State v. Sena

                                                            Office of the Director         New Mexico
                                                             08:05:20 2020.09.01           Compilation
                                                                           '00'06-         Commission


            IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: June 25, 2020

No. S-1-SC-36932

CONSOLIDATED WITH

No. S-1-SC-36933

STATE OF NEW MEXICO,

      Plaintiff-Respondent/Cross-Petitioner,

v.

RICHARD J. SENA,

      Defendant-Petitioner/Cross-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Stephen K. Quinn, District Judge

Released for Publication September 8, 2020.

Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Petitioner/Cross-Respondent

Hector H. Balderas, Attorney General
Marko David Hananel, Assistant Attorney General
Santa Fe, NM

for Respondent/Cross-Petitioner

                                       OPINION

VIGIL, Justice.

{1}    A jury found Defendant guilty of one count of each of the following crimes:
criminal sexual penetration (CSP) in the first degree in violation of NMSA 1978, Section
30-9-11(D)(2) (2009); kidnapping in the first degree in violation of NMSA 1978, Section
30-4-1 (2003); armed robbery in violation of NMSA 1978, Section 30-16-2 (1973);
aggravated burglary in violation of NMSA 1978, Section 30-16-4(C) (1963); and criminal
sexual contact (CSC) in violation of NMSA 1978, Section 30-9-12(C)(3) (2003). In
addition, Defendant entered a no contest plea to being a felon in possession of a
firearm in violation of NMSA 1978, Section 30-7-16 (2001, amended 2018, 2019), and
admitted to being a habitual offender and subject to an enhanced sentence. Defendant
was sentenced to the New Mexico Department of Corrections for a total of forty years
and six months. Defendant appealed to the Court of Appeals. State v. Sena, 2018-
NMCA-037, 

, cert. granted, 2018-NMCERT-___ (S-1-SC-36932, May 25,
2018).

{2}     In the Court of Appeals, Defendant asserted the following errors: (1) the district
court failed to grant a mistrial when Defendant did not testify, and the prosecutor in
closing arguments argued that Defendant’s demeanor during Victim’s trial testimony
was evidence of Defendant’s guilt, (2) the instruction on kidnapping was erroneous in
failing to require a finding that the restraint used during the kidnapping was not merely
incidental to another crime, (3) Defendant’s convictions of both aggravated burglary and
CSP and CSC were double jeopardy violations, (4) the State failed to present sufficient
evidence to support the convictions of CSP and kidnapping, and (5) the district court
abused its discretion by admitting the results of DNA testing into evidence. See id. ¶¶ 1,
7, 20, 26, 27, 32, 34, 51.

{3}    In a formal opinion the Court of Appeals (1) rejected Defendant’s argument that
the district court erred in denying his motion for a mistrial, (2) held that the omission of
incidental restraint in the instruction on kidnapping constituted fundamental error, and
(3) held that Defendant’s convictions of aggravated burglary, CSP, and CSC were
double jeopardy violations. See id. ¶¶ 7-19, 20-25, 34-48. The Court of Appeals also
determined that the State presented sufficient evidence to support the convictions of
CSP and kidnapping and that the district court did not err in admitting the results of DNA
testing into evidence. See id. ¶¶ 26-33, 49-55.

{4}     We granted the petitions for certiorari filed by Defendant and the State to review
the foregoing conclusions. We hold that the Court of Appeals (1) erred in affirming the
district court order denying Defendant’s motion for a mistrial, (2) erred in reversing
Defendant’s kidnapping conviction for fundamental error on grounds that the elements
instruction did not address incidental restraint, (3) erred in concluding that Defendant’s
convictions for aggravated burglary, CSP, and CSC violated double jeopardy, and (4)
correctly held that the State presented substantial evidence to support Defendant’s
convictions for CSP and kidnapping. Because we remand for a new trial, it is not
necessary, and we decline to address, whether the district court erred in admitting the
results of DNA testing into evidence.

A.     BACKGROUND

{5}   Victim, who lived alone and was in her seventies, awoke at 3:30 a.m. to
Defendant’s gloved hand over her mouth and a knife to her head. When Victim tried to
scream, Defendant told her to stop and threatened to kill her. Defendant then ordered
Victim out of bed and demanded she undress. As Victim undressed, Defendant asked
Victim where her purse was, and Victim replied that it was in the closet. Defendant took
Victim’s wallet containing thirty dollars.

{6}     Victim told Defendant that she needed to use the restroom. Defendant allowed
Victim to go to the restroom while he watched and began masturbating. After she
finished using the restroom, Defendant ordered Victim back to bed, telling her to lie face
down on a pillow. Defendant got on top of Victim and penetrated Victim’s vagina and
anus with his penis. After a few minutes, Defendant instructed Victim to get on her
knees and continued penetrating Victim’s vagina and anus with his penis. Defendant
then told Victim to turn over, at which point he began fondling Victim’s breasts and
digitally penetrating Victim’s vagina.

{7}     After the sexual assaults, Defendant asked Victim about a rifle leaning against
the bedroom wall. Defendant proceeded to leave the bedroom, and after waiting a few
minutes, Victim attempted to inch out of bed. Defendant, who was watching Victim from
the living room, ordered Victim back into bed. After waiting awhile longer, Victim got out
of bed and entered the living room where she found her front door wide open. Victim
discovered that her wallet and rifle were missing, as were the cordless telephones from
the living room and Victim’s bedroom. Victim also noticed an open sliding window in the
dining room. Victim closed the front door, locked it, and called police.

