{ "id": 3671259, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Michael J. ARMENDARIZ, Defendant-Appellant", "name_abbreviation": "State v. Armendariz", "decision_date": "2006-10-11", "docket_number": "No. 24,448", "first_page": "712", "last_page": "720", "citations": [ { "type": "official", "cite": "140 N.M. 712" }, { "type": "parallel", "cite": "148 P.3d 798" }, { "type": "parallel", "cite": "2006-NMCA-152" } ], "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": "94 N.M. 762", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573164 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "764", "parenthetical": "refusing to review an allegedly improper prosecutorial statement when defendant made no timely objection" }, { "page": "153", "parenthetical": "refusing to review an allegedly improper prosecutorial statement when defendant made no timely objection" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0762-01" ] }, { "cite": "104 N.M. 88", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594971 ], "weight": 2, "pin_cites": [ { "page": "96" }, { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0088-01" ] }, { "cite": "2005-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929212 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0092-01" ] }, { "cite": "122 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322311 ], "weight": 2, "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": "\u00b6 45" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0646-01", "/nm/122/0655-01" ] }, { "cite": "86 N.M. 388", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824364 ], "weight": 2, "pin_cites": [ { "page": "392" }, { "page": "1008" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0388-01" ] }, { "cite": "100 N.M. 210", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588539 ], "weight": 2, "pin_cites": [ { "page": "214-15" }, { "page": "330-31" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0210-01" ] }, { "cite": "116 N.M. 807", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727699 ], "weight": 2, "pin_cites": [ { "page": "815" }, { "page": "1197" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0807-01" ] }, { "cite": "99 N.M. 353", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584607 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "355-56", "parenthetical": "recognizing that the prosecutor's characterization of the defendant as a \"chola punk\" was inappropriate but finding that any prejudice that might have resulted was adequately cured by instructions to the jury to disregard it" }, { "page": "430-31", "parenthetical": "recognizing that the prosecutor's characterization of the defendant as a \"chola punk\" was inappropriate but finding that any prejudice that might have resulted was adequately cured by instructions to the jury to disregard it" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0353-01" ] }, { "cite": "1998-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827365 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 46" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0132-01" ] }, { "cite": "2002-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183137 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 49" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0709-01" ] }, { "cite": "111 N.M. 309", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715084 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "314" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0309-01" ] }, { "cite": "111 N.M. 357", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715214 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "361" }, { "page": "628" }, { "page": "362" }, { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0357-01" ] }, { "cite": "134 P.3d 121", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "139 N.M. 430", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2006-NMCERT-004", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "119 P.3d 1267", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "138 N.M. 330", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2005-NMCERT-008", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2005-NMCA-108", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2549682 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 31" }, { "page": "\u00b6\u00b6 31-33" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0244-01" ] }, { "cite": "113 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723276 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "225" }, { "page": "1027" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0221-01" ] }, { "cite": "2005-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224590 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0723-01" ] }, { "cite": "2000-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106574 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 