IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-011

Filing Date: June 25, 2020

No. S-1-SC-36932

CONSOLIDATED WITH

No. S-1-SC-36933

STATE OF NEW MEXICO,

Plaintiff-Respondent/Cross-Petitioner,

v.

RICHARD J. SENA,

Defendant-Petitioner/Cross-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI

Stephen K. Quinn, District Judge

Released for Publication September 8, 2020.

Bennett J. Baur, Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender

Santa Fe, NM

for Petitioner/Cross-Respondent

Hector H. Balderas, Attorney General

Marko David Hananel, Assistant Attorney General

Santa Fe, NM

for Respondent/Cross-Petitioner

OPINION

VIGIL, Justice.

{1} A jury found Defendant guilty of one count of each of the following crimes: 

criminal sexual penetration (CSP) in the first degree in violation of NMSA 1978, Section 

30-9-11(D)(2) (2009); kidnapping in the first degree in violation of NMSA 1978, Section 
30-4-1 (2003); armed robbery in violation of NMSA 1978, Section 30-16-2 (1973); 

aggravated burglary in violation of NMSA 1978, Section 30-16-4(C) (1963); and criminal 

sexual contact (CSC) in violation of NMSA 1978, Section 30-9-12(C)(3) (2003). In 

addition, Defendant entered a no contest plea to being a felon in possession of a 

firearm in violation of NMSA 1978, Section 30-7-16 (2001, amended 2018, 2019), and 

admitted to being a habitual offender and subject to an enhanced sentence. Defendant 

was sentenced to the New Mexico Department of Corrections for a total of forty years 

and six months. Defendant appealed to the Court of Appeals. State v. Sena, 2018-

NMCA-037, 419 P.3d 1240, cert. granted, 2018-NMCERT-___ (S-1-SC-36932, May 25, 

2018).

{2} In the Court of Appeals, Defendant asserted the following errors: (1) the district 

court failed to grant a mistrial when Defendant did not testify, and the prosecutor in 

closing arguments argued that Defendant’s demeanor during Victim’s trial testimony 

was evidence of Defendant’s guilt, (2) the instruction on kidnapping was erroneous in 

failing to require a finding that the restraint used during the kidnapping was not merely 

incidental to another crime, (3) Defendant’s convictions of both aggravated burglary and 

CSP and CSC were double jeopardy violations, (4) the State failed to present sufficient 

evidence to support the convictions of CSP and kidnapping, and (5) the district court 

abused its discretion by admitting the results of DNA testing into evidence. See id. ¶¶ 1, 

7, 20, 26, 27, 32, 34, 51.

{3} In a formal opinion the Court of Appeals (1) rejected Defendant’s argument that 

the district court erred in denying his motion for a mistrial, (2) held that the omission of

incidental restraint in the instruction on kidnapping constituted fundamental error, and 

(3) held that Defendant’s convictions of aggravated burglary, CSP, and CSC were 

double jeopardy violations. See id. ¶¶ 7-19, 20-25, 34-48. The Court of Appeals also 

determined that the State presented sufficient evidence to support the convictions of 

CSP and kidnapping and that the district court did not err in admitting the results of DNA 

testing into evidence. See id. ¶¶ 26-33, 49-55.

{4} We granted the petitions for certiorari filed by Defendant and the State to review 

the foregoing conclusions. We hold that the Court of Appeals (1) erred in affirming the 

district court order denying Defendant’s motion for a mistrial, (2) erred in reversing 

Defendant’s kidnapping conviction for fundamental error on grounds that the elements 

instruction did not address incidental restraint, (3) erred in concluding that Defendant’s 

convictions for aggravated burglary, CSP, and CSC violated double jeopardy, and (4) 

correctly held that the State presented substantial evidence to support Defendant’s 

convictions for CSP and kidnapping. Because we remand for a new trial, it is not 

necessary, and we decline to address, whether the district court erred in admitting the 

results of DNA testing into evidence.

A. BACKGROUND

{5} Victim, who lived alone and was in her seventies, awoke at 3:30 a.m. to 

Defendant’s gloved hand over her mouth and a knife to her head. When Victim tried to 
scream, Defendant told her to stop and threatened to kill her. Defendant then ordered 

Victim out of bed and demanded she undress. As Victim undressed, Defendant asked 

Victim where her purse was, and Victim replied that it was in the closet. Defendant took 

Victim’s wallet containing thirty dollars.

{6} Victim told Defendant that she needed to use the restroom. Defendant allowed 

Victim to go to the restroom while he watched and began masturbating. After she 

finished using the restroom, Defendant ordered Victim back to bed, telling her to lie face 

down on a pillow. Defendant got on top of Victim and penetrated Victim’s vagina and 

anus with his penis. After a few minutes, Defendant instructed Victim to get on her 

knees and continued penetrating Victim’s vagina and anus with his penis. Defendant 

then told Victim to turn over, at which point he began fondling Victim’s breasts and 

digitally penetrating Victim’s vagina. 

{7} After the sexual assaults, Defendant asked Victim about a rifle leaning against 

the bedroom wall. Defendant proceeded to leave the bedroom, and after waiting a few

minutes, Victim attempted to inch out of bed. Defendant, who was watching Victim from 

the living room, ordered Victim back into bed. After waiting awhile longer, Victim got out 

of bed and entered the living room where she found her front door wide open. Victim 

discovered that her wallet and rifle were missing, as were the cordless telephones from 

the living room and Victim’s bedroom. Victim also noticed an open sliding window in the 

dining room. Victim closed the front door, locked it, and called police. 

{8} Police arrived shortly thereafter, discovering shoe prints directly below the open 

sliding window. Police tracked the shoe prints to the residence of Defendant’s 

stepmother and stepfather, where Defendant was hiding wearing socks but no shoes. 

Inside the residence, police collected a pair of sneakers consistent with the shoe print 

found at Victim’s home. Police also followed tire tread tracks to a Honda parked outside 

the residence, which was identified as belonging to Defendant. After obtaining a search 

warrant for the Honda, police found leather gloves, a rifle, and a large knife. The gloves 

were consistent with the description that Victim provided. Victim also identified the rifle 

as the one stolen by Defendant and the knife as the one used during the incident.

