The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA , authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Opinion Number: 2
F iling Date: March 4, 2024 3
NO. S

- 1

- SC

- 38910 4
STATE OF NEW MEXICO , 5
Plaintiff

- Respondent / Cross

- Petitioner, 6

v. 7
CLIVE DALTON PHILLIPS , 8
Defendant

- Petitioner / Cross

- Respondent. 9

ORIGINAL PROCEEDING ON CERTIORARI 10 Clara Moran, District Judge 11

Bennet t J. Baur, Chief Public Defender 12 Ca i tlin C.M. Smith , Assistant Appellate Defender 13 Santa Fe, NM 14 for Petitioner/Cross

- Respondent 15
Hector H. Balderas, Attorney General 16 Charles J. Gutierrez , Assistant Attorney General 17 Santa Fe, NM 18 for Respondent/Cross

- Petitioner 19OPINION 1
THOMSON , Justice. 2

{1} Defendant Clive Phillips was convicted of six counts of aggravated battery 3
and pleaded guilty to one count of voluntary manslaughter after he violently attac ked 4 Adrian Carriaga and Alexzandria Buhl (Allie) , killing Adrian and severely injuring 5
Allie

. Defendant challenges his convictions , arguing that double jeopardy bars the 6 multiple convictions with the exception of one count of battery for attacking Allie 7 and one count of manslaughter for attacking and killing Adrian. We conclude that 8 the manslaughter conviction and the challenged battery convictions are each based 9
on distinct conduct and therefore do not violate Defendant’ s right against double 10 jeopardy

. We reverse, in part, and affirm, in part, the Court of Appeals. 11
I. BACKGROUND 12

{2} Defendant, Allie, Adrian, and Sean Madrid were close friends and shared a 13
four

- bedroom house

. Defendant and Allie had been in an on

- and

- off relationship 14 since high school and had a baby together. I n the summer of 2013, Allie broke up 15
with Defendant and moved into her own bedroom in the house with the baby

. Shortly 16
there after, Allie and Adrian began a romantic relationship. 17

{3} Early one morning, Sean became suspicious that Allie and Adrian were 18 sleeping together and called Defendant, who was not home at the time, to inform 192 him of his suspicions. Defendant drove to the house , walked into Allie’s room with 1 a baseball bat, and discovered Allie and Adrian in bed together. 2

{4} Armed with the bat, Defendant struck the two numerous times , and a struggle 3
ensued. Defendant eventually dropped the baseball bat and left Allie’s room to 4 retrieve a handgun. Allie immediately shut and locked her bedroom door , but 5
Defendant came back, shot the door handle , and kicked the door open. Upon 6

re entering Allie’s room , Defendant shot Adrian once in the chest and once in his 7 right armpit. O ut of ammunition , Defendant left Allie’s room , and Allie called 911. 8
Defendant return ed to the room soon after with a rifle

. He asked Ad rian, “Are you 9 ready?”, placed the rifle under Adrian’s chin , and fired, killing Adrian. 10

{5} Defendant then turned to Allie and shot her once in her shin and inserted his 11 finger into her bullet wound. Defendant grabbed Allie’s phone , which was still 12 connected to 911, and before ending the call described to the operator what had 13 happened . He then resumed his assault on Allie by punching her in the face

. The two 14 struggled before Defendant pushed Allie against the wall in the hallway and choked 15
her , causing her to lose consciousness. The police arrived at the home shortly 16
there after

. 17

{6} For Defendant’s attack on Adrian, the jury could not reach a verdict on the 18 murder charge or on the lesser

- included offense of manslaughter for the killing of 193 Adrian

. See NMSA 1978, § 30

- 2

- 1 (1994) (murder); NMSA 1978, § 30

- 2

- 3 (1994) 1 (manslaughter)

. However, the jury convicted Defendant of two counts of aggravate d 2 battery with a deadly weapon

— one for striking Adrian with the baseball bat and one 3
for shooting Adrian with the handgun

. See NMSA 1978, § 30

- 3

- 5 (1969) (aggravated 4 battery ); NMSA 1978, § 31

- 18

- 16 (1993, amended 2022) (firearm enhancement)

. 5
For his attack on Allie, the jury convicted Defendant of four counts of aggravated 6 battery against a household member

— one for striking Allie with the baseball bat 7 (de adly weapon) , one for shooting her with the rifle (deadly weapon) , one for 8 punching her, and one for strangling her (great bodily harm)

. See NMSA 1978, § 30

- 9
3

- 16 (2008, amended 2018) (aggravated battery against a household membe r ); § 31

- 10
18

- 16 (1993) (firearm enhancement)

. Following an appeal to this Court regarding 11 the scope of retrial on the murder charge, see State v. Phillips ( Phillips I ) , 2017

- 12
NMSC

- 019, 396 P.3d 153 , Defendant pleaded guil ty to voluntary manslaughter for 13
the death of Adrian

. At sentencing , Defendant argu ed that his convictions for 14 attacking Adrian and Allie were based on unitary conduct and therefore violated the 15 protections afforded by the double jeopardy clause

. The district court disagreed and 16 sentenced Defendant to twenty

- five years imprisonment, suspending seven years. 17

{7} Defendant appealed, contending (1) that he should only be convicted of one 18 count of battery for attacking Adrian and one count of battery for attacking Allie and 194 (2) that his battery conviction for shooting Adrian with the handgun should be 1
vacated because it was based on the same conduct as the manslaughter conviction

. 2 State v. Phillips ( Phillips II ) , 2021

- NMCA

- 062, ¶¶ 1, 9, 17 , 31, 499 P.3d 648

. The 3 Court of Appeals affirmed Defendant’s convictions for the two batteries against 4
Adrian as they were not based on unitary conduct and therefore, did not violate 5 double jeopardy

