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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-38618

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

JASON I. CORDOVA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY

Jason Lidyard, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Walter Hart, Assistant Attorney General

Albuquerque, NM 

for Appellee

Bennett J. Baur, Chief Public Defender

Joelle N. Gonzales, Assistant Appellate Defender

Santa Fe, NM 

for Appellant

MEMORANDUM OPINION

BOGARDUS, Judge.

{1} The opinion filed on August 11, 2022, is hereby withdrawn, and this opinion is 

substituted in its place. A jury convicted Defendant Jason Cordova of, among other 

charges, aggravated burglary, pursuant to NMSA 1978, Section 30-16-4(C) (1963); 

aggravated battery (great bodily harm), pursuant to NMSA 1978, Section 30-3-5(C) 

(1969); and tampering with evidence, pursuant to NMSA 1978, Section 30-22-5(A) 

(2003), based on Defendant entering Victim’s home without her permission and sexually 

assaulting her. Defendant appeals his convictions for aggravated battery and tampering 
with evidence, arguing his convictions for aggravated burglary and aggravated battery 

violate his right to be free from double jeopardy, and insufficient evidence supports his 

conviction for tampering with evidence. He also argues the district court improperly 

denied his motion for mistrial based on jury misconduct. We vacate Defendant’s 

convictions for aggravated battery and tampering with evidence and otherwise affirm.

{2} Because this is a memorandum opinion and the parties are familiar with the facts 

and procedural history of this case, we reserve discussion of specific facts where 

necessary to our analysis.

DISCUSSION

I. Double Jeopardy 

{3} Defendant argues that his conviction for aggravated battery violates double 

jeopardy and must be vacated. We review Defendant’s contention de novo. See State v. 

Lopez, 2008-NMCA-111, ¶ 8, 144 N.M. 705, 191 P.3d 563 (“We generally apply a de 

novo standard of review to the constitutional question of whether there has been a 

double jeopardy violation.”).

{4} As relevant here, the double jeopardy clause protects defendants from receiving 

“multiple punishments for the same offense.” State v. Montoya, 2013-NMSC-020, ¶ 23, 

306 P.3d 426 (internal quotation marks and citation omitted). “Multiple punishment 

cases are of two types: those cases in which a defendant is charged with multiple 

violations of a single statute based on a single course of conduct (‘unit of prosecution’ 

cases) and those cases in which a defendant is charged with violating different statutes 

in a single course of conduct (‘double-description’ cases).” State v. Sena, 2020-NMSC011, ¶ 44, 470 P.3d 227. Here, Defendant’s double jeopardy claim is based on a 

double-description multiple punishment theory.

{5} We apply a two-part analysis to double-description cases, the first part which 

determines “whether the conduct underlying the offenses is unitary, i.e., whether the 

same conduct violates [multiple] statutes.” State v. Swafford, 1991-NMSC-043, ¶ 25, 

112 N.M. 3, 810 P.2d 1223. If the conduct is unitary, we look to the statutes at issue “to 

determine whether the [L]egislature intended to create separately punishable offenses.” 

Id. Double jeopardy prohibits multiple punishments only when (1) the conduct is unitary, 

and (2) it is determined that the Legislature did not intend multiple punishments. Id.

“Where we conclude that double jeopardy has been violated, we vacate the lesser 

offense and retain the conviction for the greater offense.” State v. Padilla, 2006-NMCA107, ¶ 36, 140 N.M. 333, 142 P.3d 921, rev’d on other grounds, 2008-NMSC-006, 143 

N.M. 310, 176 P.3d 299.

{6} The jury was instructed, in relevant part, that to convict Defendant of aggravated 

burglary, the State had to prove beyond a reasonable doubt that

1. [D]efendant entered a dwelling without authorization;
2. [D]efendant entered the dwelling with the intent to commit criminal 

sexual penetration and/or aggravated battery once inside; [and]

3. [D]efendant touched or applied force to [Victim] in a rude or angry 

manner while inside.

The jury was instructed, in relevant part, that in order to convict Defendant of 

aggravated battery, the State had to prove beyond a reasonable doubt that Defendant 

“touched or applied force to [Victim] by striking and/or punching and/or hitting her.”

{7} Here, the two charges against Defendant that implicate double jeopardy both rely 

on facts demonstrating an element of force. As charged, the application of force within 

each act is indistinguishable. Victim testified that Defendant entered her home without

permission, performed sexual acts on her, and once he was finished, stood up and 

punched her in the face. The State does not argue nor does the evidence suggest that 

separate conduct underpinned Defendant’s aggravated burglary and aggravated battery 

convictions. We agree with Defendant, then, that the force elements for both aggravated 

burglary and aggravated battery were satisfied when Defendant punched Victim and 

that there was not an identifiable point that could distinguish between the completion of 

one crime and the start of another. See State v. Silvas, 2015-NMSC-006, ¶ 10, 343 

P.3d 616 (noting that “[c]onduct is unitary when not sufficiently separated by time or 

place, and the object and result or quality and nature of the acts cannot be 

distinguished”). We conclude that the conduct was unitary and proceed to analyze the 

second step of the double-description analysis, whether our Legislature intended to 

punish each conduct separately. See State v. Swick, 2012-NMSC-018, ¶ 11, 279 P.3d 

747.

