{ "id": 15605, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Timothy MORA, Defendant-Appellant", "name_abbreviation": "State v. Mora", "decision_date": "2003-03-20", "docket_number": "No. 22,459", "first_page": "746", "last_page": "755", "citations": [ { "type": "official", "cite": "133 N.M. 746" }, { "type": "parallel", "cite": "69 P.3d 256" }, { "type": "parallel", "cite": "2003-NMCA-072" } ], "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": "114 N.M. 269", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731614 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "274" }, { "page": "867" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0269-01" ] }, { "cite": "116 N.M. 737", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727630 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "738" }, { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0737-01" ] }, { "cite": "103 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711335 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0655-01" ] }, { "cite": "78 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324373 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0127-01" ] }, { "cite": "470 U.S. 856", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300388 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "864-65" } ], "opinion_index": 0, "case_paths": [ "/us/470/0856-01" ] }, { "cite": "116 N.M. 528", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727725 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "532" }, { "page": "1176" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0528-01" ] }, { "cite": "119 N.M. 104", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561263 ], "weight": 2, "pin_cites": [ { "page": "109" }, { "page": "991" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0104-01" ] }, { "cite": "110 N.M. 76", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716944 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "80", "parenthetical": "stating that the \"legislatively-protected interests under the CSPM and CSCM statutes are aimed at protecting the bodily integrity and personal safety of children\"" }, { "page": "412", "parenthetical": "stating that the \"legislatively-protected interests under the CSPM and CSCM statutes are aimed at protecting the bodily integrity and personal safety of children\"" }, { "page": "87" }, { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0076-01" ] }, { "cite": "2001-NMCA-009", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352368 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 21-22" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0130-01" ] }, { "cite": "121 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566569 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "42" }, { "page": "735" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0038-01" ] }, { "cite": "2001-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352261 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0464-01" ] }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "weight": 3, "year": 1932, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "2000-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217146 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 49" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0063-01" ] }, { "cite": "990 P.2d 824", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1999, "pin_cites": [ { "parenthetical": "finding sufficient indicia of distinctness to support separate convictions for false imprisonment and CSCM, where in between the two illegal acts, the child broke free from defendant and was pulled back by defendant where he restrained her a second time" } ], "opinion_index": 0 }, { "cite": "128 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "year": 1999, "pin_cites": [ { "parenthetical": "finding sufficient indicia of distinctness to support separate convictions for false imprisonment and CSCM, where in between the two illegal acts, the child broke free from defendant and was pulled back by defendant where he restrained her a second time" } ], "opinion_index": 0 }, { "cite": "1999-NMCA-144", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106496 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0390-01" ] }, { "cite": "112 N.M. 3", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720274 ], "weight": 25, "year": 1991, "pin_cites": [ { "page": "13" }, { "page": "1233" }, { "page": "13" }, { "page": "1233" }, { "page": "13-14" }, { "page": "1233-34" }, { "page": "14" }, { "page": "1234" }, { "page": "14" }, { "page": "1234" }, { "page": "12" }, { "page": "1232" }, { "page": "11-12" }, { "page": "1231-32" }, { "page": "14" }, { "page": "1234" }, { "page": "15" }, { "page": "1235" }, { "page": "14" }, { "page": "1234" }, { "page": "15" }, { "page": "1235" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0003-01" ] }, { "cite": "1997-NMSC-060", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18088 