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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 30,895 9 IGANCIO LOERA, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 12 James Waylon Counts, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Jacqueline L. Cooper, Acti ng Chief Public Defender 17 Carlos Ruiz de la Torre, A ssistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20

MEMORANDUM OPINION 21 VIGIL, Judge. 22 Defendant appeals from the judgment, convic ting him after a jury trial of false 23 imprisonment; Criminal Sexual Penetration (CSP) (child 13-18) (force or coercion); 24 and selling or giving alcoholic beverages to a minor. [RP 384] This Court’s calendar 252 notice proposed to affirm on the six issues De fendant raises on appeal. [Ct. App. File, 1 CN1] Defendant has filed a memorandum in opposition that we have duly considered. 2 [Ct. App. File, MIO] Unpersuaded, however, we affirm. 3 DISCUSSION 4 Issue 1: The District Court’s Deci sion Not to Admit the Facebook or 5 MySpace Page Purporting to be of the Victim 6 “We review the admission of evidence under an abuse of discretion standard 7 and will not reverse in the absence of a clear abuse.” See State v. Sarracino , 1998- 8 NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. 9 Defendant sought to admit a Facebook or MySpace page of K.E. showing that 10 she represented herself to be eighteen years ol d. [DS 2] K.E. deni ed that the page was 11 hers, and the page was not admitted. [I d.] In the memorandum, Defendant relies on 12 State v. Franklin , 78 N.M. 127, 129, 428 P. 2d 982, 984 (1967) and State v. Boyer , 103 13 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), in continuing to argue that the 14 jury should have been allowed to see th e page and make up their own minds as to 15 whether it was in fact K.E.’s photo or not. [MIO 22-24] We disagree. 16 As we discussed in the calendar notice, Defendant did not establish that he had 17 viewed the page prior to his interactions w ith K.E. that led to his convictions for CSP 18 (child 13-18), false imprisonment, and giving alcohol to a minor. Moreover, 19 Defendant did not present any evidence that he relied on K.E.’s alleged representation 203 that she was eighteen years old on Facebook or MySpace in considering whether to 1 supply her with alcohol or commit CSP. In addition, K.E. deniedthat the page was 2 hers. Also, Defendant testified that K.E . told him she was seventeen, not eighteen. 3 [DS 2] Finally, Defendant’s cousin further testified that K.E. stated she was seventeen 4 when she met Defendant. [DS 3] 5 We remain persuaded that Defendant did not establish that the Facebook or 6 MySpace page was relevant to whether De fendant knew K.E. was eighteen at the time 7 of the incidents. Further, the fact that K.E . denied it was hers made the page collateral 8 evidence. As such, submission of the phot o to the jury could have been misleading 9 and may have allowed the jury to be si detracked into debating whether they thought 10 the photo was of K.E. or not, when Defendantdid not establish that he relied on the 11 page in considering whether to supply K.E. with liquor and commit CSP. 12 We affirm the district court on this issue. 13 Issue 2: Sufficient Evidence of Coercion to Support Defendant’s Conviction for 14 CSP (child 13-18) 15 “In reviewing the sufficiency of the evid ence, we must view the evidence in the 16 light most favorable to the guilty verdic t, indulging all reasonable inferences and 17 resolving all conflicts in the evid ence in favor of the verdict.” State v. Cunningham , 18 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176; see also State v. Salas , 1999- 19 NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact 204 finder to resolve any conflict in the testimony of the witne sses and to determine where 1 the weight and credibility lay). 2 The jury was instructed that in order to find Defendant guiltyof CSP (child 13- 3 18) (force or coercion), they must find the following elements of the crime to their 4 satisfaction beyond a reasonable doubt: (1 ) Defendant caused K.E. to engage in 5 sexual intercourse; (2) K.E. was at least thirteen but less that eighteen years old; (3) 6 Defendant used physical force or physi cal violence; or K.E. was unconscious, or 7 asleep, or physically helpless, or sufferi ng from a mental condition so as to be 8 incapable of understanding the nature or c onsequences of whatDefendant was doing; 9 and Defendant knew or had reason to know of the condition of K.E.; and (4) this 10 happened in New Mexi co on or about April 25, 2009. [RP 270] The jury was also 11 instructed on the lesser-included offense of CSP (child 13-18). [RP 271-72] The jury 12 was instructed that they must find that Defendant acted intentionally when he 13 committed the crime. [RP 276] 14 At trial, K.E.’s mother testified that when her daughter, K.E., walked in the 15 front door the morning after the allege d incidents on August 25, 2009, K.E. was 16 wearing a white t-shirt that did not belong to her and she had se veral bruises on her 17 face. [RP 22] In addition, K.E.’s brother te stified at trial that he received a phone call 18 from Defendant at two o’cloc k in the morning of allege d incidents who stated that 195 K.E. was drunk and he didn’t want to takeher home that way so he was going to 1 watch her and take her home the next morning. [Id.] K.E. also te stified