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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. NO. 32,773 4 GLENN LOPEZ, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 7 Stephen Pfeffer, District Judge 8 Hector H. Balderas, Attorney General 9 Yvonne M. Chicoine, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jorge A. Alvarado, Chief Public Defender 13 Nicole S. Murray, Assi stant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 KENNEDY, Judge. 181 E.M. testified that she could not remember anything during her blackout, 18 which lasted from the time that she sat dow n on a couch at the party to the time that 19 she woke up the next morning. 20 2 {1} Glenn Lopez (Defendant) was convicted of criminal sexual penetration (CSP) 1 and fourth-degree criminal sexual contact (C SC). The CSC instruction given to the 2 jury at trial exactly follows the uniform jury instruction for misdemeanor CSC. 3 Defendant therefore appeals the felony CSC conviction, asserting fundamental error. 4 He argues that the CSC instruction given at trial omitted an essential element of the 5 crime, reflecting only misdemeanor CSC, rather than fourth-degree CSC. We agree, 6 but hold there is no error requi ring reversal of his felony c onviction. He also contends 7 that conviction for both offenses cons titutes a violation of double jeopardy. We 8 disagree and affirm his convictions. 9 I. BACKGROUND 10 A. The Night of the Incident 11 {2} In October 2010, Defendant, Daniel Romero, E.M., Liza Martinez, and Veronica 12 Aguilar attended a Halloween party. These individuals all knew each other to some degree. 13 E.M. arrived at th e party around midnight and, after she and the others had been drinking 14 for some time, she eventually blacked out while sitti ng in the living room at the party. 1 15
{3} The contested facts at trial dealt withwhat occurred during the time E.M. was 16 blacked out. Martinez was the State’s main witness on these facts. At approximately 173 4:00 a.m., Defendant, Martinez, E.M., Romero , and Aguilar left the party. At this 1 point, E.M., Romero, and Aguilar were “passed out” and could not walk to or from 2 the car on their own. Everyone except Defendant had pl anned to spend the night at 3 Romero’s house, but Martinez, who had beendesignated as the driver of the group, 4 was unsuccessful in her attempts to get driv ing directions from an incoherent Romero. 5 Defendant was Romero’s nei ghbor and arranged to give them directions in exchange 6 for a ride home. 7 {4} Either by Defendant’s design or mutual agreement, Martinez drove everyone 8 to what turned out to be Defendant’s house. Martinez and Defendant assisted 9 everyone into the house and left E.M. lyi ng face down on the floor of the living room 10 in case she got sick during the night. Ev entually, Defendant retired to his bedroom 11 and Martinez laid down on a couch in the living room. 12
{5} Shortly after Martinez laid down, Defendant came into the living room 13 completely naked. He pulled off E.M.’s bottoms, laid on top of her, and began 14 “humping” her. To stop this, Martinez turned on th e light, at which point, Defendant 15 appeared to be asleep. Martinez began kicking Defendant in an attempt to get him 16 away from E.M., and he eventually got up and went back to his bedroom. 17
{6} Martinez fell asleep on the couch and, wh en she woke up, she saw E.M. in the 18 same position, with De fendant again on top of making humping motions as though he 19 was having sex with her from behind. This time, Martinez’s verbal atte mpts to intervene and 202 Martinez testified that she first left th e house in order to get better cell service. 15 Unsuccessful, she then decided to return to the house where the party was and ask for 16 help. The people hosting the party declined to help. She did not approach any other 17 neighbors. 18
3 Aguilar immediately returned to a couch and fell asleep. 19 4 get Defendant away from E.M. were unsuccessful. Intending to get he lp, Martinez left 1 the house and unsuccessfully searched fo r better cell phone reception or a neighbor 2 willing to help. 2 Her efforts were unavailing. 3
{7} Returning to Defendant’s house, Martinez found that the lights, which she had 4 left on, were turned off, and the front door was locked. Through a window in the front 5 door, however, she could see into the livi ng room. It was through this window that 6 Martinez saw Defendant on top of E.M. Martinez pounded on the door until Aguilar 7 opened it. 3 Defendant behaved as though he was asleep while Aguilar opened the 8 door. Martinez warned Defendant, who was still lying next to E.M. and appeared to 9 be asleep, she would stay awake until the others woke up in order to keep him from 10 coming near E.M. again. Defendant subsequently returned to his bedroom. 11
{8} E.M. woke up the next morning, lying face down on the floor. She was not 12 wearing her bottoms and her bra was unhooked. When she went to the bathroom, she 13 experienced pain when urinati ng and discovered vaginal bleeding . E.M. also discovered that 14 she had small bruises, commonly referre d to as “hickies,” on her neck. When the others 154 There was conflicting tes timony regarding who woke up first. E.M. and 15 Martinez both testified that they were the first person in the living room to wake up. 16
5 Count 2 of the grand jury indictme nt charged Defendant with having 17 “unlawfully and intentionally touched[ed] or appl[ied] force, without consent, to the 18 unclothed intimate parts of E.M., . . . by th e use of force or coercion which resulted 19 in personal injury . . . contrary to . . . Section 30-9-12C(1).” 20 5 woke up, 4Martinez, E.M., Aguilar, and Romero left Defendant’s house. When E.M. 1 heard Martinez’s account of the night before , E.M. vaguely reme mbered laying on her 2 right side with her eyes closed and fee ling someone behind her touching her butt and 3 breasts, and a male voice whispering “Linda, Linda” and “Baby” in her left ear while 4 rubbing his facial hair against her cheek. In re sponse, she remembered shaking her head, 5 saying “uh-uh” and trying to push someone away from her. E.M. immediately sought 6 medical attention and reported the inci dent to the police that morning. 7 B. Procedural History 8 {9} Count 1 of the grand ju ry indictment charged Defendant with CSP under 9 NMSA 1978, Section 30-9-11(F) (2009), and Count 2 charged him with CSC under 10 NMSA 1978, Section 30-9-12(C)(1) (1993). 5 Section 30-9-12(C)(1) provides: 11 “Criminal sexual contact in the fourth degree consists of all criminal sexual contact 12 perpetrated . . . by the use of force or coer cion that results in personal injury to the 13 victim[.]” The CSC instruction give n to the jury in the case provided: 14 For you to find the defendant guilty of criminal sexual contact as 15 charged in Count 2, the State must prove to your satisfaction beyond a 16 reasonable doubt each of the follo wing elements of the crime: 176 1. The defendant touched or applied force to the unclothed 1 “buttocks” or “breasts” of [E .M.] without [E.M.’s] consent; 2 2. [E.M.] was unconscious, asleep or physically helpless; 3 3. [D]efendant knew or had reason to know of the condition 4 of [E.M.]; 5 6 4. [E.M.] was 18 years of age or older; 7 8 5. The defendant’s act was unlawful; 9 6. This happened in New Mexico on or about the 31st day of 10 October, 2010. 11 A jury found Defendant guilty of CSP as ch arged in Count 1 and of CSC as charged 12 in Count 2. 13 II. DISCUSSION 14 A. Jury Instruction 15 {10} Defendant correctly asserts that the in structions given to the jury on CSC 16 omitted the essential element of injury to E.M., which differentiates the fourth- degree 17 felony CSC of which he was convicted from misdemeanor CSC. Defendant failed to 18 preserve this argument for appealin the trial court or menti on it in his first brief in this 19 Court. We therefore review his claim only for fundamental error. See State v. Sosa , 20 1997-NMSC-032, ¶ 23, 123 N.M. 564, 943 P.2d 1017; Rule 12-216 NMRA. 21
{11} An error is fundamental when it goes to the foundation of the case or takes from 22 the defendant a right which was essential to his or her defens e and which no court 237 could or ought to permit him or her to waive. State v. Barber , 2004-NMSC-019, ¶ 8, 1 135 N.M. 621, 92 P.3d 633. Fundamental error can occur when a trial court fails to 2 properly instruct the jury on all essential elements of an offense. State v. Osborne , 3 1991-NMSC-032, ¶ 38, 111 N.M. 654, 808 P.2d 624 (stating that “the failure to 4 instruct the jury on the essential elemen ts of an offense constitutes fundamental 5 error”). In order to constitu te reversible fundamental erro r, an essential element that 6 is omitted from the instructions proffered to the jury must be “factually in issue.” See 7 State v. Orosco , 1992-NMSC-006, ¶ 6, 113 N.M. 780, 833 P.2d 1146. In Orosco , the 8 element omitted from the jury instructions—unlawfulness—was not factually in issue 9 because it was not disputed. There was no claim or evidence that the action was 10 anything other than unlawful, since the conduct alleged was altogether denied. Id. ¶¶ 11 9, 11 (stating that there was nothing in the facts to suggest that the illegal touching 12 might have been for some lawful purpose, such as medical care or custodial care). 13 Whether something was factually in i ssue depends on “whether there was any 14 evidence or suggestion in the facts, howeverslight, that could have put the element 15 . . . in issue.” Id. ¶ 10. 16
{12} However, not every failure to instructon an essential element is fundamental 17

error. Id. ¶ 17. Failure to instru ct on an essential element where there can be no 18 dispute that the “missing element was established by the evidence at trial” does not 19 require reversal for fundamental error. See State v. Herrera , 2014-NMCA-007, ¶ 17, 208 315 P.3d 343 (clarifying that where “it is clear that the missing element was 1 established by the evidence at trial, the factthat the jury was not instructed on the 2 element is not considered fundamental error” ). To evaluate if an element was clearly 3 established by evidence at trial, we l ook at “the entire record, placing the jury 4 instructions in the context of the indivi dual facts and circumst ances of the case[.]” Id. 5 (internal quotation marks and citation omitted). Fundamental error warrants reversal 6 only “if there has been a mis carriage of justice, if the question of guilt is so doubtful 7 that it would shock the conscience to permit th e conviction to stand, or if substantial 8 justice has not been done.” Id. (internal quotation marks and citation omitted). 9 {13} We agree with Defendant that the CSC ju ry instruction given at trial omitted an 10 essential element of fourth-degree felony CSC. Personal injury resulting from the 11 contact is the sole distinguishing element between misdemeanor and felony CSC. 12 Compare § 30-9-12(D) with § 30-9-12(C)(1). E.M. being injured is therefore an 13 essential element to the f ourth-degree CSC charge, ordinarily requiring inclusion in 14 the jury instructions. To assess Defendant ’s claim for fundamental error, we ask 15 whether E.M.’s injuries were factually in issue during trial. If they were, we must 16 determine whether her injuries were so cl early proven at trial, there could be no 17 dispute that the element was established. 18 1. E.M.’s Injuries Were Not Factually in Issue During Trial 199 {14} Defendant never disputed the existence of E.M.’s injuries, just whether E.M. 1 had consented to sex and the severity of the injuries th emselves. Defendant’s failure 2 to dispute the existence of E.M.’s injuri es rendered them not “in issue.” Defendant 3 was aware that he was charged with fel ony, not misdemeanor, CSC. The grand jury 4 indictment clearly lists injury among the elements for felony CS C and cites to the 5 statutory subsection for felony CSC. As such, Defendant was aware throughout the 6 trial that the State would have to prove, beyond a reasonable doubt, that E.M. 7 sustained injuries. See UJI 14-908 NMRA. Despite being on notice and presented 8 with evidence of E.M.’s in juries during the State’s case, Defendant chose not to 9 controvert the State’s evidence regarding the existence of E.M.’s injuries. Because 10 the existence of the injuries was not indispute, they were not “in issue.” See Orosco , 11 1992-NMSC-006, ¶ ¶ 9-11. 12
{15} Defendant “conducted a lengthy cross-examination of Julie Kalan, the Sexual 13 Assault Nurse Examiner (SANE) nurse who examined E.M. the morning after the 14 party, specifically as to whether the injuries were consistent with consensual sex, the time 15 during which the injuries could have occurred, and the degree of severity of the injuries. 16 Although Defendant questioned Kalan about the injuries being consistent with 17 consensual sex, her testimony did not waiver from earlier statements that injury had 18 occurred. Similarly, although cross-examined regarding when E.M. could have 19 sustained her injuries, Kalan offered no additional or inconsistent testimony regarding 2010 the timing of the injuries. She maintain ed that, although she could not approximate 1 when the bruising on E.M.’s neck occurre d, E.M.’s vaginal injuries had occurred 2 recently. 3
{16} Defendant did not object to the State’s proffer of Kalan as an expert, did not 4 object to the State’s tendering exhibits for admission, did not question Kalan as to the 5 extent of her knowledge and training on th ese types of injuries and, in no way, 6 rebutted the State’s evidence that E.M. sustained injuries. During his closing 7 arguments, Defendant again chose to argue the severity of the injuries and attack 8 Kalan’s credibility, rather than make any a ssertions regarding the existence of E.M.’s 9 injuries. 10
{17} We recognize that any evidence presented on the issue of injury, however slight 11 it may be, is sufficient to put that element “in issue.” See id. ¶ 10. Although we 12 conclude that the existence of E.M.’s injury was not inissue, we also acknowledge 13 that the severity of E.M.’s injury may havebeen. However, if E.M.’s injuries were 14 factually in issue during trial based on dis putes as to the injuries’ severity, the 15 existence of personal injury was so thoroughly established during trial that no 16 reversible fundamental error could exist. 17 2. The Personal Injury Element Wa s Established Beyond a Reasonable 18 Doubt 1911 {18} We affirm a case “in which the trial c ourt failed to instruct the jury on an 1 essential element when, under the facts addu ced at trial, that omitted element was 2 ‘undisputed and indisputable,’ and no rational jury could have c oncluded otherwise.” 3 State v. Lopez , 1996-NMSC-036, ¶ 13, 122 N.M. 63, 920 P.2d 1017. It appears from 4 the record that the existence of E.M.’s injuries was undisputed, and no rational jury 5 could therefore have conclude d otherwise. Although the severity of the injuries was 6 a subject of Defendant’s cross-examination of Kalan, any“injury to a sexual or 7 reproductive organ” is sufficient to establish injury under Section 30-9-12(C)(1). 8 NMSA 1978, § 30-9-10(D) (2005) (defining “personal injury”); see also UJI 14-908 9 (referencing Section 30-9-10(D) for list of types of personal injuries). 10
{19} During trial, the State presented evidence of E.M.’s injuries through the 11 testimony of E.M. herself, as well as th e SANE nurse who ex amined E.M. E.M. 12 testified that, when she woke up the morning after the party, her breasts hurt, she had 13 bruising on her neck, and she experienced vaginal pain and bleeding. Julie Kalan, the 14 SANE nurse who examined E.M. the morning afte r the party, testified in depth about E.M.’s 15 injuries. She described bruising on E.M.’s neck and abrasions on her back. The State 16 presented photographs of the bruising, wh ich were taken during the examination, to the 17 jury. Kalan opined that the bruising coul d have been caused by a hand or by a mouth 18 sucking or biting the flesh. Kalan listed E.M.’s vaginal injuries—redness, tissue 19 swelling, slight bleeding, an abrasion, and a torn hymen— and testified that these types of 2012 injuries were consistent with non-consensual sex. She also ch aracterized E.M.’s injuries as 1 “acute,” meaning recent, and “severe.” The district court also admitted various 2 exhibits documenting the injuries, incl uding Kalan’s written report and photographs 3 of the bruising and abrasions. There was no di spute that such injuries existed; thus, 4 we are satisfied that the State proved injury beyond a reasonable doubt. 5
{20} Examining the entire record and cons idering the element missing from the 6 instruction in the context of the facts of th e case, we cannot conclude that the omission 7 of the injury element in the jury instruc tion resulted in any miscarriage of justice. 8 Because the State conclusively established th e injury element, wedecline to reverse 9 the conviction on the basis of fundamental error and affirm De fendant’s conviction 10 for felony CSC. 11 B. Double Jeopardy 12 {21} We review the constitutional question of whether there has been a double 13 jeopardy violation de novo. State v. Andazola , 2003-NMCA-146, ¶ 14, 134 N.M. 710, 14 82 P.3d 77. “Double jeopardy protects against multiple punishments for the same 15 offense.” State v. Silvas , 2015-NMSC-006, ¶ 8, 343 P.3d 616. In cases involving 16 violations of multiple statutes or “doubl e-description” cases, “the polestar guiding 17 courts is the [L]egislature’s intent to authorize multiple punishments for the same 18 offense.” Swafford v. State , 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810 P.2d 1223. 19 Because Defendant argues that his convictions under different statutes arise from the 2013 same conduct, this is a double-description cas e. We use the two-part test articulated 1 in Swafford in analyzing double-description cases. Id. ¶ 25. Under this test, we first 2 consider whether the defendant’s conduct, for which he was convicted, was unitary. 3 If it is not, then there has beenno double jeopar dy violation. State v. Swick , 2012- 4 NMSC-018, ¶ 11, 279 P.3d 747. If the conduc t is unitary, we consider whether the 5 Legislature intended to punish the two statutory crimes separately. State v. 6 Dominguez , 2014-NMCA-064, ¶ 7, 327 P.3d 1092. 7 {22} Conduct is not unitary when the acts ar e “separated by sufficient indicia of 8 distinctness.” State v. Mora , 2003-NMCA-072, ¶ 18, 133 N.M. 746, 69 P.3d 256 9 (internal quotation marks and citation omitted). In analyzing whether there is 10 “sufficient indicia of distinctness,” we consider several factors: 11 (1) temporal proximity of penetrati ons (the greater the interval between 12 acts the greater the likelihood of separate offenses); (2) location of the 13 victim during each penetr ation (movement or repositioning of the victim 14 between penetrations tends to show separate offenses); (3) existence of 15 an intervening event; (4) sequencing of penetrations . . . ; [and] (5) [the] 16 defendant’s intent as evidencedby his conduct and utterances[.] 17 Herron v. State , 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624; State v. Pisio , 18 1994-NMCA-152, ¶ 33, 119 N.M. 252, 889 P.2d 860 (stating that Herron “provide[s] 19 the proper basis for whether conduct in se x-crime cases is unitary and should be 20 understood as supplementing Swafford ’s double jeopardy analys is on such facts). 21 When reviewing the facts of a case to determine if each act is distinct from the others, 2214 “we must indulge ‘in all presumption in favor of the verdict.’ ” State v. McClendon , 1 2001-NMSC-023, ¶ 5, 130 N.M . 551, 28 P.3d 1092 (quoting Herron , 1991-NMSC2 012, ¶ 20). 3
{23} Using these factors as a guide, Defe ndant’s encounters with E.M. throughout 4 the night have sufficient indicia of separateness for two convicti ons and are therefore 5 not unitary. At some point, Defendant stopped “humping” E.M. and moved to a 6 different room before resuming his contact with her. The act s were separated by 7 enough time for Defendant to go to his bedroom, Martinez to fall asleep, and 8 Defendant to come back into the living room and lay down on the floor with E.M. 9 Additionally, from the evidence presented at trial, there was an additional separation 10 between acts that could be inferred: that when Martinez left to get help, Defendant 11 got up from the floor where E.M. was, lock ed Martinez out of the house, and turned 12 off the lights before resuming his contact w ith E.M. The acts were also separated by 13 the existence of interveni ng events, specifically Martin ez’s attempts to prevent 14 Defendant’s contact with E.M. by ki cking and yelling at Defendant. Although 15 Defendant’s illegal conduct occu rred within the confined space of his living room, it 16 was far from constant, and the events spanne d several hours. All of this evidence was 17 presented during trial and supports a conclu sion that Defendant engaged in several 18 separate acts, at least one of which involved penetration, rather than a single, unitary 19 act directed against E.M. 2015 {24} Defendant contends that “[t]here is no evid ence to establish that these two acts [(CSC 1 and CSP)] did not occur simultaneously.” Evenif Defendant’s conduct was unitary, separate 2 convictions for CSC and CSP do not violate double jeopardy be cause each charge requires 3 proof of an element that the other does not. Cf. State v. Trevino , 1993-NMSC-067, ¶ 6, 116 4 N.M. 528, 865 P.2d 1172 (holding th at the Legislature intended the crimes of CSCM and 5 CDM be separately punishable crimes and reasoning that CSCM and CDM each require 6 proof of facts not required to prove the other offense). Th e CSC conviction did not require 7 that the State prove penetration to any extent, whereas CSP did. Compare § 30-9-12(C)(1) 8 and (D) with § 30-9-11(F). CSC and CSP thus contain distinct elements, and the State 9 offered evidence of Defendant’s conduct that would satisfy eachelement. The evidence at 10 trial indicates that Defendant humped E.M., while she had on no bottom clothing, on two 11 distinct occasions. Medical evidence indicates penetration occurred. The jury need not have 12 determined during whic h encounter penetration occurred to conclude that CSP occurred. 13 The remaining encounter, which was not the basis fo r the CSP conviction, remains and is 14 sufficient to stand as the basis for the CSC conviction. 15 {25} Having determined Defendant ’s conduct was not unitary, we need not reach the 16 second step in the Swafford analysis, and we conclude that there was no double 17 jeopardy violation. 1991-NMSC-043, ¶ 28 (stating that a finding that the defendant’s 18 conduct was not unitary ends the inquiry); Swick , 2012-NMSC-018, ¶ 11. We 19 therefore affirm Defendant’s conviction. 20
{26} IT IS SO ORDERED. 2116 ______________ ______________________ 1 RODERICK T. KENNEDY, Judge 2

WE CONCUR: 3

___________________________ 4 JAMES J. WECHSLER, Judge 5

___________________________ 6 J. MILES HANISEE, Judge 7