State v. Benally

                                                                     Office of the
                                                                         Director           New Mexico
                                                                                            Compilation
                                                                      2022.08.19            Commission
                                                                 '00'06- 14:52:32
             IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: May 20, 2021

No. S-1-SC-37613

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

MILO BENALLY,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
John A. Dean, Jr., District Judge

Released for Publication August 31, 2021.

Hector H. Balderas, Attorney General
Walter M. Hart, III, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Respondent

                                        OPINION

VIGIL, Justice.

{1}     We granted certiorari to review whether Defendant Milo Benally’s two convictions
for “[p]ossession of deadly weapon or explosive by prisoner,” NMSA 1978, § 30-22-16
(1986), violated his double jeopardy rights under the United States and New Mexico
Constitutions. State v. Benally, 

, ¶¶ 23-24, 

. More
specifically, we are asked to consider “whether the [L]egislature intended” to punish
Defendant for his “entire course of conduct” in possessing two deadly weapons while
incarcerated, or “whether the [L]egislature intended” to punish Defendant separately “for
each discrete act” or weapon possessed. Swafford v. State, 

, ¶ 8, 

, 

. This case thus presents a question about the intended unit of
prosecution under Section 30-22-16.

{2}   The Court of Appeals held that Section 30-22-16 was ambiguous as to its
intended unit of prosecution and that Defendant’s conduct was not sufficiently distinct to
support multiple punishments. Benally, 

, ¶¶ 13-23. We affirm the Court
of Appeals and, like that court, id. ¶ 24, remand to the district court to vacate one of
Defendant’s convictions. Nevertheless, we write to reemphasize the relevant inquiry of
our two-step framework for reviewing questions of double jeopardy in which a defendant
has received multiple punishments for violation of the same statute, such as in the case
presented here. See Herron v. State, 

, ¶ 12, 

, 

.

{3}    We begin by reviewing the background and procedural posture of this appeal.
Next, we set forth our standard of review and explain our two-step approach to
analyzing cases presenting issues of double jeopardy in unit of prosecution convictions.
We then analyze Defendant’s two convictions for possession of a deadly weapon by a
prisoner under Section 30-22-16 using this two-step framework. In the end, we affirm
the Court of Appeals and remand to the district court to vacate one of Defendant’s
convictions as violative of his double jeopardy rights.

I.     BACKGROUND

{4}    The underlying facts of this case were well detailed by the Court of Appeals, and
we incorporate that description here. Benally, 

, ¶¶ 2-5. We recite only
those facts we deem helpful to our analysis.

{5}     Following a “shakedown” search of Defendant’s dormitory-style pod, prison staff
found “two makeshift weapons” in Defendant’s bunk. Id. ¶¶ 2-4. The first weapon was “a
shaving razor with a playing card folded around it to form a handle.” Id. ¶ 3. This “razor
weapon” was found in the support bar of the bunk above Defendant’s bed. Id. The
second weapon was “a sharpened piece of the end of a plastic mop handle,” which was
found hidden inside Defendant’s mattress. Id. Also inside the mattress was a locking
ring from the same mop. In a nearby shower stall, prison staff found “orange plastic
shavings that matched the end of a mop handle . . . and similar residue ground into the
concrete lip of the shower pan.” Id. ¶ 3. Finally, in a utility closet used to store cleaning
supplies, prison staff found “that an end to one of the plastic mop handles had been
removed.” Id.

{6}     Defendant later made incriminating statements during an interview with prison
officials, expressing anger towards another inmate and insinuating that he knew prison
staff had found weapons in the dormitory. Id. ¶ 4. However, Defendant did not fully
admit to possessing the weapons, id., and later testified that he had never seen the
razor weapon, mop weapon, or mop locking ring prior to trial.

{7}    The jury convicted Defendant of two counts of possession of a deadly weapon by
a prisoner, contrary to Section 30-22-16. Benally, 

, ¶ 5. Defendant
received a nine-year sentence for each conviction, NMSA 1978, § 31-18-15(A)(7)
(2007, amended 2019), and each sentence was enhanced by eight years because
Defendant was a three-time habitual offender under NMSA 1978, § 31-18-17(C) (2003).
In total, Defendant was sentenced to thirty-four years.

{8}    Defendant sought reversal of his convictions on two grounds before the Court of
Appeals. Benally, 

, ¶ 1. First, he asserted that his convictions were not
supported by sufficient evidence because the State failed to show that Defendant
possessed the two weapons. Id. ¶ 6. The Court of Appeals disagreed and found the
evidence sufficient for the jury to infer Defendant’s constructive possession. Id. ¶¶ 9-10,
12. We denied Defendant’s petition for certiorari on the sufficiency of the evidence
issue, and that issue is not before this Court.

