State v. Morgan

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 29,479 10 ANTHONY MORGAN, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 13 Teddy L. Hartley, District Judge 14 Gary K. King, Attorney General 15 Andrea Sassa, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Jacqueline L. Cooper, Acting Chief Public Defender 19 Nina Lalevic, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 KENNEDY, Judge. 1 Anthony Morgan (Defendant) appeals from his convictions for criminal sexual 2 penetration in the second degree (CSP II), kidnaping, two counts of aggravated 3 assault, one count of aggravated battery on a household member, and six counts of 4 battery on a household member. Defendant argues that his right to due process was 5 violated because one of the jury verdict forms did not match the jury instructions. 6 Defendant also contends that the kidnaping, the CSP II convictions, and the multiple 7 convictions for battery and assault violated his right to be protected from double 8 jeopardy. Defendant further argues that (1) he was denied his right to a speedy trial, 9 (2) his counsel was ineffective, and (3) there was insufficient evidence to convict him. 10 We address each argument in turn. 11 I. BACKGROUND 12 While at their home on October 15, 2006, Defendant argued with his wife 13 (Victim) upon finding her employee keycard within her belongings. Assuming it was 14 a hotel key, Defendant accused Victim of cheating on him and began to beat her. At 15 some point, Defendant decided to leave their home with Victim in order to verify that 16 the keycard was work-related and not a hotel keycard. Defendant had Victim drive 17 and make two stops within the city of Clovis. 18 At the second location, when Defendant exited the vehicle, Victim drove away 19 because she was afraid of him. Defendant jumped onto the hood of the vehicle and — 2 — 1 eventually regained control of the vehicle. After reentering the vehicle, Defendant 2 beat Victim. Subsequently, Defendant drove Victim to a remote location in the county 3 on a dirt road between 11:00 p.m. and midnight. At the remote location, Defendant 4 beat and raped Victim. After the rape ended, Defendant and Victim returned in the 5 vehicle to their home. There, Defendant stabbed Victim in the leg with a claw-like 6 garden tool. 7 The next morning, Defendant prevented Victim from leaving the home to go 8 to work, and he repeatedly choked her until she lost consciousness. In addition, 9 Defendant twice held a gun to Victim’s head. Toward the end of the day, when 10 Victim was packing a bag of clothes to leave their home, Defendant spit on her. 11 Defendant was charged and convicted of criminal sexual penetration in the 12 second degree (CSP II), kidnaping, two counts of aggravated assault, one count of 13 aggravated battery on a household member, and six counts of battery on a household 14 member. Defendant now appeals. 15 II. DISCUSSION 16 A. Defendant’s Right to Due Process Was Violated by an Error in the Jury 17 Verdict Form 18 Defendant argues that his right to due process was violated because the jury 19 instructions for Count 5 and its lesser-included offense do not match the jury verdict 20 form. Because Defendant failed to preserve this issue, we review for fundamental — 3 — 1 error. State v. Benally, 2001-NMSC-033, ¶ 12 , 131 N.M. 258 , 34 P.3d 1134 ; see Rule 2 12-216(B)(2) NMRA. “Parties alleging fundamental error must demonstrate the 3 existence of circumstances that ‘shock the conscience’ or implicate a fundamental 4 unfairness within the system that would undermine judicial integrity if left 5 unchecked.” State v. Cunningham, 2000-NMSC-009 , ¶ 21, 128 N.M. 711 , 998 P.2d 6 176 (citation omitted). “Fundamental error will only be involved to prevent a plain 7 miscarriage of justice where the defendant has been deprived of rights essential to the 8 defense.” State v. Jaramillo, 85 N.M. 19, 20 , 508 P.2d 1316, 1317 (Ct. App. 1973). 9 This case is not one where Defendant’s innocence appears indisputable. See State v. 10 Sanders, 54 N.M. 369, 379 , 225 P.2d 150, 157 (1950) (explaining that one purpose 11 for fundamental error analysis is to protect “those whose innocence appears 12 indisputably or open to such question that it would shock the conscience to permit a 13 conviction to stand”). Thus, our focus is directed “on process and the underlying 14 integrity of our judicial system.” State v. Barber, 2004-NMSC-019 , ¶ 16, 135 N.M. 15 621, 92 P.3d 633 . We must be convinced that the error at trial resulted in “grave 16 doubts concerning the validity of the verdict.” State v. Barraza, 110 N.M. 45, 49 , 791 17 P.2d 799 , 803 (Ct. App. 1990). 18 Here, the jury instructions for Count 5 provide instruction for “aggravated 19 battery with a deadly weapon” and a lesser-included offense instruction for “battery — 4 — 1 on a household member.” The aggravated battery with a deadly weapon instruction 2 did not require Victim to be a household member, nor did it identify the crime as 3 aggravated battery against a household member. [Id.] Yet, the verdict form for Count 4 5 states: “We find . . . [D]efendant [guilty] of Count 5 [a]ggravated [b]attery [a]gainst 5 a [h]ousehold [m]ember.” (Emphasis omitted.) Even more problematic, there is no 6 verdict form for the lesser-included crime of battery on a household member 7 anywhere in the record.1 8 We analogize this verdict form issue to our fundamental error analysis with 9 regard to jury instructions where we “determine if a reasonable juror would have been 10 confused or misdirected by an error in the jury instructions.” State v. Davis, — 11 — 2009-NMCA-067, ¶ 13 , 146 N.M. 550 , 212 P.3d 438 . To find fundamental error, the 12 jury instructions must be “so confusing and incomprehensible that a court cannot be 13 certain that the jury found the essential elements under the facts of the case.” State v. 14 Caldwell, 2008-NMCA-049, ¶ 24 , 143 N.M. 792 , 182 P.3d 775 (internal quotation 15 marks and citation omitted). 16 In jury instruction error cases, we have found fundamental error where there 17 was juror confusion due to instructions that omitted an essential element of a crime. 18 State v. Osborne, 111 N.M. 654, 662 , 808 P.2d 624, 632 (1991); State v. Castro, — 1 — 19 We note that Defendant received a lesser-included offense instruction for 20 kidnaping, and the record does contain a verdict form for that lesser-included offense. — 5 — — 1 — 2002-NMCA-093, ¶ 8 , 132 N.M. 646 , 53 P.3d 413 ; State v. Armijo, 1999-NMCA-087 , 2 ¶ 6, 127 N.M. 594 , 985 P.2d 764 ; State v. Acosta, 1997-NMCA-035, ¶ 21 , 123 N.M. 3 273, 939 P.2d 1081 . We have also reversed due to inconsistencies between the crime 4 as charged in the indictment and the crime as described in the jury instructions and 5 verdict form. In Davis, the defendant was indicted for intentional child abuse, but the 6 district court instructed the jury on both negligent and intentional child abuse. — 7 — 2009-NMCA-067, ¶¶ 5-16 . There, the jury found the defendant guilty of child abuse 8 without designating whether it was negligent or intentional. Id. ¶ 6. We held that 9 “[a]llowing [the d]efendant’s conviction to stand where there is the possibility that he 10 was convicted of a crime for which he was not charged would result in a miscarriage 11 of justice.” Id. ¶ 16. 12 We likewise conclude here that the inconsistency between the jury instructions 13 and the verdict form amounts to fundamental error, as a reasonable juror would have 14 been confused by the verdict form provided in this case. The verdict form only gave 15 the option of convicting or finding Defendant not guilty of a crime upon which the 16 jury was never instructed. The verdict form only permitted the jury to find Defendant 17 guilty of aggravated battery upon a household member—an amalgamation of the 18 instructions for aggravated battery with a deadly weapon and battery upon a 19 household member. The jury was not even provided with the verdict form for the — 6 — 1 misdemeanor battery upon a household member, for which they had received a step2 down instruction. For these reasons, we cannot tell whether the jury intended to 3 convict Defendant of aggravated battery with a deadly weapon or battery on a 4 household member. This gives us grave doubts about the validity of the district 5 court’s interpretation of the verdict and subsequent sentencing of Defendant. We hold 6 that this implicates Defendant’s due process right to a fair trial. Nonetheless, it is 7 clear that the jury intended to convict Defendant of one of these two crimes. Because 8 the jury was instructed about the lesser-included offense, and Defendant had an 9 opportunity to present a defense with regard to it, we reduce Defendant’s conviction 10 for aggravated battery on a household member to the lesser-included offense of 11 battery on a household member. Compare State v. Haynie, 116 N.M. 746, 747-48 , — 12 — 867 P.2d 416, 417-18 (1994) (holding that an appellate court has the authority to 13 remand for entry of judgment and resentencing when evidence supports a lesser14 included offense), and State v. Notah-Hunter, 2005-NMCA-074, ¶¶ 25-29 , 137 N.M. 15 597, 113 P.3d 867 (holding that an appellate court may remand for entry of judgment 16 and resentencing when evidence supports a lesser-included offense, and the defendant 17 had sufficient notice of and presented a defense to the lesser-included offense), with 18 State v. Villa, 2004-NMSC-031, ¶¶ 8-18 , 136 N.M. 367 , 98 P.3d 1017 (concluding 19 that an appellate court may not remand for entry of judgment of conviction and — 7 — 1 resentencing for a lesser-included offense when the jury was not instructed on that 2 lesser offense at trial). Because we reduce this felony conviction to a misdemeanor, 3 we also reverse the four-year enhancement on Count 5 made pursuant to the Habitual 4 Offender Act. 5 B. Double Jeopardy Violations 6 We review double jeopardy claims de novo. State v. Andazola, — 7 — 2003-NMCA-146, ¶ 14 , 134 N.M. 710 , 82 P.3d 77 . “However, where factual issues 8 are intertwined with the double jeopardy analysis, we review the trial court’s fact 9 determinations under a deferential substantial evidence standard of review.” State v. 10 Rodriguez, 2006-NMSC-018, ¶ 3 , 139 N.M. 450 , 134 P.3d 737 . We will not reweigh 11 the evidence or “substitute our judgment for that of the trial court, and all reasonable 12 inferences supporting the fact findings will be accepted even if some evidence may 13 have supported a contrary finding.” Id. (citation omitted). 