. Id. ¶ 16. However, the Court concluded tha t the battery (handgun) 6 and manslaughter convictions violated double jeopardy because a reasonable jury 7
could have could have found either unitary conduct or distinct acts

. Id. ¶¶ 23

- 26, 29. 8 Therefore, the Court presumed that the conduct was unitary as required by State v. 9
Foster , 1999

- NMSC

- 007, ¶ 28, 126 N.M. 646, 974 P.2d 140 (holding that we must 10 presume a defendant’s conduct is unitary if the jury convicted the defendant under a 11 general verdict and the record does not indicate whether the jury relied on a legally 12 inadequate alternative that would result in double jeopardy ) , abrogated on other 13 grounds by Kersey v. Hatch , 2010

- NMSC

- 020, ¶ 17, 148 N.M. 381, 237 P.3d 683

. 14
Id. ¶¶ 26

- 29. Finally, the three battery convictions for hitting Allie with the baseball 15 bat, shooting her with the rifle, and strangling her were affirmed

. See Phillips II , 16
2021

- NMCA

- 062 , ¶ ¶ 1, 33. The Court accepted the State’s concession that the 17 battery conviction for punching Allie was violative of double jeopardy and reversed 18
that conviction

. I d. ¶ ¶ 34

- 35

. That reversal is not at issue in this appeal

. 195 {8} Defendant petitioned for certiorari, contending that his two battery 1
convictions for attacking Adrian (baseball bat and handgun) and his three battery 2
convictions for attacking Allie (baseball bat, rifle, and strangulation) all violate 3 double jeopardy . The State cross

- petitioned , arguing that the Court of Appeals erred 4 by vacating the conviction for battery of Adrian wit h a handgun

. We granted both 5 petitions. W e affirm Defendant’s manslaughter conviction and all five of his 6 aggravated battery convictions. We further conclude that the Court of Appeals erred 7 in its application of the presumption announced in Foster

. Additionally, we clarify 8 that in conducting a double jeopardy analysis for a conviction rendered by a guilty 9 plea, a reviewing court should examine what the record shows about whether a 10
defendant’s acts are distinct rather than what a reasonable jury could have found

. 11
II. DISCUSSION 12

{9} The Fifth Amendment to the United States Constitution provides that “ [n] o 13 person shall .

. . be subject for the same offense to be twice put in jeopardy of life or 14 limb.” The double jeopardy clause prohibits a court from “imposing multiple 15 punishments for the same offense.” State v. Porter , 2020

- NMSC

- 020, ¶ 5 , 476 P.3d 166 1201 ( text only) 1 ( citation omitted). There are two types of multiple punishment 1

cases: “ those cases in which a defendant is charged with multiple violations of a 2 single statute based on a single course of conduct (unit of prosecution cases) and 3 those cases in which a defendant is charged with violating different statutes in a 4 single course of conduct (double

- description cases). ” State v. Sena , 202 0

- NMSC

5 011, ¶ 44, 470 P.3d 227 ( text only) ( citation omitted). “While the analysis for each 6 type of case focuses on whether the Legislature intended multiple punishments, the 7 particular canons of construction we apply in ascertaining the Legislature’s intent 8 depend on the specific type of mult iple punishment case in front of us .” State v. 9 Benally , 2021

- NMSC

- 027, ¶ 11, 493 P.3d 366 ( text only) ( citation omitted). We 10
review this question of constitutional law de novo. Porter , 2020

- NMSC

- 020, ¶ 11

. 11

{10} This case involves both unit of prosecution and double description analyses

. 12 Defendant raises a unit of prosecution argument, contending that his multiple battery 13 convictions violate double jeopardy because “ he attacked [Adrian] and [Allie] 14 during a single episode, which took place in a small space and a short amount of 15 time, and therefore he should not have been convicted of more than one count of 16

1 The “ text only ” parenthetical as used herein indicates the omission of all of the following

— internal quotation marks, ellipses, and brackets

— that are present in the quoted source, leaving the quoted text itself otherwise unchanged.7 battery against each of them.” The State argues under a double

- description challenge 1
that Defendant’s convictions for aggravated battery with a handgun and 2 manslaughter stemming from his attack on Adrian were not based on unitary 3 conduct, and therefore we should reverse the Court of Appeals’ determination that 4 these convictions violate double jeopardy

. We address Defendant’s unit of 5 prosecution challenge first. 6
A. Unit of Prosecution 7

{11} In a unit of prosecution case, we focus on “ whether a defendant has received 8 more punishments than the number of punishments that the Legislature intended to 9
authorize under the facts and circumstances of the case .” Benally , 2021

- NMSC

- 027, 10 ¶ 12. This is a two

- part test. Id. First, “we must analyze the statute to determine 11 whether the Legislature has defined the unit of prosecution.” Id. ¶ 13 ( text only) 12 ( citation omitted). We do this by considering “ all markers of legislative intent

. . . 13 including the wording, structure, legislative history, legislative purpose, and 14 quantum of punishment prescribed under the statutory scheme.” Id. If the statute 15 defines the unit of prosecution, “our inquiry is complete.” Id. ¶ 14. “However, if the 16

statute re mains insurmountably ambiguous as to its intended unit of prosecution, 17 then we apply .