67" }, { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0482-01" ] }, { "cite": "119 N.M. 252", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561267 ], "weight": 2, "pin_cites": [ { "page": "262" }, { "page": "870" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0252-01" ] }, { "cite": "2001-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352481 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 36" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0227-01" ] }, { "cite": "120 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558841 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "523", "parenthetical": "finding non-unitary conduct when the victim was killed \"more than two hours [after], [and] nearly sixty miles distant from the abduction\"" }, { "page": "834", "parenthetical": "finding non-unitary conduct when the victim was killed \"more than two hours [after], [and] nearly sixty miles distant from the abduction\"" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0517-01" ] }, { "cite": "1999-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827421 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 18, 34" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0646-01" ] }, { "cite": "1997-NMCA-101", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17518 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b6\u00b6 21-22" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0084-01" ] }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "weight": 7, "year": 1932, "pin_cites": [ { "page": "304" }, { "page": "304" }, { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "1997-NMSC-058", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 17186 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 59" }, { "page": "\u00b6\u00b6 61-62" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0277-01" ] }, { "cite": "112 N.M. 3", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720274 ], "weight": 24, "year": 1991, "pin_cites": [ { "page": "8" }, { "page": "1228" }, { "page": "13-14" }, { "page": "1233-34" }, { "page": "14" }, { "page": "1234" }, { "page": "13-14" }, { "page": "1233-34" }, { "page": "14" }, { "page": "1234" }, { "page": "14" }, { "page": "1234" }, { "page": "8, 14" }, { "page": "1228, 1234" }, { "page": "14-15" }, { "page": "1234-35" }, { "page": "15" }, { "page": "1235", "parenthetical": "\"Where 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.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0003-01" ] }, { "cite": "2006-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2544090 ], "weight": 10, "year": 1991, "pin_cites": [ { "page": "\u00b6 25" }, { "page": "\u00b6 27" }, { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0211-01" ] }, { "cite": "1997-NMSC-060", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18088 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 64" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0346-01" ] }, { "cite": "2001-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352408 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0551-01" ] }, { "cite": "2003-NMCA-072", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15605 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0746-01" ] } ], "analysis": { "cardinality": 1044, "char_count": 24855, "ocr_confidence": 0.686, "pagerank": { "raw": 7.174087926727676e-08, "percentile": 0.42959879128088163 }, "sha256": "78cf6ad382c7f4ea656e342e48b0339548e1fd4a2fe80b14d84b44f5d568dfcd", "simhash": "1:f9247d04644a970c", "word_count": 3899 }, "last_updated": "2023-07-14T22:21:44.975087+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE, Chief Judge and CYNTHIA A. PRY, Judge." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Michael J. ARMENDARIZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} Defendant appeals his convictions for one count of false imprisonment, one count of aggravated burglary, and two counts of criminal sexual penetration in the second degree (CSP II). Defendant argues that his convictions for false imprisonment and aggravated burglary violate the prohibition against double jeopardy because they are based on unitary conduct and are subsumed within his CSP II convictions. Defendant also argues that his convictions for two counts of CSP II violate double jeopardy because there was only one continuous course of conduct. Finally, Defendant argues that he was denied a fair trial based on the prosecutor\u2019s improper comments.\n{2} We reverse in part and affirm in part. Because Defendant\u2019s convictions for aggravated burglary and false imprisonment violate his constitutional right to be free from double jeopardy, we vacate those convictions. We affirm Defendant\u2019s convictions for two counts of CSP II.