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 64" }, { "page": "\u00b6 68" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0346-01" ] }, { "cite": "2002-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260670 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0114-01" ] }, { "cite": "122 N.M. 11", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322349 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0011-01" ] }, { "cite": "1996-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0 }, { "cite": "2000-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217148 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 63" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0328-01" ] }, { "cite": "113 N.M. 780", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723308 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "788" }, { "page": "1154" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0780-01" ] }, { "cite": "113 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723212 ], "weight": 2, "pin_cites": [ { "page": "797" }, { "page": "1163" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0789-01" ] }, { "cite": "114 N.M. 472", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731653 ], "weight": 2, "pin_cites": [ { "page": "475" }, { "page": "1241" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0472-01" ] }, { "cite": "1997-NMCA-101", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17518 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 24" }, { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0084-01" ] }, { "cite": "219 F.3d 836", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11198054 ], "weight": 2, "pin_cites": [ { "page": "846-48" } ], "opinion_index": 0, "case_paths": [ "/f3d/219/0836-01" ] }, { "cite": "97 N.M. 723", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555199 ], "weight": 4, "pin_cites": [ { "page": "726" }, { "page": "290" }, { "page": "726" }, { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0723-01" ] }, { "cite": "82 N.M. 526", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332351 ], "weight": 2, "pin_cites": [ { "page": "527" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0526-01" ] }, { "cite": "121 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566519 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "4", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "234", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0001-01" ] }, { "cite": "114 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731591 ], "weight": 2, "pin_cites": [ { "page": "128" }, { "page": "844" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0124-01" ] } ], "analysis": { "cardinality": 1115, "char_count": 26041, "ocr_confidence": 0.703, "pagerank": { "raw": 1.2867819678426516e-07, "percentile": 0.6188509445917504 }, "sha256": "f406e6936e8a84ecb83f102b6e4026574206e3f37c002092766bcaa923c97158", "simhash": "1:85a8fb2e62ee1d62", "word_count": 4226 }, "last_updated": "2023-07-14T15:37:22.762722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: LYNN PICKARD and CYNTHIA A. FRY, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Timothy MORA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nALARID, Judge.\n{1} Defendant Timothy Mora appeals from his convictions for aggravated residential burglary; attempted criminal sexual penetration of a minor (CSPM); criminal sexual contact of a minor (CSCM); kidnaping; and aggravated assault with a deadly weapon. He asserts that: (1) the trial court erred in refusing to allow defense counsel to ask a police witness about Victim\u2019s brother\u2019s failure to identify Defendant from a photo lineup; (2) trial counsel\u2019s failure to call Victim\u2019s brother as a witness constituted ineffective assistance of counsel; (3) Defendant was subjected to double jeopardy when he was convicted of both attempted CSPM and CSCM; and (4) that the evidence was insufficient to support his convictions.\n{2} Concluding that Defendant was convicted of CSCM and attempted CSPM based on unitary conduct and that the legislature has not clearly expressed an intention for multiple punishments for unitary conduct that violates NMSA 1978, Section 30-9-11(0 (2001), and NMSA 1978, Section 30-9-13(A) (2001), we reverse and remand to the trial court with instructions to vacate Defendant\u2019s conviction and sentence for CSCM. We affirm in all other respects.\nBACKGROUND\n{3} On May 23, 1999, the twelve year-old Victim and her eight year-old brother were at home camping out in the den in separate tents. Victim\u2019s mother was asleep in her bedroom and Victim\u2019s father was sleeping on a couch in the living room. Victim testified that she was awoken at approximately 3:45 a.m. by a man in her tent. He was straddling her and pulling down her pants. He lay down on top of her with his pants down, put his fingers down her throat, and with his other hand was either holding her arms up or touching her belly. At first, the man was not doing anything, but then he starting \u201chumping\u201d her and continued to do so for a couple of minutes. She did not think the man ever touched her chest or between her legs. At some point the man pulled a knife out and pressed it into her \u201cgut.