{9}    Second, and pertinent to our review, Defendant argued that his convictions
violated his right under principles of double jeopardy to be free from multiple
punishments for the same conduct under the same criminal statute. Id. ¶ 13. The Court
of Appeals agreed and vacated one of Defendant’s convictions as violative of his double
jeopardy rights. Id. ¶ 23. The State appealed, challenging the Court of Appeals’
conclusion that there were not “sufficient indicia of distinctness to support Defendant’s
separate convictions under Section 30-22-16,” id., and arguing that “the Legislature
intended . . . to permit a separate charge [and resultant punishment] for each deadly
weapon found in possession of a prisoner.” We granted certiorari only as to this double
jeopardy issue.

II.    STANDARD OF REVIEW

{10} “The Fifth Amendment of the United States Constitution, made applicable to the
states by the Fourteenth Amendment Due Process Clause, and Article II, Section 15 of
the New Mexico Constitution each protect defendants against multiple punishments for
the same offense.” State v. Alvarez-Lopez, 

, 

, 

. However, “[i]n the multiple punishment context, the Double Jeopardy Clause
does no more than prevent the sentencing court from prescribing greater punishment
than the [L]egislature intended.” Swafford, 

, ¶ 7 (brackets omitted)
(internal quotation marks and citation omitted). The issue, though constitutional,
becomes “primarily one of legislative intent,” because “[m]ultiple punishments run afoul
of the double jeopardy clause only where the Legislature has not authorized multiple
punishments.” State v. Ellenberger, 

, ¶ 17, 

, 

.

{11} We have identified two types of multiple punishment cases: “cases in which a
defendant has been charged with multiple violations of a single statute based on a
single course of conduct, known as unit of prosecution cases; and cases in which a
defendant is charged with violations of multiple statutes for the same conduct, known as
double-description cases.” State v. DeGraff, 

, 

, 

 (internal quotation marks and citation omitted). “While the analysis for each
type of case focuses on whether the Legislature intended multiple punishments, the
particular canons of construction we apply in ascertaining the Legislature’s intent
depend on the specific type of multiple punishment case in front of us.” Alvarez-Lopez,

 (citation omitted). This is a unit of prosecution case where “the
relevant inquiry . . . is whether the [L]egislature intended punishment for the entire
course of conduct or for each discrete act.” Swafford, 

, ¶ 8. We review
this question de novo. State v. Olsson, 

, 

.

III.   DISCUSSION

A.     Two-Step Analytical Framework for Unit of Prosecution Cases

{12} We have previously articulated a two-step framework for analyzing questions
about the intended unit of prosecution of a criminal statute. Herron, 

, ¶¶
6, 15. Throughout both steps of our unit of prosecution analysis, our focus remains on
whether a defendant has received more punishments than the number of punishments
that the Legislature intended to authorize under the facts and circumstances of the
case. See Swafford, 

, ¶ 7.

{13} Under the first step of our framework, we “must analyze the statute to determine
whether the Legislature has defined the unit of prosecution and, if the statute spells out
the unit of prosecution, then the court follows that language and the inquiry is complete.”
Olsson, 

. The purpose of this first step is to ascertain the
legislative intent as to the unit of prosecution or, in other words, to determine what
conduct the Legislature “has defined [as] a statutory offense” or “[w]hether a particular
course of conduct involves one or more distinct offenses under the statute.” Sanabria v.
United States, 

 (1978). Our prior caselaw makes clear that we should
consider all markers of legislative intent in construing the unit of prosecution defined by
a criminal statute, including the wording, structure, legislative history, legislative
purpose, and quantum of punishment prescribed under the statutory scheme. State v.
Swick, 

; 

; State v. Gallegos, 

, 

, 

; Olsson, 

; DeGraff, 2006-
NMSC-011, ¶¶ 32-34. We note, however, that some of our unit of prosecution
precedents may have not explicitly discussed all potentially relevant canons of statutory
construction. See, e.g., State v. Bernal, 

, 

, 

 (“If the statutory language spells out the unit of prosecution, then we follow the
language, and the unit-of-prosecution inquiry is complete. If the language is not clear,
then we move to the second step.” (citation omitted)); see also State v. Torres, 2021-
NMCA-045, ¶ 9, 

 (explaining that the “fundamental task” in a unit of
prosecution analysis is to “look[] for a clear expression that the Legislature intended to
allow multiple punishments for a single act or transaction” but acknowledging that “our
courts often go no further than evaluating the plain language of the statute”), cert.
granted, S-1-SC-38484 (Nov. 9, 2020). We thus reaffirm that our analysis remains
focused on construing the legislatively intended unit of prosecution, and we emphasize
the proper role of all relevant canons of statutory construction in ascertaining that intent.