\nBACKGROUND\n{3} Victim testified as follows. She was asleep in her bedroom and woke up when someone jumped on top of her. The assailant, whom Victim later identified as Defendant, told her to perform oral sex and Defendant\u2019s penis touched her lips. Defendant also penetrated Victim\u2019s vagina with his penis. After Defendant ejaculated he let Victim go, at which time she ran to the bathroom and locked the door. She rinsed herself off, eventually came out, and saw Defendant still sitting on her bed. While Victim was screaming at and chasing Defendant out of her home, she asked him how he entered. Defendant indicated that he entered her residence through the kitchen window.\nDOUBLE JEOPARDY\n{4} Defendant argues that his convictions for aggravated burglary and false imprisonment violate the prohibition against double jeopardy. Defendant also argues that his convictions for two counts of CSP II are impermissible on double jeopardy grounds. We review Defendant\u2019s double jeopardy claim de novo. See State v. Mora, 2003-NMCA-072, \u00b6 16, 133 N.M. 746, 69 P.3d 256. We \u201cindulge in all presumptions in favor of the verdict\u201d when reviewing the facts. See State v. McClendon, 2001-NMSC-023, \u00b6 5, 130 N.M. 551, 28 P.3d 1092 (internal quotation marks and citation omitted).\n{5} The protection 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; U.S. Const. amend. V; N.M. Const, art. II, \u00a7 15 (stating that no person shall \u201cbe twice put in jeopardy for the same offense\u201d). The double jeopardy prohibition against multiple punishments relates to two general categories: (1) \u201cunit of prosecution,\u201d which prohibits charging a defendant with \u201cmultiple violations of a single statute based on a single course of conduct\u201d and (2) \u201cdouble-description,\u201d which prohibits charging a defendant with \u201cviolations of multiple statutes for the same conduct\u201d in violation of the legislature\u2019s intent. State v. DeGraff, 2006-NMSC-011, \u00b6 25, 139 N.M. 211, 131 P.3d 61; see also Swafford v. State, 112 N.M. 3, 8, 810 P.2d 1223, 1228 (1991). Defendant\u2019s arguments that his CSP II, false imprisonment, and aggravated burglary convictions are based on the same conduct raise double-description issues. Defendant\u2019s argument that his convictions for two counts of CSP II are based on a single course of conduct raises a unit of prosecution issue.\nDOUBLE DESCRIPTION\n{6} We address double jeopardy claims involving double description under the two-part analysis set forth in Swafford, 112 N.M. at 13-14, 810 P.2d at 1233-34. First, we determine whether the conduct is unitary. Id. If the conduct is non-unitary, multiple punishments do not violate the Double Jeopardy Clause, and our analysis ends. Id. at 14, 810 P.2d at 1234. Second, if the conduct can reasonably be said to be unitary, we address \u201cwhether the legislature intended multiple punishments.\u201d Id. If the legislature intended multiple punishments, there is no double jeopardy violation even though the conduct for the offenses is unitary. Id.\n{7} The issue of whether conduct is unitary under the first part of a Swafford analysis requires a careful review of the evidence. As recognized in State v. Cooper, 1997-NMSC-058, \u00b6 59, 124 N.M. 277, 949 P.2d 660, \u201cunitary conduct\u201d is more easily defined by what it is not. Conduct is non-unitary if sufficient \u201cindicia of distinctness\u201d separate the illegal acts. Id. Such indicia of distinctness are present when \u201ctwo events are sufficiently separated by either time or space (in the sense of physical distance between the places where the acts occurred).\u201d Swafford, 112 N.M. at 13-14, 810 P.2d at 1233-34. But if time and space considerations are not determinative, \u201cresort must be had to the quality and nature of the acts or to the objects and results involved.\u201d Id. There are sufficient indicia of distinctness when one crime is completed before another. DeGraff, 2006-NMSC-011, \u00b6 27, 139 N.M. 211, 131 P.3d 61. There are also sufficient indicia of distinctness when the conviction is supported by at least two distinct acts or forces, one which completes the first crime and another which is used in conjunction with the subsequent crime. Id. In both situations, the key inquiry is whether the same force was used to commit both crimes. See id. \u00b6 30.\n{8} If the conduct underlying two offenses is unitary, we engage in the second part of the Swafford analysis to determine whether the legislature intended multiple punishments for the same conduct. Absent any express legislative authorization of multiple punishments for the crimes at issue, we ascertain legislative intent by applying the test from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under this test, we ask \u201cwhether each provision requires proof of a fact which the other does not,\u201d id. at 304, 52 S.Ct. 180, and, if not, \u201cone 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.