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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,782 4 ANDREW COPPLER, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Judith Nakamura, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Steven H. Johnston, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Bauer, Acting Chief Public Defender 14 Will O’Connell, Assistan t Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 KENNEDY, Judge. 192 {1} Defendant engaged in an altercation with his father, during which his father lost 1 consciousness while in a choke hold. Father died some days later, never having 2 regained consciousness. An autopsy determin ed that Defendant’s father suffered from 3 a heart arrhythmia and died from insuffici ent oxygen reaching his brain. During trial, 4 the State presented evidence that the arrhythmia caused the father’s death and that 5 Defendant’s actions likely triggered the father’s abnormal heart rhythm. Defendant 6 requested a causation instruction, so that th e jury would have to determine whether he 7 was a “significant cause” of his father’s death. Defendant was convicted of second 8 degree murder, misdemeanor battery, and aggravated battery. 9 {2} Defendant asserts that the district court erred in de nying his proffered 10 instructions. We disagree. First, the di strict court did not deny the instruction; 11 Defendant abandoned it. The record shows th at after discussion with the court about 12 the instruction, Defendant, upon further overnight research on the issue, decided not 13 to pursue the instruction. This is likel y because there was insufficient evidence or 14 justification proffered by De fendant to support giving th e instruction. Defendant’s 15 withdrawal of the instruction constitutes a waiver of the issue, and the district court 16 did not err in not giving the instruction. 17 {3} Defendant also argues that his convi ctions for misdemeanor battery and 18 aggravated battery violated double jeopardy because they arose from the same conduct 19 that gave rise to his convic tion for second degree murder. We agree with respect to the 20 conviction for misdemeanor battery alone. The conduct giving rise to the aggravated 21 battery conviction and the conduct giving rise to the second degree 221 The home belonged to Defendant’s moth er. Both Defendant and Keith were 17 staying there temporarily. 18
2 The description of Defendant’s actions here varies between choke hold and 19 headlock. 20 3 murder conviction was not unitary and th erefore did not violate double jeopardy. As 1 such, we therefore reverse only Defendant ’s misdemeanor battery conviction and 2 remand for resentencing. 3 I. BACKGROUND 4 {4} On November 19, 2012, Defendant, his fri end Desi Marin, and his father, Keith 5 Coppler, were in De fendant’s back yard 1 grilling and drinking alcohol. Defendant was 6 sitting across from Keith and eating his meal with a steak knife. An argument broke 7 out between Defendant and Keith, though it is unclear what the argument was about. 8 According to Defendant, whilehe and Keith were arguing, Keith had a machete sitting 9 next to him on the table. Defendant slashe d at Keith with the steak knife that was 10 already in his hand, thinking that Keith was going to attack him with the machete. 11 Marin testified that Defendant was the aggressor and made the first attack using the 12 steak knife that was already in his hand. After Defendant slashed at Keith with the 13 steak knife, both men stood up from the picn ic table and Keith attacked Defendant 14 with the machete, hitting him in the tors o and head. Endeavoring to remove the 15 machete from Keith’s grasp, Defendant wrestled Keith to the ground. Once the two 16 men fell to the ground, Defendant briefly put Keith into a headlock, 2releasing him 173 Although the State characterizes Marin’ s testimony to indicate the choke hold 21 lasted five minutes, subsequent testimony reveals that Marin most likely meant that 22 the entire encounter lasted, at most, five minutes. 23 4 as soon as he stopped fighting back. 3 Defendant, seeing that Keith was unconscious 1 and beginning to turn blue, called 911 and began administering CPR. Emergency 2 personnel arrived, and Keith wa s taken to the hospital, where he died five days later, 3 never regaining consciousness. 4 {5} A grand jury indicted Defendant on charges of second degree murder, 5 aggravated battery against a household member, and battery against a household 6 member. Defendant’s case was tried in front of a jury. 7
{6} The State called Dr. Sam Andrews, a forens ic pathologist with the Office of the 8 Medical Investigator. Dr. Andrews testifie d that the cause of Keith’s death was 9 “anoxic encephalopathy,” which is an injury to the brain due to a lack of oxygen. This 10 condition could be caused by a natural event su ch as a heart attack or abnormal heart 11 rhythm, an infection causing low blood pressure, or compressed vessels in the neck. 12 Dr. Andrews expressed his opinion that, inKeith’s case, a compression of the neck 13 led to an abnormal heart rhythm and ineff ective blood flow for the brain. Dr. Andrews 14 also acknowledged that other contributing, secondary causes of death were Keith’s 15 very enlarged heart. As an obese male with high blood pressure and an electrically 16 unstable heart, Keith could develop an abnormal heart rhythm at any time. Dr. 17 Andrews also acknowledged that Keith’s actions prior to Defendant’s choke 185 hold—sudden movements and exertion—could potentially have caused an arrhythmia. 1
{7} Prior to the completion of evidence, de fense counsel proffered an instruction 2 based on UJI 14-252 NMRA. UJI 14-252 is a proxi mate cause instruction to be given 3 if the negligence of the decedent or a th ird person is “the only significant cause of 4 death[.]” Id . The district court reserved its ruling on the instruction until all the 5 evidence was presented. After Dr. Andrews’ testimony, the district court heard more 6 argument regarding the propriety of submitting UJI 14-252 to the jury. Defense 7 counsel was clear that the purpose of requesting UJI 14-252 rested on Dr. Andrews’ 8 testimony that Keith’s own physical conditi on could have caused his death. At that 9 time, the district court indicated its inc lination that UJI 14-252 would not be given 10 without also giving UJI 14-251 NMRA, a homicide instruction concerning proximate 11 cause. Defense counsel stated that he prev iously “didn’t see that [UJI 14-]251 had to 12 go with [UJI 14-]252,” believing that “[UJI 14-]251 was a third person . . . like . . . a 13 car or something like that.” The district court suggested that defense counsel take 14 another look at the instructions, and adjourned for the day. When the proceedings 15 resumed the next day, defense counsel i ndicated he would not pursue his proffer of 16 UJI 14-252, based on his “reviewing the notes and the rule.” The parties immediately 17 moved on to other instructions, UJI 14-252 wa s not mentioned again, and the jury was 18 not instructed on either UJI 14-251 or -252, though it was instructed on self- 194For reasons stated in th is Opinion, we caution defense counsel that nowhere 16 in the record does it appear that the district court ruled on the propriety of the 17 instruction, where the record supports the view that the instruction was withdrawn. 18 SeeRule 12-213(A)(3) NMRA (stating that the statement of facts must “contain 19 citations to the record proper . . . supporting each factual representation”). Counsel’s 20 duty to present a fair view of the ev idence is something we take seriously. 21

6 defense. It found Defendant gu ilty on all charges. Defendant appealed his convictions. 1 II. DISCUSSION 2
{8} Defendant makes two arguments on appeal. He first argues that the district court 3 erred when it refused to give his proffered jury instruction on causation. Next, he 4 asserts that his convictions for misdemeanor battery, aggravatedbattery, and second 5 degree murder violated double jeopardy. The district court’s failure to instruct the jury 6 on causation does not constitute reversibleerror, and only the misdemeanor battery 7 conviction violates double jeopardy. 8 A. The Jury Instruction in Question Was Withdrawn and Unsupported by 9 Evidence 10
{9} Defendant argues that the district court erred in de nying his requested 11 instruction on causation because Dr. Andrews testified that Keith’s heart arrhythmia 12 could have been caused either by Defend ant’s choke hold or could have arisen 13 spontaneously as a result of the stre ss of the machete attack on Defendant. 4 14 1. Preservation 15