that she was 2 in her front yard talking w ith Defendant the evening befo re and she woke up at his 3 residence and that was all she remembered. [Id.] A few days later, K.E. told her 4 mother that Defendant had raped her, and that Defendant had given her vodka, which 5 she drank, and which he put in her soda. [RP 24] K.E. further testified that she did 6 not remember anything after that until sh e woke up at Defendant’s house wearing 7 large boxer shorts and a white t-shirt that did not belong to her. [Id.] K.E.’s own 8 clothes were on the floor next to the bed. [Id.] K.E. further te stified that Defendant 9 told her that he kept trying to get on top of her and was trying to “get some” but she 10 was fighting him off, so he hit her. [Id. ] Moreover, when she punched him in the eye, 11 Defendant “head butted her.” [Id.] Defendant also told K.E. that they had sex five 12 times in five hours and that he ‘came’ in her a lot so she wasn’t going to be pregnant. 13 [Id.] K.E. was fifteen years old at the time. 14 We hold that there was substantial ev idence that the CSP was committed on a 15 child between 13 and 18 years old and that it was committed with force or coercion. 16 In addition, contrary to Defendant’s c ontentions in the memorandum [MIO 18-21], 17 we hold that there was sufficient evidence of the CSP that was factually distinct from 18 the kidnaping. Defendant argues that he di d not prevent K.E.’s liberation for a longer 196 period of time or to a greater degree thanthat which was necessary to commit CSP. 1 [MIO 20] The State presented testimony, however, that Defendant raped K.E. 2 numerous times throughout the night, including while he knew that she was she was 3 drunk, unaware, and incapable of resis ting, and while she vigorously resisted 4 Defendant to which he responded by hitting and head butting her. To the extent that 5 Defendant contended that he understood K.E. to be seventeen or eighteen and that the 6 sex was consensual, the jury was instructed on Defendant’s defense with regard to his 7 alleged belief as to K.E.’s age [RP 273], and the jury as fact finder is not required to 8 believe Defendant’s version of the events. See State v. Rojo , 1999-NMSC-001, ¶ 19, 9 126 N.M. 438, 971 P.2d 829 (stating that “[c] ontrary evidence supporting acquittal 10 does not provide a basis for reversal becausethe jury is free to reject Defendant’s 11 version of the facts”). 12 Accordingly, we affirm Defendant’s c onviction for CSP (child 13-18) (force or 13 coercion). 14 Issue 3: Sufficient Evidence of False Imprisonment 15 In analyzing this issue, we apply the samestandard of review as set forth in our 16 discussion of Issue 2. The jury was instru cted that in order to convict Defendant of 17 false imprisonment, they must find the following elements of the crime to their 18 satisfaction beyond a reasonable doubt: (1) Defendant restrained K.E. against her 197 will; (2) Defendant knew that he had no au thority to restrain K.E.; and (3) this 1 happened in New Mexico on or about April 25, 2009. [RP 269] In addition, the jury 2 was instructed that they must find th at Defendant acted intentionally when he 3 committed the crime. [RP 276] 4 As discussed above, there was testimony at trial that in New Mexico on August 5 25, 2009, Defendant took K.E. to his residence and restrainedher there. When K.E. 6 tried to fight against Defendant, he hit her and head butted her. The jury could 7 reasonably infer that Defendant restrainedK.E. against her will and that he knew he 8 had no authority to do so. As discussed in Issue 2 above, we also hold that there was 9 sufficient evidence of the kidnaping that was factually distinct from the CSP. 10 We affirm Defendant’s convic tion for false imprisonment. 11 Issue 4: Prosecutor’s Misstatement of the Law 12 “In the absence of prejudice, th ere is no reversible error.” State v. Fernandez , 13 117 N.M. 673, 676, 875 P.2d 1104, 1107 (Ct. App. 1994). De fendant contends that 14 the prosecutor misstated the law in arguing that Defendant ’s cousin’s statement that 15 K.E. had identified herself as seventeen di d not help Defendant because seventeen is 16 still under age. [DS 3] Defendant states th at “[t]his would be true if the sex was 17 forcible but not if the sex was consensual.” [Id.] Defendant continues to argue that 188 he was prejudiced by the prosecutor’s statements in the memorandum, relying on 1 Franklin and Boyer . [MIO 22-25] 2 As we discussed in the calendar notice, the jury was correctly instructed on this 3 issue: 4 Evidence was presented that the defendant believed that 5 [K.E.] was 17 years old. The burden is on the state to prove 6 beyond a reasonable doubt that the defendant did not act 7 under an honest and reasonabl e belief in the existence of 8 those facts. If you have a reasonable doubt as to whether 9 the defendant’s action resulte d from a mistaken belief of 10 those facts, you must find the defendant not guilty. 11 [RP 273] Moreover, in any case, there wa s abundant evidence, which the jury found 12 to be credible, that the sex was forcible and not consensual. 13 We affirm the district court on this issue. 14 Issue 5: Ineffective Assistance of Counsel 15 In the memorandum, Defendant relies on Franklinand Boyer in continuing to 16 argue that his counsel was ineffective for failing to object to the prosecutor’s 17 misstatements of the law regarding CSP. [MIO 25-27] We are not persuaded. 18 There is a two-fold test for proving ineffective assistance of counsel: the 19 defendant must show (1) that counsel’s performance fell below that of a reasonably 20 competent attorney, and (2) that the defendant was prejudiced by the deficient 219 performance. State v. Hester , 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. 1 The burden of proof is on defendant to prove both prongs. Id. 2 We cannot say that Defendant has madea prima facie case of ineffective 3 assistance of counsel by failing to object to the prosecutor’s misstatement in argument. 4 First, as we discussed in Issue 4, the jury was correctly instructed on the issue. [RP 5 273] Second, it appears that there was abundant evidence, which the jury found 6 credible, that the CSP was committed with force and was not consensual. As such, 7 we cannot say that “but for” counsel’s failure to object to the prosecutor’s 8 misstatement there is a reasonable probability that the result of the trial would have 9 been different. See State v. Aker , 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 10 384. 11 Accordingly, we affirm on this issue. See State v. Grogan , 2007-NMSC-039, 12 ¶ 9, 142 N.M. 107, 163 P.3d 494 (expressing a preference for habeas corpus 13 proceedings to address ineffectiv e assistance of counsel claims). 14 Issue 6: Double Jeopardy 15 In the memorandum, Defendant relies on out-of-state authority in continuing 16 to argue that his double jeopardy rights were violated when he was convicted of false 17 imprisonment and CSP by force or coercion. [MIO 5-16] Defendant argues that the 18 conduct at issue in this case was unitary and that the Legislature did not intend to 1910 punish restraint incidental to the commission of another offense as kidnaping. [Id.] 1 We are not persuaded. 2 Swafford v. State , 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991) sets forth three 3 separate protections afforded by the double jeopardy prohibition: (1) protection 4 against a second prosecution for the same o ffense after acquittal; (2) protection against 5 a second prosecution for the same offense af ter conviction; and (3) protection against 6 multiple punishments for the same offense. For the double jeopardy prohibition 7 against multiple punishments, there are two types of cases: (1) when a defendant is 8 charged with multiple violations of the same statute based on a single course of 9 conduct, referred to as “unit of prosecu tion” cases; and (2) when a defendant is 10 charged with violations of multiple statutes for the same c onduct, referred to as 11 “double description” cases. See State v. DeGraff , 2006-NMSC-011, ¶ 25, 139 N.M. 12 211, 131 P.3d 61 (internal quotation marks and citation omitted). Defendant appears 13 to contend that his convictions for fals e imprisonment and CSP (child 13-18) (force 14 or coercion) constitutes a “double descri ption” violation of double jeopardy. 15 For “double description” cases, application of a two-part test is merited: (1) 16 whether the conduct is unitary, and (2) if so, whether the Legislature intended to 17 create separately punishable offenses based on the statutes. DeGraff, 2006-NMSC18 011, ¶ 27. To address unitary conduct for double description cases, we consider 1911 whether the defendant’s acts are separate d by sufficient “indicia of distinctness.” 1 Swafford, 112 N.M. at 13, 810 P.2d at 1233. Conduct is non-unitary if sufficient 2 “indicia of distinctness” separate the illegal acts. Id. 3 In this case, there was testimony at trial that K.E. was talking to Defendant in 4 her front yard, drank vodka with him, and the next thing she remembered, she woke 5 up at his house. K.E. was restrained agains t her will when Defendant took her to his 6 house and when he hit her to keep her there. Moreover, after taking K.E. to his house 7 Defendant proceeded to have sex five times with K.E. during the following five hours. 8 At times Defendant knew that K.E. was unaware and incapacitated by alcohol and 9 unable to resist or consent. At othe r times, K.E. resisted by punching Defendant in 10 the eye and he hit her and headbutted her. We hold that the events present sufficient 11 indicia of distinctiveness such that there is no unitary conduct. 12 Even if there were unitaryconduct in this case, however, the elements of the 13 two crimes, as evidenced by the jury instru ctions in this case [RP 269, 270], are vastly 14 different and, as such, maki ng them separate crimes serves different societal interests. 15 See Swafford , 112 N.M. at 8-9, 810 P.2d at 1228-29 (stating that to address legislative 16 intent for double description cas es, we apply the test in Blockburger v. United States , 17 284 U.S. 299, 304 (1932) and compare the elements of the relevant statutes to 18 determine if the Legislature intended multiple punishments); see also State v. Armijo , 1912 2005-NMCA-010, ¶ 22, 136 N.M. 723, 104 P.3d 1114 (“When applying the 1 Blockburger test to compound offenses or offenses that may be charged in alternate 2 ways, we look only to the elements of the statutes as charged to the juryand disregard 3 the inapplicable statutory elements.”). 4 CONCLUSION 5 We affirm Defendant’s convictions. 6 IT IS SO ORDERED. 7

_______________________________ 8 MICHAEL E. VIGIL, Judge 9 WE CONCUR: 10

_________________________________ 11 CELIA FOY CASTILLO, Chief Judge 12

_________________________________ 13 JONATHAN B. SUTIN, Judge 14