modified Blockburger test in New Mexico

2024Likewise, because there are innumerable ways in which a person might be “less able to the slightest degree . . . to exercise the clear judgment and steady hand necessary to handle a vehicle with safety” as a result of drinking alcohol, UJI 14-4501(2), we apply the modified Blockburger test to the offense of DUI, impaired to the slightest degree. 4 See Luna, 2018-NMCA-025 , ¶ 14 (applying modified Blockburger where the “generic terms [of the statute] make it possible for numerous forms of conduct to qualify as the requisite actus reus element of the statute”); see also Swick, 2012-NMSC-018, ¶ 2

2024Likewise, because there are innumerable ways in which a person might be “less able to the slightest degree . . . to exercise the clear judgment and steady hand necessary to handle a vehicle with safety” as a result of drinking alcohol, UJI 14-4501(2), we apply the modified Blockburger test to the offense of DUI, impaired to the slightest degree. 4 See Luna, 2018-NMCA-025 , ¶ 14 (applying modified Blockburger where the “generic terms [of the statute] make it possible for numerous forms of conduct to qualify as the requisite actus reus element of the statute”); see also Swick, 2012-NMSC-018, ¶ 2

2026The modified 14 Blockburger test considers not only “whether each statute in the abstract requires 15 proof of a fact that the other does not, but also whether the statute, as applied by the 16 [s]tate in a given case, overlaps with other criminal statutes so that the accused is 17 being punished twice for the same offense.” Silvas, 2015-NMSC-006, ¶ 14 (internal 18 quotation marks and citation omitted). 19 {20} “The modified Blockburger analysis ‘demands that we compare the elements 20 of the offense[s], looking at the [s]tate’s legal theory of how the statutes were 1 violated.’” Begaye, 2023-

2024If all elements of one statute are “subsumed within the other, then the analysis ends and the statutes are considered the same for double jeopardy purposes.” Silvas, 2015-NMSC-006, ¶ 12 . {37} We must first determine whether the modified Blockburger test or the strict- elements Blockburger test applies.

2020Thus, under the modified Blockburger analysis, our courts look beyond the “facial statutory language,” Montoya, 2013-NMSC-020, ¶ 49 , and “evaluate legislative intent by considering the [s]tate’s legal theory independent of the particular facts of the case.” Swick, 2012- NMSC-018, ¶ 21. {41} In order to determine the actual legal theory in a particular case, we consider “such resources as the evidence, the charging documents, and the jury instructions.” Montoya, 2013-NMSC-020, ¶ 49 .

2020Thus, under the modified Blockburger analysis, our courts look beyond the “facial statutory language,” Montoya, 2013-NMSC-020, ¶ 49 , and “evaluate legislative intent by considering the [s]tate’s legal theory independent of the particular facts of the case.” Swick, 2012- NMSC-018, ¶ 21. {41} In order to determine the actual legal theory in a particular case, we consider “such resources as the evidence, the charging documents, and the jury instructions.” Montoya, 2013-NMSC-020, ¶ 49 .

2026When statutes 6 “provide[] alternative methods by which a defendant can violate the statute,” we 7 apply a modified Blockburger test to compare the statutory language with the state’s 8 theory of a case based on the charging documents, jury instructions, testimony, and 9 arguments made at trial to “establish whether the same evidence supported a 10 defendant’s convictions under both statutes.” Begaye, 2023-NMSC-015 , ¶¶ 18, 23- 11 24 (internal quotation marks and citations omitted). 12 {31} Pursuant to Section 30-9-20(A), voyeurism consists of 13 intentionally using the unaided eye to view or

2026The modified 14 Blockburger test considers not only “whether each statute in the abstract requires 15 proof of a fact that the other does not, but also whether the statute, as applied by the 16 [s]tate in a given case, overlaps with other criminal statutes so that the accused is 17 being punished twice for the same offense.” Silvas, 2015-NMSC-006, ¶ 14 (internal 18 quotation marks and citation omitted). 19 {20} “The modified Blockburger analysis ‘demands that we compare the elements 20 of the offense[s], looking at the [s]tate’s legal theory of how the statutes were 1 violated.’” Begaye, 2023-

2023As a result, we turn to other cannons of statutory 17 construction to determine whether the Legislature intended to create separately 18 punishable offenses, see Begaye, 2023-NMSC-015 , ¶ 21, and employ either the 19 strict-elements test, as laid out in Blockburger v. United States, 284 U.S. 299 , 304 20 (1932), or if the statutes are “vague and unspecific or are written in the alternative,” 21 Begaye, 2023-NMSC-015 , ¶ 17, the modified Blockburger test, set forth in State v. 18 1 Gutierrez, 2011-NMSC-024, ¶ 48 , 150 N.M. 232 , 258 P.3d 1024 .

2023As a result, we turn to other cannons of statutory construction to determine whether the Legislature intended to create separately punishable offenses, see Begaye, 2023-NMSC-015 , ¶ 21, and employ either the strict-elements test, as laid out in Blockburger v. United States, 284 U.S. 299, 304 (1932), or if the statutes are “vague and unspecific or are written in the alternative,” Begaye, 2023-NMSC-015 , ¶ 17, the modified Blockburger test, set forth in State v. Gutierrez, 2011-NMSC-024, ¶ 48 , 150 N.M. 232 , 258 P.3d 1024 .

2026See Torres, 2018-NMSC-013, ¶ 21 . 9 {19} We first apply the modified Blockburger test because the statutes here are 10 written in the alternative.

2020Under the modified Blockburger test, “we no longer apply a strict elements test in the abstract; rather, we look to the state’s trial theory to identify the specific criminal cause of action for which the defendant was convicted, filling in the case-specific meaning of generic terms in the statute when necessary.” Id. (internal quotation marks and citation omitted); see also State v. Torres, 2018-NMSC-013, ¶ 25 , 413 P.3d 467 (“In New Mexico . . . our law does not permit an application of Blockburger that is so mechanical that it is enough for two statutes to have different elements.” (interna

2023Id. 4 {7} After reaching its conclusion, the Court of Appeals nonetheless proceeded to 5 apply the modified Blockburger test adopted by this Court in State v. Gutierrez, 6 2011-NMSC-024, ¶ 48 , 150 N.M. 232 , 258 P.3d 1024 , “to examine other indicia of 7 legislative intent” and confirm that there was no double jeopardy violation under the 8 strict-elements test.

2023As a result, we turn to other cannons of statutory 17 construction to determine whether the Legislature intended to create separately 18 punishable offenses, see Begaye, 2023-NMSC-015 , ¶ 21, and employ either the 19 strict-elements test, as laid out in Blockburger v. United States, 284 U.S. 299 , 304 20 (1932), or if the statutes are “vague and unspecific or are written in the alternative,” 21 Begaye, 2023-NMSC-015 , ¶ 17, the modified Blockburger test, set forth in State v. 18 1 Gutierrez, 2011-NMSC-024, ¶ 48 , 150 N.M. 232 , 258 P.3d 1024 .

2025See State v. Luna, 2018-NMCA-025 , ¶ 17, 458 P.3d 457 (concluding that convictions did not survive the modified Blockburger test because “the jury could” have “convict[ed the d]efendant” for one crime “based on nothing more than the same evidence used to convict” the defendant of another crime”). {33} In light of the State’s theory here, the attempted murder conviction is subsumed into the first degree kidnapping, “and the statutes are the same for double jeopardy purposes—punishment cannot be had for both.” Swafford, 1991-NMSC-043 , ¶ 30; see also Luna, 2018-NMCA-025 , ¶ 11 (“[If o]ne statute

2025See State v. Luna, 2018-NMCA-025 , ¶ 17, 458 P.3d 457 (concluding that convictions did not survive the modified Blockburger test because “the jury could” have “convict[ed the d]efendant” for one crime “based on nothing more than the same evidence used to convict” the defendant of another crime”). {42} In light of the State’s theory here, the attempted murder conviction is subsumed into the first degree kidnapping, “and the statutes are the same for double jeopardy purposes—punishment cannot be had for both.” Swafford, 1991-NMSC-043 , ¶ 30; see also Luna, 2018-NMCA-025 , ¶ 11 (“[If o]ne statute

2020Under the modified Blockburger analysis, “we no longer apply a strict elements test in the abstract; rather, we look to the state’s trial theory to identify the specific criminal cause of action for which the defendant was convicted, filling in the case-specific meaning of generic terms in the statute when necessary.” State v. Branch, 2018-NMCA-031 , ¶ 25, 417 P.3d 1141 .

2019Under the modified Blockburger analysis, "we no longer apply a strict elements test in the abstract; rather, we look to the state's trial theory to identify the specific criminal cause of action for which the defendant was convicted, filling in the case-specific meaning of generic terms in the statute when necessary." Branch , 2018-NMCA-031 , ¶ 25, 417 P.3d 1141 . {23} Both statutes at issue here define the criminal conduct broadly.

2023Saltwater argues that we should also use the modified Blockburger test in our general/specific statute rule analysis because the rule “should be applied in a flexible manner,” see Santillanes, 2001-NMSC-018, ¶ 21 , and the child abuse statute, if taken literally, “could be read broadly to permit prosecution for any conduct.” See Chavez, 2009-NMSC-035, ¶ 16 .

