first prong test in New Mexico

2016If the conduct was unitary, we must determine 22 1 “whether the [L]egislature intended to create separately punishable offenses.” 2 Swafford, 1991-NMSC-043 , ¶ 25. 3 {37} Turning to the first prong of our analysis, whether the conduct was unitary, 4 “[t]he proper analytical framework is whether the facts presented at trial establish that 5 the jury reasonably could have inferred independent factual bases for the charged 6 offenses.” State v. Vance, 2009-NMCA-024, ¶ 13 , 145 N.M. 706 , 204 P.3d 31 7 (internal quotation marks and citation omitted); see State v. Olsson, 2014-NMSC-012 , 8 ¶ 37, 32

2016If the conduct was unitary, we must determine 22 1 “whether the [L]egislature intended to create separately punishable offenses.” 2 Swafford, 1991-NMSC-043 , ¶ 25. 3 {37} Turning to the first prong of our analysis, whether the conduct was unitary, 4 “[t]he proper analytical framework is whether the facts presented at trial establish that 5 the jury reasonably could have inferred independent factual bases for the charged 6 offenses.” State v. Vance, 2009-NMCA-024, ¶ 13 , 145 N.M. 706 , 204 P.3d 31 7 (internal quotation marks and citation omitted); see State v. Olsson, 2014-NMSC-012 , 8 ¶ 37, 32

2023See, e.g., Porter, 2020-NMSC-020 , ¶ 12 3 (explaining that our unitary conduct inquiry examines whether the conduct 4 underlying both convictions is sufficiently distinct as to time, place, or action); see 5 also State v. Swick, 2012-NMSC-018, ¶ 11 , 279 P.3d 747 ; Gutierrez, 2011-NMSC- 6 024, ¶ 51 (applying substantially the same analysis in discerning whether the conduct 7 underlying the two convictions was unitary).

2023See, e.g., Porter, 2020-NMSC-020 , ¶ 12 8 (explaining that our unitary conduct inquiry examines whether the conduct 9 underlying both convictions is sufficiently distinct as to time, place, or action); see 10 also State v. Swick, 2012-NMSC-018, ¶ 11 , 279 P.3d 747 ; Gutierrez, 2011-NMSC- 11 024, ¶ 51 (applying substantially the same analysis in discerning whether the conduct 12 underlying the two convictions was unitary).

2023See, e.g., Porter, 2020-NMSC-020 , ¶ 12 3 (explaining that our unitary conduct inquiry examines whether the conduct 4 underlying both convictions is sufficiently distinct as to time, place, or action); see 5 also State v. Swick, 2012-NMSC-018, ¶ 11 , 279 P.3d 747 ; Gutierrez, 2011-NMSC- 6 024, ¶ 51 (applying substantially the same analysis in discerning whether the conduct 7 underlying the two convictions was unitary).

2023See, e.g., Porter, 2020-NMSC-020 , ¶ 12 8 (explaining that our unitary conduct inquiry examines whether the conduct 9 underlying both convictions is sufficiently distinct as to time, place, or action); see 10 also State v. Swick, 2012-NMSC-018, ¶ 11 , 279 P.3d 747 ; Gutierrez, 2011-NMSC- 11 024, ¶ 51 (applying substantially the same analysis in discerning whether the conduct 12 underlying the two convictions was unitary).

2019See, e.g. , State v. Cordova , 2016-NMCA-019 , ¶¶ 8 n.1, 13, 366 P.3d 270 (concluding that the officers did not have "reasonable grounds to believe" that the defendant was injured, stating that the subjective prong of the Ryon / Mitchell test was "immaterial" to the analysis, and noting that the subjective prong was eliminated by the Supreme Court in Brigham City ); State v. Trudelle , 2007-NMCA-066 , ¶ 37, 142 N.M. 18 , 162 P.3d 173 (stating that the officers could not "show reasonable grounds to believe there was an emergency requiring immediate assistance for the protection of life or prope

2019See, e.g., State v. Cordova, 2016-NMCA-019 , ¶¶ 8 n.1, 13, 366 P.3d 270 (concluding that the officers did not have “reasonable grounds to believe” that the defendant was injured, stating that the subjective prong of the Ryon/Mitchell test was “immaterial” to the analysis, and noting that the subjective prong was eliminated by the Supreme Court in Brigham City); State v. Trudelle, 2007-NMCA-066, ¶ 37 , 142 N.M. 18 , 162 P.3d 173 (stating that the officers could not “show reasonable grounds to believe there was an emergency requiring immediate assistance for the protection of life or property”);

2016See 18 Meiboom v. Watson, 2000-NMSC-004, ¶ 20 , 128 N.M. 536 , 994 P.2d 1154 14 1 (acknowledging an appellate court “may affirm a district court’s ruling on a ground 2 not relied on by the district court” (internal quotation marks and citation omitted)). 3 B.

2016See 18 Meiboom v. Watson, 2000-NMSC-004, ¶ 20 , 128 N.M. 536 , 994 P.2d 1154 14 1 (acknowledging an appellate court “may affirm a district court’s ruling on a ground 2 not relied on by the district court” (internal quotation marks and citation omitted)). 3 B.

2016If the conduct was unitary, we must determine 22 1 “whether the [L]egislature intended to create separately punishable offenses.” 2 Swafford, 1991-NMSC-043 , ¶ 25. 3 {37} Turning to the first prong of our analysis, whether the conduct was unitary, 4 “[t]he proper analytical framework is whether the facts presented at trial establish that 5 the jury reasonably could have inferred independent factual bases for the charged 6 offenses.” State v. Vance, 2009-NMCA-024, ¶ 13 , 145 N.M. 706 , 204 P.3d 31 7 (internal quotation marks and citation omitted); see State v. Olsson, 2014-NMSC-012 , 8 ¶ 37, 32

2016If the conduct was unitary, we must determine 17 “whether the [L]egislature intended to create separately punishable offenses.” 18 Swafford, 1991-NMSC-043 , ¶ 25. 22 1 {38} Turning to the first prong of our analysis, whether the conduct was unitary, 2 “[t]he proper analytical framework is whether the facts presented at trial establish that 3 the jury reasonably could have inferred independent factual bases for the charged 4 offenses.” State v. Vance, 2009-NMCA-024, ¶ 13 , 145 N.M. 706 , 204 P.3d 31 5 (internal quotation marks and citation omitted); see State v. Olsson, 2014-NMSC-012 , 6 ¶ 37,

2011Granville, 2006-NMCA-098, ¶¶ 11, 20 , 140 N.M. 345 , 142 P.3d 933 .

2011Granville, 2006-NMCA-098, ¶¶ 11, 20 , 140 N.M. 345 , 142 P.3d 933 .

2010See id.

2010See id.

2012We must determine whether the affidavit sets forth a substantial basis for independently reviewing all the levels of hearsay through which Defendant’s statement or statements allegedly traveled. {19} Under the first prong of the test, relating to a hearsay source’s veracity, we ask whether the affidavit provides a “substantial basis for believing the informant,” Cordova, 109 N.M. at 214 , 784 P.2d at 33 ; accord Rule 5-211(E) (A search warrant affidavit must contain “a substantial basis for believing the source of the hearsay to be credible.”).

2012We must determine whether the affidavit sets forth a substantial basis for independently reviewing all the levels of hearsay through which Defendant’s statement or statements allegedly traveled. {19} Under the first prong of the test, relating to a hearsay source’s veracity, we ask whether the affidavit provides a “substantial basis for believing the informant,” Cordova, 109 N.M. at 214 , 784 P.2d at 33 ; accord Rule 5-211(E) (A search warrant affidavit must contain “a substantial basis for believing the source of the hearsay to be credible.”).

2026See, e.g., Allen, 2000-NMSC-002, ¶ 27 ; Garcia v. State, 1986- NMSC-007, ¶ 10, 103 N.M. 713 , 712 P.2d 1375 .

2011“Failure to 15 object to every instance of objectionable evidence or argument does not render 16 counsel ineffective; rather, failure to object falls within the ambit of trial tactics.” State 17 v. Allen, 2000-NMSC-002, ¶ 115 , 128 N.M. 482 , 994 P.2d 728 (alteration omitted) 18 (internal quotation marks and citation omitted).

2003See Swafford v. State, 112 N.M. 3, 13 , 810 P.2d 1223, 1233 (1991). {18} With regard to the first prong of the test, we will find that conduct is not unitary when the illegal acts are “separated by sufficient indicia of distinctness.” Id. at 13 , 810 P.2d at 1233 .

2003See Swafford v. State, 112 N.M. 3, 13 , 810 P.2d 1223, 1233 (1991). {18} With regard to the first prong of the test, we will find that conduct is not unitary when the illegal acts are “separated by sufficient indicia of distinctness.” Id. at 13 , 810 P.2d at 1233 .

2023See, e.g., Porter, 2020-NMSC-020, ¶ 12 (explaining that our unitary conduct inquiry examines whether the conduct underlying both convictions is sufficiently distinct as to time, place, or action); see also State v. Swick, 2012-NMSC-018, ¶ 11 , 279 P.3d 747 ; Gutierrez, 2011-NMSC-024, ¶ 51 (applying substantially the same analysis in discerning whether the conduct underlying the two convictions was unitary).

2021See id.

2017See State 9 v. Trujillo, 2012-NMCA-112, ¶ 47 , 289 P.3d 238 (stating that “[t]he decision whether 10 to call a witness is a matter of trial tactics and strategy within the control of trial 11 counsel” (internal quotation marks and citation omitted)).

2012Gonzales, 2011-NMSC-012, ¶ 12 (citing Ochoa, 2009-NMCA-002, ¶ 40 ) (the Ochoa test). {35} Regarding the first prong of the test, MVD found that Karst’s initial contact with Schuster was in Karst’s capacity as a community caretaker.