{9} Following the incident, Victim was examined by a sexual assault nurse examiner 

(SANE). The examination revealed a half centimeter “open area” consistent with force 

on Victim’s vagina. The SANE obtained various swabs from both Victim and Defendant 

for DNA testing, including a swab of Victim’s left, upper thigh and a swab of Defendant’s 

lower abdomen. No semen was detected on any of the swabs that were tested, but 

Victim’s DNA was detected on Defendant’s hands. 

{10} We now address the issues raised by Defendant and the State in their respective 

petitions for certiorari.

B. DISCUSSION

1. The Prosecutor’s Arguments During Closing Arguments
{11} The Court of Appeals held that “commenting on the demeanor of a non-testifying 

defendant is improper, as it is neither probative of innocence or guilt, nor is it evidence 

that an appellate court can properly review.” Sena, 2018-NMCA-037, ¶ 12. We agree 

with this holding. However, the Court of Appeals erred in concluding that the 

prosecutor’s arguments in this case “did not invade a distinct constitutional protection” 

and did not deprive Defendant of a fair trial. Id. ¶¶ 18, 19 (internal quotation marks and 

citation omitted). For the reasons that follow, we reverse and remand for a new trial.

{12} While the prosecutor was making her closing arguments, the following 

exchanges took place.

OPEN COURT

Prosecutor:

Did you notice, also, ladies and gentlemen, when she 

[Victim] testified, that man [Defendant] wouldn’t even look at 

her. He watched every other witness on the stand.

Defense Counsel:

Objection, your honor. There’s no evidence of that. May I 

approach the bench?

Prosecutor:

Judge, this is . . . (unintelligible)

SIDEBAR CONFERENCE

Defense Counsel:

That’s commenting on his silence. He’s not testifying. What 

he did or didn’t do is not in the record at all. We object and, 

strongly object to her reference of what⸻against his 

presumption of innocence. He didn’t testify. There was 

absolutely no evidence. That’s done to inflame. We move for 

a mistrial.

Prosecutor:

Judge, that is not . . . (unintelligible)

Defense Counsel:

No one testified to that.
Prosecutor:

(unintelligible)

Defense Counsel:

No one testified to that.

Court:

The jury’s just going to have to rely on their own memories of 

what they observed. And she’s not commenting on his 

silence, she’s just commenting on what he did. So, objection 

is overruled.

OPEN COURT

Court:

Objection is overruled. The jury will have to rely on their own 

memories as to what they observed (unintelligible).

Prosecutor:

Did you watch him in the courtroom when she took the 

stand? He wouldn’t even look at her. He looked at every 

other witness in the eye, but he wouldn’t look at her. And 

why wouldn’t he look at her? Because he knew what he’d 

done. He knew what he did.

{13} Defendant contends that the Court of Appeals erred when it held that while the 

prosecutor’s arguments were improper, they were not prejudicial. Defendant asserts 

that the district court erred because the prosecutor’s arguments were not only improper 

but were prejudicial and contributed to Defendant’s convictions. 

{14} The State concedes that the prosecutor’s arguments were improper because 

they “elevated [Defendant’s] courtroom demeanor to the status of evidence and 

encouraged the jury to treat it as evidence of guilt.” However, the State contends the 

Court of Appeals correctly held that the comments were not prejudicial because 

“Defendant’s right to have his guilt or innocence determined solely on the basis of the 

evidence introduced at trial” does not “transform any reference to matters not in 

evidence into a Fifth Amendment violation.” (Internal quotation marks and citations 

omitted.) We disagree and reverse the Court of Appeals.

a. Standard of review
{15} We review a district court’s denial of a motion for mistrial under an abuse of 

discretion standard. State v. Johnson, 2010-NMSC-016, ¶ 49, 148 N.M. 50, 229 P.3d 

523. “We will find an abuse of discretion if a court’s ruling is clearly untenable or 

contrary to logic and reason. Additionally, a court abuses its discretion if it applies 

an incorrect standard, incorrect substantive law, or its discretionary decision is premised 

on a misapprehension of the law.” Freeman v. Fairchild, 2018-NMSC-023, ¶ 29, 416 

P.3d 264 (internal quotation marks and citations omitted). See also N.M. Right to 

Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450 (stating 

that a decision premised on a misapprehension of the law may be characterized as an 

abuse of discretion). In addressing Defendant’s arguments that raise questions of 

constitutional law, which we review de novo, see State v. DeGraff, 2006-NMSC-011, ¶ 

6, 139 N.M. 211, 131 P.3d 61 (holding that this Court reviews questions of constitutional 

law de novo), we ask whether the district court applied the wrong legal standard in 

denying Defendant’s motion for mistrial. 

b. The prosecutor’s arguments resulted in reversible error

{16} In State v. Sosa, we identified three factors to consider when reviewing error in 

closing arguments: “(1) whether the statement invades some distinct constitutional 

protection; (2) whether the statement is isolated and brief, or repeated and pervasive; 

and (3) whether the statement is invited by the defense.” 2009-NMSC-056, ¶ 26, 147 

N.M. 351, 223 P.3d 348.

{17} Considering the first factor, we are more likely to conclude that there is reversible 

error when the prosecutor’s comments invade “a distinct constitutional protection.” Id. ¶ 

27. The prosecutor’s comments in this case implicated Defendant’s Fifth Amendment 

right to silence and thus, invaded a “distinct constitutional protection.”

{18} The Fifth Amendment to the United States Constitution establishes a sacrosanct 

constitutional right in its direction that “[n]o person shall . . . be compelled in any criminal 

case to be a witness against himself[.]” U.S. Const. amend. V. The Bill of Rights of the 

New Mexico Constitution likewise directs, “No person shall be compelled to testify 

against himself in a criminal proceeding[.]” N.M. Const. art. II, § 15. When a prosecutor 

makes a comment that invites the jury to draw an adverse conclusion from a 

defendant’s failure to testify, the defendant’s Fifth Amendment privilege is violated.