{14} After consideration of these markers of legislative intent, if we are able to
decipher the Legislature’s intended unit of prosecution, then our inquiry is complete.
See Olsson, 

. However, if the statute remains “insurmountably
ambiguous” as to its intended unit of prosecution, then we apply yet another canon of
construction—the rule of lenity—and construe the statute in favor of the defendant. See
id. ¶¶ 43-45. Under the rule of lenity, we presume that the Legislature did not intend to
split a defendant’s single course of conduct into separately punishable acts. Cf.
Swafford, 

, ¶ 8 (describing rule of lenity as a “presumption of lenity that,
absent an express indication to the contrary, the legislature did not intend to fragment a
course of conduct into separate offenses”); Bell v. United States, 

(1955) (explaining that the rule of lenity “means that if Congress does not fix the
punishment for a federal offense clearly and without ambiguity, doubt will be resolved
against turning a single transaction into multiple offenses”).

{15} We emphasize that the statute must be found to be “insurmountably ambiguous”
as to its intended unit of prosecution before resorting to the rule of lenity. Olsson, 2014-
NMSC-012, ¶ 45. As we stated previously,

       . . . The rule of lenity counsels that criminal statutes should be interpreted
       in the defendant’s favor when insurmountable ambiguity persists regarding
       the intended scope of a criminal statute.

               There are limits, however, to the rules of lenity and strict
       construction. A criminal statute is not ambiguous for purposes of lenity
       merely because it is possible to articulate a construction more narrow than
       that urged by the Government. Nor does a division of judicial authority
       regarding the proper construction of a particular statute automatically
       trigger lenity. Rather, lenity is reserved for those situations in which a
       reasonable doubt persists about a statute’s intended scope even after
       resort to the language and structure, legislative history, and motivating
       policies of the statute.

State v. Ogden, 

, ¶¶ 25-26, 

, 

 (brackets
omitted) (internal quotation marks and citations omitted). Thus, we will construe a
statute in favor of a defendant only when “a reasonable doubt persists about a statute’s
intended” unit of prosecution “even after resort” to the statute’s wording, structure,
legislative history, legislative purpose, and the quantum of punishment prescribed. 

(internal quotation marks and citation omitted).

{16} The rule of lenity requires us to presume that the Legislature did not intend to
separately punish discrete acts in a defendant’s course of conduct “absent proof that
each act . . . [was] in some sense distinct from the others.” Herron, 

, ¶
15. After applying the rule of lenity to our interpretation of the statute’s unit of
prosecution, we then turn to the second step of our analysis in which we consider
“whether a defendant’s acts are separated by sufficient indicia of distinctness to justify
multiple punishments.” Olsson, 

 (internal quotation marks and
citation omitted).

{17} “Under the second step of the unit-of-prosecution analysis, we ‘determine
whether a defendant’s acts are separated by sufficient indicia of distinctness to justify
multiple punishments under the same statute.’” State v. Ramirez, 

, 

 (quoting Bernal, 

). Determining unit of
prosecution by analyzing indicia of distinctness again “amounts to a canon of
construction” that guides our interpretation of the statutory text. State v. Morro, 1999-
NMCA-118, ¶ 11, 

, 

. If a defendant’s acts “constitute[]
‘separate offenses under the statute, we will presume that to be the legislative intent,
until the Legislature amends the statute to indicate otherwise.’” Ramirez, 2018-NMSC-
003, ¶ 56 (quoting Morro, 

). “Thus, if the defendant commits
‘discrete acts violative of the same statutory offense, but separated by sufficient indicia
of distinctness, then a court may impose separate, consecutive punishments for each
offense.’” State v. Barr, 

, 

, 

 (quoting
Swafford, 

, ¶ 26).

{18} We emphasize that our analysis of indicia of distinctness is, like our analysis
under the first step, “guided by the statute at issue, including its language, history, and
purpose, as well as the quantum of punishment that is prescribed.” Gallegos, 2011-
NMSC-027, ¶ 33. While we agree with the Court of Appeals that “the relevant inquiry” of
the second step of the framework is “whether the Legislature intended for multiple
punishments to be imposed under the specific facts of a given case,” Benally, 2019-
NMCA-048, ¶ 23, we clarify that the legislative purpose and intent in enacting the
statute is controlling to this analysis. Cf. Bernal, 

 (“In examining
the indicia of distinctness, courts may inquire as to the interests protected by the
criminal statute, since the ultimate goal is to determine whether the legislature intended
multiple punishments.”). This is because our focus under this second step is whether a
defendant’s acts can be distinguished as discrete violations of the conduct the
Legislature intended to proscribe. Cf. Herron, 

, ¶ 15 (identifying
relevant indicia of distinctness by considering the factors courts have found dispositive
in distinguishing the relevant criminal acts); State v. Frazier, 

, ¶¶ 66-68
n.4, 

, 

 (Chávez, J., specially concurring) (“[W]hether the
conduct underlying each charged offense—even if [each violates] the same statute, and
thus [the multiple charges constitute] a unit-of-prosecution case—is part of the ‘same
act or transaction’ depends upon what conduct the Legislature intended to proscribe—
not simply upon the temporal or spatial separation between the defendant’s discrete
actions.”).

{19} In Herron, we articulated six indicia that a court may consider when analyzing
whether a defendant’s acts are sufficiently distinct so as to support separate
punishments under the same statute: (1) time between criminal acts, (2) location of the
victim during each act, (3) existence of any intervening events, (4) sequence in
commission of the acts, (5) the defendant’s intent, and (6) the number of victims. 1991-
NMSC-012, ¶ 15. However, we did not attempt to “lay[] out a mechanical formula” for
evaluating indicia of distinctness in all circumstances and “sought instead to provide
‘general principles’ to aid in the analysis.” Bernal, 

 (citation
omitted). Thus, the six Herron indicia serve as a “general policy” for examining
distinctness, but in undertaking this analysis courts should “examine the elements of the
offense and any policy underlying the specific statute.” Morro, 

.
{20} For example, in Gallegos, we explained that the Legislature intended the crime of
conspiracy to punish the agreement among coconspirators “to achieve illegal
objectives” rather than punish the discrete objectives of that agreement. 2011-NMSC-
027, ¶¶ 60-62. Accordingly, we held that an individual defendant’s extended course of
conduct in pursuit of an agreement to kill the victim constituted a singular violation of the
conspiracy statute for which the defendant could be punished. See id. ¶¶ 62-64 (“We
are persuaded that this is the type of routine case on which the Legislature clearly
intended to impose one punishment.”). In Bernal, 

, we explained
that “[s]ince the robbery statute [was] designed to protect citizens from violence,” it was
then “logical that the legislature intended to allow for separate charges for each
individual against whom violence or the threat of violence is separately used.” And in
Morro, 

, the Court of Appeals reasoned that the individual and
societal interests protected by the Legislature’s prohibition against defacing tombs—that
“injury to each gravestone causes injury to the memory of a different [decedent] and is
likely to cause emotional distress to a different collection of living persons”—authorized
punishments against a defendant for each tomb he defaced.

{21} As such, while the Herron indicia provide a general approach for testing
distinctness, our inquiry is always guided by legislative intent. Thus, in Olsson we
concluded that the Herron indicia were not relevant to possession of child pornography
“where a defendant [did not have] direct contact with a victim.” Olsson, 2014-NMSC-
012, ¶ 39. We noted that “[p]ossession cases do not so neatly fit the Herron mold
because it is unclear when each of the factors would apply and the factors are
inconclusive when they do apply” to that offense. 

 However, the factual record was
not sufficiently developed for one of the Olsson defendants, id. ¶ 33, and the Court
could not discern what other indicia might have applied to the second defendant under
the language and purpose of the relevant statute. Id. ¶¶ 34-42. Accordingly, the Olsson
Court held “that the Herron factors are not applicable in possession cases and that the
indicia of distinctness factors do not determine the unit of prosecution.” Id. ¶ 42.

{22} For possession cases, other statutes and factual circumstances may supply the
guidance that is lacking in Olsson. Cf. State v. Bernard, 

, 

 (“[W]e do not believe that Olsson’s abandonment of Herron[] . . . requires a
wholesale departure from an indicia of distinctness analysis if the facts of a unit of
prosecution case render such analysis practicable.”). For example, our lower courts
have subsequently considered whether a defendant’s possessory acts were “sufficiently
separated by either time or space” or whether the “quality and nature of the acts or . . .
the objects and results involved” would support an inference that those acts were
distinct. Bernard, 

