State v. Jackson

                                                          Office of the Director        New Mexico
                                                           10:05:08 2020.08.05          Compilation
                                                                         '00'06-        Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: February 26, 2020

No. A-1-CA-36400

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

JOSHUA JACKSON,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Drew D. Tatum, District Judge

Certiorari Denied, June 9, 2020, No. S-1-SC-38203. Released for Publication August
11, 2020.

Hector H. Balderas, Attorney General
Santa Fe, NM
Meryl E. Francolini, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

MEDINA, Judge.

{1}    Defendant Joshua Jackson appeals his convictions for kidnapping with intent to
commit a sexual offense, contrary to NMSA 1978, Section 30-4-1(A) (2003); two counts
of criminal sexual penetration in the second degree (in the commission of a felony)
(CSP II), contrary to NMSA 1978, Section 30-9-11(E)(5) (2009), two counts of felony
aggravated battery against a household member, contrary to NMSA 1978, Section 30-3-
16(C) (2008, amended 2018), 1 criminal sexual contact (CSC) with a deadly weapon,
contrary to NMSA 1978, Section 30-9-12(C) (1993), and misdemeanor aggravated
battery against a household member, contrary to Section 30-3-16(B). Defendant argues
that his convictions should be vacated because the State failed to join the instant case
with a previous case, in violation of our compulsory joinder rule. Defendant also
challenges his convictions on the basis of double jeopardy, ineffective assistance of
counsel, and sufficiency of the evidence. We hold that Defendant waived his
compulsory joinder claim by failing to raise the issue before his second trial. We further
hold that (1) Defendant’s convictions did not violate double jeopardy, (2) Defendant
failed to establish a prima facie case for ineffective assistance of counsel, and (3)
Defendant failed to develop his sufficiency argument. Accordingly, we affirm.

BACKGROUND

{2}    Defendant was charged in two separate cases based on events that occurred
between Defendant and his former girlfriend (Victim) on April 4, 2015 and April 10,
2015. The first case, State v. Jackson, Ninth Judicial District Court Case No. D-905-CR-
2015-00136 (Jackson I), was filed on May 4, 2015, and charged Defendant with
kidnapping with intent to inflict physical injury and battery against a household member
based upon the April 10, 2015 events. The second case, State v. Jackson, Ninth
Judicial District Court Case No. D-905-CR-2015-00135 (Jackson II), was also filed on
May 4, 2015—one minute before Jackson I—and charged Defendant with the crimes he
now appeals based on the April 4, 2015 events. Defendant was arraigned in both cases
at the same time on May 8, 2015. Following a jury trial in February 2016, Defendant
was convicted of both crimes as charged in Jackson I. One year later, Defendant was
found guilty of all crimes as charged in Jackson II. We provide the following outline of
Victim’s testimony given at Defendant’s trials, reserving discussion of additional facts
and testimony as necessary for our analysis.

Testimony from Jackson I

{3}    Victim testified that she was in a relationship with Defendant in April 2015, who
was living at her house “off and on.” On the afternoon of April 10, 2015, Defendant
called Victim and requested to come over to Victim’s house to collect some of his
belongings. When Defendant arrived, Defendant and Victim began arguing. At some
point during the argument, Defendant punched Victim in the ribs. Defendant then went
into the other room to collect his belongings, at which point Victim “took off running” out
the front door because she was afraid Defendant would continue to hit her. Defendant
ran after Victim and caught up with her in an alleyway, and Victim fell to the ground.
Defendant pulled Victim’s hair and dragged her back to the house by her arm.

{4}    Once back in the house, Defendant locked the door, stood in front of it, and told
Victim, “Stop being stupid. Don’t run out there. I’m not going to hit you.” When Victim
agreed to stay, Defendant went into the other room to collect his belongings. At that
point, Victim again “took off running” out the front door, screaming for help. Defendant

1All references shall be to the 2008 version of the statute.
again caught up with Victim, grabbed her, and began carrying her back to her house.
Victim grabbed a nearby telephone pole in an attempt to stop Defendant from taking her
back into the house. Defendant then bit Victim, prompting her to let go, and carried her
back to the house. Sometime later, when Defendant was in another room, Victim ran
out the front door for a third time, successfully escaping and alerting the authorities.

Testimony from Jackson II

{5}    Victim testified that on April 4, Victim and Defendant began arguing at a friend’s
house because Defendant wanted to smoke methamphetamine, whereas Victim did not.
The argument continued as Victim and Defendant returned to Victim’s house, where
things escalated. Defendant punched Victim in the face, prompting Victim to scream
and run toward the front door. Defendant chased after Victim, locked the front door, and
told the Victim “to go sit down.” Even though Victim did not want to, she sat down.
Defendant again struck Victim and told her to go into the bathroom. When Victim did not
obey, Defendant dragged Victim by her hair into the bathroom.

{6}     Once in the bathroom, Defendant “put all his weight” on Victim, pulled her pants
down, and inserted a stick into Victim’s anus. Defendant then tried to put a folding knife
in Victim’s vagina, cutting her in the process and causing her to bleed. At some point
during the struggle, Defendant forced Victim into the bathtub and scalded her with hot
water. When Victim tried to get out, Defendant stood in front of her and forced his penis
in Victim’s mouth. Victim bit Defendant’s penis, which prompted Defendant to punch her
again in her face—causing her tooth to go through her lip.

{7}    Victim did not report the incident until April 16—six days after she first spoke with
police regarding the April 10 incident. When asked why Victim did not report the incident
right away, Victim responded, “Because I was locked in the house with him. I couldn’t
go nowhere.” During cross-examination, defense counsel asked if Defendant ever left
the house on April 4, to which Victim responded, “He didn’t leave until that day I took off
running from him.” In response to defense counsel’s question asking Victim if she
smoked methamphetamine or drank before she reported the incident, Victim answered,
“No, I did not drink, I didn’t do nothing. I was just with him, like I couldn’t even leave my
house. Like we were just sitting in the house all day watching TV.” Defense counsel
then confirmed, “It’s your testimony that he didn’t leave the house at all over the next
ten days?” to which Victim appeared to respond affirmatively.

DISCUSSION

I.     Compulsory joinder

{8}   We begin by addressing Defendant’s argument that his convictions stemming
from Jackson II should be vacated because the State violated Rule 5-203(A) NMRA, our
compulsory joinder rule, by failing to join Jackson I and Jackson II. The State, in turn,
argues that Defendant waived his claim for compulsory joinder because he failed to
invoke Rule 5-203(A) below. Alternatively, the State argues that it was not required to
join Defendant’s charges because they stemmed from two separate incidents of distinct
nature. We conclude that Defendant waived his compulsory joinder claim by failing to
raise the issue before jeopardy attached in Jackson II, and that the failure to join did not
constitute fundamental error. In making these determinations, we need not address the
issue of whether Defendant’s charges should have been joined.

