{ "id": 4190584, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. JORGE LUIS SOTELO, Defendant-Appellant", "name_abbreviation": "State v. Sotelo", "decision_date": "2012-11-08", "docket_number": "No. 33,936; No. 33,953; Docket No. 31,061", "first_page": "461", "last_page": "477", "citations": [ { "type": "official", "cite": "2013-NMCA-028" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2000-NMCA-033", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217108 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0047-01" ] }, { "cite": "2000-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352424 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0001-01" ] }, { "cite": "2009-NMCA-102", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4246562 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0026-01" ] }, { "cite": "2007-NMSC-057", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3784502 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/143/0007-01" ] }, { "cite": 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"case_ids": [ 3670582 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0126-01" ] }, { "cite": "2006-NMCA-110", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671519 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0356-01" ] }, { "cite": "275 P.3d 110", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188256 ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0535-01" ] }, { "cite": "1997-NMCA-117", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17828 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0261-01" ] }, { "cite": "1998-NMCA-034", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 18654 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0726-01" ] }, { "cite": "2010-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247246 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 35" }, { "parenthetical": "alteration omitted" }, { "page": "\u00b6\u00b6 39, 43" }, { "page": "\u00b6 43" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0747-01" ] }, { "cite": "2009-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243873 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0142-01" ] }, { "cite": "2006-NMCA-031", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2544883 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0147-01" ] }, { "cite": "2002-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260689 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0657-01" ] }, { "cite": "2002-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183137 ], "weight": 3, "pin_cites": [ { "page": "\u00b645" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0709-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "year": 1984, "pin_cites": [ { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "115 N.M. 6", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725504 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "16", "parenthetical": "citation omitted" }, { "page": "322", "parenthetical": "citation omitted" }, { "page": "17" }, { "page": "323", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "16-17" }, { "page": "322-23", "parenthetical": "\"On review, we need not consider the two prongs of the test in any particular order.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0006-01" ] }, { "cite": "263 P.3d 901", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "150 N.M. 559", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2011-NMCERT-001", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2011-NMCA-018", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4250024 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 28" }, { "page": "\u00b6 29" }, { "page": "\u00b6 30" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0294-01" ] }, { "cite": "1999-NMCA-065", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257610 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0362-01" ] }, { "cite": "51 A.3d 970", "category": "reporters:state_regional", "reporter": "A.3d", "year": 2012, "pin_cites": 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"opinion_index": 0, "case_paths": [ "/kan/219/0203-01" ] }, { "cite": "949 A.2d 1092", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "1121" }, { "page": "1121" } ], "opinion_index": 0 }, { "cite": "102 N.M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580050 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "278" }, { "page": "926" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0274-01" ] }, { "cite": "2010-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247843 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/nm/148/0381-01" ] }, { "cite": "112 N.M. 554", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720271 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "564" }, { "page": "1206" }, { "page": "562" }, { "page": "1204" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0554-01" ] }, { "cite": "2006-NMSC-011", 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Stat. Ann. \u00a7 21-5408", "category": "laws:leg_statute", "reporter": "Kan. Stat. Ann.", "year": 2010, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "2003-NMCA-147", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77175 ], "weight": 3, "year": 1965, "pin_cites": [ { "page": "\u00b6 11", "parenthetical": "defining first degree murder" }, { "parenthetical": "defining first degree murder" }, { "parenthetical": "defining first degree murder" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0705-01" ] }, { "cite": "296 P.3d 491", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCERT-008", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "267 P.3d 820", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2011-NMCA-121", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4188007 ], "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0074-01" ] }, { "cite": "119 N.M. 252", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561267 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "260", "parenthetical": "\"The key to the restraint element in kidnapping is the point at which [the victim's physical association with [the djefendant was no longer voluntary.\"" }, { "page": "868", "parenthetical": "\"The key to the restraint element in kidnapping is the point at which [the victim's physical association with [the djefendant was no longer voluntary.\"" }, { "page": "260" }, { "page": "868" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0252-01" ] }, { "cite": "120 N.M. 486", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558914 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/nm/120/0486-01" ] }, { "cite": "2007-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3691675 ], "weight": 13, "pin_cites": [ { "page": "\u00b6\u00b6 18-19" }, { "page": "\u00b6 23" }, { "page": "\u00b6 23" }, { "page": "\u00b6\u00b6 16, 23" }, { "page": "\u00b6 23" }, { "page": "\u00b6 26" }, { "page": "\u00b6\u00b6 17-18" }, { "page": "\u00b6 24" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0120-01" ] }, { "cite": "112 N.M. 3", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720274 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "13" }, { "page": "1233" }, { "page": "13" }, { "page": "1233" }, { "page": "14" }, { "page": "1234", "parenthetical": "\"If it reasonably can be said that the conduct is unitary, then one must move to the second part of the inquiry. Otherwise, if the conduct is separate and distinct, inquiry is at an end.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0003-01" ] }, { "cite": "2009-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243179 ], "weight": 3, "year": 1991, "opinion_index": 0, "case_paths": [ "/nm/146/0357-01" ] }, { "cite": "2008-NMSC-048", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4001971 ], "weight": 5, "year": 1991, "pin_cites": [ { "page": "\u00b6 22" }, { "page": "\u00b6 30" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0663-01" ] }, { "cite": "2007-NMCA-160", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3783538 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0096-01" ] }, { "cite": "2005-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224590 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0723-01" ] }, { "cite": "2000-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106574 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 65" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0482-01" ] }, { "cite": "2007-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669906 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0328-01" ] }, { "cite": "80 N.M. 340", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356710 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "343", "parenthetical": "\"Merely to confine or restrain against a person's will without the requisite intention is not kidnapping. This is false imprisonment. . . when done with knowledge of an absence of authority.\" (citations omitted)" }, { "page": "847", "parenthetical": "\"Merely to confine or restrain against a person's will without the requisite intention is not kidnapping. This is false imprisonment. . . when done with knowledge of an absence of authority.\" (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0340-01" ] }, { "cite": "117 N.M. 11", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552677 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "15" }, { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0011-01" ] }, { "cite": "2002-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183156 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0758-01" ] }, { "cite": "2000-NMCA-085", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217150 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0547-01" ] }, { "cite": "121 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566569 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "44" }, { "page": "737" }, { "page": "44" }, { "page": "737" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0038-01" ] }, { "cite": "2001-NMCA-094", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183133 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0195-01" ] }, { "cite": "945 P.2d 996", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "123 N.M. 778", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 142224 ], "opinion_index": 0, "case_paths": [ "/nm/123/0778-01" ] }, { "cite": "1997-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 49" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1657, "char_count": 52208, "ocr_confidence": 0.826, "pagerank": { "raw": 8.072972838734588e-08, "percentile": 0.4668185288022584 }, "sha256": "76987ea62518736b20d4ed76944d5a9cae5b52061f4d9897e99880614741d947", "simhash": "1:bc6abbbc264ad1c5", "word_count": 8419 }, "last_updated": "2023-07-14T14:46:09.531131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL D. BUSTAMANTE, Judge", "JAMES J. WECHSLER, Judge", "LINDA M. VANZI, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. JORGE LUIS SOTELO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} Appellant\u2019s motion for rehearing is granted. The opinion filed in this case on October 24, 2012, is withdrawn and this Opinion is substituted in its place.\n{2} Defendant appeals his convictions for kidnapping, battery on a household member, and intimidation of a witness on grounds that (1) the district court erred in denying an instruction on the lesser-included offense of false imprisonment, (2) convictions for kidnapping and battery violate the prohibition against double jeopardy, (3) the conduct constituting kidnapping was incidental to the battery, and (4) his counsel was ineffective because he failed to object to improper character evidence at trial and to seek mitigation of Defendant\u2019s sentence. Defendant also argues that the district court did not consider mitigating evidence and, therefore, the case should be remanded for resentencing.\n{3} We conclude that there is no reasonable view of the evidence such that false imprisonment was the greatest offense committed and, thus, the district court did not err in refusing the request for a lesser-included offense instruction. We determine also that the conduct underlying the kidnapping and battery charges was neither factually unitary nor unitary as a matter of law. Therefore, there was no violation of the prohibition against double jeopardy. Furthermore, the restraint and/or movement involved in this case was not incidental to the battery, and Defendant failed to establish a prima facie case of ineffective assistance based on failure to object to improper character evidence because, even if there were error, there is no evidence that Defendant was prejudiced by the error. We affirm Defendant\u2019s convictions. We remand for resentencing after consideration of mitigating circumstances.\nBACKGROUND\n{4} Defendant and Victim lived together at the time of the incident giving rise to the charges in this case. They have one child. Victim has two other children, one of whom was fifteen years old on July 13, 2009, the date of the incident. Victim testified that Victim and Defendant were at Victim\u2019s parents\u2019 house on July 12 but left together late in the evening in Victim\u2019s car, with Victim driving because Defendant did not have a driver\u2019s license. They stopped to get gas, and Defendant got into the vehicle in the driver\u2019s seat. Defendant said he would drive the rest of the way to their home half a mile away. Instead, Defendant drove in the opposite direction. Victim asked where they were going, and Defendant responded that he was taking a drive. Defendant continued driving down the Hobbs Highway away from town and, after turning off the highway, drove ten to fifteen minutes to a deserted area. On the way, he told Victim that he wanted to take her to a place with \u201cno cops [and] no phones.\u201d Defendant pulled Victim out of the vehicle and started pulling her hair, kicking her, and throwing her into bushes. Victim testified that during this time, Defendant told her he was going to kill her or leave her there to die, and repeatedly stated that he \u201cdid not want to go back to j ail.\u201d She stated that when she refused to swear that she would not call the police, he continued beating her. Defendant held Victim\u2019s arm while driving to another location on Derrick Road, where he beat her some more. When Victim attempted to run away, Defendant chased her, put her back in the car, and drove to a third location on Hidalgo Road. Victim testified that Defendant beat her again and forced her to have intercourse with him. After driving around for an hour or two, Defendant drove to their home in the early morning of July 13. Victim\u2019s daughter opened the door and told Victim to call the police. Defendant went to the bedroom. Victim then went to the sheriffs department to report the incident.\n{5} At trial, Defendant moved for a jury instruction on false imprisonment on the ground that false imprisonment was a lesser-included charge of kidnapping. The judge denied this motion. Defendant was convicted of kidnapping, battery on a household member, and intimidation of a witness. He was acquitted of criminal sexual penetration. At the sentencing hearing, Defendant requested a continuation to prepare a motion for mitigation of the kidnapping sentence, which was granted. A second hearing on November 8, 2010, was also continued. Defendant was sentenced on November 29, 2010. A motion for mitigation was not filed.\n{6} Defendant was sentenced to a total of twenty-one years: eighteen years for kidnapping, three years for intimidation of a witness, and 364 days for battery against a household member. The sentences for the latter charges were ordered to run concurrent to each other and consecutive to the kidnapping sentence.\nDISCUSSION\n{7} We address Defendant\u2019s arguments in the order presented.\nA. Defendant Was Not Entitled to a Jury Instruction on a Lesser-included Offense\n{8} \u201cThe propriety of jury instructions given or denied is a mixed question of law and fact. Mixed questions of law and fact are reviewed de novo.\u201d State v. Salazar, 1997-NMSC-044, \u00b6 49, 123 N.M. 778, 945 P.2d 996. On appeal, the evidence is viewed \u201cin the light most favorable to the giving of the requested instruction.\u201d State v. Hill, 2001-NMCA-094, \u00b6 5, 131 N.M. 195, 34 P.3d 139.\n{9} There are two prerequisites for a lesser-included offense instruction. First, the district court should \u201cgrant the request when the statutory elements of the lesser crime are a subset of the statutory elements of the charged crime.\u201d State v. Meadors, 121 N.M. 38, 44, 908 P.2d 731, 737 (1995). Second,\nthe trial court should grant ... an instruction [on a lesser-included charge] if (1) the defendant could not have committed the greater offense in the manner described in the charging document without also committing the lesser offense . . . ; (2) the evidence adduced at trial is sufficient to sustain a conviction on the lesser offense; and (3) the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.\nId. Although the Meadors test applied to a prosecution request for an instruction on a lesser-included charge and focused on protection of the defendant\u2019s due process rights, this Court applied it to a defendant\u2019s request for such an instruction in Darlas. See State v. Darkis, 2000-NMCA-085, \u00b6 14, 129 N.M. 547, 10 P.3d 871. When it is the defendant requesting a lesser-included offense instruction, \u201cthe appropriate focus is ... on the facts the [s]tate had arrayed and the theory of its case.\u201d Id. \u00b6 15. This analysis entitles a defendant to a lesser-included offense instruction when the evidence supports the lesser-included offense. Id. \u00b6 17.\n{10} In reviewing on appeal whether a reasonable jury could find that the lesser-included offense is the highest offense committed, \u201c[w]e will not \u2018fragment the testimony ... to such a degree as to distort it\u2019 in order to construct a view of the evidence which would support the giving of the instruction.\u201d State v. Gaitan, 2002-NMSC-007, \u00b6 24, 131 N.M. 758, 42 P.3d 1207 (second alteration in original) (citation omitted). In State v. Wilson, the Court held that a lesser-included offense instruction was properly denied where the defendant sought to show that the jury could have believed portions of testimony by both the victim and defendant and rejected other portions. 117 N.M. 11, 15, 868 P.2d 656, 660 (Ct. App. 1993). It held that \u201cthere must be some evidence other than that obtained by taking portions of the victim\u2019s and portions of the defendant\u2019s testimony to support the lesser-included offense instruction. . . . When there is other evidence [to support the lesser-included offense instruction], then the risk of impermissible distortion [of the testimony] is eliminated.\u201d Id.\n{11} D efendant argues that \u201c [t]he jury was free to reject [Victim\u2019s] . . . testimony that [Defendant] expressed a kidnapping intent. . . , especially in light of the significant impeachment of her credibility which resulted in acquittal for the [criminal sexual penetration] charge\u201d and, therefore, there was \u201csome view of the evidence that [false imprisonment] was the most serious offense committed.\u201d The State responds, in essence, that no reasonable juror could find that false imprisonment was the highest offense committed because to do so would \u201crequir[e] an impermissible fragmentation of the evidence, picking and choosing among elements of a single witness\u2019s testimony.\u201d\n{12} It is clear that the first Meadors prerequisite is metbecause false imprisonment is a subset of kidnapping. False imprisonment is \u201cintentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so.\u201d NMSA 1978, \u00a7 30-4-3 (1963). Kidnapping requires \u201cthe unlawful taking, restraining, transporting or confining of a person, by force, intimidation or deception, with intent ... to inflict death, physical injury[,] or a sexual offense on the victim.\u201d NMSA 1978, \u00a7 30-4-1 (A)(4) (2003). The difference between these two statutes is found in kidnapping\u2019s intent requirements. See State v. Clark, 80 N.M. 340, 343, 455 P.2d 844, 847 (1969) (\u201cMerely to confine or restrain against a person\u2019s will without the requisite intention is not kidnapping. This is false imprisonment. . . when done with knowledge of an absence of authority.\u201d (citations omitted)).\n{13} The second Meadors prerequisite has three components. Two are satisfied readily: Defendant could not have committed kidnapping without committing false imprisonment since false imprisonment is a subset of kidnapping, and there is sufficient evidence to support a conviction for false imprisonment found in Victim\u2019 s testimony that Defendant restrained her in the vehicle. It is the last component \u2014 whether \u201ca jury rationally could acquit on the greater offense and convict on the lesser\u201d \u2014 that is contested by the parties and on which the bulk of our analysis rests. 121 N.M. at 44, 908 P.2d at 737.\n{14} This part of the Meadors test requires that (1) \u201cthe elements that distinguish the lesser and greater offenses are sufficiently in dispute such that [(2)] a jury rationally could acquit on the greater offense and convict on the lesser.\u201d Id. Defendant argues that the jury could have found that he did not intend to cause Victim harm. He points to Victim\u2019s testimony that Defendant \u201cdid not become angry or violent until after they had arrived in a secluded location\u201d as an indication that Defendant \u201clacked the intent to injure [Victim] at the time he drove out there.\u201d He argues that the fact he intentionally battered Victim does not prove that he transported her to the deserted area with the intent to do so because \u201cfalse imprisonment can involve a resulting injury without constituting kidnapping.\u201d The State counters that Victim\u2019s testimony that Defendant told her that he wanted to bring her to a place with \u201cno cops [and] no phones\u201d shows that \u201cthe only rational conclusion is that he took her there [to beat her].\u201d These arguments focus on whether Defendant intended to batter Victim during the period starting at the gas station and ending when Defendant began beating Victim at the Hobbs Highway location. Essentially, the parties disagree as to when Defendant formed the intent to cause Victim physical injury. Victim\u2019s testimony, the only evidence presented on what happened during the drive, permits a legitimate dispute on this issue, thus satisfying the first component of this test.\n{15} We are not limited to analysis of the dispute over this period, however, because this is not the only period relevant to the kidnapping charge. Even if the jury concluded that Defendant did not intend to harm Victim during the initial transport from the gas station to the Hobbs Highway location, there was restraint and movement to satisfy the requirements of kidnapping because, after beating Victim there, Defendant drove to two other locations where he continued to beat her. Victim testified as to the battery, and both the police officer to whom she reported the incident and her daughter testified as to the resultant bruising. The jury viewed photos of the bruising at trial. Based on this evidence, the jury convicted Defendant of battery against a household member. For the jury to believe that Defendant did not intend to batter Victim when he drove her from Hobbs Highway to Derrick Road and from there to Hidalgo Road would require substantial fragmentation of the evidence. In essence, such an interpretation would require the jury to believe that Defendant committed the battery but did not intend to do so while driving from place to place. This is not \u201ca reasonable view of the evidence [that] could lead a fact[]finder to conclude that the lesser offense is the highest degree of crime committed.\u201d State v. Neatherlin, 2007-NMCA-035, \u00b6 22, 141 N.M. 328, 154 P.3d 703. Thus, the second component of this test fails.\n{16} Although we agree with Defendant that it is the intent to cause injury, not the injury itself, that distinguishes kidnapping from false imprisonment, evidence of injury may be used by the jury as circumstantial evidence of intent. See State v. Allen, 2000-NMSC-002, \u00b6 65, 128 N.M. 482, 994 P.2d 728 (\u201c[W]e [allow] a jury to \u2018infer, from evidence of acts committed at some later point during the commission of a kidnapping, that the necessary criminal intent existed at the time the victim first was restrained. \u2019 \u201d (citation omitted)). If the incident had ended with Defendant driving Victim home after beating her at the Hobbs Highway location, there may have been a reasonable interpretation of the evidence that the battery was a spontaneous act not preceded by kidnapping. But that is not what happened. Instead, the transportation of Victim from Hobbs Highway to Derrick Road was preceded by an intentional battery and followed by an intentional battery. So was the transport from Derrick Road to Hidalgo Road. Defendant presented no evidence that such transport either did not occur or that he had another purpose for driving from place to place. The only rational view of the evidence is that Defendant intended to injure Victim as they traveled between these locations. The district court did not err in denying Defendant\u2019s request for an instruction on the lesser-included offense of false imprisonment.\nB. Defendant\u2019s Convictions Do Not Violate Double Jeopardy\n{17} \u201cThe constitutional prohibition against double jeopardy \u2018protects againstboth successive prosecutions and multiple punishments for the same offense.\u2019\u201d State v. Armijo, 2005-NMCA-010, \u00b6 15, 136 N.M. 723, 104 P.3d 1114 (citation omitted); see U.S. Const. amends. V, XIV; N.M. Const. art. II, \u00a7 15. Defendant argues that his convictions for kidnapping and battery violate this prohibition because his conduct was unitary both based on the facts and as a matter of law and the Legislature did not intend to punish battery and kidnapping separately. The State responds that (1) the issue was not preserved properly; and (2) the conduct is not unitary under the facts or as a matter of law and, therefore, double jeopardy does not apply. We agree that Defendant\u2019s double jeopardy rights were not violated.\n{18} Defendant need not have preserved this issue in order to raise it on appeal. See State v. Martinez, 2007-NMCA-160, \u00b6 5, 143 N.M. 96, 173 P.3d 18. \u201cDouble jeopardy presents a question of law, which we review de novo.\u201d State v. Saiz, 2008-NMSC-048, \u00b6 22, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. \u201c[T]he sole limitation on multiple punishments is legislative intentf.]\u201d Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991). Under New Mexico\u2019s double jeopardy jurisprudence, our inquiry into legislative intent proceeds in two stages. Id.; State v. Frazier, 2007-NMSC-032, \u00b6\u00b6 18-19, 142 N.M. 120, 164 P.3d 1. \u201cThe first part of our inquiry [is] whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes. The second part [is] whether the [Legislature intended to create separately punishable offenses.\u201d Swafford, 112 N.M. at 13, 810 P.2d at 1233. If the evidence is such \u201cthat the jury reasonably could have inferred independent factual bases for the charged offenses},]\u201d the conduct is not unitary. Saiz, 2008-NMSC-048, \u00b6 30 (internal quotation marks and citation omitted). Independent factual bases \u201cmay be established by determining whether the acts constituting the two offenses are sufficiently separated by time or space, looking to the quality and nature of the acts, the objects and results involved, and the defendant\u2019s mens rea and goals during each act.\u201d Id.\n{19} In certain situations, two offenses are \u201cunitary by definition.\u201d Frazier, 2007-NMSC-032, \u00b6 23. In those cases, where the Legislature has \u201cdefine[d] the offenses as greater and lesser included, and the jury instructions require the jury to make the factual finding of unitary conduct,\u201d the court need not assess whether the conduct was unitary. Id. \u00b6 20. An example is the felony murder statute, which requires that the killing be committed \u201cin the commission of or attempt to commit any felony[.]\u201d NMSA 1978, \u00a7 30-2-1(A)(2) (1994). The construction of this statute requires a factual finding that one crime was committed in conjunction with another. Frazier, 2007-NMSC-032, \u00b6 23. \u201cThus, when a jury finds a defendant guilty of felony murder, it has already determined the fact-based unitary conduct question \u2014 it has found that the killing happened during the commission of the underlying felony.\u201d Id. Taken together with State v. Contreras, 120 N.M. 486, 903 P.2d 228 (1995), in which the Court held that \u201cwhen the conduct is unitary, the defendant cannot be convicted of both felony murder and the underlying predicate felony},]\u201d Frazier\u2019s holding means that a defendant can never be convicted of both felony murder and the predicate felony because the conduct is always unitary. 2007-NMSC-032, \u00b6\u00b6 16, 23.\n1. Defendant\u2019s Conduct Was Not Factually Unitary\n{20} With this background in mind, we turn back to the facts of this case. We address first whether Defendant\u2019s conduct was factually unitary, then whether it was unitary as a matter of law. Defendant argues that his conduct was factually unitary because \u201c[t]he physical contact was constant\u201d and \u201c[Defendant\u2019s] mental state of anger was also constant}.]\u201d We are unpersuaded. Here, Victim testified that at different times during the encounter, Defendant kicked her, punched her, pulled her hair, and pushed her into bushes. She testified that he transported her from place to place while holding her by the shirt and arm and that when she tried to run, he dragged her back to the car. To convict for kidnapping, the jury was instructed they must find that Defendant \u201ctook, restrained, confined, or transported [Victim] by force or intimidation ... to inflict physical injury on her[.]\u201d They were instructed that in order to convict for battery, they must find that Defendant \u201cintentionally touched or applied force to [Victim] by hitting or kicking her[.]\u201d (Emphasis added.) Thus, based on these instructions and Victim\u2019s testimony, the jury could have found independent factual bases for kidnapping and battery because the instructions limited the conduct constituting battery to hitting or kicking Victim, thereby precluding inclusion of the conduct by which Defendant restrained or transported Victim in the car from place to place. See State v. Pisio, 119 N.M. 252, 260, 889 P.2d 860, 868 (Ct. App. 1994) (\u201cThe key to the restraint element in kidnapping is the point at which [the victim\u2019s physical association with [the djefendant was no longer voluntary.\u201d). The conduct was not factually unitary. State v. Urioste, 2011-NMCA-121, \u00b6 28, 267 P.3d 820 (\u201c[Where] the jury could reasonably have inferred an independent factual basis for . . . [defendant\u2019s convictions, . . . we do not second-guess the factual conclusions of a jury.\u201d), cert. quashed, 2012-NMCERT-008, 296 P.3d 491.\n2. Defendant\u2019s Conduct WasNot Unitary as a Matter of Law\n{21} Neither is the conduct unitary as a matter of law. Defendant argues that the kidnapping statute functions like the felony murder statute in Frazier. See Section 30-4-1(B); Frazier, 2007-NMSC-032, \u00b6 23. Section 30-4-1 (B) allows punishment of kidnapping as a second degree felony if the defendant \u201cvoluntarily frees the victim in a safe place and does not inflict physical injury or a sexual offense upon the victim.\u201d Therefore, Defendant argues, the elevation of a kidnapping charge to first degree based on physical injury is analogous to elevation of a killing to first degree murder based on a predicate felony. The State maintains that the kidnapping statute is not similar to the felony murder statute because, unlike that statute, it does not include a requirement of a predicate crime that is subsumed into kidnapping. We are not persuaded by Defendant\u2019s analogy to the felony murder statute because the statutes at issue are neither facially nor functionally the same.\n{22} Frazier\u2019s analysis of the felony murder statute relies on the legislative intent behind the statute. 2007-NMSC-032, \u00b6 26; see \u00a7 30-2-l(A)(2). Although that analysis \u201cturn[ed] entirely on the unitary conduct prong of Swafford[,]\u201d the Court stated that, in essence, both Swafford prongs depend on whether the Legislature intended multiple punishments. Frazier, 2007-NMSC-032, \u00b6\u00b6 17-18. The factual inquiry into \u201cindependent factual bases\u201d is based on an \u201cassum[ption] that the [Legislature intended to authorize separate punishments\u201d when \u201ccriminal acts are sufficiently separate in time and space[.]\u201d Id. \u00b6 19. Thus, the unitary conduct analysis is \u201ca proxy for legislative intent when the [Legislature is silent.\u201d Id. The Court went on to determine that the Legislature was not silent in the felony murder statute: its intent to treat certain crimes as unitary is evinced by the \u201cexpres[s] require[ment] that the killing happen \u2018in the commission of\u2019 the underlying felony.\u201d Id. \u00b623.\n{23} Here, there is no such legislative intent indicated in the kidnapping statute. Unlike the felony murder statute, the kidnapping statute does not include as an element \u201cin the commission of [a] felony.\u201d Compare \u00a7 30-2-l(A)(2), with \u00a7 30-4-1. Thus, on its face, the kidnapping statute is not like the felony murder statute. In addition, there is no evidence that the Legislature has ever intended to make the kidnapping statute like the felony murder statute. \u201cWe presume that the [Legislature knows the law when enacting a statute.\u201d State v. Bennett, 2003-NMCA-147, \u00b6 11, 134 N.M. 705, 82 P.3d 72. Yet, although the felony murder statute has been part of New Mexico\u2019s schema for homicide since well before 1963, see NMSA 1953, \u00a7 40-24-4 (Vol. 6, 1965) (defining first degree murder), the Legislature has not added a similar provision to the kidnapping statute even though it has amended that statute three times since 1963. See \u00a7 30-4-1. Finally, New Mexico has declined to follow the Model Penal Code\u2019s kidnapping statute, adopted in 1962 and followed by some other states, which includes a provision such that kidnapping may be charged for restraint intended to facilitate another crime. See \u00a7 30-4-1; Model Penal Code \u00a7 212.1 (1962); see, e.g., Kan. Stat. Ann. \u00a7 21-5408(a)(2) (2010).\n{24} Defendant argues that, in spite of the difference in wording, the kidnapping statute functions like the felony murder statute. We disagree for two reasons. First, the kidnapping statute does not require that the jury find there was a crime that caused physical injury. In the felony murder context, the uniform jury instructions require the jury to find that the defendant committed a felony and that the murder was committed during the commission of that felony. See UJI 14-202 NMR.A. \u201cThere can be no conviction for killing in the course of a felony without proof of all of the elements of the [underlying] felony.\u201d State v. DeGraff, 2006-NMSC-011, \u00b6 26, 139 N.M.211, 131 P.3d 61.\n{25} To convict for first degree kidnapping, the jury must find that the defendant inflicted physical injury on or committed a sexual offense against the victim, or that the victim was not voluntarily released in a safe place. See \u00a7 30-4-1(B); UJI 14-6018 NMRA. If a sexual offense is alleged, the jury must find that the elements of that crime are satisfied. See UJI 14-6018 Use Note 5 (stating that the jury must be instructed in the elements of the sexual offense). This part of the statute is similar to the felony murder statute. See UJI 14-202 Use Note 3. The jury may convict for first degree kidnapping, however, if there is evidence of physical injury even if there is no charge for a crime associated with that injury. See UJI 14-6018 Use Note 4 (in which there is no requirement that the jury be instructed in the elements of a crime causing physical injury). In other words, the jury may find that the defendant inflicted physical injury on the victim without considering the elements of a specific crime against the person. The absence of a requirement for the jury to find that another crime was committed indicates that the Legislature intended to punish as first degree kidnapping conduct that meets the basic elements of second degree kidnapping and results in physical injury, even if the defendant is not charged with a crime for the conduct causing the injury. Contra Frazier, 2007-NMSC-032, \u00b6 24 (\u201c[T]he conduct required to commit felony murder will always support a parallel charge with respect to the underlying felony.\u201d). In this case, the jury could have determined that Victim suffered physical injury when Defendant dragged her to the car, threw her into the bushes, pulled her hair, or otherwise restrained her \u2014 all actions distinct from the hitting and kicking on which the battery charge was based.\n{26} Second, Frazier is inapposite because the problem in that case does not exist here. Critical to Frazier\u2019s analysis is the fact\nthat the underlying felony increases punishment for a killing to the same level as an intentional killing even when there is no \u201cpremeditation or a depraved mind.\u201d Id. \u00b6 26. In the felony murder context, \u201cthe killer\u2019s mental state is consistent with second[]degree murder.\u201d Id. \u00b6 9. Thus, if punished for both felony murder and the underlying felony, the \u201cdefendant will receive a greater punishment than a defendant who is shown to have killed with a more culpable mental state such as deliberate intent murder.\u201d Id. \u00b6 10. The key to this analysis is the recognition that different mental states determine the level of culpability formurder. See \u00a7 30-2-1; State v. Ortega, 112 N.M. 554, 564, 817 P.2d 1196, 1206 (1991), abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. For example, first degree murder requires the intent to kill or \u201cindifference for the value of human life.\u201d State v.Ibn Omar-Muhammad, 102 N.M. 274, 278, 694 P.2d 922, 926 (1985); see \u00a7 30-2-1(A). Second degree murder, however, requires only the knowledge that the defendant\u2019s conduct \u201ccreate[s] a strong probability of death or great bodily harm.\u201d Section 30-2-1(B). It is axiomatic that we punish intentional conduct more severely than unintentional conduct. See 1 Wharton\u2019s Criminal Law \u00a7 27 (15th ed. 2012); Ortega, 112 N.M. at 562, 817 P.2d at 1204. In the felony murder context, when a defendant is sentenced for both felony murder and the underlying felony, he is punished more severely than one who acted with intent to kill, a result contrary to the schema of the murder statute. See Frazier, 2007-NMSC-032, \u00b6 10. In contrast, in the kidnapping context, the mental state for first and second degree kidnapping is the same: in this case, the intent to inflict physical injury. The mental state that makes a perpetrator culpable for kidnapping is constant whether there is a physical injury or not. Punishment for both kidnapping and the conduct that caused physical injury, therefore, does not create the same arbitrary result as discussed in Frazier because the defendant is not punished more severely than someone with a \u201cmore culpable mental state.\u201d Id.\n{27} We conclude that the kidnapping statute is not analogous to the felony murder statute and the battery and kidnapping in this case were not unitary as a matter of law. Since we determine that Defendant\u2019s conduct was neither factually unitary nor unitary as a matter of law, there is no reason to proceed to the second prong of the Swafford analysis. See Swafford, 112 N.M. at 14, 810 P.2d at 1234 (\u201cIf it reasonably can be said that the conduct is unitary, then one must move to the second part of the inquiry. Otherwise, if the conduct is separate and distinct, inquiry is at an end.\u201d). Defendant\u2019s convictions for first degree kidnapping and battery against a household member do not violate the constitutional prohibitions against double jeopardy.\nC. Kidnapping Was Not Incidental to Battery\n{28} Defendant next argues that the Legislature did not intend to punish restraint that is incidental to another crime as kidnapping and cites to other jurisdictions that have interpreted kidnapping statutes to apply only when the restraint or movement has significance independent from the underlying crime. See, e.g., State v. Salamon, 949 A.2d 1092, 1121 (Conn. 2008); State v. Buggs, 547 P.2d 720, 723 (Kan. 1976); People v. Daniels, 459 P.2d 225, 238 (Cal. 1969) (in bank). He argues further that since \u201c[t]he restraint involved here was done for the sole purpose of effectuating [Defendant\u2019s] contact with [Victim] . . . and did not involve more restraint than was necessary to commit the battery as alleged,\u201d the kidnapping conviction should be vacated. The State argues that Defendant failed to preserve these issues and that, even if they were preserved, \u201cdriving a person across miles of desert is [not] necessary to commit battery . . . , given the number of people who have succeeded in committing battery without driving at all.\u201d (internal quotation marks omitted).\n{29} Defendant\u2019s first contention was resolved in State v. Trujillo, 2012-NMCA-112, \u00b6 39, 289 P.3d 238. In that case, the defendant was convicted of kidnapping for holding the victim during a fight in which he and an accomplice beat the victim with a bar. Id. \u00b6\u00b6 2-3. This Court examined the history and purpose of the kidnapping statute and concluded that \u201cthe Legislature did not intend to punish as kidnapping restraints that are merely incidental to another crime.\u201d Id. \u00b6 39. We examined three tests used by other states to determine whether restraint or movement is incidental to another crime. Id. \u00b6\u00b6 32-38. Although we did not adopt a specific test, we vacated the kidnapping conviction, stating that the restraint was incidental under any of the tests because it was \u201cnot longer or greater than that necessary to achieve a battery},] . . . did not subject [the v]ictim to substantially greater risk of harm[,]\u201d and did not facilitate another crime. Id. \u00b639. We stated that it was possible to make this determination on the facts of that case because \u201c[t]he facts [did] not present a \u2018close call.\u2019 \u201d Id. But \u201c[a] more complicated factual scenario would present a jury question \u2014 submitted under appropriate instructions \u2014 as to whether the restraint involved was merely incidental to the other crime.\u201d Id. \u00b6 42. This part of our analysis in Trujillo rested on an assessment of the sufficiency of the evidence to support kidnapping. See State v. Riley, 2010-NMSC-005, \u00b6 12, 147 N.M. 557, 226 P.3d 656 (\u201cIn reviewing the evidence, the relevant question is whether any rational jury could have found each element of the crime to be established beyond a reasonable doubt.\u201d) (internal quotation marks and citation omitted); State v. Ward, 51 A.3d 970, 984 (Conn. 2012) (examining whether the \u201cjury reasonably could have concluded that the evidence adduced at trial established that the defendant was guilty of kidnapping\u201d where the defendant argued that any movement of the victim was incidental to sexual assault under the test expressed in Salamon, 949 A.2d at 1121).\n{30} We apply this analysis to Defendant\u2019s second contention: that any restraint of Victim was incidental to battery. Defendant need not have preserved this argument because it rests on whether the evidence was sufficient to convict him of kidnapping. State v. Stein, 1999-NMCA-065, \u00b6 9, 127 N.M. 362, 981 P.2d 295 (\u201c[T]he question of sufficiency of the evidence to support a conviction may be raised for the first time on appeal.\u201d). Under this standard, \u201can appellate court reviews the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.\u201d Riley, 2010-NMSC-005, \u00b6 12 (alteration, internal quotation marks, and citation omitted). In essence, Defendant argues that there was insufficient evidence that Defendant\u2019s restraint of Victim was not \u201cmerely in furtherance of the ongoing battery and [that it had a significance of its own.\u201d We are unpersuaded. Kidnapping may occur once the \u201c[vjictim\u2019s physical association with [the defendant [is] no longer voluntary.\u201d Pisio, 119 N.M. at 260, 889 P.2d at 868. As discussed above, the jury was instructed that a battery conviction required finding that Defendant hit or kicked Victim. In addition, they heard evidence that Defendant drove Victim from one location to another while restraining her in the car. There was sufficient evidence for the jury to conclude that this conduct was not merely incidental to hitting or kicking her. See Trujillo, 2012-NMCA-112, \u00b6\u00b6 37-38.\nD. Appellant Has Not Established a Prima Facie Case of Ineffective Assistance Based on Defense Counsel\u2019s Failure to Object\n{31} D efendant maintains that his counsel was ineffective because he did not object to character evidence presented at trial and because he failed to file a motion or argue for mitigation at the sentencing hearing. Claims of ineffective assistance of counsel are reviewed de novo. State v. Qui\u00f1ones, 2011-NMCA-018, \u00b6 28, 149 N.M. 294, 248 P.3d 336, cert. denied, 2011-NMCERT-001, 150 N.M. 559, 263 P.3d 901. The two prongs of the test for ineffective assistance claims were stated concisely in State v. Hernandez:\nTo prevail on his claim of ineffective assistance of counsel, . . . [the d] efendant bears the burden of showing both that his attorney\u2019s performance fell below that of a reasonably competent attorney, and that, as a result of his attorney\u2019s incompetence, he suffered prejudice. Absent a showing of both incompetence and prejudice, counsel is presumed competent.\n115 N.M. 6, 16, 846 P.2d 312, 322 (1993) (citation omitted); see Strickland v. Washington, 466 U.S. 668, 687 (1984). The range of conduct that is reasonable is broad; \u201c[i]f we can conceive of a reasonable trial tactic which would explain the counsel\u2019s performance, we should not find ineffective assistance.\u201d Qui\u00f1ones, 2011-NMCA-018, \u00b6 29 (alteration, internal quotation marks, and citation omitted). Prejudice is present when there is a \u201creasonable probability that \u2018but for\u2019 counsel\u2019s unprofessional error, the result of the proceeding would have been different.\u201d Hernandez, 115 N.M. at 17, 846 P.2d at 323 (internal quotation marks and citation omitted). A showing of prejudice presents a high barrier because \u201c[cjounsel\u2019s deficient performance must represent so serious a failure of the adversarial process that it undermines judicial confidence in the accuracy and reliability of the outcome.\u201d Qui\u00f1ones, 2011-NMCA-018, \u00b6 30 (internal quotation marks and citation omitted).\n{32} Defendant argues that defense counsel was ineffective because he failed to object to testimony referring to prior bad acts which was \u201cclearly intended to prove conformity therewith\u201d in violation of Rule 11-404(B)(1) NMRA (\u201cEvidence of a crime, wrong, or other act is not admissible to prove a person\u2019s character in order to show that on a particular occasion the person acted in accordance with the character.\u201d). Specifically, he argues that references in the testimony to his impending court date, prior jail time, and previous altercations were objectionable. During the trial, Victim stated three times that Defendant had a court date the day following the incident. In the course of her testimony, she stated six times that Defendant had said that he did not want to go \u201cback to jail.\u201d At one point, Victim made reference to an incident that allegedly occurred several days earlier. Finally, Victim\u2019s daughter testified that she advised her mother to call the police because \u201cwhy would you want to deal with stuff like this, like someone hitting you all the timeV\u2019 (Emphasis added). She also stated that she had \u201cseen bruises on [Victim]\u201d in the past. Both the State and defense counsel made reference to Defendant\u2019s court date during closing arguments. Defense counsel also mentioned in closing arguments Defendant\u2019s alleged statement that he did not want to go back to jail. Defense counsel did not object to any of these statements, nor did he file any motions in limine to exclude this evidence or request a curative instruction for the jury.\n{33} We agree with the State that even if defense counsel\u2019s failure to object was unreasonable, Defendant has not demonstrated that the outcome of the trial would have been different but for this failure. See Hernandez, 115 N.M. at 16-17, 846 P.2d at 322-23 (\u201cOn review, we need not consider the two prongs of the test in any particular order.\u201d). \u201cAlthough the statements] may have had some prejudicial effect, Defendant has not demonstrated that had th[ese] statements] not come in, the result of the proceeding would have been different.\u201d State v. Trujillo, 2002-NMSC-005, \u00b645, 131 N.M. 709, 42 P.3d 814. In State v. Roybal, the Court considered whether defense counsel was ineffective when he failed to redact portions of a witness\u2019 statement implicating the defendant in a prior murder. 2002-NMSC-027, \u00b6 14, 132 N.M. 657, 54 P.3d 61. After finding that \u201c[t]here is little question . . . that [defense] counsel\u2019s\u201d conduct was unreasonable, id. \u00b6 22, the Court stated that the defendant was prejudiced because \u201cevidence that he had committed a prior murder invites the impermissible inference that, because he had killed in the past, it is more likely that he committed this murder.\u201d Id. \u00b6 26. \u201cUnder the Strickland measure of ineffective assistance of counsel, [however,] mere evidentiary prejudice is not enough.\u201d Roybal, 2002-NMSC-027, \u00b6 25. The Court considered the prejudicial effect \u201cagainst the totality and strength of the evidence of . . . guilt [to] determine if the outcome of the trial has been rendered unreliable.\u201d Id. \u00b6 26. The Court determined that, compared to the evidence against the defendant in that case, the statement \u201cdo[es] not make the reliability of the trial suspect and do[es] not deprive [the defendant of his due process right to a fair trial.\u201d Id. \u00b6 28.\n{34} Similarly, here the State presented testimony by Victim, the officer to whom Victim reported the incident, and Victim\u2019s daughter. The State also presented photographs of Victim\u2019s injuries. Defense counsel\u2019s strategy was to attack Victim\u2019s credibility; he did not call any witnesses nor did he present other evidence. \u201cThe cumulative effect of these . . . items of evidence, even considering Defendant\u2019s efforts to discredit them, are simply too strong for us to conclude\u201d that the trial would have been \u201cany different absent [defense] counsel\u2019s error.\u201d Id. \u00b6 29. Defendant has failed to establish a prima facie case of ineffective assistance based on failure to object.\nE. The District Court Failed to Consider Mitigating Circumstances in Sentencing\n{35} In his second claim of ineffective assistance, Defendant argues that defense counsel failed to argue for mitigating circumstances because he misunderstood the difference between the judge\u2019s power to defer or suspend under NMSA 1978, Section31-203 (1985), and the judge\u2019s power to reduce the sentence by one-third under NMSA 1978, Section 31-18-15.1 (2009). Defendant also argued, albeit glancingly, that the district court failed to consider mitigating circumstances. Both the judge and defense counsel made statements in the sentencing hearings about the judge\u2019s lack of discretion in the kidnapping sentence.\n{36} In order to make a fully informed decision on whether the district court erred by not considering mitigating circumstances, we requested supplemental briefing. See State v. Clemonts, 2006-NMCA-031, \u00b6 10, 139 N.M. 147, 130 P.3d 208; see State v. Nozie, 2009-NMSC-018, \u00b6 15, 146 N.M. 142, 207 P.3d 1119 (stating that \u201can appellate court may decline to address [a claim not fully briefed by the parties], [but] it is not required to do so if the transcripts and briefs are sufficient to present the essential question for review on the merits,\u201d and that \u201cNMRA 12-213 does not require th[e] Court to disregard an issue when an appellant fails to comply with its provisions\u201d) (alterations, internal quotation marks, and citations omitted)). The supplemental briefs addressed the interplay, if any, between Sections 31-18-15.1 and 31-20-3, whether the district court considered mitigating circumstances, and the holding of State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314, as it relates to this case.\n{37} \u201cWe review the trial court\u2019s sentencing for an abuse of discretion.\u201d State v. Jensen, 1998-NMCA-034, \u00b6 19, 124 N.M. 726, 955 P.2d 195. A trial court abuses its discretion when it exercises its discretion based on a misunderstanding of the law. See State v. Elinski, 1997-NMCA-117, \u00b6 8, 124 N.M. 261, 948 P.2d 1209, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. We remand for resentencing because the district court did not consider mitigating circumstances in sentencing. Because our holding renders it unnecessary, we do not address Defendant\u2019s arguments regarding ineffective assistance of counsel based on a failure to move for mitigation.\n{38} At the first sentencing hearing, defense counsel argued that the judge had discretion to suspend a portion of the eighteen-year sentence. He also argued that, although \u201csome time is not inappropriate,\u201d eighteen years is \u201cextravagant.\u201d At that point, the judge asked for the reference to the governing statute and was referred to Section 31-18-15 by defense counsel. This is the statute governing basic sentences, not suspension or deferral of sentences nor mitigation of sentences. The State interjected that the judge \u201cha[d] to read that section in conjunction with [Section] 31-20-3,\u201d which is the statute governing suspensions and deferrals. The judge agreed with the State that under Section 31-20-3, he did not have the authority to suspend or defer sentences for first degree felonies. Later in the hearing, defense counsel requested that the hearing be continued to allow him to prepare a motion for mitigating circumstances. The judge continued the hearing and gave Defendant ten days to file a motion.\n{39} Defense counsel did not file the motion and stated at the next hearing on the matter, \u201cafter an extensive review[,] I would have to . . . agree with the court and [the prosecutor] that this is not one, the two lesser offenses would be available for mitigation, but not the first degree kidnapping.\u201d (Emphasis added.) The judge responded, \u201cwhat I recall reacting to was whether or not I had any discretion in suspending any portion of that eighteen-year sentence, which I don\u2019t. But mitigation, I didn\u2019t even really look at the mitigation statutes, haven\u2019t seen a formal request for mitigation.\u201d He proceeded to hear argument from counsel on sentencing. Defense counsel stated that \u201cas to count one, I think we are basically dealing with something that the court doesn\u2019t have a lot of discretion with ... in a situation like this, you\u2019re looking at basically having to hand down an eighteen-year sentence.\u201d He also stated that \u201clike I said, there\u2019s not much we can do with [the kidnapping sentence], there\u2019s not much argument I can make to that.\u201d After hearing from Defendant, the judge said, \u201cI don\u2019t have any discretion in count one, it\u2019s an eighteen-year mandatory sentence, I don\u2019t have any discretion in that count at all.\u201d\n{40} This understanding of the scope of his authority is partially correct. The judge determined correctly that Section 31-20-3 does not apply to first degree felonies. See \u00a7 31-20-3 (stating that a court may defer or suspend a sentence only for crimes \u201cnot constituting a capital or first degree felony\u201d). This statute does not have any effect, however, on the judge\u2019s ability to alter a sentence based on mitigating circumstances. See State v. Cook, 2006-NMCA-110, \u00b6 21, 140 N.M. 356, 142 P.3d 944. Under Section 31-18-15.1(G), the court may reduce the sentence by up to one-third. Had the court found mitigating circumstances here, the sentence could have been reduced by up to six years.\n{41} The State argues that the district court has no obligation to consider mitigating evidence \u201csua sponte, in the absence of a request from the defense\u201d and that, therefore, this issue is not relevant to this appeal. We disagree. The plain language of the statute imposes a duty on the court. Section 31-18-15.1(A) states that \u201c[t]he court shall hold a sentencing hearing to determine if mitigating or aggravating circumstances exist.\u201d (Emphasis added.); see State v. Ayala, 2006-NMCA-088, \u00b6 6, 140 N.M. 126, 140 P.3d 547. The statute does not prescribe any prerequisites to the district court\u2019s exercise of this duty.\n{42} Furthermore, our cases have recognized the importance of mitigating circumstances in sentencing. In Tomlinson v. State, 98 N.M. 213, 215, 647 P.2d 415, 417 (1982), the Court held that failure to allow a defendant to allocute before sentence is imposed \u201crenders the sentence invalid.\u201d Allocution by the defendant is a form of mitigation evidence. Id. Indeed, the New Mexico Supreme Court defined allocution as \u201cthe formal inquiry or demand made by the court ... to accused at the time for pronouncing sentence as to whether accused has anything to say why sentence should not be pronounced on him.\u201d State v. Setser, 1997-NMSC-004, \u00b6 20, 122 N.M. 794, 932 P.2d 484 (internal quotation marks and citation omitted). Similarly, Black\u2019s Law Dictionary defines allocution as \u201c[a] trial judge\u2019s formal address to a convicted defendant, asking him or her to speak in mitigation of the sentence to be imposed,\u201d or \u201c[a]n unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy ... or say anything else in an effort to lessen the impending sentence.\u201d Black\u2019s Law Dictionary 88 (9th ed. 2009). In Tomlinson, the fact that the district court allowed the defendant to allocate after sentence was imposed was \u201cno more than an empty gesture\u201d because of the potential impact of the defendant\u2019s statement on the sentence. 98 N.M. at 215, 647 P.2d at 417 (\u201cThere is no substitute for the impact on sentencing which a defendant\u2019s own words might have if he chooses to make a statement.\u201d (alteration, internal quotation marks, and citation omitted)). Implicit in the Tomlinson holding is the recognition that if a defendant chooses to speak, the sentencing court must consider his statement before imposing a sentence. See id.\n{43} In Juan, the district court reasoned that, because one-third of a life sentence could not be calculated, a life sentence could not be altered under Section 31-18-15.1. Juan, 2010-NMSC-041, \u00b6 35. \u201cThus, the [district] court did not consider any mitigating evidence and imposed a life sentence, stating that its \u2018hands were tied.\u2019 \u201d Id. (alteration omitted). On appeal, the New Mexico Supreme Court determined that the district court misconstrued Section 31-18-15.1 and held that its failure to consider mitigating evidence was improper. Juan, 2010-NMSC-041, \u00b6\u00b6 39, 43. In that case, the district court\u2019s misapprehension of the law as to his ability to mitigate was error; the result of the error was that mitigating factors were not considered. The Court concluded that the district court \u201cimproperly failed to consider mitigating evidence at [the d]efendant\u2019s sentencing hearing pursuant to Sections 31-18-15 and 31-18-15.1.\u201d Juan, 2010-NMSC-041, \u00b6 43; accord State v. Wilson, 2001-NMCA-032, \u00b6 15, 130 N.M. 319, 24 P.3d 351 (stating that a sentencing \u201chearing is mandatory in all cases and a sentencing court is required to consider . . . mitigating circumstances before imposing any felony sentence\u201d), overruled on other grounds by State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144; Ayala, 2006-NMCA-088, \u00b6 6 (\u201cA district court must hold a sentencing hearing to determine the existence of mitigating or aggravating circumstances.\u201d) (internal quotation marks and citation omitted); cf. State v. Aragon, 2009-NMCA-102, \u00b6 21, 147 N.M. 26, 216 P.3d 276 (holding that even in the absence of a formal motion, the fact that the judge was aware of the potentially mitigating factors when sentencing the defendant was sufficient to eliminate prejudice where the defendant argued ineffective assistance of counsel).\n{44} Here, the district court\u2019s statements at the hearings suggest that he did not consider mitigating evidence. See State v. Bonilla, 2000-NMSC-037, \u00b6 11, 130 N.M. 1, 15 P.3d 491 (rejecting the State\u2019s argument that, because the defendant received a sentence within the statutory guidelines, the sentence was \u201cper se non-violative of a defendant\u2019s rights\u201d and considering the judge\u2019s statements at the hearing). Specifically, his statements that he \u201cdidn\u2019t even really look at the mitigation statutes, haven\u2019t seen a formal request for mitigation[,]\u201d and \u201cI don\u2019t have any discretion in count one, it\u2019s an eighteen-year mandatory sentence, I don\u2019t have any discretion in that count at all[,]\u201d suggest that either he believed a formal motion was required to trigger exercise of that authority or he did not believe he had statutory authority to reduce the sentence. As the State points out, the district court judge granted a continuance of the sentencing hearing to allow defense counsel to file a motion and it is unlikely that he would have done so \u201cif he believed he lacked authority to act on the motion.\u201d When considered in light of the district court\u2019s later statements, however, this circumstance indicates that the judge felt that a motion by defense counsel was required.\n{45} The district court has an obligation to consider mitigating factors in sentencing. Failure to do so, whether based on a misapprehension of the authority given by statute or a belief that a formal motion is required, is an abuse of discretion. We conclude that the district court here did not consider mitigating circumstances and, therefore, remand for resentencing. To be clear, our holding is not a comment on the length of the sentence. \u201cDefendant is entitled to no more than a sentence prescribed by law,\u201d State v. Cumpton, 2000-NMCA-033, \u00b6 12, 129 N.M. 47, 1 P.3d 429, and there is no abuse of discretion when mitigating circumstances are considered and rejected. Our holding is limited to S ection 31-18-15.1\u2019s requirement that the district court consider mitigating circumstances in sentencing.\nCONCLUSION\n{46} We affirm Defendant\u2019s convictions and remand for resentencing consistent with this Opinion.\n{47} IT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nLINDA M. VANZI, Judge", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [ "Gary K. King, Attorney General", "Margaret E. McLean, Assistant Attorney General", "Joel Jacobsen, Assistant Attorney General Santa Fe, NM for Appellee", "Jacqueline L. Cooper, Chief Public Defender", "Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, January 17, 2013,\nNo. 33,936\nCertiorari Denied, January 22, 2013,\nNo. 33,953\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-028\nFiling Date: November 8, 2012\nDocket No. 31,061\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. JORGE LUIS SOTELO, Defendant-Appellant.\nGary K. King, Attorney General\nMargaret E. McLean, Assistant Attorney General\nJoel Jacobsen, Assistant Attorney General Santa Fe, NM for Appellee\nJacqueline L. Cooper, Chief Public Defender\nKimberly Chavez Cook, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0461-01", "first_page_order": 477, "last_page_order": 493 }