DeGraff, 2006-NMSC-011, ¶ 8 (citing Griffin v. California, 380 U.S. 609, 614 (1965)). 

Such remarks compromise a defendant’s right to a fair trial and result in fundamental 

error. State v. Rojo, 1999-NMSC-001, ¶ 55, 126 N.M. 438, 971 P.2d 829.

{19} Prosecutor comments on a defendant’s right not to testify may be direct or 

indirect. State v. Rice, 573 S.W.3d 53, 75 (Mo. 2019) (en banc). A direct comment 

explicitly refers to the fact that the defendant did not testify, whereas an indirect 

comment is “one reasonably apt to direct the jury’s attention to the defendant’s failure to 

testify.” Id. (internal quotation marks and citation omitted). Both direct and indirect 

comments on a defendant’s failure to testify are forbidden. See State v. Clark, 1989-

NMSC-010, ¶ 48, 108 N.M. 288, 772 P.2d 322, disapproved of on other grounds by 
State v. Henderson, 1990-NMSC-030, ¶ 38, 109 N.M. 655, 789 P.2d 603. Thus, all 

prosecutorial arguments drawing the jury’s attention to the fact that it has not heard from 

the defendant during trial because the defendant has exercised his constitutional right 

not to testify are impermissible and violate the defendant’s right against selfincrimination. See Rice, 573 S.W.3d 53, 74 (holding that once a defendant has invoked 

the right to remain silent, “any reference to [that] silence is improper” (emphasis in 

original)).

{20} In her closing argument, the prosecutor asked the jury, “Did you watch 

[Defendant] in the courtroom when [Victim] took the stand? He wouldn’t even look at 

her. He looked at every other witness in the eye, but he wouldn’t look at her.” The 

argument had no purpose other than to invite the jury to draw an adverse conclusion 

from Defendant’s failure to get on the stand and explain why he would not look at Victim 

as she testified. After Defendant objected, the jury heard the district court overrule the 

objection, which placed the “stamp of judicial approval” on the improper argument, 

further magnifying the prejudice. See Boulden v. State, 787 S.W.2d 150, 153 (Tex. Ct. 

App. 1990) (internal quotation marks and citation omitted) (“[W]here a trial court 

overrules an objection to improper argument, it places ‘the stamp of judicial approval’ on 

the argument, magnifying the harm.” (citation omitted)). Having obtained the district 

court’s stamp of judicial approval, the prosecutor compounded the prejudice by 

repeating the statement and adding, “And why wouldn’t he look at her? Because he 

knew what he’d done. He knew what he did.” We would be remiss if we did not add that 

the closing arguments were recorded and we have the benefit of knowing not only what 

words the prosecutor spoke but her tone as well. The prosecutor’s accusatory tone was 

tantamount to pointing a finger at Defendant.

{21} “Closing argument is an aspect of a fair trial which is implicit in the Due Process 

Clause of the Fourteenth Amendment by which the States are bound.” Hughes v. State, 

437 A.2d 559, 568 (Del. 1981) (internal quotation marks and citation omitted). A 

prosecutor’s arguments during summation regarding a nontestifying defendant’s 

courtroom demeanor are irrelevant as it is not evidence that is in the record and 

therefore is beyond the scope of summation. Id. at 572. “Moreover, the practice is 

pregnant with potential prejudice. A guilty verdict must be based upon the evidence and 

the reasonable inferences therefrom, not on an irrational response which may be 

triggered if the prosecution unfairly strikes an emotion in the jury.” Id.

{22} Reference to a nontestifying defendant’s courtroom demeanor is not merely a 

reference to something not in evidence, it is an attack on a defendant’s Fifth 

Amendment right not to testify. United States v. Carroll, 678 F.2d 1208, 1209 (4th Cir. 

1982). In United States v. Schuler, 813 F.2d 978, 979 (9th Cir. 1987), the prosecutor 

commented that the defendant laughed as witnesses testified. The Schuler court 

determined that such comments by a prosecutor “tend to eviscerate the right to remain 

silent by forcing the defendant to take the stand in reaction to or in contemplation of the 

prosecutor’s comments.” Id. at 982. Even drawing subtle attention to a defendant’s 

failure to testify is not permissible. United States v. Rodriguez, 627 F.2d 110, 112 (7th 

Cir. 1980). In Rodriguez, the prosecutor commented that the defendant was “very quiet 
at the end of counsel table.” Id. at 111. The Rodriguez Court counseled that “[t]he 

remarks, harmless or not, infringing upon such a basic and elementary constitutional 

underpinning of our justice system, simply should not occur.” Id. at 113.

{23} Dickinson v. State, 685 S.W.2d 320 (Tex. Crim. App. 1984) (en banc), applied 

these principles. Commenting on the defendant’s courtroom manner, the prosecutor 

stated, “And you know, another pretty important [piece of] evidence that you can 

consider is what you’ve observed in this courtroom. The demeanor in this courtroom of 

this man right here. You know, when [the complainant] was led into that courtroom she 

hid her face. She hid her face in shame.” Id. at 325 (second alteration in original). The 

prosecutor added, “You haven’t seen one iota of remorse, one iota of shame.” Id. The 

Dickinson Court concluded that these were not comments on the defendant’s demeanor 

but indirect comments on the defendant’s failure to testify, characterizing the comments 

as a “transparent attempt to call the jury’s attention to the appellant’s invocation of his 

right to remain silent.” Id. at 324-25.

{24} The principles were reiterated in Coyle v. State, 693 S.W.2d 743 (Tex. App. 

1985), when the prosecutor stated, “I want to talk about what he [the defendant] looks 

like in the courtroom right now. You’ve looked at him throughout the trial⸺and that’s 

all I’m talking about, just his actions here in this courtroom while you’ve watched him.” 

Id. at 743. Applying Dickinson, the Coyle Court held that the prosecutor’s comments 

“amounted to directing the jury’s attention to the failure of the appellant to testify[.]” Id. at 

744-45 (internal quotation marks and citation omitted).

{25} Dickinson and Coyle are highly persuasive. The prosecutor’s arguments in this 

case were a direct comment on Defendant’s exercise of his constitutional right not to 

testify and were highly improper. The prosecutor’s arguments directly asked the jury to 

draw adverse conclusions from the fact that Defendant did not take the witness stand 

and explain himself. The district court applied an incorrect legal standard in construing 

the prosecutor’s arguments as referring to Defendant’s demeanor rather than his failure 

to testify. 

{26} The second factor requires us to consider whether the prosecutor’s comments 

were brief and isolated or repeated and pervasive. Sosa, 2009-NMSC-056, ¶ 29. The 

State asserts that while the argument was repeated, it was isolated and brief. It lasted 

twenty seconds within a twenty-minute closing argument, and it was not mentioned 

elsewhere at trial and was “certainly not pervasive.” 

{27} We are not persuaded. After hearing the prosecutor’s improper argument, the 

jury heard the district court overrule Defendant’s objection to the argument. “What the 

jury may infer, given no help from the court, is one thing. What it may infer when the 

court solemnizes the silence of the accused into evidence against him is quite another.” 

Griffin, 380 U.S. at 614. The prosecutor then took advantage of the ruling and repeated 

and embellished her improper argument, giving it additional emphasis. We once again 

remind prosecutors of what we said over fifty years ago:
The zeal, unrestrained by legal barriers, of some prosecuting attorneys, 

tempts them to an insistence upon the admission of incompetent 

evidence, or getting before the jury some extraneous fact supposed to be 

helpful in securing a verdict of guilty . . . . When the error is exposed on 

appeal, it is met by the stereotyped argument that it is not apparent it in 

any wise influenced the minds of the jury. The reply the law makes to such 

suggestion is: that, after injecting it into the case to influence the jury, the 

prosecutor ought not to be heard to say, after he has secured a conviction, 

it was harmless. As the appellate court has not insight into the 

deliberations of the jury room, the presumption is to be indulged, in favor 

of the liberty of the citizen, that whatever the prosecutor, against the 

protest of the defendant, has laid before the jury, helped to make up the 

weight of the prosecution which resulted in the verdict of guilty.

State v. Rowell, 1966-NMSC-231, ¶ 11, 77 N.M. 124, 419 P.2d 966 (quoting Miller v. 

Territory of Oklahoma, 149 F. 330, 339 (8th Cir. 1906)).

{28} Finally, we turn to the third factor—whether the error was invited by the defense. 

Sosa, 2009-NMSC-056, ¶ 26 . The State does not argue, and we decline to conclude, 

that Defendant somehow “opened the door” to the prosecutor’s comments. All three 

Sosa factors support a conclusion of reversible error. We therefore proceed to the 

State’s argument that no prejudice resulted. 

{29} In the case of a constitutional error, “it is harmless only if the challenger can 

prove there is no reasonable possibility that the error affected the verdict.” State v. 

Thomas, 2016-NMSC-024, ¶ 33, 376 P.3d 184 (quoting State v. Tollardo, 2012-NMSC008, ¶ 25, 275 P.3d 110). “We must reverse a conviction if the erroneously admitted 

evidence might have contributed to it.” Thomas, 2016-NMSC-024, ¶ 33. “[T]he 

existence of other evidence to support the verdict does not cure a constitutional error 

when there is a reasonable possibility that the erroneously admitted evidence influenced 

the jury’s verdict.” Id. ¶ 34. Although Sosa directs a finding of reversible error when “the 

prosecutors’ comments materially altered the trial or likely confused the jury by 

distorting the evidence,” Sosa, 2009-NMSC-056, ¶ 34, this case involves an intrusion on 

a “distinct constitutional protection.” Applying a higher standard to reverse in the context 

of constitutional error would be in direct conflict with our jurisprudence. Thus, we apply 

Sosa’s factors for guidance, but because we find constitutional error, we then apply a 

harmless error standard. The State has the burden to demonstrate that there was no 

reasonable possibility that the error affected the verdict.

{30} The State argues that the prosecutor did not explicitly mention Defendant’s 

failure to testify or ask the jury to draw an adverse conclusion from that fact because the 

arguments did not suggest that Defendant failed to come forward with evidence or to 

correct misstatements to police before or after arrest. We disagree and conclude that 

the State has failed to meet its burden in demonstrating that there was “no reasonable 

possibility” that the comment on Defendant’s right to silence affected the jury’s verdict.
Therefore, we are left to presume the error indeed affected the verdict in this case and 

deprived Defendant of a fair trial.

{31} The prosecutor’s arguments violated Defendant’s Fifth and Fourteenth 

Amendment rights and deprived Defendant of a fair trial, resulting in reversible error. 

Prosecutors do not have license to make improper and prejudicial arguments with 

impunity. We reverse the Court of Appeals holding that Defendant received a fair trial, 

and we remand to the district court for a new trial.

2. Instruction on Kidnapping

{32} The Court of Appeals agreed with Defendant’s argument that it was fundamental 

error not to include the incidental restraint limitation to kidnapping described in State v. 

Trujillo, 2012-NMCA-112, ¶ 39, 289 P.3d 238 in the essential elements instruction on 

kidnapping. Sena, 2018-NMCA-037, ¶¶ 22-25. We disagree with the Court of Appeals, 

and we reverse on this issue as well. Although we would not ordinarily address an issue 

pertaining to an instruction after reversing all of a defendant’s convictions and 

remanding for a new trial, we do so in this case because the Court of Appeals reached 

a result we disagree with in a published, formal opinion.

{33} In Trujillo, the Court of Appeals held that “the Legislature did not intend to punish 

as kidnapping restraints that are merely incidental to another crime.” 2012-NMCA-112, ¶ 

39. In agreeing with Defendant’s argument, the Court of Appeals reasoned that 

“omission of incidental restraint” from the instruction resulted in fundamental error in this 

case “as the jury could have convicted Defendant based upon a deficient understanding 

of the legal meaning of restraint as an essential element of kidnapping.” Sena, 2018-

NMCA-037, ¶ 25. We disagree because Trujillo does not apply to the facts of the case 

before us.

a. Standard of review

{34} Our review is limited to determining whether the kidnapping instruction as given 

to the jury resulted in fundamental error because there was no objection to the 

instruction. See State v. Sandoval, 2011-NMSC-022, ¶ 13, 150 N.M. 224, 258 P.3d 

1016 (stating that we review instructions for fundamental error instead of reversible 

error if the alleged error was not preserved in the district court). “The doctrine of 

fundamental error applies only under exceptional circumstances and only to prevent a 

miscarriage of justice.” State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 

633. In reviewing a failure to instruct for fundamental error, we “determine whether a 

reasonable juror would have been confused or misdirected by the jury instruction.” Id. ¶ 

19. “[J]uror confusion or misdirection may stem . . . from instructions which, through 

omission or misstatement, fail to provide the juror with an accurate rendition of the 

relevant law.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. In 

addition, “[f]undamental error occurs when jury instructions fail to inform the jurors that 

the State has the burden of proving an essential element of a crime and we are left with 
‘no way of knowing’ whether the jury found that element beyond a reasonable doubt.” 

State v. Samora, 2016-NMSC-031, ¶ 29, 387 P.3d 230 (citation omitted).

b. Omission of the incidental restraint limitation to kidnapping in the elements 

instruction was not fundamental error

{35} We begin with the statutory elements of kidnapping. Pertinent to the case before 

us, Section 30-4-1(A)(4) defines kidnapping as “the unlawful . . . restraining . . . or 

confining of a person, by force [or] intimidation . . . with intent . . . to inflict . . . a sexual 

offense on the victim.” In accordance with UJI 14-403 NMRA (1997), the district court 

instructed the jury as follows:

For you to find [D]efendant guilty of kidnapping . . . , the State must prove 

to your satisfaction beyond a reasonable doubt each of the following 

elements of the crime:

1. [D]efendant restrained or confined [Victim] by force or intimidation;

2. [D]efendant intended to inflict a sexual offense on [Victim];

3. This happened in New Mexico on or about the 17th day of 

November, 2012.

This instruction correctly tracks the language of the statute, setting forth all the essential 

elements of kidnapping. Thus, the jury was properly instructed on every essential 

element of kidnapping. State v. Martinez-Rodriguez, 2001-NMSC-029, ¶ 38, 131 N.M. 

47, 33 P.3d 267 (concluding that a kidnapping instruction which accurately tracked the 

language of the statute properly informed the jury of all the essential elements of the 

offense), abrogated on other grounds as recognized by State v. Forbes, 2005-NMSC027, ¶ 6, 138 N.M. 264,119 P.3d 144.

{36} In addition, the evidence fully supports the jury’s verdict finding Defendant guilty 

of kidnapping under the instruction. As already described above, the evidence was that 

at approximately 3:30 a.m., Victim was awakened with a gloved hand over her mouth 

and a knife to her head. When Victim tried to scream, Defendant told her to stop and 

threatened to kill her. Defendant then ordered Victim to get out of bed and demanded 

that she undress. While Victim was undressing, Defendant took Victim’s wallet. Victim 

said she needed to use the restroom and was permitted to walk to the restroom with 

Defendant following closely behind. Defendant then masturbated while Victim used the 

restroom. At this point, the crime of kidnapping was complete. Defendant had restrained 

Victim with the intent of inflicting a sexual offense on Victim. See State v. McGuire, 

1990-NMSC-067, ¶ 10, 110 N.M. 304, 795 P.2d 996 (“Once [the] defendant restrained 

the victim with the requisite intent to hold her for service against her will, he had 

committed the crime of kidnapping, although the kidnapping continued throughout the 

course of [the] defendant’s other crimes[.]”); see also State v. Jacobs, 2000-NMSC-026, 

¶ 24, 129 N.M. 448, 10 P.3d 127 (“[T]he key to finding the restraint element in 
kidnapping, separate from that involved in criminal sexual penetration, is to determine 

the point at which the physical association between the defendant and the victim was no 

longer voluntary.”).

{37} The question presented here is whether Trujillo, 2012-NMCA-112, alters the 

foregoing conclusions. In Trujillo, the victim and his wife were awakened at around 2:30 

a.m. by two men holding flashlights, who had broken into the home armed with metal 

bars or wooden bats. Id. ¶ 2. When the defendant started hitting the victim with a metal 

bar, the victim fought back and gained the upper hand, and while the victim was on top 

of the defendant hitting him, the defendant restrained the victim and called to his 

accomplice for help. Id. ¶¶ 2-3. The accomplice started hitting the victim, allowing the 

defendant to get free, and the two assailants continued to beat the victim before leaving. 

Id. ¶ 3. The entire incident lasted two to four minutes. Id.

{38} Convicted of both aggravated battery and kidnapping, in addition to other crimes, 

the defendant in Trujillo argued on appeal that “the Legislature did not intend to punish 

restraint incidental to an aggravated battery as kidnapping.” Id. ¶ 6 (brackets omitted). 

In the factual context of the case, the Court of Appeals agreed with the defendant, 

concluding “that the restraint described by the testimony⸻a momentary grab in the 

middle of a fight⸻is as a matter of law insufficient to support a conviction for 

kidnapping.” Id. The Court of Appeals was able to make this determination as a matter 

of law, recognizing that in a different factual scenario, a jury question might be 

presented as to whether the restraint relied upon to support a conviction for kidnapping 

was merely incidental to another crime. See id. ¶ 42. 

{39} In the case before us, the Court of Appeals said that according to the evidence, 

Victim “was restrained both before and after the sexual offense occurred[.]” Under these 

circumstances, the Court of Appeals concluded that it was “for the jury to determine 

whether either or both of these restraints were slight, inconsequential, or incidental to 

the commission of the sexual offense.” Sena, 2018-NMCA-037, ¶ 25. This conclusion 

was in error. Having already kidnapped Victim, Defendant then ordered Victim, who was 

still unclothed, to go back to the bed where he sexually assaulted her numerous times. 

