double-description analysis in New Mexico

2026Here, both double jeopardy issues present 1 double-description cases because Defendant argues he was convicted multiple times 2 under different criminal statutes for the same act. 3 {29} When faced with a double-description challenge, we follow the two-part test 4 adopted in Swafford v. State, 1991-NMSC-043 , ¶ 25, 112 N.M. 3 , 810 P.2d 1223 . 5 Begaye, 2023-NMSC-015 , ¶ 13.

2026Here, both double jeopardy issues present 1 double-description cases because Defendant argues he was convicted multiple times 2 under different criminal statutes for the same act. 3 {29} When faced with a double-description challenge, we follow the two-part test 4 adopted in Swafford v. State, 1991-NMSC-043 , ¶ 25, 112 N.M. 3 , 810 P.2d 1223 . 5 Begaye, 2023-NMSC-015 , ¶ 13.

2023State v. Swick, 2012-NMSC-018, ¶ 10 , 279 P.3d 747 . {9} To evaluate a double description claim, we apply the two-part test identified in Swafford v. State, 1991-NMSC-043 , ¶ 25, 112 N.M. 3 , 810 P.2d 1223 , where we first examine “whether the conduct was unitary, meaning whether the same criminal conduct is the basis for both charges.” Bernal, 2006-NMSC-050, ¶ 9 .

2021Defendant contends that his involvement in the murder was that of an accessory whose actions in the course of the murder did not extend beyond the words or acts that formed the conspiracy to commit the murder. {43} Defendant raises a double-description claim “where the same conduct results in multiple convictions under different statutes.” Swick, 2012-NMSC-018, ¶ 10 (citing State v. Gallegos, 2011-NMSC-027, ¶ 31 , 149 N.M. 704 , 254 P.3d 655 ).

2019In conducting a double description analysis, we consider the elements of the statutes using the test set forth by the United States Supreme Court in Blockburger v. United States , 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), to determine whether each statute at issue "requires proof of a fact which the other does not." State v. Montoya , 2013-NMSC-020 , ¶ 31, 306 P.3d 426 (internal quotation marks and citation omitted).

2019In conducting a double description analysis, we consider the elements of the statutes using the test set forth by the United States Supreme Court in Blockburger v. United States , 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), to determine whether each statute at issue "requires proof of a fact which the other does not." State v. Montoya , 2013-NMSC-020 , ¶ 31, 306 P.3d 426 (internal quotation marks and citation omitted).

2024Multiple punishment challenges arise in both 8 unit of prosecution claims, “in which an individual is convicted of multiple 9 violations of the same criminal statute,” and double description claims, “in which a 10 single act results in multiple charges under different criminal statutes.” State v. 11 Bernal, 2006-NMSC-050, ¶ 7 , 140 N.M. 644 , 146 P.3d 289 . 12 {29} To analyze a double description challenge, such as Defendant’s, we generally 13 employ the two-part test, set out in Swafford, in which we examine: (1) whether the 14 conduct is unitary, and, if so, (2) whether the Legislature inten

2024Multiple punishment challenges arise in both 8 unit of prosecution claims, “in which an individual is convicted of multiple 9 violations of the same criminal statute,” and double description claims, “in which a 10 single act results in multiple charges under different criminal statutes.” State v. 11 Bernal, 2006-NMSC-050, ¶ 7 , 140 N.M. 644 , 146 P.3d 289 . 12 {29} To analyze a double description challenge, such as Defendant’s, we generally 13 employ the two-part test, set out in Swafford, in which we examine: (1) whether the 14 conduct is unitary, and, if so, (2) whether the Legislature inten

2026See State v. DeGraff, 2006-NMSC-011, ¶ 25 , 139 N.M. 211 , 131 P.3d 61 (stating that a double description double jeopardy case is one in which the “defendant is charged with violations of multiple statutes for the same conduct”).

2026See State v. DeGraff, 2006-NMSC-011, ¶ 25 , 139 N.M. 211 , 131 P.3d 61 (stating that a double description double jeopardy case is one in which the “defendant is charged with violations of multiple statutes for the same conduct”).

2025State v. Vigil, 2021-NMCA- 024, ¶ 17, 489 P.3d 974 .

2025See State v. Vigil, 2021- NMCA-024, ¶ 17, 489 P.3d 974 .

2026There are two types of multiple punishment double jeopardy cases: “those cases in 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, 2020-NMSC- 011, ¶ 44, 470 P.3d 227 . {11} Defendant raises a double-description claim, arguing his convictions violate double jeopardy because he was charged with violating two different statutes: (1) Section 30-3-8 (sho

2025See Sena, 2020-NMSC-011, ¶ 46 (determining conduct is not unitary “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”). {15} Defendant’s kidnapping conviction is at issue in a number of Defendant’s double jeopardy violation claims.

2023Defendant in this case presents his challenge as a double-description violation because he was convicted for unitary conduct under two different statutes. {13} “It is well established that the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Gutierrez, 2011-NMSC-024, ¶ 50 (internal quotation marks and citation omitted).

2019See State v. Gutierrez, 2011-NMSC-024, ¶ 51 , 150 N.M. 232 , 258 P.3d 1024 (holding that a double-description claim requires “first analyzing whether the conduct underlying the offense is unitary, i.e., whether the same conduct violates both statutes, and, if so, proceeding to analyze whether the [L]egislature intended to create separately punishable offenses” (internal quotation marks and citation omitted)). {7} The State agrees that Defendant’s right to be free from double jeopardy was violated and his “conviction for conspiracy should be vacated.” Although we are not bound by the State’s co

2022“Because double jeopardy challenges are constitutional questions of law, we review them de novo.” State v. Lucero, 2015-NMCA-040, ¶ 19 , 346 P.3d 1175 . {7} Defendant’s argument raises a double-description challenge.

2019See State v. Lucero, 2015-NMCA-040, ¶ 21 , 346 P.3d 1175 (noting that where a defendant challenges two convictions under different statutes for what he contends is the same conduct, it raises a double description challenge).

2019See State v. Andazola , 2003-NMCA-146 , ¶ 14, 134 N.M. 710 , 82 P.3d 77 . {26} Defendant raises a double description claim, "in which a single act results in multiple charges under different criminal statutes[.]" State v. Bernal , 2006-NMSC-050 , ¶ 7, 140 N.M. 644 , 146 P.3d 289 .

2019See State v. Andazola , 2003-NMCA-146 , ¶ 14, 134 N.M. 710 , 82 P.3d 77 . {26} Defendant raises a double description claim, "in which a single act results in multiple charges under different criminal statutes[.]" State v. Bernal , 2006-NMSC-050 , ¶ 7, 140 N.M. 644 , 146 P.3d 289 .

2026See Herron v. State, 1991-NMSC-012 , ¶ 5 n.2, 111 N.M. 357 , 805 P.2d 624 (“Our courts long have held that the state and federal constitutional prohibitions against double jeopardy are of such similarity that they should be construed and interpreted in the same fashion.”). {20} Defendant’s challenge requires a double description analysis.

2026See Herron v. State, 1991-NMSC-012 , ¶ 5 n.2, 111 N.M. 357 , 805 P.2d 624 (“Our courts long have held that the state and federal constitutional prohibitions against double jeopardy are of such similarity that they should be construed and interpreted in the same fashion.”). {20} Defendant’s challenge requires a double description analysis.

2024See State v. Phillips, 2024-NMSC-009 , ¶ 38, 548 P.3d 51 (applying the Herron factors “in the double description analysis to determine whether a defendant’s acts are unitary or distinct”).

2024See State v. Phillips, 2024- NMSC-009, ¶¶ 12, 38, 548 P.3d 51 (applying 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”—“in the double description analysis to determine whether a defendant’s acts are unitary or distinct”).

2010See State v. Franco, 2005-NMSC-013 , ¶ 14, 137 N.M. 447 , 112 P.3d 1104 (observing that the courts "treat statutes written in the alternative as separate statutes" for double jeopardy purposes); State v. Rodriguez, 113 N.M. 767, 771 , 833 P.2d 244, 248 (Ct.App. 1992) ("[A] criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would." (internal quotation marks and citation omitted)).

2010See State v. Franco, 2005-NMSC-013, ¶ 14 , 137 N.M. 447 , 112 P.3d 1104 (observing that the courts “treat statutes written in the alternative as separate statutes” for double jeopardy purposes); State v. Rodriguez, 113 N.M. 767, 771 , 833 P.2d 244, 248 (Ct.App.1992) (“[A] criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would.” (internal quotation marks and citation omitted)).

2010See State v. Franco, 2005-NMSC-013 , ¶ 14, 137 N.M. 447 , 112 P.3d 1104 (observing that the courts "treat statutes written in the alternative as separate statutes" for double jeopardy purposes); State v. Rodriguez, 113 N.M. 767, 771 , 833 P.2d 244, 248 (Ct.App. 1992) ("[A] criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would." (internal quotation marks and citation omitted)).

2010See State v. Franco, 2005-NMSC-013 , ¶ 14, 137 N.M. 447 , 112 P.3d 1104 (observing that the courts "treat statutes written in the alternative as separate statutes" for double jeopardy purposes); State v. Rodriguez, 113 N.M. 767, 771 , 833 P.2d 244, 248 (Ct.App. 1992) ("[A] criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would." (internal quotation marks and citation omitted)).

2010See State v. Franco, 2005-NMSC-013 , ¶ 14, 137 N.M. 447 , 112 P.3d 1104 (observing that the courts "treat statutes written in the alternative as separate statutes" for double jeopardy purposes); State v. Rodriguez, 113 N.M. 767, 771 , 833 P.2d 244, 248 (Ct.App. 1992) ("[A] criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would." (internal quotation marks and citation omitted)).

2010See State v. Franco, 2005-NMSC-013 , ¶ 14, 137 N.M. 447 , 112 P.3d 1104 (observing that the courts "treat statutes written in the alternative as separate statutes" for double jeopardy purposes); State v. Rodriguez, 113 N.M. 767, 771 , 833 P.2d 244, 248 (Ct.App. 1992) ("[A] criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would." (internal quotation marks and citation omitted)).

2006State v. Dominguez, 2005-NMSC-001, ¶¶ 5, 6 , 137 N.M. 1 , 106 P.3d 563 .

2006State v. Dominguez, 2005-NMSC-001, ¶¶ 5, 6 , 137 N.M. 1 , 106 P.3d 563 .

2022A. The Double Description Claim {9} To analyze a double description claim, we first consider “whether the conduct underlying the offenses was unitary, i.e., whether the same conduct violates both statutes,” and if the conduct is unitary, we proceed “to analyze whether the [L]egislature intended to create separately punishable offenses.” State v. Gutierrez, 2011-NMSC- 024, ¶ 51, 150 N.M. 232 , 258 P.3d 1024 (internal quotation marks and citation omitted).

2022A. The Double Description Claim {9} To analyze a double description claim, we first consider “whether the conduct underlying the offenses was unitary, i.e., whether the same conduct violates both statutes,” and if the conduct is unitary, we proceed “to analyze whether the [L]egislature intended to create separately punishable offenses.” State v. Gutierrez, 2011-NMSC- 024, ¶ 51, 150 N.M. 232 , 258 P.3d 1024 (internal quotation marks and citation omitted).

2011See State v. Swick, 2010-NMCA-098, ¶ 27 , 148 N.M. 895 , 242 15 P.3d 462 (“When convictions under separate subsections of a single statute are at 16 issue, we apply the double-description analysis.”), cert. granted, 2010-NMCERT-010 , 17 149 N.M. 65 , 243 P.3d 1147 .

2011See State v. Swick, 2010-NMCA-098, ¶ 27 , 148 N.M. 895 , 242 15 P.3d 462 (“When convictions under separate subsections of a single statute are at 16 issue, we apply the double-description analysis.”), cert. granted, 2010-NMCERT-010 , 17 149 N.M. 65 , 243 P.3d 1147 .

2026See State v. Baroz, 2017-NMSC-030, ¶ 22 , 404 P.3d 769 (applying the double description analysis to determine whether a firearm enhancement to the defendant’s conviction for assault with a deadly weapon violated double jeopardy).