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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. NO. 34,330 4 MICHAEL FARMER, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 Kea W. Riggs, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Tonya Noonan Herring, Assi stant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Robert E. Tangora, L.L.C. 14 Robert E. Tangora 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VIGIL, Judge. 192 {1} Following an altercation involving a s hotgun, Defendant wa s convicted of one 1 count of aggravated battery with a dead ly weapon contrary to NMSA 1978, Section 2 30-3-5(A), (C) (1969), and one count of a ggravated assault with a deadly weapon 3 contrary to NMSA 1978, Section 30-3- 2(A) (1963). At sentencing, Defendant 4 received two one-year firearm enhancements pursuant to NMSA 1978, Section 31-18- 5 16(A) (1993). 6 {2} Defendant appeals, contending: (1) th e firearm enhancements violate double 7 jeopardy; (2) the firearm enhancements must be vacated because the special 8 interrogatory required by Section 31-18-16(C) was not submitted to the jury; (3) the 9 prosecutor committed plain and fundame ntal error by eliciting testimony that 10 constituted an impermissible comment on Defe ndant’s right to remain silent; and (4) 11 the prosecutor committed fundamental error in disregarding the district court’s rulings 12 and arguing that Defendant conspired to frame his stepson for the shootings. We 13 reverse in part and remand for resenten cing. Because this is a memorandum opinion, 14 we only set forth the facts that are directly pertinent to the issues. 15 I. BACKGROUND 16 {3} About a month prior to June 10, 2013, Ben Florez (Ben) and his wife Gabriella 17 had an altercation with Defe ndant’s stepson, Joe Paul Martinez, who was married to 18 Ben’s sister, Amanda. Ben and Gabriella went to the Martinez’ home after Amanda 19 told Ben that Joe Paul had beat her. When they arrived, Joe Paul physically assaulted 203 Gabriella. Ben and Joe Paul then fought each other. Ben and Joe Paul did not have any 1 more contact with each other until June 10, 2013. 2 {4} On June 10, 2013, Ben and Gabriella drove to the home of Ben’s mother, Sally 3 Moreno, to pick up their son. Sally livedacross the street fro m Defendant. When Ben 4 and Gabriella arrived at Sally’s home, th ey saw Amanda sitting in her truck parked 5 on the street in front of Defendant’s home. Amanda and Joe Paul had been arguing 6 earlier, and Joe Paul had lo cked the gate to the fence surrounding Defendant’s house. 7 Joe Paul was inside Defendant’s house taking a shower and would not let Amanda in. 8 Gabriella went to speak to Amanda while Ben went to Sally’s house to get their son. 9 Sally told Ben that his son was taking a bathand that she would take him to Ben’s 10 home later. 11 {5} Joe Paul came out of Defendant’s house in his boxers and unlocked Defendant’s 12 gate. Defendant and Jo e Paul then started yelling and swearing at Ben, so Ben and 13 Gabriella decided to leave and avoid a confrontation. Af ter Ben and Gabriella got in 14 Ben’s truck, Ben changed his mind and decide d to get his son because he did not want 15 to have to deal with Defendant later. Ben went back to Sally’s house, and when he got 16 out of his truck, Defendant and Joe Paul were now swearing at Amanda. Ben tried to 17 get Amanda to leave with him and Gabrie lla, and Defendant and Joe Paul started 18 yelling at Ben again. 194 {6} At some point, Defendant went into hi s home, retrieved his shotgun, returned 1 and stood next to Joe Paul at the gate. De fendant testified that Ben was about fifteen 2 to twenty feet away from him in the street and that Gabriella was standing by 3 Defendant’s fence yelling at him. Ben, Am anda, Gabriella, and Sally then heard 4 Defendant say “I got someth ing for you motherf****er!” Defe ndant shot Ben with his 5 shotgun, and then pointed the shotgun at Gabriella. Sally tes tified that she saw 6 Defendant pick something up from the ground after he shot Ben, but she did not know 7 what it was. 8 {7} Sergeant Rusty Briscoe of the Roswell Po lice Department was one of the first 9 officers at the scene. Sergeant Briscoe reported that Defendant volunteered, without 10 being questioned, that Ben was harassing him, and about the events leading up to the 11 shooting, including his claim that Joe Paulhad taken the shotgun from Defendant and 12 shot Ben. Police searched Defendant’s home and Sally’s home for the shotgun, but it 13 was never found. A spent shot gun shell was found in Joe Paul’s room in Defendant’s 14 home, on a dresser right next to Joe Paul’s wallet, but no shell was ever recovered 15 outside where the shooting had taken place. 