 (internal quotation marks omitted) (quoting
Swafford, 

, ¶ 28); see also State v. Tidey, 

, 

 (describing indicia of distinctness in a case where a defendant was charged
with multiple counts of possession of drug paraphernalia). We agree that, as a general
proposition, distinctions in time, space, quality and nature of the acts, or the objectives
and results involved may indicate that a defendant’s possessory acts would support
multiple punishments. Nevertheless, we once again emphasize that the distinctness
inquiry should be guided by legislative intent and the facts and circumstances of the
case. Cf. Bernal, 

 (“In each case, we attempt to determine, based
upon the specific facts of each case, whether a defendant’s activity is better
characterized as one unitary act, or multiple, distinct acts, consistent with legislative
intent.”). And the issue may, in some circumstances, involve factual questions
appropriate for a jury. Cf. Herron, 

, ¶ 16 (“[W]e are cognizant that,
when reasonable minds may differ, the question of what constitutes a separate and
distinct offense . . . may well reside with the jury.”).

{23} Finally, if we can reasonably infer that a defendant’s acts were distinct under the
applicable indicia of distinctness, then we will presume that the defendant has not
received more punishments than were statutorily authorized. See id. ¶ 21. If a
defendant’s acts are not sufficiently distinct, then we will return to our lenient
construction of the statute and presume that the defendant has received more
punishments than were statutorily authorized. See id. Accordingly, we will vacate
excess convictions as violative of the defendant’s double jeopardy rights. Id. ¶¶ 1, 22.

B.     Analysis of the Unit of Prosecution of Section 30-22-16

{24} In light of the foregoing, we now detail our review of Defendant’s multiple
convictions for possession of a deadly weapon by a prisoner under Section 30-22-16.

1.     First step: interpretation of the statutory text

{25} To discern the Legislature’s intent, we begin our analysis with the plain language
of Section 30-22-16. Olsson, 

 (“The plain language of the statute
is the primary indicator of legislative intent.”). Section 30-22-16 provides, “Possession of
deadly weapon or explosive by prisoner in lawful custody consists of any inmate . . .
possessing any deadly weapon or explosive substance. Whoever commits possession
of deadly weapon or explosive by prisoner is guilty of a second degree felony.” We read
this in conjunction with NMSA 1978, Section 30-1-12(B) (1963), which defines “deadly
weapon” to include “any weapon which is capable of producing death or great bodily
harm, including but not restricted to any types of daggers . . . and all such weapons with
which dangerous cuts can be given, or with which dangerous thrusts can be inflicted.”

{26} The State, Defendant, and Court of Appeals all agreed that the plain language of
Section 30-22-16 is ambiguous as to its intended unit of prosecution. Benally, 2019-
NMCA-048, ¶ 16. We similarly agree that the statute’s relevant phrase, “possessing any
deadly weapon,” is ambiguous, as the stated unit of “any” could indicate an intent to
punish a prisoner separately for each weapon possessed or once for a class of
weapons possessed. Cf. Ramirez, 

 (explaining that the definite
article “a” in the child abuse statute indicated that the Legislature intended the unit of
prosecution as one child and noting that “the phrase ‘any child’ . . . would have
expressly contemplated that more than one child may be affected by a single course of
abuse”); Olsson, 

 (“[T]he use of the word ‘any’ in the statute only
compounds the ambiguity.”); DeGraff, 

 (“[W]e are not persuaded
that the statute’s use of the word ‘any’ shows the Legislature’s intent to permit only a
single conviction for all tampering with a single crime scene.”). The shifting grammatical
inflection in Section 30-1-12(B) defining the term “deadly weapon” adds to this
ambiguity, as the term is referred to as both a singular object (“any weapon which is”)
and as a class (“and all such weapons with which”).

{27} We thus agree that the wording and structure of the statute is ambiguous as to its
intended unit of prosecution. However, as we seek to ascertain the Legislature’s intent,
we do not confine our analysis to the language of the statute, as the Court of Appeals
did below, but also consider Section 30-22-16’s legislative history, purpose, and the
quantum of punishment prescribed. Unfortunately, however, our analysis of these
factors provides little clarity as to the intended unit of prosecution of Section 30-22-16.

{28} We turn to the legislative history of the statute. The relevant language of Section
30-22-16 has remained unchanged since its enactment in 1963. Compare 1963 N.M.
Laws, ch. 303, § 22-15, with 1986 N.M. Laws, ch. 4, § 1. The 1986 amendment made
the offense a second-degree felony, where it had previously been a third-degree felony;
but the definitional clause of the statute has not been amended. Id. Thus, the history of
the enactment does not reveal its intended unit of prosecution.

{29} The legislative purpose behind Section 30-22-16 does not resolve this ambiguity.
We have explained that Section 30-22-16 describes “a crime closely approaching a
strict liability crime” and noted generally that “[t]he purpose of [possession of a deadly
weapon by a prisoner] is to protect inmates and officers from assaults with dangerous
weapons perpetrated by armed prisoners.” State v. Baca, 

, ¶ 16, 

, 

 (internal quotation marks and citation omitted). The State
argues that Section 30-22-16 must be interpreted to permit multiple punishments to
effectuate this purpose, as it reasons that the goal of the statute “is to minimize the
number of deadly weapons” in a prison facility. For example, the State posits that
limiting Section 30-22-16 to authorize only one punishment would encourage a group of
prisoners to stockpile weapons with a single inmate, knowing that, if their weapons
cache were to be discovered, the inmate deemed to have possession could only be
convicted of one offense. The State thus urges us to conclude that the intended unit of
prosecution under Section 30-22-16 is for each deadly weapon possessed.

{30} We agree that one goal of the statute is to minimize the availability of weapons in
a prison facility. Yet we do not agree that this goal establishes the intended unit of
prosecution of Section 30-22-16. For example, the State’s argument assumes that the
Legislature was specifically concerned about a single prisoner’s accumulation of deadly
weapons; but there is no indication that such hoarding was of particular concern.
Indeed, nothing presented suggests that the Legislature was more concerned about a
single prisoner’s accumulation of multiple weapons than it was concerned about other
possible scenarios, such as multiple prisoners possessing their own weapons
individually. The legislative purpose thus does not clarify the intended unit of
prosecution.

{31} The quantum of punishment prescribed by Section 30-22-16 is likewise
inconclusive. Defendant argues, for example, that the Legislature’s decision to classify
Section 30-22-16 as a second-degree felony carrying a nine-year sentence shows that
a single conviction would sufficiently deter a prisoner from possessing multiple deadly
weapons. We note also that many defendants charged with possession of deadly
weapon by prisoner may qualify as habitual offenders under Section 31-18-17. Under
that statute, a basic sentence for a noncapital felony is increased by one year, four
years, or eight years, depending on the number of prior felonies on a defendant’s
criminal record. See § 31-18-17(A)-(C) (requiring a one-year enhancement for one prior
felony, a four-year enhancement for two prior felonies, and an eight-year enhancement
for three or more prior felonies). This means that, in practice, many defendants
convicted under Section 30-22-16 may receive at least a ten-year sentence. The
imposition of such a severe punishment might suggest that the Legislature did not
intend for each deadly weapon to constitute its own unit of prosecution.

{32} We also contrast the quantum of punishment for a prisoner’s possession of
deadly weapon, a second-degree felony which carries a basic sentence of nine years, §
31-18-15(A)(7), with offenses that might result from a prisoner’s use of a deadly
weapon. For example, the offenses of assault by a prisoner, NMSA 1978, § 30-22-17
(1963), aggravated assault upon a peace officer with a deadly weapon, NMSA 1978, §
30-22-22 (1971), aggravated battery, NMSA 1978, § 30-3-5 (1969), and aggravated
battery upon a peace officer with a deadly weapon, NMSA 1978, § 30-22-25 (1971), are
all third-degree felonies which carry a sentence of three years, § 31-18-15(A)(11). This
demonstrates that, in some instances, the punishment for the possession of a deadly
weapon by a prisoner is three times the punishment for use of a deadly weapon to
cause apprehension or great bodily harm. Compare § 31-18-15(A)(7) (requiring nine
years imprisonment for second-degree felonies) with § 31-18-15(A)(11) (requiring three
years imprisonment for third-degree felonies).

{33} Even in circumstances where a prisoner’s use of deadly weapons might
constitute a more serious offense than a third-degree felony, the mere possession of
two deadly weapons may result in harsher punishment. As an illustration, if Defendant
had intended to kill another person and used one or both of his makeshift weapons to
severely injure that person, then he could have been charged with the second-degree
felony of attempted first-degree murder. NMSA 1978, § 30-2-1(A) (1994); § 30-28-1(A)
(1963). If convicted of that crime, Defendant would face nine years imprisonment, § 31-
18-15(A)(7), and his sentence would likely be enhanced by eight years due to his
habitual offender status, § 31-18-17(C). His total sentence for using the deadly weapons
in an attempted murder would be seventeen years. Fortunately, Defendant did not harm
anyone in this case. But, Defendant’s sentence of thirty-four years for possession of two
deadly weapons is twice the length that his sentence might have been for gravely
injuring another with those weapons. This disparity between conduct and sentencing
suggests that the Legislature did not intend to prosecute a prisoner for each weapon
possessed. Cf. Olsson, 

 (comparing the defendants’ stacked
sentences for multiple counts of possession of child pornography with the basic
sentence for the related offense of criminal sexual contact with a minor to conclude that
the Legislature could not have intended to permit separate punishment for possession
of each pornographic image charged to the defendants).

{34} Nevertheless, we acknowledge, as the State asserts, that the severity of
punishment under Section 30-22-16 may simply reflect the gravity of the offense. After
all, the Legislature’s 1986 amendment increased the penalty for possession of a deadly
weapon by a prisoner from three years imprisonment for the third-degree felony to nine
years imprisonment for the second-degree felony. Compare 1963 N.M. Laws, ch. 303, §
22-15, with 1986 N.M. Laws, ch. 4, § 1; see § 31-18-15(A)(7), (11). We likewise note
that a prisoner punished for the use of a deadly weapon may be also punished for the
weapon’s possession. Cf. Baca, 

, ¶ 2 (affirming a defendant’s
convictions for first-degree murder and possession of deadly weapon by prisoner after
the defendant used a knife to kill another inmate). Thus, the above comparison
demonstrating the sentencing disparities between possession and use is not conclusive
as to legislative intent.

{35} In sum, we cannot decipher the unit of prosecution the Legislature intended
under Section 30-22-16. The wording and structure of the statute is facially ambiguous,
and that ambiguity is not resolved through consideration of the statute’s history,
purpose, or the quantum of punishment prescribed. The State’s and Defendant’s
“equally valid ways of thinking about the unit of prosecution” demonstrate that Section
30-22-16 is insurmountably ambiguous in this respect. Ramirez, 

.

{36} As we still have reasonable doubts about the intended unit of prosecution under
Section 30-22-16, the rule of lenity counsels that we construe this statute in Defendant’s
favor. See Swafford, 

, ¶ 8. As such, we will presume that the
Legislature did not intend to punish Defendant separately for each weapon possessed,
unless his possession of each weapon could in some way be considered distinct.
Herron, 

, ¶ 15.

2.    Second step: analysis of the indicia of distinctness

{37} Accordingly, we next consider whether sufficient indicia of distinctness exist
between Defendant’s possession of each weapon under Section 30-22-16. The Court of
Appeals considered whether Defendant’s possession of each weapon could be
distinguished by reviewing the evidence of (1) the relative timing of Defendant’s gaining
possession of the two weapons, (2) the spacing between locations of the weapons
Defendant possessed, (3) the qualities or nature of the weapons themselves, and (4)
the results of Defendant’s conduct. Benally, 

, ¶¶ 18-22. Following this
analysis, the Court of Appeals concluded that the indicia of distinctness were not
sufficient to support Defendant’s separate convictions. Id. ¶ 23. We agree with the Court
of Appeals’ conclusion, although we emphasize that our analysis is controlled by
legislative intent.

{38} First, we agree that the timing of Defendant’s possession of each weapon may
be an appropriate indicium under the circumstances and the language of Section 30-22-
16. However, no evidence suggested that Defendant came into possession of the
weapons at different times. Benally, 

, ¶ 19. The State posits that the
discovery in the nearby pod shower of orange shavings matching the mop weapon, as
well as Defendant’s possession of the mop locking ring, suggest that Defendant recently
manufactured the mop weapon. As such, the State argues that this Court should infer
that Defendant acquired the two weapons at different times. The State’s theory as to
Defendant’s acquisition of the two weapons is speculative, however, as the State does
not cite any evidence that shows either how or when Defendant acquired each weapon.
See State v. Slade, 

, 

 (“[E]vidence from which a
proposition can be derived only by speculation among equally plausible alternatives is
not substantial evidence of the proposition.” (internal quotation marks and citation
omitted)). The Court of Appeals recognized this and therefore “reject[ed] the State’s
unsupported contention that Defendant’s possession of each weapon was separated in
time” from the other. Benally, 

, ¶ 19.

{39} As to considerations about the space between the weapons, we agree with the
Court of Appeals that, although the weapons were found in different places in
Defendant’s bunk area, each was “within an arm’s-length of the other,” and both “were
found during the same search.” Id. ¶ 20. This indicium also does not distinguish
Defendant’s conduct.

