State v. Serrato

                                                         Office of the
                                                             Director                      New Mexico
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                                                               '00'06-
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: February 17, 2020

No. A-1-CA-36381

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

JUVENTINO SERRATO,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, District Judge

Certiorari Denied, May 4, 2020, No. S-1-SC-38204. Released for Publication August 31,
2021.

Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM

for Appellee

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

for Appellant

                                       OPINION

M. ZAMORA, Judge.

{1}    Defendant Juventino Serrato appeals his convictions of kidnapping (first-degree),
contrary to NMSA 1978, Section 30-4-1 (2003); criminal sexual contact of a minor
(CSCM) (third-degree) (child under 13), contrary to NMSA 1978, Section 30-9-13(C)(1)
(2003); and enticement of a child, contrary to NMSA 1978, Section 30-9-1 (1963).
Defendant challenges the sufficiency of the evidence of his CSCM and first-degree
kidnapping convictions. Defendant also argues that his right to be free from double
jeopardy is violated by multiple punishments for (1) first-degree kidnapping and
enticement of a child, and (2) first-degree kidnapping and CSCM. We conclude that
Defendant’s double jeopardy rights were violated because in this case, his convictions
for enticement of a child and CSCM were subsumed in his first-degree kidnapping
conviction. Therefore, we reverse and remand to the district court to vacate Defendant’s
convictions for enticement of child and CSCM conviction. Consequently, we need not
reach Defendant’s sufficiency arguments.

BACKGROUND

{2}    Defendant’s convictions arose from an incident whereby he kidnapped Victim, a
ten-year-old girl, from her bedroom window and took her into his home where he asked
her to have sex. Victim testified to the following facts at trial.

{3}    Defendant lived across the street from Victim and her family. On the evening in
question, Victim left her mother’s bedroom where she was sleeping to use the restroom
around 11:17 p.m. when she heard a noise coming from the kitchen. She looked in the
kitchen but did not see anything. She then heard a whistling noise coming from her
bedroom and went to look. She looked in her closet and under her bed and then heard
another whistle near her window. Victim turned the lights on and opened the window to
look outside. She did not see anything and was about to close the window when
Defendant grabbed her hand. Victim moved her hand away but when she was turning
around, Defendant grabbed her by the hood of her jacket and pulled her outside onto
the windowsill. Victim was going to scream for her mother, but Defendant put his arm
around her month.

{4}     Defendant told her that he wanted to show her something. Victim was curious to
see what he had to show her and asked what it was. She followed Defendant across the
street to his residence as Defendant was holding her hand “really tight.” They entered
the residence and then went into what appeared to be Defendant’s bedroom. Once they
both entered the bedroom, Defendant propped a box spring over the entryway and
blocked the exit with a “metal thing.” Victim sat on the bed. Defendant asked her in
Spanish if she “wanted sex,” and Victim told him no.

{5}    Defendant sat next to Victim on the bed and rubbed her back and asked if she
was okay. Victim stood up and asked to leave but Defendant responded that Victim
could not and that she would have to stay and live with him. Victim told him she wanted
to go home. Defendant got up and grabbed Victim’s hand and led her back toward the
bed, and they both sat down.

{6}     Defendant then started touching Victim. She testified that Defendant touched her
on the legs by the knees and then ran his hand up to Victim’s stomach. After he placed
his hand on Victim’s stomach, Defendant ran his hand from Victim’s stomach, over
Victim’s chest, and up to her neck. Victim explained what she believed to be her “private
parts,” describing that “up here” she has “chests” and “once you hit puberty, they then
start growing.” Victim testified that Defendant “[l]ike with his hand, he went over my
chest.” Victim testified that the “whole” “front of his hand” went from her neck down to
her belly.

{7}   Eventually Defendant stopped touching Victim and began talking to her. Victim
heard her mother calling for her, and Defendant told Victim to leave and she ran to her
mother on the other side of the street.

{8}   Defendant was convicted of first-degree kidnapping, third-degree CSCM, and
enticement of a child. Defendant appeals.

DISCUSSION

{9}     We begin with Defendant’s double jeopardy arguments. Concluding that we must
vacate his convictions for enticement of a child and CSCM, we need not reach his
sufficiency arguments.

I.     Double Jeopardy

{10} Defendant argues that his right to be free from double jeopardy was violated
because his convictions for enticement of a child and CSCM were subsumed in his first-degree kidnapping conviction. We agree.

{11} The United States and New Mexico Constitutions guard against double jeopardy
violations, guaranteeing that no person shall be “twice put in jeopardy” for the same
offense. U.S. Const. amend. V; N.M. Const. art. II, § 15. “[D]ouble jeopardy protects
against both successive prosecutions and multiple punishments for the same offense.”
State v. Contreras, 

, 

, 

 (internal
quotation marks and citation omitted). Defendant’s case involves the latter type—
multiple punishments for the same offense. Appellate courts classify multiple
punishment cases in two ways, double-description, a single act results in multiple
charges under different criminal statutes; and unit of prosecution, conviction for multiple
violations of the same criminal statute. See State v. Gallegos, 

,

, 

 (providing overview of multiple punishment cases). In this
case, Defendant alleges the same conduct resulted in multiple convictions under two
different statutes, thus we apply a double-description analysis. Defendant’s double
jeopardy challenges present a constitutional question of law, which we review de novo.
State v. Swick, 

, 

.

{12} For double-description claims, this Court follows the two-part test identified in
Swafford v. State, 

, ¶ 25, 

, 

. First, we
determine whether the conduct underlying the offenses is unitary, that is, whether the
same conduct violates both statutes. 

 Second, we determine whether the Legislature
intended to create separately punishable offenses. 

 “Only if the first part of the test is
answered in the affirmative, and the second in the negative, will the double jeopardy
clause prohibit multiple punishment in the same trial.” 

 We address each double
jeopardy argument in turn.

A.     Kidnapping and Enticement of a Child

1.     Unitary Conduct

{13} The State does not dispute the first prong and concedes that the conduct
underlying both convictions was unitary because the evidence supporting Defendant’s
kidnapping by deception and enticement of a child were the same. While we do not
need to accept the State’s concession, State v. Tapia, 

, 

, we agree that Defendant’s convictions for kidnapping and enticement of a child
were premised upon unitary conduct: Defendant telling Victim that he wanted to show
her something. See, e.g., State v. Gonzales, 

, ¶¶ 20-21, 

(presuming unitary conduct because the state in closing explicitly directed the jury to
consider the same conduct to support the defendant’s convictions for both charges),
cert. denied, 2019-NMCERT-___ (No. S-1-SC-37707, Jul. 1, 2019). We must next
examine whether the Legislature intended multiple punishments.

2.     Legislative Intent

{14} While we acknowledge that this Court has previously addressed the double
jeopardy implications for kidnapping and enticement of a child, see State v. Laguna,

, 

, 

, and State v. Garcia, 1983-NMC

, 

, neither opinion fully analyzed this issue under
New Mexico’s double jeopardy jurisprudence. We therefore take this opportunity to
conduct a full double jeopardy analysis of these two crimes.

{15} “The sole limitation on multiple punishments is legislative intent[.]” State v.
Franco, 

, 

, 

 (alteration, internal
quotation marks, and citation omitted); see also State v. Gutierrez, 

, 

, 

 (explaining that “legislative intent must be the
touchstone of our inquiry” in multiple punishment analysis (internal quotation marks and
citation omitted)). In assessing legislative intent, our Supreme Court has directed that
“we first look to the language of the statute itself. If the statute does not clearly prescribe
multiple punishments, then the rule of statutory construction established in Blockburger
v. United States, 

 . . . (1932), applies.” Swick, 

(citation omitted). Here, the statutes do not expressly permit multiple convictions, see §§
30-4-1, 30-9-1, so we turn to the Blockburger test.

{16} “Under Blockburger, 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).
“If each statute requires proof of a fact that the other does not, it may be inferred that
the Legislature intended to authorize separate punishments under each statute.” Id. ¶
13. However, when a statute is “vague and unspecific” or “written with many
alternatives[,]” we apply a modified version of the Blockburger test. Gutierrez, 2011-
NMSC-024, ¶ 48 (internal quotation marks and citation omitted). Under the modified
Blockburger analysis, “we no longer apply a strict elements test in the abstract; rather,
we look to the state’s trial theory to identify the specific criminal cause of action for
which the defendant was convicted, filling in the case-specific meaning of generic terms
in the statute when necessary.” State v. Branch, 

, ¶ 25, 

.
“Accordingly, the application of Blockburger should not be so mechanical that it is
enough for two statutes to have different elements.” 

 (internal quotation marks and
citation omitted). Thus, “instead of looking at the statute in the abstract, we look at the
legal theory of the offense that is charged” when comparing the elements of the
statute. Gutierrez, 

 (internal quotation marks and citation
omitted). “[W]e look to the charging documents and jury instructions to identify the
specific criminal causes of action for which the defendant was convicted.” State v.
Ramirez, 

, 

; see Branch, 

, ¶ 25
(same).

{17} The elements of kidnapping, as explained in the statute and instructed to the jury,
are “the unlawful taking, restraining, transporting or confining of a person, by force,
intimidation or deception, with intent . . . to inflict death, physical injury or a sexual
offense on the victim.” Section 30-4-1(A)(4); UJI 14-403 NMRA (stating essential
elements jury instruction for kidnapping). 1 Consequently, the kidnapping statute is
unspecific, as there are many alternatives. We must therefore look to the State’s theory
of the case as it was presented to the jury to determine what the elements in the
alternative mean. See Gutierrez, 

. Hence, “instead of looking at
the statute in the abstract, we look at the legal theory of the offense that is charged”
when comparing the elements of the statute under a modified Blockburger analysis. 

(internal quotation marks and citation omitted).” Thus, we apply the modified
Blockburger analysis. In so doing, we look “beyond facial statutory language to the
actual legal theory in [this] particular case by considering such resources as the
evidence, the charging documents, and the jury instructions.” State v. Montoya, 2013-
NMSC-020, ¶ 49, 

; see Swick, 

 (examining charging
document and jury instructions in modified Blockburger analysis).

{18} For kidnapping, the grand jury indictment, in pertinent part states: “[D]efendant
did take, restrain, transport or confine [Victim] by force, intimidation or deception[.]” The
tendered kidnapping jury instruction, states, in pertinent part: (1) “[D]efendant took,
restrained, confined or transported [Victim] by force, intimidation or deception”; (2)
“[D]efendant intended to hold [Victim] against [Victim]’s will to inflict death, physical
injury or a sexual offense on [Victim.]” For the charge of enticement of a child, the grand
jury indictment, in pertinent part, states “[D]efendant did entice, persuade or attempt to
persuade [Victim] to enter a building, and [D]efendant intended to commit [c]riminal
[s]exual [c]ontact of a [m]inor, a sexual offense, and [Victim] was less than sixteen years
of age[.]” The tendered enticement jury instruction, states, in pertinent part: “[D]efendant
enticed or persuaded [Victim] to enter a building[.]” Neither the charging document nor

1The kidnapping jury instruction also included that Defendant “h[e]ld [Victim] against [her] will[.]”
the jury instructions give us insight to the State’s theory, and so we turn to its closing
arguments for guidance. See Gonzales, 

, ¶ 24 (looking to the state’s
closing argument when the indictment and jury instructions provided no detail about the
state’s theory of the case); see also State v. Silvas, 

, 

 (turning to the state’s closing argument as evidence of the state’s legal theory
in applying the modified Blockburger analysis).

{19} In closing, the State directed the jury to Defendant’s statement to Victim that
Defendant “want[ed] to show [her] something” as the basis for both kidnapping and
enticement of a child. The State premised the kidnapping upon a theory of deception
with intent to inflict a sexual offense. The prosecutor said in closing:

            [Defendant] said, “I want to show you something. Do you want to
      see something?” And this ten-year-old child with [Defendant’s] help ends
      up going with him.

             So when you look at that, [D]efendant took [Victim] by force,
      intimidation or deception. And the deception was playing on the curiosity
      of a ten-year-old child to show her something that night.

      ....

             So is [Defendant] guilty of kidnapping? You betcha. And how do we
      know that? Because he took, restrained, confined or transported [Victim]
      by force, intimidation or deception. And, really, in this case is the
      deception, the “[c]ome with me, little girl. I’ve got something to show you.”

Likewise, the State’s theory for enticement of a child with intent to commit a sexual
offense was based upon the same conduct and under the same theory. In closing, the
prosecutor stated:

      The first element is [D]efendant enticed or persuaded [Victim] to enter a
      building. Well, we know that. “I want to show you something. Do you want
      to see something?”

The State’s theory of both charges was identical: Defendant coaxed Victim to follow him
by deceiving her with the notion he had something to show her with the intent to commit
a sexual assault.

{20} Thus, although kidnapping by deception and enticement of a child, when viewed
in the abstract, might require proof of an element that the other does not—for example,
kidnapping requires unlawfully taking, restraining, transporting, or confining a person,
and enticement of a child requires that the Victim must be a child under the age of
sixteen—as applied in this case, the two offenses overlap. See Silvas, 2015-NMSC-
006, ¶ 14 (explaining that the modified Blockburger analysis considers “not only whether
each statute in the abstract requires proof of a fact that the other does not, but also
whether the statute, as applied by the [s]tate in a given case, overlaps with other
criminal statutes so that the accused is being punished twice for the same offense”
(alteration, emphasis, internal quotation marks, and citation omitted)). Here, as the
State presented its case to the jury, Defendant is being punished twice for the same
offense. Accordingly, we hold that in this case, Defendant’s convictions for enticement
of a child and kidnapping by deception violate his right to be free from double jeopardy,
and consequently the conviction for enticement of a child—the lesser offense—must be
vacated. See State v. Padilla, 

, 

, 

(“Where we conclude that double jeopardy has been violated, we vacate the lesser
offense and retain the conviction for the greater offense.”), rev’d on other grounds by

, 

, 

. Because the statues do not survive a
Blockburger analysis, we need not examine other indicia of legislative intent. See
Branch, 

, ¶ 26 (stating that appellate courts examine “other indicia of
legislative intent” only if the two statutes survive the Blockburger analysis).

B.     First-Degree Kidnapping and CSCM

{21} Defendant also contends that his convictions for first-degree kidnapping and
CSCM violate his right to be free from double jeopardy because his conviction for
CSCM was used to elevate Defendant’s kidnapping charge from second to first-degree
kidnapping. Defendant argues that the same conduct—the touching of Victim’s
breasts—was used to form the basis for his CSCM conviction and his first-degree
kidnapping, and thereby, the CSCM conviction was subsumed in the first-degree
kidnapping conviction.

1.     Unitary Conduct

{22} “The proper analytical framework for determining unitary conduct is whether the
facts presented at trial establish that the jury reasonably could have inferred
independent factual bases for the charged offenses.” State v. Dominguez, 2014-NMCA-
064, ¶ 12, 

 (alteration, internal quotation marks, and citation omitted).
“[T]he task is merely to determine whether the conduct for which there are multiple
charges is . . . distinguishable.” Swafford, 

, ¶ 28. “[W]e consider
whether [the d]efendant’s acts are separated by sufficient ‘indicia of distinctness.’ ”
State v. DeGraff, 

, 

, 

 (quoting Swafford,

, ¶ 26). “The court 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).

{23} “Keeping in mind that legislative intent is our primary concern in deciding
multiple punishment cases, we look first to the language of the statutes at issue.” State
v. Frazier, 

, 

, 

. Section 30-4-1(B) governs
whether a kidnapping conviction is a first or second-degree felony. It states:
        Whoever commits kidnapping is guilty of a first[-]degree felony, except that
        he is guilty of a second[-]degree felony when he voluntarily frees the
        Victim in a safe place and does not inflict physical injury or a sexual
        offense upon the victim.

(Emphasis added.) Section 30-9-13(A) defines CSCM as “the unlawful and intentional
touching of or applying force to the intimate parts of a minor.” As charged in this case,
the “intimate parts” were Victim’s breasts.

{24} Defendant argues that the conduct is unitary because the first-degree kidnapping
was not complete unless and until the CSCM occurred, pointing to Section 30-4-1(B)’s
requirement that first-degree kidnapping also requires that the jury make a finding that
Defendant committed a “sexual offense.” 2 The State responds that the conduct is not
unitary because the kidnapping conviction was complete as soon as Defendant took or
transported Victim through the window, 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.”); whereas the CSCM conviction was based on Defendant touching or applying
force to Victim’s breasts inside Defendant’s bedroom. Moreover, the State argues that
“[k]idnapping is by default a first[-]degree felony” and “the kidnapping statute merely
allows a defendant to reduce his degree of kidnapping by not committing a sexual
offense or physical harm and voluntarily freeing the Victim in a safe place.” The State
contends that Section 30-4-1(B) “creates a limited exception [to allow] a defendant to
reduce or downgrade his kidnapping to a second[-]degree felony.”

{25} The State’s argument misconstrues Section 30-4-1(B)’s requirement and our
case law interpreting it. Our Supreme Court has explained that the requirements set out
in Subsection (B) are elements that the state is required to prove to convict for first-degree kidnapping. See State v. Gallegos, 

, 

, 

 (“The elements in Subsection (A), . . . if established, only support a charge of
second-degree kidnapping. If the [s]tate wishes to convict an accused of first-degree
kidnapping, it must also establish the elements in Subsection (B), contained in the
special verdict form.” (emphasis omitted)); Dominguez, 

 (“It
would also stand to reason, based on our kidnapping statute as written, that only if the
jury found that [the d]efendant did not actually commit the intended sexual offense could
his offense constitute second-degree kidnapping. . . . [W]e understand the district
court’s reluctance to adjudicate [the d]efendant guilty of first[]degree kidnapping in the
absence of specific findings by the jury that [the d]efendant committed a sexual offense
against [the v]ictim[.]”); see also UJI 14-403 comm. cmt. (explaining that to distinguish


2Defendant analogizes the present case to a felony murder statute case, Frazier, 

, to
support his argument; however, the traditional double jeopardy analysis is more persuasive. Cf. State v.
Sotelo, 

, 

 (considering whether the defendant’s double jeopardy
rights were violated in his convictions for battery and first-degree kidnapping and holding that the
kidnapping statute is not analogous to the felony murder statute, and the battery and kidnapping
convictions in the case were not unitary as a matter of law).
first and second-degree kidnapping, “separate instructions were created for first and
second-degree kidnapping that incorporate the distinguishing findings as essential
elements”). 3

{26} The dissenting opinion argues that the focus of our analysis ought to be limited to
the conduct required in the essential elements of the base crime, not the elements
elevating such crime to a higher felony degree. Dissent Op. ¶ 53. We again emphasize
that the requirements provided in Section 30-4-1(B) are elements that the State is
required to prove to convict for first-degree kidnapping. See Gallegos, 

; Dominguez, 

. Moreover, our review of the case law
confirms that our task in a double jeopardy analysis is to examine not only the conduct
required for the base crime of the greater offense, but also that required to elevate the
base crime to a higher felony degree. See, e.g., Dominguez, 

(analyzing a double jeopardy claim based not only on the elements of the base crime of
criminal sexual penetration, but also on the elevating element that “the perpetrator is
armed with a deadly weapon” (internal quotation marks and citation omitted)); State v.
Montoya, 

, 

, 

 (examining the conduct
required for a conviction for second-degree criminal sexual penetration, which requires,
in relevant part, that the criminal sexual penetration be perpetrated in the commission of
any other felony). Therefore, here, as the State charged Defendant, the elements of
first-degree kidnapping were not satisfied until a sexual offense was committed. There
was only evidence presented of one sexual offense that occurred during the course of
the kidnapping: the touching of Victim’s breasts. The jury in a special verdict form found
“unanimously . . . beyond a reasonable doubt that [D]efendant committed a sexual
offense upon [Victim].” The conduct underlying Defendant’s convictions for first-degree
kidnapping and CSCM is unitary because there are no independent factual bases to
support each offense. See State v. Saiz, 

, 

, 

 (stating that the proper double jeopardy analysis is whether a “jury could have
[reasonably] inferred independent factual bases for the charged offenses” (internal
quotation marks and citation omitted)), abrogated on other grounds by State v.
Belanger, 

, ¶ 36 n.1, 

, 

; Swafford, 1991-
NMSC-043, ¶ 27 (whether conduct is unitary “depends to a large degree on the
elements of the charged offenses and the facts presented at trial”).

{27} Nevertheless, the dissenting opinion proposes that there are sufficient indicia of
distinctness between Defendant’s conduct during the kidnapping and his conduct during
the CSCM. Dissent Op. ¶¶ 58, 59. Although the dissenting opinion’s argument to this
effect is limited to the context of the conduct required for the base crime of kidnapping—
a premise we expressly reject in light of the circumstances of the case at bar—we


3The statute requires a defendant to not “inflict death, physical injury, or sexual offense on the victim” and
“voluntarily free[] the victim in a safe place” to be convicted of second-degree kidnapping. Section 30-4-
1(A)(4), (B); see Dominguez, 

, ¶ 16 n.1. Neither party argues whether Defendant
voluntarily freed Victim in a safe place, but we do note that Victim was safely reunited with her mother
when Defendant took down his makeshift door to let Victim leave his bedroom and go to her mother
across the street.
pause to acknowledge that punishment for both the predicate and compound offenses
is permissible when the State bases its theory for each offense through non-unitary
conduct. See Dominguez, 

 (concluding that regardless of whether
the defendant uses the same type of force to restrain the victim during a kidnapping and
during a criminal sexual penetration, such conduct is not unitary if there are
“independent and factually distinct bases for [those] crimes”); Montoya, 2011-NMCA-
074, ¶ 43 (explaining that because the jury was instructed on a theory based on unitary
conduct to establish the predicate and compound offenses, punishment for both
offenses violated double jeopardy); State v. Ramos, 

, ¶ 27, 

, 

 (“Similar statutory provisions sharing certain elements may support
separate convictions and punishments where examination of the facts presented at trial
establishes that the jury reasonably could have inferred independent factual bases for
the charged offenses.” (emphasis added) (alterations, internal quotation marks, and
citation omitted)), holding modified on other grounds by State v. Gomez, 1997-NMSC-
006, ¶ 32, 

, 

. As the facts presented at trial demonstrate that
the first-degree kidnapping and CSCM charges were based on the same conduct, we
are bound to conclude that the conduct underlying both offenses is unitary. We
therefore turn to the next prong: legislative intent.

2.     Legislative Intent

{28} Because the two statutes do not expressly permit multiple convictions, see
§§ 30-4-1, 30-9-13, we consider whether the Legislature intended multiple punishments
under such circumstances. See Swick, 

. Once again, the
kidnapping statute has multiple alternatives, and thus we apply the modified
Blockburger analysis, as we did previously. Gutierrez, 

(explaining that the modified Blockburger approach “applies when one of the statutes at
issue is written with many alternatives, or is vague or unspecific”).

{29} Again, under modified the Blockburger analysis, we look to the State’s trial theory
“to identify the specific criminal cause of action for which the defendant was convicted,
filling in the case-specific meaning of generic terms in the statute when necessary.”
Branch, 

, ¶ 25. “[W]e look to the charging documents and jury
instructions to identify the specific criminal causes of action for which the defendant was
convicted.” Ramirez, 

. We will also look to the State’s closing
argument as evidence of its trial theory. Gonzales, 

, ¶ 24.

{30} The grand jury indictment charged Defendant with first-degree kidnapping,
alleging Defendant “did take, restrain, transport or confine [Victim] by force, intimidation
or deception, intending to inflict a sexual offense on [Victim] and inflicted a sexual
offense on [Victim], a first[-]degree felony[.]” (emphasis added). It charged Defendant
with CSCM, alleging he “did unlawfully and intentionally touch or apply force to the
intimate parts of [Victim], to wit: her breasts[.]” In addition to the elements of kidnapping
as discussed above, the jury was instructed that
      [i]f you find [D]efendant guilty of kidnapping as charged in Count 1, then
      you must determine whether a sexual offense was committed. You must
      complete the special forms to indicate your findings.

             For you to make a finding of “yes,”[] the [S]tate must prove to your
      satisfaction beyond a reasonable doubt that [D]efendant committed a
      sexual offense upon [Victim].

The jury answered “Yes” on the special interrogatory form, which asked “[d]o you
unanimously find beyond a reasonable doubt that [D]efendant committed a sexual
offense upon [Victim]?”

