offense error in New Mexico

2025The State contends that 16 Defendant’s conduct was not unitary, evidenced not only by the gunshots hitting 17 opposite sides of Victim’s property but also by the number of shell casings recovered 18 near Victim’s home and their relation to the missing bullets from two clips found on 19 Defendant’s person. 1 {20} “Appellate review of a claim that multiple punishments have been imposed 2 for the same offense in violation of the Fifth Amendment prohibition against double 3 jeopardy presents a question of law which we review de novo.” State v. Sena, 2020- 4 NMSC-011, ¶ 43, 470 P.3d 227 .

2024We agree and conclude that Defendant’s convictions of Counts 3 and 4 must 10 be vacated. 11 {31} “Appellate review of a claim that multiple punishments have been imposed 12 for the same offense in violation of the Fifth Amendment prohibition against double 13 jeopardy presents a question of law which we review de novo.” State v. Sena, 2020- 14 NMSC-011, ¶ 43, 470 P.3d 227 .

2015We review jury instructions “as a whole, and not 15 singly[.]” State v. Parish, 1994-NMSC-073 , ¶ 4, 118 N.M. 39 , 878 P.2d 988 (internal 16 quotation marks and citation omitted). 17 {9} Fundamental error such as requires reversal occurs “when a jury instruction 18 fails to include an essential element of an offense or a defense to a charge, leaving the 19 question of guilt so doubtful that it would shock the conscience to permit the verdict 5 1 to stand.” State v. Sosa, 1997-NMSC-032, ¶ 24 , 123 N.M. 564 , 943 P.2d 1017 ; see 2 also State v. Barber, 2004-NMSC-019, ¶ 17 , 135 N.M. 621 , 92 P.3

2015We review jury instructions “as a whole, and not 15 singly[.]” State v. Parish, 1994-NMSC-073 , ¶ 4, 118 N.M. 39 , 878 P.2d 988 (internal 16 quotation marks and citation omitted). 17 {9} Fundamental error such as requires reversal occurs “when a jury instruction 18 fails to include an essential element of an offense or a defense to a charge, leaving the 19 question of guilt so doubtful that it would shock the conscience to permit the verdict 5 1 to stand.” State v. Sosa, 1997-NMSC-032, ¶ 24 , 123 N.M. 564 , 943 P.2d 1017 ; see 2 also State v. Barber, 2004-NMSC-019, ¶ 17 , 135 N.M. 621 , 92 P.3

2014In State v. Stefani, 2006-NMCA-073 , 139 N.M. 3 719, 137 P.3d 659 , we held that no error occurred when the district court gave a 4 general intent instruction as well as the elements of the offense instruction even 5 though the crime charged was a specific intent crime. 2006-NMCA-073 , ¶ 29.

2014Additionally, in 10 State v. Stefani, we held that no error occurred when the district court gave a general 11 intent instruction, as well as the elements of the offense instruction, even though the 12 crime charged was a specific intent crime. 2006-NMCA-073 , ¶ 29, 139 N.M. 719 , 13 137 P.3d 659 .

2014In State v. Stefani, 2006-NMCA-073 , 139 N.M. 3 719, 137 P.3d 659 , we held that no error occurred when the district court gave a 4 general intent instruction as well as the elements of the offense instruction even 5 though the crime charged was a specific intent crime. 2006-NMCA-073 , ¶ 29.

2014In State v. Stefani, 2006-NMCA-073 , 139 N.M. 3 719, 137 P.3d 659 , we held that no error occurred when the district court gave a 4 general intent instruction as well as the elements of the offense instruction even 5 though the crime charged was a specific intent crime. 2006-NMCA-073 , ¶ 29.

2025Defendant contends that he was unconstitutionally 5 subjected to multiple punishments for the same conduct under two different statutes. 6 See Swafford v. State, 1991-NMSC-043 , ¶ 9, 112 N.M. 3 , 810 P.2d 1223 (describing 7 double description cases).

2025Defendant contends that he was unconstitutionally 5 subjected to multiple punishments for the same conduct under two different statutes. 6 See Swafford v. State, 1991-NMSC-043 , ¶ 9, 112 N.M. 3 , 810 P.2d 1223 (describing 7 double description cases).

2020State v. Swick, 2012-NMSC-018, ¶ 10 , 279 P.3d 747 . b.

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.

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.

2015Once error is established, our obligation is “to review the entire 3 record, placing the jury instructions in the context of the individual facts and 4 circumstances of the case, to determine whether the [d]efendant’s conviction was the 5 result of a plain miscarriage of justice.” Barber, 2004-NMSC-019 , ¶ 19 quoting State 6 v. Benally, 2001-NMSC-033 , ¶ 24 131 N.M. 258 , 34 P.3d 1134 (Baca, J., dissenting)). 7 {8} Defendant contends that fundamental error occurred because: (1) the instruction 8 confused the jury; (2) the instruction required Defendant to defend against a charge 9 of intention

2015Once error is established, our obligation is “to review the entire 3 record, placing the jury instructions in the context of the individual facts and 4 circumstances of the case, to determine whether the [d]efendant’s conviction was the 5 result of a plain miscarriage of justice.” Barber, 2004-NMSC-019 , ¶ 19 quoting State 6 v. Benally, 2001-NMSC-033 , ¶ 24 131 N.M. 258 , 34 P.3d 1134 (Baca, J., dissenting)). 7 {8} Defendant contends that fundamental error occurred because: (1) the instruction 8 confused the jury; (2) the instruction required Defendant to defend against a charge 9 of intention