\u201d Because Victim was making noise, her brother woke up and began yelling at the man to get out of the house. The man got up, pulled up his pants, looked at her brother for a couple of seconds, and then went out through a sliding glass door.\n{4} Victim\u2019s mother was awoken at approximately 4:00 a.m. by the children, who were screaming. The children told her a man had been in the house. She called 911 and her husband went outside to look for the man. Victim\u2019s mother never saw the intruder. The police arrived and found a knife that did not belong to the household in Victim\u2019s tent. It was determined that in order to gain entry, the intruder had cut and removed the screen from a window which had been left unlocked and open.\nDISCUSSION\nEvidence Regarding Identification of Defendant\n{5} At trial, Detective Brian Link testified that he had composed a six person photo array from which Victim had identified Defendant as being the intruder. She said the man she identified looked similar to the man who had been in her tent. She also identified Defendant as the assailant at trial.\n{6} On cross-examination, defense counsel elicited from the detective that the array had also been shown to Victim\u2019s brother. Defense counsel attempted to ask which individual the brother had picked from the array. The State objected on hearsay grounds. Defense counsel argued that it was not hearsay, because he was not trying to elicit the boy\u2019s statement, and that \u201cit goes for identification.\u201d The prosecutor responded that it was hearsay as it was either a statement or a physical action \u201cmanifesting the statement.\u201d The trial court agreed and sustained the objection.\n{7} Following the detective\u2019s testimony, defense counsel maintained that Victim\u2019s brother had picked an individual other than Defendant from the lineup. Defense counsel argued that the testimony was admissible under Rule 11-803(X) NMRA 2003, the \u201ccatch-all\u201d for hearsay exceptions not otherwise specifically covered; that the testimony was highly probative; and that it \u201cdoes go to the impeaching of the [V]ictim\u2019s testimony because we have 2 separate identifications out of the same incident.\u201d The trial court maintained its ruling under Rule 11-803(X), as well as under Rule 11-403 NMRA 2003. In so ruling, the trial court specifically found that the statement did not fit under Rule 11-803(X) because there was nothing indicating that the statement was more reliable or probative on the issue of identification than the other available evidence. The trial court also found that the statement was inadmissible under Rule 11-403 because it was collateral, did not impeach Victim in any way, and had a potential for prejudice which outweighed its probative value. Victim\u2019s brother was never called to testify.\nAdmissibility of Testimony\n{8} On appeal, Defendant advances two arguments with regard to the admissibility of the detective\u2019s testimony. He argues (1) that the testimony sought simply was not hearsay and (2) that the testimony sought was highly probative impeachment testimony, and that by excluding it, the trial court had impermissibly invaded the province of the jury. \u201cAdmission of evidence is within the sound discretion of the trial court and the trial court\u2019s determination will not be disturbed in the absence of an abuse of that discretion.\u201d State v. Aguayo, 114 N.M. 124, 128, 835 P.2d 840, 844 (Ct.App.1992). \u201cAn abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.\u201d State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995) (internal quotation marks and citation omitted).\n{9} Defendant first argues that the testimony sought by defense counsel, that Victim\u2019s brother picked someone other than Defendant from the photo array, is not hearsay because it was not offered in evidence to prove the truth of the matter asserted. See Rule 11-801(C) (defining hearsay as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted\u201d). We disagree.