2019In the absence of adequate briefing, we will not engage in further analysis on this point, and we will assume for purposes of this appeal that the charged offenses at issue survive a modified Blockburger analysis. 25 1 endangers a child’s safety, the adult is more culpable than when the safety of 2 another adult is jeopardized.” Id. (internal quotation marks and citation omitted). 3 “[T]he history of the child abuse statute compels the conclusion that the 4 Legislature has expanded protection for children.” Id. (alteration, internal quotation 5 marks, and citation omitted).

2023Id. 4 {7} After reaching its conclusion, the Court of Appeals nonetheless proceeded to 5 apply the modified Blockburger test adopted by this Court in State v. Gutierrez, 6 2011-NMSC-024, ¶ 48 , 150 N.M. 232 , 258 P.3d 1024 , “to examine other indicia of 7 legislative intent” and confirm that there was no double jeopardy violation under the 8 strict-elements test.

2023Id. 8 {7} After reaching its conclusion, the Court of Appeals nonetheless proceeded to 9 apply the modified Blockburger test adopted by this Court in State v. Gutierrez, 10 2011-NMSC-024, ¶ 48 , 150 N.M. 232 , 258 P.3d 1024 , “to examine other indicia of 11 legislative intent” and confirm that there was no double jeopardy violation under the 12 strict-elements test.

2025“Under the modified Blockburger analysis, we no longer apply a strict elements test in the abstract; rather, we look to the state’s trial theory to identify the specific criminal cause of action for which the defendant was convicted, filling in the case-specific meaning of generic terms in the statute when necessary.” State v. Serrato, 2021-NMCA-027, ¶ 16 , 493 P.3d 383 (internal quotation marks and citation omitted). “[T]he application of Blockburger should not be so mechanical that it is enough for two statutes to have different elements.” Id. (internal quotation marks and citation omitted).

2025“Under the modified Blockburger analysis, we no longer apply a strict elements test in the abstract; rather, we look to the state’s trial theory to identify the specific criminal cause of action for which the defendant was convicted, filling in the case-specific meaning of generic terms in the statute when necessary.” State v. Serrato, 2021-NMCA-027, ¶ 16 , 493 P.3d 383 (internal quotation marks and citation omitted). “[T]he application of Blockburger should not be so mechanical that it is enough for two statutes to have different elements.” Id. (internal quotation marks and citation omitted).

2022See § 30-16-4(A)-(C); State v. Gutierrez, 2012-NMCA-095, ¶ 14 , 286 P.3d 608 (stating that we apply the modified Blockburger test when one of the statutes are written with various alternatives); see also State v. Sena, 2018-NMCA-037 , ¶¶ 42-44, 419 P.3d 1240 (noting that aggravated burglary has numerous ways in which a conviction may occur so this Court must analyze it through the modified Blockburger test), aff’d in part, rev’d in part, and remanded, 2020-NMSC-011, ¶ 56 .

2013The modified Blockburger test “applies when one of the statutes at 15 1 issue is written with many alternatives, or is vague or unspecific.” State v. Gutierrez, 2 2012-NMCA-095, ¶ 14 , 286 P.3d 608 , cert. denied, 2012-NMCERT-008 , 296 P.3d 3 490 .

2024See, e.g., State v. Simmons, 2018-NMCA-015, ¶¶ 30-32 , 409 P.3d 1030 (applying the modified Blockburger test to CSP II-felony).

2024See, e.g., State v. Simmons, 2018-NMCA-015, ¶¶ 30-32 , 18 409 P.3d 1030 (applying the modified Blockburger test to CSP II-felony).

2023As a result, we turn to other cannons of statutory 17 construction to determine whether the Legislature intended to create separately 18 punishable offenses, see Begaye, 2023-NMSC-015 , ¶ 21, and employ either the 19 strict-elements test, as laid out in Blockburger v. United States, 284 U.S. 299 , 304 20 (1932), or if the statutes are “vague and unspecific or are written in the alternative,” 21 Begaye, 2023-NMSC-015 , ¶ 17, the modified Blockburger test, set forth in State v. 18 1 Gutierrez, 2011-NMSC-024, ¶ 48 , 150 N.M. 232 , 258 P.3d 1024 .

2023As a result, we turn to other cannons of statutory 17 construction to determine whether the Legislature intended to create separately 18 punishable offenses, see Begaye, 2023-NMSC-015 , ¶ 21, and employ either the 19 strict-elements test, as laid out in Blockburger v. United States, 284 U.S. 299 , 304 20 (1932), or if the statutes are “vague and unspecific or are written in the alternative,” 21 Begaye, 2023-NMSC-015 , ¶ 17, the modified Blockburger test, set forth in State v. 18 1 Gutierrez, 2011-NMSC-024, ¶ 48 , 150 N.M. 232 , 258 P.3d 1024 .

2022“Under the modified Blockburger analysis, we no longer apply a strict elements test in the abstract; rather, we look to the state’s trial theory to identify the specific criminal cause of action for which the defendant was convicted, filling in the case-specific meaning of generic terms in the statute when necessary.” Id. (internal quotation marks and citation omitted). {9} With this framework in mind, we continue our analysis by looking to the elements of the two offenses to ascertain if the definition of one subsumes the definition of the other.

2020See State v. Gonzales, 2019-NMCA-036 , ¶ 24, 444 P.3d 1064 (looking to the state’s closing argument when the indictment and jury instructions provided insufficient detail about the state’s theory of the case); see also State v. Silvas, 2015-NMSC-006, ¶¶ 19-20 , 343 P.3d 616 (turning to the state’s closing argument as evidence of the state’s legal theory in applying the modified Blockburger analysis).

2019See State v. Gutierrez, 2011-NMSC-024, ¶ 59 , 150 N.M. 232 , 258 P.3d 1024 (stating that where a statute is “multi-purposed and written with many alternatives, or is vague and unspecific[,]” a modified Blockburger analysis is used to determine if one crime is subsumed within the other (emphasis, internal quotation marks, and citation omitted)); State v. Ramirez, 2016-NMCA-072, ¶ 22 , 387 P3d 266 (stating that the modified Blockburger test is used “to determine whether the state’s theory for one crime, as charged to the jury, is logically subsumed . . . within the state’s theory for a separate

2019See State v. Gutierrez, 2011-NMSC-024, ¶ 59 , 150 N.M. 232 , 258 P.3d 1024 (stating that where a statute is “multi-purposed and written with many alternatives, or is vague and unspecific[,]” a modified Blockburger analysis is used to determine if one crime is subsumed within the other (emphasis, internal quotation marks, and citation omitted)); State v. Ramirez, 2016-NMCA-072, ¶ 22 , 387 P3d 266 (stating that the modified Blockburger test is used “to determine whether the state’s theory for one crime, as charged to the jury, is logically subsumed . . . within the state’s theory for a separate

2024Because CSP II-felony, at issue in this case, includes similar statutory language as felony murder, at issue in Frazier, requiring the jury to find that the greater offense occurred “in the commission” of the predicate offense, compare NMSA 1978, § 30-2- 1(A)(2) (1994), with § 30-9-11(E)(5), Defendant argues that this Court should import the Frazier analysis here. {31} The State argues that the approach taken in State v. Loza, 2018-NMSC-034 , 426 P.3d 34 , should control, rather than the modified Blockburger analysis of legislative 1Defendant does not argue that the New Mexico Constitution aff

2024Because CSP II-felony, at issue in this case, includes 20 similar statutory language as felony murder, at issue in Frazier, requiring the jury to 15 1 find that the greater offense occurred “in the commission” of the predicate offense, 2 compare NMSA 1978, § 30-2-1(A)(2) (1994), with § 30-9-11(E)(5), Defendant 3 argues that this Court should import the Frazier analysis here. 4 {31} The State argues that the approach taken in State v. Loza, 2018-NMSC-034 , 5 426 P.3d 34 , should control, rather than the modified Blockburger analysis of 6 legislative intent.

2023Id. ¶ 28; see also State v. Franco, 2005-NMSC-013, ¶ 14 , 137 N.M. 447 , 112 P.3d 1104 (expressing approval of the modified Blockburger test).

2023Id. ¶ 28; see also State v. Franco, 2005-NMSC-013, ¶ 14 , 137 N.M. 447 , 112 P.3d 1104 (expressing approval of the modified Blockburger test).

2023Id. ¶ 28; see also State v. Franco, 2005-NMSC-013, ¶ 14 , 137 N.M. 447 , 112 P.3d 1104 (expressing approval of the modified Blockburger test).

2023Id. ¶ 28; see also State v. Franco, 2005-NMSC-013, ¶ 14 , 137 N.M. 447 , 112 P.3d 1104 (expressing approval of the modified Blockburger test).

2026Under such a 2 circumstance, we apply the modified Blockburger test to discern legislative intent. 3 Begaye, 2023-NMSC-015 , ¶ 22 (discussing Blockburger v. United States, 284 U.S. 4 299 (1932)).

2022See State v. Almeida, 2008-NMCA-068, ¶ 10 , 144 N.M. 235 , 185 P.3d 1085 . {30} That presumption, however, “is not conclusive; it may be overcome by other indicia of legislative intent.” Id. ¶ 11 (internal quotation marks and citation omitted).

2022See State v. Almeida, 2008-NMCA-068, ¶ 10 , 144 N.M. 235 , 185 P.3d 1085 . {30} That presumption, however, “is not conclusive; it may be overcome by other indicia of legislative intent.” Id. ¶ 11 (internal quotation marks and citation omitted).