{31} In the State’s closing argument, while discussing the CSCM, the State explained
that the basis of the charge was Defendant’s “flat hand over [Victim’s] breasts.”
Although the State’s closing argument does not mention the special verdict form or
Subsection (B)’s requirement of a finding of a sexual offense upon Victim, the State did
argue that Subsection (A)(4)’s intent requirement was to inflict a sexual offense. The
State explained:

      [Defendant’s] motives, his intent, his reason for taking [Victim] to
      [Defendant’s] room was none other than to make sexual advances on
      [Victim] and to sexually contact her, to touch her. And that’s exactly what
      [Defendant] did when he got [Victim] there, and that you know from her
      testimony.

Our review of the record reveals no other sexual contact, or “sexual offense,” other than
the one touching of Victim’s breasts.

{32} Thus, although first-degree kidnapping and CSCM, when viewed in the abstract,
might require proof of an element that the other does not—as applied in this case, it
does not. Again, as the State’s case was presented to the jury, Defendant is being
punished twice for the same offense. Accordingly, we hold that in this case, Defendant’s
convictions for CSCM and first-degree kidnapping violate his right to be free from
double jeopardy, therefore the lesser offense of CSCM must be vacated.

3.    Vacation of Defendant’s CSCM Conviction Results in the Entry of a
      Conviction of the Lesser Included Offense of Battery

{33} Because we vacate Defendant’s CSCM conviction, we turn to whether we should
reverse and remand for the lesser included offense of battery, upon which the jury was
instructed. Based on the jury’s verdict, we determine that had the jury not convicted
Defendant of CSCM, it would have convicted Defendant of battery in violation of NMSA
1978, Section 30-3-4 (1963), a lesser included offense and one on which the jury was
also instructed. See State v. Haynie, 

, ¶¶ 3-4, 

, 

 (holding that an appellate court has authority to remand a case for entry of
judgment on a lesser included offense when the evidence fails to prove the higher
offense, the jury was instructed on the lesser included offense, the elements of the
lesser included offense were necessarily proven to the jury, and the interests of justice
are served in doing so). Defendant concedes that, without the CSCM conviction, a
battery conviction should be entered on remand. Unlike the CSCM instruction’s
requirement of touching or applying force to Victim’s breasts, battery only requires that
Defendant intentionally touched or applied force to Victim in a rude, insolent, or angry
matter. See § 30-3-4 (“Battery is the unlawful, intentional touching or application of force
to the person of another, when done in a rude, insolent or angry manner.”). There was
ample, unrefuted evidence that Defendant touched Victim on her legs, stomach, and
chest in a rude, insolent, or angry manner while asking her if she wanted to have sex
and telling her she cannot leave his bedroom. A battery conviction here does not raise
the same double jeopardy concerns with first-degree kidnapping because the double
jeopardy violation stemmed from the unitary “sexual offense,” an element not required in
the battery charge. Cf. Sotelo, 

 (concluding that the
defendant’s conviction for first-degree kidnapping and battery did not violate the
constitutional probation against double jeopardy). Because the jury was instructed on
the lesser included offense of battery, we vacate Defendant’s conviction of CSCM and
reverse and remand with instructions for the district court to enter a conviction of
battery. See State v. Segura, 

, 

, 

 (remanding for entry of judgment on a lesser included offense of attempted CSCM
when evidence failed to prove CSCM by a person in a position of authority).

CONCLUSION

{34} Having concluded Defendant’s right to be free from double jeopardy was
violated, we remand to the district court to vacate the lesser included offenses of
enticement of a child and CSCM, enter a conviction for the lesser included offense of
battery, and to resentence Defendant accordingly.

{35}   IT IS SO ORDERED.

M. MONICA ZAMORA, Judge Pro Tempore

I CONCUR:

JULIE J. VARGAS, Judge

JACQUELINE R. MEDINA, Judge (dissenting).

MEDINA, Judge (dissenting).

{36} For the following reasons, I respectfully dissent in this case and would hold that
Defendant’s convictions for first-degree kidnapping and enticement of a child or CSCM
do not violate double jeopardy.

Kidnapping and Enticement of a Minor
{37} In regard to the majority’s double jeopardy analysis of Defendant’s convictions for
kidnapping and enticement of a child, I believe this analysis is incomplete and arrives at
an erroneous result. In order to fully explain my reasoning, it is useful to first discuss our
double jeopardy inquiry and the role of the modified Blockburger analysis.

{38} In a double-description case—such as here—we apply the two-part test set forth
in Swafford, 

, ¶ 25. We first ask “whether the conduct underlying the
offenses is unitary, i.e., whether the same conduct violates both statutes.” 

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

. The touchstone of our analysis under
this second step is legislative intent. See id. ¶ 24 (“The Legislature is always free to
express its intent to punish the same conduct under more than one statute.”); Swafford,

, ¶ 11 (noting that the United States Supreme Court “repeatedly has
stated that the question of whether punishments are unconstitutionally multiple depends
on whether the [L]egislature has authorized multiple punishment”).

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

. “Absent a clear expression of legislative intent, a court
first must apply the Blockburger test to the elements of each statute.” Swafford, 1991-
NMSC-043, ¶ 30. “Under Blockburger, 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). As our Supreme Court has explained,

       The rationale underlying the Blockburger test is that if each statute
       requires an element of proof not required by the other, it may be inferred
       that the [L]egislature intended to authorize separate application of each
       statute. Conversely, if proving violation of one statute always proves a
       violation of another (one statute is a lesser included offense of
       another, i.e., it shares all of its elements with another), then it would
       appear the [L]egislature was creating alternative bases for prosecution,
       but only a single offense.

Swafford, 

, ¶ 12.

{40} In Gutierrez, our Supreme Court adopted the modified Blockburger analysis for
double jeopardy claims involving statutes that are “vague and unspecific,” or “written
with many alternatives.” 

, ¶ 48 (internal quotation marks and citation
omitted). “In effect, this modified approach recognizes that comparing in the abstract
ambiguous facial statutory elements fails to provide requisite guidance to a court in
determining legislative intent.” State v. Luna, 

, ¶ 10, ___ P.3d ___, cert.
denied, 2018-NMCERT-___ (No. S-1-SC-36896, Mar. 16, 2018). Thus, under the
modified Blockburger analysis, our courts look beyond the “facial statutory language,”
Montoya, 

, and “evaluate legislative intent by considering the
[s]tate’s legal theory independent of the particular facts of the case.” Swick, 2012-
NMSC-018, ¶ 21.
{41} In order to determine the actual legal theory in a particular case, we consider
“such resources as the evidence, the charging documents, and the jury instructions.”
Montoya, 

. “Where neither the indictment nor the jury instructions
shed any light on the state’s trial theory, and/or to confirm our understanding of the
state’s theory, we may also look to the state’s closing argument for evidence of the
specific factual basis supporting its theory.” Luna, 

, ¶ 10 (alterations,
internal quotation marks, and citation omitted). “By doing this, we may properly identify
the appropriate ‘provisions’ for comparison that are at the heart of the Blockburger test.”

 Thus, both the traditional and modified Blockburger approaches require comparing
the applicable criminal provisions to determine “whether each provision requires proof of
a fact which the other does not.” Swick, 

 (internal quotation marks
and citation omitted).

{42} “If that test 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[,]” 

 (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). Finally, “[i]f after
examining the relevant indicia the legislative intent remains ambiguous, the rule of lenity
requires us to presume that the Legislature did not intend multiple punishments for the
same conduct.” 

{43} I agree with the majority that Defendant’s convictions for kidnapping and
enticement of a child were premised upon unitary conduct. Maj. Op. ¶ 13. I also agree
that the modified Blockburger analysis is warranted because the kidnapping statute is
written with many alternatives, see § 30-4-1; Gutierrez, 

; Maj. Op.
¶ 17, and that such analysis demonstrates that the State premised the kidnapping
charge on Defendant’s intent to hold Victim against her will to inflict a sexual offense on
Victim, and that Defendant effectuated this goal through the use of deception by telling
Victim “I want to show you something.” Maj. Op. ¶ 19. I further note that the modified
Blockburger analysis is warranted for analysis of the enticement of a child statute
because it is unspecific in the sense that it does not specify the criminal sexual act for
which Defendant had the intent to commit, see § 30-9-1(A) (“Enticement of child
consists of . . . enticing, persuading or attempting to persuade a child under the age of
sixteen years to enter any vehicle, building, room or secluded place with intent to
commit an act which would constitute a crime under Article 9 of the Criminal Code[.]”),
although the jury instructions make clear that the State premised this charge on the
theory that Defendant intended to commit the crime of CSCM.
{44} However, I disagree with the majority’s conclusion that Defendant’s convictions
for kidnapping by deception and enticement of a minor violate double jeopardy simply
because they were based upon the same conduct and under the same theory. Maj. Op.
¶ 20. In arriving at this conclusion, the majority appears to conflate our inquiry under the
first step of our double jeopardy analysis with our inquiry under the second step. The
purpose of the modified Blockburger analysis is not to determine whether the State
based its theory for the two charges upon the same conduct. Rather, the purpose is to
identify the appropriate provision for comparison under the traditional Blockburger test.
See Luna, 

, ¶ 10. Indeed, the majority recognized this in its general
discussion of the modified Blockburger analysis, stating, “Thus, ‘instead of looking at the
statute in the abstract, we look at the legal theory of the offense that is charged’ when
comparing the elements of the statute.” Maj. Op. ¶ 16 (emphasis added) (quoting
Gutierrez, 

).

{45} Despite recognizing this and setting forth the elements of kidnapping and
enticement of a child, the majority fails to actually compare the identified elements of
kidnapping to enticement of a child in order to determine “whether each provision
requires proof of a fact which the other does not.” Swick, 

(internal quotation marks and citation omitted); Maj. Op. ¶¶ 17-20. When properly
continuing the double jeopardy analysis, it becomes apparent that the Legislature
intended to permit multiple punishments for kidnapping by deception and enticement of
a child.

{46} Consistent with UJI 14-403, the jury was instructed to find Defendant guilty of
kidnapping if they determined, in relevant part, that: (1) “[D]efendant took, restrained,
confined or transported [Victim] by force, intimidation or deception” and (2) “[D]efendant
intended to hold [Victim] against [Victim]’s will to inflict death, physical injury or a sexual
offense on [Victim.]” Consistent with UJI 14-971 NMRA, the jury was instructed to find
Defendant guilty of enticement of a child if they determined, in relevant part, that: (1)
“[D]efendant enticed or persuaded [Victim] to enter a building”; (2) “[D]efendant intended
to commit the crime or crimes of sexual contact”; and (3) “[Victim] was less than
[sixteen] years old.” Comparing these elements to the identified provision of Defendant’s
kidnapping charge, it is clear that each charge requires proof of a fact which the other
does not. In order to find Defendant guilty of kidnapping by deception, the jury was
required to find, inter alia, that Defendant intended to hold Victim against her will, a fact
which was not required to be proven for the enticement charge. Likewise, in order to
find Defendant guilty of enticement of a child, the jury was required to find, inter alia,
that Victim was less than sixteen years of age, a fact which was not required for the
kidnapping charge. Therefore, “the Legislature is presumed to have intended a separate
punishment for each statute without offending principles of double jeopardy.” Silvas,

.

{47} As noted earlier, this presumption may be overcome by other indicia of legislative
intent, 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). Turning to the evils addressed by each statute, the
Legislature appears to have intended the statutes to protect against different evils. On
one hand, the offense of kidnapping, as charged in this case, seeks to address unlawful
restrictions on any victim’s physical liberty with intent to force them into sexual acts. See
State v. Telles, 

, ¶ 29, 

 (stating that the kidnapping
statute is “intended to prevent individuals from harming others or depriving others of
their freedom with the intent to force them to do something against their will”), cert.
denied, 2019-NMCERT-___ (No. S-1-SC-37652, May 15, 2019). On the other hand,
enticement is designed to protect a specific class of vulnerable persons (i.e., children)
from being persuaded into entering a secluded space in which they may be taken
advantage of sexually. Thus, this indication of legislative intent dictates in favor of
allowing multiple punishments. See Swafford, 

, ¶ 32 (“Statutes directed
toward protecting different social norms and achieving different policies can be viewed
as separate and amenable to multiple punishments.”).

