The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Clerk of the Court for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: October 30, 2024
4 No. A-1-CA-41172
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 PAUL SANDOVAL,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Stan Whitaker, District Court Judge
12 Raúl Torrez, Attorney General 13 Santa Fe, NM 14 Van Snow, Acting Deputy Assistant Solicitor General 15 Albuquerque, NM
16 for Appellee
17 Bennett J. Baur, Chief Public Defender 18 Mallory E. Harwood, Assistant Appellate Defender 19 Santa Fe, NM
20 for Appellant
1 OPINION
2 HANISEE, Judge.
3 {1} Defendant Paul Sandoval appeals his convictions of numerous offenses
4 against the victim in this case, a minor named S.M. (Victim), including four counts
5 of criminal sexual penetration (CSP), contrary to NMSA 1978, Section 30-9-11(D),
6 (E) (2009); five counts of criminal sexual contact of a minor (CSCM), contrary to
7 NMSA 1978, Section 30-9-13 (2003); and one count each of child abuse and giving
8 alcoholic beverages to a minor, contrary to NMSA 1978, Section 30-6-1(D)(1)
9 (2009) and NMSA 1978, Section 60-7B-1(A) (2013), respectively. On appeal,
10 Defendant claims that prosecution for five of his convictions, each being either a
11 third- or fourth-degree felony, was barred by the relevant statute of limitations,
12 which requires indictment to be found within five years of the alleged crimes. See
13 NMSA 1978, § 30-1-8(B) (2009, amended 2022). 1 Defendant further argues that all
14 but two of his remaining convictions, four counts of which were presented to the
15 jury as alternatives to the primary count, violate his constitutional protections against
16 being twice placed in jeopardy for the same offense. See N.M. Const. art. II, § 15;
17 U.S. Const. amend. V. Lastly, Defendant alleges that certain errors in jury selection
— 1 —
Section 30-1-8 has been amended since the crimes in this case occurred, but the amendment does not affect the portion of the statute relevant to this opinion. Thus, we cite the current version of the statute throughout this opinion.
1 and instruction constitute reversible error. For the reasons set forth below, we affirm
2 in part, reverse in part, and remand for resentencing in accordance with this opinion.
3 BACKGROUND
4 {2} On April 25, 2014, Victim, then a fifteen-year-old girl, received a text
5 message from Defendant at some point during the night inviting her to “hang out.”
6 At that time, Victim was already acquainted with Defendant, then a nineteen-year7 old male, the two having previously engaged in consensual sexual intercourse at
8 least once. Victim accepted Defendant’s invitation to hang out, and soon thereafter
9 Defendant and another male, Stacy Walker, arrived at Victim’s house in a vehicle to
10 pick her up. Defendant and Walker, both of whom appeared to be intoxicated, then
11 drove Victim to Defendant’s residence.
12 {3} Once at Defendant’s home, Victim noted that it looked as though a party had
13 just ended, observing alcohol “everywhere” within the house and a table set up for
14 drinking games. No one else was present in the home aside from Victim, Defendant,
15 and Walker. Once the three arrived, Defendant and Walker continued to drink beer.
16 Victim was initially reluctant to consume alcohol, but the two men backed her into
17 a corner of the living room and told her she had to drink. Victim became scared and
18 drank a cup of beer in an effort to get the men away from her. Victim then felt sick
19 and went to the bathroom where she vomited. Upon returning from the bathroom,
20 one of the men—which one is unknown—threw Victim over Walker’s lap and
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1 Defendant started to spank her buttocks through her pants. Victim told Defendant
2 and Walker to stop, but Defendant continued to hit her. Victim asked to be released
3 so she could lay down, and Defendant instructed her to go to his bedroom, which
4 she did. Walker and Defendant then followed Victim into Defendant’s bedroom, and
5 Defendant locked the door behind him.
6 {4} Inside the bedroom, Defendant grabbed Victim from behind while she was
7 facing Walker, who was seated on the bed in front of her. Defendant and Walker
8 then took Victim’s clothes off as well as their own while Victim asked them to stop.
9 They did not. Defendant and Walker then proceeded to sexually assault Victim by
10 penetrating her both vaginally and anally. Victim repeatedly told the men to stop,
11 and Defendant responded by hitting Victim in the face while berating her. Also while
12 committing the assault, Defendant touched Victim’s vagina with his fingers and bit
13 Victim’s breasts with his mouth. After an unidentified amount of time, Victim
14 persuaded Defendant and Walker to stop by asking them for “a break.” The men
15 stopped, and Victim, noticing they were distracted, put on her pants, grabbed some
16 of her remaining belongings, and ran out of the bedroom. Defendant and Walker
17 chased Victim as she exited the house, but after a brief altercation in which Victim
18 hit Defendant to escape his grasp, Victim was picked up by her grandmother at a
19 nearby gas station.
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1 {5} Victim declined her grandmother’s suggestion to go directly to the hospital,
2 but underwent a sexual assault nurse examination (SANE) the next day, on April 26,
3 2014. Police officers also went to Victim’s house on that day, apparently in response
4 to a call from a family member, but Victim refused to cooperate. Victim
5 subsequently spoke to an officer about the incident on May 13, 2014, but stated that
6 she “did not want to go forward” and the officer closed the case until further leads
7 could be developed. Victim ultimately reported the incident in full to law
8 enforcement on June 11, 2014. As a result of this report and the ensuing
9 investigation, Defendant was initially indicted for his role in the assault on May 15,
10 2017. Nearly fifteen months later, that case was dismissed via nolle prosequi filed
11 by the prosecution, which stated that “additional investigation and scientific testing
12 [was] needed.” The subsequent indictment underlying the instant case was filed on
13 November 26, 2019, just over five years and seven months after the above-described
14 offenses.
15 {6} In the present indictment, Defendant is charged with eight offenses, five of
16 which contain charges “in the alternative” to the primary count. In general terms,
17 Count 1 of the indictment charges Defendant with the following: criminal sexual
18 penetration of Victim’s vagina, either through the use of force or coercion and when
19 aided and abetted by another, or, alternatively, criminal sexual penetration of a minor
20 through the use of force or coercion. See § 30-9-11(D), (E)(1). Count 2 of the
— 4 —
1 indictment alleges criminal sexual penetration of Victim’s anus in the same manner
2 and contains the same alternate charge. See id. Counts 3 and 4 charge Defendant
3 with criminal sexual contact of a minor, while helped or encouraged by another, for
4 touching Victim’s unclothed genitals and breasts, collectively. See § 30-95 13(B)(2)(c). The alternative charge in each count alleges the same conduct but
6 without the aid of another and does not specify that Victim was unclothed. See § 307 9-13(D)(1).
