State v. Torres

                                                                   Office of the
                                                                       Director    New Mexico
                                                                                   Compilation
                                                                    2021.10.05     Commission
                                                               '00'06- 15:15:39
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: August 13, 2020

Nos. A-1-CA-37642 and A-1-CA-38099

STATE OF NEW MEXICO,

      Plaintiff-Appellant,

v.

GERARDO TORRES,

      Defendant-Appellee.

and

STATE OF NEW MEXICO,

      Plaintiff-Appellant,

v.

KENDALE HENDRIX,

      Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Steven E. Blankinship, District Judge

Certiorari Granted, November 9, 2020, No. S-1-SC-38484. Released for Publication
October 12, 2021.

Hector H. Balderas, Attorney General
Marko D. Hananel, Assistant Attorney General
Santa Fe, NM

for Appellant

Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Victor E. Sanchez, Jr., Assistant Appellate Defender
Albuquerque, NM
for Appellees

                                                 OPINION

DUFFY, Judge.

{1}     These appeals arise from separate and apparently unrelated incidents of cattle
rustling in Otero County occurring some eighteen months apart. Defendant Gerardo
Torres, accused of thefts occurring on two dates in early 2017, and Defendant Kendale
Hendrix, accused of a theft occurring in August 2018, were each charged with multiple
counts of larceny (livestock)—one count per head—contrary to NMSA 1978, Section 30-
16-1(G) (2006). In both cases, the district court granted Defendants’ motions to merge
the larceny counts in their respective indictments based on the single-larceny doctrine
and on double jeopardy grounds. Because the State’s appeals in both cases address
identical issues on substantially similar facts, we exercise our discretion to consolidate
them for decision. See Rule 12-317(B) NMRA. We conclude the district court correctly
determined the unit of prosecution and affirm both orders.

BACKGROUND

{2}     For purposes of evaluating Defendants’ multiplicity arguments, the district court
accepted the parties’ stipulations to treat as true the factual allegations contained in
affidavits accompanying the criminal complaint or the arrest warrant in their respective
cases. See Herron v. State, 

, ¶ 6 n.4, 

, 

(“We use the term ‘multiplicity’ to describe the situation when an indictment charges a
single offense in different counts.”). On appeal, the parties do not dispute the factual
predicate underlying the charges, 1 and pursuant to State v. Foulenfont, we review the
legal issues raised in these appeals in light of the uncontested factual predicates
presented to the district court. 

, ¶¶ 4-6, 

, 

(concluding that the district court had authority to consider the defendants’ pretrial
motion to dismiss two counts in the indictment where the defendants argued that the
factual predicate underlying the charges did not fit within the definition of burglary, the
state did not dispute the defendants’ characterization, and the state focused on whether
a “fence” comes within the definition of “structure” in the statute, rendering the argument
a purely legal question).

The Torres Case

{3}    Defendant Torres was an employee at Crossroads Cattle Company. On June 1,
2017, the ranch foreman at Crossroads observed that the calf crop in one of the
pastures was substantially low—about 40-50 percent compared to 80-90 percent in the
other pastures. Approximately three weeks later, Peewee Serna advised the ranch

1Defendants stated in their answer briefs that for purposes of these appeals, they accept as true the
allegations set forth in the affidavits. Although the State contends on appeal that the facts set forth in the
affidavits are not adequate to determine whether there was a single offense or multiple offenses, the
State does not otherwise dispute the characterization of the factual predicates underlying the charges.
foreman that Defendant Torres had stolen and sold unbranded calves; Peewee stated
that he had unwittingly helped Defendant Torres load about thirteen unbranded calves
in January and more later. When questioned by the foreman, Defendant Torres
admitted to stealing thirteen head in January 2017. Officer Skylar Davis, an
enforcement officer with the New Mexico Livestock Board, obtained copies of market
inspections for sales at the Rio Grande Livestock Auction in El Paso, Texas, which
showed that Defendant Torres had sold a total of eighteen calves on two dates. The
ranch foreman at Crossroads told Officer Davis that Crossroads had never sold cattle at
that auction and employees are not allowed to keep their own cattle on the ranch. The
State subsequently filed a criminal information charging Defendant Torres with eighteen
counts of larceny of livestock.

