State v. Nieto

                                                                      Office of the
                                                                          Director          New Mexico
                                                                                            Compilation
                                                               13:32:09 2023.10.11          Commission
                                                                            '00'06-
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: July 25, 2023

No. A-1-CA-39807

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

MICHAEL NIETO,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Cindy Leos, District Court Judge

Raúl Torrez, Attorney General
Santa Fe, NM
Van Snow, Assistant Attorney General
Albuquerque, NM

for Appellee

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

for Appellant

                                       OPINION

YOHALEM, Judge.

{1}     A jury convicted Defendant Michael Nieto of battery upon a peace officer,
contrary to NMSA 1978, Section 30-22-24 (1971); aggravated assault upon a peace
officer (deadly weapon), contrary to NMSA 1978, Section 30-22-22 (1971); aggravated
fleeing a law enforcement officer, contrary to NMSA 1978, Section 30-22-1.1 (2003,
amended 2022); reckless driving, contrary to NMSA 1978, Section 66-8-113 (1987);
resisting, evading or obstructing an officer (arrest), contrary to NMSA 1978, Section 30-
22-1 (1981); and leaving the scene of an accident (property damage), contrary to NMSA
1978, Section 66-7-202 (1978), based on an encounter with police officers on June 16,
2019, in Albuquerque, New Mexico. The district court dismissed Defendant’s reckless
driving conviction on double jeopardy grounds. Defendant claims on appeal that several
of his six remaining convictions are based on the same conduct and violate double
jeopardy. Defendant also challenges the sufficiency of the evidence to support his
conviction for leaving the scene of an accident. We agree that Defendant’s convictions
for resisting, evading or obstructing an officer and for aggravated fleeing a police officer
violate double jeopardy and must be vacated. Otherwise, we affirm.

BACKGROUND

{2}     All of the charges in this case arose out of events that occurred on June 16,
2019. That morning, Albuquerque Police Officers Mares and Briones responded to a
call about a man who was asleep behind the wheel of a pickup truck. That man was
later identified as Defendant. Officer Mares arrived first and pulled up behind
Defendant’s truck. Officer Mares was in uniform, was driving a marked police vehicle,
and his emergency lights were on. Leaving his vehicle with its emergency lights
flashing, Officer Mares approached Defendant’s pickup truck. Through the window,
Officer Mares saw Defendant unconscious in the driver’s seat. According to Officer
Mares, Defendant “kind of pop[ped] up,” and Officer Mares identified himself as a police
officer. At that time, Officer Mares saw a handgun in the passenger seat. Officer Mares
opened the driver’s side door, grabbed and held one of Defendant’s hands to his side,
and told Defendant to step out of his truck. Defendant refused. By this time Officer
Briones had arrived and was assisting Officer Mares. Officer Briones was able to take
the gun from the passenger seat and place it on the hood of the truck, out of
Defendant’s reach.

{3}    Officer Mares testified that, at that point, Defendant put the truck in drive,
grabbed him, and pulled him into the truck. Defendant then accelerated and continued
to drive for several miles with Officer Mares partially hanging out the door, clinging to
the headrest to keep himself from falling to the road, until Defendant’s truck crashed
head-on into another vehicle driven by Joaquin Sisneros and came to a stop, injuring
Sisneros and damaging his car.

{4}    Defendant threw Officer Mares out of his truck and began to run with Officer
Mares chasing him. Defendant was tackled 25 to 50 feet away from the impact with
Sisneros’s vehicle in a Burger King parking lot, after having crossed over a couple of
lanes of traffic, a sidewalk, and some landscaping.

DISCUSSION

I.     Double Jeopardy

{5}    The double jeopardy clause “protects defendants from receiving multiple
punishments for the same offense.” State v. Ramirez, 

, 

 (internal quotation marks and citation omitted); see U.S. Const. amend. V; N.M.
Const. art. II, § 15. Defendant raises what is known as a double description double
jeopardy claim, “in which a single act results in multiple charges under different criminal
statutes.” State v. Bernal, 

, 

, 

.

{6}    In analyzing double description claims, we apply the two-part test set forth in
Swafford v. State, 

, ¶ 25, 

, 

, determining first:
(1) whether the conduct underlying the offenses is unitary; and (2) if so, whether the
Legislature intended to punish the offenses separately. See State v. Begaye, 2023-
NMSC-015, ¶ 13, 

. “‘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.’” 

 (quoting Swafford, 

, ¶ 25.)