\n{10} The testimony sought by defense counsel was plainly hearsay. In this case, defense counsel was not offering the statement to demonstrate that the brother made a statement, but rather for the truth of the content of that statement\u2014that the boy picked someone other than Defendant from the array. See State v. Lunn, 82 N.M. 526, 527, 484 P.2d 368, 369 (Ct.App.1971) (finding statements of sons of victims were hearsay because they were admitted, \u201cnot for the purpose of showing that the boys made statements, but for the truth of the contents of those statements\u201d). We are not persuaded by Defendant\u2019s contention that the \u201ctruth\u201d of the statement was that the man the brother identified was in fact the assailant. The truth of the matter asserted, and the reason defense counsel was offering the testimony, was to show that the brother identified someone other than Defendant. As this Court stated in State v. Barela, 97 N.M. 723, 726, 643 P.2d 287, 290 (Ct.App.1982), \u201cthe potential inaccuracy of the identification process itself makes it subject to its very own hearsay rule.\u201d Rule ll-801(D)(l)(e) permits admission of a statement of identification, providing the declarant testifies at the trial or hearing and is subject to cross-examination. \u201cThe proviso that the declarant be subject to cross-examination is the fundamental safeguard in admitting evidence of out-of-court identifications.\u201d Barela, 97 N.M. at 726, 643 P.2d at 290. The brother did not testify at trial and, accordingly, the State was given no opportunity to cross-examine him.\n{11} Defendant also argues that the evidence was not hearsay because it was offered to \u201cimpeach and rebut\u201d Victim\u2019s \u201cweak identification\u201d of Defendant. In support of this argument, Defendant cites one out-of-state case, Actonet, Ltd. v. Allou Health & Beauty Care, 219 F.3d 836, 846-48 (8th Cir.2000) (finding positive magazine review of website to be admissible non-hearsay because it directly impeached and rebutted expert\u2019s testimony that the website was unsatisfactory). This case is inapposite. In Actonet, the proffered evidence directly rebutted the testimony of the defendant\u2019s expert. Id. at 846^47. In this case, the proffered testimony does not directly rebut Victim\u2019s identification. We agree with the trial court\u2019s finding that:\nthe issue then is not whether or not someone else identified a different person, but the issue is whether or not [V]ictim ... identified this person or mis-identified another person____[I]n terms of relevance, I think it[\u2019]s more collateral than it is probative and I think it[\u2019]s more likely to cause confusion or mislead the jury.\n{12} Finally, citing the transcript where the trial court discusses the relative weight of the brother\u2019s identification and Victim\u2019s identification, Defendant argues that the trial court impermissibly substituted its judgment for that of the jury by refusing the testimony. We disagree. Defendant complains that the trial court, outside the presence of the jury, stated that there was \u201cnothing that would indicate that the out of [court] statement is more reliable than anything else,\u201d and \u201cthe issue is whether or not the [Vjietim of this case identified this person or mis-identified another person and this does not go to that.\u201d However, these statements by the trial court were in response to Defendant\u2019s claim below that the evidence was admissible under Rule 11-803(X), which requires that the judge determine whether the \u201cstatement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.\u201d See Rule 11-803(X)(2). The judge was appropriately analyzing the evidence under this rule, not stepping into the role of the jury.\nEffectiveness of Defendant\u2019s Trial Counsel\n{13} Defendant claims he received ineffective assistance of counsel due to trial counsel\u2019s failure to pursue the alternative avenue he had of presenting the evidence which he was not permitted to elicit from the detective \u2014 that is to call Victim\u2019s brother to the stand for direct testimony regarding his identification of someone other than Defendant. To prevail on a claim of ineffective assistance of counsel, Defendant \u201cmust prove that defense counsel did not exercise the skill of a reasonably competent attorney and that this incompetent representation prejudiced the defendant\u2019s case, rendering the trial court\u2019s results unreliable.\u201d State v. Crain, 1997-NMCA-101, \u00b6 24, 124 N.M. 84, 946 P.2d 1095 (internal quotation marks and citation omitted). Defendant fails to establish a prima facie case of ineffective assistance of counsel where \u201ca plausible, rational strategy or tactic can explain the conduct of defense counsel.\u201d State v. Swavola, 114 N.M. 472, 475, 840 P.2d 1238, 1241 (Ct.App.1992).\n{14} While arguing for admission of the detective\u2019s testimony regarding the brother\u2019s identification, defense counsel acknowledged that he had conducted a pre-trial interview of Victim\u2019s brother. Thus, the record shows that defense counsel did investigate this witness and did not simply fail to pursue an obvious defense. \u201cTrial counsel\u2019s strategic choice made as a result of investigation as to what defense to pursue is virtually unchallengeable.