Any restraint incidental to the sexual assaults was separate and distinct from the 

restraint that Defendant used to complete the kidnapping. These facts differ vastly from 

those in Trujillo and present no factual question for a jury to decide. See UJI 14-403, 

Use Note 8 (providing that the jury receives an instruction on incidental restraint “if the 

evidence raises a genuine issue of incidental conduct[.]”). Trujillo is inapplicable to the 

facts in this case.

{40} Trujillo was decided in 2012, before Defendant’s trial in 2014. In partial response 

to Trujillo, UJI 14-403 was amended, but not until 2015. See UJI 14-403, Committee 

Commentary. Even if this version of the instruction had been in effect at the time of 

Defendant’s trial, a finding consistent with UJI 14-403(4) on whether the restraint of 

Victim resulting in the kidnapping was “slight, inconsequential, or merely incidental” to 

the commission of another crime was not required in this case. Id. Submitting the 

question to the jury is only required “if the evidence raises a genuine issue of incidental 
conduct[.]” UJI 14-403, Use Note 8. As we have already discussed, incidental restraint, 

as considered in Trujillo, was not at issue in this case.

{41} The integrity of a criminal conviction in our judicial system requires a jury verdict 

to rest “on a legally adequate basis,” and when it does not, the integrity of the judicial 

system is undermined, and fundamental error results. State v. Mascareñas, 2000-

NMSC-017, ¶ 21, 129 N.M. 230, 4 P.3d 1221. Generally, therefore, “fundamental error 

occurs when the trial court fails to instruct the jury on an essential element.” State v. 

Sutphin, 2007-NMSC-045, ¶ 16, 142 N.M. 191, 164 P.3d 72. In certain situations, a 

missing definitional instruction may be of “central importance to a fair trial” because 

without that instruction the jury verdict could be based on a deficient understanding of 

the legal meaning of an essential element. Barber, 2004-NMSC-019, ¶ 25. In other 

words, failing to instruct the jury on a definition or amplification of the elements of the 

crime may prevent the jury from making a “critical determination akin to a missing 

elements instruction.” Mascareñas, 2000-NMSC-017, ¶ 20; cf. State v. Stephens, 1979-

NMSC-076, ¶ 20, 93 N.M. 458, 601 P.2d 428 (“[T]he failure to instruct the jury on the 

definition or the amplification of the elements does not constitute error.”), overruled on 

other grounds by State v. Contreras, 1995-NMSC-056, ¶ 19, 120 N.M. 486, 903 P.2d 

228. Whether the restraint used to kidnap Victim was merely incidental to the sexual 

offenses was not a “critical determination” for the jury to make in this case, nor was it of 

“central importance” in arriving at a legally correct verdict. There was no fundamental 

error in failing to instruct the jury on the limitation to kidnapping identified in Trujillo. The 

Court of Appeals having ruled otherwise, we reverse the Court of Appeals on this point.

3. Double Jeopardy

{42} The Court of Appeals held that Defendant’s separate convictions for aggravated 

burglary, CSP, and CSC violate the Fifth Amendment prohibition against double 

jeopardy because they result in multiple punishments for the same act. See Sena, 

2018-NMCA-037, ¶¶ 34-45. The State contends that the Court of Appeals should be 

reversed because it misapplied the relevant precedent in arriving at its conclusion. 

Although we reverse for a new trial, we must address the Court of Appeals’ flawed 

application of the Foster presumption. For the reasons explained below, we agree with 

the State and reverse the reasoning of Court of Appeals.

a. Standard of review

{43} Appellate review of a claim that multiple punishments have been imposed for the 

same offense in violation of the Fifth Amendment prohibition against double jeopardy 

presents a question of law which we review de novo. State v. Swick, 2012-NMSC-018, ¶ 

10, 279 P.3d 747.

b. Analysis

{44} The Fifth Amendment to the United States Constitution directs, in pertinent part, 

that “[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of 
life or limb[.]” Defendant does not argue that the New Mexico Constitution affords 

greater rights than the Fifth Amendment, so we limit our review to the federal right, 

which is made applicable to the states through the Fourteenth Amendment. Benton v. 

Maryland, 395 U.S. 784, 794 (1969). One of the protections of the Fifth Amendment is 

the prohibition of “multiple punishments for the same offense.” Swafford v. State, 1991-

NMSC-043, ¶ 6, 112 N.M. 3, 810 P.2d 1223 (internal quotation marks omitted) (quoting 

North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by 

Alabama v. Smith, 490 U.S. 794 (1989)). 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). Swafford, 1991-NMSC-043, ¶¶ 8-9.

{45} Defendant argues that his convictions of aggravated burglary, CSP, and CSC 

violate his Fifth Amendment protection against double jeopardy because they arise from 

a single course of conduct. This is therefore a double-description case. In Swafford, this 

Court established a two-part analysis for deciding whether the same offense was 

committed in double-description cases. Id. ¶ 25. The first part focuses on the conduct 

and asks “whether the conduct underlying the offenses is unitary, i.e., whether the same 

conduct violates [multiple] statutes.” Id. If the question is answered in the affirmative, we 

proceed to the second part, which focuses on the statutes at issue “to determine 

whether the legislature intended to create separately punishable offenses.” Id. Double 

jeopardy protection prohibits multiple punishments in the same trial only when (1) the 

conduct is unitary and (2) it is determined that the Legislature did not intend multiple 

punishments. Id.

{46} We first determine whether Defendant’s conduct was unitary. When “sufficient 

indicia of distinctness” separate the illegal acts, the conduct is not unitary, and a 

defendant does not face conviction and punishment for “the same factual event.” 