{8}     Police arrived shortly thereafter, discovering shoe prints directly below the open
sliding window. Police tracked the shoe prints to the residence of Defendant’s
stepmother and stepfather, where Defendant was hiding wearing socks but no shoes.
Inside the residence, police collected a pair of sneakers consistent with the shoe print
found at Victim’s home. Police also followed tire tread tracks to a Honda parked outside
the residence, which was identified as belonging to Defendant. After obtaining a search
warrant for the Honda, police found leather gloves, a rifle, and a large knife. The gloves
were consistent with the description that Victim provided. Victim also identified the rifle
as the one stolen by Defendant and the knife as the one used during the incident.

{9}    Following the incident, Victim was examined by a sexual assault nurse examiner
(SANE). The examination revealed a half centimeter “open area” consistent with force
on Victim’s vagina. The SANE obtained various swabs from both Victim and Defendant
for DNA testing, including a swab of Victim’s left, upper thigh and a swab of Defendant’s
lower abdomen. No semen was detected on any of the swabs that were tested, but
Victim’s DNA was detected on Defendant’s hands.

{10} We now address the issues raised by Defendant and the State in their respective
petitions for certiorari.

B.     DISCUSSION

1.     The Prosecutor’s Arguments During Closing Arguments
{11} The Court of Appeals held that “commenting on the demeanor of a non-testifying
defendant is improper, as it is neither probative of innocence or guilt, nor is it evidence
that an appellate court can properly review.” Sena, 

, ¶ 12. We agree
with this holding. However, the Court of Appeals erred in concluding that the
prosecutor’s arguments in this case “did not invade a distinct constitutional protection”
and did not deprive Defendant of a fair trial. Id. ¶¶ 18, 19 (internal quotation marks and
citation omitted). For the reasons that follow, we reverse and remand for a new trial.

{12} While the prosecutor was making her closing arguments, the following
exchanges took place.

OPEN COURT

Prosecutor:

                     Did you notice, also, ladies and gentlemen, when she
                     [Victim] testified, that man [Defendant] wouldn’t even look at
                     her. He watched every other witness on the stand.

Defense Counsel:

                     Objection, your honor. There’s no evidence of that. May I
                     approach the bench?

Prosecutor:

                     Judge, this is . . . (unintelligible)

SIDEBAR CONFERENCE

Defense Counsel:

                     That’s commenting on his silence. He’s not testifying. What
                     he did or didn’t do is not in the record at all. We object and,
                     strongly object to her reference of what⸻against his
                     presumption of innocence. He didn’t testify. There was
                     absolutely no evidence. That’s done to inflame. We move for
                     a mistrial.

Prosecutor:

                     Judge, that is not . . . (unintelligible)

Defense Counsel:

                     No one testified to that.
Prosecutor:

                     (unintelligible)

Defense Counsel:

                     No one testified to that.

Court:

                     The jury’s just going to have to rely on their own memories of
                     what they observed. And she’s not commenting on his
                     silence, she’s just commenting on what he did. So, objection
                     is overruled.

OPEN COURT

Court:

                     Objection is overruled. The jury will have to rely on their own
                     memories as to what they observed (unintelligible).

Prosecutor:

                     Did you watch him in the courtroom when she took the
                     stand? He wouldn’t even look at her. He looked at every
                     other witness in the eye, but he wouldn’t look at her. And
                     why wouldn’t he look at her? Because he knew what he’d
                     done. He knew what he did.

{13} Defendant contends that the Court of Appeals erred when it held that while the
prosecutor’s arguments were improper, they were not prejudicial. Defendant asserts
that the district court erred because the prosecutor’s arguments were not only improper
but were prejudicial and contributed to Defendant’s convictions.

{14} The State concedes that the prosecutor’s arguments were improper because
they “elevated [Defendant’s] courtroom demeanor to the status of evidence and
encouraged the jury to treat it as evidence of guilt.” However, the State contends the
Court of Appeals correctly held that the comments were not prejudicial because
“Defendant’s right to have his guilt or innocence determined solely on the basis of the
evidence introduced at trial” does not “transform any reference to matters not in
evidence into a Fifth Amendment violation.” (Internal quotation marks and citations
omitted.) We disagree and reverse the Court of Appeals.

a.       Standard of review
{15} We review a district court’s denial of a motion for mistrial under an abuse of
discretion standard. State v. Johnson, 

, 

, 

. “We will find an abuse of discretion if a court’s ruling is clearly untenable or
contrary to logic and reason. Additionally, a court abuses its discretion if it applies
an incorrect standard, incorrect substantive law, or its discretionary decision is premised
on a misapprehension of the law.” Freeman v. Fairchild, 

, 

 (internal quotation marks and citations omitted). See also N.M. Right to
Choose/NARAL v. Johnson, 

, 

, 

 (stating
that a decision premised on a misapprehension of the law may be characterized as an
abuse of discretion). In addressing Defendant’s arguments that raise questions of
constitutional law, which we review de novo, see State v. DeGraff, 

, 

, 

 (holding that this Court reviews questions of constitutional
law de novo), we ask whether the district court applied the wrong legal standard in
denying Defendant’s motion for mistrial.

b.     The prosecutor’s arguments resulted in reversible error

{16} In State v. Sosa, we identified three factors to consider when reviewing error in
closing arguments: “(1) whether the statement invades some distinct constitutional
protection; (2) whether the statement is isolated and brief, or repeated and pervasive;
and (3) whether the statement is invited by the defense.” 

, 

, 

.

{17} Considering the first factor, we are more likely to conclude that there is reversible
error when the prosecutor’s comments invade “a distinct constitutional protection.” Id. ¶
27. The prosecutor’s comments in this case implicated Defendant’s Fifth Amendment
right to silence and thus, invaded a “distinct constitutional protection.”

{18} The Fifth Amendment to the United States Constitution establishes a sacrosanct
constitutional right in its direction that “[n]o person shall . . . be compelled in any criminal
case to be a witness against himself[.]” U.S. Const. amend. V. The Bill of Rights of the
New Mexico Constitution likewise directs, “No person shall be compelled to testify
against himself in a criminal proceeding[.]” N.M. Const. art. II, § 15. When a prosecutor
makes a comment that invites the jury to draw an adverse conclusion from a
defendant’s failure to testify, the defendant’s Fifth Amendment privilege is violated.
DeGraff, 

 (citing Griffin v. California, 

 (1965)).
Such remarks compromise a defendant’s right to a fair trial and result in fundamental
error. State v. Rojo, 

, ¶ 55, 

, 

.

{19} Prosecutor comments on a defendant’s right not to testify may be direct or
indirect. State v. Rice, 

 (Mo. 2019) (en banc). A direct comment
explicitly refers to the fact that the defendant did not testify, whereas an indirect
comment is “one reasonably apt to direct the jury’s attention to the defendant’s failure to
testify.” 

 (internal quotation marks and citation omitted). Both direct and indirect
comments on a defendant’s failure to testify are forbidden. See State v. Clark, 1989-
NMSC-010, ¶ 48, 

, 

, disapproved of on other grounds by
State v. Henderson, 

, ¶ 38, 

, 

. Thus, all
prosecutorial arguments drawing the jury’s attention to the fact that it has not heard from
the defendant during trial because the defendant has exercised his constitutional right
not to testify are impermissible and violate the defendant’s right against self-
incrimination. See Rice, 

 (holding that once a defendant has invoked
the right to remain silent, “any reference to [that] silence is improper” (emphasis in
original)).

{20} In her closing argument, the prosecutor asked the jury, “Did you watch
[Defendant] in the courtroom when [Victim] took the stand? He wouldn’t even look at
her. He looked at every other witness in the eye, but he wouldn’t look at her.” The
argument had no purpose other than to invite the jury to draw an adverse conclusion
from Defendant’s failure to get on the stand and explain why he would not look at Victim
as she testified. After Defendant objected, the jury heard the district court overrule the
objection, which placed the “stamp of judicial approval” on the improper argument,
further magnifying the prejudice. See Boulden v. State, 

 (Tex. Ct.
App. 1990) (internal quotation marks and citation omitted) (“[W]here a trial court
overrules an objection to improper argument, it places ‘the stamp of judicial approval’ on
the argument, magnifying the harm.” (citation omitted)). Having obtained the district
court’s stamp of judicial approval, the prosecutor compounded the prejudice by
repeating the statement and adding, “And why wouldn’t he look at her? Because he
knew what he’d done. He knew what he did.” We would be remiss if we did not add that
the closing arguments were recorded and we have the benefit of knowing not only what
words the prosecutor spoke but her tone as well. The prosecutor’s accusatory tone was
tantamount to pointing a finger at Defendant.

{21} “Closing argument is an aspect of a fair trial which is implicit in the Due Process
Clause of the Fourteenth Amendment by which the States are bound.” Hughes v. State,

 (Del. 1981) (internal quotation marks and citation omitted). A
prosecutor’s arguments during summation regarding a nontestifying defendant’s
courtroom demeanor are irrelevant as it is not evidence that is in the record and
therefore is beyond the scope of summation. 

. “Moreover, the practice is
pregnant with potential prejudice. A guilty verdict must be based upon the evidence and
the reasonable inferences therefrom, not on an irrational response which may be
triggered if the prosecution unfairly strikes an emotion in the jury.” 

{22} Reference to a nontestifying defendant’s courtroom demeanor is not merely a
reference to something not in evidence, it is an attack on a defendant’s Fifth
Amendment right not to testify. United States v. Carroll, 

 (4th Cir.
1982). In United States v. Schuler, 

 (9th Cir. 1987), the prosecutor
commented that the defendant laughed as witnesses testified. The Schuler court
determined that such comments by a prosecutor “tend to eviscerate the right to remain
silent by forcing the defendant to take the stand in reaction to or in contemplation of the
prosecutor’s comments.” 

. Even drawing subtle attention to a defendant’s
failure to testify is not permissible. United States v. Rodriguez, 

 (7th
Cir. 1980). In Rodriguez, the prosecutor commented that the defendant was “very quiet
at the end of counsel table.” 

. The Rodriguez Court counseled that “[t]he
remarks, harmless or not, infringing upon such a basic and elementary constitutional
underpinning of our justice system, simply should not occur.” 

.

{23} Dickinson v. State, 

 (Tex. Crim. App. 1984) (en banc), applied
these principles. Commenting on the defendant’s courtroom manner, the prosecutor
stated, “And you know, another pretty important [piece of] evidence that you can
consider is what you’ve observed in this courtroom. The demeanor in this courtroom of
this man right here. You know, when [the complainant] was led into that courtroom she
hid her face. She hid her face in shame.” 

 (second alteration in original). The
prosecutor added, “You haven’t seen one iota of remorse, one iota of shame.” 

 The
Dickinson Court concluded that these were not comments on the defendant’s demeanor
but indirect comments on the defendant’s failure to testify, characterizing the comments
as a “transparent attempt to call the jury’s attention to the appellant’s invocation of his
right to remain silent.” 

.

{24} The principles were reiterated in Coyle v. State, 

 (Tex. App.
1985), when the prosecutor stated, “I want to talk about what he [the defendant] looks
like in the courtroom right now. You’ve looked at him throughout the trial⸺and that’s
all I’m talking about, just his actions here in this courtroom while you’ve watched him.”

. Applying Dickinson, the Coyle Court held that the prosecutor’s comments
“amounted to directing the jury’s attention to the failure of the appellant to testify[.]” 

 (internal quotation marks and citation omitted).

{25} Dickinson and Coyle are highly persuasive. The prosecutor’s arguments in this
case were a direct comment on Defendant’s exercise of his constitutional right not to
testify and were highly improper. The prosecutor’s arguments directly asked the jury to
draw adverse conclusions from the fact that Defendant did not take the witness stand
and explain himself. The district court applied an incorrect legal standard in construing
the prosecutor’s arguments as referring to Defendant’s demeanor rather than his failure
to testify.

{26} The second factor requires us to consider whether the prosecutor’s comments
were brief and isolated or repeated and pervasive. Sosa, 

. The
State asserts that while the argument was repeated, it was isolated and brief. It lasted
twenty seconds within a twenty-minute closing argument, and it was not mentioned
elsewhere at trial and was “certainly not pervasive.”

{27} We are not persuaded. After hearing the prosecutor’s improper argument, the
jury heard the district court overrule Defendant’s objection to the argument. “What the
jury may infer, given no help from the court, is one thing. What it may infer when the
court solemnizes the silence of the accused into evidence against him is quite another.”
Griffin, 

. The prosecutor then took advantage of the ruling and repeated
and embellished her improper argument, giving it additional emphasis. We once again
remind prosecutors of what we said over fifty years ago:
       The zeal, unrestrained by legal barriers, of some prosecuting attorneys,
       tempts them to an insistence upon the admission of incompetent
       evidence, or getting before the jury some extraneous fact supposed to be
       helpful in securing a verdict of guilty . . . . When the error is exposed on
       appeal, it is met by the stereotyped argument that it is not apparent it in
       any wise influenced the minds of the jury. The reply the law makes to such
       suggestion is: that, after injecting it into the case to influence the jury, the
       prosecutor ought not to be heard to say, after he has secured a conviction,
       it was harmless. As the appellate court has not insight into the
       deliberations of the jury room, the presumption is to be indulged, in favor
       of the liberty of the citizen, that whatever the prosecutor, against the
       protest of the defendant, has laid before the jury, helped to make up the
       weight of the prosecution which resulted in the verdict of guilty.

State v. Rowell, 

, ¶ 11, 

, 

 (quoting Miller v.
Territory of Oklahoma, 

 (8th Cir. 1906)).

{28} Finally, we turn to the third factor—whether the error was invited by the defense.
Sosa, 

, ¶ 26 . The State does not argue, and we decline to conclude,
that Defendant somehow “opened the door” to the prosecutor’s comments. All three
Sosa factors support a conclusion of reversible error. We therefore proceed to the
State’s argument that no prejudice resulted.

{29} In the case of a constitutional error, “it is harmless only if the challenger can
prove there is no reasonable possibility that the error affected the verdict.” State v.
Thomas, 

, 

 (quoting State v. Tollardo, 2012-NMSC-
008, ¶ 25, 

). “We must reverse a conviction if the erroneously admitted
evidence might have contributed to it.” Thomas, 

. “[T]he
existence of other evidence to support the verdict does not cure a constitutional error
when there is a reasonable possibility that the erroneously admitted evidence influenced
the jury’s verdict.” Id. ¶ 34. Although Sosa directs a finding of reversible error when “the
prosecutors’ comments materially altered the trial or likely confused the jury by
distorting the evidence,” Sosa, 

, this case involves an intrusion on
a “distinct constitutional protection.” Applying a higher standard to reverse in the context
of constitutional error would be in direct conflict with our jurisprudence. Thus, we apply
Sosa’s factors for guidance, but because we find constitutional error, we then apply a
harmless error standard. The State has the burden to demonstrate that there was no
reasonable possibility that the error affected the verdict.

{30} The State argues that the prosecutor did not explicitly mention Defendant’s
failure to testify or ask the jury to draw an adverse conclusion from that fact because the
arguments did not suggest that Defendant failed to come forward with evidence or to
correct misstatements to police before or after arrest. We disagree and conclude that
the State has failed to meet its burden in demonstrating that there was “no reasonable
possibility” that the comment on Defendant’s right to silence affected the jury’s verdict.
Therefore, we are left to presume the error indeed affected the verdict in this case and
deprived Defendant of a fair trial.

{31} The prosecutor’s arguments violated Defendant’s Fifth and Fourteenth
Amendment rights and deprived Defendant of a fair trial, resulting in reversible error.
Prosecutors do not have license to make improper and prejudicial arguments with
impunity. We reverse the Court of Appeals holding that Defendant received a fair trial,
and we remand to the district court for a new trial.

2.     Instruction on Kidnapping

{32} The Court of Appeals agreed with Defendant’s argument that it was fundamental
error not to include the incidental restraint limitation to kidnapping described in State v.
Trujillo, 

, 

 in the essential elements instruction on
kidnapping. Sena, 

, ¶¶ 22-25. We disagree with the Court of Appeals,
and we reverse on this issue as well. Although we would not ordinarily address an issue
pertaining to an instruction after reversing all of a defendant’s convictions and
remanding for a new trial, we do so in this case because the Court of Appeals reached
a result we disagree with in a published, formal opinion.

{33} In Trujillo, the Court of Appeals held that “the Legislature did not intend to punish
as kidnapping restraints that are merely incidental to another crime.” 

. In agreeing with Defendant’s argument, the Court of Appeals reasoned that
“omission of incidental restraint” from the instruction resulted in fundamental error in this
case “as the jury could have convicted Defendant based upon a deficient understanding
of the legal meaning of restraint as an essential element of kidnapping.” Sena, 2018-
NMCA-037, ¶ 25. We disagree because Trujillo does not apply to the facts of the case
before us.

a.     Standard of review

{34} Our review is limited to determining whether the kidnapping instruction as given
to the jury resulted in fundamental error because there was no objection to the
instruction. See State v. Sandoval, 

, 

, 

 (stating that we review instructions for fundamental error instead of reversible
error if the alleged error was not preserved in the district court). “The doctrine of
fundamental error applies only under exceptional circumstances and only to prevent a
miscarriage of justice.” State v. Barber, 

, 

, 

. In reviewing a failure to instruct for fundamental error, we “determine whether a
reasonable juror would have been confused or misdirected by the jury instruction.” Id. ¶
19. “[J]uror confusion or misdirection may stem . . . from instructions which, through
omission or misstatement, fail to provide the juror with an accurate rendition of the
relevant law.” State v. Benally, 

, 

, 

. In
addition, “[f]undamental error occurs when jury instructions fail to inform the jurors that
the State has the burden of proving an essential element of a crime and we are left with
‘no way of knowing’ whether the jury found that element beyond a reasonable doubt.”
State v. Samora, 

, 

 (citation omitted).

b.     Omission of the incidental restraint limitation to kidnapping in the elements
       instruction was not fundamental error

{35} We begin with the statutory elements of kidnapping. Pertinent to the case before
us, Section 30-4-1(A)(4) defines kidnapping as “the unlawful . . . restraining . . . or
confining of a person, by force [or] intimidation . . . with intent . . . to inflict . . . a sexual
offense on the victim.” In accordance with UJI 14-403 NMRA (1997), the district court
instructed the jury as follows:

       For you to find [D]efendant guilty of kidnapping . . . , the State must prove
       to your satisfaction beyond a reasonable doubt each of the following
       elements of the crime:

       1.      [D]efendant restrained or confined [Victim] by force or intimidation;

       2.      [D]efendant intended to inflict a sexual offense on [Victim];

       3.      This happened in New Mexico on or about the 17th day of
               November, 2012.

This instruction correctly tracks the language of the statute, setting forth all the essential
elements of kidnapping. Thus, the jury was properly instructed on every essential
element of kidnapping. State v. Martinez-Rodriguez, 

, 

, 

 (concluding that a kidnapping instruction which accurately tracked the
language of the statute properly informed the jury of all the essential elements of the
offense), abrogated on other grounds as recognized by State v. Forbes, 2005-NMSC-
027, ¶ 6, 

,

.

{36} In addition, the evidence fully supports the jury’s verdict finding Defendant guilty
of kidnapping under the instruction. As already described above, the evidence was that
at approximately 3:30 a.m., Victim was awakened with a gloved hand over her mouth
and a knife to her head. When Victim tried to scream, Defendant told her to stop and
threatened to kill her. Defendant then ordered Victim to get out of bed and demanded
that she undress. While Victim was undressing, Defendant took Victim’s wallet. Victim
said she needed to use the restroom and was permitted to walk to the restroom with
Defendant following closely behind. Defendant then masturbated while Victim used the
restroom. At this point, the crime of kidnapping was complete. Defendant had restrained
Victim with the intent of inflicting a sexual offense on Victim. See State v. McGuire,

, ¶ 10, 

, 

 (“Once [the] defendant restrained
the victim with the requisite intent to hold her for service against her will, he had
committed the crime of kidnapping, although the kidnapping continued throughout the
course of [the] defendant’s other crimes[.]”); see also State v. Jacobs, 

,
¶ 24, 

, 

 (“[T]he key to finding the restraint element in
kidnapping, separate from that involved in criminal sexual penetration, is to determine
the point at which the physical association between the defendant and the victim was no
longer voluntary.”).

{37} The question presented here is whether Trujillo, 

, alters the
foregoing conclusions. In Trujillo, the victim and his wife were awakened at around 2:30
a.m. by two men holding flashlights, who had broken into the home armed with metal
bars or wooden bats. Id. ¶ 2. When the defendant started hitting the victim with a metal
bar, the victim fought back and gained the upper hand, and while the victim was on top
of the defendant hitting him, the defendant restrained the victim and called to his
accomplice for help. Id. ¶¶ 2-3. The accomplice started hitting the victim, allowing the
defendant to get free, and the two assailants continued to beat the victim before leaving.
Id. ¶ 3. The entire incident lasted two to four minutes. Id.

{38} Convicted of both aggravated battery and kidnapping, in addition to other crimes,
the defendant in Trujillo argued on appeal that “the Legislature did not intend to punish
restraint incidental to an aggravated battery as kidnapping.” Id. ¶ 6 (brackets omitted).
In the factual context of the case, the Court of Appeals agreed with the defendant,
concluding “that the restraint described by the testimony⸻a momentary grab in the
middle of a fight⸻is as a matter of law insufficient to support a conviction for
kidnapping.” Id. The Court of Appeals was able to make this determination as a matter
of law, recognizing that in a different factual scenario, a jury question might be
presented as to whether the restraint relied upon to support a conviction for kidnapping
was merely incidental to another crime. See id. ¶ 42.

{39} In the case before us, the Court of Appeals said that according to the evidence,
Victim “was restrained both before and after the sexual offense occurred[.]” Under these
circumstances, the Court of Appeals concluded that it was “for the jury to determine
whether either or both of these restraints were slight, inconsequential, or incidental to
the commission of the sexual offense.” Sena, 

, ¶ 25. This conclusion
was in error. Having already kidnapped Victim, Defendant then ordered Victim, who was
still unclothed, to go back to the bed where he sexually assaulted her numerous times.
Any restraint incidental to the sexual assaults was separate and distinct from the
restraint that Defendant used to complete the kidnapping. These facts differ vastly from
those in Trujillo and present no factual question for a jury to decide. See UJI 14-403,
Use Note 8 (providing that the jury receives an instruction on incidental restraint “if the
evidence raises a genuine issue of incidental conduct[.]”). Trujillo is inapplicable to the
facts in this case.

{40} Trujillo was decided in 2012, before Defendant’s trial in 2014. In partial response
to Trujillo, UJI 14-403 was amended, but not until 2015. See UJI 14-403, Committee
Commentary. Even if this version of the instruction had been in effect at the time of
Defendant’s trial, a finding consistent with UJI 14-403(4) on whether the restraint of
Victim resulting in the kidnapping was “slight, inconsequential, or merely incidental” to
the commission of another crime was not required in this case. 

 Submitting the
question to the jury is only required “if the evidence raises a genuine issue of incidental
conduct[.]” UJI 14-403, Use Note 8. As we have already discussed, incidental restraint,
as considered in Trujillo, was not at issue in this case.

{41} The integrity of a criminal conviction in our judicial system requires a jury verdict
to rest “on a legally adequate basis,” and when it does not, the integrity of the judicial
system is undermined, and fundamental error results. State v. Mascareñas, 2000-
NMSC-017, ¶ 21, 

, 

. Generally, therefore, “fundamental error
occurs when the trial court fails to instruct the jury on an essential element.” State v.
Sutphin, 

, 

, 

. In certain situations, a
missing definitional instruction may be of “central importance to a fair trial” because
without that instruction the jury verdict could be based on a deficient understanding of
the legal meaning of an essential element. Barber, 

. In other
words, failing to instruct the jury on a definition or amplification of the elements of the
crime may prevent the jury from making a “critical determination akin to a missing
elements instruction.” Mascareñas, 

, ¶ 20; cf. State v. Stephens, 1979-
NMSC-076, ¶ 20, 

, 

 (“[T]he failure to instruct the jury on the
definition or the amplification of the elements does not constitute error.”), overruled on
other grounds by State v. Contreras, 

, ¶ 19, 

, 

. Whether the restraint used to kidnap Victim was merely incidental to the sexual
offenses was not a “critical determination” for the jury to make in this case, nor was it of
“central importance” in arriving at a legally correct verdict. There was no fundamental
error in failing to instruct the jury on the limitation to kidnapping identified in Trujillo. The
Court of Appeals having ruled otherwise, we reverse the Court of Appeals on this point.

3.     Double Jeopardy

{42} The Court of Appeals held that Defendant’s separate convictions for aggravated
burglary, CSP, and CSC violate the Fifth Amendment prohibition against double
jeopardy because they result in multiple punishments for the same act. See Sena,

, ¶¶ 34-45. The State contends that the Court of Appeals should be
reversed because it misapplied the relevant precedent in arriving at its conclusion.
Although we reverse for a new trial, we must address the Court of Appeals’ flawed
application of the Foster presumption. For the reasons explained below, we agree with
the State and reverse the reasoning of Court of Appeals.

a.     Standard of review

{43} Appellate review of a claim that multiple punishments have been imposed for the
same offense in violation of the Fifth Amendment prohibition against double jeopardy
presents a question of law which we review de novo. State v. Swick, 

, 

.

b.     Analysis

{44} The Fifth Amendment to the United States Constitution directs, in pertinent part,
that “[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of
life or limb[.]” Defendant does not argue that the New Mexico Constitution affords
greater rights than the Fifth Amendment, so we limit our review to the federal right,
which is made applicable to the states through the Fourteenth Amendment. Benton v.
Maryland, 

 (1969). One of the protections of the Fifth Amendment is
the prohibition of “multiple punishments for the same offense.” Swafford v. State, 1991-
NMSC-043, ¶ 6, 

, 

 (internal quotation marks omitted) (quoting
North Carolina v. Pearce, 

 (1969), overruled on other grounds by
Alabama v. Smith, 

 (1989)). Multiple punishment cases are of two types:
those cases in which a defendant is charged with multiple violations of a single statute
based on a single course of conduct (“unit of prosecution” cases) and those cases in
which a defendant is charged with violating different statutes in a single course of
conduct (“double-description” cases). Swafford, 

, ¶¶ 8-9.

{45} Defendant argues that his convictions of aggravated burglary, CSP, and CSC
violate his Fifth Amendment protection against double jeopardy because they arise from
a single course of conduct. This is therefore a double-description case. In Swafford, this
Court established a two-part analysis for deciding whether the same offense was
committed in double-description cases. Id. ¶ 25. The first part focuses on the conduct
and asks “whether the conduct underlying the offenses is unitary, i.e., whether the same
conduct violates [multiple] statutes.” Id. If the question is answered in the affirmative, we
proceed to the second part, which focuses on the statutes at issue “to determine
whether the legislature intended to create separately punishable offenses.” Id. Double
jeopardy protection prohibits multiple punishments in the same trial only when (1) the
conduct is unitary and (2) it is determined that the Legislature did not intend multiple
punishments. Id.

{46} We first determine whether Defendant’s conduct was unitary. When “sufficient
indicia of distinctness” separate the illegal acts, the conduct is not unitary, and a
defendant does not face conviction and punishment for “the same factual event.”
Swafford, 

, ¶¶ 26-28. “Sufficient indicia of distinctness” are present
when the illegal acts “are sufficiently separated by either time or space (in the sense of
physical distance between the places where the acts occurred)[.]” Id. ¶ 28. If these
considerations do not suffice to make the determination, “resort must be had to the
quality and nature of the acts or to the objects and results involved.” Id. Thus, in
determining whether there are such sufficient indicia of distinctness, we have also
looked to the elements of the charged offenses, the facts presented at trial, and the
instructions given to the jury. Id. ¶ 27 (“The conduct question depends to a large degree
on the elements of the charged offenses and the facts presented at trial.”); DeGraff,

 (considering the statutory definition of the crime, the
instructions given to the jury, and the evidence presented at trial). Unitary conduct is not
present when one crime is completed before another is committed, or when the force
used to commit a crime is separate from the force used to commit another crime. Id. ¶¶
27, 30.

{47} In State v. Foster, 

, 

, 

,
abrogated on other grounds by Kersey v. Hatch, 

, 

,


, this Court held that because we cannot assume that jurors will know how
to reach a verdict without violating the Double Jeopardy Clause, “we must presume that
a conviction under a general verdict requires reversal if the jury is instructed on an
alternative basis for the conviction that would result in double jeopardy, and the record
does not disclose whether the jury relied on this legally inadequate alternative.” This
presumption is based on the holding of State v. Olguin, 

, ¶ 2, 

, 

, that “a conviction under a general verdict must be reversed if one of
the alternative bases of conviction is legally inadequate[.]” The parties agree that Foster
provides the analytical framework for determining whether Defendant’s acts were
unitary but disagree on what the proper result is under Foster. We therefore examine
Foster in some detail.

{48} In Foster, the Court considered in pertinent part whether convictions for first-
degree felony murder, aggravated kidnapping, and armed robbery violated the Double
Jeopardy Clause. 

. The convictions resulted from the robbery and
death of one victim. Id. ¶ 14. The victim was found in the den of her home on her
stomach with a broken ashtray in front of the body and an electrical cord tied around her
neck and ankles. Id. The ashtray was a heavy, faceted crystal ashtray with blood on it.
Id. ¶ 19. There was a contusion around the victim’s eye, several lacerations on her
head, and a ligature mark on her neck. Id. ¶ 14. Deep lacerations found on the victim’s
head were caused by being hit with a heavy glass dish or ashtray, consistent with the
broken ashtray at the scene. Id. The blows to the head could have rendered the victim
unconscious. Id. ¶ 16. The bruising caused by the ligature was consistent with use of
the extension cord and with the victim being alive when it was tightened around her
neck. Id. ¶ 17. The chief medical investigator testified that the head injuries probably
occurred first, rendering her unconscious, and that the victim was then tied up and
strangled with the extension cord. Id. ¶ 18.

{49} Regarding the convictions for armed robbery and aggravated kidnapping, the
State argued that the conduct underlying those offenses and the conduct underlying the
murder was not unitary. Id. ¶ 26. Specifically, the State argued that the conduct in
committing aggravated kidnapping was not unitary because the jury could have found
that the kidnapping was committed by gaining entry to the victim’s house by deception,
and the conduct in committing armed robbery was not unitary because the stolen items
were located in a room separate from where the victim was murdered. Id. ¶ 26. This
argument relied “on the assumption that, when the jury instructions provide alternative
bases for a conviction and there is no indication of which alternative the jury relied upon
in reaching a general verdict, we may affirm the conviction if at least one of the
alternatives does not violate the Double Jeopardy Clause.” Id. ¶ 26. This Court rejected
making this assumption, and in fact, as we have already stated, made the opposite
presumption: that the convictions were based on an alternative in the jury instructions
that would result in double jeopardy. Id. ¶ 28.

{50} Under that presumption, this Court in Foster assumed that the jury found that the
aggravated kidnapping was committed by force. The instruction on the elements of
aggravated kidnapping in Foster required the jury to find that the defendant acted with
force or deception and inflicted great bodily harm on the victim. Id. ¶ 29. The defendant
argued that the conduct was therefore unitary because the same force used to commit
the kidnapping was also used to commit the killing. Id. ¶¶ 29-30. This Court, however,
rejected the defendant’s argument. The state’s theory on the kidnapping was that the
defendant held the victim to rob her and to this end knocked her unconscious with the
glass ashtray. Id. ¶ 31. As she lay unconscious, the defendant tied the victim up and
strangled her to death with the electrical cord tied around her neck and ankles. Id. In
other words, force was used two separate times, once to kidnap the victim to rob her
and once to kill her. This conclusion was possible because under the instructions, the
jury was required to find that in committing the aggravated kidnapping, the defendant
inflicted great bodily harm. Id. ¶ 33. Thus, the kidnapping was completed when the
defendant hit the victim on the head with the ashtray, causing the victim great bodily
harm. Id. ¶¶ 32-33. This Court concluded there was sufficient indicia of distinctness
when the defendant used force to hit the victim on the head with the ashtray, which
completed the crime of aggravated kidnapping, id. ¶¶ 32-33, and then separately used
force to strangle the victim with an extension cord. Id. ¶ 34.

{51} In Foster, this Court separately addressed the defendant’s armed robbery
conviction. Id. ¶ 36. The jury instruction on armed robbery also allowed the jury to reach
a guilty verdict under various alternatives. Id. Because the record did not demonstrate
which alternative the jury relied on, and because the jury was allowed to find that the
defendant committed armed robbery “while armed with a ligature,” which was the same
extension cord that was used to commit the murder, this Court applied the presumption
that this was the alternative used by the jury. Id. ¶¶ 37-39. In addition, because the jury
was allowed to find the defendant guilty of armed robbery by taking the victim’s “car
keys and/or a 1985 Crown Victoria and/or U.S. currency” and the record did not
demonstrate which alternative was selected by the jury, this Court presumed that the
armed robbery conviction was based on the defendant’s taking of the property in closest
proximity to the room where the victim was killed. Id. ¶¶ 36, 39. Applying the
presumptions, the Foster court concluded that the defendant’s conviction and sentence
for armed robbery resulted from unitary conduct and violated the Double Jeopardy
Clause. Id. ¶¶ 37-39. Because the instruction allowed the jury to find that the defendant
committed armed robbery while armed with a ligature, but also, that the murder was
committed by use of a ligature, the Court determined that the conduct was unitary. Id.
¶¶ 38-39. The evidence presented at trial, the Court reasoned, did “not show a
significant separation in time or physical distance between the armed robbery and the
murder.” Id. ¶ 39.

{52} Here, the applicable instruction on aggravated burglary required the jury, in
pertinent part, to find that Defendant entered Victim’s dwelling without authorization and
“was armed with a knife; OR . . . became armed with a firearm after entering; OR . . .
touched or applied force to [Victim] in a rude or angry manner while entering or leaving,
or while inside.” The applicable instruction on CSP required the jury, in pertinent part, to
find that Defendant inserted his finger into Victim’s vagina and “used physical force or
physical violence OR . . . used threats of physical force or physical violence against
[Victim].” The instruction on CSC in turn required the jury, in pertinent part, to find that
Defendant “touched or applied force” to Victim’s unclothed breast without Victim’s
consent. There is no way to determine which alternative(s) the jury relied on in finding
Defendant guilty of aggravated burglary, CSP, and CSC.

{53} In arriving at its conclusion, the Court of Appeals applied the Foster presumption
to assume not only that the jury relied on the battery alternative for each crime, but that
the same conduct was also used to commit all three offenses. Sena, 

,
¶¶ 40-41. Having determined that Defendant’s conduct was unitary based on a
misapplication of the Foster presumption, the Court of Appeals went on to rule that
under the modified Blockburger analysis set forth in State v. Gutierrez, 2011-NMSC-
024, ¶¶ 58-59, 

, 

, the Legislature did not intend multiple
punishments for these offenses, and held Defendant was subjected to multiple
convictions for the same offense in violation of double jeopardy. Sena, 2018-NMCA-
037, ¶¶ 42-45. 1

{54} Because it is indeterminate upon which alternative the jury relied, like the Court
of Appeals, we apply the Foster presumption and presume the jury relied on the battery
alternative in convicting Defendant of aggravated burglary, CSP, and CSC. However,
contrary to the Court of Appeals’ holding, Foster does not require a further presumption
that the same conduct was then relied upon by the jury in convicting Defendant of each
crime—particularly when the record indicates three distinct batteries were committed.
Although the instructions allowed the jury to convict under the battery alternative for
each crime, the Foster presumption is rebutted by evidence that each crime was
completed before the other crime occurred.

{55} A battery was used to commit aggravated burglary when Victim was awakened at
3:30 a.m. with Defendant’s gloved hand over her mouth and a knife to her head. After
Victim got out of bed and was undressing as Defendant ordered, Defendant asked
Victim where her purse was, and Victim replied that it was in the closet. Defendant took
Victim’s wallet containing thirty dollars. Victim was then allowed to go to the restroom
while Defendant watched and began masturbating. After Victim finished using the
restroom, Defendant ordered Victim back to bed, telling her to lie face down on a pillow.
Victim testified that Defendant then penetrated Victim’s vagina and anus with his penis,
and after a few minutes, Defendant instructed Victim to get on her knees and continued
penetrating Victim’s vagina and anus with his penis. Defendant was not found guilty of
these penetrations. However, Defendant then committed CSP and CSC by means of a
second, and then a third battery when Defendant ordered Victim to turn over, and
fondled Victim’s breasts and digitally penetrated Victim’s vagina.

{56} We therefore conclude that the Court of Appeals erred in its application of the
Foster presumption. Although the instructions permitted the jury to convict Defendant of

1In its application of the modified Blockburger test, the Court of Appeals reasoned: “Because the State failed to
provide any legal theory of the crime, and we have found none in the record, we conclude that Defendant’s
aggravated burglary conviction is subsumed by the CSP/CSC convictions[.]” Sena, 

, ¶ 45. In light of
our conclusion that Defendant’s conduct was not unitary, whether this is a correct application of the modified
Blockburger test is not before us.
aggravated burglary, CSP, and CSC under the same alternative, the evidence
demonstrates that the crimes were committed by three separate, identifiable batteries
separated by sufficient indicia of distinctness. Thus, Defendant’s conduct was not
unitary. The initial battery and aggravated burglary were completed before the second
battery and CSP, and these crimes were separated by both time and intervening
events. See DeGraff, 

 (“In our consideration of whether conduct
is unitary, we have looked for an identifiable point at which one of the charged crimes
had been completed and the other not yet committed.”). In addition, Defendant’s
conduct in committing CSP and CSC was not unitary because the battery he used to
commit the CSP was separate and distinct from the battery he used to commit CSC.

{57} Having concluded that Defendant’s conduct in committing aggravated burglary,
CSP, and CSC was not unitary, there was no double jeopardy violation. Swick, 2012-
NMSC-018, ¶ 11. We therefore reverse the Court of Appeals’ conclusion that
Defendant’s convictions for aggravated burglary, CSP, and CSC violate double
jeopardy.

4.     Sufficiency of the Evidence

{58} Having reviewed the record and the arguments of the parties, we affirm the Court
of Appeals’ holding that the State presented sufficient evidence to support the
convictions for CSP and kidnapping. See Sena, 

, ¶¶ 26-33, 49-55.

C.     CONCLUSION

{59} We reverse Defendant’s convictions and remand the case to the district court for
a new trial consistent with this opinion.

{60}   IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice