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21 New Mexico opinions name it 2 courts 2020–2026 19 in the last five years
The cases below were cited by New Mexico courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.
| Case | Followed | Cited |
|---|---|---|
State v. Senagreen2 sentences2025In fact, “the Foster presumption is rebutted by evidence that each crime was completed before the other crime occurred.” Id. 2025In fact, “the Foster presumption is rebutted by evidence that each crime was completed before the other crime occurred.” Id. | 12 | 18 |
State v. Fostergreen2 sentences2026Because a jury is “‘not generally 3 equipped to determine whether a particular theory of conviction submitted to them 4 is contrary to law,’” the Foster presumption provides “‘that a conviction under a 5 general verdict requires reversal if the jury is instructed on an alternative basis for 6 the conviction that would result in double jeopardy, and the record does not disclose 7 whether the jury relied on this legally inadequate alternative.’” Kersey, 2010- 8 NMSC-020, ¶ 12 (quoting Foster, 1999-NMSC-007, ¶ 28 ). 2026Because a jury is “‘not generally 3 equipped to determine whether a particular theory of conviction submitted to them 4 is contrary to law,’” the Foster presumption provides “‘that a conviction under a 5 general verdict requires reversal if the jury is instructed on an alternative basis for 6 the conviction that would result in double jeopardy, and the record does not disclose 7 whether the jury relied on this legally inadequate alternative.’” Kersey, 2010- 8 NMSC-020, ¶ 12 (quoting Foster, 1999-NMSC-007, ¶ 28 ). | 9 | 14 |
State v. Francogreen2 sentences2025See Sena, 2020-NMSC-011, ¶¶ 52, 56 (concluding that the Foster presumption was overcome because “[a]lthough the [jury] instructions permitted the jury to convict” the defendant of multiple crimes under the same instruction’s alternatives, the evidence demonstrated that the crimes were separated by sufficient indicia of distinctness); see also State v. Franco, 2005-NMSC-013, ¶ 7 , 137 N.M. 447 , 112 P.3d 1104 (“The proper analytical framework is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses.” (inter 2025See Sena, 2020-NMSC-011, ¶¶ 52, 56 (concluding that the Foster presumption was overcome because “[a]lthough the [jury] instructions permitted the jury to convict” the defendant of multiple crimes under the same instruction’s alternatives, the evidence demonstrated that the crimes were separated by sufficient indicia of distinctness); see also State v. Franco, 2005-NMSC-013, ¶ 7 , 137 N.M. 447 , 112 P.3d 1104 (“The proper analytical framework is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses.” (inter | 6 | 8 |
Kersey v. Hatchgreen2 sentences2024As a result, Defendant contends that “[a] double jeopardy problem arises because one of the acts of sexual contact occurred at the same time as the false imprisonment.” To support this position, Defendant focuses on the “Foster presumption” named for the analysis set out in State v. Foster, 1999-NMSC-007, ¶ 28 , 126 N.M. 646 , 974 P.2d 140 , abrogated on other grounds as recognized in Kersey v. Hatch, 2010-NMSC-020, ¶ 17 , 148 N.M. 381 , 237 P.3d 683 . 2024As a result, Defendant contends that “[a] double jeopardy problem arises because one of the acts of sexual contact occurred at the same time as the false imprisonment.” To support this position, Defendant focuses on the “Foster presumption” named for the analysis set out in State v. Foster, 1999-NMSC-007, ¶ 28 , 126 N.M. 646 , 974 P.2d 140 , abrogated on other grounds as recognized in Kersey v. Hatch, 2010-NMSC-020, ¶ 17 , 148 N.M. 381 , 237 P.3d 683 . | 5 | 9 |