8 {7} Count 5 alleges a further instance of criminal sexual contact of a minor for
9 spanking Victim’s clothed buttocks with the help or encouragement of another. 2 See
10 § 30-9-13(C)(2)(c). The alternative charge in Count 5 alleges the same but does not
11 mention other persons. See § 30-9-13(D)(1). Count 6 charges Defendant with child
12 abuse for striking Victim in the face, contrary to Section 30-6-1(D), and does not
13 contain an alternate charge. Count 7 was dismissed by the district court, and Count
14 8 charges Defendant with giving alcohol to a minor, Victim, contrary to Section 6015 7B-1(A). Count 8 does not contain an alternate charge.
— 2 —
Count 5 in the indictment originally charged Defendant with criminal sexual contact of a minor for spanking Victim’s unclothed buttocks, a second-degree felony. See § 30-9-13(B)(2)(c). However, this charge was amended down to a thirddegree felony at trial, because the evidence revealed that Defendant spanked Victim through her pants. See § 30-9-13(C)(2)(c). Defendant did not object to this amendment, stating that given the change, he would not move for directed verdict on that charge.
— 5 —
1 {8} After trial, and despite being instructed that Defendant could only be
2 convicted of the primary charge or its alternate, the jury convicted Defendant of all
3 the above charges, including the alternates, except the alternate charge in Count 4.
4 The district court subsequently sentenced Defendant for all of the above convictions
5 to a prison term of thirty years, followed by ten years of probation and an
6 indeterminate period of parole. Notably, the district court treated the primary charge
7 in Count 5 as a second-degree felony and sentenced Defendant accordingly despite
8 its stipulated reduction to a third-degree felony at trial. Defendant appeals the
9 judgment and his subsequent sentencing, raising the arguments identified above. We
10 address each in turn.
11 DISCUSSION
12 I. Statutes of Limitations
13 {9} Defendant first argues that his convictions of five separate third- and
14 fourth-degree felonies—Counts 3 (alternative), 5, 5 (alternative), 6, and 8—violate
15 the statute of limitations barring prosecution for such offenses. See § 30-1-8(B)
16 (requiring indictment to be found, or information or complaint to be filed, within
17 “five years from the time the crime was committed” for third- and fourth-degree
18 felonies). Defendant asserts that the second indictment was filed beyond the five19 year time frame and that, although argument regarding the statute of limitations was
20 not raised below, such is not a bar to raising this defense on appeal. Defendant further
— 6 —
1 contends that no statute permitting tolling of the statute of limitations applies to this
2 case, and Defendant’s relevant convictions must, therefore, be reversed. We agree
3 and vacate his third- and fourth-degree felony convictions.
4 {10} “When facts relevant to a statute of limitations issue are not in dispute, the
5 standard of review is whether the district court correctly applied the law to the
6 undisputed facts.” State v. Kerby, 2007-NMSC-014, ¶ 11 , 141 N.M. 413 , 156 P.3d 7 704 (internal quotation marks and citation omitted). “We review questions of law de
8 novo.” Id. Defendant and the State agree for the purposes of this argument that
9 Victim’s interview with police on June 11, 2014, constitutes a “report” to law
10 enforcement and began the limitation period of five years for prosecution of third11 and fourth-degree felonies. See NMSA 1978, § 30-1-9.1 (1987) (tolling the
12 limitation in Section 30-1-8(B) “until the victim attains the age of eighteen or the
13 violation is reported to a law enforcement agency, whichever occurs first”). Thus,
14 no question of fact regarding the applicability of the statute of limitations is present,
15 and our review is de novo.
16 {11} Defendant’s argument requires us to determine whether the Legislature
17 intended to abrogate nonstatutory tolling of a statute of limitations. This question
18 presents an issue of statutory interpretation, which we consider de novo. See State v.
19 Duhon, 2005-NMCA-120, ¶ 10 , 138 N.M. 466 , 122 P.3d 50 . “Our primary goal
20 when interpreting statutory language is to give effect to the intent of the
— 7 —
1 [L]egislature.” State v. Torres, 2006-NMCA-106, ¶ 8 , 140 N.M. 230 , 141 P.3d 1284 .
2 “We do this by giving effect to the plain meaning of the words of statute, unless this
3 leads to an absurd or unreasonable result.” State v. Marshall, 2004-NMCA-104 , ¶ 7,
— 4 —
136 N.M. 240 , 96 P.3d 801 .
5 {12} Defendant argues, and the State concedes, that the primary tolling statute,
6 NMSA 1978, Section 30-1-9 (1963) (providing enumerated circumstances that toll
7 application of Section 30-1-8) does not apply to this case. Indeed, the State does not
8 argue that any statutory tolling provision applies to the circumstances present here.
9 Rather, the State exclusively relies on a theory of nonstatutory tolling to contend that
10 the five-year limitation period in Section 30-1-8(B) was paused during the pendency
11 of the first indictment in this case. According to the State, the limitation period ran
12 from June 11, 2014—when Victim fully reported the crime to police—to May 15,
13 2017—when the first indictment was filed—but was then tolled until the State filed
14 its nolle prosequi on August 2, 2018. Under this theory, the State incorporates an
15 additional fourteen months and eighteen days, the amount of time the first indictment
16 was pending, into the five-year prescriptive window in which Defendant must
17 otherwise have been indicted.
18 {13} In so arguing, the State relies on State v. Martinez, 1978-NMCA-095 , 92 N.M. 19 291 , 587 P.2d 438 , to assert that nonstatutory tolling, sometimes called common law
20 tolling, is a valid practice in New Mexico criminal cases. In Martinez, the defendant
— 8 —
1 committed the underlying offense on August 7, 1974. Id. ¶ 5. A three-year statute of
2 limitation applied to prosecutions arising from that offense, and the defendant was
3 charged by criminal complaint, filed in magistrate court, on August 5, 1977, two
4 days before the limitation period expired. Id. ¶¶ 2-5. Twenty days later, the state
5 filed a felony indictment for the same offense in district court, voluntarily dismissed
6 the complaint in magistrate court, and thereafter proceeded to trial for the felony. Id.
7 ¶¶ 2, 9. 3 The defendant was later convicted by a jury, but the district court vacated
8 the jury’s verdict and dismissed the case because the indictment violated the statute
9 of limitations. Id. ¶ 2.