Standard of Review

{9}     “The proper interpretation of our Rules of Criminal Procedure is a question of law
that we review de novo.” Allen v. LeMaster, 

, 

.
“When construing our procedural rules, we use the same rules of construction
applicable to the interpretation of statutes.” State v. Aslin, 

, ___
P.3d ___ (internal quotation marks and citation omitted). “We begin by examining the
plain language of the rule as well as the context in which it was promulgated, including
the history of the rule and the object and purpose.” 

 (internal quotation marks and
citation omitted). “If the language of the [rule] is clear and unambiguous, we must give
effect to that language and refrain from further . . . interpretation.” State v. Wilson, 2010-
NMCA-018, ¶ 9, 

, 

 (internal quotation marks and citation
omitted). On the other hand, if the rule’s language is “doubtful, ambiguous, or an
adherence to the literal use of the words would lead to injustice, absurdity, or
contradiction,” we construe the rule “according to its obvious spirit or reason.” State v.
Padilla, 

, 

, 

 (internal quotation marks
and citation omitted).

A.     Compulsory Joinder and the Remedy of Dismissal

{10} “At common law, whether charges should be joined in the same indictment was a
matter of prudence and discretion which rested with the judges to exercise.” State v.
Gallegos, 

, 

, 

 (alteration, omission,
internal quotation marks, and citation omitted). Following the common law, our joinder
rule was originally discretionary. See NMSA 1953, § 41-23-10 (1972) (Vol. 6, 2d. Rep.,
1975 Pocket Supp.) (providing that “[t]wo . . . or more offenses may be joined”
(emphasis added)). In 1979, our Supreme Court exercised its supervisory powers to
change our joinder rule from permissive to mandatory, recognizing “that requiring
prosecutors to get their facts straight, their theories clearly in mind and trying all charges
together has the salutary effect of avoiding prejudice to the defendant[,]” as well as our
“distaste for piecemeal prosecutions.” Gallegos, 

 (alteration,
internal quotation marks, and citation omitted). As a result, our joinder rule, embodied in
Rule 5-203(A), now provides:

       Two or more offenses shall be joined in one complaint, indictment or
       information with each offense stated in a separate count, if the offenses,
       whether felonies or misdemeanors or both:

              (1)  are of the same or similar character, even if not part of a
       single scheme or plan; or
             (2)   are based on the same conduct or on a series of acts either
       connected together or constituting parts of a single scheme or plan.

(Emphasis added.)

{11} In State v. Gonzales, 

, 

, our Supreme Court first
answered the question of what was the proper remedy for the state’s failure to join
offenses under Rule 5-203(A). In Gonzales, the defendant drove while intoxicated and
crashed her vehicle, killing a child in another vehicle. 

, ¶ 1. The state
charged the defendant with, among other things, intentional and negligent child
abuse. Id. ¶ 2. Prior to trial, the district court asked the state why it did not charge
vehicular homicide in the alternative to the child abuse charges. State v. Gonzales,

, 

, 

, aff’d on other grounds, 2013-
NMSC-016, ¶ 5. The prosecutor could not answer the question at first, “adding only that
she wished they had charged the alternative vehicular homicide just to be safe.”
Gonzales, 

 (alteration and internal quotation marks omitted).
Nonetheless, the prosecutor went on to state that “[the] decision to charge [the
d]efendant only with child abuse and not vehicular homicide was intentionally
undertaken as an exercise of [the state’s] discretion.” Gonzales, 

.
Thus, at no point did the state pursue vehicular homicide charges against the
defendant. 

 The defendant was eventually convicted of negligent child abuse and
appealed. See id. ¶ 7.

{12} On appeal, this Court reversed the conviction for lack of substantial evidence that
“[the d]efendant’s behavior endangered a particular child that was foreseeable at the
time of the accident.” Id. ¶ 32. We further held that principles of double jeopardy barred
the state from prosecuting the defendant for vehicular homicide. Id. ¶ 33. On certiorari,
our Supreme Court affirmed the determination that the State was barred from bringing a
new charge of vehicular homicide. See Gonzales, 

. However, the
Court based its holding on Rule 5-203(A) rather than double jeopardy. Gonzales, 2013-
NMSC-016, ¶¶ 26, 34. Acknowledging that it was raising the rule sua sponte, the Court
observed that double jeopardy and compulsory joinder are “two sides of the same coin.
Joinder is designed to protect a defendant’s double[ ]jeopardy interests where the state
initially declines to prosecute him for the present offense, electing to proceed on
different charges stemming from the same criminal episode.” Id. ¶ 26 (alteration, internal
quotation marks, and citation omitted). The Court further observed, “The purpose of a
compulsory joinder [rule], viewed as a whole, is twofold: (1) to protect a defendant from
the governmental harassment of being subjected to successive trials for offenses
stemming from the same criminal episode; and (2) to ensure finality without unduly
burdening the judicial process by repetitious litigation.” Id. (alteration, internal quotation
marks, and citation omitted).

{13} Examining Rule 5-203(A), the Court emphasized, “Our rules of criminal
procedure require that similar offenses be joined in one prosecution and not be brought
piecemeal by way of sequential trials. . . . The rule is mandatory; it is not a discretionary
or permissive rule; it demands that the [s]tate join certain charges.” Gonzales, 2013-
NMSC-016, ¶ 25 (internal quotation marks and citation omitted). Applying Rule 5-203(A)
to the facts of the case, the Court held that vehicular homicide and child abuse were
“two crimes based on the same conduct—[the d]efendant’s intoxicated driving resulting
in death to the victim[.]” Gonzales, 

 (internal quotation marks
omitted); see Rule 5-203(A)(2). Accordingly, the Court concluded that “[t]he [s]tate had
no choice but to join these two offenses in one complaint, indictment or information, if it
wanted to pursue them both.” Id.; see Rule 5-203(A).

{14} In considering the proper remedy for the state’s failure to join the defendant’s
charges, the Court observed,

       [w]hile the rule does not specify a remedy, we clearly intended that the
       rule have force. It would make little sense to have a mandatory rule with
       no method of enforcement; we would render it merely permissive. A bar
       against a subsequent prosecution on charges that should have been
       joined under Rule 5-203(A) is the only effective remedy to enforce the
       mandatory nature of the rule.

Gonzales, 

. The Court went on to examine the state’s actions,
noting, “[t]his is not a case in which the charge the [s]tate now seeks to bring, vehicular
homicide, was unknown at the time [the d]efendant was indicted.” Id. ¶ 32. Rather, the
State made deliberate, knowing decisions not to join the vehicular homicide to the
pending child abuse charge, electing to pursue an “all-or-nothing trial strategy”—a
strategy which the Court noted had a potentially “coercive effect” on jury
deliberations. Id. ¶¶ 32-33 (internal quotation marks and citation omitted). In light of this,
the Court determined that the state’s failure to join the vehicular homicide charge in the
first proceeding barred any subsequent prosecution for vehicular homicide. Id. ¶ 34.

B.     Defendant Waived His Claim to Compulsory Joinder

{15} Unlike some other jurisdictions’ compulsory joinder rules, Rule 5-203(A) is silent
as to whether the defendant may waive his right to have charges joined under the rule.
Compare, e.g., W. Va. R. Crim. P. 8(a)(2) (1996) (“Any offense required by this rule to
be prosecuted by a separate count in a single prosecution cannot be subsequently
prosecuted unless waived by the defendant.” (emphasis added)), with Rule 5-203(A).
Although our courts have previously determined that a defendant may waive an
improper joinder claim under Rule 5-203(A) by not raising the issue prior to trial, see
State v. Paiz, 

, 

, 

, whether a
defendant can waive a failure to join claim by failing to request joinder appears to be an
issue of first impression. Finding no New Mexico law on point, we turn to other
jurisdictions with compulsory joinder rules for guidance.

{16} People v. Bossert, 

 (Colo. 1986) (en banc) is particularly instructive.
At the time Bossert was decided, Colorado had a compulsory joinder rule providing:
         If several offenses are known to the district attorney at the time of
         commencing the prosecution and were committed within his judicial
         district, all such offenses upon which the district attorney elects to proceed
         must be prosecuted by separate counts in a single prosecution if they are
         based on the same act or series of acts arising from the same criminal
         episode. Any such offense not thus joined by separate count cannot
         thereafter be the basis of a subsequent prosecution.

 (citation omitted)). 2 In Bossert, the state filed three cases against the
defendant, two of which were tried together. 

. In November 1981 the state
brought the first case charging the defendant with a single count of unlawful possession
of an altered motor vehicle part. 

. One month later, the state brought a
separate case charging the defendant with another count of unlawful possession of an
altered motor vehicle part. 

. One year later, the state brought a third case
charging the defendant with three counts of felony theft by receiving and four counts of
unlawful possession of altered motor vehicle parts. 

. The first case proceeded
to trial in May 1983, resulting in the defendant’s conviction for the one count of unlawful
possession. 

. The latter two cases were tried jointly seven months later,
resulting in a mixed verdict. 

.

{17} Defendant appealed his convictions from all three cases, challenging the
constitutionality of his unlawful possession charges. 

. While the defendant’s
appeals were pending, the Colorado Supreme Court granted the defendant’s motion for
limited remand to the trial court to permit him to file a motion to dismiss one of the lattertried cases because the prosecution failed to join that case with the first. 

.
Following the trial court’s determination on remand that the state violated the
compulsory joinder rule, the Colorado Supreme Court, sitting en banc, determined that
despite the joinder rule’s mandatory language and the absence of a provision
concerning waiver, the defendant waived his claim to compulsory joinder because he
failed to raise the issue before the second trial. 

.

{18} In arriving at this conclusion, the court noted, “Although the constitutional
proscriptions against double jeopardy form the basis of the compulsory joinder rule, the
rule is broader than the constitutional limitation. . . . Compulsory joinder is designed to
protect the accused against the oppressive effect of sequential prosecutions and to
conserve judicial and legal resources that otherwise would be wasted[.]” 

(omission, internal quotation marks, and citations omitted). The court acknowledged that
dismissal for failure to join was proper in cases where the defendant raises the issue
prior to the beginning of the second trial because it “further[ed] the goals of compulsory
joinder[.]” 

 Nonetheless, the court reasoned, “where . . . the defendant does not raise
the issue of joinder until well after the conclusion of the second trial, neither of the public


2Colorado’s compulsory joinder rule and statute have since been amended to expressly provide that a defendant
waives his or her right to compulsory joinder by failing to object prior to the time jeopardy attaches in the first trial
if the defendant (or his or her counsel) knows of additional pending prosecutions required to be joined at the time.
See 

(e)(2) (2000); Colo. R. Crim. P. 8(a)(1) (2003).
policy reasons for the compulsory joinder rule would be served [by dismissal]—the
harm, if any, has occurred.” 

{19} The court went on to speculate that the defendant determined that it was
“strategically preferable to keep the single charge in [the first trial] separate rather than
risk the consequences of jury knowledge of the other eleven counts in [the combined
second trial].” Id. at 1012. Nonetheless, the court found the defendant’s reasons
irrelevant and concluded that its compulsory joinder rule “imposed no jurisdictional bar
to the defendant’s conviction in . . . the second trial.” Id. Taking note of the American
Bar Association Standards for Criminal Justice’s recommendation that “[a] defendant
who has been tried for one offense may thereafter move to dismiss any additional
offense based upon the same conduct or the same criminal episode. . . . The motion to
dismiss must be made prior to the second trial[,]” id. at 1012 n.23 (emphasis added)
(internal quotation marks and citation omitted), the court concluded the defendant
waived his claim to compulsory joinder because he failed to raise the issue “prior to the
time at which jeopardy attache[d] in the second prosecution[.]” Id. at 1012.

{20} Cases from other jurisdictions with compulsory joinder rules without explicit
waiver provisions reveal similar results. See, e.g., State v. Soule, 

,

 (holding that the defendant waived the protections of the
compulsory joinder rule when he failed to object to proceeding to a second trial on
charges arising out of the same criminal episode); Commonwealth v. Green, 

 (Pa. Super. Ct. 1975) (“It is apparent that a defendant who is aware of the
charges against him can thus waive his statutory right to have them all brought in a
single prosecution. . . . The intent of the statute to avoid magnifying an incident of
criminal behavior out of proportion, both in terms of hardship to the individual and
prejudice to his case, is not lost when an informed defendant chooses of his own to go
the route of multiple trials.”).

{21} We are persuaded by the logic of Bossert and these other jurisdictions. Like
these jurisdiction’s joinder rules, Rule 5-203(A) contains mandatory language and does
not include a provision concerning waiver by the defendant. Compare, e.g., 

(2), with Rule 5-203(A). Likewise, the purpose of our rule is to protect
defendants from being subjected to successive trials for offenses stemming from the
same criminal episode, as well as avoid unduly burdening the judicial process by
repetitious litigation. See Gonzales, 

. These policies are not
furthered, however, when the defendant does not raise the issue of joinder until after the
second trial has taken place because “the harm, if any, has [already] occurred.” Bossert,

. Accordingly, we hold that Defendant waived his right to have the
charges joined under Rule 5-203(A) by failing to raise the issue before jeopardy
attached in Jackson II. 3



3Because Defendant did not raise the issue of joinder at any point during the proceedings below, we leave open
the question of whether a defendant who has knowledge of other pending charges waives his rights under Rule 5-
203(A) if he fails to request joinder before jeopardy attaches in the first trial.
{22} Relying on Gonzales, Defendant nevertheless contends that review is proper
here “in the same way that double jeopardy challenges can be brought for the first time
on appeal.” Defendant’s reliance is misplaced. Although compulsory joinder and double
jeopardy are closely related, see Gonzales, 

