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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from 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. 33,723 4 JAMES SIMPSON, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 7 Jeff Foster McElroy, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Adam Greenwood, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Tania Shahani, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Judge. 192 {1} A grand jury indicted Defendant Jame s Simpson for operating a motor vehicle 1 with a blood or breath alcohol concentration (BAC) of eight one-hundredths (.08) or 2 more, and intentionally damaging a police car owned by the Town of Taos, New 3 Mexico. Defendant was consequently ch arged with one count of driving while 4 intoxicated (DWI), contrary to NMSA1978, Section 66-8-102(C)(1) (2010), and one 5 count of criminal damage to property ( over $1000), contrary to NMSA 1978, Section 6 30-15-1 (1963). Defendant moved to vacate the latter charge on the ground that it 7 “ar[ose] from the same single course of conduct addressed in ” the DWI charge, 8 violating his right to be free from double je opardy. (Internal quot ation marks omitted.) 9 The district court denied that motion, and Defendant ultimately accepted a conditional 10 plea, reserving his right to file this appeal. We affirm. 11 BACKGROUND 12
{2} There was no trial below, and the recordis mostly devoi d of any factual 13 background, but a few details were elicited at the plea h earing. Had the case gone to 14 trial, Officer Austin Barnes of the Taos Police Department would have testified that 15 Defendant crashed into his patrol car af ter “fail[ing] to yi eld,” causing over $1000 in 16 damages. Officer Victor Flores of the Ne w Mexico State Police would have testified 17 that Defendant then submitted to a blood alcohol test and was determined to be 18 driving while intoxicated. The parties agreedin separate hearings that the evidence 193 was sufficient for a reasonable jury to c onvict Defendant of both DWI and criminal 1 damage to property. 2
{3} Prior to pleading guilty, Defendant cited several of our felony murder 3 precedents and argued to the district court that DWI was being used by the State as a 4 “predicate” to the charge of criminal damageto property. According to Defendant, the 5 State could not prove an element of criminaldamage to property (the intent element) 6 without also proving DWI; one crime was thus subsumed by the other; and Defendant 7 was therefore facing two convictions for a single course of conduct. He now raises 8 those same contentions on app eal. Our review is de novo. State v. Bernal , 2006- 9 NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289. 10 DISCUSSION 11
{4} The constitution protects against both successive prosecutions and multiple 12 punishments for the same offense. Swafford v. State , 1991-NMSC-043, ¶ 6, 112 N.M. 13 3, 810 P.2d 1223. There are two types of multiple punishment cases: unit-of14 prosecution cases, in which an individual is convicted of multiple violations of the 15 same criminal statute, and double-descrip tion cases, in which a single act results in 16 multiple convictions under different statutes. Id. ¶¶ 8-9. Defendant’s argument 17 involving the separate crimes of DWI and criminal damage to property raises double18 description concerns. 194 {5} Our courts apply a two-part inquiry to double-description claims. State v. 1 Gutierrez , 2011-NMSC-024, ¶ 51, 150 N.M. 232, 258 P.3d 1024. First, we analyze 2 the factual question “whether the conduct underlying the offenses is unitary, i.e., 3 whether the same conduct violates both statutes,” and if so, we consider the legal 4 question “whether the [L]egislature intended to create separately punishable offenses.” 5 Id. (internal quotation marks and citation omitted). “If it reasonably can be said that 6 the conduct is unitary, then [we] must move to the second part of the inquiry. 7 Otherwise, if the conduct is separate and distinct, [the] inquiry is at an end.” Swafford , 8 1991-NMSC-043, ¶ 28. 9 Unitary Conduct 10
{6} Defendant argues that the conduct of DW I and criminal damage to property in 11 this case was both factually unitary and “ unitary by definition.” The latter argument 12 relies on a narrow doctrine—sometimes referre d to as “unitary conduct as a matter of 13 law”—that arose in the context of felony murd er, where a jury nece ssarily resolves the 14 fact-based unitary conduct question wh en it decides that a killing occurred during the 15 commission of the underlying felony

. See State v. Frazier , 2007-NMSC-032, ¶¶ 21-23, 16 142 N.M. 120, 164 P.3d 1; State v. Sotelo , 2013-NMCA-028, ¶ 19, 296 P.3d 1232. 17 However, despite making the argument as a matter of law, Defendant somewhat 18 paradoxically contends that th e conduct is unitary by definition “under the facts of his 195 case” because the State could not prove the requisite intent for criminal damage to 1 property without proving DWI. 2
{7} We note at the outset that there is an inherent difficulty in resolving 3 Defendant’s arguments without the benefit of a trial below. In conducting our unitary 4 conduct analysis, we are tasked with consid ering such factual questions “as whether 5 the acts were close in time and space, thei r similarity, the sequence in which they 6 occurred, whether other events intervened , and the defendant’s goals for and mental 7 state during each act.” State v. Melendrez , 2014-NMCA-062, ¶ 8, 326 P.3d 1126 8 (internal quotation mark s and citation omitted), cert. denied, 2014-NMCERT-006, 328 9 P.3d 1188. The ultimate question is whether “the jury reasonably could have inferred 10 independent factual bases fo r the charged offenses.” State v. Franco , 2005-NMSC11 013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (internal quotation marks and citation 12 omitted); State v. Sanchez , 1996-NMCA-089, ¶ 8, 122 N.M. 280, 923 P.2d 1165 13 (“[U]nitary conduct is fact specific; it requires meticulous review of the factual 14 scenario and can rarely be determined on just the face of the indictment.”); Swafford , 15 1991-NMSC-043, ¶ 27 (“The conduct questi on depends to a large degree on the 16 elements of the charged offenses and the facts presented at trial.”). 17
{8} Since Defendant pleaded guilty, we have no trial record to look to evaluate his 18 contention that “[t]he State’s legal theory inthis case was that th e criminal damage to 19 property arose out of [Defendant’s] deci sion to drive drunk.” (Emphasis omitted.) 206 That contention was contested when De fendant moved below to vacate on double 1 jeopardy grounds, and it is still contested on appeal. It is certainly not established on 2 the face of the indictment, which does not even mention Defendant’s intoxication with 3 respect to the criminal damage to property charge. And no details were provided at the 4 plea hearing regarding Defendant’s intent or the immediate circumstances surrounding 5 Defendant’s collision with the police car, other than that he “failed to yield.” 6
{9} Under these circumstances, we could su mmarily affirm because, after a guilty 7 plea, “[w]e place the burden on the defendant, the party raising the double jeopardy 8 challenge, to provide a sufficient record fo r the court to determine unitary conduct and 9 complete the remainder of the double jeopardy analysis.” Sanchez , 1996-NMCA-089, 10 ¶ 11; see also State v. Wood , 1994-NMCA-060, ¶ 19, 117 N.M. 682, 875 P.2d 1113 11 (holding that there must be a factual basi s in the record to support a double jeopardy 12 claim); cf. State v. Clark , 1989-NMSC-010, ¶ 9, 108 N.M . 288, 772 P.2d 322 (stating 13 that the initial burden is on the defendant when challenging a plea agreement). 14
{10} Nonetheless, since we ultimately c onclude that Defendant’s argument 15 unquestionably fails the legal prong of the double jeopardy analysis, i.e., the 16 Legislature intended to create separately punishable offenses, we will assume without 17 deciding that Defendant’s conduct was unitary. 18 Legislative Intent 197 {11} Having assumed unitary conduc t, we must determine whether the Legislature 1 intended Sections 66-8-102(C )(1) and 30-15-1 to provide for separate punishment. See 2 State v. Swick , 2012-NMSC-018, ¶ 11, 279 P.3d 747. “D eterminations of legislative 3 intent, like double jeopardy, present issues of law that are reviewed de novo, with the 4 ultimate goal of such review to be fac ilitating and promoting the [L]egislature’s 5 accomplishment of its purpose.” State v. Montoya , 2013-NMSC-020, ¶ 29, 306 P.3d 6 426 (alterations, internal quotation marks, and citation omitted). Since the statutes 7 themselves do not expressly provide for multiple punishments, we begin by applying 8 the rule of statutory construction from Blockburger v. United States , 284 U.S. 299 9 (1932), to determine whether each provision requires proof of a fact that the other 10 does not. Swick , 2012-NMSC-018, ¶¶ 11-12. If so, “ it may be inferred that the 11 Legislature intended to authorize separate punishments under each statute.” Id. ¶ 13. 12 But “this is only an inference that leads to an examination of other indicia of 13 legislative intent.” Id. 14
{12} Needless to say, the elements of the two offenses have virtually no overlap. To 15 convict Defendant of DWI as charged, the State would have had to prove that 16 Defendant drove a vehicle in New Mexi co with a BAC of .08 or higher. See§ 66-8- 17 102(C)(1). To convict Defendant of criminal damage to property (over $1000), the 18 State would have had to prove that Defendant intenti onally damaged the property of 19 another without consent and that the amount of damage was more than $1000. See § 208 30-15-1. DWI can be committed whether or not any property damage results; and 1 criminal damage to property can be co mmitted when the perpetrator is completely 2 sober. As such, one offense does not subsume the other, and the Blockburger test 3 lends no support to Defendant’s argument. 4
{13} When two statutes survive Blockburger , we look to “the language, history, and 5 subject of the statutes, and we must identif y the particular evil s ought to be addressed 6 by each offense.” Montoya , 2013-NMSC-020, ¶ 32 (internal quotation marks and 7 citation omitted). “[T]he social evils proscrib ed by different statutes must be construed 8 narrowly[.]” Swafford , 1991-NMSC-043, ¶ 32. 9
{14} Since 1941, the Legislature has repeated ly addressed the evils of intoxicated 10 driving by augmenting DWI penalties, adding provisions fo r court-ordered drug and 11 alcohol screening, treatment, and rehabilitation, and decreasing the BAC at which a 12 driver is presumed intoxicated. State v. Hernandez , 2001-NMCA-057, ¶ 21, 130 N.M. 13 698, 30 P.3d 387. The entire statutory schememakes no reference to property damage. 14 See § 66-8-102. Penalties are aggravated only fo r repeat offenses, an increased BAC, 15 bodily injury to a human being, or the refu sal to submit to chemical testing. Section 16 66-8-102(D). Construed narrowly, “[t]he ultimate purpose of the DWI laws is to 17 protect the health, safety, and welfare of the public by stopping people from driving 18 under the influence of drugs and alcohol.” State v. Valdez , 2013-NMCA-016, ¶ 9, 293 19 P.3d 909 (internal quotation marks and citation omitted). 209 {15} In contrast, the offense of criminal damage to property expressly protects 1 against the intentional damage of property—real or personal. See § 30-15-1. The 2 offense is aggravated based on the monetary value of the property damage. Id. Thus, 3 the two offenses are unambiguously designed to address distinct social 4 ills—intoxicated driving on the one hand, and intentional damage to property on the 5 other—and they may be punish ed separately, even whencommitted during the course 6 of a single act. 7 CONCLUSION 8
{16} Defendant’s conviction for criminaldamage to property (over $1000) is 9 affirmed. 10
{17} IT IS SO ORDERED. 11

__________________________________ 12 LINDA M. VANZI, Judge 13

WE CONCUR: 14

_________________________________ 15 JAMES J. WECHSLER, Judge 1610 _________________________________ 1 J. MILES HANISEE, Judge 2