\u201d Crain, 1997-NMCA-101, \u00b6 25, 124 N.M. 84, 946 P.2d 1095 (internal quotation marks and citation omitted). Judging from defense counsel\u2019s decision to interview the brother as a potential witness and his acknowledgment of this at the very time he was moving for admission of the hearsay testimony, we presume defense counsel was aware of his option to call the brother as a witness, but made a tactical decision not to do so. Defense counsel\u2019s strategy seems to have been to try to get this evidence before the jury through the detective\u2019s testimony, rather than through the eight-year-old brother, who would have been subject to cross-examination on the point and may well have identified Defendant in court. \u201cThe decision whether to call a witness is a matter of trial tactics and strategy within the control of trial counsel.\u201d State v. Orosco, 113 N.M. 789, 797, 833 P.2d 1155, 1163 (Ct.App.1991), aff'd, 113 N.M. 780, 788, 833 P.2d 1146, 1154 (1992); accord State v. Harrison, 2000-NMSC-022, \u00b6 63, 129 N.M. 328, 7 P.3d 478 (rejecting a claim of ineffective assistance and concluding that \u201c[d]efense counsel made a tactical decision before trial not to hire a polygraph expert and to rely on his own cross-examination of [the State\u2019s expert].\u201d). This Court will not second guess the trial strategy and tactics of defense counsel. Churchman v. Dorsey, 1996-NMSC-033, \u00b6 18, 122 N.M. 11, 919 P.2d 1076. We find no merit to Defendant\u2019s claim that defense counsel was ineffective.\nDouble Jeopardy\n{15} At his sentencing hearing, Defendant argued that the trial court could not convict and sentence him for both attempted CSPM under Section 30-9-11(0 and for CSCM under Section 30-9-13(A) without violating his constitutional right to be free from double jeopardy. The trial court disagreed and convicted and sentenced Defendant for both offenses, running the sentences concurrently.\n{16} Consistent with his position at the sentencing hearing, Defendant contends on appeal that the trial court\u2019s ruling violates his constitutional right to be free from double jeopardy because it constitutes multiple punishment for the same offense. We review double jeopardy claims de novo. State v. Segura, 2002-NMCA-044, \u00b6 7, 132 N.M. 114, 45 P.3d 54.\n{17} The constitutional prohibition against double jeopardy \u201cprotects against both successive prosecutions and multiple punishments for the same offense.\u201d State v. Mora, 1997-NMSC-060, \u00b6 64, 124 N.M. 346, 950 P.2d 789. In this case we are faced with multiple punishments, rather than successive prosecutions. Our analysis of this issue turns on two questions: (1) was Defendant\u2019s conduct unitary; and (2) if so, did the legislature intend to impose multiple punishments for such unitary conduct. See Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991).\n{18} With regard to the first prong of the test, we will find that conduct is not unitary when the illegal acts are \u201cseparated by sufficient indicia of distinctness.\u201d Id. at 13, 810 P.2d at 1233. \u201cThe court may consider as \u2018indicia of distinctness\u2019 the separation of time or physical distance between the illegal acts, \u2018the quality and nature\u2019 of the individual acts, and the objectives and results of each act.\u201d Mora, 1997-NMSC-060, \u00b6 68, 124 N.M. 346, 950 P.2d 789 (quoting Swafford, 112 N.M. at 13-14, 810 P.2d at 1233-34). The State contends that the conduct underlying the offenses in this case is not unitary, arguing that Defendant\u2019s action of lying on Victim constituted CSCM and his action of preparing to \u201chump\u201d her constituted attempted CSPM. We are not persuaded by this distinction and find that Defendant\u2019s actions can only be reasonably deemed to constitute unitary conduct. The contact and attempted penetration all took place within the same short space of time, with no physical separation between the illegal acts. Cf. State v. Cordova, 1999-NMCA-144, \u00b6 23, 128 N.M. 390, 993 P.2d 104, cert. granted, 128 N.M. 150, 990 P.2d 824 (1999) (finding sufficient indicia of distinctness to support separate convictions for false imprisonment and CSCM, where in between the two illegal acts, the child broke free from defendant and was pulled back by defendant where he restrained her a second time).\n{19} Having determined that the conduct was unitary, we reach the second step in the Swafford analysis, which asks \u201cwhether the legislature intended multiple punishments for unitary conduct.\u201d Swafford, 112 N.M. at 14, 810 P.2d at 1234. The double jeopardy clause does not prevent the legislature from authorizing multiple punishments for the same conduct. See State v. Nunez, 2000-NMSC-013, \u00b6 49, 129 N.M. 63, 2 P.3d 264. However, when, as in this case, the statutes at issue do not contain a clear expression of legislative intent to create separately punishable offenses, we must apply the test articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to the elements of each statute, to see whether each provision requires proof of an additional fact which the other does not. Swafford 112 N.M. at 14, 810 P.2d at 1234.