The Hendrix Case

{4}    Defendant Hendrix was “known to be a hauler of cattle for the Ganada Cattle
Company.” Although Defendant Hendrix’s own accounts varied, he generally admitted
that he and Skeeter Chadwick, an employee of Ganada, made arrangements to take
twenty-five head of no-brand cattle from Ganada to San Angelo, Texas to sell them.
Chadwick apparently offered to pay Defendant Hendrix three times the normal rate for
hauling.

{5}    Defendant Hendrix picked up twenty-five head from Ganada on August 28, 2018,
and while he and Chadwick were on the road to Texas, an off-duty cattle inspector
spotted them and reported a possible illegal shipment to the New Mexico Livestock
Board. Once the men arrived at the San Angelo Sale Barn, a special ranger for the
Texas Southwest Cattle Raisers noted that the men unloaded twenty-four head of no-brand cattle, mixed in breed and color, with no ear tags or ear marks; one calf was too
weak to walk off the trailer on its own and was later euthanized. When questioned,
Defendant Hendrix stated that he had loaded up the cattle alone in Dell City, Texas, and
that the cattle belonged to him. Defendant Hendrix then checked the cattle into the Sale
Barn under his name. In a later interview with an inspector for the New Mexico
Livestock Board, Defendant Hendrix indicated that he acted at Chadwick’s direction, but
stated that Chadwick told him “that he could get the money for the cattle, keep his
$1200, and Chadwick would get the rest.” A grand jury indicted Defendant Hendrix on
twenty-five counts of larceny of livestock. 2

Procedural Background

{6}    Defendant Torres filed a pretrial motion asking the district court to merge the
larceny counts into a single charge. He argued that the multiple larceny charges violate
double jeopardy principles under the circumstances and that the single larceny doctrine,
which defines the taking of multiple articles of property from the same owner at the
same time and place as a single transaction, allows the court to merge the larceny
charges into a single count before trial as a matter of law. See State v. Alvarez-Lopez,

, 

, 

 (defining the single-larceny

2Chadwick was also charged and prosecuted separately.
doctrine). The State did not file a response. After conducting a hearing and considering
the oral arguments of both the State and Defendant Torres, the district court granted the
motion on June 13, 2018, holding that under the facts stipulated to by the parties, no
more than two larcenies occurred. After the district court declined the State’s motion to
reconsider, the State sought an interlocutory appeal.

{7}     When Defendant Hendrix was indicted later that year, his case was assigned to
the same district court judge. Defendant Hendrix also filed a motion to merge his
larceny charges on substantially the same basis. The district court considered the
State’s response but ultimately granted the motion, applying the same analysis set forth
in its earlier order in Defendant Torres’s case. The State pursued pretrial appeals in
both cases. 3

DISCUSSION

{8}     The State’s appeals ask us to consider the unit of prosecution for larceny of
livestock under Section 30-16-1(G) and determine whether, under the circumstances
presented in these cases, the Legislature intended to punish the theft of multiple
animals as a single offense or to allow separate punishments for each animal taken.
See State v. Ramirez, 

, 

 (“[T]he unit of prosecution
defines how many offenses the defendant has committed. It determines whether
conduct constitutes one or several violations of a single statutory provision.” (internal
quotation marks and citation omitted)); Swafford v. State, 

, ¶ 8, 

, 

 (“The relevant inquiry in [a unit of prosecution case] is whether
the legislature intended punishment for the entire course of conduct or for each discrete
act.”). For three decades, our courts have evaluated the Legislature’s intent with respect
to the unit of prosecution by applying the analytical approach set forth in Herron, 1991-
NMSC-012. First, we ask “whether the statute clearly defines the unit of prosecution,
which is purely a legal question.” State v. Olsson (Olsson I), 

, 

, 

 (alterations, internal quotation marks, and citation omitted). If
the statutory language spells out the unit of prosecution, the inquiry is complete. State v.
Gallegos, 

, 

, 

. But if it does not, then
courts traditionally move to the second step, “in which we determine whether a
defendant’s acts are separated by sufficient ‘indicia of distinctness’ to justify multiple
punishments under the same statute.” 

 (internal quotation marks and citation
omitted). But see Olsson I, 

 (evaluating a defendant’s pretrial
appeal after the district court denied his request to merge sixty counts of sexual
exploitation of children into a single count, and concluding that while the statutory
language does not clearly define the unit of prosecution, this Court could not apply the
second step of the Herron analysis because there had been no trial or evidentiary



3Although the State pursued both appeals through applications for interlocutory review, we construed
them as direct appeals pursuant to NMSA 1978, § 39-3-3(B)(1) (1972) (stating that the state may appeal
within “thirty days from a decision, judgment or order dismissing a complaint, indictment or information as
to any one or more counts”), because the district court’s orders practically resulted in the dismissal of
multiple counts against each Defendant.
hearing to develop the facts). “[B]oth stages of the unit of prosecution analysis turn on
legislative intent.” Gallegos, 

.

A.     The Plain Meaning of the Statutory Language is Ambiguous

{9}     Under the first step of the unit of prosecution analysis, we are mindful that “[t]he
issue, though essentially constitutional, becomes one of statutory construction.” Herron,

, ¶ 6. While our courts often go no further than evaluating the plain
language of the statute, see, e.g., Olsson I, 

 (stating that we
proceed to the second step only if “the legislative intent is unclear after simply looking to
the statute”), in Herron, the Court also considered whether the legislative and statutory
history provided guidance on the Legislature’s intended unit of prosecution. See 1991-
NMSC-012, ¶ 8. In 2011, the New Mexico Supreme Court, borrowing intentionally from
the analysis applied in the double description line of double jeopardy cases, stated that
“when analyzing whether an ‘indicium of distinctness’ sufficiently separates the acts of
the accused to justify multiple punishment [in a unit of prosecution case], we remain
guided by the statute at issue, including its language, history, and purpose, as well as
the quantum of punishment that is prescribed.” Gallegos, 

(alteration omitted). Since then, the Court has included these considerations as part of
the first step of the analysis. State v. Swick, 

, 

(stating that “[i]f the unit of prosecution is not clear from the statute at issue, including its
wording, history, purpose, and the quantum of punishment that is prescribed” then
courts should move to the second step of the inquiry). Under the traditional or expanded
approach, our fundamental task remains the same: we are looking for a clear
expression that the Legislature intended to allow multiple punishments for a single act
or transaction. State v. Brown, 

, ¶ 8, 

, 

 (“Any
doubt will be resolved against construing ambiguous legislative intent in favor of
allowing multiple punishments for one act.”).

{10} The Legislature identified larceny of livestock as a felony offense in Section 30-
16-1(G), stating, “Whoever commits larceny when the property of value stolen is
livestock is guilty of a third degree felony regardless of its value.” The livestock provision
is a subsection of the general larceny statute, Section 30-16-1, 4 in which the Legislature


4Section 30-16-1 provides:
       A.       Larceny consists of the stealing of anything of value that belongs to another.
       B.       Whoever commits larceny when the value of the property stolen is two hundred fifty
   dollars ($250) or less is guilty of a petty misdemeanor.
       C.       Whoever commits larceny when the value of the property stolen is over two hundred fifty
   dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor.
       D.       Whoever commits larceny when the value of the property stolen is over five hundred
   dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth
   degree felony.
       E.       Whoever commits larceny when the value of the property stolen is over two thousand five
   hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third
   degree felony.
       F.       Whoever commits larceny when the value of the property stolen is over twenty thousand
   dollars ($20,000) is guilty of a second degree felony.
identified three categories of property: “ ‘generic’ property, with gradations of
punishment based on the monetary value of the property” and two specific types of
property—livestock and firearms. Alvarez-Lopez, 

 (discussing the
structure of the larceny statute). While our Supreme Court has held that the larceny
statute explicitly provides for separate punishments when a defendant steals generic
property and another category of property, see 

 (upholding separate convictions for
larceny of generic property and a firearm), our courts have not previously addressed
whether separate punishments are permitted under Section 30-16-1(G) for the theft of
multiple animals.