16 {8} Defendant was taken to the police station, and after bei ng advised of his 17 Miranda rights by Detective Alberto Aldana, De fendant said he understood his rights, 18 and agreed to talk to Detective Aldana about what had happened. Defendant was 19 arrested and charged with a ggravated battery and aggravated assault. At Defendant’s 205 first appearance on June 12, 2013, counsel was appointed to represent Defendant. 1 Defendant was then released from cust ody after posting bond on J une 21, 2013. After 2 his release, Defendant repeatedly called De tective Aldana to tell him that Joe Paul’s 3 wife Amanda told Defendant that she ha d stolen Defendant’s shotgun from his truck. 4 Defendant did not file a police report for the theft “until two weeks after the shooting 5 because he was incarcerated.” 6 {9} At trial, Defendant tes tified and claimed that Ben was waving a gun at him so 7 he went and got his shotgun. Defendant testified that after he got his shotgun, he 8 thought that it was a “wrong move” and was going to put it back. However, he 9 testified, when he went to take the shot gun back into his home, Joe Paul grabbed the 10 gun and shot Ben. Defendant further testified that Joe Paul told Amanda to meet him 11 in the alley, and Joe Paul took off running with the shotgun. Amanda testified that she 12 and Joe Paul immediately left in her truck, and she was driving. She said Joe Paul was 13 next to her in his boxers, and he did not have anything in his hands. Joe Paul testified 14 and denied that he ever tried to pull th e shotgun away from Defendant. Joe Paul said 15 that he left as soon as the shot was fired, and he left in his boxers and t-shirt because 16 he is a felon and is not supposed to be ar ound firearms. In an interview with Detective 17 Aldana, Joe Paul said that his family want ed him to take the blame for the shooting. 18 {10} The jury found Defendant guilty of aggravated battery with a deadly weapon 19 on Ben, and aggravated assault with a d eadly weapon on Gabriella. After credit for 206 time served, Defendant was sentenced to serve a total of fi ve years, seventeen months, 1 and three days at the New Mexico Department of Correcti ons. The sentence on each 2 count was enhanced by one year under Section 31-18-16, known as the firearm 3 enhancement statute. Defendant appeals. 4 II. DISCUSSION 5 A. Double Jeopardy 6 {11} We first address Defendant’s argument that his right to be free from double 7 jeopardy was violated because he was punish ed twice for the same offense, receiving 8 a firearm enhancement on his conviction for aggravated battery with a deadly weapon 9 and also being convicted for aggravated assault with a deadly weapon. The Double 10 Jeopardy Clause of the Fifth Amendmen t protects a defendant against receiving 11 multiple punishments for the same offense. See Swafford v. State , 1991-NMSC-043, 12 ¶ 6, 112 N.M. 3, 810 P.2d 1223. Our review of Defendant’s claim is de novo. State v. 13 Branch , 2016-NMCA-071, ¶ 22, 387 P.3d 250, cert. granted , 2016-NMCERT-___ 14 (No. 35,951, July 28, 2016). 15 {12} Section 31-18-16(A) provides: “When a separate finding of fact by the court or 16 jury shows that a firearm was used in th e commission of a noncapital felony, the basic 17 sentence of imprisonment prescribed fo r the offense in [NMSA 1978], Section 18 31-18-15 [(2007)] shall be increased by one year, and the sentence imposed by this 19 subsection shall be the first year served and shall not be suspe nded or deferred[.]” In 207 Branch , we held that when the state, “accordi ng to its own theory of the case, was not 1 required to prove any additional facts to have[a d]efendant’s sentence enhanced,” the 2 firearm enhancement under Section 31-18-16 violates double jeopardy. 