{40} We similarly agree that the two weapons—the sharpened mop handle and razor
weapon—were by nature “more similar than different.” Id. ¶ 21. Under Section 30-1-
12(B), both weapons fit the definition of “deadly weapon” and had a similar functionality
as being weapons “with which dangerous cuts can be given, or with which dangerous
thrusts can be inflicted.” See Benally, 

, ¶ 21. We thus agree with the
Court of Appeals that “the minor differences in functionality between the two prisonmade weapons possessed by Defendant does not justify convicting him of separate
counts under Section 30-22-16.” 

{41} As for the results of Defendant’s crime, the Court of Appeals concluded that “the
only ‘result’ of Defendant’s possession of the razor and mop weapons was the
completed act of possession itself.” Id.¶ 22. The State argues, however, that the result
of Defendant’s criminal conduct went beyond mere possession; that the result of
Defendant’s possession was a decrease in the safety of prison inmates and staff. The
State reasons that every weapon in a prison facility somehow increases the risk of harm
in that facility, and thus the State insists that the possession of “each additional weapon”
should itself be considered a distinct offense.

{42} We again emphasize that legislative intent controls our inquiry under the indicia
of distinctness analysis. Gallegos, 

. Considering the legislative
purpose of Section 30-22-16—to protect prison inmates and staff from the danger of
assaults by armed prisoners, Baca, 

, ¶ 16—we agree that the
Legislature may have intended to authorize multiple punishments when a defendant’s
possession of a deadly weapon had either the objective or result of a distinct decrease
in prison safety. We can imagine that an inmate who is armed with multiple deadly
weapons could, in some circumstances, pose a distinctly greater threat to prison safety
than that same inmate armed only with a single weapon. For example, the State’s
hypothetical stockpiling inmate may pose a greater threat because that inmate may
have wielded those multiple weapons at the same time or have planned to distribute
those weapons to others for use in a riot. In these scenarios, either the objectives or the
results of the inmate’s possessory offenses may be sufficiently distinct, depending upon
the facts and circumstances of the case, and the Legislature may very well have
intended to authorize multiple punishments under Section 30-22-16.

{43} However, we cannot say that this indicium adequately distinguishes Defendant’s
conduct here. This is not a case of the hypothetical dual-wielding or stockpiling
defendant. We cannot reasonably infer that Defendant’s constructive possession of the
two weapons in his bunk area was more dangerous than his constructive possession of
only one of these weapons. Rather, the threat posed by the two makeshift weapons
found in Defendant’s bunk was never actualized, and, as such, any resultant decrease
in safety is too amorphous and abstract to sufficiently distinguish Defendant’s conduct
as two discrete violations of Section 30-22-16. Although there may be circumstances
where the resultant or intended decrease in prison safety may support an inference that
a prisoner’s possessory acts are in some sense distinct, those circumstances are not
presented here.

{44} In summary, we agree with the Court of Appeals that Defendant’s two convictions
were not supported by sufficient indicia of distinctness. See Benally, 

, ¶
23. The weapons in Defendant’s possession were similar in nature, and the evidence
does not clearly establish that Defendant came into possession of the weapons at
different times or that he possessed them in different spaces. And we do not see any
distinction in objectives or results, including any appreciable decrease in prison safety,
under the circumstances of this case.

{45} Despite reaching the correct result, the Court of Appeals’ opinion seems to
suggest that the Legislature’s purpose in enacting the statute was not relevant to the
indicia of distinctness analysis. See 

 We thus emphasize that this legislative purpose
controls our inquiry into whether Defendant’s possessory acts were sufficiently distinct
such that he may receive multiple punishments under Section 30-22-16.

IV.    CONCLUSION

{46} We emphasize the primacy of ascertaining legislative intent under both steps of
the unit of prosecution analysis. We likewise emphasize the importance of considering
the history, purpose, and quantum of punishment prescribed by a criminal statute, in
addition to the statutory text.

{47} In the case at hand, we were unable to ascertain the intended unit of prosecution
under Section 30-22-16 after consideration of these canons of statutory construction.
We therefore resort to the rule of lenity and conclude that the Legislature did not intend
to fragment Defendant’s possession of two deadly weapons into two separate acts,
absent some indication that each act of possession was in some sense distinct. The
record does not support a reasonable inference of distinctness, and we cannot presume
that the Legislature would have intended to punish Defendant for each weapon he
possessed under the circumstances of the case.

{48} As such, we hold that Defendant has received one more punishment than was
statutorily authorized under Section 30-22-16, in violation of his double jeopardy rights
under the United States and New Mexico Constitutions. We therefore affirm the Court of
Appeals and remand to the district court, with instructions to vacate one of Defendant’s
convictions and accordingly adjust his sentence.

{49}   IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice