{ "id": 352443, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Gordon HOUSE, Defendant-Appellant", "name_abbreviation": "State v. House", "decision_date": "2001-01-04", "docket_number": "No. 20,438", "first_page": "418", "last_page": "428", "citations": [ { "type": "official", "cite": "130 N.M. 418" }, { "type": "parallel", "cite": "25 P.3d 257" }, { "type": "parallel", "cite": "2001-NMCA-011" } ], "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": "1999-NMCA-026", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827380 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/126/0699-01" ] }, { "cite": "88 N.M. 160", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837956 ], "weight": 2, "pin_cites": [ { "page": "162" }, { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0160-01" ] }, { "cite": "85 N.M. 597", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776921 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "598", "parenthetical": "noting courts should avoid unconstitutional construction of statutes" }, { "page": "1094", "parenthetical": "noting courts should avoid unconstitutional construction of statutes" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0597-01" ] }, { "cite": "241 U.S. 394", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8287957 ], "weight": 3, "year": 1916, "pin_cites": [ { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/us/241/0394-01" ] }, { "cite": "2000-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106514 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0588-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 3, "year": 2000, "pin_cites": [ { "parenthetical": "exempting fact of prior conviction from its requirement that facts that increase penalty be proven beyond a reasonable doubt" }, { "page": "2362-63", "parenthetical": "exempting fact of prior conviction from its requirement that facts that increase penalty be proven beyond a reasonable doubt" }, { "parenthetical": "exempting fact of prior conviction from its requirement that facts that increase penalty be proven beyond a reasonable doubt" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "116 N.M. 705", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727667 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "706", "parenthetical": "\"[0]n a doubtful or deficient record, we presume regularity and correctness in the proceedings below.\"" }, { "page": "1173", "parenthetical": "\"[0]n a doubtful or deficient record, we presume regularity and correctness in the proceedings below.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0705-01" ] }, { "cite": "122 N.M. 374", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322330 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0374-01" ] }, { "cite": "1996-NMCA-105", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0 }, { "cite": "112 N.M. 654", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720198 ], "weight": 2, "pin_cites": [ { "page": "658" }, { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0654-01" ] }, { "cite": "173 F.3d 898", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11625225, 3669043 ], "weight": 2, "pin_cites": [ { "page": "901" }, { "page": "903", "parenthetical": "\"In the standard equal protection case the legislature is fully entitled to weigh one characteristic more heavily than another....\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/173/0898-01", "/us-app-dc/335/0359-01" ] }, { "cite": "89 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868394 ], "weight": 2, "pin_cites": [ { "page": "153" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0150-01" ] }, { "cite": "112 N.M. 702", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720244 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "708", "parenthetical": "affirming disparate treatment of mentally ill defendants found insane and those found guilty, but mentally ill, as rationally related to a legitimate state interest" }, { "page": "255", "parenthetical": "affirming disparate treatment of mentally ill defendants found insane and those found guilty, but mentally ill, as rationally related to a legitimate state interest" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0702-01" ] }, { "cite": "79 N.M. 748", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2746532 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "752", "parenthetical": "reviewing issue as argued" }, { "page": "660", "parenthetical": "reviewing issue as argued" } ], "opinion_index": 0, "case_paths": [ "/nm/79/0748-01" ] }, { "cite": "108 N.M. 560", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592749 ], "weight": 3, "pin_cites": [ { "page": "561" }, { "page": "763" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0560-01" ] }, { "cite": "908 P.2d 1379", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1566678 ], "year": 1995, "pin_cites": [ { "page": "1384" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0111-01" ] }, { "cite": "84 N.M. 416", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770954 ], "weight": 4, "pin_cites": [ { "page": "417" }, { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0416-01" ] }, { "cite": "136 P. 47", "category": "reporters:state_regional", "reporter": "P.", "year": 1913, "pin_cites": [ { "page": "49" } ], "opinion_index": 0 }, { "cite": "18 N.M. 246", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4696467 ], "year": 1913, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/nm/18/0246-01" ] }, { "cite": "1997-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 142282 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0014-01" ] }, { "cite": "817 P.2d 730", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "112 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720221 ], "opinion_index": 0, "case_paths": [ "/nm/112/0537-01" ] }, { "cite": "109 N.M. 119", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590226 ], "weight": 2, "pin_cites": [ { "page": "128" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0119-01" ] }, { "cite": "357 P.2d 839", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1960, "pin_cites": [ { "page": "844" } ], "opinion_index": 0 }, { "cite": "9 Cal.Rptr. 607", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1960, "pin_cites": [ { "page": "612" } ], "opinion_index": 0 }, { "cite": "55 Cal.2d 11", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4381182 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/cal-2d/55/0011-01" ] }, { "cite": "111 N.M. 357", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715214 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "361" }, { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0357-01" ] }, { "cite": "1996-NMSC-068", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 322338 ], "weight": 3, "pin_cites": [ { "page": "\u00b630" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0596-01" ] }, { "cite": "721 P.2d 604", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10410374 ], "year": 1986, "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/p2d/721/0604-01" ] }, { "cite": "95 Cal.Rptr. 547", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "year": 1971, "pin_cites": [ { "page": "552", "parenthetical": "Sims, Assoc. J., concurring and dissenting in part" }, { "parenthetical": "Citations omitted." } ], "opinion_index": 0 }, { "cite": "18 Cal.App.3d 75", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4405262 ], "year": 1971, "pin_cites": [ { "parenthetical": "Sims, Assoc. J., concurring and dissenting in part" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/18/0075-01" ] }, { "cite": "696 P.2d 134", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "137", "parenthetical": "In Bank" }, { "page": "137" } ], "opinion_index": 0 }, { "cite": "38 Cal.3d 345", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 1977099 ], "year": 1985, "pin_cites": [ { "parenthetical": "In Bank" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/38/0345-01" ] }, { "cite": "103 N.M. 364", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711354 ], "weight": 4, "pin_cites": [ { "page": "374" }, { "page": "1184" }, { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0364-01" ] }, { "cite": "603 S.W.2d 121", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9931969 ], "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/sw2d/603/0121-01" ] }, { "cite": "1999-NMCA-081", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257774 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0504-01" ] }, { "cite": "2000-NMCA-017", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106523 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0752-01" ] }, { "cite": "110 N.M. 76", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716944 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "86-87", "parenthetical": "recognizing propriety of charging in the alternative, but requiring merger of redundant convictions" }, { "page": "418-19", "parenthetical": "recognizing propriety of charging in the alternative, but requiring merger of redundant convictions" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0076-01" ] }, { "cite": "119 N.M. 169", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561279 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "173" }, { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0169-01" ] }, { "cite": "117 N.M. 707", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552742 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "708-09", "parenthetical": "concluding denial of a Rule 5-801 motion is a final, appealable order" }, { "page": "223-24", "parenthetical": "concluding denial of a Rule 5-801 motion is a final, appealable order" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0707-01" ] }, { "cite": "109 N.M. 374", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590264 ], "weight": 2, "pin_cites": [ { "page": "379" }, { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0374-01" ] }, { "cite": "122 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322311 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/122/0655-01" ] }, { "cite": "1996-NMSC-067", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 322280, 322311 ], "pin_cites": [ { "page": "\u00b612" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0646-01", "/nm/122/0655-01" ] }, { "cite": "121 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566641 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/nm/121/0445-01" ] }, { "cite": "1996-NMCA-024", "category": "reporters:neutral", "reporter": "NMCA", "weight": 3, "pin_cites": [ { "page": "\u00b6 38" }, { "page": "\u00b6\u00b6 32, 38" }, { "page": "\u00b6\u00b6 31, 38" } ], "opinion_index": 0 }, { "cite": "1999-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257791 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/nm/127/0151-01" ] } ], "analysis": { "cardinality": 1348, "char_count": 31925, "ocr_confidence": 0.712, "pagerank": { "raw": 2.1188731450131332e-07, "percentile": 0.7642182999858292 }, "sha256": "3fd3dba0facb229ed25d5cccb4ba23b98a10a03cc3d8c46de63d8102f3b00f3f", "simhash": "1:db3757c2e2a9ae61", "word_count": 4979 }, "last_updated": "2023-07-14T18:57:26.853949+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: LYNN PICKARD, Chief Judge, MICHAEL D. BUSTAMANTE, Judge." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Gordon HOUSE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nARMIJO, Judge.\n{1} In this appeal, Gordon House (Defendant) appeals from the sentence imposed upon remand, arising from the incident of Christmas Eve 1992. Previously, our Supreme Court affirmed Defendant\u2019s convictions. See State v. House, 1999-NMSC-014, 127 N.M. 151, 978 P.2d 967. Pursuant to the State\u2019s concession before this Court, the matter was then remanded for reformation of the sentence. Defendant now challenges his re-sentencing. We affirm the judgment of the district court.\nFACTUAL AND PROCEDURAL BACKGROUND\n{2} On Christmas Eve 1992, Defendant drove his vehicle the wrong way onto Interstate 40 (1^10); that is, he entered the highway driving east in the west-bound lane. Other travelers, including a police officer, noted Defendant\u2019s vehicle traveling in this manner at a high rate of speed. Defendant collided with another vehicle, killing a mother and her three children, and leaving the father grievously injured.\n{3} Officers on the scene concluded, in addition to his reckless driving, that Defendant had been drinking that evening, such that it impaired his ability to operate a motor vehicle. They arrested him, and he was subsequently tried on four counts of DWI-related vehicular homicide, four counts of reek-less-driving-related vehicular' homicide, one count of DWI-related grievous bodily injury with a motor vehicle, and one count of reckless-driving-related grievous bodily injury with a motor vehicle.\n{4} The State charged the DWI-related and reckless-driving-related theories in the alternative. That is, after pleading each of the DWI-related counts, the State pled, \u201cOR IN THE ALTERNATIVE: VEHICULAR HOMICIDE (RECKLESS DRIVING)\u201d and \u201cOR IN THE ALTERNATIVE: GREAT BODILY INJURY BY VEHICLE (RECKLESS [DRIVING]).\u201d Similarly, the jury was instructed on the theories as alternatives, the DWI-related charges being prioritized.\n{5} The jury convicted Defendant on each of these counts, and the district court imposed a sentence of three years on one count of grievous bodily injury with a motor vehicle and three years each on eight counts of vehicular homicide four based upon a driving-while-intoxicated (DWI) theory, and four upon a reckless-driving theory. While retaining the redundant convictions-in violation of Defendant\u2019s protections against double jeopardy, see State v. Landgraf, 1996-NMCA-024, \u00b6 38, 121 N.M. 445, 913 P.2d 252 \u2014 the district court imposed concurrent sentences on the alternate vehicular homicide theories. Finally, in light of Defendant\u2019s pri- or misdemeanor DWI conviction, the district court imposed a ten-year enhancement in accordance with NMSA 1978, \u00a7 66-8-101(D) (1991); that is, one two-year enhancement for each DWI-related vehicular homicide conviction. Defendant thus received a total sentence of twenty-five years.\n{6} As noted above, Defendant previously sought reversal of his convictions and sentence in New Mexico\u2019s appellate courts alleging seven claims of error: (1) error in the transfer of venue; (2) error in the make-up of the jury; (3) error in the district court\u2019s denial of his motion to dismiss after two mistrials; (4) error in using his prior DWI conviction to enhance his sentence; (5) error upon the retention of and sentencing upon alternative counts for each homicide and injury; (6) error on various matters within the discretion of the trial court; and (7) error regarding the role of the Navajo Nation in his trial. Notably, the State conceded error regarding entry of the eight homicide convictions and sentences during proceedings before this Court and, in response, Defendant moved \u201cthis [C]ourt to vacate the four NMSA 1978[,] \u00a7 [ ] 66-8-101(a) (reckless driving) convictions as constitutionally infirm. Additionally!,][D]efendant\u2019s NMSA 1978[,] \u00a7 [ ]66-8-101(b) (great bodily harm/reckless driving) conviction is constitutionally infirm as well and must be vacated.\u201d This Court did not grant the motion. Our Supreme Court subsequently affirmed Defendant\u2019s convictions, see House, 1999-NMSC-014,- \u00b6 113, 127 N.M. 151, 978 P.2d 967, and remanded the matter for reformation of the sentence.\n{7} On remand, the district court afforded the precise relief Defendant sought previously before this tribunal; that is, it vacated each of Defendant\u2019s convictions which were based upon a reckless-driving theory. While curing the double jeopardy violation, this reformation left intact Defendant\u2019s sentence of twenty-five years. It is this aspect of Defendant\u2019s re-sentencing that is now before this Court. He again appeals. In turn, the State argues that the doctrine of law of the ease forecloses Defendant\u2019s appeal on this issue.\nDISCUSSION\n{8} Defendant\u2019s arguments range widely; however, broadly read, he states five arguments: (1) our vehicular homicide statute is \u201cirreducibly ambiguous\u201d as to which theory, DWI-related or reckless-driving-related vehicular homicide, takes priority in the event of convictions under both theories; (2) our statute is ambiguous as to the appropriate unit of prosecution; (3) the statute\u2019s enhancement provision is unconstitutionally ambiguous; (4) the enhancement provision violates equal protection and due process; and (5) the district court violated his due process rights in denying his motion to recuse the trial judge. He also invokes, albeit without substantive argument or application, the doctrine of constitutional doubt. For the reasons discussed below, we affirm Defendant\u2019s sentence in all regards.\n1. This Court has jurisdiction over the present appeal.\n{9} We first address the State\u2019s argument that this Court is without jurisdiction to hear the present appeal. We remain unpersuaded by this argument.\n{10} First, the State argues the doctrine of law of the case forecloses our ability to hear any argument not made on Defendant\u2019s previous appeal. Application of this doctrine is a matter of discretion and is not an inflexible rule of jurisdiction. See State v. Breit, 1996-NMSC-067, \u00b612, 122 N.M. 655, 930 P.2d 792. Also, the doctrine traditionally applies only where a matter has been specifically ruled upon in a prior and final appellate proceeding. See id. But cf. DiMatteo v. County of Dona Ana, 109 N.M. 374, 379, 785 P.2d 285, 290 (Ct.App.1989) (recognizing, in civil context, that law of the ease can prevent party from raising issues not argued in prior related appeal). Neither this Court, nor our Supreme Court, has passed upon any of the issues specifically presented in this appeal, and while it would have been preferable for' Defendant to have brought these claims in his prior appeal, the doctrine of law of the ease does not preclude our review.\n{11} Second, upon issuance of our Supreme Court\u2019s mandate, remanding the matter to the district court in April 1999, Defendant timely filed a Rule 5-801 NMRA 2000 motion for relief from what he claims is an illegal sentence. With one exception, each of Defendant\u2019s claims now presented fall within the jurisdictional scope of this rule, and this Court is therefore vested with jurisdiction to review the remand proceedings. See State v. Neely, 117 N.M. 707, 708-09, 876 P.2d 222, 223-24 (1994) (concluding denial of a Rule 5-801 motion is a final, appealable order).\n{12} Regarding the one exeeption-that is, Defendant\u2019s claim that the district court erred in denying his motion to recuse-that motion was made on remand and Defendant\u2019s appeal therefrom is timely and appropriate. See State ex rel. Village of Los Ranchos de Albuquerque v. City of Albuquerque, 119 N.M. 169, 173, 889 P.2d 204, 208 (Ct.App. 1993).\n{13} For these reasons, we are not persuaded by the State\u2019s argument that this Court cannot hear Defendant\u2019s appeal and turn to the merits of each claim presented.\n2. Section 66-8-101(A) manifests a hierarchy of vehicular homicide offenses.\n{14} In Landgraf, 1996-NMCA-024, \u00b6\u00b6 32, 38, 121 N.M. 445, 913 P.2d 252, this Court recognized that Section 66-8-101 provides the State alternate means for obtaining a conviction; however, it held that if the State obtained convictions on all theories presented to the jury, a single death could only constitute a single homicide. Accord State v. Pierce, 110 N.M. 76, 86-87, 792 P.2d 408, 418-19 (1990) (recognizing propriety of charging in the alternative, but requiring merger of redundant convictions). Because the issue was not raised in Landgraf, this Court expressed no opinion as to which theory \u2014 DWI or reckless driving \u2014 would take priority. Defendant now raises that precise issue. More specifically, Defendant argues that the statute demonstrates no clear legislative intent that one theory take priority over another and thus \u2014 positing that Section 66-8-101 is therefore \u201cirreducibly ambiguous\u201d \u2014 the rule of lenity mandates that the lesser offense of reckless-driving-related vehicular homicide be retained in lieu of the DWI \u2014 related convictions. We reject Defendant\u2019s argument.\n{15} Section 66-8-101 provides alternative theories for proving homicide by unlawful operation of a motor vehicle: (a) driving while under the influence of alcohol or drugs, or (b) reckless driving. See \u00a7 66-8-101(0). No matter the theory by which the State chooses to prosecute, the crime is a third-degree felony. See id. By this light alone, it is unclear whether the Legislature intended that one be viewed as a greater public concern and therefore a greater offense.\n{16} However, Section 66-8-101(D) provides:\nAny person who commits homicide by vehicle or great bodily injury by vehicle while under the influence of intoxicating liquor or while under the influence of any drug, ... who has incurred a prior DWI conviction within ten years of the occurrence for which he is being sentenced ..., shall have his basic sentence increased by two years for each prior DWI conviction.\nThe statute contains no such similar sentence enhancement applicable to vehicular homicide convictions premised upon reckless driving. Accordingly, the Legislature has made clear its intent to impose a greater penalty for DWI \u2014 related violations of the statute, when committed by a recidivist-impaired driver, than for reckless-driving-related violations, regardless of the driving history of the defendant. Defendant\u2019s own argument relies upon this same hierarchy of offenses under the statute; that is, while arguing it is impossible to ascertain which is the greater offense, he invokes the rule of lenity as supporting retention of the reckless driving violation as the lesser offense. We conclude that the Legislature viewed \u2022 DWI \u2014 related violations as the graver or more serious offense. As such, the district court appropriately retained the DWI \u2014 related convictions. See State v. Santillanes, 2000-NMCA-017, \u00b6 9, 128 N.M. 752, 998 P.2d 1203 (\u201c[T]he general rule requires that the lesser offense be vacated.\u201d).\n3. Each homicide constitutes a separate violation of Section 66-8-101(A).\n{17} Section 66-8-101(A) provides: \u201cHomicide by vehicle is the killing of a human being in the unlawful operation of a motor vehicle.\u201d Defendant contends this language fails to unambiguously define the appropriate unit of prosecution. See State v. Barr, 1999-NMCA-081, \u00b6 17, 127 N.M. 504, 984 P.2d 185. He argues it is not clear from the statute\u2019s language whether the Legislature intended to punish the killing of a human being by unlawful operation of a motor vehicle or the unlawful operation of a motor vehicle that results in the killing of a person. In the shadow of this claimed ambiguity, he argues that the unit of prosecution is the unlawful operation of a vehicle. Since his conduct constituted the unitary act of unlawful operation of a motor vehicle, he argues for the vacation of all but one vehicular homicide conviction. We reject Defendant\u2019s position.\n{18} In State v. Irvin, 603 S.W.2d 121,123 (Tenn.1980), cited without discussion in State v. Johnson, 103 N.M. 364, 374, 707 P.2d 1174, 1184 (Ct.App.1985), the Tennessee Supreme Court affirmed a defendant\u2019s multiple convictions for vehicular homicide, premised upon multiple victims, and outlined what has evolved as the majority rule on this issue:\nIn our opinion, when more than one person is killed, there is more than one homicide-regardless of any fictional \u201cintent\u201d or whether the deaths result from a single \u201cact\u201d or a series of acts. It seems illogical to us, as a general proposition, to hold that when two persons have been killed by an accused, he has committed only one homicide.\n{19} An opinion of the California Supreme Court helps clarify the analysis. In Wilkoff v. Superior Court, 38 Cal.3d 345, 211 Cal. Kptr. 742, 696 P.2d 134, 137 (1985) (In Bank), the defendant was charged with multiple counts of DWI \u2014 not vehicular homicide or grievous bodily injury by vehicle \u2014 upon the multiple victims of his alcohol-related car accident. The district court dismissed all but one count of DWI, in adherence to established California precedent. The district attorney appealed, and the California Supreme Court affirmed, noting:\nOur analysis begins with the recognition that a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute-the gravamen of the offense-has been committed more than once. The act prohibited by [the DWI statute] is the act of driving a vehicle while intoxicated and, when so driving, violating any law relating to the driving of a vehicle____ \u201c[T]he question of \u2018bodily injury\u2019 is only of materiality [under the DWI statute] in that it aggravates the offense.... The fact that there are several victims cannot transform the single act into multiple offenses.\u201d\nId. at 137 (quoting People v. Lobaugh, 18 Cal.App.3d 75, 95 Cal.Rptr. 547, 552 (1971) (Sims, Assoc. J., concurring and dissenting in part)). Applying this analysis to the California vehicular manslaughter statute, the California court then observed:\nBy way of contrast, we apply the same analysis to the crime of vehicular manslaughter. The actus reus of vehicular manslaughter is homicide \u2014 the unlawful killing of a human being. When a defendant commits several homicides in the course of a single driving incident, he or she has committed the act prohibited by the statute several times____ \u201c[I]t is settled that under the manslaughter statutes, each victim represents a separate violation, but that in a prosecution under [the DWI statute], the number of violations does not increase with each additional victim.\u201d\nId. (Citations omitted.)\n{20} As these authorities demonstrate, when determining the appropriate unit of prosecution, the focus is upon the prohibited act-or, as the Wilkoff Court put it, the \u201cgravamen of the offense.\u201d Id. at 137. Defendant has failed to cite to any authority, and we have found none, which would hold otherwise. Our review of other jurisdictions considering similar issues reveals that without exception, the subject of punishment of vehicular homicide is the killing of another, not the unlawful operation of a motor vehicle. See generally State v. Dunlop, 721 P.2d 604, 609 (Alaska 1986).\n{21} We are persuaded by the reasoning behind these opinions and conclude that this approach is consistent with our statute and New Mexico law generally.\n{22} First, it is an obvious point to note that the implicated provision\u2019s title is \u201cHomicide by vehicle; great bodily injury by vehicle.\u201d Section 66-8-101. This suggests that the Legislature\u2019s concern in enacting the statute was death and injury caused by vehicle.\n{23} Second, Defendant\u2019s argument ignores our Supreme Court\u2019s opinion in State v. Yarborough, 1996-NMSC-068, \u00b630, 122 N.M. 596, 930 P.2d 131 (recognizing Section 66-8-101 as preempting the general involuntary manslaughter statute where a motor vehicle is the means of the unintentional killing). Implicit in the Court\u2019s holding, Section 66-8-101(A) punishes homicide, not unlawful operation of a motor vehicle.\n{24} Finally, Defendant\u2019s argument largely disregards the general rule that multiple victims will support multiple convictions. See Herron v. State, 111 N.M. 357, 361, 805 P.2d 624, 628 (1991). As this Court noted in Johnson, 103 N.M. at 374, 707 P.2d at 1184:\n[W]here there is but a single violent act and multiple victims, the societal harm is greater. And, thus, the greater the harm, the greater the need to deter such conduct. To hold otherwise would encourage singleaet-multiple-victim type crimes.... As stated by Justice Traynor in Neal v. State, 55 Cal.2d 11, 9 Cal.Rptr. 607, 612, 357 P.2d 839, 844 (1960), \u201cA defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.\u201d\nAccord State v. Moore, 109 N.M. 119, 128, 782 P.2d 91, 100 (Ct.App.1989), overruled on other grounds by State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct.App.1991); Landgraf, 1996-NMCA-024, \u00b6\u00b6 31, 38, 121 N.M. 445, 913 P.2d 252 (recognizing and applying the \u201c \u2018one death, one homicide conviction\u2019 rule\u201d).\n4. Section 66-8-101(D) is not unconstitutionally ambiguous.\n{25} Defendant makes a related argument that Section 66-8-101(D), the enhancement provision, is unconstitutionally ambiguous and that the district court erred in imposing a two-year enhancement for each of Defendant\u2019s five convictions under Section 66-8-101. The district court\u2019s actions resulted in a ten-year total enhancement. Defendant argues that the rule of lenity requires, in light of the claimed ambiguities, that only the general sentence upon the five counts be enhanced (resulting in a single, two-year enhancement). The argument has no merit.\n{26} We adhere to well established rules when reviewing challenges to a criminal statute based upon its claimed ambiguity. We strictly construe criminal provisions, in light of the liberty interests at stake. See, e.g., State v. Anaya, 1997-NMSC-010, \u00b6 31, 123 N.M. 14, 933 P.2d 223 (noting \u201chighly punitive\u201d nature of habitual offender provision as necessitating strict scrutiny). However, criminal statutes \u201care not to be subjected to any strained or unnatural construction in order to work exemptions from their penalties.\u201d Ex Parte DeVore, 18 N.M. 246, 254, 136 P. 47, 49 (1913), quoted in State v. Sweat, 84 N.M. 416, 417, 504 P.2d 24, 25 (Ct.App.1972). \u201c \u2018Such statutes must be interpreted by the aid of the ordinary rules for the construction of statutes, and with the cardinal object of ascertaining the intention of the legislature.\u2019 \u201d Id. Without sound reasons to depart from applying these principles, we presume the Legislature relied upon the common meaning of the words used in drafting the subject statute. See id. We recognize that where \u201c \u2018insurmountable ambiguity persists,\u2019 \u201d despite reliance upon the established rules of construction, the rule of lenity requires that doubts be construed in a defendant\u2019s favor. State v. Rowell, 121 N.M. Ill, 116, 908 P.2d 1379, 1384 (1995). Upon our review, we conclude Section 66-8-101(D) is not ambiguous. We therefore decide the issue without resort to the rule of lenity.\n{27} The enhancement provision states, in pertinent part:\nAny person who commits homicide by vehicle or great bodily injury by vehicle while under the influence of intoxicating liquor or while under the influence of any drug, ... who has incurred a prior DWI conviction within ten years of the occurrence for which he is being sentenced ..., shall have his basic sentence increased by two years for each prior DWI conviction.\nRegarding this provision, Defendant argues: (a) it is unclear whether \u201cbasic sentence\u201d refers to a single sentence entered upon multiple violations of the statute in a single instance or each individual sentence entered upon the several resulting homicides and injuries; (b) it is unclear whether the \u201coccurrence\u201d indicates a legislative focus upon the individual car aceident-that is, the single transaction-or upon each homicide or injury, the latter of which would support individualized convictions arising from the single instance or transaction; and finally (e) the statute mandates an enhancement for \u201ceach prior\u201d DWI conviction, but in this case, the district court enhanced each of his current, multiple convictions.\n{28} Regarding \u201c \u2018basic sentence,\u2019 \u201d State v. Howard, 108 N.M. 560, 561, 775 P.2d 762, 763 (Ct.App.1989), quickly disposes of Defendant\u2019s argument. Therein, this Court held that where a statute attaches an enhancement to a defendant\u2019s \u201c \u2018basic sentence,\u2019 \u201d that statute \u201crequires that the sentence for each of defendant\u2019s current multiple felonies be enhanced on the basis of the prior felony conviction.\u201d Id. (emphasis added). Applying this rule to the case at hand, we have already held that Defendant was properly convicted and sentenced upon five felony counts. Each of these counts supports a separate \u201cbasic sentence.\u201d Accordingly, the statute requires that each basic sentence be enhanced by two years. See \u00a7 66-8-101(D) (providing each basic sentence \u201cshall\u201d be enhanced upon meeting of prerequisite conditions).\n{29} As to \u201cthe occurrence for which he is being sentenced,\u201d this is also answered by our earlier discussion regarding the unit of prosecution. The occurrences for which Defendant was sentenced were the individual homicides he committed and injuries he caused, not his single act of unlawful operation of a motor vehicle.\n{30} And finally, Defendant claims ambiguity in that the statute \u201cis designed to enhance the punishment once for \u2018each prior\u2019 act of DWI misconduct yet the trial court in this case used it to enhance the punishment for each \u2018conviction\u2019 obtained in this trial.\u201d We do not understand this argument as addressing an ambiguity in the statute, per se, but instead, as claiming a misapplication of the enhancement provision in Defendant\u2019s ease. See State v. Thomson, 79 N.M. 748, 752, 449 P.2d 656, 660 (1969) (reviewing issue as argued). Viewing the argument in this manner, we are unpersuaded. As discussed above in- reference to Howard, the district court appropriately imposed a single enhancement, due to Defendant\u2019s single prior DWI conviction, upon each basic sentence. This is not error.\n5. Section 66-8-101(D) does not violate the Fourteenth Amendment.\n{31} Defendant next argues that the district court\u2019s application of the enhancement provision violated his constitutional rights to equal protection and due process. For the reasons discussed below, we affirm as to this issue.\nA. Equal protection.\n{32} Defendant makes a circuitous argument that our vehicular homicide statute\u2019s enhancement provision unconstitutionally violates principles of equal protection. We review Defendant\u2019s claim under the rational basis standard of review. See State v. Neely, 112 N.M. 702, 708, 819 P.2d 249, 255 (1991) (affirming disparate treatment of mentally ill defendants found insane and those found guilty, but mentally ill, as rationally related to a legitimate state interest); State v. Vogenthaler, 89 N.M. 150, 153, 548 P.2d 112, 115 (Ct.App.1976) (determining whether increased criminal punishment for desecration of church, as opposed to other property, passed rational-basis review); see also Fraternal Order of Police v. United States, 173 F.3d 898, 901 (D.C.Cir.1999) (noting analysis of disparate treatment of \u201cdomestic violence misdemeanants as compared to domestic violence felons\u201d is rational-basis review).\n{33} It is difficult to discern which classifications Defendant asserts are similarly situated, yet disparately treated. Defendant appears to claim that Section 66-8-101(D) imposed upon him a greater enhancement-that is, five two-year enhancements, one on each count in light of his prior misdemeanor DWI convietion-than would our general recidivist statute, see NMSA 1978, \u00a7 31-18-17 (1993), upon the sentence imposed on a three-time felon upon conviction for his or her fourth felony-that is, eight years; (b) treats a one-time DWI misdemeanant more harshly, by imposition of a two-year enhancement, than does our general DWI statute, see NMSA 1978, \u00a7 66-8-102 (1993), which can impose only an eighteen-month basic sentence upon a fourth DWI conviction; and (c) impermissibly converts a prior misdemeanor into a felony for sentencing purposes.\n{34} First, we clarify Defendant\u2019s arithmetic. He claims it is irrational that he, a onetime DWI misdemeanant, should receive a ten-year enhancement while a fourth-time felon would receive only an eight-year enhancement. He fails to acknowledge that his enhancement was based not upon imposition of a single enhancement, but five two-year enhancements-one enhancement for each basic sentence. To correct his attempted analogy, a three-time felon subsequently convicted on five felony counts could have his or her total sentence enhanced by forty years, that is, one eight-year enhancement for each of the five basic sentences. Accordingly, the only disparate treatment to which Defendant points, regarding his first argument, redounds to his benefit, not his detriment.\n{35} Second, more importantly, Defendant\u2019s argument ignores that the Section 66-8-101(D) enhancement solely applies to those convicted of killing or seriously hurting others, while Section 31-18-17 applies universally to recidivist felons, many, if not most, of whom are guilty of non-violent crimes. This is a valid basis for disparate treatment. See Fraternal Order of Police, 173 F.3d at 903 (\u201cIn the standard equal protection case the legislature is fully entitled to weigh one characteristic more heavily than another....\u201d).\n{36} Further, it is reasonable to surmise that our Legislature recognized recidivist-impaired drivers as having not learned the lesson that such behavior was socially deviant. See State v. Edmondson, 112 N.M. 654, 658, 818 P.2d 855, 859 (Ct.App.1991) (noting recidivists have, by definition, \u201cdemonstrated the failure of rehabilitation\u201d). Also, it would be rational for the Legislature to substantially increase the punishment of recidivist-impaired drivers, whose failure to reform their behavior, results in death or injury to others. We fail to see how it is irrational to treat a repeat drunk driver more harshly when his or her DWI-related conduct kills or injures someone, than another driver whose recidivist conduct, by luck or miracle, leaves others unhurt. We, accordingly, hold there is rational basis for the differing punishments prescribed by Sections 66-8-101(D) and 66-8-102(G).\n{37} Finally, Defendant asserts that the stacking of prior misdemeanor convictions to create a felony is constitutionally impermissible. Defendant fails to cite any authority discussing the constitutional implications of the conduct he alleges, and further fails to show how the district court committed the wrong he alleges. Nonetheless, we glean from his argument an attempt to correlate his claim with those made in Anaya, 1997 NMSC 10, \u00b6 33, 123 N.M. 14, 933 P.2d 223; that is, he suggests that no number of misdemeanor convictions can add up so as to constitute a felony. Our response to this argument takes us no further than the ruling in Anaya itself: the sum of Defendant\u2019s prior convictions comprises a status for sentencing purposes only.\nB. Due process.\nfl7] {38} Defendant argues that his prior DWI conviction was not proven beyond a reasonable doubt, in violation of his constitutional right to due process. He has, however, failed to present a record adequate for our review of the standard of proof upon which the district court relied. See Drake v. Trujillo, 1996-NMCA-105, \u00b6 18, 122 N.M. 374, 924 P.2d 1386 (noting it is appellant\u2019s burden to present record sufficient for this Court\u2019s review). At the hearing during which Judge Blackmer imposed Defendant\u2019s remand sentence, the court stated that he found \u201cbeyond a reasonable\u201d doubt that Defendant had one prior DWI conviction. In so ruling, the court referenced an evidentiary hearing on the matter. Defendant has failed to present, or even cite to, a transcript of that hearing. Accordingly, granting all presumptions in favor of correctness below in the absence of a complete record, Defendant fails to show that the district court applied any standard, but for that to which he claims he was entitled. See State v. Brown, 116 N.M. 705, 706, 866 P.2d 1172, 1173 (Ct.App. 1993) (\u201c[0]n a doubtful or deficient record, we presume regularity and correctness in the proceedings below.\u201d).\n{39} Moreover, Defendant is not entitled to the standard of proof he claims. As recently and succinctly noted by both our Supreme Court and the United States Supreme Court, the federal constitution requires only that prior convictions, when used to enhance an underlying sentence, be proven upon a preponderance of the evidence. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (exempting fact of prior conviction from its requirement that facts that increase penalty be proven beyond a reasonable doubt); State v. Smith, 2000-NMSC-005, \u00b6 9, 128 N.M. 588, 995 P.2d 1030. Defendant has not preserved, nor has he made, any challenge under the New Mexico Constitution, and we express no opinion as to whether a different standard applies thereunder.\n6. Defendant has waived any appellate challenge regarding his motion to recuse.\n{40} Finally, Defendant challenges the district court\u2019s denial of his motion to recuse Judge Blackmer. Defendant captions his argument as a constitutional challenge to the procedure afforded under New Mexico law. However, he makes no substantive argument regarding the alleged insufficiency of our procedure, relying instead primarily upon recitation of general language pertaining to the need for impartial tribunals. He also appears to challenge the ruling below as an abuse of discretion. Nonetheless, he has not presented to this Court a discussion of the facts relevant to our review. He also fails to note that his motion has already been reviewed not only by the district court, but also by our Supreme Court-neither of which discerned any basis for recusal. We deem the matter waived as insufficiently briefed. See Rule 12-213 NMRA 2000.\n7. Defendant has waived any claim regarding the doctrine of constitutional doubt.\n{41} Finally, Defendant invokes the doctrine of constitutional doubt, which, as Justice Holmes long ago noted, roughly provides that \u201c[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.\u201d United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed. 1061 (1916); cf. Huey v. Lente, 85 N.M. 597, 598, 514 P.2d 1093, 1094 (1973) (noting courts should avoid unconstitutional construction of statutes). While Defendant has summarily invoked the doctrine, he has failed to apply it to the ease before us with even the most remote specificity. Accordingly, we deem any claim regarding it waived. See Rule 12-213; see also State v. Padilla, 88 N.M. 160, 162, 538 P.2d 802, 804 (Ct.App.1975) (deeming abandoned unclear point in error that failed \u201cto give us a hint as to what he is arguing\u201d).\nCONCLUSION\n{42} For these reasons, we affirm the sentence entered below.\n{43} IT IS SO ORDERED.\nWE CONCUR: LYNN PICKARD, Chief Judge, MICHAEL D. BUSTAMANTE, Judge.\n. Subsequent to Defendant\u2019s conviction, the Legislature amended the sentencing statutes, and the maximum basic sentence now available for vehicular homicide is six years. See State v. Guerro, 1999-NMCA-026, V 9, 126 N.M. 699, 974 P.2d 669.\n. Defendant makes no argument for the merger of his single Section 66-8-101(B) conviction with his four separate Section 66-8-101 (A) convictions.", "type": "majority", "author": "ARMIJO, Judge." } ], "attorneys": [ "Patricia A. Madrid, Attorney General, Steven S Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.", "William J. Friedman, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2001-NMCA-011\n25 P.3d 257\nSTATE of New Mexico, Plaintiff-Appellee, v. Gordon HOUSE, Defendant-Appellant.\nNo. 20,438.\nCourt of Appeals of New Mexico.\nJan. 4, 2001.\nCertiorari Denied, No. 26,771, March 8, 2001.\nPatricia A. Madrid, Attorney General, Steven S Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.\nWilliam J. Friedman, Santa Fe, NM, for Appellant." }, "file_name": "0418-01", "first_page_order": 456, "last_page_order": 466 }