2016-NMCA3 071, ¶ 38. We conclude that Branch is directly applicable. 4 {13} Count 1 of the information charges aggr avated battery with a deadly weapon 5 and alleges in pertinent part that Defendant “did touch or apply force to Ben Florez 6 with a deadly weapon.” The ju ry was instructed that in order to find Defendant guilty 7 of this charge, it was required to find beyond a reasonable doubt that Defendant “did 8 touch or apply force to Ben Florez by shooti ng him with a firearm, which is a deadly 9 weapon[.]” Similarly, count 4 charges aggr avated assault with a deadly weapon and 10 alleges that Defendant “did assault or strike at Gabriella [Florez] with a deadly 11 weapon[.]” The jury was instructed in pertinent part that to find Defendant guilty of 12 this charge, it was required to find beyond a reasonable doubt that “[D]efendant 13 pointed a firearm at Gabriella[Florez]” and that Defendant “used a firearm, which is 14 a deadly weapon.” 15 {14} On the basis that Defendant used his shotgun, a firearm, to commit aggravated 16 battery with a deadly weapon, and aggr avated assault with a deadly weapon, 17 Defendant’s sentence was enhanced by one year for each conviction under Section 31- 18 18-16. Branchholds that this violates double je opardy, and the enhanced sentence on 19 each count must be reversed and vacated. 2016-NMCA-071, ¶ 64. 208 B. Failure to Submit a Special Interrogatory 1 {15} Section 31-18-16 (C) requires a special interrogatory to be submitted to the jury 2 to find whether a firearm was used in the commission of an offense if a prima facie 3 case has been established that a firearm was used. No interrogatory was submitted to 4 the jury in this case. Because we re verse and vacate Defendant’s firearm 5 enhancements on the basis of double jeopardy, it is not necessary for us to address 6 Defendant’s argument that this omission was reversible error. 7 C. Post-Miranda Silence 8 {16} Defendant argues that the prosecutor co mmitted plain and fundamental error in 9 eliciting Defendant’s post-arrest, post -Miranda silence as evidence that Defendant 10 was fabricating a story. “We review de novo the legal question re garding whether the 11 prosecutor improperly commented on [the d]efendant’s [post- Miranda ] silence.” State 12 v. Pacheco , 2007-NMCA-140, ¶ 8, 142 N.M. 773, 170 P.3d 1011 (alteration, internal 13 quotation marks and citation omitted). In addition, because there was no objection 14 made at trial, our review is limited to whether fundamental error was committed. Id

. 15 Whether fundamental error was committed “rests on whether the prosecutor’s 16 improprieties had such a persuasi ve and prejudicial effect on the jury’s verdict that the 17 defendant was deprived of a fair trial.” State v. Wildgrube , 2003-NMCA-108, ¶ 20, 18 134 N.M. 262, 75 P.3d 862 (internal quotation marks and citation omitted). 199 {17} To determine whether the prosecuto r engaged in improper questioning to 1 constitute misconduct, we follow a two-step process. First, we examine whether the 2 language of the prosecutor’s questions were such that the jury “would naturally and 3 necessarily have taken them to be comment s on the exercise of the right to remain 4 silent.” Pacheco , 2007-NMCA-140, ¶ 12 (internal quotation marks and citation 5 omitted). Second, if we determine that the prosecutor's questions constituted an 6 improper comment on Defendant’s silence, wethen determine “whether there is a 7 reasonable probability that the error was a si gnificant factor in the jury’s deliberations 8 in relation to the rest of the evidence before them.” Id . (internal quotation marks and 9 citation omitted). 10 {18} We begin with the first inquiry: whether the prosecutor’s question constituted 11 a comment on Defendant’s constitutionally pr otected silence. The question occurred 12 in the following context. Sergeant Briscoe, one of the first officers on the scene, 13 testified that Defendant volunteered to him that after he came out of his house with 14 the shotgun, Joe Paul took it away from him and shot Ben. Sergeant Briscoe testified 15 that the homes of Defendant and Sally were searched and the shotgun was not found. 16 Defendant was arrested and taken to the police station, and Defendant voluntarily gave 17 a statement to Detective Aldana after De tective Aldana advised Defendant of his 18 Miranda rights. Defendant told Detective Aldana that he and Joe Paul struggled with 19 the shotgun and it went off, and he did not remember wh at happened to the shotgun. 2010 Detective Aldana’s testimony continued that about two w eeks later, Defendant called 1 Detective Aldana and reported that Amanda had broken into his house and stolen the 2 shotgun. The prosecutor first clarified that Defendant reported the alleged theft on 3 June 28, 2013, which was actually more thantwo weeks after the incident. Defendant 4 contends that the prosecutor commented on Defendant’s silence when he then asked: 5 “Now, since you are the lead investigator on this case and you have investigated these 6 cases, what do you feel about the validity of that report from [Defendant]?” Detective 7 Aldana answered, “that [Defendant] knew where the shotgun was all along, and that 8 Joe [Paul] never took it.” Further, when as ked if he believed th at Amanda had actually 9 come and taken the shotgun, Detective Aldana answered “no.” 10 {19} Defendant argues that because he wa s incarcerated for two weeks after he 11 received the Miranda warnings from Detective Aldana, the prosecutor’s question 12 called attention to Defe ndant’s right to remain silent during that two-week period. We 13 disagree. The prosecutor asked Detective Al dana about Defendant ’s report of the 14 alleged theft, and what that report meant to him. The prosecutor did not ask whether, 15 nor did the question suggest, that any m eaning should be attributed to Defendant 16 exercising his right to remain silent beforehe voluntarily called Detective Aldana and 17 reported the alleged theft. Moreover, the prosecutor madeno reference to Defendant’s 18 post- Miranda silence in the closing arguments. Th erefore, we conclude that the jury 19 would not “naturally and n ecessarily have taken” the prosecutor’s question “to be 2011 comments on the exercise of th e right to remain silent.” Pacheco , 2007-NMCA-140, 1 ¶ 12 (internal quotation marks and citation omitted). Because we determine that the 2 prosecutor’s question did not constitute an impermissible comment on Defendant’s 3 constitutional right to remain silent, there is no need to consider the second factor set 4 forth in Pacheco . In light of what we have already observed, the question not objected 5 to, did not rise to the level of fundamental error. We therefore reject Defendant’s 6 argument under this point. 7 D. Prosecutorial Misconduct 8 {20} Defendant argues that the prosecutor committed prosecutorial misconduct in 9 closing argument by disregarding the district court rulings in arguing that Defendant 10 conspired to frame Joe Paul for the shooti ng. Defendant concedes that this argument 11 was not preserved at trial and asks that we review the prosecutor’s conduct for 12 fundamental error. 13 {21} When an issue of prosecutorial misconduct in closing argument has not been 14 properly preserved by a timely objection at trial, we have discretion to review the 15 claim on appeal for fundamental error. State v. Trujillo , 2002-NMSC-005, ¶¶ 52, 60, 16 131 N.M. 709, 42 P.3d 814. Prosecutorial misconduct in arguments to the jury 17 constitutes fundamental error when it is eg regious and so prejudicial and persuasive 18 as to affect the jury’s verdict, thereby depriving the defendantof a fair trial. State v. 19 Allen , 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728. Fundamental error only 2012 applies to closing arguments when a defendant’s guilt is so doubtful as to shock the 1 conscience, or the error implicates the fundamental integrity of the judicial process. 2 State v. Sosa , 2009-NMSC-056, ¶ 35 147 N.M. 351, 223 P.3d 348. 