\nIf that test establishes that one statute is subsumed within the other, the inquiry is over and the statutes are the same for double jeopardy purposes \u2014 punishment cannot be had for both.\nConversely, if the elements of the statutes are not subsumed one within the other, then the Blockburger test raises only a presumption that the statutes punish distinct offenses.\nId.\n{20} Defendant argues that, under the specific facts of this case, the elements of CSCM are completely subsumed as a lesser included offense of attempted CSPM. We agree that under the specific facts of this case, the contact was the action that constituted the attempted penetration as well, hence our finding of unitary conduct. However, when applying the Blockburger analysis, we do not look to the specific facts of the case because\nfor purposes of a double jeopardy inquiry, \u201ca court would find an offense to be a lesser-included offense of another only if the statutory elements of the lesser offense are a sub-set of the statutory elements of the greater offense such that it would be impossible ever to commit the greater offense without also committing the lesser offense.\u201d\nState v. Santillanes, 2001-NMSC-018, \u00b6 29, 130 N.M. 464, 27 P.3d 456 (emphasis in original) (quoting State v. Meadors, 121 N.M. 38, 42, 908 P.2d 731, 735 (1995)). We only examine the specific facts of the ease when determining whether a defendant is entitled to a jury instruction on a lesser included offense. See Swafford, 112 N.M. at 12, 810 P.2d at 1232.\n{21} Additionally, in this case, we are comparing the elements of a compound offense with many alternate ways of being charged (attempted criminal sexual penetration) with another multi-purpose statute written with many alternatives (criminal sexual contact). See \u00a7 30-9-11(0), NMSA 1978, \u00a7 30-28-1 (1963), and \u00a7 30-9-13(A). When applying the Blockburger test to compound offenses or offenses which may be charged in alternate ways, as we are doing in this ease, we look only to the elements of the statutes as charged to the jury and disregard the inapplicable statutory elements. See State v. LeFebre, 2001-NMCA-009, \u00b6\u00b6 21-22, 130 N.M. 130, 19 P.3d 825.\n{22} The jury instruction for attempted CSPM required the jury to find that Defendant intended to commit CSPM and began to do an act which constituted a substantial part of that crime, but that he failed to commit CSPM. The jury instruction for CSCM required a finding that Defendant \u201cunlawfully and intentionally touched or applied force to the intimate parts\u201d of Victim. Ways can be envisioned whereby a defendant could intend to commit CSPM and begin to do an act which constitutes a substantial part of CSPM without committing an act of CSCM. Conversely an assailant could commit an act of CSCM without attempting to commit CSPM. Thus, for purposes of double jeopardy, the offenses at issue in this case cannot be characterized as lesser-included and greater-inclusive crimes because they each contain different elements and stand independently in relation to one another. See Swafford, 112 N.M. at 11-12, 810 P.2d at 1231-32. Accordingly, the presumption is that the two statutes punish different offenses. Id. at 14, 810 P.2d at 1234.\n{23} That presumption, however, may be overcome by other indicia of legislative intent. Id. The State argues that there is no clear legislative intent to overcome the presumption, and that accordingly both convictions should stand. However, unless an intent to punish separately can be found through an examination of legislative intent, lenity is indicated, and it is to be presumed the legislature did not intend pyramiding punishments for the same unitary conduct. Id. at 15, 810 P.2d at 1235.\n{24} We look first to the purposes of the two statutes because if they are \u201cdirected toward protecting different social norms and achieving different policies [they] can be viewed as separate and amenable to multiple punishments.\u201d Id. at 14, 810 P.2d at 1234. The State acknowledges that the New Mexico Supreme Court has previously stated that the purpose of the statutes prohibiting both CSCM and CSPM is the same. See State v. Pierce, 110 N.M. 76, 80, 792 P.2d 408, 412 (1990) (stating that the \u201clegislatively-protected interests under the CSPM and CSCM statutes are aimed at protecting the bodily integrity and personal safety of children\u201d). In determining legislative intent we also look to the quantum of punishment. Swafford, 112 N.M. at 15, 810 P.2d at 1235. The quantum of punishment authorized for these offenses also fails to indicate any legislative intent for multiple punishments. \u201cWhere one statutory provision incorporates many of the elements of a base statute, and extracts a greater penalty than the base statute, it may be inferred that the legislature did not intend punishment under both statutes.