State v. Francogreen2 sentences2025See Sena, 2020-NMSC-011, ¶¶ 52, 56 (concluding that the Foster presumption was overcome because “[a]lthough the [jury] instructions permitted the jury to convict” the defendant of multiple crimes under the same instruction’s alternatives, the evidence demonstrated that the crimes were separated by sufficient indicia of distinctness); see also State v. Franco, 2005-NMSC-013, ¶ 7 , 137 N.M. 447 , 112 P.3d 1104 (“The proper analytical framework is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses.” (inter 2025See Sena, 2020-NMSC-011, ¶¶ 52, 56 (concluding that the Foster presumption was overcome because “[a]lthough the [jury] instructions permitted the jury to convict” the defendant of multiple crimes under the same instruction’s alternatives, the evidence demonstrated that the crimes were separated by sufficient indicia of distinctness); see also State v. Franco, 2005-NMSC-013, ¶ 7 , 137 N.M. 447 , 112 P.3d 1104 (“The proper analytical framework is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses.” (inter | 3 | 6 |
State v. Phillipsgreen2 sentences2024After reviewing 11 the evidence presented at trial, the Court of Appeals in this case conclusively 12 presumed that Defendant’s conduct was unitary because it was “unable to determine 13 whether the manslaughter was accomplished by the rifle shot alone or by multiple 14 gunshots.” Phillips II, 2021-NMCA-062, ¶¶ 21-26 , 29 & n.1. 4 4 The Court of Appeals relied on our decision in State v. Franco, 2005-NMSC- 013, ¶¶ 9-11, 137 N.M. 447 , 112 P.3d 1104 , where we conclusively applied the Foster presumption despite evidence that each act was distinct. 2024After reviewing 11 the evidence presented at trial, the Court of Appeals in this case conclusively 12 presumed that Defendant’s conduct was unitary because it was “unable to determine 13 whether the manslaughter was accomplished by the rifle shot alone or by multiple 14 gunshots.” Phillips II, 2021-NMCA-062, ¶¶ 21-26 , 29 & n.1. 4 4 The Court of Appeals relied on our decision in State v. Franco, 2005-NMSC- 013, ¶¶ 9-11, 137 N.M. 447 , 112 P.3d 1104 , where we conclusively applied the Foster presumption despite evidence that each act was distinct. | 2 | 3 |
State v. Gardnergreen2 sentences2024However, we assume 3 without deciding that the Foster presumption applies in this case because the jury 4 instructions and guilty plea for the manslaughter conviction do not specify what 5 conduct forms the basis of the manslaughter conviction. 5 Therefore, we agree with 6 the Court of Appeals that “the only reasonable inference . . . is that the factual basis 7 for Defendant’s guilty plea and resulting conviction is the same as the evidence 8 presented at trial.” Phillips II, 2021-NMCA-062, ¶ 19 ; see State v. Sanchez, 1996- 9 NMCA-089, ¶ 11, 112 N.M. 280 , 923 P.2d 1165 (explaining that a do 2024However, we assume 3 without deciding that the Foster presumption applies in this case because the jury 4 instructions and guilty plea for the manslaughter conviction do not specify what 5 conduct forms the basis of the manslaughter conviction. 5 Therefore, we agree with 6 the Court of Appeals that “the only reasonable inference . . . is that the factual basis 7 for Defendant’s guilty plea and resulting conviction is the same as the evidence 8 presented at trial.” Phillips II, 2021-NMCA-062, ¶ 19 ; see State v. Sanchez, 1996- 9 NMCA-089, ¶ 11, 112 N.M. 280 , 923 P.2d 1165 (explaining that a do | 2 | 2 |
State v. Sanchezgreen2 sentences2024However, we assume 3 without deciding that the Foster presumption applies in this case because the jury 4 instructions and guilty plea for the manslaughter conviction do not specify what 5 conduct forms the basis of the manslaughter conviction. 5 Therefore, we agree with 6 the Court of Appeals that “the only reasonable inference . . . is that the factual basis 7 for Defendant’s guilty plea and resulting conviction is the same as the evidence 8 presented at trial.” Phillips II, 2021-NMCA-062, ¶ 19 ; see State v. Sanchez, 1996- 9 NMCA-089, ¶ 11, 112 N.M. 280 , 923 P.2d 1165 (explaining that a do 2024However, we assume 3 without deciding that the Foster presumption applies in this case because the jury 4 instructions and guilty plea for the manslaughter conviction do not specify what 5 conduct forms the basis of the manslaughter conviction. 5 Therefore, we agree with 6 the Court of Appeals that “the only reasonable inference . . . is that the factual basis 7 for Defendant’s guilty plea and resulting conviction is the same as the evidence 8 presented at trial.” Phillips II, 2021-NMCA-062, ¶ 19 ; see State v. Sanchez, 1996- 9 NMCA-089, ¶ 11, 112 N.M. 280 , 923 P.2d 1165 (explaining that a do | 2 | 2 |