3 {22} Defendant points to an instance in whic h the prosecutor asked Amanda if she 4 had been pressured to implicate Joe Paulin the shooting, and she answered that 5 Defendant’s wife did on three occasions. In addition, Defendant points out that 6 through the prosecutor’s questioning, Detective Aldana testified that Joe Paul told him 7 that his “family” was pressuring him to take the blame for the shooting. Defendant 8 contends that these items of evidence were not admissible. In addition, Defendant 9 points to two instances in which the prosecu tor asked Detective Aldana about whether 10 placement of the spent shotgun shell in Joe Paul’s room was a “set-up” and the district 11 court sustained objections to the ques tions. Defendant therefore argues that in 12 violation of the rules of evidence and th e district court rulings, the prosecutor 13 improperly argued in closing argument (1) that Defendant planted the spent shotgun 14 shell in Joe Paul’s room and then pointed it out to the police; and (2) that Defendant 15 tried to get Joe Paul to take the blame for the shooting. 16 {23} With regard to the spent shotgun she ll, the following evidence was admitted at 17 trial. Defendant admitted he owned the shotgun that was us ed in the shooting, and a 18 box of ammunition for the shotgun was found in Defendant’s room. The shotgun was 19 fired once, and Sally saw Defendant bend down and pick up something off the ground 2013 after the shooting. Defendant te stified that after the shooting, he went back into his 1 house, and there is no evidence that Joe Paul went back into the house after the 2 shooting. The spent shotgun shell was f ound in Defendant’s hous e on a dresser next 3 to Joe Paul’s wallet right after the shooti ng. No other spent sh ell was found at the 4 scene of the shooting following a thorough search. Based on the foregoing evidence, 5 which Defendant does not c ontend was inadmissible, th e prosecutor’s argument that 6 Defendant planted the spent s hotgun shell on Joe Paul’s dre sser next to his wallet was 7 permissible. “During closing argument, both the prosecution and defense are 8 permitted wide latitude[.]” State v. Smith , 2001-NMSC-004, ¶ 38, 130 N.M. 117, 19 9 P.3d 254. Moreover, “[s]tateme nts having their basis in the evidence, together with 10 reasonable inferences to bedrawn therefrom, are permissible and do not warrant 11 reversal.” State v. Herrera , 1972-NMCA-068, ¶ 8, 84 N.M. 46, 499 P.2d 364 (internal 12 quotation marks and citation omitted). See State v. Jimenez , 2017-NMCA-039, ¶ 75, 13 392 P.3d 668 (reiterating these principles). 14 {24} With regard to the argument that Defendant tried to get Joe Paul to take the 15 blame for the shooting, the evidence was clear that from the beginning, Defendant 16 claimed that Joe Paul shot the shotgun, and he later claimed th at Amanda had broken 17 into his house and stolen the shotgun. Thus , even if we assume that the evidence 18 attributed to Defendant’s wife on three o ccasions pressuring Amanda to implicate Joe 19 Paul, and the evidence that Joe Paul told Detective Aldana that his “family” was 2014 pressuring him to take the blame was inad missible, and that argument based on this 1 evidence was therefore improper, there was no fundamental error in light of 2 Defendant’s repeated statements that Joe Paul did the shooting and his attempts to 3 implicate Joe Paul in stealing the shotgun. Even if we assume misconduct, therefore, 4 it was not so prejudicial and persuasive as to affect the jury’s verdict, thereby 5 depriving Defendant of a fairtrial. Moreover, the eviden ce we have set forth in this 6 opinion demonstrates that Defendant’s guilt is not so doubtful as to shock the 7 conscience or bring into doubt the integrity of the judicial process leading to 8 Defendant’s convictions. We therefore conclude that the prosecutor did not commit 9 fundamental error in arguing to the jury th at Defendant tried to blame the aggravated 10 battery of Ben and the aggravated assault of Gabriella on Joe Paul. 11 {25} The prosecutor’s closing argument neither ro se to the level of fundamental error 12 nor justifies setting aside the jury’s verdict. We therefore reject Defendant’s 13 arguments under this point. 14 CONCLUSION 15 {26} The case is remanded to the district c ourt to vacate the fi rearm enhancements 16 to the judgment and sentence. In all other respects the Defendant’s convictions are 17 affirmed. 18 {27} IT IS SO ORDERED. 1915 __________________________________ 1 MICHAEL E. VIGIL, Judge 2

WE CONCUR: 3

______________________________ 4 JAMES J. WECHSLER, Judge 5

______________________________ 6 TIMOTHY L. GARCIA, Judge 7