10 {14} On appeal, this Court reversed the district court’s order, stating that “the
11 indictment was timely because the limitation period was tolled by the filing of the
12 complaint.” Id. ¶¶ 12, 25. Our holding rested on the fact that the initial complaint
13 was timely filed in magistrate court, which then had limited jurisdiction to conduct
14 a preliminary hearing and determine if probable cause existed to bind the defendant
15 over for felony trial in district court. See id. ¶ 6. We noted that if probable cause was
16 so found, the proceedings in district court must then have proceeded “either on the
— 3 —
The indictment may have been filed on August 27, 1977, but it is unclear which date is correct. See id. ¶ 8 (stating the indictment was filed on the later date). In either case, the indictment was filed outside of the limitation period, which ended on August 7, 1977. See id. ¶¶ 2-5.
— 9 —
1 basis of indictment or information,” id. ¶ 7, and the initiating complaint filed in
2 magistrate court would then have been superseded, see id. ¶¶ 9, 18.
3 {15} Our holding in Martinez, therefore, rests on the operation of criminal
4 procedure: the state filed a complaint in magistrate court alleging felony charges
5 against the defendant; the state then opted to have the grand jury, rather than the
6 magistrate, determine whether probable cause existed to support a felony indictment;
7 and once that determination was made, the state issued a superseding felony
8 indictment in district court, and the magistrate court was without jurisdiction to hear
9 the felony charges. Id. ¶¶ 2, 6-9. Most importantly, there was no lapse between the
10 criminal complaint, which was timely filed in magistrate court, and the subsequent
11 proceedings in district court. See id. ¶¶ 5, 10. Thus, as indicated by the Martinez
12 Court’s consideration of the word “continuation” as a valid view in relation to
13 “tolling,” the statute of limitations in that case was never violated, and no tolling
14 provision, statutory or otherwise, was required to allow for further prosecution. See
15 id. ¶ 10.
16 {16} In other words, Martinez merely recognizes various facets of criminal
17 procedure related to the progression of a single case from magistrate to district court
18 and the fact that, if the magistrate had determined probable cause existed, a new
19 charging instrument must have nonetheless been filed in district court just as it had
20 been, and such a procedural requirement should not operate as a bar to prosecution.
— 10 —
1 Indeed, as we repeatedly stated, our holding applies to “the circumstances of th[at]
2 case.” Id. ¶¶ 8, 24.
3 {17} The State points us to two additional cases in its argument that the first
4 indictment here tolled the statute of limitations while it was pending. First, it cites
5 State v. Collier, in which the defendant was timely charged with felony extreme
6 cruelty to animals, but not its lesser included misdemeanor offense, within seven
7 months of the alleged crime. 2013-NMSC-015, ¶ 4 , 301 P.3d 370 . The first
8 proceeding resulted in a mistrial due to jury deadlock, and, at the second trial in
9 January 2009, the state requested, for the first time, that the jury be instructed on the
10 lesser included misdemeanor. Id. ¶¶ 5-6. The second trial resulted in acquittal on the
11 felony charge, but the jury hung on the misdemeanor. Id. Thereafter, the district court
12 dismissed the case, concluding the state did not “explicitly charge [the d]efendant
13 with [the] misdemeanor . . . within the two-year statute of limitations period for that
14 crime.” Id. ¶ 7.
15 {18} On appeal, our Supreme Court held that the case should not have been
16 dismissed because the state filed its felony indictment “within the limitations period”
17 for both the felony and its lesser included misdemeanor. See id. ¶ 31. The Supreme
18 Court further stated, “A timely filed charging document stops the statute of
19 limitations clock from running on any explicitly charged offenses and any lesser
20 included offenses upon which the district court properly instructs the jury at trial.”
— 11 —
1 Id. ¶ 37. Thus, as in Martinez, tolling of the statute of limitations was never required
2 to maintain a prosecution because the initial charging document was timely filed,
3 and no lapse between it and a subsequent one ever occurred. See Collier, 20134 NMSC-015, ¶ 37.
5 {19} The third case the State references is State v. Padilla, 2023-NMCA-047 , 534
6 P.3d 223 , cert. granted (S-1-SC-39897, July 10, 2023). In Padilla, this Court
7 recently considered whether a timely filed criminal complaint, later dismissed for
8 improper venue, permitted the untimely filing of a subsequent indictment. Id. ¶ 1.
9 We held that (1) the defendant’s motion to dismiss for improper venue “fell within
10 the category of circumstances governed by [the statute],” but (2) Section 30-1-9(B)
11 did not toll the limitation period “because the [i]ndictment was not brought within
12 five years of the last charged event.” Padilla, 2023-NMCA-047 , ¶¶ 8, 10; see also
13 § 30-1-9(B)(4) (requiring that, regardless of applicable tolling provisions, a
14 subsequent indictment, information, or complaint must be “brought within five years
15 from the date of the alleged commission of the original crime”). In other words, we
16 held that the limitation period at issue could have been tolled under Section 30-117 9(B)(3) if the state had complied with the five-year outer-limit contained in Section
18 30-1-9(B)(4), but it did not. Padilla, 2023-NMCA-047 , ¶¶ 8, 10.
19 {20} Our holding in Padilla was narrow: while we noted that we do not read
20 Martinez, discussed above, to permit nonstatutory tolling “when . . . Section
— 12 —
1 30-1-9(B) applies to the circumstances of the case,” we also stated that “we make no
2 determination about the application of nonstatutory tolling” in other circumstances.
3 Padilla, 2023-NMCA-047 , ¶¶ 12, 13. The State now argues that Padilla’s limited
4 holding does not establish the broader proposition that nonstatutory tolling is
5 unavailable in New Mexico criminal cases. The State contends that since both it and
6 Defendant agree Section 30-1-9 does not apply to this case, this Court should
7 recognize what the State views to be the implicit holdings of Martinez and Collier:
8 that nonstatutory tolling is a permissible practice in New Mexico under certain
9 circumstances, and that the limitation period in this case regarding third- and fourth10 degree felonies was tolled while the first indictment was pending. We disagree and
11 now hold that which Padilla left unresolved: when statutory tolling provisions do
12 not apply to the circumstances of the particular case, the Legislature did not intend
13 for nonstatutory tolling to nevertheless extend a statute of limitations. As such, we
14 disagree with the State and conclude Defendant’s affected convictions must be
15 vacated.
