IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

1 Opinion Number: _____________ 2
Filing Date: MARCH 6, 2019 3

No. A

- 1

- CA

- 36122 4
STATE OF NEW MEXICO, 5

Plaintiff

- Appellee, 6

v. 7

MILO BENALLY, 8

Defendant

- Appellant. 9

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 10 John A. Dean Jr., District Judge 11 Hector H. Balderas, Attorney General 12 Santa Fe, NM 13 Walter M. Hart III , Assistant Attorney General 14 Albuquerque, NM 15
for Appellee 16 Bennett J. Baur, Chief Public Defender 17 Nina Lalevic, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20OPINION

1
HANISEE , Judge. 2

{1} Defendant appeals from his convictions for two counts of possessi on of a 3 deadly weapon by a prison er in violation of NMSA 1978, Section 30

- 22

- 16 (1986) , 4
for which he was sentenced to consecutive nine

- year terms, or a total of eighteen 5 years’ incarceration

. 1 He contends that neither conviction was supported by 6
substantial e vidence and that the separate convictions violate his right to be free 7 from double jeopardy. We reject Defendant’s challenge to the legal sufficiency of 8 the evidence, but agree that the two convictions violate the prohibition against 9 double jeopardy

. 10
BACKGROUND 11

{ 2 } Prison staff received information from an inmate th at prompted a 12
“shakedown” of the particular area of the prison where Defendant was housed

. 13
This entailed the systematic rem oval of inmates and an ensuing search for 14
contraband , including the bunk and shower areas of the “pod” that was the subject 15
of concern

. The area searched by prison staff was an open , dorm itory

- style space 16 with approx imately six to eight recessed bunk units, each containing about six 17
bunks. 18

1 Defendant also received an eight

- year habitual offender enhancement for each count of conviction, resulting in a total prison sentence of thirty

- four years for the two possession charges.2

{ 3 } Defendant slept on the bottom mattress of a three

- stack bunk, with the 1 middle bunk being vacant. In Defendant’s bunk area were pieces of legal 2 paperwork, mail, and other items that bore only Defendant’s name
. On an “L” 3 shaped support bar of the vacant , mid dle bunk at the top of Defendant’s bunk area , 4 prison staff found a shaving razor with a playing card folded around it to form a 5
handle ( razor weapon ). Upon discovering the razor weapon , prison staff removed 6
the mattress from Defendant’s bunk an d noticed a four

- to five

- inch slit in its side. 7 They cu t open the mattress and found a sharpened piece of the end of a plastic mop 8
handle (mop weapon) concealed within

. Approximately eighty feet away in the 9 shower area of the pod , prison staff next f ound orange plastic shavings that 10
matched the end of a mop handle found in a shower stall and similar residue 11 ground into the concrete lip of the shower pan

. After checking a utility closet that 12
contained items used by inmates to clean their cells, priso n staff also d etermined 13
that an end to one of the plastic mop handles had been removed. 14

{ 4 } Upon discovery of the two makeshift weapons, Deputy Jas on Sherman 15 spoke with Defendant but did not inform him of any specifics associated with the 16 discovery of the weapons

. Deputy Sherman told Defendant only that he wanted to 17 “speak with him about the incident at the jail today.” During th e co nversation, 18 Defendant expressed feelings of “hate and anger ” toward a particular inmate and 19
stated that he wanted to “cut that guy’s head off.” Obliquely r eferring to what was 203

found during the prison search , though not identifying a ny specific item or object 1 by name , Defendant also stated , “Check this out , Sherman. W hat if that thing is 2
mine?” Defendant went on to say that (1) the prison staff should be glad they f ound 3 what they were looking for ; (2) had he been asked , he simply would have told the 4 prison staff to “ pull all the mattresses and that would have be en the end of it ” ; and 5 (3) some things “could have gone down, but that Go d was looking out ” and pulled 6
Defendant through the situation before he “ lost it ” and “something

. . . [went] 7
down.” Despite the se statements , w hen as ked to admit the weapons were his , 8 Defendant declared, “I don’t believe in statements because I could lie and say it 9 ain’t mine and be lying out my ass and still get charged. Or I could say , ‘ Y es , it’s 10
min e ,’ and still get charged with it. ” 11

{ 5 } Defendant was charged with two counts of p ossession of a d eadly w eapon or 12

e xplosive by a p risoner , contrary to Section 30

- 22

- 16

. A t trial , Defendant testified 13
that the razor and mop weapons were not his and he did not know what Deputy 14
Sherman was referr ing to during their conversation following the discovery of the 15

weapons
. The jury returned guilty verdict s on both count s
. 16
DISCUSSION 17
I
. Sufficiency of the Evidence 18

{ 6 } Defendant argues that his conviction s are not supported by substantial 19
evidence

. Specifically, he contends that because “[t]he weapons in this case were 204

accessible to anyone in the pod[,] every inmate in the pod could have exercised 1 control over them[,]” thus precluding a finding that Defendant, and not any other 2 inmate, possessed the weapons. 3

{ 7 } “ To determine whether the evidence presented was sufficient to sustain the 4 verdict, we must decide whether substantial evidence of either a direct or 5 circumstantial nature exists to support a verdict of guilty beyond a reasonable 6 doubt with respect to every element essential to a conviction. ” State v. Brietag , 7
1989

- N MCA

- 019, ¶ 9, 108 N.M. 368, 772 P.2d 898. Substantial evidence consists 8 of relevant evidence that a reasonable mind might accept as adequate to support a 9
conclusion. See State v. Salgado , 1999

- NMSC

- 008, ¶ 25, 126 N.M. 691, 974 P.2d 10
661. We view the e vidence in the light most favorable to the verdict, “ indulging all 11 reasonable inferences and resolving all conflicts in the evidence in favor of the 12
verdict. ” State v. Cunningham , 200 0

- NMSC

- 009, ¶ 26, 128 N.M. 711, 998 P.2d 13 176. We disregard all evidence a nd inferences that support a different result. See 14 State v. Rojo , 1999

- NMSC

- 001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “We do not 15 reweigh the evidence and may not substitute our judgment for that of the fact [

- 16
] finder, so long as there is sufficient evidence to support the verdict.” Brietag , 17
1989

- NMCA

- 019, ¶ 9

. 18

{ 8 } In it is entirety Section 30

- 22

- 16 provides: 19 Possession of deadly weapon or explosive by prisoner in lawful 20 custody consists of any inmate of a penal institution, reformatory, jail 215

or prison farm or ranch possessing any deadly weapon or explosive 1 substance. 2 Whoever commits possession of deadly weapon or explosive by 3 prisoner is guilty of a second degree felony. 4 The only element at issue in this appeal is the statutory requirement that the 5 forbidden weapons at issue were possessed by Defendant. Because the weapons 6

were not found on Defendant ’s person but were discovered concealed above his 7
bunk and within his mattress , this case turns on constructive, not actual , 8 possession

. See State v. Barber , 2004

- NMSC

- 019, ¶ 22 , 135 N.M. 621, 92 P.3d 9 633 (describing the differences between actual and constructive possession and 10 explaining that “[w] hen actual physical c ontrol cannot be directly proven, 11
constructive possession is a legal fiction used to expand possession and include 12
those cases where the inference that there has been possession at one time is 13 exceedingly strong ” (internal quotation marks and citation omit ted)). 14

{ 9 } “ Constructive possession exists when the accused has knowledge of [the 15 prohibited items] and exercises control over them.” State v. Phillips , 2000

- NMCA

16
028, ¶ 8, 128 N.M. 777, 999 P.2d 421

. While “the mere presence of the contraband 17
is not enough to support an inference of constructive possession [,] ” id

. , a person 18 can be convicted of possession even “ without proof that he [or she] was the 19 exclusive occupant” of the area where the contraband was located. State v. Muniz , 20
1990

- NMCA

- 105, ¶ 15, 110 N.M. 799 , 800 P.2d 734

. When exclusive control is at 216

issue, “[a]dditional circumstances or incriminating statements are required

. ” 1 Phillips , 2000

- NMCA

- 028, ¶ 8

. “The accused’s own conduct may afford sufficient 2
additional circumstances for constructive possession.” Id

. W e “ must be able to 3 articulate a reasonable analysis that the fact

- finder might have used to determine 4 knowledge and control.” State v. Garcia , 2005

- NMSC

- 017, ¶ 13, 138 N.M. 1, 116 5
P.3d 72 (alteration, internal quotation marks, and citation omitted)

. 6

{1 0 } Based on the evidence at trial, we conclude that the jury could have 7 reasonably inferred that Defendant had knowledge of and control over both 8

weapon s. To begin , numerous statements were attributed to Defendant that the jury 9
could have taken as evidence that Defendant had knowledge of the weapons. Even 10 though Deputy Sherman did not inform Defendant of the specific items found by 11 prison staff , Defendant posed a question to the deputy

— “Check this out, Sherman. 12 What if that thing was mine?”

— from which , in context, the jury could reasonably 13 infer that Defendant had knowledge of the contraband found, i.e., the weapons 14
hidden in the bottom bunk area
. Significant to our analysis are Defendan t ’s 15

express ion of hatred and anger toward another inmate , his acknowledgement that 16
he wanted to do harm to that person, and his stated appreciation that prison staff 17 conducted the search when they did, i.e., before Defendant “lost it” and 18 “something

. . . [went] down.” These statements, c ouple d with Defendant’s 19 acknowledgement that had prison staff asked, he would have told them to “pull all 207

the mattresses and that would have been the end of it [,] ” provided sufficient 1 evidence from which the jury could infe r that Defendant had knowledge of the 2

weapons
. See State v. Jimenez , 2017

- NMCA

- 039, ¶ 48, 392 P.3d 668 (holding that 3
the s tate can prove knowledge through circumstantial evidence demonstrating “ t hat 4
the defendant knows of the presence and c haracter of the item possessed” (internal 5 quotation marks and citation omitted)). 6

{1 1 } Further , and with respect to the essential element of control, prison staff 7 discovered numerous items bearing Defendant’s name in the bottom bunk where 8 the weapons were discovered, supporting the conclusion that the bunk was, indeed, 9 Defendant’s. Additionally, b oth weapons were easily accessible to

— and , indeed, 10 only within arm’s reach of

— the person occupying that bunk, i.e., Defendant. See 11
Barber , 2004

- NMSC

- 019, ¶ 27 (providing that “[e]vidence of control includes the 12 power to produce or dispose of” the contraband). This takes on added import in 13 light of the testimony elicited from a fellow inmate indicating that if one inmate 14 had an issue with another inmate, the firs t inmate was likely to keep a weapon in 15
his mattress for easy access. 16

{1 2 } Because there is evidence from which the jury could reasonably infer that 17 Defendant had knowledge of and control over the weapons, we conclude that 18
Defendant’s convictions are supported by substantial evidence

. 19
II
. Double Jeopardy 208

{1 3 } Defendant contends that his conviction s violate his right to be free from 1 double jeopardy. Whether multiple convictions violate the prohibition against 2 double jeopardy involves “a constitutional question of law which we review de 3

novo .” State v. Swick , 2012

- NMSC

- 018, ¶ 10, 279 P.3d 747. “The Double 4 Jeopardy Clause protects criminal defendants against multiple punishments for the 5
same offense.” State v. Bernard , 2015

- NMCA

- 089, ¶ 15 , 355 P.3d 831 (alteration, 6 internal quotation marks, and citation omitted). There are two types of “multiple 7 punishments” cases: “double description” cases , “in which a defendant’s single 8 course of conduct results in multiple charges under dif ferent criminal statutes,” and 9
“unit

- of

- prosecution” cases , “in which a defendant faces multiple charges under 10
the same criminal statute for the same conduct.” Id. ¶ 16

. This is a unit

- of

11 prosecution case. 12

{1 4 } In unit

- of

- prosecution cases, the “relevant inquiry

. . . is whether th e 13 [L]egislature intended punishment for the entire course of conduct or for each 14
discrete act.” S wafford v. State , 1991

– NMSC

– 043, ¶ 8 , 112 N.M. 3, 810 P.2d 15
1223 . To discern the Legislature’s intent, we apply a two

- step analysis. See 16
Bernard , 2015

- NMCA

- 089, ¶ 17. “First, we review the statutory language for 17 guidance on the unit of prosecution.” State v. Bernal , 2006

- NMSC

- 050, ¶ 14, 140 18 N.M. 644, 146 P.3d 289. If the plain language of the statute is unclear or 19 ambiguous, “we move to the second step, in which we determine whether a 209

defendant’s acts are separated by sufficient ‘indicia of distinctness’ to justify 1 multiple punishments under the same statute.” Id

. If the second step of the analysis 2
does not demonstrate sufficient distinctions between the acts, we apply the rule of 3 lenity and presume that the Legislature did not intend to impose multiple 4 punishments where the acts are not sufficiently distinct. See State v. Tidey , 2018

- 5
NMCA

- 014, ¶ 16, 409 P.3d 1019 (explaining that “the rule of lenity favors a single 6
unit of prosecution and disfavors multiple units of prosecution” (alterations, 7 internal quotation marks, and citation omitted) ) ; Bernard , 2015

- NMCA

- 089, ¶ 17 8 (explaining that “[t] he rule of lenity requires that we interp ret the statute in the 9
defe ndant’ s favor by invoking the presumption that the Legislature did not intend 10 to create separately punishable offenses ”)

. 11 The Unit of Prosecution in Cases Involving Crimes of Possession 12

{1 5 } As our Supreme Court recently observed, “the unit of prosecution defines 13 how many offenses the defendant has committed.” State v. Ramirez , 2018

- NMSC

14 003, ¶ 46, 409 P.3d 902 (internal quotation marks and citation omitted). Ordinarily, 15 the unit of prosecutio n is defined by “the actus reus, the physical conduct of the 16
defendant.” Id . (internal quotation marks and citation omitted). However, when it 17

comes to possession

- based crimes, our jurisprudence suggests the unit of 18 prosecution may be defined in two ways: (1) by the physical conduct of the 19
defendant

— i.e., the act of possessing contraband as of a specific point in time

— or 2010

(2) by the individual items possessed. Compare State v. Olsson , 2014

- NMSC

- 012, 1 ¶¶ 3, 47 , 324 P.3d 1230 (considering whether p ossession of multiple, distinct 2 images of child pornography were separately punishable acts or “one unitary act of 3 possession[,]” and concluding that the defendants could “only be charged with one 4 count of possession”) , and Tidey , 2018

- NMCA

- 014, ¶¶ 9, 15 ( applying a unit

- of

5 prosecution analysis to determine whether the simultaneous possession of two 6 different types of drug paraphernalia constituted “one unitary act” or separately 7 punishable acts , and concluding that possession of two items of contraband was a 8 single punishable act ), with Bernard , 2015

- NMCA

- 089, ¶ ¶ 16 , 31 (considering 9 whether the defendant’s possession of four stolen vehicles “constitutes a single 10 course of conduct that is punishable as only one violation” and concluding that the 11 defendant could be punished separately for each stolen vehicle he possessed). The 12

r ecent cases cited above, addressing double jeopardy challenges to multiple 13
convictions under possession statutes , have all concluded that the statute under 14
consideration was ambiguous as to the unit of prosecution. See Olsson , 2014

- 15
NMSC

- 012, ¶ 23 (co ncluding that the plain meaning as to the proper unit of 16 prosecution under the possession of child pornography statute, NMSA 1978, § 30

- 17
6A

- 3 (20 16 ) , is ambiguous) ; Tidey , 2018

- NMCA

- 014, ¶ 10 (same with respect to 18 the possession of drug paraphernalia statu te, NMSA 1978, § 30

- 31

- 25.1 (2001) ); 1911

Bernard , 2015

- NMCA

- 089, ¶¶ 18

- 19 (same with respect to the possession of a 1 stolen vehicle statute, NMSA 1978, § 30

- 16D

- 4 (2009) ). 2
312

Section 30

- 22

- 16 I s Ambiguous as to the Applicable Unit of Prosecution 1

{1 6 } Here, the State concedes that the plain language of Section 30

- 22

- 16 does 2 not clearly and unambiguously express the applicable unit of prosecution. While 3
we are not bound by the State’s concession, see State v. Caldwell , 2008

- NMCA

4 049, ¶ 8, 143 N.M. 792, 1 82 P.3d 775 (refusing to be bound by the state’s 5 concession that the defendant’s conduct in that case was unitary and undertaking 6 its own analysis after noting that “[t]he public interest in criminal appeals does not 7 permit their disposition by party stipu lation” (internal quotation marks and citation 8 omitted)), we agree that Section 30

- 22

- 16 does not plainly define the Legislature’s 9 intended unit of prosecution for violations of that statute. 10

{1 7 } As noted above, Section 30

- 22

- 16 defines the conduct proscr ibed by its 11

terms in a single sentence: “ P ossession of deadly weapon or explosive by prisoner 12 in lawful custody consists of any inmate of a penal institution . . . possessing any 13 deadly weapon or explosive substance.” Id

. As with other possession

- based 14 statutes, Section 30

- 22

- 16 is facially ambiguous as to the unit of prosecution 15
because it can be construed as intending either a single punishment based on the 16 actus reus of “possession , ” or instead multiple punishments based on each 17 individual deadly weapon possessed. Cf. Bernard , 2015

- NMCA

- 089, ¶¶ 18

- 19 18 (concluding that the statute criminalizing possession of a stolen vehicle was 19 ambiguous where the statutory language did not “provide clear guidance as to 2013

whether the specifi c type of [item possessed] may constitute the proper unit of 1 prosecution for multiple violations” and was “silent as to whether the number of 2 [items] unlawfully possessed by a defendant may be charged as separate 3
offenses ”). Concluding that Section 30

- 22

- 1 6 is ambiguous as to the intended unit 4 of prosecution, we turn next to determin ing whether , based upon the facts of this 5 case, Defendant’s conduct in possessing the razor weapon and the mop weapon “ is 6 better characterized as one unitary act, or multiple, distinct acts, consistent with 7 legislative intent.” Tidey , 2018

- NMCA

- 014, ¶ 9 (internal quotation marks and 8 citation omitted). 9 “Indicia of Distinctness” Analysis 10

{1 8 } To determine whether separate co nvictions are justified under Section 30

- 11
22

- 16 for each of the weapon s found in Defendant’s possession , we consider 12
whether the convictions were supported by sufficient indicia of distinctness

. We 13 may look to “time and space considerations” as well as the “quality and nature of 14 the acts, or the objects or results involved.” Tidey , 2018

- NMCA

- 014, ¶ 11 (internal 15 quotation marks and citation omitted). 16

{1 9 } As to time and space considerations, the State argues that “the evidence 17 demonstrates that Defendant’s possession of each weapon commenced at a 18
different time

— at the distinct moments when Defendant created each weapon[,]” 19 thereby allowing separate punishment for “distinct and separate[] .

. . violations of 2014

[S ection] 30

- 22

- 16.” Yet the State fails to point to any thing in the record 1 establishing

— or even supporting the inference

— that it was Defendant who created 2
either of the weapons. Granted, Daniel Webb, an officer at the detention center, 3
testified that he fou nd evidence in a shower stall , some eighty feet from 4
Defendant’s bunk , suggesting that the mop weapon had been crafted there

. 5
However, the State points to no testimony or evidence from which the jury could 6 reasonably infer that Defendant was the person who created either of the weapons, 7
nor does our review of the record reveal any such evidence. Moreover, the State 8
made no claim or showing that the shower area was in Defendant’s exclusive 9
control or that Defendant was seen or admitted to creating either wea pon. And 10
while t he State points out that Defendant made “incriminating statements” to 11 Deputy Sherman

— i.e., “What if that thing is mine?” and “I could lie and say ‘It 12
ain’t mine’ .

. . [o]r I could say, ‘Yes, it’s mine’ ”

— those statements merely 13
establish t hat Defendant had knowledge of the existence of a weapon or weapons , 14 not that he created either of the weapons later found in his possession. In the 15 absence of any such evidence , we reject the State’s unsupported contention that 16 Defendant’s possession of each weapon was separated in time , thereby allowing 17 separate punishments based on separate acts. S ee Chan v. Montoya , 2011

- NMCA

18 072, ¶ 9, 150 N.M. 44, 256 P.3d 987 (stating that “ [t]he mere assertions and 19 arguments of counsel are not evidence” (internal quotati on marks and citation 2015

omitted)) ; see also State v. Dominguez , 2014

- NMCA

- 064, ¶ 26, 327 P.3d 1092 1 (“[W]e will not search the record to find facts to support [an] argument.”). 2

{ 20 } With respect to space considerations, it bears emphasis that while the 3 weapons were found in two different places in Defendant’s bunk area

— the razor 4 weapon in the upper support beam above Defendant’s sleeping area and the mop 5 weapon inside Defendant’s mattress

— both were discovered near one another 6
within Defendant’s limited bunk space
. That the weapons were secreted and found 7 in separate hiding places each within an arm ’ s
- length of the other does not reflect 8 possessory conduct sufficient ly distinct in nature to support multiple punishments. 9
See Bernard , 2015

- NMCA

- 089, ¶ 27 (concluding that time and space 10
considerations failed to establish the distinctness of the defendant’s acts of 11 possessing four stolen vehicles even where there was evidence that the d efendant 12 may have possessed certain vehicles at different times and in different locations). 13 Indeed, the absence of distinct acts suggested by the weapons’ proximity to one 14
another is reflected in both the fact that they were found during the same search 15

a nd that the discovery led to identical jury instructions with only the name of the 16 weapon differing. See Tidey , 2018

- NMCA

- 014, ¶ 13 (concluding that there was 17 “an insignificant indicia of distinctness” supporting separate punishments where 18 separate items o f drug paraphernalia were “simultaneously found” and the jury 19 received the same instruction as to both counts of possession); Bernard , 201 5

- 2016

NMCA

- 089, ¶ 27 (noting that the four stolen vehicles were recovered “from the 1 same location” and that the jury “was not instructed to consider whether [the 2 d]efendant possessed the vehicles at separate times and locations”). Thus, we agree 3
with Defendant that , based on the evidence adduced at trial, the conduct underlying 4 the two possession charges was the single act of possessing two different weapons 5
at the same time , and that neither time nor space considerations support multiple 6 punishments here

. 7

{ 2 1} We next consider whether the objects and results involved in this case 8 supply the necessary indicia of distinctness to allow the conclusion that the 9 Legislature intended a prisoner in Defendant ’s position to be punished separately 10 for each weapon possessed. See Bernard , 201 5

- NMCA

- 089, ¶ 26 (“If a case cannot 11 be resolved from time and space consideration s, then resort must be had to the 12 quality and nature of the acts or to the objects and results involved.” (internal 13 quotation marks and citation omitted) )

. Turning first to the objects involved, the 14 two makeshift weapons found to be in Defendant’s possessi on , the razor weapon 15 and the mop weapon , are more similar than different. T he fact that one weapon 16 was designed to inflict harm through slashing and the other designed to injure 17 through stabbing does not provide the differentiation necessary to support sep arate 18 convictions in this case. That is because our Legislature has defined “deadly 19 weapon” as including, inter alia, 2017

any weapon which is capable of producing death or great bodily harm, 1 including but not restricted to any types of daggers, brass knuckles , 2 switchblade knives, bowie knives, poniards, butcher knives, dirk 3 knives and all such weapons with which dangerous cuts can be given, 4 or with which dangerous thrusts can be inflicted , including 5 swordcanes, and any kind of sharp pointed canes, also slingsh ots, 6 slung shots, bludgeons [.] 7
NMSA 19 78 , § 30

- 1

- 12(B) (1963) (emphasis added)

. Indeed, r ather than clarifying 8 whether the Legislature intended separate punishment for possession of each 9 individual weapon meeting the definition of “deadly weapon,” the definition of 10 “deadly weapon” only amplifies the lack of clarity regarding the intended unit of 11 prosecution under Section 30

- 22

- 16. Because the razor weapon and the mop 12

weapon each qualify as a “deadly weapon” as that term is defined in the Criminal 13 Code, and there being no other reliable indicators of legislative intent , we conclude 14
that the mino r differences in functionality between the two prison

- made weapons 15 possessed by Defendant does not justify convicting him of separate counts under 16
Section 30

- 22

- 16. See Tidey , 2018

- NMCA

- 014, ¶ 15 (explaining that “[t]he 17 Legislature specifically included a comprehensive list of defined items .

. . that 18 constitute drug paraphernalia” and noting that the items at issue in that case

— 19 empty baggies and a straw with a burnt end

— both fell within the “containers and 20 other objects used” category of drug paraphernalia (internal quotation marks and 21 citation omitted) ) ; cf. Bernard , 201 5

- NMCA

- 089, ¶¶ 28

- 31 (relying on various 22 legislative enactments contained in both the Motor Vehicle Code and the Criminal 2318

Code in concluding that there existed sufficiently distinct indicia of “objects and 1 results” to support multiple punishments)

. 2

{ 22 } Turning next to the results involved , the only “ result ” of Defendant’s 3 possession of the razor and mop weapons was the completed act of possession 4 itself, a violation of Section 30

- 22

- 16

. I n deed, this is n either a case in which a 5 further consequence of possession of a deadly weapon by a prisoner materialized

— 6 e.g., where multiple deadly weapons simultaneously possessed are used to inflict 7 multiple injuries on a victim or separate injuries on m ultiple victims

— n or one in 8
which the “ result s involved” bear the evidentiary capacity to supply the necessary 9 indicia of distinctness to support multiple punishments under Section 30

- 22

- 16. Cf. 10
Bernal , 2006

- NMSC

- 050, ¶ 20 (concluding that indicia of distinctness supported 11 separate punishment for two attempted robberies where “there were two victims, 12 and most notably, each victim suffered separate and distinct harms at the hands of 13 [the d]efendant”) ; State v. Baca , 1992

- NMSC

- 055, ¶¶ 1

- 2, 114 N.M. 668, 845 P.2d 14 762 (involving a case where the prisoner used a “shank” or “crude jail

- made knife” 15 to kill another inmate and was convicted of both first degree murder and 16 possession of a deadly weapon by a prisoner)

. That Defendant admitted to having 17 feelings of “hate and anger” toward a particular inmate and wanting to “cut that 18 guy’s head off” at most supplies evidence of a contemplated and potential “result” 19 of Defendant’s possession. Fortuitously, h owever, no such result ever occurred 2019

thanks to the diligence of prison personnel. Thus , o n the facts of this case, the 1

“ result ” of Defendant’s prohibited conduct

— i.e., the completed act of possessing 2 deadly weapons

— also fails to establish sufficient indicia of distinctness to justify 3 multiple punishments

. 4

{ 23 } As a final matter, we briefly address the State’s argument centering on the 5 “policy considerations” underlying and the “interests protected ” by Section 30

- 22

- 6
16 , an argument the State advances as part of its “objects and results ” discussion 7
and on e which reflec ts a misunderstanding of the focus of this aspect of a unit

- of

8 prosecution analysis

. The State argues that the statute evinces the Legislature’s 9
“clear and self

- evident policy . . . to prohibit and minimize the availability of 10 deadly weapons to prisoners i n a confined place of incarceration.” According to the 11 State, “the Legislature must have intended that there be as few deadly weapons as 12 possible available to inmates.” 2 With this much, we agree. See Baca , 1992

- NMSC

13 055, ¶ 16 (describing a violation of Section 30

- 22

- 16 as “a crime closely 14 approaching a strict liability crime” and noting that the purpose of the statute “is to 15 protect inmates and officers from assaults with dangerous weapons perpetrated by 16

2 T he State cites Ramirez , 2018

- NMSC

- 003, ¶ 54, in support of this contention. Notably, however, Ramirez ’s discussion of “[p]olicy considerations” and what the Legislature “must have intended” informed our Supreme Court’s interpretation of the statute there at issue under the first step of a unit

- of

prosecution analysis, i.e., in res olving whether the statute was ambiguous as to the unit of prosecution, not under step two’s “indicia of distinctness” analysis, which focuses on whether the unit of prosecution is discernible vis

- à

- vis the specific facts of the case.20

a rmed prisoners”). However, the relevant inquiry does not involve a determination 1
of the legislative purpose and intent in enacting the statute itself , but rather whether 2 the Legislature intended for multiple punishments to be imposed under the specific 3
fac ts of a given case
. As previously discussed , we cannot say that that there are 4 sufficient indicia of distinctness to support Defendant’s separate convictions under 5
Section 30

- 22

- 16. Applying the rule of lenity, we hold that Defendant’s 6
convictions for simu ltaneously possessing two deadly weapon s violate his right to 7
be free from double jeopardy. We, therefore, reverse with instructions to the 8
district court to vacate one of Defendant’s convictions. 9
CONCLUSION 10

{ 24 } We conclude that sufficient evidence supports Defendant’s convictions 11
under Section 30

- 22

- 16. However, because we hold that those convictions violate 12 the prohibition against double jeopardy, we remand to the district court to vacate 13
one of the convictions. 14

{ 25 } IT IS SO ORDERED. 15

______________________________ 16 J. MILES HANISEE, Judge 17
WE CONCUR: 18

____________________________ 19 MEGAN P. DUFFY, Judge 2021

____________________________________ 1 BRIANNA H. ZAMORA, Judge 2