{7}     A defendant’s conduct is unitary “if the acts are not separated by sufficient indicia
of distinctness.” State v. Porter, 

, 

 (internal
quotation marks and citation omitted). Our Supreme Court in State v. Barrera, 2001-
NMSC-014, ¶ 36, 

, 

 stated,

       The “indicia of distinctness” include the separation between the illegal acts
       by either time or physical distance, “the quality and nature” of the
       individual acts, and the objectives and results of each act. Distinctness
       may also be established by the existence of an intervening event, the
       defendant’s intent as evinced by his or her conduct and utterances, the
       number of victims, and the behavior of the defendant between acts.

(internal quotation marks and citation omitted). In determining whether conduct is
unitary, we consider “the elements of the charged offenses, the facts presented at trial,
and the instructions given to the jury.” State v. Sena, 

, 

. If we determine that the conduct was not unitary, there is no double jeopardy
violation and our analysis need not proceed further. If we determine, however, that the
conduct was unitary, then we must proceed to the second inquiry: “whether the
[L]egislature intended multiple punishments for the unitary conduct.” State v. Andazola,

, 

, 

.

{8}     In answering this second question, we begin, as we always do when analyzing
legislative intent, by looking to the plain language of the statute. Begaye, 2023-NMSC-
015, ¶ 21. If the statute does not explicitly authorize multiple punishments, we next
apply the Blockburger test. Id. ¶¶ 21-22. We use the strict-elements Blockburger test if
the statutory language is clear and provides only a single alternative. If the statutory
language is vague or states alternative bases for conviction, we use the modified
Blockburger test. Id. Both Blockburger tests—strict-elements and modified—operate as
“a kind of surrogate for construing legislative intent.” Id. ¶ 22 (internal quotation marks
and citation omitted). The strict-elements test is applied directly to clear statutory
language to determine whether each statute requires proof of a fact that the other does
not. See State v. Silvas, 

, 

 (describing the strict-elements Blockburger test).
{9}    Where the statutory language serves multiple purposes and can be violated in
multiple ways, we apply the modified Blockburger test and instead consider “whether
the statute, as applied by the [s]tate in a given case, overlaps with the other criminal
statutes so that the accused is being punished twice for the same offense.” Begaye,

, ¶ 22 (internal quotation marks and citation omitted). We determine
how a statute was applied by the state in a given case by looking first to the statutory
language, the charging documents, and the jury instructions. See id. ¶¶ 25-26. If these
sources, considered together, do not reveal the state’s legal theory, we turn to the
opening and closing statements and the evidence at trial to “establish whether the same
evidence supported” both convictions. Id. ¶ 26 (internal quotation marks and citation
omitted). Our focus is to ascertain not simply whether the elements differ, “but whether
the same evidence, that is, the same underlying conduct, is used to support both
charges. Id. ¶ 28. If the same evidence supports both convictions, double jeopardy is
violated and the lesser offense must be vacated. See id. ¶¶ 28, 36.

{10} We apply these legal principles to each of the convictions challenged by
Defendant as violating his right to be free of double jeopardy.

A.     Defendant’s Convictions for Battery Upon a Peace Officer and Aggravated
       Assault Upon a Peace Officer Do Not Violate Double Jeopardy

{11} We turn first to Defendant’s argument that the conduct underlying his convictions
for battery upon a peace officer and aggravated assault upon a peace officer is unitary
and was not intended by the Legislature to be separately punished. We conclude that
the conduct was not unitary and therefore, there is no double jeopardy violation.

{12} In determining whether the conduct was unitary, we must determine whether the
offenses were separated by sufficient indicia of distinctness by looking at (1) the
temporal proximity of the acts, (2) the location of the victim during each act, (3) the
existence of an intervening act, (4) the sequencing of the acts, (5) the defendant’s intent
as evidenced by his conduct and utterances, and (6) the number of victims. See Herron
v. State, 

, ¶ 15, 

, 

; see also Bernal, 2006-
NMSC-050, ¶¶ 15, 16 (“[W]e 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.”); State v. Barr, 1999-NMCA-
081, ¶¶ 15, 16, 

, 

 (recognizing that acts separated by
sufficient indicia of distinctness warrant separate punishments). We consider whether
the acts of a defendant were “performed independently of the other acts in an entirely
different manner, or whether such acts were of a different nature.” State v. Boergadine,

, 

, 

 (internal quotation marks and
citation omitted).

{13} A conviction of battery on a peace officer requires the jury to find, in relevant part,
that the defendant intentionally and unlawfully touched or applied force to the person of
a peace officer in a rude, insolent, or angry manner. See § 30-22-24. In its instruction to
the jury on battery on a peace officer and in closing argument, the State stated that it
sought conviction solely on the basis that Defendant “intentionally touched or applied
force to [Officer] Mares by grabbing his body and pulling on it,” threatening the officer’s
safety or challenging his authority. To charge and prove aggravated assault on a peace
officer, the State argued that Defendant drove in a manner that put Officer Mares in fear
of being thrown to the road and injured.

{14} Defendant argues, based on this Court’s decisions in State v. Garcia, 2009-
NMCA-107, ¶ 17, 

, 

, and State v. Mares, 

,
¶ 25, 

, 

, that the conduct alleged occurred in one location,
and close in time and sequence, and thus involved a single event that cannot be
punished separately. We are not persuaded that Garcia and Mares are relevant to our
analysis in this case. Both Garcia and Mares involve convictions of multiple batteries
based on several blows of increasing severity delivered by a defendant to a single
victim during a single escalating incident. See Garcia, 

 (involving
punching, pushing, and then stomping on the victim’s leg during a fight between two
inmates in the same cell); Mares, 

, ¶¶ 2-4 (involving punching, choking,
pulling hair, and slapping of the victim in the car, on the ground, and in a nearby bush).
Although it is true that the battery as described by the State was followed by the assault
in what could be seen as an escalating sequence of events, we also must consider
whether there are sufficient indicia of distinctness based on differences in “‘the quality
and nature’ of the individual acts, and the objectives and results of each act.” Barrera,

 (internal quotation marks and citation omitted). We conclude that
there is a significant difference in the “quality and nature” of an act of physically
touching an officer, using enough force to pull his body into a truck—the battery
established by the State here—and causing the officer, by driving recklessly, to fear
falling to the road and being injured. The battery happened at the location of the original
encounter between Defendant and police, and the assault began as Defendant
accelerated away and continued as Defendant drove recklessly, apparently trying to rid
himself of Officer Mares and avoid arrest.

{15} Based on these distinctions, we hold that the conduct underlying Defendant’s
convictions was not unitary and, therefore, we need not reach the second part of the
double jeopardy analysis. See Begaye, 

, ¶ 13; see also Swafford,

, ¶ 38.

B.     Defendant’s Convictions for Aggravated Fleeing a Law Enforcement Officer
       and Resisting, Evading or Obstructing an Officer Violate Double Jeopardy

{16} Defendant argues that his convictions for resisting, evading or obstructing an
officer and aggravated fleeing from an officer are based on unitary conduct, and that
resisting, evading or obstructing an officer, under the State’s legal theory, is a lesser
included offense subsumed within aggravated fleeing, violating double jeopardy. We
agree.

{17} We understand the State’s argument on appeal to be that the jury could have
based the conviction for resisting, evading or obstructing an officer on Defendant’s
conduct in continuing to flee Officer Mares on foot after Defendant’s truck was brought
to a stop by the collision with Sisneros’s vehicle. The State claims that Defendant’s flight
from Officer Mares in a motorized vehicle and his subsequent flight on foot are separate
and distinct incidents of fleeing an officer, and are not unitary conduct for double
jeopardy purposes. See Sena, 

 (allowing the state to presume
that the jury relied on different conduct to convict a defendant of each crime if the record
indicates there was separate and distinct conduct).

{18} Even assuming that the jury relied on Defendant’s conduct in fleeing on foot from
Officer Mares to convict Defendant of resisting, evading or obstructing an officer, we do
not agree that this conduct was separate and distinct from Defendant’s conduct in
fleeing from Officer Mares by motor vehicle. Defendant relies on our decision in State v.
Padilla, 

, 

, 

, reversed on other grounds,

, 

, 

, to argue that there are insufficient
indicia of distinctness between a defendant’s fleeing in a motor vehicle, and then
continuing that same flight from the same officer on foot. In a situation virtually identical
to this one, this Court held that “it is artificial to parse conduct when a suspect flees from
the police in one way and then immediately continues to flee in another way.” Id. ¶ 30;
see State v. French, 

, 

 (reaching the same result).
Seeing no reason to deviate from this established precedent, we agree with Defendant
that Defendant’s flight from police was unitary.

{19} Because all of the elements of resisting, evading or obstructing an officer by
fleeing Officer Mares on foot are subsumed within the greater offense of aggravated
fleeing an officer, Defendant’s conviction of both violates double jeopardy and his
conviction for resisting, evading or obstructing an officer must be vacated.

C.     Defendant’s Convictions for Leaving the Scene of an Accident and
       Aggravated Fleeing a Law Enforcement Officer Do Not Violate Double
       Jeopardy

{20} Defendant contends that his conviction for leaving the scene of an accident is
subsumed within his conviction for aggravated fleeing a law enforcement officer. We
assume, without deciding, that much like Defendant’s conviction for resisting, evading or
obstructing a law enforcement officer, his conviction for leaving the scene of an accident
relies on Defendant’s conduct in running from Officer Mares and the accident scene and
is therefore unitary conduct. We next consider whether the Legislature intended to
permit dual convictions. See Begaye, 

, ¶ 20.

{21} Our Supreme Court in Begaye directs us to first consider whether the Legislature
has explicitly stated an intent to allow multiple punishments. Neither of the statutes at
issue here includes such language. See § 30-22-1.1 (defining aggravated fleeing); § 66-
7-202 (defining leaving the scene of an accident). We look next to whether these
statutes are vague or can be violated in multiple ways. Because both aggravated fleeing
an officer and leaving the scene of an accident can be committed in many ways, these
statutes are vague and we, therefore, apply the modified Blockburger test. In applying
that test, we compare the conduct the State relied on to prove aggravated fleeing a law
enforcement officer and the conduct the State relied on to prove leaving the scene of an
accident.

{22} We conclude that the conduct necessary to prove aggravated fleeing as
presented by the State and argued to the jury, includes conduct different from the
conduct necessary to prove the crime of leaving the scene of an accident. Proof of
aggravated fleeing a peace officer in this case required that the State establish that
Defendant fled arrest by Officer Mares in a way that endangered the officer. Leaving the
scene of an accident, in contrast, required the State to establish that Defendant was
involved in an accident that damaged another vehicle and injured its occupant; that
Defendant ran from the scene, failing to stop or immediately return; and that Defendant
did not satisfy his obligations under the statute to assist the other driver. See § 66-7-
202; NMSA 1978, § 66-7-203 (1978). The State was thus required under its theory of
the case to present proof of conduct for each crime that was different and distinct from
the conduct required under the State’s theory to establish the other crime. We,
therefore, presume the Legislature intended multiple punishments. There is no double
jeopardy violation.

D.     Defendant’s Convictions for Aggravated Assault Upon a Peace Officer and
       Aggravated Fleeing a Law Enforcement Officer Violate Double Jeopardy

{23} Defendant contends that the conduct underlying his convictions for aggravated
assault upon a peace officer and aggravated fleeing a law enforcement officer was
unitary, and that the Legislature did not intend to punish the two crimes separately.
According to Defendant, the State’s theory of the case relied for both convictions on
proof that Defendant drove recklessly with Officer Mares hanging out of his truck, with
the common intention of ejecting the officer from the truck. The charging documents, the
jury instructions, and the State’s closing argument support Defendant’s position that the
State relied on the same conduct by Defendant as the basis for both its charge of
aggravated fleeing Officer Mares and aggravated assault on Officer Mares. The State’s
briefing does not meaningfully distinguish Defendant’s conduct in fleeing from
Defendant’s conduct in assaulting Officer Mares. We therefore agree that the conduct
was unitary.

{24} We proceed to the second part of the analysis, in which we ask “whether the
Legislature intended to permit multiple punishments” for this unitary conduct, violating
separate statutes. Begaye, 

, ¶ 21 (internal quotation marks and citation
omitted). Looking first to the language of the two statutes, aggravated assault and
aggravated fleeing, neither addresses whether multiple punishments are permitted. See
§§ 30-22-1.1, -22. We next turn to the Blockburger test. See Begaye, 

,
¶¶ 21-22. Both of these statutes can be violated in multiple ways so we apply the
modified Blockburger test, looking to the State’s theory of the case to determine
whether one offense subsumes the other. See id. ¶ 24. Although aggravated fleeing a
law enforcement officer can involve proving that Defendant endangered the public by
driving recklessly, the State in this case relied on the danger to Officer Mares created by
Defendant’s reckless driving as the officer hung partially out of Defendant’s vehicle to
prove aggravated fleeing. This was exactly the same conduct the State relied on to
prove aggravated assault on a peace officer with a deadly weapon. The deadly weapon
described by the State to the jury was the Defendant’s truck, and the deadly force
Officer Mares feared was being thrown from Defendant’s truck onto the roadway as
Defendant twisted and turned the vehicle in an effort to get free of Officer Mares and
avoid arrest. Although aggravated fleeing a law enforcement officer requires the State to
also prove that Defendant “had been given an audible signal to stop by a uniformed law
enforcement officer in an appropriately marked law enforcement vehicle,” an additional
element does not prevent an offense from subsuming or being subsumed in another
offense. See id. ¶ 35 (explaining that a defendant’s double jeopardy rights are violated
even though one of the counts requires proof of an additional element).

{25} Therefore, under the modified Blockburger test, given the theory of the case
advanced by the State, we conclude that our Legislature did not intend to allow
separate punishment for these two offenses. The conviction for aggravated assault on a
peace officer is the greater offense, and so that conviction stands and the conviction for
aggravated fleeing a law enforcement officer must be vacated.

II.    Sufficient Evidence in the Record Supports Defendant’s Conviction for
       Leaving the Scene of an Accident

{26} Defendant also argues the evidence was insufficient to support his conviction for
leaving the scene of an accident. Defendant claims that, because Officer Mares tackled
him, he never got far enough away to be convicted of having “left the scene of an
accident.” Defendant relies on our Supreme Court’s decision in State v. Almanzar,

, 

. In response, the State argues that Almanzar was
rooted in a policy to protect victims of domestic violence by allowing officers to arrest a
perpetrator who had left the immediate location of the violence, but remained nearby,
and that our Legislature had different policy considerations in referring to the scene of
an accident in Section 66-7-202. We agree with the State.

{27} “[W]e apply a substantial evidence standard to review the sufficiency of the
evidence at trial.” State v. Chavez, 

, 

, 

.
In doing so, we determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” State v. Cunningham,

, 

, 

 (emphasis, internal quotation
marks, and citation omitted). We “view the evidence in the light most favorable to the
guilty verdict, indulging all reasonable inferences and resolving all conflicts in the
evidence in favor of the verdict.” 

 “Jury instructions become the law of the case
against which the sufficiency of the evidence is to be measured.” State v. Garcia, 2016-
NMSC-034, ¶ 17, 

 (alteration, internal quotation marks, and citation
omitted). To convict Defendant of leaving the scene of an accident, the jury was
instructed in relevant part, that the State must prove “[D]efendant did not immediately
stop, did not return to and did not remain at the scene of the accident.” See § 66-7-202.
{28} We first address Defendant’s argument that we should rely on Almanzar’s
definition of “at the scene” to construe leaving “the scene” of an accident. In Almanzar,
under NMSA 1978, Section 31-1-7(A) (1995), addressing a domestic violence incident,
our Supreme Court applied a test of reasonableness for considering whether an officer
is “at the scene” for purposes of making a warrantless arrest. Almanzar, 2014-NMSC-
001, ¶ 20. Almanzar’s holding is based on policy considerations of protecting victims of
domestic violence from aggressors who are still close enough to reinitiate violence
against the victim. See id. ¶ 21. In contrast, the policy considerations that led to
prohibiting a driver from leaving the scene of an accident were “to prohibit drivers from
evading criminal or civil liability, to ensure people receive necessary aid or medical
attention, and to deter drivers from thwarting or impeding investigations and avoiding
liability for the harm they cause by failing to stop or failing to comply with Section 66-7-
203 [to render aid].” State v. Montelongo Esparza, 

, 

(internal quotation marks and citation omitted). Because the purposes served are
different from the purposes of the domestic violence statute at issue in Almanzar, we do
not apply the same test.

{29} Here, the jury’s task was to determine whether Defendant had fulfilled the
requirements of the statute or intended to return and fulfill them. Defendant’s testimony
stating, “I was trying to flee the scene,” along with the evidence of the distance he ran
before being tackled by an officer was sufficient to enable a reasonable jury to infer that
Defendant had left the scene of the accident without fulfilling his statutory duty to
provide reasonable assistance to the other driver. See § 66-7-202 (requiring a person to
remain at the scene until the requirements of Section 66-7-203 are fulfilled.).

CONCLUSION

{30} We vacate Defendant’s convictions for resisting, evading or obstructing a law
enforcement officer and for aggravated fleeing a peace officer, and remand for
resentencing. Otherwise, we affirm.

{31}   IT IS SO ORDERED.

JANE B. YOHALEM, Judge

WE CONCUR:

ZACHARY A. IVES, Judge

KATHERINE A. WRAY, Judge