{8} “When . . . statutes themselves do not expressly provide for multiple 

punishments, we begin by applying the rule of statutory construction from Blockburger 

v. United States, 284 U.S. 299 . . . (1932), to determine whether each provision requires 

proof of a fact that the other does not,” in order to ascertain if the Legislature intended to 

punish each crime separately. State v. Branch, 2018-NMCA-031, ¶ 24, 417 P.3d 1141; 

see Swafford, 1991-NMSC-043, ¶¶ 10, 30. “When dealing with statutes that are vague 

and unspecific or written with many alternatives, we apply a modified version of the 

Blockburger analysis.” State v. Gonzales, 2019-NMCA-036, ¶ 22, 444 P.3d 1064 

(internal quotation marks and citation omitted). “Under the modified Blockburger

analysis, we no longer apply a strict elements test in the abstract; rather, we look to the 

state’s trial theory to identify the specific criminal cause of action for which the 

defendant was convicted, filling in the case-specific meaning of generic terms in the 

statute when necessary.” Id. (internal quotation marks and citation omitted). 

{9} With this framework in mind, we continue our analysis by looking to the elements 

of the two offenses to ascertain if the definition of one subsumes the definition of the 

other. See Montoya, 2013-NMSC-020, ¶ 32. It is apparent that the two statutes have 

distinct elements. Section 30-3-5(A) prohibits aggravated battery and reads, in pertinent 

part that “[a]ggravated battery consists of the unlawful touching or application of force to 
the person of another with intent to injure that person.” Meanwhile, the statute 

prohibiting aggravated burglary reads, in pertinent part that “[a]ggravated burglary 

consists of the unauthorized entry of any . . . dwelling or other structure, movable or 

immovable, with intent to commit any felony or theft therein and the person . . . commits 

a battery upon any person while in such place.” Section 30-16-4(C). Thus, one of these 

offenses is not subsumed by the other based on these definitions alone.

{10} Because each statute requires proof of an element that the other does not, we 

can infer that the Legislature intended to authorize separate punishments under the 

aggravated battery and aggravated burglary statutes under the Blockburger test. See 

Swafford, 1991-NMSC-043, ¶ 12. However, this is merely an inference that allows us to 

presume the two statutes punish different offenses. See id. ¶ 31. We agree with 

Defendant that the presumption is not conclusive because the State charged him with 

aggravated burglary, which has three different alternative aggravating elements, making 

it a multipurpose statute. See § 30-16-4(A)-(C); State v. Gutierrez, 2012-NMCA-095, ¶ 

14, 286 P.3d 608 (stating that we apply the modified Blockburger test when one of the 

statutes are written with various alternatives); see also State v. Sena, 2018-NMCA-037, 

¶¶ 42-44, 419 P.3d 1240 (noting that aggravated burglary has numerous ways in which 

a conviction may occur so this Court must analyze it through the modified Blockburger

test), aff’d in part, rev’d in part, and remanded, 2020-NMSC-011, ¶ 56. We now apply 

the modified Blockburger test which requires us to answer whether the legal theory 

advanced by the State at trial results in one offense subsuming the other. See 

Gutierrez, 2012-NMCA-095, ¶ 18; Swick, 2012-NMSC-018, ¶¶ 21, 24. More specifically, 

our analysis is guided by the State’s theory of the specific conduct that violated the 

statutes at issue. See Porter, 2020-NMSC-020, ¶ 18.

{11} The charging document and jury instructions do not demonstrate which of 

Defendant’s actions the State argued would satisfy the force element of each charge. 

See State v. Serrato, 2021-NMCA-027, ¶ 29, 493 P.3d 383 (noting that to determine the 

state’s theory, we examine the charging documents, the state’s closing argument, and 

the jury instructions). Despite this, the State was clear about its theory of the case when 

outlining the elements of both aggravated burglary and aggravated battery in its closing 

argument. See id. It specifically referenced the act of Defendant punching Victim in the 

face for both the “touched or applied force to [Victim] in a rude or angry manner” and 

“touched or applied force to [Victim] by striking or punching and or hitting her” elements 

of both crimes. See Reed, 2022-NMCA-025, ¶¶ 16-19 (determining that based on the 

modified Blockburger test and the jury being instructed it could rely on the same 

conduct to satisfy the force elements of two statutes, the defendant’s conviction violated 

double jeopardy).

{12} Based on the State’s argument to the jury that it could rely on Defendant’s single 

act of force for both crimes, we conclude Defendant’s convictions for aggravated 

burglary and aggravated battery violate double jeopardy and his conviction for 

aggravated battery must be vacated. See State v. Santillanes, 2001-NMSC-018, ¶ 28, 

130 N.M. 464, 27 P.3d 456 (“[D]ouble jeopardy requires that the lesser offense merge 
into the greater offense such that the conviction of the lesser offense, not merely the 

sentence, is vacated.”).

II. The Evidence Is Insufficient to Sustain Defendant’s Conviction for 

Tampering With Evidence

{13} Defendant argues the State presented insufficient evidence to support his 

conviction for tampering with evidence. At trial, the State presented evidence that a 

sheriff’s deputy (the Deputy) picked up Defendant around 5:00 p.m. and gave him a 

courtesy ride to his parents’ house on Espinoza Lane in Española, New Mexico 

because he was intoxicated. During the courtesy ride, Defendant was wearing a black 

and white shirt. Later that evening, a stranger wearing a black and white shirt entered 

Victim’s home on Espinoza Lane without permission and punched and sexually 

assaulted Victim. The same Deputy was called to the scene where Victim described her 

perpetrator as wearing a shirt similar to that worn by Defendant during the courtesy ride. 

The Deputy remembered his earlier interaction with Defendant and twice went to 

Defendant’s house that evening and asked Defendant to turn over the clothes he was 

wearing earlier. Defendant turned over jeans, boxer shorts, and shoes, but did not 

produce the shirt. Law enforcement never recovered the shirt.

{14} Defendant argues that he cannot be convicted of tampering simply because the 

black and white shirt worn during the commission of the crime could not be found. The 

State argues that the jury could reasonably infer Defendant lied about losing the shirt 

and thus Defendant’s conviction for tampering with evidence was supported by 

substantial evidence 

{15} “The test for sufficiency of the evidence is whether substantial evidence of either 

a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable 

doubt with respect to every element essential to a conviction.” State v. Riley, 2010-

NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation 

omitted), overruled on other grounds by Montoya, 2013-NMSC-020, ¶ 54. The reviewing 

court “view[s] the evidence in the light most favorable to the guilty verdict, indulging all 

reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” 

State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “The 

question before us as a reviewing [c]ourt is not whether we would have had a 

reasonable doubt [about guilt] but whether it would have been impermissibly 

unreasonable for a jury to have concluded otherwise.” State v. Rudolfo, 2008-NMSC036, ¶ 29, 144 N.M. 305, 187 P.3d 170. “Jury instructions become the law of the case 

against which the sufficiency of the evidence is to be measured.” State v. Smith, 1986-

NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883. 

{16} The jury, in this case, was instructed in relevant part, that to find Defendant guilty 

of tampering with evidence, it must find beyond a reasonable doubt that he (1)

“destroyed and/or hid clothing,” and (2) “[b]y doing so, [D]efendant intended to prevent 

the apprehension, prosecution, or conviction of [Defendant] for the crime or crimes of 
aggravated burglary, criminal sexual penetration, criminal sexual contact, and/or 

aggravated battery.” See UJI 14-2241 NMRA.

{17} “When there is no other evidence of the specific intent . . . to disrupt the police 

investigation, intent is often inferred from an overt act of the defendant.” State v. Duran,

2006-NMSC-035, ¶ 14, 140 N.M. 94, 140 P.3d 515. But where there is no direct 

evidence of an intent to undermine law enforcement activities, and no overt act 

permitting an inference of such intent, “the evidence cannot support a tampering 

conviction.” State v. Silva, 2008-NMSC-051, ¶ 18, 144 N.M. 815, 192 P.3d 1192, 

holding modified by State v. Guerra, 2012-NMSC-027, ¶¶ 14-15, 284 P.3d 1076. 

{18} In a tampering case where evidence was never recovered, evidence showing 

that a defendant had evidence and used that evidence to commit a crime combined with 

a showing that the evidence was then removed from the scene and never recovered is 

insufficient to show that the defendant had the intent required by the tampering with 

evidence statute. See State v. Carrillo, 2017-NMSC-023, ¶ 47, 399 P.3d 367; Silva, 

2008-NMSC-051, ¶¶ 17-19. In Arrendondo, our Supreme Court concluded that evidence 

was insufficient to support a tampering conviction where “the [s]tate provided evidence 

that [the defendant] took the [evidence] when he left the crime scene, but it offered no 

evidence that [the defendant] actively hid or disposed of it.” 2012-NMSC-013, ¶ 33, 278 

P.3d 517.

{19} By contrast, we have held that evidence was sufficient to support a tampering 

conviction for a knife that was never recovered where the defendant described having 

thrown the knife from his vehicle as he departed the scene of the stabbing. See State v. 

Sanchez, 2015-NMCA-077, ¶¶ 2, 19, 355 P.3d 51. Similarly, in State v. Torrez, our 

Supreme Court concluded the defendant’s testimony that “immediately after the 

shooting, he took most of the guns and put them behind his refrigerator,” supported the 

conclusion that tampering with evidence was proven beyond a reasonable doubt. 2013-

NMSC-034, ¶ 44, 305 P.3d 944.

{20} Here, the State has provided nothing more than evidence showing that 

Defendant was wearing a black and white shirt when he committed his crimes, 

combined with evidence that the black and white shirt was never found. More 

specifically, the State’s evidence—testimony that the Deputy asked Defendant to 

retrieve the shirt he was wearing earlier that day and that Defendant did not provide it to 

him—failed to establish that Defendant actively hid or destroyed the black and white 

shirt. 

{21} The State contends this case is like Carrillo, because there was evidence that 

Defendant had been observed with the missing evidence—the black and white shirt in 

this case and a gun in Carrillo—at or soon after the time of the commission of the crime, 

and Defendant was located soon thereafter without the shirt. See 2017-NMSC-023, ¶ 

46. Thus, the jury could reasonably conclude that Defendant lied to prevent the missing 

shirt from being located, and could conclude Defendant tampered with evidence. See id.

We disagree. In Carrillo, evidence was presented that the defendant was seen with a 
gun shortly after the shooting deaths occurred, was seen using a gun to break a car 

window, was found without a gun shortly thereafter, and lied about using his hand rather 

than a gun to break the car window. Id. ¶¶ 6-7. Lying about breaking the window with 

his hand was an overt act from which the jury could infer the requisite specific intent to 

tamper. Id. ¶ 47; see State v. Slade, 2014-NMCA-088, ¶ 14, 331 P.3d 930 (“A 

reasonable inference is a conclusion arrived at by a process of reasoning which is a 

rational and logical deduction from facts admitted or established by the evidence.” 

(alterations, internal quotation marks, and citation omitted)). In contrast here, the State 

argues the jury could infer Defendant was lying simply because Defendant was seen 

wearing the shirt and then did not provide it to law enforcement a few hours later, which 

would then provide the “overt act” necessary for the jury to infer the necessary specific 

intent for the tampering conviction. However, the State presented no evidence that 

Defendant lied, instead only provided evidence that he did not produce his shirt to law 

enforcement after looking for it. Thus, no evidence of an overt act was presented to 

support Defendant’s tampering with evidence conviction.

{22} Accordingly, we determine the State’s evidence falls short of “evidence of an 

overt act from which the jury may infer . . . intent [to tamper],” Silva, 2008-NMSC-051, 

¶ 18, and therefore, conclude that the evidence was insufficient to support Defendant’s 

conviction for tampering with evidence. 

III. The District Court Did Not Abuse Its Discretion by Denying Defendant’s 

Motion for Mistrial

{23} Defendant’s final argument is that the district court erred in denying its motion for 

mistrial based on juror misconduct. “A denial of a motion for mistrial is reviewed under 

an abuse of discretion standard.” State v. Lymon, 2021-NMSC-021, ¶ 12, 488 P.3d 610 

(internal quotation marks and citation omitted). “An abuse of discretion occurs when the 

ruling is clearly against the logic and effect of the facts and circumstances of the case. 

We cannot say the [district] court abused its discretion by its ruling unless we can 

characterize [the ruling] as clearly untenable or not justified by reason.” State v. Rojo, 

1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and 

citations omitted).

{24} Defendant argues that evidence demonstrated that a juror determined 

Defendant’s guilt before the close of evidence and shared his opinions with other jurors, 

which required the district court to declare a mistrial or excuse the juror. However, the 

juror was identified and questioned by the district court. He denied saying that 

Defendant was guilty and stated he did not hear anyone else saying that and there was 

no reason he could not be a fair and impartial juror. Based on the statements of the 

juror, we cannot say that the district court’s decision was “clearly against the logic and 

effect of the facts and circumstances,” State v. Maples, 2013-NMCA-052, ¶ 13, 300 

P.3d 749 (internal quotation marks and citation omitted), and conclude that it was not an 

abuse of discretion to deny Defendant’s motion for mistrial. 

CONCLUSION
{25} For the foregoing reasons, we vacate Defendant’s convictions for aggravated 

battery and tampering with evidence, and otherwise affirm. 

{26} IT IS SO ORDERED. 

KRISTINA BOGARDUS, Judge

WE CONCUR:

J. MILES HANISEE, Chief Judge

GERALD E. BACA, Judge