14 The right to be free from double jeopardy “protects against [(1)] a second 15 prosecution for the same offense after acquittal[,] . . . [(2)] a second prosecution for 16 the same offense after conviction[, a]nd . . . [(3)] multiple punishments for the same 17 offense.” State v. Rodriguez, 2005-NMSC-019, ¶ 6 , 138 N.M. 21 , 116 P.3d 92 18 (internal quotation marks and citation omitted). Within the category of multiple 19 punishments, there are two types of situations prohibited by the double jeopardy — 8 — 1 clause: double description cases and unit of prosecution cases. State v. DeGraff, — 2 — 2006-NMSC-011, ¶ 25 , 139 N.M. 211 , 131 P.3d 61 . In double description cases, the 3 defendant is improperly charged with multiple violations of multiple statutes for 4 unitary conduct. Id. In unit of prosecution cases, the defendant is wrongfully charged 5 with multiple violations of the same statute for unitary conduct. Id. Here, Defendant 6 raises a double description issue with regard to the CSP II and kidnaping convictions, 7 as he contends that there was unitary conduct and each crime was enhanced in degree 8 by the other. Defendant also raises unit of prosecution issues with relation to his 9 multiple convictions for aggravated assault, battery on a household member, and 10 battery on a household member with a deadly weapon. We address each set of 11 arguments in turn. 12 1. Double Description Charges: Convictions for CSP II and Kidnaping 13 Double jeopardy bars convictions where (1) the underlying conduct of the 14 offenses is unitary, and (2) the Legislature did not intend to punish the conduct 15 separately. State v. Montoya, 2011-NMCA-074, ¶ 30 , 150 N.M. 415 , 259 P.3d 820 . 16 We first engage in an analysis of whether the underlying conduct may be viewed as 17 a single transaction. If it is not unitary, the convictions do not present a double 18 jeopardy issue, and we inquire no further. Swafford v. State, 112 N.M. 3, 14 , 810 P.2d 19 1223, 1234 (1991). “The issue of whether conduct is unitary under the first part of a — 9 — 1 [double jeopardy] analysis requires a careful review of the evidence.” State v. 2 Armendariz, 2006-NMCA-152, ¶ 7 , 140 N.M. 712 , 148 P.3d 798 . In analyzing 3 whether the conduct is unitary, we “consider whether the facts presented at trial 4 establish that the jury reasonably could have inferred independent factual bases for the 5 charged offenses.” State v. Schackow, 2006-NMCA-123, ¶ 18 , 140 N.M. 506 , 143 6 P.3d 745 (internal quotation marks and citation omitted). 7 “Conduct is not unitary if sufficient indicia of distinctness separate the 8 transaction into several acts. In making this determination, we evaluate separations 9 in time and space as well as the quality and nature of the acts or the results involved.” 10 Montoya, 2011-NMCA-074, ¶ 31 (internal quotation marks and citations omitted). 11 “[S]ufficient indicia of distinctness [exist] when the conviction is supported by at least 12 two distinct acts or forces, one which completes the first crime and another which is 13 used in conjunction with the subsequent crime. . . . [T]he key inquiry is whether the 14 same force was used to commit both crimes.” Armendariz, 2006-NMCA-152, ¶ 7 . 15 The type of force applied for each act is essential here because “[kidnaping] cannot 16 be charged out of every CSP . . . without some force, restraint, or deception occurring 17 either before or after the sexual penetration.” State v. Crain, 1997-NMCA-101, ¶ 21 , — 18 — 124 N.M. 84 , 946 P.2d 1095 . “When there is evidence that the perpetrator forcibly 19 abducted the victim before attempting sexual penetration or continued to use force or — 10 — 1 restraint after the sex act was completed, however, we have rejected the proposition 2 that the [kidnaping] is indistinguishable from the sex offense.” State v. Allen, 20003 NMSC-002, ¶ 67, 128 N.M. 482 , 994 P.2d 728 . Where, as here, sufficient evidence 4 demonstrates that the counts were sufficiently distinct, we will uphold Defendant’s 5 convictions. State v. Dombos, 2008-NMCA-035, ¶ 23 , 143 N.M. 668 , 180 P.3d 675 ; 6 State v. Martinez, 2007-NMCA-160, ¶ 17 , 143 N.M. 96 , 173 P.3d 18 . 7 In this case, sufficient evidence shows that Defendant committed two factually 8 distinct kidnapings, one of which clearly supported his CSP II conviction. Moreover, 9 the CSP had an independent and different factual basis from the kidnapings. Each of 10 these three acts was distinct in time, location, and force. 11 To find Defendant guilty of kidnaping, the jury had to find beyond a reasonable 12 doubt that on October 15, 2006, “[(1)] . . . [D]efendant restrained [or] transported 13 [Victim] by force or intimidation; [and (2)] . . . [D]efendant intended to hold [Victim] 14 against her will to inflict physical injury or sexual offen[s]e [against her.]” Kidnaping 15 is complete upon Defendant’s restraint of Victim with the intent to inflict a sexual 16 offense or injury. State v. Kersey, 120 N.M. 517, 523 , 903 P.2d 828, 834 (1995) 17 (“Although [kidnaping] is a continuing offense, the conduct required to establish 18 [kidnaping] was completed at the time [the d]efendant, with the intent to hold [the 19 victim] for service, unlawfully and forcibly took him from the school.”). Defendant’s — 11 — 1 intent to either injure or inflict a sexual offense upon Victim is evidenced by 2 Defendant’s actions toward Victim. State v. Armijo, 1997-NMCA-080, ¶ 20 , 123 3 N.M. 690 , 944 P.2d 919 (holding that the jury could infer the defendant’s intent from 4 his actions); State v. Riley, 2010-NMSC-005, ¶ 20 , 147 N.M. 557 , 226 P.3d 656 . 5 Here, Defendant completed the first kidnaping just outside their home within 6 the city of Clovis when he transported Victim by forcing her to drive him to two 7 locations. This transportation was accomplished by intimidation, as Defendant beat 8 Victim immediately prior to ordering her to drive. In addition, Defendant’s intent to 9 injure Victim can be inferred from his violent actions toward her. Before they got into 10 the vehicle, Defendant repeatedly punched Victim in the head and face. This first 11 kidnaping ended when Victim briefly escaped from Defendant by driving away when 12 he exited the vehicle at the second location. At this point in time, Defendant had no 13 restraint or control over Victim. 14 The second kidnaping, which was related to the CSP II conviction, occurred 15 when Defendant took control of the vehicle and of Victim after she escaped. This 16 kidnaping involved both restraint and transportation of Victim by force. Defendant 17 restrained Victim by taking control of the vehicle, physically forcing her into the 18 passenger seat and beating her. He then transported her to a remote location. 19 Furthermore, this second kidnaping began in an entirely different part of the city of — 12 — 1 Clovis than where the first began. It then continued through the completion of the 2 rape, which happened in a remote location outside of Clovis somewhere within Curry 3 County. Defendant’s intent to commit a sexual offense against or injure Victim can 4 be inferred by his beating and raping her during this kidnaping. After taking control 5 of the vehicle, Defendant smashed Victim’s head into both the windshield and 6 dashboard of the vehicle, bit her, punched her, and then anally raped her. 7 We conclude that these kidnapings are factually distinct. Each took place in a 8 different location, at a different time of the day, and by the application of different 9 types of force toward Victim—intimidation and physical brute force. Moreover, the 10 requisite intent for each kidnaping is inferred from different acts of violence that 11 Defendant committed against Victim. 12 We next evaluate whether the CSP II (commission of a felony) is distinct from 13 the first kidnaping. To be guilty of this crime, the jury had to find that, on October 15, 14 2006, “[(1)] . . . [D]efendant caused the insertion, to any extent, of his penis into the 15 anus of [Victim]; [and (2)] . . . [D]efendant committed the act during the commission 16 of a [kidnaping].” 17 Victim testified that Defendant penetrated her anus with his penis after he drove 18 her to a remote location outside of Clovis. This testimony describes the CSP taking 19 place while the second kidnaping was still on-going. The force used to commit the — 13 — 1 CSP II was different in character than the force used to commit the first kidnaping. 2 Defendant accomplished the first kidnaping by hitting, punching, and intimidating 3 Victim. In contrast, the CSP II was accomplished by coercion rather than physical 4 force. After arriving at the remote location outside of Clovis, Victim told Defendant 5 that she would do anything to make him stop. Defendant indicated to Victim that he 6 wanted to have sex with her. Victim then removed her own clothes and positioned 7 herself over the front seat of the vehicle without any physical force from Defendant. 8 Defendant accomplished the CSP II through intimidation and the implied threat of 9 further violence. 10 Because the underlying conduct applicable to the CSP II and first kidnaping 11 differ in time, location, and the type of force used, the conduct was not unitary. Thus, 12 the convictions for these crimes do not violate Defendant’s right to be protected from 13 double jeopardy. 14 2. Unit of Prosecution Charges: Multiple Assault and Battery Convictions 15 Defendant argues that his convictions for two counts of aggravated assault, one 16 count of aggravated battery on a household member, and six counts of battery on a 17 household member violated his right to be protected from double jeopardy because the 18 underlying conduct for each was unitary. Defendant contends that the events “were 19 one continuous act, during which [Defendant]’s intent never changed[, and a]ny acts — 14 — 1 that took place during that time should provide the basis for one count of aggravated 2 battery and one count of aggravated assault.” Because we have reduced the 3 aggravated battery conviction to battery on a household member, we will treat that 4 charge as another battery on a household member for unit of prosecution purposes, but 5 refer to the charge as aggravated battery for discussion purposes. 6 Defendant presents this as a unit of prosecution inquiry, arguing that double 7 jeopardy requires that all seven charged batteries be treated as one count of battery, 8 and both aggravated assaults charged to be treated as one count of aggravated assault. 9 Thus, we must “determin[e] whether the State’s charging pattern suffered from 10 multiplicity, [by] first . . . identify[ing] the appropriate unit of prosecution.” Herron 11 v. State, 111 N.M. 357, 359 , 805 P.2d 624, 626 (1991) (footnote omitted). We review 12 the statute for guidance as to what constitutes the unit of prosecution. 13 If the statutory language spells out the unit of prosecution, then we 14 follow the language, and the unit-of-prosecution inquiry is complete. If 15 the language is not clear, . . . we determine whether a defendant’s acts 16 are separated by sufficient indicia of distinctness to justify multiple 17 punishments under the same statute. 18 State v. Bernal, 2006-NMSC-050, ¶ 14 , 140 N.M. 644 , 146 P.3d 289 (internal 19 quotation marks and citations omitted). 20 a. The Statutes Fail to Provide Guidance as to the Unit of Prosecution — 15 — 1 We turn now to the statutes in determining the appropriate unit of prosecution. 2 In New Mexico, aggravated assault consists of “unlawfully assaulting or striking at 3 another with a deadly weapon[.]” NMSA 1978, § 30-3-2(A) (1963). The definition 4 of assault is “an attempt to commit a battery upon the person of another [or] any 5 unlawful act, threat or menacing conduct which causes another person to reasonably 6 believe that he is in danger of receiving an immediate battery[.]” NMSA 1978, § 307 3-1(A) & (B) (1963). Thus, the elements of aggravated assault are the assault itself 8 and Defendant’s use of a deadly weapon. The statute provides us with no guidance 9 in determining how many prosecution units are involved in this case based upon 10 different assaults or different weapons. 11 Likewise, the battery against a household member statute provides little 12 guidance as to the unit of prosecution. “Battery against a household member consists 13 of the unlawful, intentional touching or application of force to the person of a 14 household member, when done in a rude, insolent[,] or angry manner.” NMSA 1978, 15 § 30-3-15(A) (2001). Thus, the act of battery is composed of unlawful touching or an 16 application of force to the person of another coupled with the appropriate intent. The 17 battery statutes do not indicate how to differentiate separate batteries based upon 18 intent, touching, or applications of force. 19 b. The Facts Demonstrate That Some Underlying Conduct is Distinct and 20 Some is Unitary — 16 — 1 Because neither the assault nor the battery statutes provide guidance as to the 2 unit of prosecution, we must evaluate whether sufficient indicia of distinctness justify 3 multiple punishments under the same statute. We perform a substantially similar 4 unitary conduct analysis for unit of prosecution analysis as we did above for double 5 description. Bernal, 2006-NMSC-050, ¶ 16 . “In each case, we attempt to determine, 6 based upon the specific facts . . . , whether a defendant’s activity is better 7 characterized as one unitary act, or multiple, distinct acts, consistent with legislative 8 intent.” Id. We analyze whether there is sufficient indicia of distinctness to separate 9 the transaction into several acts by “looking at (1) temporal proximity of the acts; (2) 10 location of the victim during each act; (3) existence of an intervening act; (4) 11 sequencing of the acts; (5) the defendant’s intent as evidenced by his conduct and 12 utterances; and (6) the number of victims.” State v. Garcia, 2009-NMCA-107, ¶ 10 , — 13 — 147 N.M. 150 , 217 P.3d 1048 . First, we examine the two assault charges. Then, we 14 will evaluate the six battery charges for unitary conduct. 15 i. Assault Charges 16 The State charged Defendant with two counts of aggravated assault by use of 17 a deadly weapon. The jury instruction for the first count required the jury to find that 18 on October 16, 2006, “[D]efendant pointed a handgun at the head of [Victim.]” The 19 jury instructions identified the second count as the instance when, on October 16, — 17 — 1 2006, “[D]efendant put a handgun in the mouth of [Victim.]” The evidence informs 2 us that the first assault occurred after Victim could not provide Defendant with her ex3 boyfriend’s address. When she conveyed that she did not know his address, 4 Defendant held the gun to Victim’s head as she was driving the vehicle. While 5 holding the gun to her head, he insisted that she tell him where her ex-boyfriend lived. 6 Sometime later, when Victim had stopped the vehicle at a stop sign, Defendant told 7 her to open her mouth, and he placed the handgun in her mouth, repeating that she 8 “was [going] to quit playing with him.” 9 We conclude that the facts establish that the assaults are distinct. Although both 10 assaults occurred in the same vehicle within what seems to be a short period of time, 11 the evidence provided by the State sufficiently distinguishes the assaults in the manner 12 of their commission, and the fact that they were not a continuous act. Placing the gun 13 to Victim’s head while driving and then waiting until she stopped the vehicle to put 14 the gun in her mouth are made distinct by a lapse of time, the act of waiting for the 15 vehicle to stop, and different methods of committing the assault. Thus, we conclude 16 that the underlying conduct for the assault charges was not unitary and affirm both 17 convictions. 18 ii. Battery Charges — 18 — 1 Defendant also challenges his charges for one count of aggravated battery and 2 six counts of battery on a household member, arguing that the conduct was unitary and 3 that only one count of battery on a household member should have been charged. The 4 jury instructions clarify which acts were attributable to the charged batteries. On the 5 charged count of aggravated battery, the jury was instructed that it must find that, on 6 October 15, 2006, “[D]efendant touched or applied force to [Victim] with a deadly 7 weapon . . . [using] a garden tool.” The four jury instructions for battery upon a 8 household member, occurring on October 15, 2006, required that the jury find that 9 “[(1)] . . . [D]efendant intentionally touched or applied force to [Victim] by hitting her 10 in the face while he was combing her hair; [(2)] . . . [D]efendant intentionally touched 11 or applied force to [Victim] by striking her head into the dash board of a car; [(3)] . . . 12 [D]efendant intentionally touched or applied force to [Victim] by biting her on the 13 shoulder; [and (4)] . . . [D]efendant intentionally touched or applied force to [Victim] 14 by pushing her head into the windshield of a [vehicle.]” The jury instructions for 15 battery on a household member, occurring on October 16, 2006, required the jury to 16 find that “[D]efendant intentionally touched or applied force to [Victim] by choking 17 her[,]” and “[D]efendant intentionally touched or applied force to [Victim] by spitting 18 in her face[.]” — 19 — 1 For convenience, we address each battery in chronological order to determine 2 whether each is distinguishable by time, location, intervening events, and intent. The 3 first charged battery occurred at their home, sometime in the afternoon, when 4 Defendant hit Victim in the face while combing her hair. At this point in time, 5 Defendant accused Victim of cheating on him, evidencing his motivation for hitting 6 her. Between the first and second batteries, Defendant forced Victim to drive to two 7 different locations. At the second location, Victim temporarily escaped Defendant’s 8 control by driving away when he exited the vehicle. Upon regaining control of Victim 9 and the vehicle, Defendant committed the second battery by pushing her head into the 10 dashboard of the vehicle. From the intervening events, we conclude that substantial 11 time and distance accumulated between the first and second batteries. Defendant’s 12 motive also appears to have changed as he beat Victim because he was angry that she 13 drove away. 14 The third and fourth batteries happened after Defendant drove Victim to a 15 remote location on a dirt road in Curry County between 11 p.m. and midnight. There, 16 he bit Victim on the shoulder. Defendant pushed Victim’s head into the windshield, 17 cracking the glass. These two events clearly differ in time and location from the prior 18 batteries, as they occurred after Defendant drove Victim outside of the city limits to 19 a remote location. Thus, we conclude that the conduct at the remote location was — 20 — 1 distinct from that which occurred within the city. With regard to the third and fourth 2 batteries, we have difficulty separating the biting and the pushing into two separate 3 batteries. Victim’s testimony with regard to Defendant biting and pushing her into the 4 windshield fails to provide us with an intervening event, lapse of time, change in 5 location, or change in his intent. Both biting and pushing occur at the remote location 6 within what appears to be a short span of time. It is not even clear if the biting or the 7 pushing occurred first in the sequence of events. Thus, these should merge into one 8 count. 9 The fifth battery occurred next in the sequence of events. After Defendant had 10 anal sex with Victim, he stopped beating her, and they returned to their home. There, 11 Defendant told Victim that he was going to hurt her leg because she hurt his when she 12 forced him to jump on the hood of the vehicle earlier that day. Defendant then 13 stabbed Victim in her left calf with a garden tool. This battery is clearly distinct from 14 those that preceded it. The intervening events of the rape and the drive from the 15 remote location outside of Clovis to their home distinguish the fifth battery from the 16 other batteries in location and time. In addition, Defendant’s reason for beating 17 Victim substantially changed. With regard to this battery, Defendant stabbed Victim 18 with a garden tool in retaliation for injuries he sustained earlier in the day. The other — 21 — 1 batteries lack this intent to obtain revenge. Thus, we conclude that the fifth battery 2 was distinct. 3 The last two counts occurred the next day on October 16. That morning, 4 Defendant refused to let Victim go to work. Rather, he took her to magistrate court 5 with him where he was scheduled to meet his defense attorney. After Defendant met 6 with the attorney, they returned to their home. Defendant then began rifling through 7 Victim’s possessions and cell phone. Defendant found an old photo of Victim with 8 an ex-boyfriend on her phone and again accused her of cheating on him. Defendant 9 then began choking Victim. He repeatedly choked her until she lost consciousness, 10 slapped her to wake her up, and then choked her again. We conclude that this battery 11 stands alone from the others as distinct. A great deal of time passes between the 12 previous battery and the choking, as Defendant slept through the night and then went 13 to magistrate court between the batteries. Moreover, Defendant’s intention no longer 14 was to hurt Victim in retaliation for his leg injuries. As evidenced by his statements 15 that prompted the battery, Defendant choked Victim because he believed she was 16 cheating. 17 Finally, the last battery occurred when Defendant spit in Victim’s face when she 18 was packing to leave their home. After the choking incident, but before this last 19 battery, Defendant obtained a handgun, had Victim drive him to her ex-boyfriend’s — 22 — 1 house, and held the handgun twice to her head. After Defendant returned home with 2 Victim and she began to pack her bag, he spit in her face. This final battery is 3 separated by significant time and several events from the preceding batteries. 4 Defendant’s state of mind also appears to have changed, as he no longer prevented 5 Victim from leaving their home unaccompanied. 6 In conclusion, we hold that one of Defendant’s battery on a household member 7 convictions violates double jeopardy. Nonetheless, Defendant argues that this case 8 as a whole resembles the facts in State v. Mares, 112 N.M. 193, 199 , 812 P.2d 1341 , 9 1347 (Ct. App. 1991) and, thus, we should find that all of the assault and battery 10 conduct was a unitary violent rampage. In Mares, we held that “[t]he victim’s 11 testimony lacked detail. . . . These incidents took place over one violent rampage with 12 little time between offensive contacts.” Id. at 199-200 , 812 P.2d at 1347-48 . We held 13 that we were unable to differentiate between the contacts and that using various 14 methods to beat the victim was not sufficient evidence for the district court to 15 conclude that there were separate attacks. Id. at 200 , 812 P.2d at 1348 . In contrast, 16 evidence in the case before us today provides us with great detail about each battery. 17 Defendant’s violent acts spanned two days, occurred in several different locations, and 18 were separated by periods of time during which he ceased to act violently. The motive — 23 — 1 for his actions also appears to have varied from battery to battery. Thus, we conclude 2 that this was not one violent rampage like that which occurred in Mares. 3 For the reasons stated above, we vacate Defendant’s Count 9 battery of a 4 household member conviction, which dealt with him pushing Victim into the 5 windshield of a vehicle. — 24 — 1 C. Defendant Was Not Denied His Right to a Speedy Trial 2 Defendant contends that his right to a speedy trial was violated. “[T]he initial 3 inquiry in speedy trial analysis is a determination as to whether the length of pretrial 4 delay is presumptively prejudicial. [A] presumptively prejudicial length of delay is 5 simply a triggering mechanism, requiring further inquiry into the [four] Barker 6 factors.” State v. Montoya, 2011-NMCA-074, ¶ 10 , 150 N.M. 415 , 259 P.3d 820 . If 7 the delay is presumptively prejudicial, we balance four factors to determine whether 8 a speedy trial violation has occurred. The factors to be considered are “(1) the length 9 of delay, (2) the reason for delay, (3) the defendant’s assertion of the right, and (4) 10 prejudice to the defendant.” State v. Plouse, 2003-NMCA-048, ¶ 34 , 133 N.M. 495 , — 11 — 64 P.3d 522 . “In considering each of these factors, we defer to the [district] court’s 12 factual findings[,] but review de novo the question of whether [the d]efendant’s 13 constitutional right [to a speedy trial] was violated.” State v. Brown, 2003-NMCA14 110, ¶ 11, 134 N.M. 356 , 76 P.3d 1113 . 15 In this case, Defendant contends that the pretrial delay was twenty-six months 16 and, hence, presumptively prejudicial. See State v. Garza, 2009-NMSC-038 , ¶¶ 47-48 — 17 — 146 N.M. 499 , 212 P.3d 387 (holding that twelve months is presumptively prejudicial 18 for simple cases, fifteen months is presumptively prejudicial for intermediate cases, 19 and eighteen months is presumptively prejudicial for complex cases). In contrast, the — 25 — 1 State argues that the delay lasted for approximately five and one half months. Even 2 if we assume the delay was presumptively prejudicial, we conclude that Defendant’s 3 speedy trial right was not violated because Defendant’s argument ultimately fails the 4 Barker factors. 5 In State v. Garza, our Supreme Court held that with regard to the Barker 6 factors, “a defendant must show particularized prejudice of the kind against which the 7 speedy trial right is intended to protect.” 2009-NMSC-038, ¶ 39 , 146 N.M. 499 , 212 8 P.3d 387 . “The United States Supreme Court has identified three interests under 9 which we analyze prejudice to the defendant: ([1]) to prevent oppressive pretrial 10 incarceration; ([2]) to minimize anxiety and concern of the accused; and ([3]) to limit 11 the possibility that the defense will be impaired.” Id. ¶ 35 (internal quotation marks 12 and citation omitted). With regard to the oppressive pretrial incarceration and the 13 anxiety and concern of the accused, “[s]ome degree of oppression and anxiety is 14 inherent for ever[y] defendant who is jailed while awaiting trial.” Id. (alterations in 15 original) (internal quotation marks and citation omitted). Therefore, we only weigh 16 this factor in the defendant’s favor when the oppressiveness and anxiety suffered is 17 undue. Id. Furthermore, “[t]he oppressive nature of the pretrial incarceration depends 18 on the length of incarceration, whether the defendant obtained release prior to trial, — 26 — 1 and what prejudicial effects the defendant has shown as a result of the incarceration.” 2 Id. 3 Defendant has the burden to demonstrate and substantiate prejudice. Id. ¶¶ 354 37. In the present case, Defendant asserts that he “has in actuality been prejudiced by 5 the delay in this matter” without providing us any substantiation for this claim. 6 Defendant has not pointed out what witness was unable to testify accurately, or how 7 that impacted his case. Defendant also fails to demonstrate how his pretrial 8 incarceration was undue or oppressive. We conclude that Defendant has not met his 9 burden, as he has not made a particularized showing of prejudice. See In re Ernesto 10 M., Jr., 1996-NMCA-039 , ¶ 10, 121 N.M. 562 , 915 P.2d 318 (“An assertion of 11 prejudice is not a showing of prejudice.”). 12 We note that a defendant is not required to make a particularized showing of 13 prejudice where the other Barker factors weigh heavily in his favor. Garza, 200914 NMSC-038, ¶ 39 (stating that “if the length of delay and the reasons for the delay 15 weigh heavily in defendant’s favor and defendant has asserted his right and not 16 acquiesced to the delay, then the defendant need not show prejudice for a court to 17 conclude that the defendant’s right has been violated”). However, in the instant case, 18 Defendant alleges a delay of twenty-six months. We conclude that this period of time 19 is insufficient to weigh heavily in Defendant’s favor. See id. ¶ 24 (citing United — 27 — 1 States v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir. 2003) for the proposition that 2 a three-year and nine-month delay was too short to weigh heavily in the defendant’s 3 favor). Because the three other Barker factors must weigh heavily in Defendant’s 4 favor, and the length of delay factor does not weigh in Defendant’s favor, we do not 5 need to analyze the reason for the delay or Defendant’s assertion of his right to a 6 speedy trial. As a result, we hold that Defendant’s failure to demonstrate a 7 particularized showing of prejudice is determinative. Defendant’s speedy trial right 8 was not violated. 9 D. Defendant Fails to Show How His Counsel Was Ineffective 10 Defendant contends that his trial counsel was ineffective for failing to file a 11 motion to dismiss for a speedy trial violation. For Defendant to establish a prima facie 12 case of ineffective assistance of counsel, he must show that (1) his counsel’s 13 performance fell below that of a reasonably competent attorney, and (2) he was 14 prejudiced by the deficient performance. State v. Hester, 1999-NMSC-020, ¶ 9 , 127 15 N.M. 218 , 979 P.2d 729 . In the absence of proof that both defense counsel’s 16 performance was not reasonably competent, and the defense was prejudiced as a 17 result, we presume counsel to be effective. See State v. Trujillo, 2002-NMSC-005 , ¶ 18 38, 131 N.M. 709 , 42 P.3d 814 (“Assistance of counsel is presumed effective unless 19 the defendant demonstrates both that counsel was not reasonably competent and that — 28 — 1 counsel’s incompetence caused the defendant prejudice.” (internal quotation marks 2 and citation omitted)); State v. Jacobs, 2000-NMSC-026 , ¶ 48, 129 N.M. 448 , 10 P.3d 3 127 (providing that counsel is presumed competent). As we have held that 4 Defendant’s speedy trial right was not violated, and he provides us with no other basis 5 for ineffective assistance of counsel, we conclude that defense counsel was effective. 6 E. Insufficiency of the Evidence to Convict 7 Pursuant to State v. Franklin, 78 N.M. 127 , 428 P.2d 982 (1967), and State v. 8 Boyer, 103 N.M. 655 , 712 P.2d 1 (Ct. App. 1985), Defendant argues “that a rational 9 fact-finder could not have determined beyond a reasonable doubt that [Defendant] was 10 guilty of the crimes with which he was charged.” As we review the case for sufficient 11 evidence to support the verdict, we analyze 12 whether a rational fact-finder could determine beyond a reasonable doubt 13 the essential facts necessary to convict the accused. When determining 14 the sufficiency of the evidence, the court views the evidence in a light 15 most favorable to the verdict, considering that the [s]tate has the burden 16 of proof beyond a reasonable doubt. 17 State v. Garcia, 2005-NMSC-017, ¶ 12 , 138 N.M. 1 , 116 P.3d 72 (citation omitted). 18 As we have analyzed the evidence for each charged count in our double 19 jeopardy analysis above, we conclude that no further analysis of the facts is required. 20 To the extent that Defendant argues insufficiency because a witness testified that he — 29 — 1 did not observe bruises on Victim the day after the incident occurred, we view all of 2 the evidence in the light most favorable to the verdict, and we note that other evidence 3 proving the crimes clearly exists. Moreover, “[c]ontrary evidence supporting acquittal 4 does not provide a basis for reversal because the jury is free to reject [the d]efendant’s 5 version of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19 , 126 N.M. 438 , 971 P.2d 6 829 . After thorough examination of the record, we hold that sufficient evidence 7 supports the verdicts rendered by the jury, save the verdict for one count of battery on 8 a household member, which we reverse on double jeopardy grounds. 9 III. CONCLUSION 10 For the reasons stated above, we reverse one of Defendant’s convictions for 11 battery on a household member. Furthermore, we reduce Defendant’s conviction for 12 aggravated battery on a household member to battery on a household member, and 13 reverse the Habitual Offender Act enhancement associated with that felony 14 conviction. We remand to the district court for resentencing and entry of an amended 15 judgment. 16 IT IS SO ORDERED. 17 _______________________________ 18 RODERICK T. KENNEDY, Judge 19 WE CONCUR: — 30 — 1 ___________________________ 2 JONATHAN B. SUTIN, Judge 3 ____________________________ 4 CYNTHIA A. FRY, Judge — 31 —