Swafford, 1991-NMSC-043, ¶¶ 26-28. “Sufficient indicia of distinctness” are present 

when the illegal acts “are sufficiently separated by either time or space (in the sense of 

physical distance between the places where the acts occurred)[.]” Id. ¶ 28. If these 

considerations do not suffice to make the determination, “resort must be had to the 

quality and nature of the acts or to the objects and results involved.” Id. Thus, in 

determining whether there are such sufficient indicia of distinctness, we have also 

looked to the elements of the charged offenses, the facts presented at trial, and the 

instructions given to the jury. Id. ¶ 27 (“The conduct question depends to a large degree 

on the elements of the charged offenses and the facts presented at trial.”); DeGraff, 

2006-NMSC-011, ¶¶ 28-30 (considering the statutory definition of the crime, the 

instructions given to the jury, and the evidence presented at trial). Unitary conduct is not 

present when one crime is completed before another is committed, or when the force 

used to commit a crime is separate from the force used to commit another crime. Id. ¶¶ 

27, 30. 

{47} In State v. Foster, 1999-NMSC-007, ¶ 28, 126 N.M. 646, 974 P.2d 140, 

abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 
237 P.3d 683, this Court held that because we cannot assume that jurors will know how 

to reach a verdict without violating the Double Jeopardy Clause, “we must presume that 

a conviction under a general verdict requires reversal if the jury is instructed on an 

alternative basis for the conviction that would result in double jeopardy, and the record 

does not disclose whether the jury relied on this legally inadequate alternative.” This 

presumption is based on the holding of State v. Olguin, 1995-NMSC-077, ¶ 2, 120 N.M. 

740, 906 P.2d 731, that “a conviction under a general verdict must be reversed if one of 

the alternative bases of conviction is legally inadequate[.]” The parties agree that Foster

provides the analytical framework for determining whether Defendant’s acts were 

unitary but disagree on what the proper result is under Foster. We therefore examine 

Foster in some detail.

{48} In Foster, the Court considered in pertinent part whether convictions for firstdegree felony murder, aggravated kidnapping, and armed robbery violated the Double 

Jeopardy Clause. 1999-NMSC-007, ¶ 1. The convictions resulted from the robbery and 

death of one victim. Id. ¶ 14. The victim was found in the den of her home on her 

stomach with a broken ashtray in front of the body and an electrical cord tied around her 

neck and ankles. Id. The ashtray was a heavy, faceted crystal ashtray with blood on it. 

Id. ¶ 19. There was a contusion around the victim’s eye, several lacerations on her 

head, and a ligature mark on her neck. Id. ¶ 14. Deep lacerations found on the victim’s 

head were caused by being hit with a heavy glass dish or ashtray, consistent with the 

broken ashtray at the scene. Id. The blows to the head could have rendered the victim 

unconscious. Id. ¶ 16. The bruising caused by the ligature was consistent with use of 

the extension cord and with the victim being alive when it was tightened around her 

neck. Id. ¶ 17. The chief medical investigator testified that the head injuries probably 

occurred first, rendering her unconscious, and that the victim was then tied up and 

strangled with the extension cord. Id. ¶ 18.

{49} Regarding the convictions for armed robbery and aggravated kidnapping, the 

State argued that the conduct underlying those offenses and the conduct underlying the 

murder was not unitary. Id. ¶ 26. Specifically, the State argued that the conduct in 

committing aggravated kidnapping was not unitary because the jury could have found 

that the kidnapping was committed by gaining entry to the victim’s house by deception, 

and the conduct in committing armed robbery was not unitary because the stolen items 

were located in a room separate from where the victim was murdered. Id. ¶ 26. This 

argument relied “on the assumption that, when the jury instructions provide alternative 

bases for a conviction and there is no indication of which alternative the jury relied upon 

in reaching a general verdict, we may affirm the conviction if at least one of the 

alternatives does not violate the Double Jeopardy Clause.” Id. ¶ 26. This Court rejected 

making this assumption, and in fact, as we have already stated, made the opposite 

presumption: that the convictions were based on an alternative in the jury instructions 

that would result in double jeopardy. Id. ¶ 28.

{50} Under that presumption, this Court in Foster assumed that the jury found that the 

aggravated kidnapping was committed by force. The instruction on the elements of 

aggravated kidnapping in Foster required the jury to find that the defendant acted with 
force or deception and inflicted great bodily harm on the victim. Id. ¶ 29. The defendant 

argued that the conduct was therefore unitary because the same force used to commit 

the kidnapping was also used to commit the killing. Id. ¶¶ 29-30. This Court, however, 

rejected the defendant’s argument. The state’s theory on the kidnapping was that the 

defendant held the victim to rob her and to this end knocked her unconscious with the 

glass ashtray. Id. ¶ 31. As she lay unconscious, the defendant tied the victim up and 

strangled her to death with the electrical cord tied around her neck and ankles. Id. In 

other words, force was used two separate times, once to kidnap the victim to rob her 

and once to kill her. This conclusion was possible because under the instructions, the 

jury was required to find that in committing the aggravated kidnapping, the defendant 

inflicted great bodily harm. Id. ¶ 33. Thus, the kidnapping was completed when the 

defendant hit the victim on the head with the ashtray, causing the victim great bodily 

harm. Id. ¶¶ 32-33. This Court concluded there was sufficient indicia of distinctness 

when the defendant used force to hit the victim on the head with the ashtray, which 

completed the crime of aggravated kidnapping, id. ¶¶ 32-33, and then separately used 

force to strangle the victim with an extension cord. Id. ¶ 34.

{51} In Foster, this Court separately addressed the defendant’s armed robbery 

conviction. Id. ¶ 36. The jury instruction on armed robbery also allowed the jury to reach 

a guilty verdict under various alternatives. Id. Because the record did not demonstrate 

which alternative the jury relied on, and because the jury was allowed to find that the 

defendant committed armed robbery “while armed with a ligature,” which was the same 

extension cord that was used to commit the murder, this Court applied the presumption 

that this was the alternative used by the jury. Id. ¶¶ 37-39. In addition, because the jury 

was allowed to find the defendant guilty of armed robbery by taking the victim’s “car 

keys and/or a 1985 Crown Victoria and/or U.S. currency” and the record did not 

demonstrate which alternative was selected by the jury, this Court presumed that the 

armed robbery conviction was based on the defendant’s taking of the property in closest 

proximity to the room where the victim was killed. Id. ¶¶ 36, 39. Applying the 

presumptions, the Foster court concluded that the defendant’s conviction and sentence 

for armed robbery resulted from unitary conduct and violated the Double Jeopardy 

Clause. Id. ¶¶ 37-39. Because the instruction allowed the jury to find that the defendant 

committed armed robbery while armed with a ligature, but also, that the murder was 

committed by use of a ligature, the Court determined that the conduct was unitary. Id.