\u201d Id. Defendant\u2019s CSCM conviction was under Section 30-9-13(A), making it a third-degree felony. CSPM is a first-degree felony, see \u00a7 30-9-11(0; and attempted CSPM, of which Defendant was convicted, is a second-degree felony, see \u00a7 30-28-1 (stating attempt to commit a first-degree felony is a second-degree felony). Although the two offenses have different elements, the fact that the punishment for attempted CSPM is greater than the punishment for CSCM is also a point in favor of Defendant\u2019s position. See State v. Fuentes 119 N.M. 104, 109, 888 P.2d 986, 991 (Ct.App.1994) (stating that even when two offenses stand alone, with independent elements, the fact that punishment for one is greater than the other is one point in favor of determining the legislature did not intend multiple punishments).\n{25} Despite the majority of the indicators demonstrating a legislative intent not to punish unitary conduct as both CSCM and attempted CSPM, the State contends that because the statutes are distinct, punishment can be had for both crimes. In so arguing, the State reiterates the fact that each crime can be committed without committing the other and also relies on the different legislative purposes behind offenses aimed at protecting adults from sexual crimes and those aimed at protecting children from those same crimes. These arguments beg the question as the distinctness of the statutes were already addressed in performing the Blockburger test, and we simply are not faced with any charges of CSC or CSP against an adult. Both offenses at issue in this case prohibit conduct against minors.\n{26} Finally, the State urges that State v. Trevino, 116 N.M. 528, 865 P.2d 1172 (1993), compels a finding that Defendant\u2019s convictions do not violate double jeopardy. In Trevino, our Supreme Court found that the statute prohibiting contributing to the delinquency of a minor (CDM) has a broader purpose than the statute prohibiting CSCM and that convictions for those two offenses do not violate the protections against double jeopardy. Id. at 532, 865 P.2d at 1176. As this case does not involve CDM, but rather two offenses which our Supreme Court has specifically stated have the same purpose, Trevino does not bear on this analysis.\n{27} We do not believe the legislature has manifested any clear intent that a defendant could be convicted for attempted CSPM and CSCM for unitary conduct. To the contrary, the canons of construction, found in Swafford, demonstrate a legislative intent to disallow multiple punishment in this context. We note that, although the trial court in this case imposed concurrent sentences for Defendant\u2019s two convictions, the double jeopardy violation is not harmless, because \u201c \u2018[t]he second conviction, even if it results in no greater sentence, is an impermissible punishment.\u2019 \u201d Pierce, 110 N.M. at 87, 792 P.2d at 419 (quoting Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985)).\nSufficiency of the Evidence\n{28} Finally, because Defendant would be entitled to dismissal of the charges against him if we were to find in his favor regarding the sufficiency of the evidence, we summarily address that issue. No claim is made that the evidence does not support proof as to any specific required element of the offenses charged. Rather, pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967) and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct.App.1985), Defendant asserts a general absence of sufficient evidence to support the convictions. Having reviewed the evidence in the light most favorable to the verdict, we conclude that there was sufficient evidence to support Defendant\u2019s convictions beyond a reasonable doubt. See State v. Vernon, 116 N.M. 737, 738, 867 P.2d 407, 408 (1993); State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992).\nCONCLUSION\n{29} We hold that Defendant\u2019s convictions for both CSCM and attempted CSPM based on unitary conduct violate the constitutional prohibition against double jeopardy. We reverse and remand to the trial court with instructions to vacate Defendant\u2019s conviction and sentence for CSCM. We affirm in all other respects.\n{30} IT IS SO ORDERED.\nWE CONCUR: LYNN PICKARD and CYNTHIA A. FRY, Judges.", "type": "majority", "author": "ALARID, Judge." } ], "attorneys": [ "Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.", "John B. Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2003-NMCA-072\n69 P.3d 256\nSTATE of New Mexico, Plaintiff-Appellee, v. Timothy MORA, Defendant-Appellant.\nNo. 22,459.\nCourt of Appeals of New Mexico.\nMarch 20, 2003.\nCertiorari Denied, No. 28,013, May 7, 2003.\nPatricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.\nJohn B. Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0746-01", "first_page_order": 778, "last_page_order": 787 }