\u201d Swafford, 112 N.M. at 14, 810 P.2d at 1234. If each statute requires proof of a fact that the other does not, we presume that the legislature intended multiple punishments. Id. That presumption can, however, be rebutted by other evidence of legislative intent. Id.\naggravated burglary and CSP II\n{9} Defendant argues that his conduct was unitary because there were insufficient indicia of distinctness differentiating the acts underlying his aggravated burglary conviction from those underlying his CSP II convictions. He argues that his aggravated burglary was not completed until he committed battery against Victim, and that he only committed one battery, which was the same force used to perpetrate the CSP II. The State argues that the acts were not unitary because the aggravated burglary was completed \u201cat the time that Defendant grabbed the victim,\u201d whereas the CSP II was not completed until moments later. We agree with Defendant.\n{10} In the present case, no indicia of distinctness between the aggravated burglary and the CSP II acts are present. Defendant was charged with aggravated burglary, which required that he \u201ctouched or applied force to [Victim] in a rude or angry manner.\u201d The force used to complete aggravated burglary \u2014 Defendant\u2019s acts of lying on top of Victim, grabbing Victim by her hair and flipping her over \u2014 constituted the same force used to restrain Victim to accomplish CSP II. See State v. Crain, 1997-NMCA-101, \u00b6 17, 124 N.M. 84, 946 P.2d 1095 (holding that conduct constituting CSP II and kidnapping was unitary because the defendant was charged with both offenses based on \u201cthe use of farce during the same act of sexual intercourse\u201d). No intervening struggle interrupted the two events. See Cooper, 1997\u2014NMSC-058, \u00b6\u00b6 61-62, 124 N.M. 277, 949 P.2d 660 (finding non-unitary conduct when a struggle \u201cwas an intervening event between the initial battery and the acts that caused the death\u201d). Defendant did not attack Victim with multiple weapons. See State v. Foster, 1999-NMSC-007, \u00b6\u00b6 18, 34, 126 N.M. 646, 974 P.2d 140 (finding conduct to be non-unitary when the defendant used a glass ashtray to hit the victim and an extension cord to strangle her to death). There was no change in location. See State v. Kersey, 120 N.M. 517, 523, 903 P.2d 828, 834 (1995) (finding non-unitary conduct when the victim was killed \u201cmore than two hours [after], [and] nearly sixty miles distant from the abduction\u201d). Finally, Defendant\u2019s intent in lying on top of Victim and flipping her over \u2014 the last act of his aggravated burglary \u2014 was to commit CSP II. See State v. Barrera, 2001-NMSC-014, \u00b6 36, 130 N.M. 227, 22 P.3d 1177 (finding non-unitary conduct because the defendant \u201capproached the victim with the intent to steal the truck, but ... he shot the victim to silence her\u201d). The conduct underlying Defendant\u2019s convictions for CSP II and aggravated burglary was therefore unitary.\n{11} We must next determine the legislature\u2019s intent. The statutes do not expressly allow multiple punishments. See NMSA 1978, \u00a7 30-9-11 (2001) (amended 2003); NMSA 1978, \u00a7 30-16-4 (1963). We therefore apply the Blockburger test, determining whether each statute requires proof of a fact that the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. 180. We conclude that aggravated burglary is subsumed within CSP II when, as here, conviction for CSP II requires proof that Defendant had sexual contact with Victim \u201cduring the commission of aggravated burglary.\u201d Our result is dictated by DeGraff, 2006-NMSC-011, \u00b6 26, 139 N.M. 211, 131 P.3d 61, in which our Supreme Court recognized that, because \u201c[t]here can be no conviction for killing in the course of a felony without proof of all of the elements of the felony,\u201d \u201cthe predicate felony is subsumed within the offense of felony murder, and cannot support a separate conviction.\u201d See also State v. Pisio, 119 N.M. 252, 262, 889 P.2d 860, 870 (Ct.App.1994) (\u201c[T]he constitutional protection against double jeopardy precludes multiple punishment for both the greater offense of CSP II, felony, and the aggravating factor, kidnapping, when the conduct is unitary.\u201d). Because aggravated burglary is subsumed within CSP II, Defendant\u2019s convictions for both aggravated burglary and CSP II impose a greater punishment than that intended by the legislature. We therefore vacate Defendant\u2019s aggravated burglary conviction.\nFALSE IMPRISONMENT AND CSP II\n{12} Defendant also argues that the court erred in failing to vacate his false imprisonment conviction. We again engage in a Swafford analysis, addressing first whether the conduct was unitary and, if so, examining whether the legislature intended multiple punishments for the unitary conduct.