, the right to joinder
under Rule 5-203(A) is not the same as the constitutional guarantee to be free from
double jeopardy. See Bossert, 

 (“Although the constitutional
proscriptions against double jeopardy form the basis of the compulsory joinder rule, the
rule is broader than the constitutional limitation[.]” (citation omitted)). The double
jeopardy clause protects against successive prosecutions for the same offense. See
State v. Silvas, 

, 

 (“Double jeopardy protects against
multiple punishments for the same offense.”). The double jeopardy clause does not,
however, require the State to join in a single proceeding all charges of “same or similar
character” or “based on the same conduct or on a series of acts either connected
together or constituting parts of a single scheme or plan.” Rule 5-203(A); see United
States v. Sessa, 

 (2d Cir. 1997) (stating that “the [d]ouble [j]eopardy
[c]lause neither forbids successive prosecutions for different offenses nor requires the
government to join all possible charges arising from a course of conduct in a single
indictment”); Lowery v. Estelle, 

 (5th Cir. 1983) (“The double jeopardy
clause does not require the state to join in a single criminal proceeding all charges
arising from one criminal episode[.]”).

{23} Moreover, we do not believe Gonzales compels this Court to dismiss Defendant’s
charges stemming from Jackson II, as Gonzales arose out of an entirely different
procedural posture. There, the state declined to charge the defendant with the vehicular
homicide charge and only decided to pursue the charge after trying and losing on the
child abuse charge on appeal. See Gonzales, 

. In contrast, the
State, here, filed all of the charges against Defendant at the same time. Accordingly,
this case—unlike Gonzales—does not fall squarely within the scenario against which
Rule 5-203(A) is intended to protect (i.e., “where the state initially declines to prosecute
[a defendant] for the present offense, electing to proceed on different charges stemming
from the same criminal episode”). Gonzales, 

 (alteration, internal
quotation marks, and citation omitted). Additionally, Gonzales is distinguishable in that
the defendant in that case complained that a subsequent trial for vehicular homicide
would violate her double jeopardy rights before any additional trial took place, whereas
here, Defendant failed to raise the issue until well after the second trial had completed.
See Gonzales, 

.

C.     Failure to Join Did Not Constitute Fundamental Error

{24} Defendant argues that even if he was required to raise the issue of joinder below,
the State’s failure to join Jackson I and Jackson II constituted fundamental error
because it allowed the State to “paint[] two very different versions of what supposedly
happened between [Defendant] and [Victim] between April 4, 2015 and April 10, 2015—
without ever having to reconcile the inconsistencies . . . [or] commit to one theory of
what happened that week[.]” See State v. Turner, 

, 

(“The doctrine of fundamental error applies only under exceptional circumstances and
only to prevent a miscarriage of justice. Fundamental error must go to the foundation of
the case or take from the defendant a right which was essential to his defense and
which no court could or ought to permit him to waive.” (internal quotation marks and
citations omitted)). In support of his argument, Defendant points to several
inconsistencies in Victim’s testimony in Jackson I and Jackson II as to how long she
was confined in her house following the April 4 incident, thus calling into question
whether Defendant was only guilty of one continuing kidnapping. As we discuss below,
however, there was substantial evidence of two separate kidnappings, despite any
inconsistencies in Victim’s testimony, and therefore, Defendant’s right to be free from
double jeopardy was not violated.

{25} Defendant also points out that Victim’s mother testified in Jackson I that she saw
Victim the day before the April 10 incident and did not notice any injuries at that time,
and that there was no evidence that Victim had the injuries she sustained in the April 4
incident when she went to the hospital following the April 10 incident. Yet, Defendant
fails to explain—nor do we see—how these inconsistencies rise to the level of
fundamental error. See State v. Salas, 

, 

, 

 (stating that it is for the jury to resolve conflicts in the evidence and determine
where the weight and credibility lie). Nor does Defendant explain how he could not point
out these inconsistencies in Jackson II by calling Victim’s mother as a witness or
reviewing Victim’s medical treatment following the attacks. We, therefore, do not
address this argument any further. See State v. Guerra, 

, 

 (explaining that appellate courts are under no obligation to review unclear or
undeveloped arguments); State v. Astorga, 

, 

 (“The
burden of demonstrating fundamental error is on the party alleging it, and the standard
of review for reversal for fundamental error is an exacting one.” (internal quotation
marks and citations omitted)). Accordingly, Defendant has failed to demonstrate
fundamental error (if there was any error at all) in not joining the charges in Jackson I
and Jackson II.

II.    Double Jeopardy

{26} Defendant next raises several double jeopardy arguments. First, Defendant
raises a “unit of prosecution” claim, arguing that his two convictions for kidnapping in
Jackson I and Jackson II violate his right to be free from double jeopardy. Second,
Defendant raises two “double description” claims, arguing that his convictions in
Jackson II for kidnapping and CSP II, as well as his convictions for CSC and aggravated
battery violate double jeopardy. We address each argument in turn.

Standard of Review

{27} Double jeopardy protects against multiple punishments for the same offense.
See Swafford v. State, 

, ¶¶ 7-8, 

, 

. “Multiple
punishment problems can arise from both ‘double[]description’ claims, in which a single
act results in multiple charges under different criminal statutes, and
‘unit[]of[]prosecution’ claims, in which an individual is convicted of multiple violations of
the same criminal statute.” State v. Bernal, 

, 

, 

. Appellate courts “generally review double jeopardy claims de novo.” State v.
Rodriguez, 

, 

, 

. “However, where factual
issues are intertwined with the double jeopardy analysis, we review the [district] court’s
fact determinations under a deferential substantial evidence standard of review.” 

Under such circumstances, “we view the evidence in the light most favorable to the
verdict and resolve all conflicts and indulge all inferences in favor of upholding the
verdict.” State v. McClendon, 

, 

, 

.

A.     Unit of Prosecution Claim

{28} Defendant first claims that his convictions for kidnapping in Jackson I and
Jackson II violate double jeopardy because there was only evidence of a single,
continuing kidnapping. Conversely, the State contends that Victim’s testimony from both
cases established two separate kidnappings. Although Victim’s testimony in the two
cases appeared inconsistent at one point, we conclude that there was sufficient
evidence of two distinct kidnappings such that Defendant’s kidnapping convictions do
not violate double jeopardy.