{10} We do not agree with Defendant that th e district court “erred when it refused 167 to instruction [sic] the jury on the issu e of causation.” Conversations between the 1 court and counsel after Dr. Andrews finished testifying indicate that the court had 2 questions about the instructi on tendered by Defendant , particularly with regard to the 3 instruction’s requiring “evidence of neglig ence by another person.” The court stated, 4 “you were suggesting earlier that the other person is [Keith] himself[,]” and pointed 5 out that UJI 14-252 is only available where “[Keith’s] negligence was the sole cause 6 of the accident.” Defense counsel concededthat he had not read the committee notes 7 to the instruction. The next morning, as discussion of jury instructions resumed, 8 defense counsel said that, having read the in struction, the notes, and the rule, he was 9 not going to continue to request UJI 14-252 or object to the court giving the 10 instruction to the jury. We consider thes e events to indicate a mistakenly submitted 11 instruction, the request for whic h was abandoned by c ounsel upon further 12 consideration and conversati on between the court and de fense counsel. Nowhere does 13 there appear in the record a refusal or de nial of the instruction. A defendant must 14 make a “clear and unequivocal” request for a jury instruction; tendering an instruction 15 and then notifying the court that, upon reconsideration, its tender would not be 16 pursued waives any claim of error based on the court’s failure to give the instruction. 17 State v. Aragon , 1982-NMCA-173, ¶ 17, 99 N.M. 190, 656 P.2d 240 (finding a waiver 18 of error when the defendant did not pursue tender of an instruction). 198 B. Double Jeopardy 1
{11} The United States Constitution, which app lies to New Mexico by virtue of the 2 Fourteenth Amendment, prohibits double je opardy and protects criminal defendants 3 from receiving multiple punishments for the same offense. U.S. Const. amends. V & 4 XIV, § 1; State v. Swick , 2012-NMSC-018, ¶ 10, 279 P. 3d 747. We review de novo 5 the constitutional question of whether the D ouble Jeopardy Clause has been violated. 6 Swick , 2012-NMSC-018, ¶ 10. There are two types of double jeopardy cases: double 7 description cases and unit of prosecution cases. A double description case exists where 8 the same conduct results in multiple convictions under different statutes. Swafford v. 9 State , 1991-NMSC-043, ¶ 9, 112 N.M. 3, 810 P.2d 1223. A unit of prosecution case 10 is one in which a defendant challenges multiple convictions for violations of a single 11
statute. Id. ¶ 8. Defendant’s case is a double description case. 12
{12} Double description cases are subject to a two-part test that our Supreme Court 13 set forth in Swafford. See id. ¶ 25. First, we analyze “whether the conduct underlying 14 the offenses is unitary, i.e. , whether the same conduct violates both statutes.” Id. The 15 proper inquiry in analyzing wh ether conduct is unitary is “w hether the facts presented 16 at trial establish that the jury reasonably could have inferred independent factual bases 17 for the charged offenses.” State v. Franco , 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 18 P.3d 1104 (internal quotation marks and citation omitted). This inquiry requires a 199 consideration of whether a defendant’s conduct is separated by “sufficient indicia of 1 distinctness”; if such indicia exists, conduct is not unitary. Swafford , 1991-NMSC2 043, ¶ 26. Indicia of distinctness include the temporal proximity of the acts, the 3 location of the victim during the act, the existence of an intervening event, the 4 sequencing of the acts, the defendant’s intent, and the number of victims. Id. ¶ 28 5 (applying factors to a double description case, particularly acknowledging time, space, 6 results, and quality and nature of the acts involved); State v. Bernal , 2006-NMSC-050, 7 ¶ 16, 140 N.M. 644, 146 P.3d 289 (applying f actors to a unit of prosecution case, 8 reasoning that the analysis in both cases is “substantially similar”). If conduct is 9 unitary, double jeopardy analysis continues; if the conduct is separate and distinct, our 10 double jeopardy analysis is at an end and weneed not continue to the second step in 11 the analysis. Swafford , 1991-NMSC-043, ¶ 28. 12 1. Aggravated Battery Conviction 13
{13} Defendant asserts that hi s conduct was unitary and th at his aggravated battery 14 conviction was subsumed within his murder conviction. The State suggests that the 15 conduct giving rise to the aggravated battery conviction and the conduct giving rise 16 to the second degree murder conviction werenot unitary. In support, the State argues 17 that the aggravated battery was complete d when Defendant put down the steak knife. 18
