State v. Vasquez

                                                               Office of the      New Mexico
                                                                   Director       Compilation
                                                                                  Commission
                                                       09:10:33 2024.02.13
                                                                     '00'07-
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: December 4, 2023

No. A-1-CA-40597

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

ADRIAN D. VASQUEZ a/k/a
ADRIAN DION VASQUEZ,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Angie K. Schneider, District Court Judge

Raúl Torrez, Attorney General
Santa Fe, NM
Leland M. Churan, Assistant Attorney General
Albuquerque, NM

for Appellee

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

for Appellant

                                      OPINION

WRAY, Judge.

{1}    Defendant was convicted on multiple charges after entering a home with two
other individuals—all three of them armed—to confront another individual about a
romantic entanglement. The individual was not there, only three other teenagers, whom
Defendant and the others kept in the home, with weapons drawn, in anticipation of a
confrontation that never occurred. A jury convicted Defendant on eight counts:
aggravated burglary with a deadly weapon, conspiracy, three counts of false
imprisonment, and three counts of aggravated assault with a deadly weapon. At
sentencing, the district court applied firearm enhancements, found aggravating
circumstances, suspended a portion of the sentence, and ultimately sentenced
Defendant to thirty years in prison. On appeal, Defendant argues that six of the
convictions violate double jeopardy and that the district court abused its discretion in
aggravating and enhancing the sentence. As to double jeopardy, we conclude that three
of the convictions must be vacated, because Defendant’s conduct was unitary and
based on the State’s theory of the present case, the Legislature did not intend to create
separately punishable offenses. As to sentencing, we affirm in large part the district
court’s aggravation of Defendant’s sentence but hold that whether Defendant “was
armed” should not have been an aggravating factor in the present circumstances. We
reverse and remand for resentencing.

BACKGROUND

{2}    J.S., who was seventeen years old at the time of the incident, testified that at
about nine-forty-five or ten o’clock in the evening, she left her home to visit her
boyfriend next door. She left the door unlocked, and left two friends, N.T. and N.Y.,
inside the home. After N.Y. and N.T. were left alone, Defendant walked into the room,
and N.Y. did not know how Defendant got into the house. N.T. greeted Defendant and
asked why he was there, Defendant pulled out a gun and said he was looking for
another friend of theirs, T.B., whom Defendant believed had been sexually involved with
A.C., Defendant’s girlfriend. Defendant called for two other individuals to come into the
room, and those two people also had guns. During this time, Defendant directed N.Y.
and N.T. to sit down and the doors were locked. With weapon in hand, Defendant
ordered N.Y. and N.T. to put their cell phones on a table.

{3}    When J.S. returned ten minutes later, the deadbolt was locked, and she banged
on the door. Inside, Defendant told N.T. to open the door, and when N.T. opened the
door, he told J.S. “there w[ere] people with guns in the house.” J.S. did not believe N.T.
and came inside. Once J.S. entered the “den area,” where N.T. and N.Y. were seated,
Defendant ordered her to sit down and put her cell phone on the table. J.S. testified that
Defendant told them that he was “pretty much here to beat up [T.B.], shoot him . . .
we’re just waiting for [T.B.] to get here.” T.B. eventually called J.S.’s cell phone.
Defendant held the gun to J.S.’s head and told her to answer the phone and tell T.B. to
come inside. J.S. answered the phone and spoke with T.B. After the call, J.S. asked to
go to the bathroom and escaped to the house next door for help. Defendant and the two
other individuals left before the police arrived. T.B. did not come inside, and no one was
physically injured.

{4}    The jury convicted Defendant for each of the eight charged counts. The jury was
additionally requested to find—and did find—that Defendant brandished a firearm for
each charge, except the conspiracy charge. Defendant waived the right to have a jury
decide aggravating circumstances, and at a later hearing, the district court found
aggravating circumstances for five of the convictions, omitting only the three convictions
for aggravated assault with a deadly weapon. The district court additionally enhanced all
of Defendant’s sentences based on the brandishing of a firearm during the commission
of the crimes. Defendant received a sentence of fifty and one-half years, with twenty
and one-half years suspended. Defendant appeals.

DISCUSSION

{5}     Defendant raises three issues on appeal: (1) the punishment for each of the six
convictions—arising from the three aggravated assault charges and the three false
imprisonment charges—violates double jeopardy protections; (2) the district court relied
on improper evidence to aggravate the basic sentences for Defendant’s convictions;
and (3) the district court did not instruct the jury to make the requisite findings to support
the firearm enhancement for the conspiracy conviction. See NMSA 1978, § 31-18-16(A)
(1993, amended 2022) (requiring a “separate finding of fact by the court or jury” to
enhance the basic sentence based on the brandishing of a firearm during the
commission of a noncapital felony). The State concedes that the firearm enhancement
for the conspiracy charge was not submitted to the jury, and having reviewed the
record, we accept the State’s concession. See State v. Serrato, 

,

 (accepting the state’s concession after review). We begin the remainder
of our review with the double jeopardy arguments.

I.     Defendant’s Punishment Based on Convictions for Aggravated Assault
       With a Deadly Weapon and False Imprisonment Violate Double Jeopardy
       Protections Under These Circumstances

{6}    The constitutional prohibition against double jeopardy protects against both
subsequent prosecutions and multiple punishments, and we review these issues de
novo. State v. Begaye, 

, ¶¶ 12, 

 (internal quotation
marks and citation omitted).; see U.S. Const. amend. V; N.M. Const. art. II, § 15. The
present case involves a multiple punishment scenario, and more specifically, a “doubledescription” claim in which Defendant argues that multiple punishments for convictions
under different statutes were impermissibly based on the same, unitary conduct. See
Begaye, 

, ¶ 12. For this analysis, we use a two-part test to first
evaluate whether the conduct underlying the offenses is unitary and second determine
whether the “[L]egislature intended to create separately punishable offenses.” Id. ¶¶ 11,
13 (internal quotation marks and citation omitted). Defendant contends that the
convictions violate double jeopardy protections because (1) the conduct was “one,
continuing act of restraint by gunpoint”; and (2) the Legislature did not intend for multiple
punishments under these circumstances because the State used the same evidence to
prove both crimes. Because both inquiries require us to consider the elements of the
charged crimes, we first review the statutory elements of aggravated assault with a
deadly weapon and false imprisonment. See State v. Sena, 

, 

 (considering “the elements of the charged offenses” in the unitary conduct
inquiry); Begaye, 

, ¶¶ 22, 24 (considering the statutory elements of the
charged offenses to evaluate legislative intent).

{7}    In relevant part, the aggravated assault statute outlines three ways to commit the
crime, by (1) “unlawfully assaulting or striking at another with a deadly weapon”; (2)
“committing assault by threatening or menacing another while wearing a mask, hood,
robe or other covering upon the face, head or body, or while disguised in any manner,
so as to conceal identity”; or (3) “willfully and intentionally assaulting another with intent
to commit any felony.” NMSA 1978, § 30-3-2(A)-(C) (1963). Our Legislature has
separately defined “assault,” in relevant part, as “an attempt to commit a battery upon
the person of another”; or “any unlawful act, threat or menacing conduct which causes
another person to reasonably believe that [they are] in danger of receiving an immediate
battery.” NMSA 1978, § 30-3-1(A), (B) (1963); see also NMSA 1978, § 30-3-4 (1963)
(defining “battery” as “the unlawful, intentional touching or application of force to the
person of another, when done in a rude, insolent or angry manner”). The false
imprisonment statute states in its entirety, “False imprisonment consists of intentionally
confining or restraining another person without [their] consent and with knowledge that
[there is] no lawful authority to do so.” NMSA 1978, § 30-4-3 (1963). With this statutory
background, we turn to the double jeopardy analysis and “first ask whether the conduct
was unitary, meaning whether the same criminal conduct is the basis for both charges.”
State v. Reed, 

, 

 (internal quotation marks and
citation omitted), cert. denied (S-1-SC-39187, May 3, 2022).

A.     Defendant’s Conduct Was Unitary

{8}     The unitary conduct inquiry “turns on sufficient indicia of distinctness between the
acts at issue,” id. ¶ 9 (internal quotation marks and citation omitted), and “depends to a
large degree on the elements of the charged offenses and the facts presented at trial.”
State v. Porter, 

, 

 (internal quotation marks and
citation omitted). We focus on Defendant’s conduct to determine whether the acts were
distinct from each other: “Conduct is not unitary, rather it is separate and distinct, when
space and time separates the events.” See Reed, 

. Sometimes,
however, we must make other inquiries or look to other sources to identify the
significant conduct. See Sena, 

 (identifying other considerations
when time and space “do not suffice to make the determination”); Porter, 2020-NMSC-
020, ¶ 12 (explaining the Court’s role as “identify[ing] the criminal acts and the conduct
at issue”). In those circumstances, “resort must be had to the quality and nature of the
acts or to the objects and results involved.” Sena, 

 (internal
quotation marks and citation omitted). Additionally, “we may consider the elements of
the charged offenses, the facts presented at trial, and the instructions given to the jury .
. . [and] whether the facts presented at trial establish that the jury reasonably could have
inferred independent factual bases for the charged offenses.” Reed, 

 (internal quotation marks and citations omitted). Courts have additionally “looked for
an event that intervened between the crimes at issue, distinguishing the crimes from
one another.” State v. Comitz, 

, 

; see also Sena,

 (concluding that the “crimes were separated by both time and
intervening events”). We use these tools to determine whether “the conduct for which
there are multiple charges is discrete (unitary) or distinguishable.” Swafford v. State,

, ¶ 28, 

, 

. Where “it reasonably can be said
that the conduct is unitary, then we must conclude that the conduct was unitary.” Porter,

 (internal quotation marks and citation omitted).
{9}    Defendant argues that the convictions for aggravated assault with a deadly
weapon and false imprisonment are based on unitary conduct because Defendant
committed one continuous act—holding the three victims at gunpoint. The State
responds that the conduct was not unitary because Defendant produced the gun “to
control the situation” and separately pointed the gun at or toward N.T. and N.Y.
Specifically, the State focuses on a moment in which N.Y. dropped an item, and
Defendant pointed the gun toward him. The State maintains that Defendant’s conduct
toward J.S. was also distinct—Defendant restrained J.S. with the gun when she entered
the home and later held the gun to J.S.’s head during the phone call with T.B.
Defendant responds, “Both convictions in this case were based upon [Defendant]
entering the home with a gun and leading the victims to believe [Defendant] might
commit a battery upon them, while at the same time using the gun to prevent them from
leaving.” Under the circumstances as they were developed at trial, we agree with
Defendant, because “it reasonably can be said that” the acts that formed the basis for
separate charges were not sufficiently distinct. See Porter, 

. As
we explain, Defendant’s confining and threatening conduct was unitary—the same acts,
not separated by space or time, confined the victims to the home and also caused the
teenagers to fear for their safety. See Reed, 

 (concluding that
conduct was unitary where the elements for both crimes were “satisfied
simultaneously”). Defendant’s acts of pointing the gun at specific victims, under these
circumstances, were not separated by sufficient indicia of distinctness to conclude that
the conduct was not unitary. See Porter, 

.

1.     Defendant’s Single Act Simultaneously Restrained and Threatened the
       Victims

{10} The State argues that intervening events—Defendant’s order to sit and the
phone call—separated the restraint required for false imprisonment from the threatening
conduct that established aggravated assault with a deadly weapon, but no time or
space separated Defendant’s criminal acts. Defendant simultaneously restrained and
threatened the teenagers. Defendant entered the home and after speaking for a
moment with N.T. and N.Y., pulled a gun from his waistband, and when the other two
intruders appeared moments later, they were also armed. The guns remained visible for
the rest of the time that Defendant was in the home. Thus, no time and space separated
Defendant’s acts that formed the basis for the two charges—pulling out the weapon and
keeping the weapon in hand for the entire incident. See Sena, 

(evaluating first whether illegal acts were “sufficiently separated by either time or space
(in the sense of physical distance between the places where the acts occurred)”
(internal quotation marks and citations omitted)).

{11} The “quality and nature” and the “objects and results” of Defendant’s act further
support a conclusion that the conduct was unitary. See 

 (internal quotation marks and
citation omitted). J.S. testified that she sat down and stayed because “[w]hat else are
you supposed to do when there are a bunch of people with guns?” All three of the
confined teenagers testified that they did not feel free to leave and were afraid because
they were told to stay, instructed to put their phones on a table, and Defendant and the
others had guns in their hands. Defendant testified that he drew a weapon because he
wanted the teenagers to know he was in control of the situation but also understood
why the teenagers would have been frightened in this situation. Despite the orders
given and the phone call, Defendant’s use of the weapon to both restrain and
threaten—to control—remained consistent.

{12} Defendant’s criminal acts of restraining and threatening the teenagers were not
separated by any time or physical space, nor were they distinguishable by quality,
nature, purpose, or object. See 

 As we will develop more fully, the State’s theory
encouraged the jury to rely on Defendant’s use of the gun and control of the situation—
which the evidence demonstrates was accomplished by use of the gun—to prove both
aggravated assault with a deadly weapon and false imprisonment. See State v. Silvas,

, 

 (referencing the state’s theory of the case within
the unitary conduct analysis). As a result, “it reasonably can be said,” see Porter, 2020-
NMSC-020, ¶ 12, that Defendant’s conduct was “not only unitary, but identical,” see
Silvas, 

.

2.     The Completed Offense Doctrine Does Not Demonstrate That Defendant
       Committed Separate Acts

{13} To demonstrate that the conduct was distinct, the State argues that the false
imprisonment was completed before Defendant committed “distinct act[s] of aggression”
by pointing the weapon at any specific victim. In some circumstances, we consider
whether “one crime [was] completed before another [was] committed” in order to
determine whether the conduct was unitary, which we refer to as the “completed offense
doctrine.” Reed, 

; see id. ¶ 12 (referring to the “completed offense
principle”). Before we deploy the completed defense doctrine, however, we must
determine whether its application is appropriate to the State’s arguments under these
circumstances.

{14} Defendant, citing Reed, argues that the State should not be permitted on appeal
to separate the conduct when it did not separate the conduct for the jury. See id. ¶ 27.
Our review of the record indicates that the State’s case to the jury sufficiently suggested
the distinctions raised on appeal—at least with respect to J.S. and N.Y. The jury
instructions related to J.S. clearly permitted the jury to decide that Defendant committed
aggravated assault with a deadly weapon by either brandishing the weapon or pointing
it directly at J.S. In rebuttal closing, the State referred to the moment when N.Y.
dropped an item and the jury was instructed that the State was required to prove that
“[D]efendant brandished a firearm in front of [N.Y.]” Because the jury had the
opportunity to apply the evidence to the instructions as the State suggests on appeal,
we will consider the State’s arguments regarding distinct conduct by Defendant.

{15} Before we do that, we must clear one more hurdle. As Defendant notes, even if
an aspect of his conduct could be viewed not to be unitary, we must consider whether
the jury instruction permitted the jury to convict Defendant in the alternative—whether
the jury could select conduct that is unitary with another charged offense or conduct that
is not unitary with another charged offense. In that circumstance, we apply the “Foster
presumption” and presume the jury relied on conduct that is unitary with another
charged offense. See State v. Foster, 

, 

, 

, abrogated on other grounds as recognized in Sena, 

. In
the present case, the aggravated assault with a deadly weapon jury instruction that
pertained to J.S. permitted the jury to convict Defendant for either “brandish[ing] a pistol
in front of [J.S.] or point[ing] the firearm at [J.S.]” The instruction pertaining to N.Y.
permitted the jury to find aggravated assault if “[D]efendant brandished a firearm in front
of [N.Y.]” These instructions were not specific as to the conduct on which the jury could
rely. See State v. Montoya, 

, 

, 

(concluding conduct was unitary when the factual basis for the jury’s verdict could not
be determined from the jury instructions in the record). For both victims, the conduct
could have been either the general threatening conduct that we have determined is
unitary with the restraining conduct or the specific threatening conduct, identified by the
State. We therefore must continue to evaluate the distinctness of the specific conduct
identified by the State—because if none or all of that conduct was unitary, there is no
presumption to apply. See Sena, 

 (considering and rejecting
the application of the Foster presumption in the context of the completed offense
doctrine because none of the conduct was unitary).

{16} To determine whether the acts identified by the State were distinct conduct, we
consider the State’s arguments that (1) the false imprisonment was completed before
these two incidents and (2) these two incidents were sufficiently distinct acts of
aggression. The State contends that Defendant’s act of restraint was “completed prior to
the aggravated assaults” and points to State v. Dominguez, 

, 

, and State v. Bachicha, 

, 

, 

. In
Dominguez, the defendant deceived the victim in order to get inside the home, pulled a
gun from concealment, and threatened and held the gun to the victim’s head. 2014-
NMCA-064, ¶¶ 2-3. After that, with the gun still to her head, the defendant forced the
victim into a bedroom and sexually assaulted her. Id. ¶ 3. This Court determined that
the defendant’s use of force to kidnap the victim was factually distinct from the conduct
supporting the criminal sexual penetration conviction. Id. ¶ 10. The use of force to
accomplish the kidnapping was “complete” when the victim was restrained by the
weapon, “even though the restraint continue[d] through the commission of a separate
crime.” Id. The Dominguez defendant held the victim at gunpoint, which rendered the
encounter with the victim involuntary, “and it was not until [the d]efendant moved [the
v]ictim to the back bedroom that he used the gun to restrain her during the” sexual
assault. Id. As a result, the use of the gun to restrain and to force a sexual assault did
not “create unitary conduct out of the independent and factually distinct bases for these
crimes.” Id.

{17} The defendant in Bachicha allowed his estranged wife and two companions into
his home in order to permit his wife to gather belongings. 

, ¶ 2.
Thereafter, the defendant produced a weapon, ordered one of the victims into a room
where the other two were working, and then ordered all three victims to stand against a
wall. 

 The defendant’s wife tried to escape. Id. ¶ 3. The defendant grabbed her hair
and forced her to the floor with the gun to her head. Id. Another victim tried to help her,
and the defendant pointed the gun at him and ordered him back to the wall with verbal
threats of violence. Id. Without warning, the defendant then shot the third victim. Id. The
defendant argued that the resulting three counts of false imprisonment should have
merged with the three counts of aggravated assault with a firearm. Id. ¶ 6. This Court
distinguished the defendant’s act of false imprisonment from the acts of assault as
follows: “there is evidence from which the jury could properly find that defendant
committed multiple acts of aggravated assault against each victim by specifically
directing and redirecting the rifle at each of them, accompanied by verbal threats, while
falsely imprisoning each of them.” Id. ¶ 8. As a result, the “assaultive acts . . . did not
constitute a single continuous offense of aggravated assault upon the three victims so
as to merge into the offense of false imprisonment.” Id.

{18} The State additionally cites Comitz, 

, and argues that the two
“distinct act[s] of aggression”—relating to J.S. and to N.Y.—were separate from
Defendant’s use of the gun for restraint. In Comitz, our Supreme Court concluded that
an assault that began with pointed weapons and yelling concluded as the sound of a
siren passed and the parties quieted and lowered their guns. Id. ¶¶ 40, 42. The
confrontation resumed when the sound diminished and the aggravated batteries
occurred. Id. Because the defendant rejected an opportunity to walk away and instead
resumed the confrontation, the paused argument and siren stood “as identifiable points
marking the completion of the assaults (the initial pointing of guns) and the forthcoming
batteries.” Id. ¶ 42. Based on Comitz, Dominguez, and Bachicha, the State argues that
the false imprisonment was completed when the identified distinct acts of aggression
occurred and that as a result, Defendant’s conduct was not unitary.

{19} Although Dominguez and Bachicha make clear that a defendant can be
convicted without running afoul of double jeopardy protections when “the same type of
force” is used for restraint and assault, the facts in the present case are different in a
key respect. In Dominguez, the false imprisonment began before the threatened sexual
assault. 

. In Bachicha, the false imprisonment began before the
distinct individual assaults on each victim. 

, ¶¶ 2-3. In the present case,
Defendant’s use of the gun to restrain the teenagers did not continue through to the
commission of the separate crime of aggravated assault. Instead, the restraint and the
threat were simultaneous and ongoing. Both crimes began and were completed at the
same time—when Defendant drew the weapon to both restrain and threaten. When J.S.
later entered the room, the gun continued to serve to restrain and threaten her and the
others. The simultaneous and ongoing crimes of false imprisonment and aggravated
assault with a deadly weapon of all three teenagers continued when Defendant turned
the gun to J.S.’s head.

{20} While at the time of the phone call, Defendant used the gun to threaten and
coerce J.S. to act, this conduct was an extension of the earlier action to restrain and
threaten. The other two teenagers remained restrained and threatened in the same
manner. We are not unsympathetic to the increase in fear that Defendant’s action
caused J.S. The call, however, heightened the existing situation, rather than calmed it,
and did not present a clear opportunity for Defendant to reconsider his involvement in
the situation. These facts distinguish this case from Comitz and reinforce that the earlier
restraining or threatening conduct continued when the call came in and Defendant
pointed the gun at J.S. See 

 (noting that the sirens caused the
parties to pause and gave the defendant the opportunity to reconsider the encounter
and thereby drew a distinction between the acts before and after the siren). The
simultaneous acts continued, unbroken, together, with greater effect. The indicia of
distinct conduct—time, physical space, and the nature of the act—remained the same.
See Sena, 

. The specific act was not separated by even seconds
or any physical space and the nature of the act of pointing the gun was not “separate
and distinct” from the ongoing assault and false imprisonment. As a result, Defendant’s
act of putting the gun to J.S.’s head—in this context and sequence of events—remained
unitary conduct.

{21} Defendant’s actions toward N.Y. also remained unitary. Defendant’s conduct in
pointing the gun toward N.Y. after he moved suddenly to pick up an item that he had
dropped is consistent with using the gun to keep control of the room—the timing,
physical location, and nature and object of Defendant’s use of the gun did not shift.
Indeed, the State referred generally to this moment in its rebuttal closing as an example
of why the teenagers were not free to leave. Defendant continued to threaten and
restrain N.Y. with the gun. As a result, Defendant’s use of the gun in relation to N.Y.
was unitary. See Swafford, 

, ¶ 28 (“[I]t must be kept in mind that the
task is merely to determine whether the conduct for which there are multiple charges is
discrete (unitary) or distinguishable[, and i]f it reasonably can be said that the conduct is
unitary, then one must move to the second part of the inquiry.”).

{22} We therefore conclude that Defendant’s acts were unitary, and because there
was no distinct conduct on which the jury could have relied in the alternative, we need
not apply the Foster presumption.

B.     The Legislature Did Not Intend Multiple Punishments for Aggravated
       Assault With a Deadly Weapon and False Imprisonment Under These
       Circumstances

{23} Having determined that Defendant’s conduct was unitary, “we proceed to ask
whether the Legislature intended to create separately punishable offenses.” Reed,

 (alteration, internal quotation marks, and citation omitted). To
discern the Legislature’s intent, we look first to the language of the statutes to determine
whether separately punishable offenses are explicitly authorized. See Begaye, 2023-
NMSC-015, ¶ 21. Neither the aggravated assault with a deadly weapon statute, § 30-3-
2, nor the false imprisonment statute, § 30-4-3, explicitly authorize multiple
punishments. As a result, we turn to other cannons of statutory construction to
determine whether the Legislature intended to create separately punishable offenses,
see Begaye, 

, ¶ 21, and employ either the strict-elements test, as laid
out in Blockburger v. United States, 

 (1932), or if the statutes are
“vague and unspecific or are written in the alternative,” Begaye, 

, ¶ 17,
the modified Blockburger test, set forth in State v. Gutierrez, 

,

, 

. See Begaye, 

, ¶¶ 15-18. We agree with
the parties that the modified Blockburger test applies, and compare the elements of the
two offenses, “looking at the [s]tate’s legal theory of how the statutes were violated.”
See Begaye, 

, ¶ 24 (internal quotation marks and citation omitted). We
first consider “the statutory language, charging documents, and jury instructions used at
trial.” 

 (internal quotation marks and citation omitted). If this inquiry does not reveal
the State’s legal theory, we evaluate the testimony, opening arguments, and closing
arguments. See 

{24} This modified Blockburger inquiry into Legislative intent bears remarkable
similarity to the unitary conduct inquiry, but the purpose of each inquiry remains
separate. The unitary conduct analysis looks to the conduct to determine whether that
conduct is separate and distinct. Swafford, 

, ¶ 28. We use the statutory
elements of the offense and the indicia of distinctness, which are often drawn from
testimony and the state’s arguments to the jury, to identify the relevant conduct and
consider whether the acts can be distinguished from each other. Only if the conduct
cannot reasonably be said to be separate do we turn to determine whether the
Legislature intended to create separately punishable offenses. Silvas, 

. The purpose of the modified Blockburger legislative intent inquiry, on the other
hand, is to determine “whether the statute, as applied by the [s]tate in a given case,
overlaps with other criminal statutes so that the accused is being punished twice for the
same offense.” Begaye, 

, ¶ 22 (internal quotation marks and citation
omitted). In the modified Blockburger statutory construction analysis, we look to sources
of information beyond the language of the statute because though the elements of some
criminal offenses can appear to be distinct in the abstract, after inquiry into the state’s
legal theory about how the defendant violated the statutes, it can become clear that
under that theory, the statutes at issue become identical or that one is subsumed within
the other. See Gutierrez, 

 (noting that without the context of the
state’s theory, “we run the risk of misconstruing legislative intent” (internal quotation
marks and citation omitted)). Because the second inquiry is about legislative intent, we
do not stop after we identify the state’s theory. We must continue and “compare the
elements of the two offenses” in the context of “the state’s legal theory of the particular
case as to how the statutes were violated.” Begaye, 

, ¶ 17.

{25} To discern the State’s legal theory, we first look to the charging documents and
jury instructions for aggravated assault with a deadly weapon and false imprisonment.
See id. ¶¶ 25-26. The amended indictment charged Defendant with three counts of
aggravated assault with a deadly weapon by assaulting or striking each victim with a
firearm and clarified that the State’s legal theory for aggravated assault with a deadly
weapon related solely to Section 30-3-2(A), which prohibits “unlawfully assaulting or
striking at another with a deadly weapon.” Nevertheless, the amended indictment does
not identify the State’s legal theory as to how Defendant assaulted the victims with a
firearm, and we look to the jury instructions for further elucidation. See Begaye, 2023-
NMSC-015, ¶ 25. The district court instructed that to find Defendant guilty of each count
of aggravated assault with a deadly weapon as to each victim, the jury would need to
find the following relevant elements: 1

        1.      [D]efendant brandished a pistol in front of [the victim] or pointed the
                firearm at [the victim].

        2.      [D]efendant’s conduct caused [the victim] to believe [D]efendant
                was about to intrude on [the victim’s] bodily integrity or personal
                safety by touching or applying force to [the victim] in a rude,
                insolent or angry manner;

        3.      A reasonable person in the same circumstances as [the victim]
                would have had the same belief; [and]

        4.      [D]efendant used a firearm.

This instruction further clarified the State’s theory and asked the jury to find that
Defendant assaulted the victims by brandishing or pointing a firearm—but under these
circumstances, when the gun was visible for the whole incident and some testimony
supported specific incidents of brandishing or pointing the gun, we remain without
sufficient factual context to identify the State’s theory for the aggravated assault with a
deadly weapon charges.

{26} The amended indictment also charged Defendant with three counts of false
imprisonment, one for each victim, and alleged that Defendant restrained or confined
each victim “against [their] will and with the knowledge that he had no authority to do
so.” The amended indictment “shed[s] little light on the State’s legal theory” as to how
Defendant restrained or confined any of the victims. See id. This question is not
answered by the jury instruction for false imprisonment, which generically stated the
relevant elements as follows:

        1.      [D]efendant restrained or confined [the victim] against [the victim’s]
                will; [and]

        2.      [D]efendant knew that he had no authority to restrain or confine [the
                victim].

Because the indictment and jury instruction are not clarifying, we continue to evaluate
the “testimony, opening arguments, and closing arguments to establish whether the
same evidence supported [the] defendant’s convictions [for] both” aggravated assault
with a deadly weapon and false imprisonment. Id. ¶ 24 (internal quotation marks and
citation omitted).


1The instruction was slightly modified for each victim. For N.Y., the State was required to prove that
Defendant “brandished a firearm in front of [N.Y.]” and for N.T., that Defendant “brandished a firearm in
the presence of [N.T.] or pointed a firearm at [N.T.]”
{27} In opening argument, the State informed the jury that at the end of trial, it would
ask for guilty verdicts for aggravated assault with a deadly weapon “for each victim,
those would be [J.S., N.T., and N.Y.] all of which had guns pointed at them and were
threatened and believed that they might be shot during this incident.” Regarding false
imprisonment, the State explained that it would seek guilty verdicts for false
imprisonment “for [the victims] being restrained or confined within that home without any
reason to do so.” These statements provide little clarification, but as the testimony
proceeded, the State’s theory began to take shape. Each of the victims testified that
after Defendant entered the home, they did not feel free to leave and stayed in part
because Defendant and the two other people with him were armed and during the
incident the doors were locked. In closing argument, the State maintained that
Defendant was guilty of aggravated assault with a deadly weapon if his behavior caused
the victims to “believe[] reasonably that they could be shot or were about to be shot or
otherwise injured by [D]efendant or his co-conspirators.” The State also argued that the
only proof necessary for false imprisonment was that Defendant “restraine[d] or
confine[d] the victims without legal authority, with the knowledge that he has no
authority to do that.” The State additionally pointed out that Defendant testified that he
had studied police and military tactics about how to control the victims’ movements but
that Defendant had “zero legal authority to restrain or confine anyone . . . Defendant has
no power to arrest anyone and that’s what makes him guilty of false imprisonment.”

{28} Based on these arguments supporting the State’s theory, we plug that theory of
the two crimes into the statutory scheme. Based on the statute, the charging
documents, and the jury instructions, the State’s theory as to aggravated assault with a
deadly weapon was that Defendant unlawfully brandished a pistol in front of the victims
or pointed the firearm at them (the unlawful threat element); that Defendant’s conduct
caused the victims to believe that Defendant was about to intrude on their bodily
integrity or personal safety by touching or applying force to them in a rude, insolent or
angry manner; that a reasonable person in the same circumstances as the victims
would have had the same belief; and that Defendant used a firearm (the firearm
element). The evidence and argument at trial demonstrates that the State used the
evidence of Defendant’s brandishing or pointing of a gun in front of or at the victims to
establish the unlawful threat element. For false imprisonment, the jury had to have
found that Defendant restrained or confined the victims against their will (the restraint
element), and that Defendant knew that he had no authority to do so (unlawful element).
At trial, the evidence showed that the victims stayed put because Defendant and his
companions had guns. Thus, the jury necessarily found that (1) the State satisfied the
restraint element of false imprisonment and the unlawful threat element of aggravated
assault with the evidence that Defendant brandished or pointed a gun; and (2) the State
satisfied the unlawful element of false imprisonment with the same evidence that would
demonstrate that the aggravated assault was “unlawful.” All of the elements of false
imprisonment are, under these circumstances, identical to the elements of aggravated
assault with a deadly weapon, and therefore the crime of false imprisonment is
subsumed entirely within the crime of aggravated assault with a deadly weapon. Cf.
State v. Franco, 

, 

, 

 (explaining that a
presumption that the Legislature intended separate punishment arises if neither statute
subsumes the other—“if each offense requires proof of an element that the other does
not”).

{29} Because, under the State’s theory, the false imprisonment elements were
subsumed within the aggravated assault with the deadly weapon elements, Defendant’s
right to be free from double jeopardy was violated and “the inquiry is over.” Begaye,

, ¶¶ 35-36 (internal quotation marks and citation omitted). If a
defendant is wrongfully put in jeopardy twice for the same conduct, one conviction must
be vacated, and if “both offenses result in the same degree of felony, the choice of
which conviction to vacate lies in the sound discretion of the district court.” Porter, 2020-
NMSC-020, ¶ 42. As both offenses in the present case were fourth degree felonies, see
§ 30-3-2; § 30-4-3, the choice of which of the convictions to vacate lies with the district
court, see Begaye, 

, ¶ 36. We therefore remand for the district court to
vacate three of Defendant’s convictions and resentence him. See 

II.    That Defendant “Was Armed” Cannot Be an Aggravating Factor Under
       These Circumstances

{30} Defendant additionally argues that the district court abused its discretion in
aggravating his sentences. See Swafford, 

, ¶ 40 (applying the abuse of
discretion standard of review). NMSA 1978, Section 31-18-15.1(A)(2) (2009) addresses
the alteration of a basic sentence, including aggravating circumstances, as follows: “The
judge may alter the basic sentence . . . upon . . . a finding by a jury or by the judge
beyond a reasonable doubt of any aggravating circumstances surrounding the offense
or concerning the offender.” In aggravating a sentence, the district court “shall not”
consider, in relevant part, whether a firearm was used “as provided in Section 31-18-
16,” the provision permitting a separate firearm enhancement. Section 31-18-15.1(C)(1).
Defendant contends that (1) Section 31-18-15.1 is void for vagueness; (2) the
aggravating circumstances the district court cited were improper; (3) the district court
did not make written findings; and (4) the district court appeared “to assume that
[Defendant]’s sentences would be aggravated by one-third or not aggravated at all.” We
resolve Defendant’s first, third, and fourth arguments before turning to the factors the
district court considered to aggravate the sentences.

{31} As Defendant concedes, our Supreme Court has already held that Section 31-
18-15.1 is not void for vagueness. See State v. Segotta, 

, ¶ 8, 

, 

. We are bound by that holding. See State ex rel. Martinez v.
City of Las Vegas, 

, 

, 

 (stating that “the
Court of Appeals remains bound by Supreme Court precedent” (alteration, omission,
internal quotation marks, and citation omitted)). We further see nothing in the statute or
the record to support Defendant’s third and fourth arguments. Section 31-18-15.1(F)
does not require written findings but only that the district court “issue a brief statement
of reasons for the alteration and incorporate that statement in the record of the case.”
State v. Bernal, 

, ¶ 11, 

, 

 (internal quotation
marks and citation omitted); see id. ¶ 12 (“We hold that the oral statement of reasons
was part of the ‘record of the case’ within the meaning of Section 31-18-15.1.”). The
district court stated the reasons on the record at the sentencing hearing, both at the
beginning and near the end of sentencing. Defendant argues that we should reconsider
Bernal and our reading of Section 31-18-15.1. We decline, however, to require more
than the statute mandates, and the district court’s reasons for aggravating Defendant’s
sentence were stated on the record. But see Bernal, 

, ¶ 11 (“Appellate
review would be easier if the trial court had filed a written statement of its reasons for
alteration of a basic sentence, as part of the court file.”). The district court’s aggravated
sentences further comply with the statutory directive that “in no case shall the alteration
exceed one-third of the basic sentence.” Section 31-18-15.1(G). The statute does not
require the district court to consider and reject a lesser than one-third aggravation of the
sentence. We therefore discern no error relating to these arguments.