2014The 6 Stefani opinion relied in part on State v. Gee, 2004-NMCA-042 , 135 N.M. 408 , 89 7 P.3d 80 , in which we specifically held that no fundamental error had been committed 8 when the district court gave an instruction on general intent in addition to the required 9 instruction on specific intent, which was contained in the elements instruction. 2004- 10 NMCA-042, ¶¶ 15, 18-19. 11 {4} In the face of this unhelpful law, Defendant attempts to distinguish his case by 12 arguing that the jury was “clearly confused” by the general intent instruction. [MIO 13 5] His contention is based on the fact

2014The 6 Stefani opinion relied in part on State v. Gee, 2004-NMCA-042 , 135 N.M. 408 , 89 7 P.3d 80 , in which we specifically held that no fundamental error had been committed 8 when the district court gave an instruction on general intent in addition to the required 9 instruction on specific intent, which was contained in the elements instruction. 2004- 10 NMCA-042, ¶¶ 15, 18-19. 11 {4} In the face of this unhelpful law, Defendant attempts to distinguish his case by 12 arguing that the jury was “clearly confused” by the general intent instruction. [MIO 13 5] His contention is based on the fact

2013The question, then, 2 “is whether there was any evidence or suggestion in the facts, however slight, that 3 could have put the element of unlawfulness in issue.” Id. at 784, 833 P.2d at 1150 . 4 “Fundamental error requiring reversal occurs when a jury instruction fails to include 5 an essential element of an offense or a defense to a charge, leaving the question of 6 guilt so doubtful that it would shock the conscience to permit the verdict to stand.” 7 Sosa, 1997-NMSC-032, ¶ 24 . 8 Defendant contends that fundamental error occurred because the jury was 9 presented with evidence that “any alle

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

2002The Supreme Court has "found an error to be structural, and thus subject to automatic reversal, only in a very limited class of cases." Neder v. United States, 527 U.S. 1, 8 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999) (holding that a jury instruction which omitted an element of the offense is an error subject to harmless error analysis) (quoted authority and internal quotation marks omitted).

2002The Supreme Court has "found an error to be structural, and thus subject to automatic reversal, only in a very limited class of cases." Neder v. United States, 527 U.S. 1, 8 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999) (holding that a jury instruction which omitted an element of the offense is an error subject to harmless error analysis) (quoted authority and internal quotation marks omitted).

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

2002The Court listed cases in which structural error had been found: Sullivan v. Louisiana, 508 U.S. 275, 281-82 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction was structural error); Vasquez v. Hillery, 474 U.S. 254, 261-64 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury is not subject to harmless error review); Waller v. Georgia, 467 U.S. 39 , 49 n. 3, 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984) (denial of the right to public trial not subject to harmless error analysis); McKaskle v. Wiggins, 465 U.S. 168, 177-78 , 104 S.Ct. 9

1996Id. at -, 116 S.Ct. at 2030 .

1996Id. at -, 116 S.Ct. at 2030 .

1981State v. Stephens, 93 N.M. 458 , 601 P.2d 428 (1979); State v. Ervin, 96 N.M. 366 , 630 P.2d 765 (Ct.App.1981); State v. Padilla, 90 N.M. 481 , 565 P.2d 352 (Ct.App.1977).

1981State v. Stephens, 93 N.M. 458 , 601 P.2d 428 (1979); State v. Ervin, 96 N.M. 366 , 630 P.2d 765 (Ct.App.1981); State v. Padilla, 90 N.M. 481 , 565 P.2d 352 (Ct.App.1977).

1981State v. Stephens, 93 N.M. 458 , 601 P.2d 428 (1979); State v. Ervin, 96 N.M. 366 , 630 P.2d 765 (Ct.App.1981); State v. Padilla, 90 N.M. 481 , 565 P.2d 352 (Ct.App.1977).

1981State v. Stephens, 93 N.M. 458 , 601 P.2d 428 (1979); State v. Ervin, 96 N.M. 366 , 630 P.2d 765 (Ct.App.1981); State v. Padilla, 90 N.M. 481 , 565 P.2d 352 (Ct.App.1977).

1981State v. Stephens, 93 N.M. 458 , 601 P.2d 428 (1979); State v. Ervin, 96 N.M. 366 , 630 P.2d 765 (Ct.App.1981); State v. Padilla, 90 N.M. 481 , 565 P.2d 352 (Ct.App.1977).

1981State v. Stephens, 93 N.M. 458 , 601 P.2d 428 (1979); State v. Ervin, 96 N.M. 366 , 630 P.2d 765 (Ct.App.1981); State v. Padilla, 90 N.M. 481 , 565 P.2d 352 (Ct.App.1977).

1975In Ex parte Williams, 58 N.M. 37 , 265 P.2d 359 (1954) it is stated: “The principle is well settled, an acquittel [sic] of a lesser offense bars a subsequent prosecution for a greater offense where the lesser offense is included in the greater.

1975In Ex parte Williams, 58 N.M. 37 , 265 P.2d 359 (1954) it is stated: “The principle is well settled, an acquittel [sic] of a lesser offense bars a subsequent prosecution for a greater offense where the lesser offense is included in the greater.