\n{13} Victim awakened when Defendant was on top of her. While verbally assaulting Victim, Defendant restrained Victim and both orally and vaginally penetrated Victim with his penis. Upon completion of the sexual conduct, Defendant released Victim, thus simultaneously completing both the false imprisonment and the CSP II. The same force used to effect false imprisonment was used to commit CSP II. The conduct was therefore unitary. See State v. Allen, 2000-NMSC-002, \u00b6 67, 128 N.M. 482, 994 P.2d 728 (noting that conduct would not be unitary if \u201cthe perpetrator forcibly abducted the victim before attempting sexual penetration or continued to use force or restraint after the sex act was completed\u201d).\n{14} Because we have concluded that the conduct underlying Defendant\u2019s convictions for CSP II and false imprisonment was unitary, we must determine whether the legislature intended multiple punishments for false imprisonment and CSP II. The statutes at issue in this case do not expressly provide for multiple punishment. See \u00a7 30-9-11; NMSA 1978, \u00a7 30-4-3 (1963). We must therefore apply the Blockburger test and compare the elements of the relevant statutes to determine whether the legislature intended multiple punishments. See Swafford, 112 N.M. at 14, 810 P.2d at 1234.\n{15} \u201cWhen applying the Blockburger test to ... offenses that may be charged in alternate ways, we look only to the elements of the statutes as charged to the jury and disregard the inapplicable statutory elements.\u201d See State v. Armijo, 2005-NMCA-010, \u00b6 22, 136 N.M. 723, 104 P.3d 1114. Defendant\u2019s convictions for CSP II require that the jury find that Defendant caused Victim to engage in sexual conduct during the commission of an aggravated burglary. See \u00a7 30-9-11(D)(5). Because commission of aggravated burglary is an element of CSP II, we also consider the charged elements of aggravated burglary in our Blockburger analysis: that Defendant \u201centered a dwelling without authorization;\u201d that Defendant did so \u201cwith the intent to commit a criminal sexual penetration or false imprisonment once inside;\u201d and that Defendant \u201ctouched or applied force to [Victim] in a rude or angry manner while entering or leaving, or while inside.\u201d See \u00a7 30-16^4(C). Defendant\u2019s conviction for false imprisonment requires that Defendant \u201crestrained or confined [Victim] against her will\u201d when he \u201cknew that he had no authority\u201d to do so. See \u00a7 30-4-3.\n{16} Defendant\u2019s conviction for false imprisonment is not subsumed within his CSP II convictions because each required proof of a fact that the other did not. On the one hand, Defendant\u2019s CSP II convictions required proof of sexual conduct perpetrated in the commission of aggravated burglary. Defendant\u2019s false imprisonment conviction did not. On the other hand, Defendant\u2019s false imprisonment conviction required that Defendant restrained Victim against her will when he knew that he had no authority to do so. While Defendant\u2019s CSP II convictions required proof that Defendant \u201cknew or should have known that permission to enter [Victim\u2019s apartment] had been denied,\u201d they do not require proof of Defendant\u2019s knowledge that he had no authority to restrain Victim. Because false imprisonment and CSP II each requires proof of a fact that the other does not, a presumption arises that the legislature intended multiple punishments. Swafford, 112 N.M. at 8, 14, 810 P.2d at 1228, 1234.\n{17} But this presumption is not conclusive and may be overcome by other indicia of legislative intent, such as a strong similarity in the social evils to be proscribed or a significant difference in the quantum of punishment allowed. Id. at 14-15, 810 P.2d at 1234-35. We also consider whether the statutes are usually violated together. State v. Gonzales, 113 N.M. 221, 225, 824 P.2d 1023, 1027 (1992). As to the social evils proscribed, \u201c[t]he CSP statute is designed to prevent unwanted sexual violence while the false imprisonment statute is designed to prevent unlawful restraint of any sort.\u201d State v. Fielder, 2005-NMCA-108, \u00b6 31, 138 N.M. 244, 118 P.3d 752, cert. granted, 2005-NMCERT-008, 138 N.M. 330, 119 P.3d 1267, and cert. quashed, 2006-NMCERT-004, 139 N.M. 430, 134 P.3d 121. Based on this factor, the statutes may be viewed as amenable to multiple punishments. However, the differing quantum of punishments for the respective crimes suggests otherwise. Defendant\u2019s convictions for CSP II are punishable by nine-year sentences, see NMSA 1978, \u00a7 31-18-15(A)(2) (1993) (amended 2005), whereas eighteen months could have been imposed for false imprisonment. See \u00a7 31-18-5(A)(4); Swafford, 112 N.M. at 15, 810 P.2d at 1235 (\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). One additional factor persuades us that the legislature did not intend to authorize punishments for both false imprisonment and CSP II arising out of the same conduct. As we have recognized, CSP II and false imprisonment are offenses that, as a practical matter, are committed together. See Crain, 1997-NMCA-101, \u00b6\u00b6 21-22, 124 N.M. 84, 946 P.2d 1095 (noting that force or restraint is \u201cnecessarily involved in every sexual penetration without consent\u201d); see also Fielder, 2005-NMCA-108, \u00b6\u00b6 31-33, 138 N.M. 244, 118 P.3d 752 (finding that, although restraint is \u201cnecessarily\u201d committed with CSP, the legislature nonetheless intended to authorize multiple punishments for CSP III and false imprisonment because the social evils are different and the quantum of punishment is similar). As a result, because commission of CSP II usually, if not always, involves commission of false imprisonment, but is punishable by a significantly greater sentence, we hold that the legislature did not intend multiple punishments for false imprisonment and CSP II in this case.\n{18} We lastly note that, contrary to Defendant\u2019s representation, we do not agree that the prosecutor conceded that the false imprisonment conviction violated double jeopardy principles. A review of the transcript shows that the parties disputed the application of double jeopardy. Because the district court apparently believed that double jeopardy issues may be resolved by concurrent sentencing, the district court declined to rule on Defendant\u2019s argument. A sentencing merger, however, fails to correct a double jeopardy violation. See Mora, 2003-NMCA-072, \u00b6 27, 133 N.M. 746, 69 P.3d 256 (holding that a double jeopardy violation was not rendered harmless by concurrent sentencing). We vacate Defendant\u2019s conviction for false imprisonment.\nUNIT OF PROSECUTION\n{19} Defendant argues that his two convictions for CSP II violate the double jeopardy prohibition against \u201cunit of prosecution\u201d multiple punishments. Herron v. State, 111 N.M. 357, 361, 805 P.2d 624, 628 (1991), sets forth six factors for addressing whether distinct criminal sexual penetrations have occurred during a continuous attack:\n(1) temporal proximity of penetrations (the greater the interval between acts the greater the likelihood of separate offenses); (2) location of the victim during each penetration (movement or repositioning of the victim between penetrations tends to show separate offenses); (3) existence of an intervening event; (4) sequencing of penetrations (serial penetrations of different orifices, as opposed to repeated penetrations of the same orifice, tend to establish separate offenses); (5) defendant\u2019s intent as evidenced by his conduct and utterances; and (6) number of victims ( ... multiple victims will likely give rise to multiple offenses).\nWe need not consider all of the Herron factors because Herron also states that \u201c[except for penetrations of separate orifices with the same object, none of these factors alone is a panacea, but collectively they will assist in guiding future prosecutions.\u201d Id. at 362, 805 P.2d at 629. Because Defendant\u2019s penis penetrated Victim\u2019s mouth and vagina, the evidence supports the conclusion that the CSP II offenses were separate and distinct. Defendant\u2019s convictions for two counts of CSP II therefore do not violate his right to be free from double jeopardy.\nPROSECUTORIAL MISCONDUCT\n{20} Defendant argues that he was denied a fair trial based on the prosecutor\u2019s improper comments. Specifically, Defendant refers to the prosecutor\u2019s voir dire characterization of the events as \u201ccrimes,\u201d \u201cburglary,\u201d and an \u201cunauthorized entry ... into the victim\u2019s home.\u201d Defendant further characterizes as prosecutorial misconduct the prosecutor\u2019s reference to Defendant as \u201ca rapist,\u201d as well as the prosecutor\u2019s statement that \u201cwhat you\u2019re going to hear about in this case is that there was sexual intercourse forced to the victim.\u201d Defendant also generally asserts that the prosecutor \u201cwas allowed to instruct the venire on the law.\u201d Defendant lastly argues, without any reference to the transcript, that the prosecution during closing argument improperly referred to Defendant as \u201ca rapist and a burglar.\u201d\n{21} We review Defendant\u2019s claims of prosecutorial misconduct under an abuse of discretion standard. See State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991); see also State v. Trujillo, 2002-NMSC-005, \u00b6 49, 131 N.M. 709, 42 P.3d 814 (noting that the \u201ctrial court is in the best position to evaluate the significance of any alleged prosecutorial errors\u201d) (internal quotation marks and citation omitted). In addressing Defendant\u2019s arguments, we consider \u201cwhether the prosecutor\u2019s improprieties had such a persuasive and prejudicial effect on the jury\u2019s verdict that the defendant was deprived of a fair trial.