{32} For the remaining argument, Defendant contends that the district court
improperly aggravated the sentences based on the following factors: (1) Defendant was
armed and armed the other intruders; (2) Defendant used the cover of darkness; (3) the
victims suffered trauma; (4) the victims were minors; (5) the victims were innocent
parties who were unrelated to the source of Defendant’s anger; and (6) Defendant’s
demeanor at trial. While we largely agree with the State that the district court
appropriately considered aggravating factors, the district court’s finding that Defendant
“was armed” is not an appropriate aggravation under these circumstances. Section 31-
18-15.1(C)(1) explicitly prohibits the district court from aggravating a sentence based on
“the use of a firearm, as provided in Section 31-18-16.” This Court has previously
explained that “[i]t is any use of any firearm that invokes Section 31-18-16.” State v.
Roper, 

, 

, 

 (emphasis added). In Roper,
the district court aggravated the sentence based on the use of a firearm not “because of
the mere use of any firearm,” but because the “[d]efendant used a particularly fearsome
firearm and the entire episode in which [the d]efendant was involved put a large number
of people at risk.” 

 In the present case, no “particular use” of the firearm separates the
jury’s finding that Defendant “brandished” a firearm in order to enhance the sentences
under Section 31-18-16 from the fact that Defendant “was armed,” as the district court
found for the purposes of aggravation. As a result, the fact that Defendant “was armed”
was not an appropriate basis for aggravation under the circumstances and the
aggravation of Defendant’s sentence must be reconsidered in this respect.

{33} Because we have concluded that the jury did not find sufficient facts to establish
firearm enhancement in relation to the conspiracy to commit aggravated burglary
conviction, we must consider the district court’s aggravation of the conspiracy conviction
apart from Section 31-18-15.1(C)(1). That Defendant “was armed” does not preclude
aggravation under the other provision that Defendant invokes, Section 31-18-15.1(C)(4),
because whether Defendant “was armed” was not an element of conspiracy. See State
v. Chavez, 

, ¶ 10, 

, 

 (defining conspiracy “as
a common design or agreement to accomplish an unlawful purpose or a lawful purpose
by unlawful means”). Nevertheless, as we have noted, the jury was instructed that the
conspiracy was established if Defendant agreed with another to commit aggravated
burglary and had the intent to commit aggravated burglary. That Defendant “was armed”
as he carried out the agreement is not a circumstance of the offense of conspiracy and
does not aggravate the agreement that had already been reached. See Segotta, 1983-
NMSC-092, ¶ 8 (defining the term aggravate in this context to mean “make worse, more
serious, or more severe: intensify” (internal quotation marks and citation omitted)).
Accordingly, the district court abused its discretion to the extent that Defendant’s
conviction for conspiracy was aggravated because Defendant “was armed.” See Roper,

 (explaining that “all matters relevant to the event for which [the
d]efendant is tried and convicted are circumstances that may aggravate or mitigate”
(emphasis added)).

{34} Otherwise, we hold that the district court relied on facts that were appropriate
aggravating circumstances. See id.; see also § 31-18-15.1(B) (permitting the district
court to consider “any aggravating circumstances surrounding the offense or concerning
the offender” (emphasis added)). Defendant testified that he provided the weapons to
the other two intruders, and as the State notes, this testimony was not necessary to
prove the element of any crime. See State v. Landgraf, 

, ¶ 23, 

, 

 (permitting aggravation based on facts that are consistent with
the convictions but “are not elements necessary to prove the crime”). The district court
heard evidence that the conspirators invaded the home “under the cover of darkness,”
and that each of the victims was a minor. See State v. Tortolito, 

, ¶¶
23, 24, 

, 

 (affirming the aggravation of a sentence because
two children witnessed the event and the “[d]efendant induced terror in the victim by
blindfolding her with a pillowcase during the attack”). At trial J.S. testified about the
trauma she experienced, and at sentencing, a friend of all three victims testified about
the negative impact the experience had on the victims. See Landgraf, 

,
¶ 23 (“Aggravation may also be based on the nature and extent of the suffering
caused.”). Further, even though the victims were not the source of Defendant’s ire,
Defendant confined and threatened them despite T.B.’s absence from the house.
Finally, the district court found that Defendant’s manner in testifying was either
alarmingly callous or “nonchalant.” Defendant has not met the burden on appeal to
demonstrate that the district abused its discretion in determining that these facts
together were appropriate considerations “surrounding the offense or concerning the
offender” for the purposes of aggravating Defendant’s sentences. See § 31-18-
15.1(A)(2); State v. Aragon, 

, 

, 

(noting that “it is [the appellant]’s burden on appeal to demonstrate any claimed error” in
the district court).

CONCLUSION

{35} For the reasons stated herein, we reverse and remand for the district court to
vacate three of the convictions, as set forth in this opinion, and resentence Defendant.

{36}   IT IS SO ORDERED.

KATHERINE A. WRAY, Judge

WE CONCUR:
JACQUELINE R. MEDINA, Judge

ZACHARY A. IVES, Judge