{11} The district court thoroughly reviewed the livestock provision and concluded that
Section 30-16-1(G) defines the unit of prosecution as a single offense regardless of the
number of animals taken. The court reasoned that the term “livestock” is used
consistently by our Legislature and elsewhere to refer to animals in aggregate and
concluded that “[t]he term ‘livestock’ is plural and, accordingly, it is the whole, or rather,
the aggregate of the parts, such that, a single offense exists irrespective of whether one
(1) or ten (10) animals or fowls were taken when the elements of the offense are the
same.” See, e.g., NMSA 1978, § 7-35-2(D) (2018) (“ ‘[L]ivestock’ means cattle, buffalo,
horses, mules, sheep, goats, swine, ratites and other domestic animals useful to
humans[.]”); NMSA 1978, § 77-1B-2(K) (2017) (“ ‘[L]ivestock’ means all domestic or
domesticated animals that are used or raised on a farm or ranch and exotic animals in
captivity and includes horses, asses, mules, cattle, sheep, goats, swine, bison, poultry,
ostriches, emus, rheas, camelids and farmed cervidae but does not include canine or
feline animals[.]”); NMSA 1978, § 77-16-2 (1977) (“ ‘[L]ivestock’ shall include domestic
animals such as cattle, horses, sheep, hogs, goats and buffaloes.”); NMSA 1978, § 30-
18-1.2(H) (2009) (“ ‘[L]ivestock’ means all domestic or domesticated animals that are
used or raised on a farm or ranch and exotic animals in captivity and includes horses,
asses, mules, cattle, sheep, goats, swine, bison, poultry, ostriches, emus, rheas,
camelids and farmed cervidae but does not include canine or feline animals.”).
Defendants advocate a similar construction on appeal, contending that the term
“livestock” is a collective noun that refers to a group as a single unit.

{12} The State challenges the district court’s interpretation, arguing that the statutory
language does not express a clear unit of prosecution. The State submits that the term
“livestock” refers only to a specific class of property separate from generic larceny. The
State also contends that “[t]reating the term livestock as strictly plural would require that
a defendant steal more than one [animal]” before criminal liability could attach—a result
the Legislature could not have intended.

{13} Although the district court indicated that it did not consider the term to be strictly
plural by stating in its order that “a single offense exists irrespective of whether one (1)
or ten (10) animals or fowls were taken” (emphasis added), we have previously held

       G.      Whoever commits larceny when the property of value stolen is livestock is guilty of a third
   degree felony regardless of its value.
       H.      Whoever commits larceny when the property of value stolen is a firearm is guilty of a
   fourth degree felony when its value is less than two thousand five hundred dollars ($2,500).
that where a term can be both singular and plural, it provides “no clear indication of a
unit-of-prosecution.” State v. Tidey, 

, 

 (concluding
that the unit of prosecution was unclear because “[n]either the legislative definition nor
[the statute] indicate whether ‘paraphernalia’ was intended to be construed as a singular
or plural noun”). The same conclusion is required here. The Legislature has not defined
“livestock” for purposes of Section 30-16-1(G) and its usage of the term within the
statute does not express a clear intent to punish the theft of multiple animals either
singly or separately. We conclude the statutory language is ambiguous.

B.      The History and Purpose of Section 30-16-1(G) Does Not Define a Clear Unit
        of Prosecution

{14} Because the plain language of the statute is not dispositive, we accept the
State’s invitation to explore the statute’s history, purpose, and quantum of punishment
in accordance with Gallegos and Swick.

{15} The larceny of livestock statute dates back to 1884, when our territorial
legislature enacted an “Act For The Protection of Livestock And Other Purposes.” The
Legislature stated in Section 68 of the Act that “[a]ny person who shall steal . . . or in
any manner deprive the owner of the immediate possession of any neat cattle, horse,
mule, sheep, goat, swine, or ass” was guilty of a felony. See 1884 Compiled Laws of
New Mexico, Title II, ch. I, § 68, C.L. 1885. 5 In Chapter I, Section 69 of the New Mexico
Laws of 1884, the Legislature added that the taking or stealing of “any animal or
animals herein referred to” shall be deemed to be grand larceny, subjecting the offender
to anywhere from one to ten years in the penitentiary “notwithstanding the value of such
animal or animals may be less than twenty dollars.” Id. 6

{16} This enactment remained in force and without substantial change until 1963,
when the Legislature incorporated larceny of livestock into the general larceny statute in
its current form. State v. Pacheco, 

, ¶ 13, 

, 

(“Until the adoption of Ch. 303, Laws 1963, provision had always been made for the
punishment of larceny of livestock in a section of our statutes separate from those
sections providing the punishments for other larcenies.”). Although the current version

5Section 68 states in its entirety: “Any person who shall steal, embezzle or knowingly kill, sell, drive, lead,
or ride away, or in any manner deprive the owner of the immediate possession of any neat cattle, horse,
mule, sheep, goat, swine, or ass; or any person who shall steal embezzle, or knowingly kill, sell, drive,
lead, or ride away, or in any manner apply to his own use any neat cattle, horse, mule, goat, sheep, ass,
or swine, the owner of which is unknown; or any person who shall knowingly purchase from any one not
having the lawful right to sell and dispose of the same, any neat cattle, horse, mule, sheep, swine, or ass,
shall be deemed guilty of a felony, and on conviction thereof in any court of competent jurisdiction, shall
be punished by imprisonment not less than one year nor more than five years, and by a fine not less than
five hundred dollars, nor more than five thousand dollars, at the discretion of the court.”
6Section 69 states in its entirety: “All cases which are by this act declared to be larceny, and in all cases
of felonious taking, stealing, riding, driving, leading, and carrying away of any animal or animals herein
referred to, the same shall be deemed and taken to be, and the courts of this Territory shall construe the
same to be grand larceny, subjecting the offender or offenders to be condemned to the penitentiary for a
term of not less than one year nor more than ten years, except as otherwise provided for in this act,
notwithstanding the value of such animal or animals may be less than twenty dollars.”
of the statute continues to classify larceny of livestock separately from other larcenies,
the Legislature removed language that would have been helpful in the present dispute.
In particular, the pre-1963 act defined the crime as the taking of “any animal or animals
herein referred to” and stated that the punishment attaches notwithstanding the value of
the “animal or animals”—a clearer suggestion that the Legislature then intended to
punish larceny of livestock as a single offense regardless of the number of animals
taken. The statute is less descriptive following Legislature’s substantial revision in 1963,
however, and nothing indicates whether the changes reflect a legislative effort to
streamline the statutory language while maintaining a consistent construction with the
prior act, or instead, whether the changes signal an intent to abandon and depart from
the earlier language. Given this, we cannot draw any definitive conclusions about the
Legislature’s intent from the statutory history.

{17} The State’s remaining arguments in favor of separate punishments focus on the
purpose and structure of the livestock provision. The statute’s purpose, according to an
Attorney General Opinion from 1930, “was to specially protect ownership in a particular
class of property rather than to prevent larceny in general.” N.M. Att’y Gen. Op. No. 30-
38 (1930); see Pacheco, 

, ¶ 18 (evaluating the modern larceny statute
and noting, “the larceny of livestock statute was apparently enacted to protect the
ownership thereof, to prevent a kind of larceny peculiarly easy of commission and
difficult of discovery and punishment, and to protect the important industry of stock
raising”). To that end, the Legislature has always treated larceny of livestock differently
from generic larceny in two ways. First, larceny of livestock has always occupied “a
section of our statutes separate from those sections providing the punishments for other
larcenies.” Pacheco, 

, ¶ 13. Second, larceny of livestock is punished
differently from generic larceny—it constitutes a third degree felony “regardless of [the
livestock’s] value.” Section 30-16-1(G); see also Pacheco, 

, ¶ 13
(noting that larceny of livestock is punished “based upon the nature of the thing stolen
(livestock), rather than upon the value of the thing stolen”).

{18} According to the State, these differences show a legislative intent to attach a
different unit of prosecution to larceny of livestock and to punish it more severely than
larceny of generic property. Although there is support for the notion that the specific
larceny classifications address different social concerns warranting separate
punishments when charged along with other forms of larceny, as was the case in
Alvarez-Lopez, the statutory structure does not reveal the Legislature’s intended unit of
prosecution within a particular category. 

 (concluding that the
structure of Section 30-16-1 indicates the Legislature considered the larceny of firearms
to be so serious it “created a separate offense within the general larceny statute for the
unlawful taking of a firearm” such that when the property stolen includes both generic
property and a firearm, multiple punishments are authorized).

{19} Nor does the quantum of punishment resolve the matter. See Gallegos, 2011-
NMSC-027, ¶ 33 (stating that the quantum of punishment is a relevant consideration).
Even if the Legislature’s designation of the crime as a third degree felony is an
indication that it considers larceny of livestock a serious offense, the State has not
shown that the level of punishment demonstrates a clear intent to allow multiple
punishments here. Cf. id. ¶ 53 (observing that the Legislature’s punishment scheme for
conspiracy based on the highest crime conspired provided additional support for the
conclusion that its intended unit of prosecution was based on the conspiratorial
agreement rather than its objectives). Unlike the generic larceny provisions and many
other property crimes, the Legislature determined to apply the same punishment
regardless of the value of the livestock stolen. Consequently, while the livestock
provision allows the theft of a single calf to be punished as a third degree felony, see
Pacheco, 

, ¶¶ 5, 19 (upholding the defendant’s conviction for theft of a
single calf against his equal protection challenge to the constitutionality of his sentence),
it can also be read to prescribe the same punishment regardless of the total, aggregate
value of the stolen livestock. Because value is simply not considered for this type of
larceny, comparing the potential for disparate punishments between the livestock
provision and the value-based generic larceny provisions, as the State advocates, is not
a sound methodology for identifying the Legislature’s intent. See State v. Olsson
(Olsson II), 

, ¶ 30, 

 (considering disparity in punishments
when comparing possession of child pornography under NMSA 1978, Section 30-6A-
3(A) (2007, amended 2016), to criminal sexual contact of a minor and concluding the
disparity may indicate the Legislature did not intend separate punishments).

{20} In the same manner, Defendants point out that larceny of livestock carries a
three-year basic sentence and thus the eighteen counts in Defendant Torres’s case
would result in a fifty-four-year basic sentence and the twenty-five counts in Defendant
Hendrix’s case would result in a seventy-five-year basic sentence—far exceeding the
punishments for higher-level violent offenses. See NMSA 1978, § 31-18-15(A)(11)
(2016, amended 2019) (stating the basic sentence for third degree felonies); cf. State v.
Santillanes, 

, 

, 

 (“There are a very
limited number of crimes in the Criminal Code that are designated as first degree
felonies, and these crimes are subject to a substantial sentence of eighteen years
imprisonment.”). Our courts have declined to consider the potential length of a sentence
as a guide in determining the appropriate unit of prosecution, noting that we generally
defer to the judgment of the Legislature concerning the appropriate punishment for
crimes. State v. Bernal, 

, 

, 

. We see
no reason to depart from that approach here.

{21} At the first step of our unit-of-prosecution analysis, however, we cannot conclude
that the Legislature intended to impose a separate punishment for each stolen animal
unless it is clear that the Legislature intended to do so. Based on our review of the
language, history, and purpose of Section 30-16-1(G), we do not find clear indicia of a
legislative intent to allow multiple punishments, and therefore conclude the Legislature’s
intent remains ambiguous.

C.     Single-Larceny Doctrine

{22} The single-larceny doctrine, also known as the single criminal intent doctrine, is
“a canon of construction used when the Legislature’s intent regarding multiple
punishments is ambiguous.” Alvarez-Lopez, 

 (holding that the
doctrine was inapplicable in that case because the Legislature’s intent was clear).
Fittingly, the doctrine originated in New Mexico in a cattle-rustling case in 1914. See
State v. Klasner, 

, ¶ 1, 

, 

.

{23} The traditional iteration of the single-larceny doctrine is that “when several
articles of property are stolen by the defendant from the same owner at the same time
and at the same place, only one larceny is committed.” State v. Rowell, 1995-NMSC-
079, ¶ 15, 

, 

 (alteration, internal quotation marks, and
citation omitted). In Klasner, the defendant was charged with the larceny of nineteen
head of calves belonging to unknown owners, and our Supreme Court recognized that
“a taking at one time or place of property belonging to several people constitutes a
single crime that cannot be separately punished.” State v. Brooks, 

,
¶ 5, 

, 

 (emphasis added) (citing Klasner, 

,
¶ 2); see also Brown, 

, ¶ 8 (noting that because larceny is defined as
“the stealing of anything of value which belongs to another[,] . . . the state need not
prove ownership in a particular person; proof that the property belonged to someone
other than the defendant is sufficient” (internal quotation marks and citation omitted)).
“The determinative element was that there had been one transaction even though the
property belonged to several individuals.” Brooks, 

, ¶ 5.

{24} In 1955, our Supreme Court applied the single-larceny doctrine to a series of
takings from a single owner. State v. Allen, 

, ¶ 5, 

, 

. “There, [the Court] focused not on the number of transactions, but on the
intent of the defendant[,]” stating:

       Where the property is stolen from the same owner and from the same
       place by a series of acts, if each taking is the result of a separate,
       independent, impulse, each is a separate crime; but if the successive
       takings are all pursuant to a single, sustained, criminal impulse and in
       execution of a general fraudulent scheme, they together constitute a
       single larceny, regardless of the time which may elapse between each act.

Brooks, 

, ¶ 6 (internal quotation marks and citation omitted).

{25} The State urges us not to apply the single-larceny doctrine, arguing principally
that it is an antiquated relic that has been subsumed and replaced by the modern
double jeopardy analysis articulated in Herron. Contrary to the State’s position, this
Court specifically recognized the doctrine after Herron in Brown, 

, ¶ 13,
and our courts have consistently applied the doctrine in larceny and embezzlement
cases for over a century, continuing until this day. See State v. Pedroncelli, 1984-
NMSC-009, ¶ 10, 

, 

 (affirming the defendant’s single
conviction for embezzlement after considering the single-larceny doctrine and noting
that a fact-finder may determine whether the successive takings or conversions are
associated with a single, sustained criminal intent); Allen, 

, ¶ 8
(applying the single-larceny doctrine to a series of takings); Klasner, 

,
¶ 1 (holding that the taking of property from the same location at the same time,
although belonging to separate individuals, could be punished as a single crime); see
also State v. Krohn, No. A-1-CA-35546, mem. op. ¶ 12 (N.M. Ct. App. Apr. 8, 2019)
(non-precedential) (applying the single-larceny doctrine to the defendant’s multiple acts
of embezzlement); State v. Johnson, 

, ¶¶ 8-10, 

, 

 (applying the single-larceny doctrine to the defendant’s multiple convictions for
unlawful dealing in food coupons over time, a form of larceny); Brown, 

,
¶ 13 (concluding that application of the single-larceny doctrine to the defendant’s
multiple convictions for larceny from two separate victims would lead to a single larceny
because there was only one taking); State v. Boeglin, 

, ¶ 18, 

, 

 (applying the single-larceny doctrine to the defendant’s five
convictions for stealing five firearms and holding that the “taking of two or more articles
of property from the same owner at the same time and place [should] be prosecuted as
only one larceny”).

{26} Our holding in State v. Bernard does not require a different conclusion. 2015-
NMCA-089, ¶ 21, 

 (considering whether to extend the doctrine to the crime
of possession of a stolen vehicle). 7 We stated, “Even though our courts have
recognized the validity of the single-larceny doctrine, we see no indication that the
doctrine supersedes the well-established two-step legislative intent inquiry in a unit of
prosecution case.” 

 (citation omitted). While the State interprets this statement to
mean that Herron does, in fact, supersede the single-larceny doctrine, we do not
consider the two doctrines to be mutually exclusive or in conflict. As Justice Minzner
wrote in Alvarez-Lopez, the single-larceny doctrine applies only where the Legislature’s
intent regarding multiple punishments is unclear—meaning, in practice, that the doctrine
can only apply after engaging in the first step of the unit of prosecution analysis and
only then if the Legislature’s intent remains ambiguous. 