{29} Because we are examining multiple convictions under the same statute, we apply
a unit of prosecution analysis, which consists of a two-step inquiry to discern “whether
the [L]egislature intended punishment for the entire course of conduct or for each
discrete act.” Swafford, 

, ¶ 8. In order to do this, we first “analyze the
statute to determine whether the Legislature has defined the unit of prosecution and, if
the statute spells out the unit of prosecution, then the court follows that language and
the inquiry is complete.” State v. Olsson, 

, 

. If the
unit of prosecution is not clear, we proceed to the second step to “determine whether
[the] defendant’s acts are separated by sufficient indicia of distinctness to justify multiple
punishments.” State v. Swick, 

, 

 (internal quotation
marks and citation omitted). In making this determination, we look at a number of
factors, including: “(1) temporal proximity of the acts; (2) location of the victim(s) during
each act; (3) existence of an intervening event; (4) sequencing of acts; (5) [the]
defendant’s intent as evidenced by his conduct and utterances; and (6) the number of
victims.” State v. Demongey, 

, 

, 

(internal quotation marks and citation omitted). Although this Court has previously
stated that “the unit of prosecution [for kidnapping] is clear: a kidnapping begins when
the victim is initially confined and ends when the victim is released[,]” we have found it
necessary to proceed to the second step of analysis to “determine if the confinement
was continuous or if there were individual instances of confinement that were separated
by sufficient indicia of distinctness[.]” State v. Dombos, 

, 

, 

.

{30} Defendant claims that there was only evidence of a single, continuing kidnapping
between April 4 and April 10, not two discrete kidnappings occurring on each of those
dates. In support of this argument, Defendant appears to rely on Victim’s testimony
given during cross-examination in Jackson II, in which Victim testified that she could not
leave her house following the April 4 incident, as well as Victim’s apparent confirmation
during cross-examination that “[it was her] testimony that [Defendant] didn’t leave the
house at all over the next ten days [following the April 4 incident.]”

{31} While Victim’s confirmation on cross-examination in Jackson II that Defendant
did not leave her house for the ten days following the April 4 incident was inconsistent
with Victim’s testimony in Jackson I that Defendant came over to her house on April 10,
our review requires us to “resolve all conflicts and indulge all inferences in favor of
upholding the verdict.” McClendon, 

; see State v. Urioste, 2011-
NMCA-121, ¶ 19, 

 (“Our primary concern is to ensure that each act
supporting [a d]efendant’s separate convictions was supported by sufficient evidence.”).
Resolving this conflict in Victim’s testimony in favor of upholding the verdicts, we
conclude that Victim’s testimony from both Jackson I and Jackson II, as a whole,
reveals sufficient evidence of two separate kidnappings.

{32} Although Victim’s testimony regarding what happened between April 4 and April
10 was sparse, Victim testified in Jackson I that Defendant called her on April 10 and
requested to come over to her house to collect some of his belongings. It thus stands to
reason that Defendant had left Victim’s house some time before April 10. Otherwise, he
would not have needed to call Victim. It similarly stands to reason that Defendant
terminated his intent to restrain Victim by freeing her before April 10, given that he
requested permission from her to come over. Additionally, when defense counsel asked
Victim in Jackson II if Defendant ever left the house on April 4, she responded, “He
didn’t leave until that day I took off running from him[,]”suggesting that Defendant left
the house on April 10—which would be consistent with her testimony in Jackson I.
What’s more, Victim’s testimony indicated that Defendant did not attempt to confine
Victim on April 10 until she “took off running” after Defendant hit her during an
argument.

{33} Hence, although Victim and location of Defendant’s kidnappings overlap, there
was sufficient evidence that the two kidnappings were separated by, at a minimum,
Defendant’s departure from Victim’s house and his battery upon Victim, coupled with
Defendant’s termination of his intent to restrain Victim sometime between April 4 and
April 10. This constituted sufficient indicia of distinctness between the individual
instances of confinement, and, as a result, Defendant’s two convictions for kidnapping
do not violate double jeopardy. See Dombos, 

 (concluding
that the defendant’s convictions for kidnapping and false imprisonment of the same
victim in the same location did not violate double jeopardy because the individual
instances of confinement “were separated by days; intervening events that included
consensual sex, drinking, and daily activities; and terminations of the intent to restrain”).

B.     Double Description Claims

{34} We now turn to Defendant’s double description arguments. For double
description claims, we apply the two-part test set forth in Swafford. We first ask
“whether the conduct underlying the offenses is unitary, i.e., whether the same conduct
violates both statutes.” 

, ¶ 25. “When determining whether [a
d]efendant’s conduct was unitary, we consider whether [a d]efendant’s acts are
separated by sufficient indicia of distinctness.” State v. DeGraff, 

,

, 

 (internal quotation marks and citation omitted). Like our unit
of prosecution analysis, “[we] may consider as indicia of distinctness the separation of
time or physical distance between the illegal acts, the quality and nature of the
individual acts, and the objectives and results of each act.” State v. Mora, 2003-NMCA-
072, ¶ 18, 

, 

 (internal quotation marks and citation omitted).

{35} “If [the defendant’s conduct] is unitary, we [then] consider whether it was the
Legislature’s intent to punish the two crimes separately.” Swick, 

.
“To determine legislative intent, we look first to the language of the statute.” Silvas,

, ¶ 11. “Absent a clear expression of legislative intent, a court first must
apply the Blockburger test to the elements of each statute.” Swafford, 

,
¶ 30. “Under Blockburger [v. United States, 

 (1932)], the test to be applied
to determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.” Swick, 

(internal quotation marks and citation omitted).

{36} “If [the Blockburger analysis] establishes that one statute is subsumed within the
other, the inquiry is over and the statutes are the same for double jeopardy purposes—
punishment cannot be had for both.” Swafford, 

, ¶ 30. On the other
hand, “[i]f one statute requires proof of a fact that the other does not, then the
Legislature is presumed to have intended a separate punishment for each statute
without offending principles of double jeopardy.” Silvas, 

. “That
presumption, however, is not conclusive and it may be overcome by other indicia of
legislative intent[,]” id.¶ 13 (internal quotation marks and citation omitted), which “may
be gleaned from the statutory schemes by identifying the particular evil addressed by
each statute; determining whether the statutes are usually violated together; comparing
the amount of punishment inflicted for a violation of each statute; and examining other
relevant factors.” Swick, 

 (internal quotation marks and citation
omitted).

1.    Kidnapping and CSP II

{37} Defendant contends that his convictions for kidnapping and two counts of CSP II
in Jackson II violate double jeopardy. The State, in turn, argues that there was no
double jeopardy violation because the conduct underlying Defendant’s convictions for
kidnapping and the two counts of CSP II was not unitary.

{38} “In specifically analyzing whether the conduct underlying kidnapping and CSP II
. . . convictions is unitary, this Court has held that unitary conduct occurs when the
prosecution bases its theory of kidnapping on the same force used to commit CSP II . . .
even though there were alternative ways to charge the crime.” State v. Simmons, 2018-
NMCA-015, ¶ 26, 

 (alternations, internal quotation marks, and citation
omitted). Here, Defendant does not appear to contend that the State premised its theory
for the kidnapping conviction on the same force used to commit the CSPs. Instead,
Defendant—relying on Simmons—argues that because the jury instructions did not
specify which acts formed the basis for the kidnapping charge, this Court must assume
that the jury premised Defendant’s conviction for kidnapping on the same force used to
commit the CSPs. See id. ¶ 27 (“When the conduct underlying two convictions could be
unitary under the facts, but we are unsure if the jury relied on that unitary conduct for
both convictions, we nevertheless assume for the purposes of our double jeopardy
analysis that the conduct was unitary because one of the options/alternatives/scenarios
is legally inadequate.”).

{39} Defendant’s reliance is misplaced. In Simmons, this Court was unable to rule out
the possibility that the jury found that the defendant accomplished the kidnapping
through the same force used to commit the acts of CSP, given the vague jury
instructions provided. See id. In contrast, the jury in this case was instructed to find,
among other things, that “[t]he restraint or confinement [used to accomplish the
kidnapping] was not . . . merely incidental to the commission of a [CSP.]” Thus,
Simmons is distinguishable, as the jury necessarily relied on distinct conduct for
Defendant’s kidnapping conviction. We, therefore, need not assume that the conduct
underlying Defendant’s convictions for kidnapping and the two counts of CSP was
unitary.

{40} The State made clear in closing that it based its theory of kidnapping and the
CSPs on different forces. The State argued, “Defendant kidnapped [Victim]. He
restrained her when [he] grabbed her by the hair and forced her into that bathroom.”
Victim’s testimony supported this theory. Victim testified that Defendant hit her and told
her to go into the bathroom. And when Victim refused, Defendant dragged her by her
hair into the bathroom. At that point, the crime of kidnapping was complete, although
continuing. See State v. Dominguez, 

, 

 (“The crime
of kidnapping is complete when the defendant, with the requisite intent, restrains the
victim, even though the restraint continues through the commission of a separate
crime.”); see also State v. Jacobs, 

, ¶ 24, 

, 

(“[T]he key to finding the restraint element in kidnapping, separate from that involved in
[CSP], is to determine the point at which the physical association between the
defendant and the victim was no longer voluntary.”).

{41} It was not until after Defendant had completed the kidnapping that Defendant put
“all his weight” on Victim in the bathroom, forced her pants off, and committed the first
act of CSP by sodomizing Victim with a stick, and the second act of CSP by forcing her
to perform fellatio. See State v. Montoya, 

, 

, 

 (“Sufficient indicia of distinctness exist when one crime is completed before
another, and also when the conviction is supported by at least two distinct acts or
forces, one which completes the first crime and another which is used in conjunction
with the subsequent crime.” (internal quotation marks and citation omitted)). Given
Victim’s testimony, the jury could have reasonably inferred an independent factual basis
for Defendant’s conviction for kidnapping and the CSPs. See Urioste, 

 (affirming on the basis “that the jury could reasonably have inferred an
independent factual basis for all three of [the d]efendant’s convictions”). Because we
conclude that Defendant’s conduct was not unitary, Defendant’s convictions for
kidnapping and two counts of CSP II do not violate double jeopardy.

2.     CSC and Aggravated Battery

{42} Next, Defendant contends that his convictions for felony aggravated battery
against a household member, as charged in count four, and his conviction for CSC
violate double jeopardy. Although we agree with Defendant that the conduct underlying
the two convictions was unitary, we conclude that the Legislature intended to punish the
two crimes separately.

{43} CSC is defined as “the unlawful and intentional touching of or application of
force, without consent, to the unclothed intimate parts of another who has reached his
eighteenth birthday[]” and constitutes a fourth degree felony “when the perpetrator is
armed with a deadly weapon.” Section 30-9-12(A), (C)(3). Consistent with UJI 14-915
NMRA, the jury was instructed to find Defendant guilty of CSC if they determined, in
relevant part, that Defendant (1) “touched or applied force to the unclothed vagina of
[Victim] without [Victim’s] consent”; and (2) “was armed with and used a knife[.]”
Aggravated battery against a household member is defined as “the unlawful touching or
application of force to the person of a household member with intent to injure that
person or another” and constitutes “a third degree felony if the aggravated battery . . . is
committed . . . with a deadly weapon.” Section 30-3-16(A), (C)(2). In order to find
Defendant guilty of felony aggravated battery against a household member, as charged
in count four, the jury was instructed to find, in relevant part, that Defendant: (1)
“touched or applied force to [Victim] with a knife”; (2) “intended to injure [Victim] or
another”; and (3) “[Victim] was a household member of [D]efendant.”

{44} The State concedes the conduct underlying Defendant’s convictions for felony
aggravated battery against a household member and CSC was unitary. While we are
not bound by the State’s concession, see State v. Tapia, 

, 

, we agree. As the jury instructions demonstrate, both of Defendant’s
convictions were premised on Defendant touching Victim with a knife, and the only
evidence of Defendant’s use of a knife against Victim came from Victim’s testimony that
Defendant cut her vagina with a folding knife. See State v. Franco, 

, 

, 

 (presuming unitary conduct where the state’s theory
at trial relied on the same conduct to convict the defendant of two crimes).

{45} Having concluded that the conduct was unitary, we turn to the second prong of
our double jeopardy analysis to determine whether the Legislature intended to punish
the two crimes separately. Swick, 

. Because neither the
aggravated battery against a household member statute nor the CSC statute expressly
provide for multiple punishments, see § 30-9-12; § 30-3-16, we begin by applying the
Blockburger test to determine whether each statutory provision requires proof of a fact
which the other does not. See Swafford, 

, ¶ 30.
{46} As a preliminary matter, we note that the parties argue over whether we should
apply the traditional or modified Blockburger test. See State v. Ramirez, 2016-NMCA-
072, ¶ 18, 

 (“When applying Blockburger to statutes that are vague and
unspecific or written with many alternatives, we look to the charging documents and jury
instructions to identify the specific criminal causes of action for which the defendant was
convicted.”). Nonetheless, we need not decide which test is appropriate because the
result is the same either way. Both the aggravated battery against a household member
and CSC statutes, as well as the jury instructions in this case, make clear that each
crime requires proof of a fact which the other does not. The CSC statute, as well as the
jury instructions require proof that Defendant touched or applied force to Victim’s
unclothed vagina without her consent, see § 30-9-12(A); UJI 14-915—a fact which is not
required for aggravated battery against a household member. See § 30-3-16(A), (C).
Likewise, both the aggravated battery against a household member statute and jury
instructions require proof that Victim was a member of Defendant’s household, see id.,
a fact which was not required for CSC. See § 30-9-12(A); UJI 14-915.

{47} Defendant argues that the elements of aggravated battery against a household
member were subsumed within the CSC charge because the State relied on the same
facts and the same intent to establish both counts (i.e., Defendant’s cutting of Victim’s
vagina). We disagree. That Victim happened to also be a household member of
Defendant’s does not alter the State’s legal theory for CSC, which only required that
Defendant commit the sexual offense on “another.” Section 30-9-12(A); cf. State v.
Gutierrez, 

, 

 (“That ‘the person’ referred to in the
robbery statute was [the victim], who happened to also be a household member based
on her intimate relationship with [the d]efendant, does not alter the [s]tate’s legal theory
of robbery. That theory simply required identification of a ‘person,’ not the showing of
any particular relationship between ‘the person’ and [the d]efendant.” (quoting NMSA
1978, § 30-16-2 (1973)).