16 {21} The precise question presented by this case is whether the existence of Section
17 30-1-9 indicates a legislative intent to exclude other forms of tolling not contained
18 therein, or whether its narrow language and applicability impliedly permits
19 nonstatutory tolling, as the State here argues it does. This presents a question of
20 statutory interpretation, which first requires us to turn to the plain language of the
— 13 —
1 statute itself. See State v. Vest, 2021-NMSC-020, ¶ 14 , 488 P.3d 626 (“[Our] primary
2 goal when interpreting statutes is to further legislative intent.” (internal quotation
3 marks and citation omitted)). Although this is our first guide to the Legislature’s
4 purpose in enacting a statute, “we must take care to avoid adoption of a construction
5 that would render the statute’s application absurd or unreasonable or lead to injustice
6 or contradiction.” State v. Strauch, 2015-NMSC-009, ¶ 13 , 345 P.3d 317 . “We
7 therefore must examine the plain language of the statute as well as the context in
8 which it was promulgated, including the history of the statute and the object and
9 purpose the Legislature sought to accomplish.” Id. ¶ 14 (internal quotation marks
10 and citation omitted).
11 {22} Section 30-1-9(B), the portion of the tolling statute relevant to this case, tolls
12 the limitation period for commencing prosecution when
13 (1) an indictment, information or complaint is lost, mislaid or 14 destroyed;
15 (2) the judgment is arrested;
16 (3) the indictment, information or complaint is quashed, for 17 any defect or reason; or
18 (4) the prosecution is dismissed because of variance between 19 the allegations of the indictment, information or complaint and the 20 evidence; and a new indictment, information or complaint is thereafter 21 presented, the time elapsing between the preferring 4 of the first
— 4 —
The term “preferral” means, “[t]he act of putting forward or bringing forth criminal charges against a person.” Preferral, Blacks Law Dictionary (12th ed. 2024).
— 14 —
1 indictment, information or complaint and the subsequent indictment, 2 information or complaint shall not be included in computing the period 3 limited for the prosecution of the crime last charged; provided that the 4 crime last charged is based upon and grows out of the same transaction 5 upon which the original indictment, information or complaint was 6 founded, and the subsequent indictment, information or complaint is 7 brought within five years from the date of the alleged commission of 8 the original crime.
9 Notably, Section 30-1-9(B) does not provide for tolling in cases where, as here, the
10 state voluntarily dismisses its own charges. See Martinez, 1978-NMCA-095 , ¶ 16
11 (stating that the Legislature did not intend the statute to apply to voluntary
12 dismissals). Neither party disputes this proposition. Nonetheless, whether this statute
13 serves as well to eliminate application of nonstatutory tolling is determined by its
14 language and history and is a question we are, unlike in Padilla, now required to
15 answer.
16 {23} As indicated by the majority opinion and dissent in Padilla, the language of
17 Section 30-1-9 does not lend itself to any clear conclusion of legislative intent
18 regarding the applicability or abrogation of common law tolling principles. Compare
19 Padilla, 2023-NMCA-047 , ¶ 12 (holding that nonstatutory tolling does not apply
20 when a case falls within the circumstances described in Section 30-1-9 but stopping
21 short of commenting on whether it may be applicable in other circumstances), with
22 Padilla, 2023-NMCA-047 , ¶ 18 (Duffy, J., dissenting) (proposing affirmance by
23 stating that Martinez opened the door to nonstatutory tolling and that Section 30-1-9
24 did not establish limitation of other tolling mechanisms outside of the statute).
— 15 —
1 Indeed, as we have stated, we did not decide in Padilla whether nonstatutory tolling
2 may be applied in circumstances where Section 30-1-9 is inapplicable. Padilla,
— 3 —
2023-NMCA-047 , ¶ 13. Nonetheless, we remarked that the statute’s long history
4 absent any amendment since 1963, coupled with the Legislature’s adoption of
5 several other, more specific tolling statutes, implies that the Legislature intended for
6 the statute to apply generally to criminal offenses and evinces “the Legislature’s
7 intent to permit tolling under limited circumstances.” Id. ¶ 14; see also § 30-1-9.1
8 (enacting a tolling statute for specific offenses against children); NMSA 1978, § 309 1-9.2 (2003) (permitting tolling for crimes involving criminal sexual penetration
10 when DNA evidence exists but no suspect has been identified).
11 {24} We adhere to this analysis and, to the extent Padilla left unresolved this
12 question for another day, that day has arrived. We now hold that the Legislature has
13 established the circumstances in which criminal statutes in New Mexico may be
14 tolled and has thereby disallowed application of separate, nonstatutory tolling. As
15 discussed below, Martinez and Collier present no barrier to this conclusion because
16 neither case involved a circumstance in which the statute of limitations was tolled
17 and then restarted. See Martinez, 1978-NMCA-095 , ¶ 10; Collier, 2013-NMSC-015 ,
18 ¶ 37. We are thus without any established precedent indicating that nonstatutory
19 tolling has been recognized in New Mexico, and decline to adopt it here.
— 16 —
1 {25} In our view, the public policy underpinning statutes of limitations further
2 supports this conclusion. See State v. Kerby, 2007-NMSC-014, ¶ 13 , 141 N.M. 413 ,
— 3 —
156 P.3d 704 (stating that the purpose of criminal statutes of limitation “is to limit
4 exposure to criminal prosecution to a certain fixed period of time following the
5 occurrence of those acts the legislature has decided to punish by criminal sanctions”
6 (internal quotation marks and citation omitted)). Under the State’s argument in this
7 case, a timely filed charging document that is later voluntarily dismissed—and
8 therefore outside the purview of Section 30-1-9, see Martinez, 1978-NMCA-095 ,
9 ¶ 16 (stating that the Legislature did not intend the statute to apply to voluntary
10 dismissals)—would toll the statute of limitations and allow the state to, if it so chose,
11 repeatedly file and dismiss charges—pausing and unpausing the running of the
12 limitation period—against a defendant well beyond the limitation announced in
13 Section 30-1-8. To enable such a stratagem would serve to undermine the very
14 purpose of statutes of limitations themselves and render all but meaningless the
15 apparent purpose of Section 30-1-9, which established tolling in only limited and
16 enumerated circumstances.
17 {26} Stated differently, to hold as the State suggests would empower it to
18 orchestrate its own limitation period in any given case, undermining legislative
19 autonomy and rendering indefinite the period of time in which an uncharged citizen
20 must await prosecutive determination of whether the power of the state will or will
— 17 —
1 not be employed against such an individual. Indeed, the legislative purpose
2 underpinning statutes of limitations is to restrict the State’s ability to unduly delay
3 criminal prosecution and to prevent citizens from laboring under threat thereof for
4 indefinite periods. See State v. Morales, 2010-NMSC-026, ¶ 13 , 148 N.M. 305 , 236
5 P.3d 24 (stating that the purpose of statutes of limitations “is to limit exposure to
6 criminal prosecution to a certain fixed period of time” (internal quotation marks and
7 citation omitted)). A contrary holding, to us, is not what lawmakers intended by
8 enacting either Sections 30-1-8 or -9, nor a reasonable interpretation of applicable
9 precedent.
10 {27} Martinez and Collier do not require a different rule or acknowledgement of a
11 limited exception. Those cases pertain to facts in which a timely complaint or
12 indictment was filed, but the convictions ultimately obtained at trial were based on
13 either a superseding charging document as required by criminal procedure or
14 allegations not expressly charged but “necessarily” included lesser offenses
15 associated with a timely charged felony crime. See Martinez, 1978-NMCA-095 ,
16 ¶¶ 2, 9-12; Collier, 2013-NMSC-015, ¶¶ 4-7 . In both cases, there was no lapse
17 between the original charging document, the subsequent one, and the conviction
18 ultimately challenged. Padilla, although analyzing a lapse of merely two months
19 between the initial and subsequent charging document, 2023-NMCA-047 , ¶¶ 2-3,
20 involved a circumstance in which Section 30-1-9 applied—dismissal due to
— 18 —
1 improper venue—yet the subsequent charging document was not “brought within
2 five years” from the commission of the alleged offense, as also required by the
3 tolling statute. It is the latter failure which caused this Court to vacate the defendant’s
4 convictions. Padilla, 2023-NMCA-047 , ¶¶ 10-12. In none of these cases did
5 nonstatutory tolling, in the sense of a paused statute of limitations, apply to extend
6 the statute of limitations.
7 {28} The facts of this case are altogether different from the above cases and
8 illustrate why broader acceptance of nonstatutory tolling is incompatible with
9 Section 30-1-8 and therefore unwarranted. Here, the State voluntarily dismissed the
10 first indictment against Defendant primarily because, although over four years had
11 passed since Defendant committed the crimes in question, the State discovered that
12 it had never tested Victim’s clothing for scientific evidence. Despite this realization,
13 the State still issued its subsequent indictment over fifteen months after it dismissed
14 the first one. These choices represent strategic decisions by the State and constitute
15 the type of delayed, prolonged possibility of prosecution that Section 30-1-8 is
16 specifically designed to guard against.
17 {29} Neither existing precedent nor statutory law permits tolling of the statute of
18 limitations when the State voluntarily dismisses its own charges to obtain more
19 evidence in support of its case. Here, the State filed its second indictment alleging
20 third- and fourth-degree felonies against Defendant five years and seven months
— 19 —
1 after he committed the alleged offenses, which is beyond the time permitted by
2 Section 30-1-8(B). The State has provided us with no viable exception to the statute,
3 jurisprudence, or our rationale as explained above, and Defendant’s third- and
4 fourth-degree felony convictions must, therefore, be vacated.
5 II. Defendant’s Convictions of CSCM Violate Double Jeopardy
6 {30} Defendant next argues that his two remaining convictions of CSCM—Counts
7 3 and 4 for touching Victim’s unclothed vagina and breasts—violate double
8 jeopardy because the underlying acts constitute conduct unitary with CSP (Counts 1
9 and 2). We 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, 202014 NMSC-011, ¶ 43, 470 P.3d 227 . “One of the protections of the Fifth Amendment is
15 the prohibition of multiple punishments for the same offense.” Id. ¶ 44 (internal
16 quotation marks and citation omitted). Such duplicative punishment may arise either
17 through charges alleging multiple violations of an individual statute for a single
18 course of conduct or from instances “in which a defendant is charged with violating
19 different statutes in a single course of conduct.” Id. The latter of these, and the form
20 of double jeopardy violation Defendant argues is present here, is called “double[]
— 20 —
1 description.” See id. Appellate courts review double description claims in a two-part
2 analysis. See id. ¶ 45. First, we must determine whether the conduct underlying each
3 offense is unitary, i.e., conduct sufficiently indistinguishable such that the defendant
4 may not be punished separately for each act committed. See Swafford v. State, 19915 NMSC-043, ¶¶ 25-26, 112 N.M. 3 , 810 P.2d 1223 .
6 {32} Only if the conduct at issue is unitary do we proceed to the second step in our
7 analysis which asks whether the Legislature “intended to create separately
8 punishable offenses.” Id. ¶ 25. Here, however, both Defendant and the State agree
9 that under the facts of the present case, the Legislature did not intend to separately
10 punish unitary conduct underlying convictions for both CSP and CSCM. See State
11 v. Porter, 2020-NMSC-020, ¶ 8 , 476 P.3d 1201 (requiring comparison of the
12 elements of the offense by “looking at the [s]tate’s legal theory of how the statutes
13 were violated”); State v. Mora, 2003-NMCA-072, ¶¶ 2, 19 , 133 N.M. 746 , 69 P.3d 14 256 (stating that based on the elements of the offense, the “[L]egislature has not
15 clearly expressed an intention for multiple punishments for unitary conduct that
16 violates [the CSP and CSCM statutes]”). Thus, the only question is whether
17 Defendant’s touching of Victim’s breasts and vagina was unitary with his
18 penetrative assaults.
19 {33} “A defendant’s conduct is unitary if the acts are not separated by sufficient
20 indicia of distinctness.” State v. Phillips, 2024-NMSC-009 , ¶ 38, 548 P.3d 51
— 21 —
1 (internal quotation marks and citation omitted). New Mexico appellate courts have
2 provided general guidelines that aid our determination regarding whether specific
3 acts are sufficiently distinct in the form of the six so-called “Herron factors”: (1)
4 temporal proximity of charged conduct, (2) location of the victim or victims during
5 each act, (3) existence of any intervening events, (4) sequencing of criminal conduct,
6 (5) the defendant’s intent as evidenced by his conduct and utterances, and (6) the
7 number of victims. See Herron v. State, 1991-NMSC-012 , ¶ 15, 111 N.M. 357 , 805
8 P.2d 624 (announcing the factors in a unit of prosecution, CSPM case); State v.
9 Bernal, 2006-NMSC-050, ¶¶ 15-16 , 140 N.M. 644 , 146 P.3d 289 (listing the Herron
10 factors and explaining that they are applicable in double description, “indicia of
11 distinctness” analyses as well). We note that courts are not limited to consideration
12 of these factors alone. See Swafford, 1991-NMSC-043 , ¶ 28. Rather, they serve as
13 general principles we may consider while the thrust of an “indicia of distinctness”
14 analysis remains “determin[ing] whether the conduct for which there are multiple
15 charges is discrete (unitary) or distinguishable.” See id.