¶¶ 38-39. The evidence presented at trial, the Court reasoned, did “not show a 

significant separation in time or physical distance between the armed robbery and the 

murder.” Id. ¶ 39.

{52} Here, the applicable instruction on aggravated burglary required the jury, in 

pertinent part, to find that Defendant entered Victim’s dwelling without authorization and 

“was armed with a knife; OR . . . became armed with a firearm after entering; OR . . . 

touched or applied force to [Victim] in a rude or angry manner while entering or leaving, 

or while inside.” The applicable instruction on CSP required the jury, in pertinent part, to 

find that Defendant inserted his finger into Victim’s vagina and “used physical force or 

physical violence OR . . . used threats of physical force or physical violence against 

[Victim].” The instruction on CSC in turn required the jury, in pertinent part, to find that 
Defendant “touched or applied force” to Victim’s unclothed breast without Victim’s 

consent. There is no way to determine which alternative(s) the jury relied on in finding 

Defendant guilty of aggravated burglary, CSP, and CSC.

{53} In arriving at its conclusion, the Court of Appeals applied the Foster presumption 

to assume not only that the jury relied on the battery alternative for each crime, but that 

the same conduct was also used to commit all three offenses. Sena, 2018-NMCA-037, 

¶¶ 40-41. Having determined that Defendant’s conduct was unitary based on a 

misapplication of the Foster presumption, the Court of Appeals went on to rule that 

under the modified Blockburger analysis set forth in State v. Gutierrez, 2011-NMSC024, ¶¶ 58-59, 150 N.M. 232, 258 P.3d 1024, the Legislature did not intend multiple 

punishments for these offenses, and held Defendant was subjected to multiple 

convictions for the same offense in violation of double jeopardy. Sena, 2018-NMCA037, ¶¶ 42-45.1

{54} Because it is indeterminate upon which alternative the jury relied, like the Court 

of Appeals, we apply the Foster presumption and presume the jury relied on the battery 

alternative in convicting Defendant of aggravated burglary, CSP, and CSC. However, 

contrary to the Court of Appeals’ holding, Foster does not require a further presumption 

that the same conduct was then relied upon by the jury in convicting Defendant of each 

crime—particularly when the record indicates three distinct batteries were committed. 

Although the instructions allowed the jury to convict under the battery alternative for 

each crime, the Foster presumption is rebutted by evidence that each crime was 

completed before the other crime occurred. 

{55} A battery was used to commit aggravated burglary when Victim was awakened at 

3:30 a.m. with Defendant’s gloved hand over her mouth and a knife to her head. After 

Victim got out of bed and was undressing as Defendant ordered, Defendant asked 

Victim where her purse was, and Victim replied that it was in the closet. Defendant took

Victim’s wallet containing thirty dollars. Victim was then allowed to go to the restroom 

while Defendant watched and began masturbating. After Victim finished using the 

restroom, Defendant ordered Victim back to bed, telling her to lie face down on a pillow. 

Victim testified that Defendant then penetrated Victim’s vagina and anus with his penis, 

and after a few minutes, Defendant instructed Victim to get on her knees and continued 

penetrating Victim’s vagina and anus with his penis. Defendant was not found guilty of 

these penetrations. However, Defendant then committed CSP and CSC by means of a 

second, and then a third battery when Defendant ordered Victim to turn over, and 

fondled Victim’s breasts and digitally penetrated Victim’s vagina. 

{56} We therefore conclude that the Court of Appeals erred in its application of the 

Foster presumption. Although the instructions permitted the jury to convict Defendant of 

1In its application of the modified Blockburger test, the Court of Appeals reasoned: “Because the State failed to 

provide any legal theory of the crime, and we have found none in the record, we conclude that Defendant’s 

aggravated burglary conviction is subsumed by the CSP/CSC convictions[.]” Sena, 2018-NMCA-037, ¶ 45. In light of 

our conclusion that Defendant’s conduct was not unitary, whether this is a correct application of the modified 

Blockburger test is not before us.
aggravated burglary, CSP, and CSC under the same alternative, the evidence 

demonstrates that the crimes were committed by three separate, identifiable batteries 

separated by sufficient indicia of distinctness. Thus, Defendant’s conduct was not 

unitary. The initial battery and aggravated burglary were completed before the second 

battery and CSP, and these crimes were separated by both time and intervening 

events. See DeGraff, 2006-NMSC-011, ¶ 27 (“In our consideration of whether conduct 

is unitary, we have looked for an identifiable point at which one of the charged crimes 

had been completed and the other not yet committed.”). In addition, Defendant’s 

conduct in committing CSP and CSC was not unitary because the battery he used to 

commit the CSP was separate and distinct from the battery he used to commit CSC. 

{57} Having concluded that Defendant’s conduct in committing aggravated burglary, 

CSP, and CSC was not unitary, there was no double jeopardy violation. Swick, 2012-

NMSC-018, ¶ 11. We therefore reverse the Court of Appeals’ conclusion that 

Defendant’s convictions for aggravated burglary, CSP, and CSC violate double 

jeopardy. 

4. Sufficiency of the Evidence

{58} Having reviewed the record and the arguments of the parties, we affirm the Court 

of Appeals’ holding that the State presented sufficient evidence to support the 

convictions for CSP and kidnapping. See Sena, 2018-NMCA-037, ¶¶ 26-33, 49-55.

C. CONCLUSION

{59} We reverse Defendant’s convictions and remand the case to the district court for 

a new trial consistent with this opinion.

{60} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice