State v. Phillips

                                                                  Office of the
                                                                                       New Mexico
                                                                      Director         Compilation
                                                                                       Commission
                                                                   2024.05.14
                                                              '00'06- 15:45:14
            IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: March 4, 2024

No. S-1-SC-38910

STATE OF NEW MEXICO,

      Plaintiff-Respondent/Cross-Petitioner,

v.

CLIVE DALTON PHILLIPS,

      Defendant-Petitioner/Cross-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Clara Moran, District Judge

Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM

for Petitioner/Cross-Respondent

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

for Respondent/Cross-Petitioner

                                       OPINION

THOMSON, Justice.

{1}    Defendant Clive Phillips was convicted of six counts of aggravated battery and
pleaded guilty to one count of voluntary manslaughter after he violently attacked Adrian
Carriaga and Alexzandria Buhl (Allie), killing Adrian and severely injuring Allie.
Defendant challenges his convictions, arguing that double jeopardy bars the multiple
convictions with the exception of one count of battery for attacking Allie and one count
of manslaughter for attacking and killing Adrian. We conclude that the manslaughter
conviction and the challenged battery convictions are each based on distinct conduct
and therefore do not violate Defendant’s right against double jeopardy. We reverse, in
part, and affirm, in part, the Court of Appeals.
I.    BACKGROUND

{2}   Defendant, Allie, Adrian, and Sean Madrid were close friends and shared a fourbedroom house. Defendant and Allie had been in an on-and-off relationship since high
school and had a baby together. In the summer of 2013, Allie broke up with Defendant
and moved into her own bedroom in the house with the baby. Shortly thereafter, Allie
and Adrian began a romantic relationship.

{3}    Early one morning, Sean became suspicious that Allie and Adrian were sleeping
together and called Defendant, who was not home at the time, to inform him of his
suspicions. Defendant drove to the house, walked into Allie’s room with a baseball bat,
and discovered Allie and Adrian in bed together.

{4}    Armed with the bat, Defendant struck the two numerous times, and a struggle
ensued. Defendant eventually dropped the baseball bat and left Allie’s room to retrieve
a handgun. Allie immediately shut and locked her bedroom door, but Defendant came
back, shot the door handle, and kicked the door open. Upon reentering Allie’s room,
Defendant shot Adrian once in the chest and once in his right armpit. Out of
ammunition, Defendant left Allie’s room, and Allie called 911. Defendant returned to the
room soon after with a rifle. He asked Adrian, “Are you ready?”, placed the rifle under
Adrian’s chin, and fired, killing Adrian.

{5}     Defendant then turned to Allie and shot her once in her shin and inserted his
finger into her bullet wound. Defendant grabbed Allie’s phone, which was still connected
to 911, and before ending the call described to the operator what had happened. He
then resumed his assault on Allie by punching her in the face. The two struggled before
Defendant pushed Allie against the wall in the hallway and choked her, causing her to
lose consciousness. The police arrived at the home shortly thereafter.

{6}     For Defendant’s attack on Adrian, the jury could not reach a verdict on the
murder charge or on the lesser-included offense of manslaughter for the killing of
Adrian. See NMSA 1978, § 30-2-1 (1994) (murder); NMSA 1978, § 30-2-3 (1994)
(manslaughter). However, the jury convicted Defendant of two counts of aggravated
battery with a deadly weapon—one for striking Adrian with the baseball bat and one for
shooting Adrian with the handgun. See NMSA 1978, § 30-3-5 (1969) (aggravated
battery); NMSA 1978, § 31-18-16 (1993, amended 2022) (firearm enhancement). For
his attack on Allie, the jury convicted Defendant of four counts of aggravated battery
against a household member—one for striking Allie with the baseball bat (deadly
weapon), one for shooting her with the rifle (deadly weapon), one for punching her, and
one for strangling her (great bodily harm). See NMSA 1978, § 30-3-16 (2008, amended
2018) (aggravated battery against a household member); § 31-18-16 (1993) (firearm
enhancement). Following an appeal to this Court regarding the scope of retrial on the
murder charge, see State v. Phillips (Phillips I), 

, 

,
Defendant pleaded guilty to voluntary manslaughter for the death of Adrian. At
sentencing, Defendant argued that his convictions for attacking Adrian and Allie were
based on unitary conduct and therefore violated the protections afforded by the double
jeopardy clause. The district court disagreed and sentenced Defendant to twenty-five
years imprisonment, suspending seven years.

{7}     Defendant appealed, contending (1) that he should only be convicted of one
count of battery for attacking Adrian and one count of battery for attacking Allie and (2)
that his battery conviction for shooting Adrian with the handgun should be vacated
because it was based on the same conduct as the manslaughter conviction. State v.
Phillips (Phillips II), 

, 

. The Court of
Appeals affirmed Defendant’s convictions for the two batteries against Adrian as they
were not based on unitary conduct and therefore, did not violate double jeopardy. Id. ¶
16. However, the Court concluded that the battery (handgun) and manslaughter
convictions violated double jeopardy because a reasonable jury could have found either
unitary conduct or distinct acts. Id. ¶¶ 23-26, 29. Therefore, the Court presumed that the
conduct was unitary as required by State v. Foster, 

, 

, 

 (holding that we must presume a defendant’s conduct is unitary if the
jury convicted the defendant under a general verdict and the record does not indicate
whether the jury relied on a legally inadequate alternative that would result in double
jeopardy), abrogated on other grounds by Kersey v. Hatch, 

, 

, 

. Id. ¶¶ 26-29. Finally, the three battery convictions for hitting
Allie with the baseball bat, shooting her with the rifle, and strangling her were affirmed.
See Phillips II, 

. The Court accepted the State’s concession
that the battery conviction for punching Allie was violative of double jeopardy and
reversed that conviction. Id. ¶¶ 34-35. That reversal is not at issue in this appeal.

{8}    Defendant petitioned for certiorari, contending that his two battery convictions for
attacking Adrian (baseball bat and handgun) and his three battery convictions for
attacking Allie (baseball bat, rifle, and strangulation) all violate double jeopardy. The
State cross-petitioned, arguing that the Court of Appeals erred by vacating the
conviction for battery of Adrian with a handgun. We granted both petitions. We affirm
Defendant’s manslaughter conviction and all five of his aggravated battery convictions.
We further conclude that the Court of Appeals erred in its application of the presumption
announced in Foster. Additionally, we clarify that in conducting a double jeopardy
analysis for a conviction rendered by a guilty plea, a reviewing court should examine
what the record shows about whether a defendant’s acts are distinct rather than what a
reasonable jury could have found.

II.     DISCUSSION

{9}     The Fifth Amendment to the United States Constitution provides that “[n]o person
shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” The
double jeopardy clause prohibits a court from “imposing multiple punishments for the
same offense.” State v. Porter, 

, 

 (text only) 1               0F




(citation omitted). There are two types of multiple punishment cases: “those cases in


1The “text only” parenthetical as used herein indicates the omission of all of the following—internal
quotation marks, ellipses, and brackets—that are present in the quoted source, leaving the quoted text
itself otherwise unchanged.
which a defendant is charged with multiple violations of a single statute based on a
single course of conduct (unit of prosecution cases) and those cases in which a
defendant is charged with violating different statutes in a single course of conduct
(double-description cases).” State v. Sena, 

, 

 (text
only) (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.” State v. Benally, 

, 

(text only) (citation omitted). We review this question of constitutional law de novo.
Porter, 

.

{10} This case involves both unit of prosecution and double description analyses.
Defendant raises a unit of prosecution argument, contending that his multiple battery
convictions violate double jeopardy because “he attacked [Adrian] and [Allie] during a
single episode, which took place in a small space and a short amount of time, and
therefore he should not have been convicted of more than one count of battery against
each of them.” The State argues under a double-description challenge that Defendant’s
convictions for aggravated battery with a handgun and manslaughter stemming from his
attack on Adrian were not based on unitary conduct, and therefore we should reverse
the Court of Appeals’ determination that these convictions violate double jeopardy. We
address Defendant’s unit of prosecution challenge first.

A.     Unit of Prosecution

{11} In a unit of prosecution case, we focus 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.” Benally, 

. This is a two-part test. 

 First, “we must analyze the statute to determine whether
the Legislature has defined the unit of prosecution.” Id. ¶ 13 (text only) (citation omitted).
We do this by considering “all markers of legislative intent . . . including the wording,
structure, legislative history, legislative purpose, and quantum of punishment prescribed
under the statutory scheme.” Id. If the statute defines the unit of prosecution, “our
inquiry is complete.” Id. ¶ 14. “However, if the statute remains insurmountably
ambiguous as to its intended unit of prosecution, then we apply . . . the rule of lenity—
and construe the statute in favor of the defendant.” Id. (internal quotation marks and
citation omitted). “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.” Id. ¶ 16 (text only)
(citation omitted). “After applying the rule of lenity . . . , we then turn to the second step
of our analysis.” Id.

{12} The second step requires us to “determine whether a defendant’s acts are
separated by sufficient indicia of distinctness to justify multiple punishments under the
same statute.” State v. Ramirez, 

, 

 (text only)
(citation omitted). To determine whether a defendant’s acts are sufficiently distinct, we
consider the Herron factors: (1) temporal proximity of the acts, (2) location of the victim
during each act, (3) the existence of intervening events, (4) the sequencing of the acts,
(5) the defendant’s intent as evidenced by his conduct and utterances, and (6) the
number of victims. Herron v. State, 

, ¶ 15, 

, 

. “[T]he six Herron [factors] 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.” Benally, 

 (internal
quotation marks and citation omitted).

{13} In applying the Herron factors, Defendant urges us to adopt “a general rule or
rebuttable presumption” that “[w]hen there is an incident that occurs in a short time in a
single place, the State should generally be limited to proving one purely assaultive
crime for each victim.” We decline to do so. We continue to hold that no Herron factor is
dispositive, but instead that all factors should be considered together in light of the facts
and circumstances of each case. See Herron, 

, ¶ 15 (“[N]one of these
factors alone is a panacea, but collectively they will assist in guiding future prosecutions
under [the relevant charging statute].”); Swafford v. State, 

, ¶ 28, 

, 

 (adopting the Herron factors in the unitary conduct inquiry for
double description cases and noting that time and space may easily distinguish acts in
some cases, but not in every case, and that courts should consider every factor); State
v. Handa, 

, ¶ 26 n.2, 

, 

 (“[T]he time between
each act is not dispositive.”). We also reject Defendant’s argument that some, but not
all, of the principles applied in double description cases for a unitary conduct inquiry
apply in a unit of prosecution analysis. See, e.g., State v. DeGraff, 

, 

, 

 (considering whether one crime had been completed
before another was committed); State v. Cooper, 

, 

, 

 (considering the initial use of force against a victim as separable by
“an intervening event” from subsequent but different uses of force and weapons that
resulted in the victim’s death). In both unit of prosecution and double description cases,
“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.” State v. Bernal, 

, 

,

. This necessarily requires us to consider general guideposts, such as the
nature of a defendant’s acts and whether one crime was completed before another.
Double jeopardy jurisprudence in New Mexico is a tangled and often laborious analysis.
It should be this Court’s goal to simplify rather than complicate it. Therefore, we reaffirm
our conclusion in Bernal that “we are doing a substantially similar analysis when we
conduct a unitary conduct inquiry in double description cases as when we conduct a
unit-of-prosecution inquiry.” 

{14} If a defendant’s acts are sufficiently distinct, “then we will presume that the
defendant has not received more punishments than were statutorily authorized.”
Benally, 

. However, “[i]f 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.” 

 We
now apply this two-step framework to Defendant’s multiple battery convictions.
1.      Defendant’s two battery convictions for attacking Adrian do not violate
        double jeopardy

a.      The aggravated battery statute does not define the unit of prosecution

{15} Section 30-3-5(A) defines aggravated battery as “the unlawful touching or
application of force to the person of another with intent to injure that person or another.”
The offense is heightened to a third-degree felony if the aggravated battery is
committed with a deadly weapon, as it was in this case. Section 30-3-5(C). Analyzing
the plain language of the statute, the Court of Appeals held that the unit of prosecution
for the aggravated battery statute is ambiguous. Phillips II, 

(relying on State v. Mares, 

, ¶ 24, 

, 

, for the
proposition that “the aggravated battery statute d[oes] not separately punish each act of
unlawful touching occurring during a continuous attack unless the acts are sufficiently
distinct”). We agree and focus our analysis on the plain language and purpose of the
aggravated battery statute. State v. Olsson, 

, 

(“The plain language of the statute is the primary indicator of legislative intent.”); NMSA
1978, § 12-2A-19 (1997) (providing that a statute’s text is “the primary, essential source
of its meaning”).

{16} Both parties rely on Ramirez, 

, for their unit of prosecution
analyses to different ends. In Ramirez, the defendant was convicted of three counts of
child abuse after shooting into a vehicle that contained three children. Id. ¶¶ 3-4. There,
we considered whether the child abuse by endangerment statute specified the unit of
prosecution. Id. ¶ 48. We first observed that the statute’s intended unit of prosecution
could be the conduct of causing or permitting a child to be endangered regardless of the
number of victims because the statute focused on prohibiting a course of conduct. Id. ¶
51. However, we later noted that the statute could be read to indicate that the unit of
prosecution was per victim because it prohibited endangering “a child.” Id. ¶¶ 52-53. We
provided that “[it] is well established . . . that where a statute prohibits the doing of some
act to a victim specified by a singular noun, ‘a person’ for example, then ‘the person’ is
the unit of prosecution.” Id. ¶ 53. Ultimately, we held that the statute was ambiguous
because there were two plausible readings of the statute as to its intended unit of
prosecution. Id. ¶ 55.