16 {34} Despite continued use of the Herron factors, albeit with varying emphases on
17 different facts in each case, see Bernal, 2006-NMSC-050, ¶ 17 , New Mexico
18 appellate courts have identified several other guiding principles applicable when
19 determining whether a defendant’s conduct is unitary. See, e.g., State v. Begaye,
— 20 —
2023-NMSC-015 , ¶ 14, 533 P.3d 1057 (identifying several cases in which the
— 22 —
1 unitary analysis turns primarily on whether the conduct at issue was “sufficiently
2 distinct as to time, place, or action”). If the acts in question cannot be separated by
3 time and place, “resort must be had to the quality and nature of the acts or to the
4 objects and results involved.” Swafford, 1991-NMSC-043 , ¶ 28. We may also look
5 to the “elements of the charged offenses, the facts presented at trial, and the
6 instructions given to the jury.” Sena, 2020-NMSC-011, ¶ 46 . Another principle
7 established by our case law provides that, “[u]nitary conduct is not present when one
8 crime is completed before another is committed, or when the force used to commit
9 a crime is separate from the force used to commit another crime.” Id. Irrespective of
10 which of the Herron factors or other considerations is deemed controlling in a given
11 case, our case law makes clear that “if it reasonably can be said that the conduct is
12 unitary, then we must conclude that the conduct was unitary.” Phillips, 2024-NMSC13 009, ¶ 38 (internal quotation marks and citation omitted).
14 {35} With the above principles in mind, we turn to the instant case. Defendant
15 asserts that the acts underlying the two counts related to touching Victim’s breast
16 and vagina happened at the same time as the acts underlying the two counts related
17 to separate penetrations. We observe that all of the conduct at issue, Defendant’s
18 penetration of both Victim’s anus and vagina as well as his touching of her breasts
19 and genitals, occurred in Defendant’s bedroom without any identifiable temporal
20 breaks in the overall assault. Defendant and Walker maneuvered Victim into
— 23 —
1 different positions several times throughout the event, during which Defendant
2 transitioned from penetrating Victim’s anus to her vagina with his penis, but the
3 evidence does not reveal that any significant break in time occurred in the sequence
4 of events until the entire episode had ended. Nonetheless, the State argues that
5 Defendant’s touching of Victim’s breasts and vagina were acts separate from the
6 penetrations and are, therefore, not unitary with CSP. It asserts that a contrary
7 conclusion from this Court “would prevent the [s]tate from ever convicting a
8 defendant of multiple sex crimes from a single encounter.” We disagree and explain.
9 {36} The State relies on Sena to argue that Defendant’s contact with Victim’s
10 genitals is sufficiently discrete from the penetration that the acts are not unitary
11 conduct. See 2020-NMSC-011, ¶ 56 (concluding that the conduct underlying the
12 defendant’s convictions of criminal sexual contact (CSC) and CSP were not unitary).
13 Sena, however, involved a circumstance in which the defendant sexually assaulted
14 the victim by penetrating her anus and vagina with his penis then, once finished with
15 that act, fondled the victim’s breasts and penetrated her vagina with his finger. Id.
16 ¶¶ 52, 55. Our Supreme Court concluded that the conduct was not unitary principally
17 because the crimes were separated by time and intervening events and “the battery
18 [the defendant] used to commit the CSP was separate and distinct from the battery
19 he used to commit CSC.” Id. ¶ 56.
— 24 —
1 {37} Here, Defendant touched Victim’s breasts and vagina while he penetrated her
2 with his penis. Unlike in Sena, there was no evidence to support a temporal
3 separation between the conduct supporting Defendant’s convictions of CSP and
4 CSCM. Indeed, at least regarding the vaginal contact, Victim testified that Defendant
5 committed this act to help accomplish penetration. While the force used to touch
6 Victim’s breasts was not necessarily the force Defendant used to penetrate her, no
7 evidence demonstrated that the acts were not committed at the same time and their
8 quality and nature were directly related to Defendant’s penetrative assault on Victim
9 Cf. id. ¶ 46. Thus, we conclude the conduct was unitary.
10 {38} Mora further illustrates our conclusion. See 2003-NMCA-072 , ¶ 18
11 (concluding that the conduct underlying the defendant’s convictions of CSCM and
12 attempted CSPM was unitary). In Mora, the defendant was convicted of CSCM for
13 laying on top of the victim and attempted CSPM for the act of “humping” her. Id. ¶¶
14 3, 18. On appeal, this Court held that the conduct was unitary, reasoning that the
15 “contact and attempted penetration all took place within the same short space of
16 time, with no physical separation between the illegal acts.” Id. ¶ 18. The same is true
17 in this case. Defendant touched Victim’s breasts and genitals while he was
18 penetrating her without any separation between these events. Contrary to the State’s
19 argument, if such was not unitary conduct, the State could potentially charge future
20 defendants with numerous counts of battery for every time they touched a victim
— 25 —
1 during a sexual assault. Put simply, the facts of this case reasonably support a
2 conclusion that Defendant’s conduct was unitary and there is insufficient evidence
3 to establish the requisite indicia of distinctness. Thus, “we must conclude that the
4 conduct was unitary.” See Phillips, 2024-NMSC-009 , ¶ 38 (internal quotation marks
5 and citation omitted). We, therefore, conclude the conduct underlying Defendant’s
6 remaining CSCM convictions (Counts 3 and 4) was unitary with his penetrative
7 assaults of Victim. As such, his convictions of Counts 3 and 4 must be vacated.
8 III. Convictions “In the Alternative”
9 {39} Given our analysis and conclusions thus far in this opinion, Defendant’s only
10 remaining convictions are for Count 1, the alternative to Count 1, Count 2, and the
11 alternative to Count 2. Defendant argues, and the State agrees, that the convictions
12 of both charges in each count violate his constitutional protections against double
13 jeopardy. Although we are not bound by the State’s concession, we agree and
14 conclude that Defendant cannot be punished for both the primary and alternate
15 charges alleged in Counts 1 and 2. See, e.g., State v. Comitz, 2019-NMSC-011, ¶ 31 ,
— 16 —
443 P.3d 1130 (concluding that duplicative convictions for the same criminal acts
17 advanced under different theories violate double jeopardy). Generally, under such
18 circumstances the remedy is to “vacate the conviction carrying the shorter sentence.”
19 State v. Montoya, 2013-NMSC-020, ¶ 55 , 306 P.3d 426 . Here, however, all of the
20 charges in Counts 1 and 2 allege CSPM, a second-degree felony, and the district
— 26 —
1 court’s imposition of other penalties, such as sex offender registration, is not clearly
2 tied to a specific conviction. Thus, we cannot say whether the primary charge in each
3 count or its alternate carry the lesser penalty. We must, therefore, remand the case
4 to the district court so that it can determine which convictions to vacate. See Porter,
— 5 —
2020-NMSC-020, ¶ 42 (“Where, as here, both offenses result in the same degree of
6 felony, the choice of which conviction to vacate lies in the sound discretion of the
7 district court.”). Defendant makes no argument that Counts 1 and 2, alleging CSP of
8 Victim’s vagina and anus, respectively, violate double jeopardy as to each other.
9 Thus, we affirm the district court as to one conviction within each of Counts 1 and
10 2.
11 IV. Juror-Related Claims
12 {40} Defendant lastly advances two arguments related to jury selection and
13 instruction that he claims amount to reversible error either individually or
14 cumulatively. First, Defendant argues that the district court improperly granted the
15 State’s motion to strike a potential juror for cause who did not, in Defendant’s view,
16 demonstrate sufficient bias or partiality to justify granting the State’s motion.
17 Second, Defendant asserts that the district court erred in refusing to issue a curative
18 instruction to the jury after the State made a comment that, according to Defendant,
19 implied that his prior, consensual sex with Victim was unlawful purely because
20 Victim was a minor at the time. Defendant urges that without the curative instruction
— 27 —
1 he proffered, the jury may have been confused, thinking that “statutory rape” was a
2 justifiable basis for convicting Defendant in this case. We address each argument in
3 turn.
4 A. Jury Selection
5 {41} During voir dire, the prosecutor asked, “Does anyone feel that they would not
6 be able to return a conviction if they only heard testimony alone from somebody
7 who was sexually assaulted?” Several prospective jurors responded in the
8 affirmative, variously indicating that they would need more than the testimony of an
9 alleged victim to convict a defendant charged with sexual assault. One such
10 prospective juror (Juror) who Defendant now argues was improperly struck for
11 cause, responded by stating, “When [it’s] just ‘he said, she said,’ it’s very hard to
12 determine the facts and I think those are very important in determining whether guilt
13 is present.” Juror then stated that she could be fair and impartial as it relates to crimes
14 against children—a circumstance about which she had previously expressed
15 potential bias—but her concerns about convicting a defendant based on an alleged
16 victim’s testimony alone were never revisited.
17 {42} The State later moved to strike Juror for cause, arguing that she—along with
18 several others—stated that she “would need more than just testimony.” Defendant
19 responded to the State’s motions by arguing that Jurors’ statements were not “a clear
20 enough indication” that she could not be fair and impartial and that the question itself
— 28 —
1 was unclear. The district court granted the State’s motion to strike Juror, finding that
2 Juror stated she could not decide the case “based on testimony alone.” Defendant
3 argues that granting the State’s motion to strike Juror was error because Juror was
4 “a qualified juror struck without cause.” We disagree and conclude Juror was
5 properly excluded from the jury.
6 {43} “We review the trial court’s rulings regarding the selection of jurors for an
7 abuse of discretion because the trial court is in the best position to assess a juror’s
8 state of mind, based upon the juror’s demeanor and credibility.” State v. Holtsoi,
— 9 —
2024-NMCA-042 , ¶ 5, 547 P.3d 770 (internal quotation marks and citation omitted).
10 “An abuse of discretion exists when the [district] court acted in an obviously
11 erroneous, arbitrary, or unwarranted manner.” Id. (internal quotation marks and
12 citation omitted). “The [district] court, who is listening first hand to counsel’s
13 questions and the panel members’ responses, is in the best position to determine
14 whether voir dire has sufficiently exposed any biases that may preclude jurors from
15 acting fairly and impartially.” State v. Johnson, 2010-NMSC-016, ¶ 34 , 148 N.M. 16 50 , 229 P.3d 523 (internal quotation marks and citation omitted). “We will reverse
17 only if a clear abuse of discretion by the district court in the conduct of voir dire
18 resulted in prejudice to [the] defendant.” Id.
19 {44} Defendant contends that in the circumstance present here—where the district
20 court grants a state’s motion to strike a potential juror who, according to Defendant,
— 29 —
1 should not be stricken—prejudice is impossible to prove beyond merely pointing to
2 the guilty verdict. Defendant, therefore, suggests that this Court adopt a standard of
3 review similar to that which we use in cases where a potential juror’s right to serve
4 on a jury has been impaired, which does not require a showing of prejudice. Cf. State
5 v. Rico, 2002-NMSC-022, ¶ 18 , 132 N.M. 570 , 52 P.3d 942 (“[W]e hold that each
6 [d]efendant is entitled to a new trial because every reasonable effort to accommodate
7 the prospective jurors’ language difficulties, consistent with the provisions of Article
8 VII, Section 3, was not made.”).
9 {45} Defendant’s argument, however, misconstrues the nature of the prejudice at
10 issue in both impartial jury cases, as here, and cases involving a potential juror’s
11 right to serve, as in Rico. See id. In cases such as this, where a defendant alleges that
12 his right to an impartial jury was violated, our inquiry is whether the jury selection
13 process prejudiced the defendant or whether the jury ultimately empaneled was
14 somehow partial. See Johnson, 2010-NMSC-016, ¶ 34 (“We will reverse only if a
15 clear abuse of discretion by the district court in the conduct of voir dire resulted in
16 prejudice to [the] defendant.”); State v. Gardner, 2003-NMCA-107, ¶ 16 , 134 N.M. 17 294, 76 P.3d 47 (“[The d]efendant cannot prevail on appeal unless he demonstrates
18 that the jurors finally selected were biased or prejudiced.”).
19 {46} In cases concerning a potential juror’s right to serve on a jury, on the other
20 hand, the prejudice is to the potential juror impermissibly excused, not to the
— 30 —
1 defendant standing trial. See Rico, 2002-NMSC-022, ¶ 6 (stating that, although
2 “individual jurors’ rights . . . were violated, such a violation would not require a new
3 trial unless we determine that [the d]efendants have standing to assert the jurors’
4 rights” (emphasis added)). The harm to potential jurors in those cases is the inability
5 to exercise a constitutional right, and a defendant making such a claim on behalf of
6 the juror need not, and indeed cannot, prove prejudice beyond the constitutional
7 violation. Here, Defendant suggests that similarly he cannot prove the prejudicial
8 effect of the removal of Juror, who Defendant views was demonstrably impartial.
9 However, as stated above, our inquiry regarding whether Defendant was deprived of
10 his constitutional right to an impartial jury focuses on the selection process and the
11 jury ultimately empaneled, not the excusal of potential jurors who may have been
12 impartial. See Gardner, 2003-NMCA-107, ¶ 17 (“[A d]efendant has a legal right
13 only to impartial jurors, not to the impartial jurors of his choice.” (internal quotation
14 marks and citation omitted)). Thus, we reject Defendant’s argument that he need not
15 establish that he was prejudiced by the dismissal of Juror or that we otherwise apply
16 a different standard of review than abuse of discretion.
17 {47} The record before us indicates that the district court did not abuse its discretion
18 in granting the State’s motion to strike. The State’s question was reasonably directed
19 at identifying jurors who would have difficulty rendering a guilty verdict based on a
20 victim’s testimony alone, which is contrary to established law. See NMSA 1978,
— 31 —
1 § 30-9-15 (1975) (stating that “[t]he testimony of a victim need not be corroborated
2 in prosecutions” for sex crimes). Defendant argues that such a question “primed the
3 jury to believe Victim and culled those who were likely to be more critical.”
4 However, it is a foundational principle of voir dire that district courts and litigants
5 may question prospective jurors about their beliefs that may potentially interfere
6 with their ability to follow the law, such as Section 30-9-15. See State v. Clark, 19997 NMSC-035, ¶ 5, 128 N.M. 119 , 990 P.2d 793 (“[A] juror is properly excludable for
8 cause if the juror’s views would prevent or substantially impair the performance of
9 his or her duties as a juror in accordance with his or her instructions and his or her
10 oath.” (internal quotation marks and citation omitted)).
11 {48} Not only was the question proper, but the district court had adequate reason
12 to strike Juror based on her answer. Juror responded affirmatively to the State’s
13 question regarding whether she would have a difficult time convicting Defendant
14 based on Victim’s testimony alone, which is more than what the law requires. See §
15 30-9-15. Juror was never rehabilitated on this point and nothing in the record before
16 us indicates that she unequivocally stated she could impartially follow the law. As
17 such, the district court’s decision to grant the State’s motion to strike Juror was not
18 “obviously erroneous, arbitrary, or unwarranted,” and it was, therefore, not an abuse
19 of discretion. See Holtsoi, 2024-NMCA-042 , ¶ 5 (internal quotation marks and
20 citation omitted).
— 32 —
1 B. Jury Instruction
2 {49} Defendant next argues that the district court erred when it refused to instruct
3 the jury that Defendant’s prior, consensual sex with Victim was lawful. During trial,
4 Victim testified that she had consensual sex with Defendant three days prior to the
5 incident in question. Defendant admitted this during his testimony as well and the
6 State, in closing argument, stated, “[Defendant] admitted he previously had sex with
7 [Victim], who was a minor.” Defendant objected, arguing that the statement Victim
8 “was a minor . . . gives the implication that [Defendant] committed an . . . illegal
9 act.” Defendant then asked for a curative jury instruction because the prior sex was
10 not illegal and expressed concern that the jury could consider the prior conduct as
11 unlawful during deliberation. The district court denied Defendant’s request, finding
12 that the statement was an accurate reflection of Defendant’s testimony and nothing
13 prevented defense counsel from arguing the prior sex was not illegal during his
14 closing statement. Defendant argues that the district court’s decision not give a
15 curative instruction was error. We disagree.
16 {50} A trial court’s decisions regarding statements made during closing argument
17 are reviewed for an abuse of discretion. See State v. Sosa, 2009-NMSC-056, ¶ 25 ,
— 18 —
147 N.M. 351 , 223 P.3d 348 (“Because trial judges are in the best position to assess
19 the impact of any questionable comment, we afford them broad discretion in
20 managing closing argument.”). As stated above, “[w]e will find that a district court
— 33 —
1 has abused its discretion when it acted in an obviously erroneous, arbitrary, or
2 unwarranted manner.” State v. Ramos-Arenas, 2012-NMCA-117, ¶ 16 , 290 P.3d 733
3 (internal quotation marks and citation omitted). Here, the prosecutor’s statement
4 accurately represented Defendant’s testimony at trial and was a brief comment in a
5 longer list of unrelated admissions made by Defendant. Defendant does not argue
6 that the prosecutor placed further emphasis on Defendant’s prior sex with Victim or
7 otherwise implied that he had engaged in unlawful acts outside those charged. As
8 such, we find no basis to conclude that the district court’s refusal to issue a curative
9 instruction was obviously erroneous or unwarranted. See Sosa, 2009-NMSC-056 ,
10 ¶ 29 (“[T]he general rule is that an isolated comment made during closing argument
11 is not sufficient to warrant reversal.” (internal quotation marks and citation
12 omitted)). We, therefore, conclude that the district court did not err in refusing to
13 give the instruction.
14 C. Cumulative Error
15 {51} Defendant argues that the above, jury-related claims amount to cumulative
16 error requiring reversal. As we have already concluded that the district court did not
17 commit error, we reject this argument. See State v. Samora, 2013-NMSC-038, ¶ 28 ,
— 18 —
307 P3d 328 (“Where there is no error to accumulate, there can be no cumulative
19 error.” (alteration, internal quotation marks, and citation omitted)).
— 34 —
1 CONCLUSION
2 {52} For the reasons set forth above, we remand to the district court to vacate
3 Defendant’s convictions for the following counts as charged in the indictment:
4 Count 3, the alternative to Count 3, Count 4, Count 5, the alternative to Count 5,
5 Count 6, and Count 8. We further remand to the district court to vacate, within its
6 discretion, either the primary charge or the alternate in each of Counts 1 and 2, 5 and
7 to resentence Defendant consistent therewith.
8 {53} IT IS SO ORDERED.
9 _____________________________ 10 J. MILES HANISEE, Judge
11 WE CONCUR:
12 _____________________________ 13 MEGAN P. DUFFY, Judge
14 _____________________________ 15 KATHERINE A. WRAY, Judge
— 5 —
Because we have decided this case on the grounds discussed herein, we decline to consider Defendant’s mooted arguments, including his assertion that he was unlawfully sentenced for Count 5, and that his convictions for Counts 3 and 4 violate double jeopardy as to each other rather than as to his convictions of CSP.
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