.
Because neither Bernard nor Alvarez-Lopez involved questions of how to apply the
single-larceny doctrine after the first step, they offer no guidance on how we should do
so here. See Sangre de Cristo Dev. Corp. v. City of Santa Fe, 

, ¶ 23,

7Bernard is consistent with a long line of cases that have declined to extend and apply the doctrine
outside of the context of larceny and embezzlement. See Bernal, 

 (declining to
extend the single-larceny doctrine to the crime of robbery); State v. Baca, 

, 

, 

 (declining to extend the single-larceny doctrine to the crime of forgery); Rowell,

, ¶ 20 (declining to extend the doctrine where the larcenous scheme involved multiple
victims, locations, and time periods); Bernard, 

 (declining to extend the single-larceny doctrine to the crime of possession of a stolen vehicle); State v. Boergadine, 

, 

, 

 (declining to extend the single-larceny doctrine to the crime of fraud);
State v. Morro, 

, 

, 

 (declining to extend the single-larceny doctrine to the crime of defacing tombs).
This fact, in combination with Bernard’s unique analytical approach to the unit of prosecution in
possession cases, renders Bernard substantively distinguishable and inapplicable to the unit of
prosecution analysis in this case. Bernard, 

 (discussing the unit of prosecution
analysis for possession after our Supreme Court determined that the Herron indicia of distinctness factors
did not apply in Olsson II). We decline the State’s request to apply a similar analysis and to consider the
statutory and regulatory scheme for livestock as part of either the first step of the unit of prosecution
analysis, as the State advocates in the Torres appeal, or as an indicia of distinctness in the second step
of the analysis, as the State advocates in the Hendrix appeal. See id. ¶¶ 28-30 (examining, for purposes
of the second step of the analysis, the state’s regulatory scheme as evidence of the Legislature’s intent).


, 

 (“The general rule is that cases are not authority for
propositions not considered.”).

{27} As the State correctly observes, our courts have never squarely reconciled the
single-larceny doctrine with the modern unit of prosecution analysis. See Brown, 1992-
NMCA-028, ¶ 13 (affirming the validity of the single-larceny doctrine after engaging in
the second step of the Herron analysis and concluding that “had we applied it rather
than Herron, we would have reached the same result”). Our Supreme Court’s
characterization of the doctrine as “a canon of construction used when the Legislature’s
intent regarding multiple punishments is ambiguous” signals that it functions as a rule or
principle that guides interpretation of the statute to resolve the ambiguity. See Alvarez-Lopez, 

; Cannon of Construction, Black’s Law Dictionary (11th
ed. 2019) (defining “canon of construction” as “ [a] rule used in construing legal
instruments, esp. contracts and statutes; a principle that guides the interpreter of a
text”). When we apply the single-larceny doctrine to interpret the unit of prosecution in
the larceny of livestock provision, it clarifies that a taking of multiple head of cattle at the
same time and place (single transaction), or a series of takings from a single owner with
a single criminal intent (single intent), constitute but one larceny. Brooks, 1994-NMSC-
062, ¶¶ 5-6.

{28} Consequently, the district court did not err in either of the cases before us.
Pursuant to the single-larceny doctrine, Defendant Hendrix could be found guilty of only
one larceny of livestock because he is alleged to have stolen multiple head of cattle
from the same owner at the same time and place. In other words, he is accused of
stealing the cattle in a single transaction. For similar reasons, Defendant Torres, who
allegedly stole multiple head of cattle from the same owner on two separate days, can
be found guilty of no more than two larcenies of livestock. See id. ¶ 9 (“[F]actual
questions of intent must be decided by the jury unless the trial court can say under the
circumstances that, as a matter of law, the act is either a separate crime or part of a
broader scheme or plan.”).

CONCLUSION

{29} Because we hold that the district court correctly determined the applicable unit of
prosecution in both cases, we affirm its orders and remand for further proceedings
consistent with this opinion.

{30}   IT IS SO ORDERED.

MEGAN P. DUFFY, Judge

WE CONCUR:

J. MILES HANISEE, Chief Judge

ZACHARY A. IVES, Judge