. . the rule of lenity

— and construe the statute in favor of the 18
defendant.” Id. ( internal quotation marks and citation omitted)

. “ The rule of lenity 198 requires us to presume that the Legislature did not intend to separately punish 1
discrete acts in a defendant ’ s course of conduct absent proof that each act was in 2
some sense distinct from the others.” Id. ¶ 16 (text only) (citation omitted)

. “After 3 apply ing the rule of lenity

. . . , we then turn to the second step of our analysis.” Id. 4

{12} T he second step requires us to “determine whether a defendant’s acts are 5 separated by sufficient indicia of distinctness to justify multiple punishments under 6
the same statute.” State v. Ramirez , 2018

- NMSC

- 003, ¶ 56, 409 P.3d 902 ( text only) 7 ( citation omitted). To determine whether a defendant’s acts are sufficiently distinct, 8
we consider the Herron factors : (1) temporal proximity of the acts , (2) location of 9 the victim during each act , (3) the existence of intervening events , (4) the sequencing 10
of the acts , (5) the defendant’s intent as evidenced by his conduct and utterances , 11 and (6) the number of victims. Herron v. State , 1991

- NMSC

- 012, ¶ 15, 111 N.M. 12 357, 805 P.2d 624. “[T] he six Herron [factors] serve as a general policy for 13 examining distinctness, but in undertaki ng this analysis courts should examine the 14 elements of the offense and any policy underlying the specific statute.” Benally , 15
2021

- NMSC

- 027, ¶ 19 ( internal quotation marks and citation omitted)

. 16

{13} In appl ying the Herron factors, Defendant urges us to adopt “a general rule or 17 rebuttable presumption” that “[w]hen there is an incident that occurs in a short time 18 in a single place, the State should generally be limited to proving one purely 199 assaultive crime for each victim .” We decline to do so. We continue to hold that no 1
Herron factor is dispositive , but instead that all factors should be considered together 2 in light of the facts and circumstances of each case. See Herron , 1991

- NMSC

- 012, 3 ¶ 15 (“[N]one of these factors alone is a panacea, but collectively they will assist in 4 guiding future prosecutions under [the relevant charging statute].”); Swafford v. 5
State , 1991

- NMSC

- 043, ¶ 28, 112 N.M. 3, 810 P.2d 1223 ( adopting the Herron 6 factors in the unitary conduct inquiry for double description cases and noting that 7 time and space may easily distinguish acts in some cases , but not in every case, and 8
that courts should consider every factor ) ; State v. Handa , 1995

- NMCA

- 042, ¶ 26 9
n.2 , 120 N.M. 38, 897 P.2d 225 (“[T]he time between each act is not dispositive .”)

. 10
W e also reject Defendant ’s argument that some , but not all, of the principles applied 11 in double description cas es for a unitary conduct inquiry apply in a unit of 12 prosecution analysis. See, e.g. , State v. DeGraff , 2006

- NMSC

- 011, ¶ 27, 139 N.M. 13 211, 131 P.3d 61 (considering whether one crime had been completed before another 14
was committed ) ; State v. Cooper , 1997

- NMSC

- 058, ¶¶ 60

- 61, 124 N.M. 277, 949 15
P.2d 660 (considering the initial use of force against a victim as separable by “an 16 intervening event” from subsequent but different uses of force and weapons that 17
resulted in the victim’s death )

. In both unit of prosecution and double description 18

cases, “ we attempt to determine, based upon the specific facts of each case, whether 1910 a defendant ’ s activity is better characterized as one unitary act, or multiple, distinct 1 acts, consistent with legislative intent .” State v. Bernal , 2006

- NMSC

- 050, ¶ 16 , 140 2 N.M. 644, 146 P.3d 289

. This necessarily requires us to consider general guideposts, 3
such as the nature of a defendant’s acts and whether one crime was completed before 4
another. Double jeopardy jurisprudence in New Mexico is a tangled and often 5 laborious analysis. It should be this Court’s goal to simplify rather than complicate 6
it . Therefore, we reaffirm our conclusion in Bernal that “ we are doing a substantially 7 similar analysis when we conduct a unitary conduct inquiry in double description 8
cases as when we conduct a unit

- of

- prosecution inquiry.” Id. 9

{14} If a defendant’s acts ar e sufficiently distinct, “then we will presume that the 10 defendant has not received more punishments than were statutorily authorized.” 11 Benally , 2021

- NMSC

- 027, ¶ 23. However, “[i]f a defendant’s acts are n ot 12 sufficiently distinct, then we will return to our lenient construction of the statute and 13 presume that the defendant has received more punishments than were statutorily 14
authorized.” Id. We now apply this two

- step framework to Defendant ’s multiple 15 battery convictions. 1611 1. Defendant’s two battery convictions for attacking Adrian do not violate 1 double jeopardy 2

a. The aggravated battery statute does not define the unit of prosecution 3

{15} Section 30

- 3

- 5(A) defines aggravated battery as “ the unlawful touching or 4 application of force to the person of another with intent to i njure that person or 5
another.” The offense is heightened to a third

- degree felony if the aggravated battery 6 is committed with a deadly weapon , as it was in this case . Section 30

- 3

- 5(C). 7 Analyzing the plain language of the statute , the Court of Appeals held that the unit 8 of prosec ution for the aggravated battery statute is ambiguous. Phillips II , 2021

- 9
NMCA

- 062, ¶¶ 10

- 11 ( relying on State v. Mares , 1991

- NMCA

- 052, ¶ 24, 112 N.M. 10 193, 812 P.2d 1341 , for the proposition that “ the aggravated battery statute d [oes] 11 not separately punish each act of unlawful touching occurring during a continuous 12 attack unless the acts are sufficiently distinct ”)

. We agree and focus our analysis on 13 the plain language and purpose of the aggravated battery statute

. State v. Olsson , 14
201 4

- NMSC

- 012, ¶ 18, 324 P.3d 1230 ( “The plain language of the statute is the 15 primary indicator of legislative intent. ”) ; NMSA 1978, § 12

- 2A

- 19 (1997) 16 ( providing that a statute’s text is “the primary, essential source of its meaning”)

. 17

{16} Both parties rely on Ramirez , 2018

- NMSC

- 003, ¶ 53, for their unit of 18 prosecution analys es to different ends

. In Ramirez , the defendant was convicted of 19
three counts of child abuse after shooting into a vehicle that contained th ree children. 2012 Id. ¶ ¶ 3

- 4

. There , we considered whether the child abuse by endangerment statute 1 specified the unit of prosecution. Id. ¶ 48

. We first observed that the statute ’s 2 intended unit of prosecution could be the conduct of causing or permitting a child to 3 be endangered regardless of the number of victims because the statute focused on 4 prohibiting a course of conduct. Id. ¶ 51. However, we later noted that the statute 5 could be read to indicate that the unit of prosecution was per victim because it 6 prohibited endangering “a child .” Id. ¶ ¶ 5 2

- 53 . We provided that “ [it] is well 7
established .