\u201d See State v. Duffy, 1998-NMSC-014, \u00b6 46, 126 N.M. 132, 967 P.2d 807.\n{22} Regarding the prosecutor\u2019s voir dire comments, we agree with the State that the prosecutor\u2019s reference to \u201ccrimes,\u201d including the specific reference to burglary, unauthorized entry, and \u201cforced intercourse\u201d was not inappropriate as these identified the charged crimes. Similarly, the prosecutor\u2019s references to terms used in the jury instructions did not instruct the jurors on the law, but instead were made in the context of exploring potential jurors\u2019 attitudes about the sensitive subject of the CSP II crimes and therefore were not unfairly prejudicial. Further, although any reference by the prosecutor to Defendant - as a \u201crapist\u201d and \u201cburglar\u201d was arguably inappropriate, such reference does not merit reversal without a clear demonstration of prejudice. See State v. Martinez, 99 N.M. 353, 355-56, 658 P.2d 428, 430-31 (1983) (recognizing that the prosecutor\u2019s characterization of the defendant as a \u201cchola punk\u201d was inappropriate but finding that any prejudice that might have resulted was adequately cured by instructions to the jury to disregard it); State v. Chavez, 116 N.M. 807, 815, 867 P.2d 1189, 1197 (Ct.App.1993) (finding no misconduct in the prosecutor\u2019s characterization of the defendant as \u201ca \u2018loose cannon,\u2019 a \u2018macho tough guy,\u2019 and a \u2018very, very dangerous\u2019 person\u201d because it \u201ccould arguably be justified\u201d by the evidence); State v. Diaz, 100 N.M. 210, 214-15, 668 P.2d 326, 330-31 (Ct.App.1983) (noting that extensive use of \u201cvituperative language\u201d by the prosecutor, such as references to the defendant as \u201ca \u2018yo yo\u2019, as \u2018stupid\u2019, as a \u2018thief, and as a \u2018crook\u2019 \u201d inflamed the jury and, in combination with other misconduct, warranted reversal); State v. Vigil, 86 N.M. 388, 392, 524 P.2d 1004, 1008 (Ct.App.1974) (finding that, in light of evidence that the defendant had been convicted of petty theft and other crimes, the prosecutor\u2019s characterization of the defendant as a \u201cpunk\u201d was \u201ca comment on the evidence not amounting to reversible error\u201d).\n{23} Unlike State v. Breit, 1996-NMSC-067, \u00b6 45, 122 N.M. 655, 930 P.2d 792, in which the prosecutor\u2019s misconduct was \u201cunrelenting and pervasive\u201d and included inflaming the jury with irrelevant allegations, exaggerating claims without evidentiary support, belittling the defendant\u2019s fundamental right to remain silent, and suggesting that opposing counsel were lying, the comments in the present case were isolated and of little, if any, impact. See State v. Boergadine, 2005-NMCA-028, \u00b6 31, 137 N.M. 92, 107 P.3d 532 (holding that comments constituting an \u201cisolated, minor impropriety\u201d did not deprive the defendant of a fair trial) (internal quotation marks and citation omitted); State v. Taylor, 104 N.M. 88, 96, 717 P.2d 64, 72 (Ct.App.1986) (noting that isolated comments were not so pervasive or prejudicial as to deprive the defendant of a fair trial).\n{24} As for the prosecutor\u2019s comments during closing argument, Defendant made no objections to these comments. See State v. Tafoya, 94 N.M. 762, 764, 617 P.2d 151, 153 (1980) (refusing to review an allegedly improper prosecutorial statement when defendant made no timely objection). Although this Court will review, in the absence of an objection, \u201ccertain categories of prosecutorial misconduct that compromise a defendant\u2019s right to a fair trial\u201d \u2014 such as comments on a defendant\u2019s right to silence \u2014 any reference to Defendant as a \u201crapist\u201d or \u201cburglar\u201d does not fall within these categories. Allen, 2000-NMSC-002, \u00b6 27, 128 N.M. 482, 994 P.2d 728.\nCONCLUSION\n{25} We affirm Defendant\u2019s convictions for two counts of CSP II. We reverse and remand to vacate Defendant\u2019s convictions for false imprisonment and aggravated burglary, with instructions that Defendant be resentenced consistent with this opinion.\n{26} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE, Chief Judge and CYNTHIA A. PRY, Judge.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.", "John Bigelow, Chief Public Defender, Vicki W. Zelle, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2006-NMCA-152 148 P.3d 798\nSTATE of New Mexico, Plaintiff-Appellee, v. Michael J. ARMENDARIZ, Defendant-Appellant.\nNo. 24,448.\nCourt of Appeals of New Mexico.\nOct. 11, 2006.\nCertiorari Denied, No. 30,085, Nov. 27, 2006.\nCertiorari Granted, No. 30,127, Dec. 14, 2006.\nPatricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.\nJohn Bigelow, Chief Public Defender, Vicki W. Zelle, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0712-01", "first_page_order": 748, "last_page_order": 756 }