same. Finally, the overt acts and Defendant’s role in the several charged
conspiracies were the same. Specifically, Defendant’s role in the charged conspiracies
was to call the Raels outside and shoot at them.

{36} Because Defendant’s actions were all part of one, overarching conspiratorial
agreement, Defendant’s multiple conspiracy convictions violate double jeopardy.
Because the highest crime conspired to be committed was aggravated battery, this
conspiracy conviction is affirmed. Compare NMSA 1978, § 30-3-5(C) (1969) (“Whoever
commits aggravated battery inflicting great bodily harm or does so with a deadly
weapon . . . is guilty of a third degree felony.”) with NMSA 1978, § 30-3-2 (1963)
(“Whoever commits aggravated assault is guilty of a fourth degree felony.”).

5.     Defendant’s aggravated-battery and aggravated-assault convictions

{37} Defendant argues that his aggravated-assault convictions (Counts 6 and 7) must
be vacated on double jeopardy grounds because they are subsumed in his aggravated-battery convictions (Counts 3 and 4). The State responds that “[b]ecause Defendant’s
aggravated-assault convictions and aggravated-battery convictions are not based on
unitary conduct, they do not result in a double jeopardy violation.” We agree with the
State.

{38} The double jeopardy analysis for double-description cases applies to this
argument because Defendant’s aggravated-assault and aggravated-battery convictions
arise under different statutes. “In reviewing a double-description double jeopardy
challenge, . . . we must first determine whether the defendant’s conduct was unitary,
requiring an analysis of whether or not a defendant’s acts are separated by sufficient
‘indicia of distinctness’.” State v. Torres, 

, 

 (citation
omitted). “If the conduct is not unitary, then there is no double jeopardy violation.” 

 “If
the conduct is unitary, we must determine whether the Legislature intended multiple
punishments for the unitary action.” 

{39} “Conduct is unitary when not sufficiently separated by time or place, and the
object and result or quality and nature of the acts cannot be distinguished.” State v.
Silvas, 

, 

. In considering whether conduct is unitary,
the courts “have looked for an identifiable point at which one of the charged crimes had
been completed and the other not yet committed.” State v. DeGraff, 

, 

, 

. The courts have also “looked for an event that
intervened between” the crimes at issue, distinguishing the crimes from one another. 

{40} The evidence at trial was that Defendant and his companions drew and pointed
their guns at the Raels after the argument involving Defendant, his two companions,
and the Raels began. The men argued and yelled at one another, and Defendant and
his companions continued to point their guns at the Raels until they heard the sound of
a siren. At that point, Defendant and his companions lowered their guns to their sides,
and everyone stopped arguing. After the passing of the vehicle with the siren, which
turned out to be an ambulance and not a police car, one of Defendant’s companions
moved onto the Raels’ porch, and the violence between the two groups ensued,
culminating in the injuries to Paul and Manuel.

{41} Defendant argues that the conduct underlying his aggravated-assault and
aggravated-battery convictions was unitary. He contends that “the pointing of the
firearms occurred in the same place as the firing of them and occurred within a matter of
seconds or, at most, minutes. Moreover, the nature and quality of the alleged acts
demonstrate that they are necessarily related: pointing guns at the targets was an
essential antecedent to firing them at the targets.”
{42} The State responds, and we agree, that “[a]fter lowering their guns at the sound
of a siren, Defendant and his companions had an opportunity to walk away, having
made their threats without harming anyone. But they chose, instead, to do more.” The
passing siren and subsequent brief moment of repose stand as identifiable points
marking the completion of the assaults (the initial pointing of guns) and the forthcoming
batteries. Once the ambulance passed, Defendant and his companions again raised
their guns in a second, distinct act of aggression before firing at Paul and Manuel.
Under these circumstances, the conduct underlying Defendant’s aggravated-assault
convictions and the conduct underlying his aggravated-battery convictions were
separated by sufficient indicia of distinctness. Because Defendant’s conduct was not
unitary, there is no double jeopardy violation in Defendant’s aggravated-battery and
aggravated-assault convictions. See Torres, 

 (“If the conduct is
not unitary, then there is no double jeopardy violation.”).

6.     Defendant’s sentence enhancements for using a firearm in committing
       aggravated battery and aggravated assault

{43} Defendant argues that “aggravation” of the sentences for his assault and battery
“charges based upon the presence of a firearm” results in double jeopardy, “requiring
that the firearm enhancements be vacated.” The State responds that this Court recently
rejected this argument in State v. Baroz, 

, 

. We agree. In
Baroz, the Court held,

              The legislative policy behind the firearm sentence enhancement[,
       NMSA 1978, § 31-18-16(A) (1993),] is that a noncapital felony, committed
       with a firearm, should be subject to greater punishment than a noncapital
       felony committed without a firearm because it is more reprehensible. The
       very nature of a firearm enhancement is to require the sentencing judge to
       increase or enhance the basic sentence that applies to the crime. By
       enacting the enhancement, the Legislature intended to authorize greater
       punishment for noncapital felonies committed with a firearm. We conclude
       the Legislature intended to authorize an enhanced punishment when a
       firearm is used in the commission of aggravated assault. The sentence
       enhancement does not run afoul of double jeopardy[.]

Id. ¶ 27 (footnote omitted). Similarly, following Baroz in State v. Branch, the Court of
Appeals concluded that the sentences for the defendant’s aggravated-assault and
aggravated-battery convictions, which were each increased by the firearm
enhancement, did not violate double jeopardy. See 

, ¶¶ 32-34, 

.

{44} Baroz and Branch are directly applicable here. The basic sentences of three
years for Defendant’s third-degree aggravated-battery conviction and eighteen months
for his fourth-degree aggravated-assault conviction, see NMSA 1978, § 31-18-15(A)(9)-
(10) (2007), were each increased by one year, to four years and to thirty months
respectively, consistent with the firearm enhancement statute, § 31-18-16(A). Because
the Legislature intended to authorize an enhanced punishment when a firearm is used
in the commission of aggravated assault and aggravated battery, the firearm
enhancement of the sentences for these convictions did not violate double jeopardy.

C.     The district court ruling when the State elicited testimony about
       Defendant’s affiliation with the Black Berets Motorcycle Club

{45} Finally, Defendant argues that the district court erred in failing to declare a
mistrial when the State elicited testimony regarding the motorcycle club with which
Defendant and his companions were affiliated, in violation of the district court’s pretrial
ruling. The State responds that “[t]he prosecutor’s questions were permissible under the
doctrine of curative admissibility and, therefore, did not amount to prosecutorial
misconduct.” Further, the State asserts that the district court’s “curative instruction was
sufficient to prevent prejudice from the prosecutor’s questioning.” We agree with the
State.

{46} We review the district court’s evidentiary rulings for an abuse of discretion. State
v. Rojo, 

, 

, 

. Further, the appellate
courts “review the denial of [a d]efendant’s motion for mistrial based on prosecutorial
misconduct for an abuse of discretion.” State v. Sena, 

, ¶ 7, 

. “An abuse of discretion occurs when the ruling is clearly against the logic and
effect of the facts and circumstances of the case. We cannot say the trial court abused
its discretion by its ruling unless we can characterize it as clearly untenable or not
justified by reason.” Rojo, 

 (internal quotation marks and citation
omitted).

{47} If the district court determines that a prosecutor’s comment or questioning of a
witness “is substantially likely to cause a miscarriage of justice, the judge should grant a
defendant’s motion for a mistrial.” See State v. Reynolds, 

, ¶ 12, 

, 

. However, when a defendant gives testimony “that ‘opens the
door’ to inadmissible evidence, the doctrine of curative admissibility in some
circumstances may permit the State to rebut that claim with otherwise inadmissible
evidence.” State v. Tollardo, 

, 

.

{48} For example, in State v. Andrade, where the defendant physically attacked the
victim while committing aggravated burglary, the district court granted the defendant’s
motion to exclude evidence of his prior arrests for battery and shoplifting pursuant to
Rule 11-404 NMRA (1993). See 

, 

, 

. In her cross-examination by the defense, the victim testified about the defendant’s
prior arrests for battery and shoplifting. Id. ¶ 14. When the defendant subsequently took
the stand on his own behalf, he testified that during his relationship with the victim, she
often beat him and forced him to shoplift for her. Id. ¶ 17. On cross-examination of the
defendant, the prosecutor asked the defendant about his history of shoplifting and prior
arrests for battery. Id. ¶ 21. The Court of Appeals determined that no prosecutorial
misconduct occurred as a result of the prosecutor’s cross-examination of the defendant
because the defendant’s testimony opened the door to the prosecutor’s questioning. Id.
¶ 21. The Court reasoned that “[g]iven that [the d]efendant opened the door regarding
prior violent episodes between [the d]efendant and [the v]ictim, he cannot complain that
the State questioned him regarding who really beat whom. Such responsive evidence is
admissible under the doctrine of curative admissibility[.]” Id. Therefore, the Court
concluded, although the evidence concerning the defendant’s prior arrests for
shoplifting and battery had initially been excluded, when the defendant “contended on
direct examination that he was shoplifting to satisfy [the v]ictim’s demands, the State
could properly pursue cross-examination” to rebut the defendant’s statements. Id.

{49} Prior to trial in this case, the State filed notice of intent to introduce other acts
evidence under Rule 11-404(B). In pertinent part, the State sought to introduce
evidence that Defendant was affiliated with the Black Berets Motorcycle Gang. The
State asserted that

       Defendant has affiliations with the Black Beret’s Motorcycle Gang. He was
       allegedly stripped of his membership for trafficking narcotics.
       Simultaneously, a group of “rogue” Black Beret members had become
       increasingly violent and had originated by an agreement that each of
       these members in this “rogue” crew were willing to commit murder for the
       club. Two of these “rogue” members are co-Defendants Ricardo Romero,
       and David Ulibarri. . . . This information is relevant to show that the
       Defendant knew his co-defendant’s would resort to deadly violence on
       Defendant’s behalf, and that they acted in concert on February 1, 201[5]
       when they came to the Rael house to shoot the victims.

The district court addressed the admissibility of this evidence on the first day of trial.
The State argued concerning the proffered evidence as follows: “I think it’s important to
the conspiracy charge that Mr. Comitz knows if he brings these two guys, they’re, you
know, they’re brothers. That means something, that they would fight on behalf of Mr.
Comitz. And I think that’s pertinent to the conspiracy charges in this case.” Defense
counsel objected to the State being able to reference the group with which Defendant
and his companions were affiliated as a “motorcycle club.” The district court ruled that
the State could reference the affiliation as with a “club” but not a “motorcycle club,”
which would tend to reinforce the inference the State sought to elicit—that Defendant
and his companions “have this brotherhood going on.”

{50} At trial, when defense counsel asked Defendant whether he was “a member of
any clubs or groups[,]” Defendant answered that he was a member of the “Black
B[e]rets Motorcycle Club.” Defendant proceeded to describe the club as a support club
for POW/MIA veterans that raises money for “toys and stuff” for veterans’ families.
Defendant also testified that the two men who accompanied him to the Raels’ home on
the day of the shooting were also part of that club.

{51} The prosecutor asked on cross-examination whether the Black Berets are a
motorcycle gang, to which Defendant responded, “No.” The prosecutor proceeded by
saying, “You’re telling me that the Black B[e]rets are not affiliated with the Banditos
organized motorcycle gang?” Again, Defendant answered, “No.” Defendant further
testified that he was still a member of the Black Berets, and in response the prosecutor
asked, “It’s not true that you were kicked out of that club for selling methamphetamine?”
Defense counsel objected and requested a mistrial based on the district court’s pretrial
ruling, which the district court denied. However, in response to the objection, the district
court instructed the jury that “[t]he last question asked by the State and the answer
given by the witness will be stricken. I ask you to disregard it and do not consider it in
your deliberations[.]”

{52} Under the circumstances, we conclude that the district court did not abuse its
discretion in denying Defendant’s motion for a mistrial based on the prosecutor’s cross-examination of Defendant. Similar to Andrade, when Defendant testified on direct
examination that he was part of the Black Berets Motorcycle Club and that it was a
charitable club, he opened the door to cross-examination on these issues under the
doctrine of curative admissibility. Assuming the prosecutor’s specific question to
Defendant about whether he was kicked out of the Black Berets for selling
methamphetamine was improper, the district court effectively addressed the potential of
prejudice to Defendant by instructing the jury to disregard the question and Defendant’s
answer. See State v. Smith, 

, 

 (“An error committed
by admitting inadmissible evidence is generally cured by a ruling of the court striking the
evidence and admonishing the jury to disregard such evidence.”). Accordingly, we
conclude that the district court did not abuse its discretion in denying Defendant’s
motion for a mistrial.

III.   CONCLUSION

{53} We affirm Defendant’s convictions of second-degree murder under Count 1, one
count of aggravated battery under Count 3 (Paul), one count of aggravated battery
under Count 4 (Manuel), one count of conspiracy to commit aggravated battery under
Count 5, one count of aggravated assault under Count 6 (Paul), one count of
aggravated assault under Count 7 (Manuel), and one count of child abuse under Count
9, together with the associated firearm enhancements as decided by the jury. We
vacate Defendant’s other convictions. We remand this case to the district court for
further proceedings in accordance with this opinion.

{54}   IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

BARBARA J. VIGIL, Justice
PETRA JIMENEZ MAES, Justice, Retired
Sitting by designation

CHARLES W. DANIELS, Justice, Retired
Sitting by designation