{17} Defendant argues that under Ramirez, the usual unit of prosecution for the
aggravated battery statute is per victim, but argues that the statute is still ambiguous as
to whether a defendant may be convicted of multiple counts of battery against the same
victim during a continuous attack. The State similarly relies on Ramirez, arguing that the
plain language of the statute specifies the unit of prosecution as per deadly weapon. 2             1F




{18} We conclude that Ramirez does not resolve the question before us. Section 30-
3-5 prohibits touching or applying force “to the person of another,” which may suggest
that the unit of prosecution is per victim. However, the statute still does not specify

2We note that in the Court of Appeals, the State contended that Section 30-3-5 does not specify the unit
of prosecution and argued that Ramirez was inapplicable, but the State now changes its position arguing
that the statute does so specify.
whether someone can be punished separately for multiple acts of touching or applying
force to the same victim during a continuous attack. This factual situation was not
considered in Ramirez. See 

. Similarly, Ramirez does not support the
State’s interpretation that use of different deadly weapons allows for separate units of
prosecution. In Ramirez, we explained that when a statute contains a single, direct
object that is the recipient of the prohibited conduct, the unit of prosecution is by object.
Id. ¶ 52 (“Stated grammatically, the statute contains a direct object that is the recipient
of the actions of [its] verbs, and that direct object is a singular noun. This suggests that
our Legislature intended the protections of [the statute] to attach to each child
endangered, and this, in turn, suggests that the unit of prosecution for [the statute] is by
child.”) Here, Section 30-3-5(C) simply heightens the offense if it is committed “with a
deadly weapon.” The statute’s use of the term “with a deadly weapon” is not to define
the direct object or focus of the statute. Instead, it serves as an aggravating factor.
Neither Ramirez nor any other pronouncement of this Court established a rule that if a
defendant uses multiple weapons or objects during an attack, the Legislature, as a
matter of law, intended to impose separate punishments. See Herron, 

,
¶ 13 (“[S]eparate [acts] can occur within sufficient temporal proximity to raise doubt
whether the legislature intended separate punishments for those acts which could
equally be inspired by a single criminal intent bent on a single assaultive episode.”).

{19} The State further argues that a separate punishment for each deadly weapon
used is supported by the purpose of the aggravated battery statute, suggesting that the
“statute is directed at preserving the integrity of a person’s body against serious injury.”
State v. Vallejos, 

, ¶ 18, 

, 

; see also State v.
Neatherlin, 

, 

, 

 (“The purpose of
aggravating the charge and enhancing the sentence for use of a weapon is to minimize
injury to human beings no matter how the injury is inflicted and discourage people from
using objects to injure another.” (text only) (citation omitted)). We disagree. While in
some circumstances, the use of multiple deadly weapons may increase the risk of injury
or death to a victim, that alone is not supportive that such an assault is always deemed
nonunitary.

{20} Our analysis is better guided by Herron. In Herron, we addressed whether a
former version of the criminal sexual penetration statute allowed a defendant to be
punished for each act of sexual penetration occurring during an incident of sexual
assault. 

, ¶¶ 6, 8. Concluding that the language of the statute was
ambiguous on this point, we applied the rule of lenity and held that the statute “cannot
be said as a matter of law to evince a legislative intent to punish separately each
penetration occurring during a continuous attack absent proof that each act of
penetration is in some sense distinct from the others.” Id. ¶¶ 8, 15. Later, in Mares, the
Court of Appeals relied on and adopted our approach in Herron to conclude that under
the aggravated battery statute, the Legislature did not intend to punish each act of
battery occurring during a continuous attack unless each act was distinct from the
others. 

, ¶ 24. We agree with the Mares Court that the plain language
of the aggravated battery statute does not clearly indicate whether a defendant can be
punished for each act of battery inflicted on the same victim during a continuous attack.
Therefore, we apply the rule of lenity and conclude that the Legislature did not intend to
punish multiple acts of battery in these circumstances unless each act is distinct. See
Herron, 

, ¶ 15; Mares, 

, ¶ 24. We now move to the
second step of the unit of prosecution analysis and determine whether Defendant’s acts
of hitting Adrian with the baseball bat and shooting him with the handgun were
separated by sufficient indicia of distinctness by applying the six Herron factors.

b.     The batteries on Adrian were sufficiently distinct

{21} In the most recent Court of Appeals proceedings, the parties agreed that the
time, location, and number-of-victims factors supported unitary conduct. Phillips II,

. The Court of Appeals focused on the remaining three Herron
factors and held that Defendant committed two distinct acts of battery because he “used
separate and discrete acts of force against Adrian, separated by an intervening event
and a change in intent.” Phillips II, 

. The State no longer
concedes the timing and location factors, arguing now that they are “neutral” and do not
weigh in favor of unitary conduct. We step back to analyze all six Herron factors to
determine whether Defendant’s acts were sufficiently distinct.