State v. Vigilgreen2 sentences2021Sena addressed the Foster presumption—that courts “ ‘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.’ ” Id. ¶ 47 (quoting Foster, 1999-NMSC-007, ¶ 28 ); see also State v. Vigil, 2021-NMCA-024, ¶ 19 , 489 P.3d 974 (stating that Foster “requires that we begin our analysis of whether [the d]efendant’s conduct was unitary by examining the jury instructions, and where the j 2021Sena addressed the Foster presumption—that courts “ ‘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.’ ” Id. ¶ 47 (quoting Foster, 1999-NMSC-007, ¶ 28 ); see also State v. Vigil, 2021-NMCA-024, ¶ 19 , 489 P.3d 974 (stating that Foster “requires that we begin our analysis of whether [the d]efendant’s conduct was unitary by examining the jury instructions, and where the j | 2 | 2 |
State v. Phillipsgreen2 sentences2025Id. 15 {53} To determine whether conduct is unitary, we examine whether the defendant’s 16 acts are “separated by sufficient indicia of distinctness.” State v. Phillips, 2024- 17 NMSC-009, ¶ 38, 548 P.3d 51 (internal quotation marks and citation omitted). 18 “Conduct is unitary when not sufficiently separated by time or place, and the object 22 1 and result or quality and nature of the acts cannot be distinguished.” Silvas, 2015- 2 NMSC-006, ¶ 10. 3 {54} Defendant argues that we must presume that unitary conduct underlies the 4 solicitation and conspiracy convictions pursuant to the Foster pre 2025Id. 15 {53} To determine whether conduct is unitary, we examine whether the defendant’s 16 acts are “separated by sufficient indicia of distinctness.” State v. Phillips, 2024- 17 NMSC-009, ¶ 38, 548 P.3d 51 (internal quotation marks and citation omitted). 18 “Conduct is unitary when not sufficiently separated by time or place, and the object 22 1 and result or quality and nature of the acts cannot be distinguished.” Silvas, 2015- 2 NMSC-006, ¶ 10. 3 {54} Defendant argues that we must presume that unitary conduct underlies the 4 solicitation and conspiracy convictions pursuant to the Foster pre | 1 | 3 |
State v. Reedgreen2 sentences2024For these charges, the jury returned general verdicts, preventing us from determining the alternative on which the jury relied for these convictions. {21} “Where, as here, the jury instructions provide alternative bases for conviction of an offense, and the record is silent as to which alternative the jury relied on for its verdict, we apply the Foster presumption, which demands that we assume that the jury relied on the alternative that may violate the protection against double jeopardy.” Reed, 2022-NMCA-025, ¶ 10 . 2024For these charges, the jury returned general verdicts, preventing us from determining the alternative on which the jury relied for these convictions. {21} “Where, as here, the jury instructions provide alternative bases for conviction of an offense, and the record is silent as to which alternative the jury relied on for its verdict, we apply the Foster presumption, which demands that we assume that the jury relied on the alternative that may violate the protection against double jeopardy.” Reed, 2022-NMCA-025, ¶ 10 . | 1 | 3 |
State v. Garciagreen2 sentences2024See Herron, 1991-NMSC-012 , ¶ 15 (providing that a change in the 12 defendant’s intent supports distinct conduct); cf. Demongey, 2008-NMCA-066 , ¶ 16 13 (stating that there was no evidence indicating that the defendant rethought his actions 14 or ceased his actions and then reformulated his intent); Garcia, 2009-NMCA-107 , ¶ 15 14 (stating that there was no evidence that the defendant’s intent to batter the victim 16 was “interrupted, altered, or changed”). 17 {47} Therefore, we conclude that the Foster presumption was rebutted because 18 there was evidence that distinct conduct supported the 2024See Herron, 1991-NMSC-012 , ¶ 15 (providing that a change in the 12 defendant’s intent supports distinct conduct); cf. Demongey, 2008-NMCA-066 , ¶ 16 13 (stating that there was no evidence indicating that the defendant rethought his actions 14 or ceased his actions and then reformulated his intent); Garcia, 2009-NMCA-107 , ¶ 15 14 (stating that there was no evidence that the defendant’s intent to batter the victim 16 was “interrupted, altered, or changed”). 17 {47} Therefore, we conclude that the Foster presumption was rebutted because 18 there was evidence that distinct conduct supported the | 1 | 2 |
Blockburger v. United Statesgreen2 sentences2024Where, as here, the applicable statutes do not explicitly authorize multiple punishments and can be violated in alternative ways, we employ a modified version of the test laid out in Blockburger v. United States, 284 U.S. 299, 304 (1932). 2024Where, as here, the applicable statutes do not explicitly authorize multiple punishments and can be violated in alternative ways, we employ a modified version of the test laid out in Blockburger v. United States, 284 U.S. 299, 304 (1932). | 1 | 2 |
State v. Demongeygreen2 sentences2024See Herron, 1991-NMSC-012 , ¶ 15 (providing that a change in the 12 defendant’s intent supports distinct conduct); cf. Demongey, 2008-NMCA-066 , ¶ 16 13 (stating that there was no evidence indicating that the defendant rethought his actions 14 or ceased his actions and then reformulated his intent); Garcia, 2009-NMCA-107 , ¶ 15 14 (stating that there was no evidence that the defendant’s intent to batter the victim 16 was “interrupted, altered, or changed”). 17 {47} Therefore, we conclude that the Foster presumption was rebutted because 18 there was evidence that distinct conduct supported the 2024See Herron, 1991-NMSC-012 , ¶ 15 (providing that a change in the 12 defendant’s intent supports distinct conduct); cf. Demongey, 2008-NMCA-066 , ¶ 16 13 (stating that there was no evidence indicating that the defendant rethought his actions 14 or ceased his actions and then reformulated his intent); Garcia, 2009-NMCA-107 , ¶ 15 14 (stating that there was no evidence that the defendant’s intent to batter the victim 16 was “interrupted, altered, or changed”). 17 {47} Therefore, we conclude that the Foster presumption was rebutted because 18 there was evidence that distinct conduct supported the | 1 | 2 |
State v. Contrerasgreen2 sentences2024Because Defendant’s acts lack any “sufficient indicia of distinctness,” see Contreras, 2007-NMCA-045, ¶ 21 (internal quotation marks and citation omitted), we conclude that the Foster presumption remains unrebutted and, therefore, that the jury relied on Defendant’s attacks on Detectives Campbell and Romero to support its guilty verdicts for both the aggravated assault on a peace officer and aggravated battery on a peace officer charges and the two charges for resisting or abusing an officer. 2024Because Defendant’s acts lack any “sufficient indicia of distinctness,” see Contreras, 2007-NMCA-045, ¶ 21 (internal quotation marks and citation omitted), we conclude that the Foster presumption remains unrebutted and, therefore, that the jury relied on Defendant’s attacks on Detectives Campbell and Romero to support its guilty verdicts for both the aggravated assault on a peace officer and aggravated battery on a peace officer charges and the two charges for resisting or abusing an officer. | 1 | 1 |