{14} The evidence supports the State’s theory that a jury could reasonably have 1910 distinguished a distinct factual bases for th e aggravated battery charge and the second 1 degree murder charge. The actions thatoccurred during the fight involved two 2 distinguishable acts—slashing Keith witha steak knife and putting Keith in a 3 headlock. Although the fight morphed from a slashing while sitting at a table, to a 4 standing altercation, during which both men dropped their weapons, to wrestling on 5 the ground, the evidence clearly established a sequence of events. Based on that 6 sequence of events, the fact finder could attribute Keith’s injuries to Defendant’s 7 distinct actions during the fight. It is reas onable for a jury to distinguish the act of 8 slashing with a steak knife, whic h gave rise to the aggravated battery charge, with the 9 act of putting someone in a headlock, after Keith’s intervening attack with the 10 machete, which gave rise to the second degree murder charge . Because the evidence 11 presented reveals that the act s were factually different in both intention and method, 12 this distinction exists desp ite the physical and temporal proximity of the two acts. 13 While the fight occurred in a confined location, namely the backyard, there was some 14 spatial separation between both acts—fro m sitting, to standing, to the ground. 15 Furthermore, the established sequence of ev ents helps to establish that the dropping 16 of the machete and knife constitutes a minor intervening event that de-escalated the 17 situation. Because the jury could, from th e evidence presented at trial, infer an 18 independent factual bases for each offense, we conclude that the conduct giving rise 1911 to each claim was not unitary. See Franco , 2005-NMSC-013, ¶ 7. We therefore need 1 not continue with our double jeopardy analysis as to the aggravated battery 2 conviction. 3 2. Battery Conviction 4
{15} Defendant’s argument regarding his battery conviction is the same as stated 5 above; he argues his c onduct was unitary and that battery is subsumed by the murder 6 conviction. The State agrees that Defendant’s conduct with respect to battery and 7 second degree murder was unitary but provides no further analysis regarding 8 legislative intent. Instead, it requests thatwe vacate Defendant’s misdemeanor battery 9 conviction. While we are not bound to accept th e State’s concession, we agree that the 10 misdemeanor battery conviction should be vacated. See State v. Foster , 1999-NMSC11 007, ¶ 25, 126 N.M. 646, 974 P.2d 140 (stating appellate courts are not bound by the 12 state’s concessions), abrogated on other grounds by Kersey v. Hatch , 2010-NMSC13 020, ¶ 17, 148 N.M. 381, 237 P.3d 683. The el ements of battery are subsumed by 14 those of aggravated battery. Compare UJI 14-320 NMRA, withUJI 14-322. 15 Additionally, both are in place in order to “punish overt acts against a person’s safety 16 but take different degrees into consideration.” Swick , 2012-NMSC-018, ¶ 29. 17
{16} Defendant’s conviction for misdemeanor battery should be vacated as violative 18 of double jeopardy. See State v. Santillanes , 2001-NMSC-018, ¶ 28, 130 N.M. 464, 1912 27 P.3d 456 (citing State v. Pierce , 1990-NMSC-049, ¶ 46, 110 N.M. 76, 792 P.2d 1 408 (acknowledging the rule thatrequires lesser offense be vacated in the event that 2 two convictions impose impermissible multiple punishments)); see also State v. 3 Duran , 1969-NMCA-048, ¶ 11, 80 N.M. 406, 456 P.2d 880 (acknowledging that 4 battery is included within, and therefore suspended by, the offense of aggravated 5 battery). 6 III. CONCLUSION 7
{17} Defendant’s proffer of UJI 14-252 adequate ly alerted the district court to his 8 causation theory of defense, and as such, preserved the issue for appellate review, but 9 Defendant’s withdrawal from the proffer cons titutes a waiver of the instruction, and 10 no evidence shows that the district court e ither refused or denied the instruction, 11 which was also unsupported by the evidence. There was no error attending the fact 12 that UJI 14-252 was not given. The conduct giving rise to Defendant’s aggravated 13 battery conviction is distinguishable from the conduct that gave rise to the second 14 degree murder conviction. Accordingly, we affirm Defendant’s convictions for second 15 degree murder and aggravated battery. We remand for vacation of 16 Defendant’s conviction for misdemeanor battery as violative of double jeopardy. 17
{18} IT IS SO ORDERED. 18

______________________________ 19 RODERICK T. KENNEDY, Judge 2013 WE CONCUR: 1

_________________________________ 2 JONATHAN B. SUTIN, Judge 3

_________________________________ 4 LINDA M. VANZI, Judge 5