This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,971 9 FREDERICK WILLIAMS, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Denise Barela Shepherd, District Judge 13 Gary K. King, Attorney General 14 Andrea Sassa, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Jacqueline L. Cooper, Acti ng Chief Public Defender 18 Will O’Connell, Assistant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 WECHSLER, Judge. 23 Defendant Frederick Williams appeals his convictions for two counts of 242 conspiracy to commit kidnapping and one count of conspiracy to commit unlawful 1 taking of a motor vehicle. Defendant argues that the State presented insufficient 2 evidence to support Defendant’s conspiracy convictions and that his convictions for 3 three counts of conspiracy violate his double jeopardy rights. We hold that the State 4 presented sufficient evidence to support Defendant’s convicti on for one count of 5 conspiracy to commit kidnapping, but becau se the State failed to prove separate 6 conspiratorial agreements, Defendant’s convi ctions for separate counts of conspiracy 7 to commit kidnapping and conspiracy to co mmit unlawful taking of a motor vehicle 8 violate Defendant’s double jeopardy rights. Accordingly, we affirm Defendant’s 9 conviction for one count of conspiracy to commit kidnapping and vacate Defendant’s 10 convictions for one count of conspir acy to commit kidnapping and one count of 11 conspiracy to commit unlawful taking of a motor vehicle. We remand for 12 resentencing. 13 BACKGROUND 14 This case arose out of an incident th at took place at the home of Karen Naylor 15 on the evening of April 15, 2007. Naylor’s son, Tyrone Wood, also lived in Naylor’s 16 home. Wood considered Defendant a frie nd, and Defendant had gone to Naylor’s 17 home to visit Wood or record music in Wood’s in-home recording studio in the past. 18 On the night of the incident, Defendantwent to Naylor’s home and knocked on 193 Wood’s bedroom window. Wood went to the front door of the home to let Defendant 1 inside. When Wood opened the door, he saw that Defendant had two other men with 2 him that Wood did not recognize. 3 Wood asked the three men to wait at the door so that he could go inside and 4 straighten up his bedroom. As Wood attemp ted to close the front door and walk back 5 to his bedroom, one of the two men withDefendant grabbed Wood’s neck and placed 6 a silver-colored gun to Wood’s right temp le. Defendant and the two men led Wood 7 to his bedroom and told him to sit down. The three men proceed ed to search through 8 Wood’s bedroom and unplug his computer e quipment. Wood described Defendant’s 9 involvement as a “stand-off, keep-a-watchtype” and that the other two men were 10 more active in searching the bedroom. The three men then carried several of Wood’s 11 possessions, including a television, a computer , a printer, a video game console and 12 games, outside of the home. 13 Naylor testified that she was in her bedroom studying for an exam on the night 14 of the incident. While studying, she h eard noises from Wood’s bedroom and went to 15 investigate. When Naylor walked into Wood’s bedroom, she saw Wood seated at his 16 computer and the three men inside the bedroom. After noticing an assault rifle on a 17 bench in Wood’s bedroom, Naylor asked Wood to step outside of the bedroom so that 18 she could speak with him. Naylor then left Wood’s bedroom and went back to her 194 bedroom but Wood did not follow. After hearing more noise from Wood’s bedroom, 1 Naylor again went to the bedroom and saw th at Defendant had the assault rifle in his 2 hands. Defendant told Naylor that Wood owed him $20,000. Atthat point, one of 3 Defendant’s companions told Naylor to go inside Wood’s bedroom and sit down. The 4 other man stood at the door of Wood’s be droom to prevent Wood and Naylor from 5 leaving while the other two men search ed and took items from throughout the house, 6 including Naylor’s car keys, laptop, and wallet from Naylor’s bedroom. The three 7 men then left the house in Naylor’s car. 8 The State charged Defendant with tw o counts of kidnapping, two counts of 9 armed robbery, unlawful taking of a motor vehicle, two counts of conspiracy to 10 commit kidnapping, two count s of conspiracy to commit armed robbery, and 11 conspiracy to commit unlawful taking of a moto r vehicle. After a jury trial, Defendant 12 was acquitted of the two counts of kidnapping, the two counts of armed robbery, 13 unlawful taking of a motor vehicle, and the two counts of conspiracy to commit armed 14 robbery. However, the jury convicted Defe ndant of the two counts of conspiracy to 15 commit kidnapping and conspiracy to commit unlawful taking of a motor vehicle. 16 This appeal timely followed. 17 Defendant argues that there was only one conspiratorial agreement between 18 Defendant and the two other men and that, th erefore, his three conspiracy convictions 195 violate the double jeopardy clause of the fe deral and state constitutions. Additionally, 1 Defendant argues that the State presented insufficient evidence to support the 2 existence of one conspiracy. 3 DOUBLE JEOPARDY 4 The jury convicted Defendant of two counts of conspiracy to commit 5 kidnapping and one count of conspiracy to commit the unlawful taking of a motor 6 vehicle. In order to support Defendant’s first conviction for conspiracy to commit 7 kidnapping, the State had to prove that (1 ) Defendant and another person by words or 8 acts agreed to commit the kidnapping of Wood, and (2) Defendant and the other 9 person intended to commit the kidnapping of Wood. The second conspiracy to 10 commit kidnapping conviction required the St ate to prove that (1) Defendant and 11 another person agreed to commit the kidnappi ng of Naylor, and (2) Defendant and the 12 other person intended to commit the kidnappi ng of Naylor. In order to support 13 Defendant’s conviction for c onspiracy to commit unlawful taking of a motor vehicle, 14 the State had to prove that (1) Defendant and another person by words or acts agreed 15 to commit the unlawful taking of Naylor’s vehicle, and (2) Defendant and the other 16 person intended to commit the unlawful taking of Naylor’s vehicle. 17 Defendant argues that two of his conspiracy convictions violate the protections 18 against double jeopardy under the federal and New Mexico constitutions because the 196 evidence at trial did not support separate conspiratorial agreements to support more 1 than one count of conspiracy. Therefore, Defendant argues that this Court must vacate 2 all but one of his conspiracy convictions . “A double jeopardy claim is a question of 3 law that we review de novo.” State v. Leeson , 2011-NMCA-068, ¶ 10, 149 N.M. 823, 4 255 P.3d 401 (internal quotation marks and citation omitted). 5 Our Supreme Court has recently addressed the issue of “how our courts should 6 analyze a double jeopardy challenge to multip le conspiracy convictions” in multiple 7 punishment cases. State v. Gallegos , 2011-NMSC-027, ¶¶ 28, 30, 149 N.M. 704, 254 8 P.3d 655. In doing so, the GallegosCourt “clarif[ied] exis ting case law and set a new 9 course for the future application of double jeopardy principles to multiple conspiracy 10 convictions.” Id. ¶ 1. Particularly, the Court determined that the unit of prosecution 11 analysis for multiple punishment cases applies to the crime of conspiracy. Id. ¶¶ 43, 12 50. 13 Applying a unit of prosecution analysis, the Court held that “a fair inference to 14 draw from the text, history, and purpose of our conspiracy statute is that the 15 Legislature established what we will call a rebuttable presumption that multiple crimes 16 are the object of only one, overarching, conspiratorial agreement subject to one, severe 17 punishment set at the highest crime conspired to be committed.” Id. ¶ 55. The “heavy 18 burden” then shifts to the State to “ overcome the Legislature’s presumption of 197 singularity” using a totality of the circumst ances analysis in order to determine 1 whether there were separate agreements or combinations to support separate 2 conspiracy convictions. Id. ¶¶ 55-56. If the State fails to overcome this presumption, 3 “the appropriate remedy is to vacate [thed]efendant’s redundant convictions with 4 punishment imposed on the single remaining conspiracy at the level of the highest 5 crime conspired to be committed[.]” Id. ¶ 64 (internal quotati on marks and citation 6 omitted). 7 In this case, Defendant’s three conspiracy convictions raised a rebuttable 8 presumption that Defendant entered into one agreement to commit multiple crimes: 9 two counts of kidnapping and one count of unlawful taking of a motor vehicle. See 10 id. ¶ 55. We therefore must determine whether the State proved, by the totality of the 11 circumstances, that there were three separateagreements or comb inations forming the 12 basis of Defendant’s three conspiracy convictions. See id. ¶ 56. In determining 13 whether there are separate ag reements or combinations, we consider factors such as 14 (1) whether the location of the alleged cons piracies is the same, (2) any significant 15 temporal overlap between the alleged conspiracies, (3) whether the identity of the co16 conspirators and victims involved in the alleged conspiracies overlapped, (4) the overt 17 acts charged, and (5) the role played by th e defendant in the alleged conspiracies. Id. 18 ¶¶ 42, 57. 198 Taking these factors into account, the State failed to meet its burden and 1 overcome the presumption that there was only one agreement or combination and 2 therefore one conspiracy. First, all overt acts took place at one location: at Naylor’s 3 home. Second, regarding the temporalproximity between the three alleged 4 conspiracies, Naylor testified that the entire ordeal only took ten or fifteen minutes. 5 Third, the three alleged conspiracies i nvolved the same co-conspirators: Defendant 6 and the two other men. We note that the three alleged conspiracies involved separate 7 victims: Naylor and Wood. However, we do not give great wei ght to the fact that 8 there were separate victims because the victims were both members of the general 9 group targeted by the co-conspirators, the o ccupants of the house. Fourth, all three 10 overt acts that were subject to conspir acies, the two kidnappings and the unlawful 11 taking of Naylor’s motor vehicle, were all part of a continuous event to immobilize 12 the occupants of the home and take items to satisfy the alleged $20,000 debt. Finally, 13 Defendant’s role in all three conspiracies was essentially the same. Wood’s testimony 14 indicates that Defendant acted as a “stand-o ff, keep-a-watch type” and that the other 15 two men were more active in searching the house, keeping the occupants immobilized, 16 and taking items. These factors all indicate that Defendant and the two men had one 17 agreement to kidnap Wood and take items from his house to satisfy the debt and that 18 it evolved to include the objectives of kidnapping of Naylor and the taking of Naylor’s 199 motor vehicle. 1 We therefore vacate Defendant’s convic tion for conspiracy to commit unlawful 2 taking of a motor vehicle and one conviction for conspiracy to commit kidnapping. 3 See id. ¶ 64 (holding that the appropriate remedy is to vacate the defendant’s 4 convictions for all but one conspiracy w ith punishment imposed on the highest crime 5 conspired to be committed). 6 SUFFICIENCY OF THE EVIDENCE 7 Defendant also argues that the State presented insufficient evidence of an 8 agreement between Defendant and the two other men and therefore the State presented 9 insufficient evidence to support th e existence of a conspiracy. 10 Standard of Review 11 We review the existence of a conspiracy under a sufficiency of the evidence 12 standard. State v. Hernandez , 104 N.M. 268, 278, 720 P.2d 303, 313 (Ct. App. 1986). 13 We review the sufficiency of the evidence pursuant to a substantial evidence standard. 14 State v. Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). “[S]ubstantial 15 evidence means such relevant evidence as a reasonable mind might accept as adequate 16 to support a conclusion[.]” State v. Baca , 1997-NMSC-059, ¶ 14, 124 N.M. 333, 950 17 P.2d 776 (internal quotation mark s and citation omitted). We view the evidence in the 18 light most favorable to, and indulge all inferences in favor of the verdict. State v. 1910 Sena , 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198; State v. Sanders , 117 1 N.M. 452, 456, 872 P.2d 870, 874 (1994). If th ere is sufficient evidence supporting 2 the verdict, we do not reweigh the evidence or substitute our judgment for that of the 3 factfinder. State v. Fuentes , 2010-NMCA-027, ¶ 13, 147 N.M. 761, 228 P.3d 1181. 4 Sufficiency of the Evidence for Conspiracy to Commit Kidnapping 5 “For a conspiracy to exist[,] there must be a common design or a mutually 6 implied understanding; an agreement.” State v. Ross , 86 N.M. 212, 214, 521 P.2d 7 1161, 1163 (Ct. App. 1974) (internal quot ation marks and citation omitted). 8 “Generally, the agreement is a matter of inference from the facts and circumstances.” 9 State v. Reyes , 2002-NMSC-024, ¶ 20, 132 N.M. 576, 52 P.3d 948 (internal quotation 10 marks and citation omitted). 11 In order to support Defendant’s c onviction for conspiracy to commit 12 kidnapping, the State had to prove that (1) Defendant and another person by words 13 or acts agreed to commit the kidnapping of Wood, and (2) Defe ndant and the other 14 person intended to commit the kidnapping of Wood. 15 There was no direct eviden ce of an agreement to ki dnap Wood. However, “[a] 16 conspiracy may be established by circumstantial evidence, [and] the agreement is a 17 matter of inference from the facts and circumstances.” Ross , 86 N.M. at 214, 521 18 P.2d at 1163. The State presented evidence that Defendant and the two other men 1911 forced their way into the home while aware of Wood’s presence, pointed a firearm 1 at Wood, and told him to sit down in his bedroom while they searched for and took 2 items from Wood’s bedroom. Further, the State presented evidence that Wood was 3 the target of the actions committed in the home. There was testimony from Naylor 4 that Defendant told her that Wood owedDefendant $20,000, and Defendant gained 5 access to the house by knocking on Wood’s bedroom window. This evidence is 6 sufficient to infer that Defendant and the two other men made an agreement to go to 7 the home and commit the kidnapping of Wood in order to rob the house and satisfy 8 the $20,000 debt. See State v. Lopez , 2005-NMSC-036, ¶¶ 4, 25, 138 N.M. 521, 123 9 P.3d 754 (holding that sufficient evidence ex isted to support a conspiracy to commit 10 first degree murder conviction after evidence that the defendant and a companion 11 went to the victim’s home to rob him and subsequently inflicted fatal injuries and 12 threw his body down a well, despite no direct evidence of an agreement), overruled 13 on other grounds by State v. Frawley , 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144. 14 We therefore affirm Defendant’s convicti on for conspiracy to commit the kidnapping 15 of Wood. 16 CONCLUSION 17 For the foregoing reasons, we affirm De fendant’s convictions for one count of 18 conspiracy to commit kidnapping. However, because the State did not prove separate 1912 conspiratorial agreements, Defendant’s convictions for a separate count of conspiracy 1 to commit kidnapping and conspiracy to co mmit unlawful taking of a motor vehicle 2 violate Defendant’s double jeopardy rights. We vacate Defendant’s conviction for 3 one count of conspiracy to commit ki dnapping and one count of conspiracy to 4 commit unlawful taking of a motor vehicle and remand to the district court for 5 resentencing. 6 IT IS SO ORDERED. 7

________________________________ 8 JAMES J. WECHSLER, Judge 9 WE CONCUR: 10

________________________________ 11 RODERICK T. KENNEDY, Judge 12

________________________________ 13 MICHAEL E. VIGIL, Judge 14