State v. Simmonsgreen2 sentences2024Foster, 1999-NMSC-007, ¶ 27 ; see State v. Simmons, 2018-NMCA-015, ¶ 27 , 409 P.3d 1030 (“When the conduct underlying two convictions could be unitary under the facts, but we are unsure if the jury relied on that unitary conduct for both convictions, we nevertheless assume for the purposes of our double jeopardy analysis that the conduct was unitary because one of the options/alternatives/scenarios is legally inadequate.” (emphasis added)); Phillips, 2024-NMSC-009 , ¶ 41 (assuming without deciding that the Foster presumption applied to a manslaughter instruction not written in the alternative 2024Foster, 1999-NMSC-007, ¶ 27 ; see State v. Simmons, 2018-NMCA-015, ¶ 27 , 409 P.3d 1030 (“When the conduct underlying two convictions could be unitary under the facts, but we are unsure if the jury relied on that unitary conduct for both convictions, we nevertheless assume for the purposes of our double jeopardy analysis that the conduct was unitary because one of the options/alternatives/scenarios is legally inadequate.” (emphasis added)); Phillips, 2024-NMSC-009 , ¶ 41 (assuming without deciding that the Foster presumption applied to a manslaughter instruction not written in the alternative | 1 | 1 |
Elane Photography, LLC v. Willockgreen2 sentences2020See generally Elane Photography, 2013-NMSC-040, ¶ 70 . 4Defendant argues that there was insufficient evidence to convict him of resisting, evading, or obstructing a peace officer. 2020See generally Elane Photography, 2013-NMSC-040, ¶ 70 . 4Defendant argues that there was insufficient evidence to convict him of resisting, evading, or obstructing a peace officer. | 1 | 1 |
| Case | Negative | Cited |
|---|---|---|
State v. Francogreen2 sentences2025See Sena, 2020-NMSC-011, ¶¶ 52, 56 (concluding that the Foster presumption was overcome because “[a]lthough the [jury] instructions permitted the jury to convict” the defendant of multiple crimes under the same instruction’s alternatives, the evidence demonstrated that the crimes were separated by sufficient indicia of distinctness); see also State v. Franco, 2005-NMSC-013, ¶ 7 , 137 N.M. 447 , 112 P.3d 1104 (“The proper analytical framework is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses.” (inter 2025See Sena, 2020-NMSC-011, ¶¶ 52, 56 (concluding that the Foster presumption was overcome because “[a]lthough the [jury] instructions permitted the jury to convict” the defendant of multiple crimes under the same instruction’s alternatives, the evidence demonstrated that the crimes were separated by sufficient indicia of distinctness); see also State v. Franco, 2005-NMSC-013, ¶ 7 , 137 N.M. 447 , 112 P.3d 1104 (“The proper analytical framework is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses.” (inter | 1 | 8 |
| Case | Cited | Years |
|---|---|---|
State v. Bachicha
green
2 sentences2023The State contends that Defendant’s act of restraint was “completed 11 prior to the aggravated assaults” and points to State v. Dominguez, 2014-NMCA- 12 064, 327 P.3d 1092 , and State v. Bachicha, 1991-NMCA-014 , 111 N.M. 601 , 808 13 P.2d 51 . 2023The State contends that Defendant’s act of restraint was “completed 11 prior to the aggravated assaults” and points to State v. Dominguez, 2014-NMCA- 12 064, 327 P.3d 1092 , and State v. Bachicha, 1991-NMCA-014 , 111 N.M. 601 , 808 13 P.2d 51 . | 2 | 2023–2023 |
State v. Olguin
green
2 sentences2026The genesis of the Foster 9 presumption is derived from State v. Olguin, where we recognized that “a conviction 10 under a general verdict must be reversed if one of the alternative bases of conviction 11 is legally inadequate,” but that United States Supreme Court precedent “does not 12 require a guilty verdict to be set aside if an alternative basis of conviction is only 13 factually inadequate to support a conviction.” 