{48} Similarly, that the part of Victim’s body to which Defendant touched the knife
happened to be her vagina, does not alter the State’s legal theory for aggravated
battery against a household member, which only required that Defendant touched some
part of Victim with a knife. See § 30-3-16(A), (C). In other words, that the State used the
same set of facts to establish a common element of both charges—in this case, the
touching or applying of force to Victim with a knife—does not change the fact that each
charge required proof of a fact which the other did not. Accordingly, a presumption
arises that the Legislature intended a separate punishment for the violation of each
statute without violating double jeopardy. See Silvas, 

.

{49} This presumption is buttressed by the other indicia of legislative intent. While
both statutes generally protect bodily integrity, they address distinct evils. See Swafford,

, ¶ 32 n.7 (cautioning that too broad of an interpretation of societal
interests “eviscerates the [L]egislature’s intent to proscribe the narrower, distinct evils . .
. by way of different statutory [provisions]”)). On the one hand, the CSC statute protects
individuals from unlawful intrusions into their “intimate parts.” Section 30-9-12(A); see
State v. Williams, 

, ¶ 9, 

, 

 (“In defining
intimate parts, the CSC statute lists five separate protected areas: the genital area,
groin, buttocks, anus and breast. We hold that the legislative intent was to protect the
victim from intrusions to each enumerated part.” (internal quotation marks omitted)). On
the other hand, the battery against a household member statute protects against the
use of force against a specific group of people (i.e., household members). Gutierrez,

.

{50} Furthermore, it does not appear that “the statutes are usually violated together.”
Swick, 

 (internal quotation marks and citation omitted). While
some CSCs may be perpetrated by members of the victim’s household, and some
aggravated batteries on a household member may involve the application of force to the
victim’s “intimate parts,” Defendant does not cite to—nor are we aware of—any
authority that the two offenses are “usually” committed together. See State v. Wyman,

, 

, 

 (“Where a party cites no authority to
support an argument, we may assume no such authority exists.”). Finally, although
violation of the two statutes results in differing degrees of felonies, compare § 30-9-
12(C) (defining CSC as a fourth degree felony when armed with a deadly weapon), with
§ 30-3-16(C) (defining aggravated battery against a household member as a third
degree felony when committed with a deadly weapon), this “difference in the quantum of
punishment alone is insufficient to overcome other indicia of legislative intent.” State v.
Caldwell, 

, 

, 

. For these reasons, we
hold that the Legislature intended to punish CSC and aggravated battery on a
household member separately, and consequently, Defendant’s convictions do not
violate double jeopardy.

III.   Ineffective Assistance of Counsel

{51} Defendant claims he suffered from ineffective assistance of counsel due to his
counsel’s failure to: (1) watch Defendant’s recorded interview with police before trial,
leading to the admission of otherwise inadmissible evidence; (3) move to join Jackson I
and Jackson II; and (3) object to an investigating officer’s testimony that a mark on
Defendant’s penis was consistent with a bite mark, as well as his testimony regarding
domestic violence victims and their fear of retaliation. We address each argument in
turn.

{52} “In order to establish a prima facie case of ineffective assistance of counsel on
appeal, [the d]efendant must demonstrate that his counsel’s performance fell below that
of a reasonably competent attorney and that he was prejudiced by his counsel’s
deficient performance.” State v. Uribe-Vidal, 

, 

(internal quotation marks and citation omitted). “In determining whether a particular
counsel’s performance was deficient, an appellate court should presume that the
performance fell within a wide range of reasonable professional assistance[,]” and we
will not find ineffective assistance if “we can conceive of a reasonable trial tactic which
would explain the counsel’s performance[.]” State v. Roybal, 

,

, 

 (internal quotation marks and citation omitted). However,
even when we cannot conceive of such a tactic explaining counsel’s actions, counsel’s
deficient performance will not entitle a defendant to a new trial unless we determine,
considering the totality of the evidence, that “there is a reasonable probability that,
absent the errors, the fact[-]finder would have had a reasonable doubt respecting guilt.”
Id. ¶ 25 (internal quotation marks and citation omitted).

{53} “We review claims of ineffective assistance of counsel de novo.” State v. Pitner,

, 

 (internal quotation marks and citation omitted).
“When an ineffective assistance claim is first raised on direct appeal, we evaluate the
facts that are part of the record.” Roybal, 

. “If facts necessary to a
full determination are not part of the record, an ineffective assistance claim is more
properly brought through a habeas corpus petition[.]” 

A.    Failure to Watch Video Evidence

{54} Defendant first claims his counsel was ineffective in failing to watch a video
recording of Defendant’s interview with police before trial. The facts as relevant to this
claim are as follows. On the first day of trial, outside of the presence of the jury, the
State indicated that it sought to introduce a video recording of Defendant’s interview
with one of the investigating officers, Officer Rodriguez. Defense counsel objected to
the introduction of the video because Defendant could be seen wearing an orange
prison jumpsuit but stipulated to the admission of the audio. After the State pointed out
that the video had been disclosed to Defendant for a substantial period of time and
there had been no motions in limine filed regarding the video, the district court agreed
that the issue should have been raised earlier and asked defense counsel if he had
seen the video prior to that day. Defense counsel admitted that he had not seen the
video but “was aware of it.” The district court sustained defense counsel’s objection and
permitted the audio to be played.

{55} Officer Rodriguez testified about his investigation. During Officer Rodriguez’s
testimony, the State played the audio of his interview of Defendant. At one point during
the interview, Defendant admitted hitting Victim and pulling her back into the house,
breaking her cellphone in the process. When Officer Rodriguez clarified that Defendant
was talking about the April 10 incident, defense counsel objected because Defendant
was referring to facts from Jackson I. Additionally, defense counsel objected on the
grounds of Defendant’s “obvious level of intoxication” during the interview. But because
defense counsel had already stipulated to the admission of the audio, the district court
overruled defense counsel’s objection and allowed the remainder of the audio to be
played.

{56} Defendant argues that his counsel’s failure to watch the video led to the
introduction of evidence relating to Jackson I—namely Defendant’s admission that he
hit Victim and pulled her back into the house—which amounted to unrelated prior bad
act evidence. See Rule 11-404(B) NMRA. Defendant also argues that had counsel
watched the video before trial, he would have filed a pre-trial motion challenging the
voluntariness of Defendant’s statements made during the interview based on
Defendant’s “obvious intoxication.” Although we cannot conceive of a reasonable trial
tactic for counsel’s failure to watch the video of Defendant’s interview before trial,
Defendant cannot demonstrate sufficient prejudice to warrant a new trial. See Roybal,

.

{57} In regard to Defendant’s first argument that counsel allowed the jury to hear
evidence relating to the April 10 incident, we fail to see how there was a “reasonable
probability” that, absent Defendant’s objectionable statements, the jury would have had
a reasonable doubt respecting Defendant’s guilt. 

 Besides generally arguing that
Defendant’s statements were irrelevant and allowed the jury to consider that Victim’s
allegations “were part of a larger claim of abuse over the course of a week,” Defendant
fails to explain how the admission of his statements affected the jury’s determination of
his guilt, particularly in light of Victim’s extensive testimony regarding Defendant’s
actions. “Given this lack of specificity, Defendant’s allegation of prejudice amounts to a
mere assertion[,]” which is insufficient to demonstrate prejudice. State v. Torres, 2005-
NMCA-070, ¶ 18, 

, 

; see In re Ernesto M., Jr., 1996-NMCA-
039, ¶ 10, 

, 

 (“An assertion of prejudice is not a showing of
prejudice.”).

{58} In regard to Defendant’s second argument, we are unable to determine from the
audio recording the level of Defendant’s intoxication—the only indication of which
comes from defense counsel’s objection, which is not evidence. See State v. Hall, 2013-
NMSC-001, ¶ 28, 

 (“The mere assertions and arguments of counsel are
not evidence.” (internal quotation marks and citation omitted)). Moreover, even if
Defendant was intoxicated during his interview, his intoxication, alone, is insufficient to
render his statements involuntary. See State v. Montano, 

, ¶ 17, ___
P.3d ___ (“[A d]efendant’s intoxication, or state of mind, alone is insufficient to render a
confession involuntary without accompanying police misconduct or overreaching.”).
Accordingly, Defendant cannot demonstrate either requirement of ineffective assistance
of counsel for counsel’s failure to move to suppress his interview. See State v. Mosley,

, 

 (“Where . . . the ineffective assistance of counsel
claim is premised on counsel’s failure to move to suppress evidence, [the d]efendant
must establish that the facts support the motion to suppress and that a reasonably
competent attorney could not have decided that such a motion was unwarranted.”
(internal quotation marks and citation omitted)).

B.     Failure to Move for Joinder

{59} Next, Defendant claims his counsel was ineffective in failing to move for joinder
of Jackson I and Jackson II. The record is undeveloped with respect to any reasons why
defense counsel—who represented Defendant in both cases—would have thought it
tactically wise to join the two for trial before the same jury. Yet, as the Colorado
Supreme Court speculated in Bossert, it is possible that defense counsel, in this case,
determined that it was “strategically preferable” to keep the cases separate in order to
prevent the juries from learning of the facts pertaining to both incidents—facts which
included disturbingly violent conduct by Defendant. 

; see Jacobs,

, ¶ 15 (“A defendant might be prejudiced if the joinder of offenses
permitted the jury to hear testimony that would have been otherwise inadmissible in
separate trials.”). Indeed, as noted earlier, defense counsel sought to exclude evidence
relating to the April 10 incident (i.e., Defendant’s comments during his interview with
Officer Rodriguez) in Jackson II, suggesting that this was his intention. Given this, we
cannot say that defense counsel was ineffective in failing to join the two cases. See
Roybal, 

 (“[I]f on appeal we can conceive of a reasonable trial
tactic which would explain the counsel’s performance, we will not find ineffective
assistance.”).

C.     Failure to Object to Lay-Witness Testimony

{60} Next, Defendant claims his counsel was ineffective in failing to object to Officer
Rodriguez’s testimony that a mark on Defendant’s penis was consistent with Victim’s
claim that she bit Defendant’s penis, which Defendant claims amounted to
impermissible lay witness opinion. Defendant does not, however, develop any argument
as to why it was improper for a lay witness to testify that a mark they observed on
someone’s body appeared consistent with a bite mark. See State v. Winters, 2015-
NMCA-050, ¶ 11, 

 (“[O]pinion testimony of lay witnesses is generally
confined to matters which are within the common knowledge and experience of an
average person.” (internal quotation marks and citation omitted)); see also State v.
Holley, 

 (Conn. 2018) (“[I]t was well within the trial court’s discretion
to determine that [the lay witness]’s testimony that [the defendant’s accomplice]’s
wounds appeared to be a bite mark, based on [the witness]’s personal observation and
rational perception of [the defendant’s accomplice]’s injuries, was more beneficial to the
jury than a more abstract recitation or description of the size, location, and shape of the
wound.”). Accordingly, we decline to address Defendant’s argument any further. See
State v. Dickert, 

, 

 (declining to address the
defendant’s inadequately developed argument).

{61} Defendant also contends counsel was ineffective because he did not object to
Officer Rodriguez’s testimony that abuse victims may be “free to leave” an abuser but
not “free [to leave] without any consequences” because, in his experience investigating
domestic violence, abusers usually try to find the victim, leading to “possibly another
beating.” Defendant claims that this amounted to impermissible lay witness opinion akin
to diagnosing Victim with “battered woman syndrome.” Yet Defendant again fails to
develop his argument that Officer Rodriguez’s brief testimony rose to the level of
opinion requiring expert qualification or how the admission of the testimony prejudiced
Defendant enough to warrant a new trial. As a result, we need not, and do not, address
Defendant’s argument any further. See id. ¶ 46.

{62} In sum, Defendant fails to establish a prima facie case of ineffective assistance of
counsel for any of his claims. Accordingly, his claims are more properly brought through
a habeas corpus petition. See Roybal, 

.

IV.    Sufficiency of the Evidence
{63} Finally, Defendant contends that there was insufficient evidence to sustain his
convictions. Defendant raises this argument, pursuant to State v. Franklin, 1967-NMSC-
151, 

, 

, and State v. Boyer 

, 

,

, which require appellate counsel to advance his argument even if the merits
of the argument are questionable. Defendant summarily argues that there was
insufficient evidence for his convictions because some of Victim’s testimony lacked
corroboration. Yet Defendant fails to develop this argument or even identify which
convictions he is challenging or what essential elements lack substantial evidence. Nor
does Defendant support his argument with any authority. For these reasons, we decline
to address Defendant’s sufficiency argument. See State v. Vigil-Giron, 2014-NMCA-
069, ¶ 60, 

 (“[A]ppellate courts will not consider an issue if no authority is
cited in support of the issue and that, given no cited authority, we assume no
such authority exists.”); Dickert, 

.

CONCLUSION

{64} For the foregoing reasons, we conclude that Defendant waived his claim for
joinder under Rule 5-203(A) because he failed to raise the issue prior to the second
trial, and that failure to join did not constitute fundamental error. Finding Defendant’s
remaining double jeopardy, ineffective assistance of counsel, and sufficiency
arguments unpersuasive or undeveloped, we affirm.

{65}   IT IS SO ORDERED.

JACQUELINE R. MEDINA, Judge

WE CONCUR:

LINDA M. VANZI, Judge

JULIE J. VARGAS, Judge