. . that where a statute prohibits the doing of some act to a victim 8 specified by a singular noun, ‘a person’ for example, then ‘the person’ is the unit of 9 prosecution.” Id. ¶ 53

. Ultimately, we held that the statute was ambiguous because 10
there were two plausible readings of the statute as to its intended unit of prosecution. 11
Id. ¶ 55. 12

{17} Defendant argues that under Ramirez , the usual unit of prosecution for the 13 aggravated battery statute is per victim, but argues that the statute is still ambiguous 14 as to whether a defendant may be convicted of multiple counts of battery against the 15 same victim during a continuous attack. The State similarly relies on Ramirez , 1613 arguing that the plain language of the statute specifies the unit of prosecution as per 1 deadly weapon. 2 2

{18} We conclude that Ramirez does not resolve the question before us. Section 3
30

- 3

- 5 prohibits touching or applying force “to the person of another,” which may 4 suggest that the un it of prosecution is per victim. However, the statute still does not 5 specify whether someone can be punished separately for multiple acts of touching 6 or applying force to the same victim during a continuous attack. This factual 7
situation was not considered in Ramirez

. See 2018

- NMSC

- 003. Similarly , Ramirez 8 does not support the State’s interpretation that use of different deadly weapons 9 allows for separate unit s of prosecution

. In Ramirez , we explained that when a statute 10 contains a single, direct object that is the recipient of the prohibited conduct, the unit 11 of prosecution is by object. Id. ¶ 52 (“Stated grammatically, the statute contains a 12 direct object that is the recipient of the actions of [its] verbs, and that direct object is 13 a singular noun. This suggests that our Legislature intended the protections of [the 14 statute] to attach to each child endangered, and this, in turn, suggests that the unit of 15 prosecution for [the statute] is by child .”) Here, Section 30

- 3

- 5 (C) simply heightens 16

2 We note that in the Court of Appeals, the State contended that Section 30

- 3

- 5 does not specify the unit of prosecution and argued that Ramirez was inapplicable , but the State now changes its position arguing that the statute does so specify

.14 the offense if it is committed “with a deadly weapon.” The statute’s use of the term 1 “with a deadly weapon” is not to define the direct object or focus of the statute

. 2 Instead, it serves as an aggravating factor. Neither Ramirez nor any other 3 pronouncement of this Court established a rule that if a defendant uses multiple 4 weapons or objects during an attac k , the Legislature, as a matter of law, intended to 5 impose separate punishments. See Herron , 1991

- NMSC

- 012, ¶ 13 (“[S] eparate 6 [acts] can occur within sufficient temporal proximity to raise doubt whether the 7 legislature intended separate punishments for those acts which could equally be 8 inspired by a single criminal intent bent on a single assaultive episode. ”). 9

{19} The State further argues that a separate punishment for each deadly weapon 10
used is supported by the purpose of the aggravated battery statute , suggesting that 11
the “ statute is directed at preserving the integrity of a person ’s body against serious 12 injury. ” State v. Vallejos , 2000

- NMCA

- 075, ¶ 18, 129 N.M. 424, 9 P.3d 668; see 13
also State v. Neatherlin , 2007

- NMCA

- 035, ¶ 16, 141 N.M. 328, 154 P.3d 703 (“ The 14 purpose of aggravating the charge and enhancing the sentence for use of a weapon 15 is to minimize injury to human beings no matter how the injury is inflicted and 16 discourage people from using objects to injure another.” ( text only) ( citation 17 omitted)). We disagree. While in some circumstances, the use of multiple deadly 1815 weapons may increase the risk of injury or death to a victim, that alone is not 1 supportive that such an assault is always deemed nonunitary

. 2

{20} Our analysis is better guided by Herron

. In Herron , we addressed whether a 3 former version of the criminal sexual penetration statute allowed a defendant to be 4 punished for each act of sexual penetration occurring during an incident of sexual 5
assault. 1991

- NMSC

- 012, ¶ ¶ 6, 8. Concluding that the language of the statute was 6 ambiguous on this point, we applied the rule of lenity and held that the statute 7 “cannot be said as a matter of law to evince a legislative intent to punish separately 8 each penetration occurring during a continuous attack absent proof that each act of 9 penetration is in some sense distinct from the others.” Id. ¶¶ 8, 15. Later, i n Mares , 10
the Court of Appeals relied on and adopted our approach in Herron to conclude that 11 under the aggravated battery statute, the Legislature did not intend to punish each 12 act of battery occurring during a continuous attack unless each act was distinct from 13
the others. 1991

- NMCA

- 052, ¶ 24

. We agree with the Mares Court that the plain 14 language of the aggravated battery statute does not clearly indicate whether a 15 defendant can be p unished for each act of battery inflicted on the same victim during 16 a continuous attack. Therefore, we apply the rule of lenity and conclude that the 17 Legislature did not intend to punish multiple acts of battery in these circumstances 18
unless each act is distinct. See Herron , 1991

- NMSC

- 012, ¶ 15; Mares , 1991

- 1916 NMCA

- 052, ¶ 24. We now move to the second step of the unit of prosecution 1 analysis and determine whether Defendant’s acts of hitting Adrian with the baseball 2 bat and shooting him with the handgun were separated by sufficient indicia of 3 distinctness by applying the six Herron factors

. 4
b. The batteries on Adrian were sufficiently distinct 5

{21} In the most recent Court of Appeals proceedings , the parties agreed that the 6 time, location , and number

- of

- victims factors supported unitary conduct. Phillips II , 7
2021

- NMCA

- 062, ¶ 12. The Court of Appeals focused on the re maining three 8
Herron factors and held that Defendant committed two distinct acts of battery 9
because he “ used separate and discrete acts of force against Adrian, separated by an 10
interveni ng event and a change in intent.” Phillips II , 2021

- NMCA

- 062, ¶ 16. The 11
State no longer concedes the timing and location factors, arguing now that they are 12 “neutral” and do not weigh in favor of unitary conduct. W e step back to analyze all 13
six Herron factors to determine whether Defendant’s acts were sufficiently distinct. 14

{22} The attack unfolded with Defendant walk ing into Allie’s room and striking 15
Adrian and Allie with the baseball bat

. There was a struggle over the bat , and Sean 16 immediately called 911

. Defendant left the room to retrieve a handgun

. Allie locked 17
the door behind him

. Approximately one minute and forty seconds into Sean’s 911 1817 call , Defendant shot the door handle to get back in to Allie’s room and shot Adrian 1
twic e
. 2

{23} The one minute and forty second gap between the battery with the baseball 3 bat and the battery with the handgun was , in this case, a significant elapse of time

. 4 This, however, is not the only evidence that supports distinct conduct. Cf. State v. 5 Demongey , 2008

- NMCA

- 066, ¶ 15 , 144 N.M. 333, 187 P.3d 679 ( concluding that a 6 time elapse of two minutes between two acts did not support distinct conduct 7 because there was no evidence indicating a change in intent or nature of the acts). 8 There were multiple intervening events between the batteries in this case

. First was 9 the struggle over the baseball bat

. Next , Defendant left Allie’s bedroom after 10 dropping the bat a nd retrieve d the handgun. See, e.g. , DeGraff , 2006

- NMSC

- 011, ¶ 11 30 (providing that a defendant’s struggle with the victim constitutes an intervening 12 event). Finally, Defendan t shot the door handle and kicked the door open before 13
sho o ting Adrian. 14

{24} Defendant also used two different weapons to attack Adri an
. See, e.g. , Foster , 15
1999

- NMSC

- 007, ¶ 34 (concluding that the use of different weapons indicates 16 distinct conduct)

. E ach application of force , as well as the injuries inflicted , w ere 17
also distinct ; the baseball bat assault was nonfatal , whereas the two handgun shots 1818 inflicted more serious injuries

. S ee Bernal , 2006

- NMSC

- 050, ¶ 2 1 (stating that 1 different uses of force support distinct acts)

. 2

{25} F urthermore , we agree with the Court of Appeals that there was evidence that 3 Defendant’s intent had changed from the time he attacked Adrian with the baseball 4
bat to the time that he shot Adrian with the handgun , thus evincing distinct conduct

. 5 Phillips II , 2021

- NMCA

- 062, ¶ 15 (citing Demongey , 2008

- NMCA

- 066, ¶ 15)

. 6 After his arrest, Defendant told police that when he hit Adrian with the baseball bat, 7
he did not think that he was going to shoot or kill anybody. However, Defendant 8 explained that after he battered Adrian, he remembered Adrian usually slept with a 9 gun nearby , so he went to his bedroom to retrieve t h e handgun to immobilize or kill 10
Adrian. Defendant argue s that the Court of Appeals ’ separate

- intent analysis rested 11
on a “factual conclusion about [Defendant’s intent to kill] that the jury rejected

. ” We 12 disagree mainly because Defendant was not acquitted of murder; the jury simply did 13
not reach a verdict

. Additionally, Defendant’s argument that the jury did not make 14 an express finding regarding his in tent to kill has no bearing on our analysis. See 15
Herron , 1991

- NMSC

- 012, ¶ 15 (providing that courts determine intent “as 16 evidenced by [the defendant ’s] conduct and utterances ”). Defendant’s conduct and 17 statements to police demonstrate that he had not formulated an intent to kill Adrian 1819 with the baseball bat but that he had formulated this intent when shooting Adrian 1 with the handgun. Therefore, there was a clear change in intent between each attack. 2

{26} We recognize that Adrian was the only victim in both of these attacks and that 3
he remained in the same location for each. However, we decline to place great weight 4

on the latter fact given that Adrian stayed or was forced to stay in one location , in 5
the room with the door that Allie locked, to avoid further harm from Defendant ’s 6
attack s
. 7

{27} Therefore, we conclude that four of the Herron factors strongly support that 8 Defendant’s two convictions of battery for the injuries he inflicted on Adrian do not 9 violate double jeopard y as Defendant’s two a tta c k s were distinct

. See State v. 10
Jackson , 2020

- NMCA

- 034, ¶ 33, 468 P.3d 901 (“[A] lthough [ the v]ictim and 11
location of [the d] efendant ’ s kidnappings overlap, there was sufficient evidence that 12 the two kidnappings were separated by

. . . sufficient indicia of distinctness

. . . and , 13 as a result,

. . . do not violate double jeopardy. ”). 14
2. T he t hree battery convictions for the injuries inflicted on Allie do not 15 violate double jeopardy 16

a. The aggravated battery against a household member statute at issue d id 17 not clearly specify the unit of prosecution 18

{28} The language of the statutes for aggravated battery and aggravated battery 19 against a household member is almost identical , and , consistent with our previous 2020 reference s herein, the parties advance the same arguments as to the intended unit of 1 prosecution for the aggravated battery statute as for the aggravated battery against a 2
household member statute , see Section II. A .1 , paragraph 17, supra
. The latter 3 requires that the offense be committed against “a household member” while the 4 former requires the offense be committed against “another.” Compare § 30

- 3

- 16(A) 5 (2008) 3 , with § 30

- 3

- 5(A)

. T he State added one additional argument: each 6 application of force that caused or could have caused great bodily harm , see §§ 30

- 7
3

- 5( C ), 30

- 3

- 16(C) (2008), creates an alternative unit of prosecution

. 8

{29} Like the aggravated battery statute , the plain language of the aggravated 9 battery against a household member statute does not clearly indicate whether a 10 defendant can be punished separately for each act of battery against the same 11 household member during a continuous attack. See Section II. A .1 , paragraph 20 , 12

supra ; Herron , 1991

- NMSC

- 012, ¶ 15; Mares , 1991

- NMCA

- 052, ¶ 24. S imilar to 13 our previous rejection of this very argument from the State applied to aggravated 14 battery , we reject the State’s argument that the aggravated battery against a 15
household member statute defines the unit of prosecution as per deadly weapon or 16

3 Defendant was convicted under the 2008 version of Section 30

- 3

- 16. However, the Legislature’s 2018 amendments to the statute do not affect our analysis.21 by each application of force that caused or could have caused great bodily harm. 1 Therefore, we apply the rule of lenity and conclude that the statute does not 2 separately punish each act of battery inflicted on the same victim during a continuous 3

att ack unless each act is sufficiently distinct. 4
b. Defendant’s acts of battery against A llie are separated by sufficient 5 indicia of distinctness 6

{30} We apply the six Herron factors to the attack on Allie and begin by examining 7
Allie’s location during each batter y
. Allie remained in her room when first attack ed 8
with the baseball bat and later attack ed with the rifle ; however, she changed locations 9
within the room. Herron recognizes that m ovement of a victim in between a 10
defendant’s acts supports distinct conduct

. See 1991

- NMSC

- 012, ¶ 15 11 (“[M] ovement or repositioning of the victim between [acts] tends to show separate 12
offenses .”)

. Further, s imilar to our analysis regarding the batteries on Adrian, we 13 decline to weigh in favor of unitary conduct the fact that Allie remained in her room , 14
which she locked after the first attack in an effort to protect herself and Adrian from 15 a subsequent assault

. 16

{31} In addition, Allie was in a different location of the home for t he battery with 17
the rifle than where she was for the battery by punching and strangulation

. Defendant 18 first shot Allie in the leg with the rifle in he r room , and then he moved her into the 19 hallway where he punched and strangled her. See, e.g. , Bernal , 2006

- NMSC

- 050, ¶ 2022 21 ( stating that the use of force “ in different parts of the [ victim’s ] house ” supports 1
distinct conduct ). 2

{32} The interval of time between the attacks remains significant to our analysis of 3
whether t he batteries were distinct

. Cf. Demongey , 2008

- NMCA

- 066, ¶ 15. Based 4

on audio recordings of Sean’s and Allie’s separate 911 call s placed during these 5
attacks , there was an approximate two

- minute break after both the first and second 6
of the three successive batteries inflicted on Allie. 7

{33} D uring each break between the batteries , there were also numerous 8
inter vening events. After hitting Allie with the baseball bat and before shooting her 9 with the rifle, Defendant struggled with both victims , left Allie’s room to retrieve 10 the handgun, shot Allie’s door , kicked the door open, shot Adrian twice with the 11 handgun, left the room again to retrieve the rifle, and then killed Adrian by shooting 12
him in the head. A nd a fter shooting Allie with the rifle, Defendant talked with the 13 911 operator Allie had phoned for approximately two minutes describing the attack s 14 before he began punching and strangling Allie. 15

{34} Defendant also committed each act in a distinct manner. Defendant used 16 different weapons for each battery against Allie , s ee, e.g. , Foster , 1999

- NMSC

- 007, 17 ¶ 34 , and Defendant used different degrees of force by hitting her with the baseball 1823 bat all over her body, shooting her in the leg with a rifle, and then punching and 1 strangling her until she lost consciousness , s ee Bernal , 2006

- NMSC

- 050, ¶ 21. 2

{35} Defendant’s intent to harm Allie may have remained the same throughout the 3
attack , but the evidence shows that Defen dant ceased his actions and reformulated 4
this intent between each battery. Cf. Demongey , 2008

- NMCA

- 066, ¶ 16 ( concluding 5 there was no evidence indicating that the defendant rethought his actions or ceased 6 his actions and then reformulated his intent); State v. Garcia , 2009

- NMCA

- 107, ¶ 7
14 , 147 N.M. 150, 217 P.3d 1048 (stating there was no evidence that the defendant’s 8
in tent to batter the victim was “ interrupted, altered, or changed”). After hitting Allie 9 with the baseball bat, Defendant ceased his attack , left the room multiple times, shot 10
and killed Adrian , and then shot Allie with the rifle . Defendant again ceased his 11
attack on Allie when he talked with the 911 operator before renewing a separat e 12 battery in the hallway. 13

{36} Defendant’s batteries against Allie were clearly distinct, and his three 14 convictions for aggravated battery against a household member do not violate double 15 jeopardy. 16
B. Double Description 17

{37} On cross

- appeal, t he State challenges the Court of Appeals ’ determination that 18 Defendant’s convictions for aggravated battery with the handgun and manslaughter 1924 violate double jeopardy. In double description cases, we again apply “a two

- part 1 analysis for deciding whether the same offense was committed.” Sena , 2020

- NMSC

2 011, ¶ 45. “ The first part f ocuses on the conduct and asks whether the conduct 3 underlying the offenses is unitary, i.e., whether the same conduct violates multiple 4
statutes.” Id. (text only) (citation omitted). If the conduct is unitary, “ we proceed to 5 the second part, which focuses on the statutes at issue to determine whether the 6 legislature intended to create separately punishable offenses.” Id. ( text only) ( citation 7 omitted). A defendant’s double jeopardy rights are violated only “when (1) the 8 conduct is unitary and (2) it is determined that the Legislature did not intend multiple 9 punishments.” Id. If a defendant’s double jeopardy rights are violated, courts must 10 “vacate the conviction carrying the shorter sentence.” State v. Torres , 2018

- NMSC

11 013, ¶ 28, 413 P.3d 467. Both parties agree that the Court of Appeals’ holding on 12 legislative intent is not before us , and t herefore our focus is limited to whether 13
Defendant’s conduct was unitary. 14

{38} A defendant’s conduct is unitary “ if the acts are not separated by sufficient 15
indicia of distinctness. ” Porter , 2020

- NMSC

- 020, ¶ 12 ( text only) ( citation omitted). 16 As previously noted, we apply the six Herron factors in the double description 17 analysis to determine whether a defendant’s acts are unitary or distinct. Swafford , 18
1991

- NMSC

- 043, ¶ 28. We consider “the elements of the charged offenses, the facts 1925 presented at trial, and the instructions given to the jury.” Sena , 2020

- NMSC

- 011, ¶ 1
46 ; Porter , 2020

- NMSC

- 020, ¶ 12. “Unitary conduct is not present when one crime 2 is completed before another is committed, or when the force used to commit a crime 3 is separate from the force used to commit another crime.” Sena , 2020

- NMSC

- 011, 4 ¶ 46. However, “i f it reasonably can be said that the conduct is unitary, then we must 5 conclude that the conduct was unitary. ” Porter , 2020

- NMSC

- 020, ¶ 12 (text only) 6 (citation omitted)

. 7

{39} In this case, the instruction for aggravated battery with the handgun required 8 the jury to find that Defendant “touched or applied force to Adrian

. . . by shooting 9 him in the torso with a handgun.” However , the instruction for manslaughter 10 required the jury to find that Defendant “killed Adrian.” Thus, although the jury 11 instruction for the aggravated battery charge specified the conduct that formed the 12 basis of the charge , the ma nslaughter instruction did not. The jury convicted 13 Defendant of the aggravated battery charge but hung on the manslaughter charge. 14
Defendant’s subsequent guilty plea for manslaughter did not specify a factual basis 15 for his plea. 16

{40} As a result, the Court of Appeals applied the Foster presumption

. See Phillips 17
II , 2021

- NMCA

- 062, ¶¶ 26

- 29

. In Foster , we held that “we must presume that a 18 conviction under a general verdict requires reversal if the jury is instructed on an 1926 alternative basis for the conviction that would result in double jeopardy, and the 1 record does not disclose whether the jury relied on this legally inadequate 2
alternative.” 1999

- NMSC

- 007, ¶ 28. We adopted this presumption because “we 3 cannot assume that jurors will know to avoid an alternative basis for reaching a guilty 4 verdict that would result in a violation of the Double Jeopardy Clause.” Id. However, 5
in Sena , we clarified that “ Foster does not require a further presumption that the 6 same conduct was then relied upon by the jury in convicting [a d]efendant of each 7
crime

— particularly when the record indicates [distinct crimes] were committed.” 8
2020

- NMSC

- 011, ¶ 54. Thus, the Foster presumption can be “rebutted by evidence 9 that each crime was completed before the other crime occurred.” Id. A fter reviewing 10 the evidence presented at trial, the Court of Appeals in this case conclusively 11 presumed that Defendant’s conduct was unitary because it was “ unable to determine 12 whether the manslaughter was accomplished by the rifle shot alone or by multiple 13 gunshots.” Phillips II , 2021

- NMCA

- 062, ¶¶ 21

- 26, 29 & n.1. 4 14

4 The Court of Appeals relied on our decision in State v. Franco , 2005

- NMSC

013, ¶¶ 9

- 11, 137 N.M. 447, 112 P.3d 1104, where we conclusively applied the Foster presumption despite evidence that each act was distinct. Phillips II , 2021

- NMCA

- 062, ¶¶ 26

- 29 & n.1. In Sena , we clarified that the Foster presumption should not be applied conclusively , but is instead rebutted by evidence in the record supporting distinct conduct . 2020

- NMSC

- 011, ¶ 54. Therefore, Sena , rather than Franco , is the proper analysis.27 {41} As an initial matter, we note that our appellate courts have never applied the 1
Foster presumption to convictions based on guilty pleas. However, we assume 2 without deciding that the Foster presumption applies in this case because the jury 3 instructions and guilty plea for the manslaughter conviction do not specify what 4
conduct forms the basis of the manslaughter conviction. 5 Therefore, we agree with 5 the Court of Appeals that “th e only reasonable inference

. . . is that the factual basis 6 for Defendant’s guilty plea and resulting conviction is the same as the evidence 7 presented at trial.” Phillips II , 2021

- NMCA

- 062, ¶ 19; see State v. Sanchez , 1996

- 8
NMCA

- 089, ¶ 11, 112 N.M. 280, 923 P.2d 1165 (explaining that a double jeopardy 9 challenge based on a guilty plea could be resolved on the facts placed in the record). 10 The Court of Appeals, however, viewed the evidence through the wrong lens

. It 11
viewed the evidence from the perspective of what a reasonable jury could have 12
concluded during the trial despite the fact that Defendant’s manslaughter conviction 13

was a result o f a guilty plea. Phillips II , 2021

- NMCA

- 062, ¶ ¶ 24

- 25 ( stating that the 14

5 The State argues that “Defendant has the burden of creating the factual record for a double jeopardy claim , ” and because he did not specify within his guilty plea “whether the underlying factual basis was the rifle shot alone or all the gunshots, the Court of Appeals should have resolved any lack of clarity on that issue against Defendant.” Although our case law requires a defendant who pleads guilty to “provide a sufficient record for the cou rt to determine unitary conduct, ” s ee State v. Sanchez , 1996

- NMCA

- 089, ¶ 11, 122 N.M. 280, 923 P.2d 1165 , the record in this case is sufficient to do so

.28 jury could have reasonably found two distinct acts or one unitary act for the 1 aggravated battery and manslaughter convictions). This approach is mistaken. The 2 proper analysis is not what a reasonable jury could have concluded but whether there 3 are “sufficient facts in the record” to support distinct conduct which would defeat a 4 double jeopardy claim. Sanchez , 1996

- NMCA

- 089, ¶ 11

. 5

{42} The evi d ence in the record shows nonunitary conduct in Defendant’s acts. 6
Defendant explained to police that he wanted to “immobilize” Adrian, so he shot 7 Adrian twice in the torso with the handgun. Adrian was still alive when Defendant 8
ran out of ammunition , and Defendant left the room to exchange the handgun for a 9
rifle

. Eighteen seconds later, Defendant returned to Allie’s room with the rifle, 10 placed the rifle under Adrian’s chin, asked Adrian, “Are you ready?”, and then 11 pulled the trigger

. Adrian immediately stopped speaking and died. 12

{43} Forensic pathologist , Doctor Linda Syzmanski, who performed Adri an’s 13 autopsy, testified at trial that the two handgun shots to Adrian’s torso caused 14 “multiple rib fractures,” lacerated Adrian’s lungs, and caused internal bleeding in 15 Adrian’s chest cavity. She explained that “ with time,” these injuries “would be 16 fatal,” but if Adrian had received medical attention, the injuries “most likely would 17
have been curable” and Adrian c ould have survived. Dr. S y zmanski testified t hat th e 18
rifle shot caused extensive brain damage and “could be instantaneously fatal” or 1929 would have killed Adrian “ within a couple of minutes.” When asked which injury 1 killed Adrian, Dr. Syzmanski responded : “The injury that was most fatal was the one 2
to the head .” She concluded that “[t] he gunshot wound was the cause of death.” 3 (Emphasis added.) 4

{44} Defendant urges us to rely on Dr. Syzmanski’s later testimony that “[t] he 5 cause of death was multiple gunshot wounds , and the manner of death was 6
homicide .” (Emphasis added.) Defendant highlights this testimony to argue that the 7 cause of death was multiple gunshot wounds , and therefore, the manslaughter 8 conviction encompassed the two handgun shots and the rifle shot. We disagree. It is 9
clear from D r. Syzmanski ’s testimony that the rifle shot was the fatal shot that killed 10
Adrian. 11

{45} Additionally, b ased on the evidence presented, the battery was completed 12 before the manslaughter was committed

. See Sena , 2020

- NMSC

- 011, ¶ 46 . The 13 battery was accomplished when Defendant shot Adrian twice in the torso using the 14 handgun. Then, the manslaughter was accomplished when Defendant left the room, 15 came back, and shot Adrian under the chin with the rifle , killing him

. The two acts 16 were separated by approximately eighteen seconds and the intervening event of 17
Defendant le aving Allie’s room to exchange the handgun for the rifle. See Cooper , 18
1997

- NMSC

- 058, ¶ 61 (concluding that a defendant’s conduct was distinct where 1930 the defendant used different weapons and that the “death was not the consequence 1 of the initial act of battery” but was fol lowed by an intervening event). Significantly, 2
Defendant also used different weapons for each attack and applied distinct uses of 3
force with each. Even though Adrian remained in Allie’s room for both acts, we 4 again decline to weigh the location factor in favor of unitary conduct because Adrian 5 was severely injured , confining him to one location. 6

{46} Defendant argues that his conduct was unitary because of a common intent to 7
“immobilize” or kill Adrian during both acts. We disagree. When Defendant left the 8 room, exchanged the handgun with the rifle, came back to the room, and placed the 9 rifle under Adrian’s chin, he re formulated an intent to kill Adrian and to do so 10 immediately. See Herron , 1991

- NMSC

- 012, ¶ 15 (providing that a change in the 11 defendant’s intent supports distinct conduct) ; c f. Demongey , 2008

- NMCA

- 066, ¶ 16 12 (stating that there was no evidence indicating that the defendant rethought his actions 13 or ceased his actions and then reformulated his intent); Garcia , 2009

- NMCA

- 107, ¶ 14 14 (stating that there was no evidence that the defendant’s intent to batter the victim 15
was “ i nterrupted, altered, or changed”). 16

{47} Therefore, we conclude that the Foster presumption was rebutted because 17
there was evidence that distinct conduct support ed the battery and manslaughter 18
conviction s . The Court of Appeals erred by conclusively presuming unitary conduct 1931 when the record indicated that one crime was completed before the other and that 1 each act was sufficiently distinct. See Sena , 2020

- NMSC

- 011, ¶ 54

. Because 2 Defendant’s conduct is not unitary, there is no double jeopardy violation , and we 3 reverse the Court of Appea ls’ determination on this issue. 4
III. CONCLUSION 5

{48} For the foregoing reasons, we hold that Defendant’s two convictions of 6 aggravated battery for attacking Adrian, one conviction of manslaughter for killing 7 Adrian, and three convictions of aggravated battery against a household member for 8 his attack on Allie do not violate double jeopardy. Therefore, we affirm the Court of 9 Appeals in upholding two count s of aggravated battery for attacking Adrian 10 (baseball bat , handgun ), and upholding three counts of aggravated battery for 11 attacking Allie (baseball bat, rifle, strangulation). However, we reverse the Court of 12 Appeals in vacating the aggravated battery conviction for shooting Adrian with the 13 handgun. We remand to the district court for further proceedings consistent with this 14 opinion. 15

{49} IT IS SO ORDERED. 16

17 DAVID K. THOMSON , Justice 1832 WE CONCUR: 1

2 C. SHANNON BACON , Chief Justice 3

4 MICHAEL E. VIGIL , Justice 5

6 BRIANA H. ZAMORA , Justice 7

8 T. GLENN ELLINGTON , Ju dg e 9 Sitting by designation 10