1995-NMSC-077 , ¶ 2, 120 N.M. 740 , 14 906 P.2d 731 (emphasis added); see Foster, 1999-NMSC-007, ¶¶ 27-28 (relying on 15 this principle in Olguin to establish the Foster pres 2026The genesis of the Foster 9 presumption is derived from State v. Olguin, where we recognized that “a conviction 10 under a general verdict must be reversed if one of the alternative bases of conviction 11 is legally inadequate,” but that United States Supreme Court precedent “does not 12 require a guilty verdict to be set aside if an alternative basis of conviction is only 13 factually inadequate to support a conviction.” 1995-NMSC-077 , ¶ 2, 120 N.M. 740 , 14 906 P.2d 731 (emphasis added); see Foster, 1999-NMSC-007, ¶¶ 27-28 (relying on 15 this principle in Olguin to establish the Foster pres | 1 | 2026–2026 |
State v. Salazar
green
2 sentences2026See Kersey, 2010- 1 NMSC-020, ¶ 12; Foster, 1999-NMSC-007, ¶ 28 ; State v. Salazar, 1997-NMSC- 2 044, ¶¶ 32-42, 123 N.M. 778 , 945 P.2d 996 (holding that jury unanimity is not 3 required when alternative theories are presented to the jury). 2026See Kersey, 2010- 1 NMSC-020, ¶ 12; Foster, 1999-NMSC-007, ¶ 28 ; State v. Salazar, 1997-NMSC- 2 044, ¶¶ 32-42, 123 N.M. 778 , 945 P.2d 996 (holding that jury unanimity is not 3 required when alternative theories are presented to the jury). | 1 | 2026–2026 |
Herron v. State
green
2 sentences2026We set out the factors to 16 determine whether an act is unitary or distinct in Herron v. State, 1991-NMSC-012 , 17 ¶ 15, 111 N.M. 357 , 805 P.2d 624 . 18 {15} When, as here, a jury returns a guilty verdict based on a jury instruction with 19 alternative bases for conviction, this Court applies the “Foster presumption” to 1 determine whether the conduct is unitary with the conduct underlying the other 2 offense. 2026We set out the factors to 16 determine whether an act is unitary or distinct in Herron v. State, 1991-NMSC-012 , 17 ¶ 15, 111 N.M. 357 , 805 P.2d 624 . 18 {15} When, as here, a jury returns a guilty verdict based on a jury instruction with 19 alternative bases for conviction, this Court applies the “Foster presumption” to 1 determine whether the conduct is unitary with the conduct underlying the other 2 offense. | 1 | 2026–2026 |
State v. Silvas
green
2 sentences2025“Conduct is unitary when not sufficiently separated by time or place, and the object and result or quality and nature of the acts cannot be distinguished.” Silvas, 2015-NMSC-006, ¶ 10 . {54} Defendant argues that we must presume that unitary conduct underlies the solicitation and conspiracy convictions pursuant to the Foster presumption. 2025“Conduct is unitary when not sufficiently separated by time or place, and the object and result or quality and nature of the acts cannot be distinguished.” Silvas, 2015-NMSC-006, ¶ 10 . {54} Defendant argues that we must presume that unitary conduct underlies the solicitation and conspiracy convictions pursuant to the Foster presumption. | 1 | 2025–2025 |
State v. Schackow
green
2 sentences2025“We also consider whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses.” State v. Schackow, 2006-NMCA-123, ¶ 18 , 140 N.M. 506 , 143 P.3d 745 (internal quotation marks and citation omitted). {8} If the jury instructions provide alternative bases for conviction of an offense, and the record is silent as to which alternative the jury relied on for the verdict, we apply the Foster presumption, which demands that we assume the jury relied on the alterative that may violate the protection against double jeopar 2025“We also consider whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses.” State v. Schackow, 2006-NMCA-123, ¶ 18 , 140 N.M. 506 , 143 P.3d 745 (internal quotation marks and citation omitted). {8} If the jury instructions provide alternative bases for conviction of an offense, and the record is silent as to which alternative the jury relied on for the verdict, we apply the Foster presumption, which demands that we assume the jury relied on the alterative that may violate the protection against double jeopar | 1 | 2025–2025 |
State v. Dominguez
green
2 sentences2023The State contends that Defendant’s act of restraint was “completed prior to the aggravated assaults” and points to State v. Dominguez, 2014-NMCA-064 , 327 P.3d 1092 , and State v. Bachicha, 1991-NMCA-014 , 111 N.M. 601 , 808 P.2d 51 . 2023The State contends that Defendant’s act of restraint was “completed prior to the aggravated assaults” and points to State v. Dominguez, 2014-NMCA-064 , 327 P.3d 1092 , and State v. Bachicha, 1991-NMCA-014 , 111 N.M. 601 , 808 P.2d 51 . | 1 | 2023–2023 |
State v. DeGraff
green
2 sentences2021See Sena, 2020-NMSC-011, ¶¶ 54-55 (holding that the Foster presumption was rebutted when the evidence supported that the defendant committed three separate and distinct crimes, each completed before another began, even though the crimes occurred close in time and location); State v. DeGraff, 2006-NMSC-011, ¶ 27 , 139 N.M. 211 , 131 P.3d 61 (holding that when considering whether conduct is unitary, “we have looked for an identifiable point at which one of the charged crimes had been completed and the other not yet committed”). {22} In this case, the jury reasonably could have found an independe 2021See Sena, 2020-NMSC-011, ¶¶ 54-55 (holding that the Foster presumption was rebutted when the evidence supported that the defendant committed three separate and distinct crimes, each completed before another began, even though the crimes occurred close in time and location); State v. DeGraff, 2006-NMSC-011, ¶ 27 , 139 N.M. 211 , 131 P.3d 61 (holding that when considering whether conduct is unitary, “we have looked for an identifiable point at which one of the charged crimes had been completed and the other not yet committed”). {22} In this case, the jury reasonably could have found an independe | 1 | 2021–2021 |
State v. Swick
green
2 sentences2021Because the plain language of Sections 30-22-5(A) and 30-22-3 “does not clearly prescribe multiple punishments,” State v. Swick, 2012-NMSC-018, ¶ 11 , 279 P.3d 747 , we apply a modified version of 1The Foster presumption is not dispositive if the court, after presuming that the jury relied on any alternative in the instruction that raises double jeopardy concerns, can nevertheless determine that “the offenses are separated by sufficient indicia of distinctness.” State v. Franco, 2005-NMSC-013, ¶ 7 , 137 N.M. 447 , 112 P.3d 1104 (internal quotation marks and citation omitted); see State v. Sena 2021This is not such a case because, as we have explained, the only conduct that could have been the basis for both convictions, under the alternatives on which we must presume the jury relied, was Defendant changing his clothes. the test in Blockburger v. United States, 284 U.S. 299 (1932), asking whether “each statute requires proof of a fact that the other does not.” Swick, 2012-NMSC-018 , ¶¶ 11- 13, 21. | 1 | 2021–2021 |
State v. Gutierrez
green
2 sentences2020Having determined that Defendant’s conduct was unitary based on a misapplication of the Foster presumption, the Court of Appeals went on to rule that under the modified Blockburger analysis set forth in State v. Gutierrez, 2011-NMSC- 024, ¶¶ 58-59, 150 N.M. 232 , 258 P.3d 1024 , the Legislature did not intend multiple punishments for these offenses, and held Defendant was subjected to multiple convictions for the same offense in violation of double jeopardy. 2020Having determined that Defendant’s conduct was unitary based on a misapplication of the Foster presumption, the Court of Appeals went on to rule that under the modified Blockburger analysis set forth in State v. Gutierrez, 2011-NMSC- 024, ¶¶ 58-59, 150 N.M. 232 , 258 P.3d 1024 , the Legislature did not intend multiple punishments for these offenses, and held Defendant was subjected to multiple convictions for the same offense in violation of double jeopardy. | 1 | 2020–2020 |
Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.
Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.