{22} The attack unfolded with Defendant walking into Allie’s room and striking Adrian
and Allie with the baseball bat. There was a struggle over the bat, and Sean
immediately called 911. Defendant left the room to retrieve a handgun. Allie locked the
door behind him. Approximately one minute and forty seconds into Sean’s 911 call,
Defendant shot the door handle to get back into Allie’s room and shot Adrian twice.

{23} The one minute and forty second gap between the battery with the baseball bat
and the battery with the handgun was, in this case, a significant elapse of time. This,
however, is not the only evidence that supports distinct conduct. Cf. State v. Demongey,

, 

, 

 (concluding that a time elapse of
two minutes between two acts did not support distinct conduct because there was no
evidence indicating a change in intent or nature of the acts). There were multiple
intervening events between the batteries in this case. First was the struggle over the
baseball bat. Next, Defendant left Allie’s bedroom after dropping the bat and retrieved
the handgun. See, e.g., DeGraff, 

 (providing that a defendant’s
struggle with the victim constitutes an intervening event). Finally, Defendant shot the
door handle and kicked the door open before shooting Adrian.

{24} Defendant also used two different weapons to attack Adrian. See, e.g., Foster,

 (concluding that the use of different weapons indicates distinct
conduct). Each application of force, as well as the injuries inflicted, were also distinct;
the baseball bat assault was nonfatal, whereas the two handgun shots inflicted more
serious injuries. See Bernal, 

 (stating that different uses of force
support distinct acts).

{25} Furthermore, we agree with the Court of Appeals that there was evidence that
Defendant’s intent had changed from the time he attacked Adrian with the baseball bat
to the time that he shot Adrian with the handgun, thus evincing distinct conduct. Phillips
II, 

 (citing Demongey, 

). After his arrest,
Defendant told police that when he hit Adrian with the baseball bat, he did not think that
he was going to shoot or kill anybody. However, Defendant explained that after he
battered Adrian, he remembered Adrian usually slept with a gun nearby, so he went to
his bedroom to retrieve the handgun to immobilize or kill Adrian. Defendant argues that
the Court of Appeals’ separate-intent analysis rested on a “factual conclusion about
[Defendant’s intent to kill] that the jury rejected.” We disagree mainly because
Defendant was not acquitted of murder; the jury simply did not reach a verdict.
Additionally, Defendant’s argument that the jury did not make an express finding
regarding his intent to kill has no bearing on our analysis. See Herron, 

,
¶ 15 (providing that courts determine intent “as evidenced by [the defendant’s] conduct
and utterances”). Defendant’s conduct and statements to police demonstrate that he
had not formulated an intent to kill Adrian with the baseball bat but that he had
formulated this intent when shooting Adrian with the handgun. Therefore, there was a
clear change in intent between each attack.

{26} We recognize that Adrian was the only victim in both of these attacks and that he
remained in the same location for each. However, we decline to place great weight on
the latter fact given that Adrian stayed or was forced to stay in one location, in the room
with the door that Allie locked, to avoid further harm from Defendant’s attacks.

{27} Therefore, we conclude that four of the Herron factors strongly support that
Defendant’s two convictions of battery for the injuries he inflicted on Adrian do not
violate double jeopardy as Defendant’s two attacks were distinct. See State v. Jackson,

, 

 (“[A]lthough [the v]ictim and location of [the
d]efendant’s kidnappings overlap, there was sufficient evidence that the two
kidnappings were separated by . . . sufficient indicia of distinctness . . . and, as a result,
. . . do not violate double jeopardy.”).

2.     The three battery convictions for the injuries inflicted on Allie do not violate
       double jeopardy

a.      The aggravated battery against a household member statute at issue did
        not clearly specify the unit of prosecution

{28} The language of the statutes for aggravated battery and aggravated battery
against a household member is almost identical, and, consistent with our previous
references herein, the parties advance the same arguments as to the intended unit of
prosecution for the aggravated battery statute as for the aggravated battery against a
household member statute, see Section II.A.1, paragraph 17, supra. The latter requires
that the offense be committed against “a household member” while the former requires
the offense be committed against “another.” Compare § 30-3-16(A) (2008) 3, with § 30-3-
                                                                                     2F




5(A). The State added one additional argument: each application of force that caused or
could have caused great bodily harm, see §§ 30-3-5(C), 30-3-16(C) (2008), creates an
alternative unit of prosecution.


3Defendant was convicted under the 2008 version of Section 30-3-16. However, the Legislature’s 2018
amendments to the statute do not affect our analysis.
{29} Like the aggravated battery statute, the plain language of the aggravated battery
against a household member statute does not clearly indicate whether a defendant can
be punished separately for each act of battery against the same household member
during a continuous attack. See Section II.A.1, paragraph 20, supra; Herron, 1991-
NMSC-012, ¶ 15; Mares, 

, ¶ 24. Similar to our previous rejection of this
very argument from the State applied to aggravated battery, we reject the State’s
argument that the aggravated battery against a household member statute defines the
unit of prosecution as per deadly weapon or by each application of force that caused or
could have caused great bodily harm. Therefore, we apply the rule of lenity and
conclude that the statute does not separately punish each act of battery inflicted on the
same victim during a continuous attack unless each act is sufficiently distinct.

b.      Defendant’s acts of battery against Allie are separated by sufficient indicia
        of distinctness

{30} We apply the six Herron factors to the attack on Allie and begin by examining
Allie’s location during each battery. Allie remained in her room when first attacked with
the baseball bat and later attacked with the rifle; however, she changed locations within
the room. Herron recognizes that movement of a victim in between a defendant’s acts
supports distinct conduct. See 

, ¶ 15 (“[M]ovement or repositioning of
the victim between [acts] tends to show separate offenses.”). Further, similar to our
analysis regarding the batteries on Adrian, we decline to weigh in favor of unitary
conduct the fact that Allie remained in her room, which she locked after the first attack in
an effort to protect herself and Adrian from a subsequent assault.

{31} In addition, Allie was in a different location of the home for the battery with the
rifle than where she was for the battery by punching and strangulation. Defendant first
shot Allie in the leg with the rifle in her room, and then he moved her into the hallway
where he punched and strangled her. See, e.g., Bernal, 

 (stating
that the use of force “in different parts of the [victim’s] house” supports distinct conduct).

{32} The interval of time between the attacks remains significant to our analysis of
whether the batteries were distinct. Cf. Demongey, 

. Based on
audio recordings of Sean’s and Allie’s separate 911 calls placed during these attacks,
there was an approximate two-minute break after both the first and second of the three
successive batteries inflicted on Allie.

{33} During each break between the batteries, there were also numerous intervening
events. After hitting Allie with the baseball bat and before shooting her with the rifle,
Defendant struggled with both victims, left Allie’s room to retrieve the handgun, shot
Allie’s door, kicked the door open, shot Adrian twice with the handgun, left the room
again to retrieve the rifle, and then killed Adrian by shooting him in the head. And after
shooting Allie with the rifle, Defendant talked with the 911 operator Allie had phoned for
approximately two minutes describing the attacks before he began punching and
strangling Allie.
{34} Defendant also committed each act in a distinct manner. Defendant used
different weapons for each battery against Allie, see, e.g., Foster, 

, and Defendant used different degrees of force by hitting her with the baseball bat all
over her body, shooting her in the leg with a rifle, and then punching and strangling her
until she lost consciousness, see Bernal, 

.

{35} Defendant’s intent to harm Allie may have remained the same throughout the
attack, but the evidence shows that Defendant ceased his actions and reformulated this
intent between each battery. Cf. Demongey, 

 (concluding there
was no evidence indicating that the defendant rethought his actions or ceased his
actions and then reformulated his intent); State v. Garcia, 

, 

, 

 (stating there was no evidence that the defendant’s intent to
batter the victim was “interrupted, altered, or changed”). After hitting Allie with the
baseball bat, Defendant ceased his attack, left the room multiple times, shot and killed
Adrian, and then shot Allie with the rifle. Defendant again ceased his attack on Allie
when he talked with the 911 operator before renewing a separate battery in the hallway.

{36} Defendant’s batteries against Allie were clearly distinct, and his three convictions
for aggravated battery against a household member do not violate double jeopardy.

B.     Double Description

{37} On cross-appeal, the State challenges the Court of Appeals’ determination that
Defendant’s convictions for aggravated battery with the handgun and manslaughter
violate double jeopardy. In double description cases, we again apply “a two-part
analysis for deciding whether the same offense was committed.” Sena, 2020-NMSC-
011, ¶ 45. “The first part focuses on the conduct and asks whether the conduct
underlying the offenses is unitary, i.e., whether the same conduct violates multiple
statutes.” 

 (text only) (citation omitted). If the conduct is unitary, “we proceed to the
second part, which focuses on the statutes at issue to determine whether the legislature
intended to create separately punishable offenses.” 

 (text only) (citation omitted). A
defendant’s double jeopardy rights are violated only “when (1) the conduct is unitary
and (2) it is determined that the Legislature did not intend multiple punishments.” 

 If a
defendant’s double jeopardy rights are violated, courts must “vacate the conviction
carrying the shorter sentence.” State v. Torres, 

, 

.
Both parties agree that the Court of Appeals’ holding on legislative intent is not before
us, and therefore our focus is limited to whether Defendant’s conduct was unitary.

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

 (text only) (citation omitted). As
previously noted, we apply the six Herron factors in the double description analysis to
determine whether a defendant’s acts are unitary or distinct. Swafford, 1991-NMSC-
043, ¶ 28. We consider “the elements of the charged offenses, the facts presented at
trial, and the instructions given to the jury.” Sena, 

; Porter, 2020-
NMSC-020, ¶ 12. “Unitary conduct is not present when one crime is completed before
another is committed, or when the force used to commit a crime is separate from the
force used to commit another crime.” Sena, 

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

 (text only) (citation omitted).

{39} In this case, the instruction for aggravated battery with the handgun required the
jury to find that Defendant “touched or applied force to Adrian . . . by shooting him in the
torso with a handgun.” However, the instruction for manslaughter required the jury to
find that Defendant “killed Adrian.” Thus, although the jury instruction for the aggravated
battery charge specified the conduct that formed the basis of the charge, the
manslaughter instruction did not. The jury convicted Defendant of the aggravated
battery charge but hung on the manslaughter charge. Defendant’s subsequent guilty
plea for manslaughter did not specify a factual basis for his plea.

{40} As a result, the Court of Appeals applied the Foster presumption. See Phillips II,

. In Foster, we held that “we must presume that a conviction
under a general verdict requires reversal if the jury is instructed on an alternative basis
for the conviction that would result in double jeopardy, and the record does not disclose
whether the jury relied on this legally inadequate alternative.” 

.
We adopted this presumption because “we cannot assume that jurors will know to avoid
an alternative basis for reaching a guilty verdict that would result in a violation of the
Double Jeopardy Clause.” 

 However, in Sena, we clarified that “Foster does not
require a further presumption that the same conduct was then relied upon by the jury in
convicting [a d]efendant of each crime—particularly when the record indicates [distinct
crimes] were committed.” 

. Thus, the Foster presumption can be
“rebutted by evidence that each crime was completed before the other crime occurred.”

 After reviewing the evidence presented at trial, the Court of Appeals in this case
conclusively presumed that Defendant’s conduct was unitary because it was “unable to
determine whether the manslaughter was accomplished by the rifle shot alone or by
multiple gunshots.” Phillips II, 

, 29 & n.1. 4            3F




{41} As an initial matter, we note that our appellate courts have never applied the
Foster presumption to convictions based on guilty pleas. However, we assume without
deciding that the Foster presumption applies in this case because the jury instructions
and guilty plea for the manslaughter conviction do not specify what conduct forms the
basis of the manslaughter conviction. 5 Therefore, we agree with the Court of Appeals
                                             4F




that “the only reasonable inference . . . is that the factual basis for Defendant’s guilty
plea and resulting conviction is the same as the evidence presented at trial.” Phillips II,

4The Court of Appeals relied on our decision in State v. Franco, 

, 

,

, where we conclusively applied the Foster presumption despite evidence that each act
was distinct. Phillips II, 

, ¶¶ 26-29 & n.1. In Sena, we clarified that the Foster
presumption should not be applied conclusively, but is instead rebutted by evidence in the record
supporting distinct conduct. 

. Therefore, Sena, rather than Franco, is the proper
analysis.
5The State argues that “Defendant has the burden of creating the factual record for a double jeopardy
claim,” and because he did not specify within his guilty plea “whether the underlying factual basis was the
rifle shot alone or all the gunshots, the Court of Appeals should have resolved any lack of clarity on that
issue against Defendant.” Although our case law requires a defendant who pleads guilty to “provide a
sufficient record for the court to determine unitary conduct,” see State v. Sanchez, 

, ¶ 11,

, 

, the record in this case is sufficient to do so.


; see State v. Sanchez, 

, ¶ 11, 

,

 (explaining that a double jeopardy challenge based on a guilty plea
could be resolved on the facts placed in the record). The Court of Appeals, however,
viewed the evidence through the wrong lens. It viewed the evidence from the
perspective of what a reasonable jury could have concluded during the trial despite the
fact that Defendant’s manslaughter conviction was a result of a guilty plea. Phillips II,

 (stating that the jury could have reasonably found two
distinct acts or one unitary act for the aggravated battery and manslaughter
convictions). This approach is mistaken. The proper analysis is not what a reasonable
jury could have concluded but whether there are “sufficient facts in the record” to
support distinct conduct which would defeat a double jeopardy claim. Sanchez, 1996-
NMCA-089, ¶ 11.

{42} The evidence in the record shows nonunitary conduct in Defendant’s acts.
Defendant explained to police that he wanted to “immobilize” Adrian, so he shot Adrian
twice in the torso with the handgun. Adrian was still alive when Defendant ran out of
ammunition, and Defendant left the room to exchange the handgun for a rifle. Eighteen
seconds later, Defendant returned to Allie’s room with the rifle, placed the rifle under
Adrian’s chin, asked Adrian, “Are you ready?”, and then pulled the trigger. Adrian
immediately stopped speaking and died.

{43} Forensic pathologist, Doctor Linda Syzmanski, who performed Adrian’s autopsy,
testified at trial that the two handgun shots to Adrian’s torso caused “multiple rib
fractures,” lacerated Adrian’s lungs, and caused internal bleeding in Adrian’s chest
cavity. She explained that “with time,” these injuries “would be fatal,” but if Adrian had
received medical attention, the injuries “most likely would have been curable” and
Adrian could have survived. Dr. Syzmanski testified that the rifle shot caused extensive
brain damage and “could be instantaneously fatal” or would have killed Adrian “within a
couple of minutes.” When asked which injury killed Adrian, Dr. Syzmanski responded:
“The injury that was most fatal was the one to the head.” She concluded that “[t]he
gunshot wound was the cause of death.” (Emphasis added.)

{44} Defendant urges us to rely on Dr. Syzmanski’s later testimony that “[t]he cause of
death was multiple gunshot wounds, and the manner of death was homicide.”
(Emphasis added.) Defendant highlights this testimony to argue that the cause of death
was multiple gunshot wounds, and therefore, the manslaughter conviction
encompassed the two handgun shots and the rifle shot. We disagree. It is clear from Dr.
Syzmanski’s testimony that the rifle shot was the fatal shot that killed Adrian.

{45} Additionally, based on the evidence presented, the battery was completed before
the manslaughter was committed. See Sena, 

. The battery was
accomplished when Defendant shot Adrian twice in the torso using the handgun. Then,
the manslaughter was accomplished when Defendant left the room, came back, and
shot Adrian under the chin with the rifle, killing him. The two acts were separated by
approximately eighteen seconds and the intervening event of Defendant leaving Allie’s
room to exchange the handgun for the rifle. See Cooper, 

(concluding that a defendant’s conduct was distinct where the defendant used different
weapons and that the “death was not the consequence of the initial act of battery” but
was followed by an intervening event). Significantly, Defendant also used different
weapons for each attack and applied distinct uses of force with each. Even though
Adrian remained in Allie’s room for both acts, we again decline to weigh the location
factor in favor of unitary conduct because Adrian was severely injured, confining him to
one location.

{46} Defendant argues that his conduct was unitary because of a common intent to
“immobilize” or kill Adrian during both acts. We disagree. When Defendant left the room,
exchanged the handgun with the rifle, came back to the room, and placed the rifle under
Adrian’s chin, he reformulated an intent to kill Adrian and to do so immediately. See
Herron, 

, ¶ 15 (providing that a change in the defendant’s intent
supports distinct conduct); cf. Demongey, 

 (stating that there was
no evidence indicating that the defendant rethought his actions or ceased his actions
and then reformulated his intent); Garcia, 

 (stating that there was
no evidence that the defendant’s intent to batter the victim was “interrupted, altered, or
changed”).

{47} Therefore, we conclude that the Foster presumption was rebutted because there
was evidence that distinct conduct supported the battery and manslaughter convictions.
The Court of Appeals erred by conclusively presuming unitary conduct when the record
indicated that one crime was completed before the other and that each act was
sufficiently distinct. See Sena, 

. Because Defendant’s conduct is
not unitary, there is no double jeopardy violation, and we reverse the Court of Appeals’
determination on this issue.

III.   CONCLUSION

{48} For the foregoing reasons, we hold that Defendant’s two convictions of
aggravated battery for attacking Adrian, one conviction of manslaughter for killing
Adrian, and three convictions of aggravated battery against a household member for his
attack on Allie do not violate double jeopardy. Therefore, we affirm the Court of Appeals
in upholding two counts of aggravated battery for attacking Adrian (baseball bat,
handgun), and upholding three counts of aggravated battery for attacking Allie (baseball
bat, rifle, strangulation). However, we reverse the Court of Appeals in vacating the
aggravated battery conviction for shooting Adrian with the handgun. We remand to the
district court for further proceedings consistent with this opinion.

{49}   IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

MICHAEL E. VIGIL, Justice
BRIANA H. ZAMORA, Justice

T. GLENN ELLINGTON, Judge
Sitting by designation