{48} Furthermore, “the statutes are [not] usually violated together.” Swick, 2012-
NMSC-018, ¶ 13 (internal quotation marks and citation omitted). Many, if not most,
kidnappings are committed by force—not deception. In such scenarios, the enticement
of a child statute would not be implicated because the defendant would be relying on
force and not enticement or persuasion. See § 30-9-1(A) (stating that enticement of
child consists of “enticing, persuading or attempting to persuade a child” (emphasis
added)). Additionally, many kidnappings are not sexually motivated and, therefore, do
not implicate the enticement of a child statute, which also dictates in favor of allowing
multiple punishments. See id. (providing that the defendant must have “intent to commit
[a sexual offense]”).

{49} Admittedly, the differing quantum of punishments for the respective crimes
suggests that the Legislature may not have intended to punish the two crimes
separately: Defendant’s conviction for kidnapping is a first-degree felony punishable by
up to eighteen years in prison, see § 30-4-1; NMSA 1978, § 31-18-15(A)(3) (2016,
amended 2019), whereas Defendant’s conviction for enticement is misdemeanor
punishable by up to 364 days. See § 30-9-1; Swafford, 

, ¶ 33 (“Where
one statutory provision incorporates many of the elements of a base statute, and
extracts a greater penalty than the base statute, it may be inferred that the [L]egislature
did not intend punishment under both statutes.”). But see Swick, 

, ¶ 9
n.1 (noting that New Mexico courts have “used the quantum of punishment to support
the proposition that the Legislature did not intend to punish the two crimes separately,
both when the amount of punishment is the same and when the amount differs”
(emphasis added)). However, “this Court and our Supreme Court have previously noted
that a difference in the quantum of punishment alone is insufficient to overcome other
indicia of legislative intent.” State v. Caldwell, 

, 

,

. Accordingly, I would hold that Defendant’s convictions for kidnapping and
enticement of a child do not violate double jeopardy.

Kidnapping and CSCM
{50} Turning to Defendant’s convictions for first-degree kidnapping and CSCM, the
majority concludes that Defendant’s conduct underlying his convictions for first-degree
kidnapping and CSCM are unitary because Defendant could not be convicted of first-degree kidnapping (in this case) without committing the CSCM. See Maj. Op. ¶ 26; §
30-4-1(B) (“Whoever commits kidnapping is guilty of a first[-]degree felony, except that
he is guilty of a second-degree felony when he voluntarily frees the victim in a safe
place and does not inflict physical injury or a sexual offense upon the victim.”);
Gallegos, 

 (stating in dicta that “[t]he elements in Subsection (A),
. . . if established, only support a charge of second-degree kidnapping. If the [s]tate
wishes to convict an accused of first-degree kidnapping, it must also establish the
elements in Subsection (B), contained in the special verdict form.” (emphasis and
citation omitted)). I respectfully disagree with this approach.

{51} That the Legislature has deemed the crime of kidnapping deserving of greater
punishment when the perpetrator also commits a sexual offense on the victim does not
mean that the conduct underlying both offenses is unitary by definition, even in cases—
such as here—where the only conduct elevating the kidnapping charge to a first-degree
felony offense is the defendant’s commission of another sexual offense for which he
was also convicted. 4 Under the majority’s approach, it would never be permissible to
allow convictions for both predicate and compound offenses because the predicate
offense would always be subsumed within the other offense as a matter of law. This
runs contrary to precedent. See State v. McGuire, 

, ¶ 14, 

, 

 (“Nor does the fact that the kidnapping charge was used to raise the
criminal sexual penetration to a second-degree felony pose a double jeopardy problem
in this case. Convictions normally are allowed for both predicate and compound
offenses, and our courts have held that criminal sexual penetration statutes and
kidnapping statutes protect different social norms.”); State v. Corneau, 1989-NMCA-
040, ¶ 11, 

, 

 (holding that false imprisonment could be used
to raise criminal sexual penetration to a second-degree felony when evidence supported
a finding of false imprisonment separate from the false imprisonment necessarily
involved in almost every act of criminal sexual penetration).

{52} Perhaps most concerning is the result of the majority’s approach in terms of
punishment. Under the majority’s line of analysis, a defendant who kidnaps and
subsequently inflicts even the slightest physical injury on the victim or a defendant who


4Although the Supreme Court has indicated this is the case in the context of our felony murder statute,
see Frazier, 

 (analyzing whether murder and the predicate felony are actually
greater and lesser included offenses in every felony murder and concluding that the language of the
felony murder statute “renders the conduct supporting the felony murder and the underlying predicate
felony unitary by definition”), this Court has specifically rejected importing Frazier’s analysis to our
kidnapping statute. See Sotelo, 

 (rejecting the defendant’s argument “that the
kidnapping statute functions like the felony murder statute” because, among other things, “the fact that
the underlying felony increases punishment for a killing to the same level as an intentional killing even
when there is no premeditation or a depraved mind” was critical to Frazier’s analysis, whereas
punishment under the kidnapping statute did not create the same result (internal quotation marks and
citation omitted)).
simply does not voluntarily release the victim in a safe place would receive the exact
same punishment as a defendant who kidnaps and violently rapes his victim: Each
would be guilty of only a single count of first-degree kidnapping. I do not believe this is
what the Legislature intended in enacting Section 30-4-1. See Frazier, 2007-NMSC-
032, ¶ 19 (stating that both prongs of our double jeopardy analysis are guided by
legislative intent). Rather, I believe the Legislature intended to punish separately the
sexual offense that the defendant commits—even if that is the only conduct relied on to
elevate the crime of kidnapping to a first-degree felony under Section 30-4-1(B).

{53} For these reasons, I believe that the proper focus of our unitary conduct analysis
for kidnapping should be on the conduct used to accomplish the kidnapping itself, not
the conduct used to elevate the kidnapping to a first-degree felony offense (i.e., the
commission of a sexual offense). In other words, if there is sufficient indicia of
distinctness between the conduct used to accomplish the kidnapping—in this case, the
“unlawful taking, restraining, transporting or confining of [Victim], by . . . deception, with
intent . . . to inflict . . . a sexual offense[,]” see § 30-4-1(A)(4)—and the force used to
accomplish the sexual offense, Defendant’s conduct underlying the two crimes should
not be considered unitary for purposes of our double jeopardy analysis. See State v.
Simmons, 

, 

 (“In specifically analyzing whether the
conduct underlying kidnapping and [sexual offense] 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 [the sexual offense.]” (alterations, internal quotation
marks, and citation omitted)).

{54} This is consistent with our case law. For example, in Ramos, we rejected the
defendant’s argument that he was subjected to multiple punishments because the state
used his kidnapping conviction to raise his CSP charge from a third-degree to a second-degree felony, as well as an independent felony. 

, ¶ 27. In Ramos, we
noted that “[s]imilar statutory provisions sharing certain elements may support separate
convictions and punishments where examination of the facts presented at trial
establishes that the jury reasonably could have inferred independent factual bases for
the charged offenses.” 

, ¶ 27 (alteration, internal quotation marks, and
citation omitted). Given the victim’s testimony that “after [the d]efendant completed the
drive into the desert against her will, during which time [the d]efendant restricted her
movements, [the d]efendant tried to remove [the victim]’s clothes and told her that he
was going to have sex with her[,] . . . the jury could have inferred from facts other than
the CSP itself that [the d]efendant intended to hold the victim against her will from the
moment of the abduction.” Id. ¶ 28.

{55} In Dominguez, the state charged the defendant with second-degree criminal
sexual penetration (CSP-II) and first-degree kidnapping on the basis that the defendant
inflicted a sexual offense on the victim. 

. Although the jury
convicted the defendant of both counts, the district court reduced his conviction to a
second-degree felony because the jury had not been given the then-current special
verdict form containing specific interrogatories asking whether the jury found that the
defendant committed a sexual offense upon the victim. Id. ¶¶ 13-14. On appeal, the
defendant argued that his convictions violated double jeopardy because “the force or
restraint associated with the CSP II [was] the same force or restraint associated with
kidnapping.” Dominguez, 

. We concluded that the defendant’s
conduct was not unitary because he had completed the kidnapping before he moved
the victim to another bedroom, where he committed the CSP. Id. ¶ 10. Importantly, we
further held that the district court erred in reducing the defendant’s kidnapping
conviction to a second-degree—despite the absence of the special verdict form—
because “the jury unquestionably found beyond a reasonable doubt that [the d]efendant
committed a sexual offense against [the v]ictim when it returned a guilty verdict on CSP
II.” Id. ¶ 19. Thus, we concluded the defendant was guilty of both first-degree
kidnapping and the underlying sexual offense. Id. ¶ 29.

{56} Similarly, in Montoya, we considered whether the defendant’s right to be free
from double jeopardy was violated when he was convicted of both CSP II (commission
of a felony) and the predicate felony of either aggravated burglary or kidnapping. 2011-
NMCA-074, ¶ 28. After holding that the conduct underlying the CSP II conviction and
the aggravated burglary conviction was not unitary, id. ¶¶ 33-34, we turned to the
defendant’s kidnapping conviction. Id. ¶ 35. We began our analysis by explaining,
“[U]nitary conduct occurs when the state bases its theory of kidnap[p]ing on the same
force used to commit CSP II (commission of a felony) even though there were
alternative ways to charge the crime.” Id. ¶ 37. We noted that the conduct underlying
the CSP II and kidnapping convictions could be unitary depending on the jury’s basis for
when the kidnapping occurred, which was unclear from the record. Id. ¶¶ 39-40.
“Because one of the alternative bases for kidnap[p]ing was the force of restraining [the
v]ictim and because that force was the same force used to commit CSP, we conclude[d]
that the conduct underlying both of the convictions was unitary.” Id. ¶ 39.

{57} In evaluating legislative intent under the second prong of our double jeopardy
analysis, we examined the jury instructions and determined that the CSP II instruction
“required the jury to find that [the d]efendant caused [the v]ictim to engage in sexual
intercourse during the commission of kidnap[p]ing or aggravated burglary.” Id. ¶ 41.
Accordingly, we concluded that the kidnapping conviction was subsumed within the
CSP II conviction because the latter required proof of all of the elements of the former.
Id. ¶ 42. However, we noted that “[t]his holding d[id] not mean that a defendant could
never be punished for both kidnap[p]ing and CSP II (commission of a felony).” Id. ¶ 43.
“Had the jury in this case been instructed only on a theory based on non-unitary conduct
to establish kidnap[p]ing[,]” we observed “convictions for both CSP II (commission of a
felony) and kidnap[p]ing may have been upheld.” Id.

{58} In this case, the record clearly indicates that the State did not base its theory of
kidnapping on the same force used to commit the CSCM. In closing, the State made
clear that it based its theory of kidnapping on Defendant’s use of deception and not the
same force used to commit the CSCM, stating,

      So is [Defendant] guilty of kidnapping? You betcha. And how do we know
      that? Because [Defendant] took, restrained, confined or transported
       [Victim] by force, intimidation or deception. And, really, in this case is the
       deception, the “[c]ome with me, little girl. I’ve got something to show you.”

And there was substantial evidence supporting this theory. Victim testified that
Defendant grabbed her by the hood of her jacket, pulled her outside onto the windowsill,
and put his arm around her mouth. He then told her that he wanted to show her
something, which peeked Victim’s curiosity, prompting her to follow Defendant across
the street as Defendant held her hand “really tight[ly.]” At that point in time, the
kidnapping by deception was complete, although continuing. See Dominguez, 2014-
NMCA-064, ¶ 10 (“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, 

, ¶ 25,

, 

 (holding that “[t]he jury could have found that [the d]efendant
kidnapped the victim by deception when he initially offered her a ride home from the
mall with another intent in mind”).

{59} It was not until Defendant brought Victim into his bedroom, propped a box spring
over the entryway, and forced Victim to sit on his bed, despite her protestations, that
Defendant committed the CSCM by running his hand over Victim’s breasts. Accordingly,
I would hold that Defendant’s conduct underlying the kidnapping and CSCM was not
unitary, and therefore, his convictions for both crimes do not violate double jeopardy.
See State v. Bernal, 

, 

, 

 (“If the conduct
is not unitary, then the inquiry is at an end and there is no double jeopardy violation.”);
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)).

CONCLUSION

{60} To summarize, I would hold that (1) Defendant’s convictions for first-degree
kidnapping and enticement of a child do not violate double jeopardy because the
Legislature intended to punish the two crimes separately, and (2) Defendant’s
convictions for first-degree kidnapping and CSCM do not violate double jeopardy
because they were based on non-unitary conduct.

JACQUELINE R. MEDINA, Judge