IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 28,930 4 JEREMY MUMAU, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Stephen Bridgforth, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, New Mexico 10 Max Shepherd, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Hugh W. Dangler, Chief Public Defender 14 Allison H. Jaramillo, Assist ant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17

MEMORANDUM OPINION 18 CASTILLO, Judge. 19 Defendant appeals his convictions for aggravated assault against a household 202 member and battery against a household memb er and contends that the enhancement 1 of his sentence as a habitual offender need s to be set aside because it was based on 2 inadmissible evidence. We proposed to affirm Defendant’s convictions but to reverse 3 the habitual offender enhancement in a notice of proposed summary disposition. 4 Defendant and the State have filed timely memoranda in opposition. Remaining 5 unpersuaded by the memoranda filed by the parties, we affirm Defendant’s 6 convictions and reverse and remand the habitual offender enhancement portion of 7 Defendant’s sentence. 8 Double Jeopardy 9 Defendant contends that his convicti ons for aggravated assault against a 10 household member and battery against a hous ehold member violate his constitutional 11 right to be free from double jeopardy. [DMIO 1-5] We disagree. 12 We apply a de novo standard of review to the constitutional question of whether 13 there has been a double jeopardy violation. See State v. Andazola , 2003-NMCA-146, 14 ¶ 14, 134 N.M. 710, 82 P.3d 77. Defendant was convicted of aggravated battery 15 against a household battery with a deadlyweapon pursuant to NMSA 1978, Section 16 30-3-13(A) (1995), and battery against a household member pursuant to NMSA 1978, 17 Section 30-3-15 (2008). [RP 113-118] The evidence shows that the victim, 18 Defendant’s mother, testified that Defendant came home in the morning and appeared 193 to be high on drugs. [DMIO 1] When th e victim tried to question Defendant, he 1 grabbed a circular saw and grabbed the vi ctim by the back of the neck and hair. 2 [DMIO 1-2] He raised the saw up to her face and asked, “[H]ow would you like 3 this?” [DMIO 2] The victim testified th at she was afraid Defendant might hit her 4 with the saw. [DMIO 2] 5 Defendant claims that both his convi ctions are based on the same conduct, 6 grabbing the victim by the neck and threat ening her with a circular saw. [DMIO 3] 7 He then argues that, since his conduct was unitary, his conviction and sentence for 8 both offenses violates the prohibition against double jeopardy. [DMIO 3-5] We 9 disagree. 10 Defendant is being charged with crimes under two different statutes. In 11 determining whether the two charges shoul d merge or one charge be dismissed to 12 avoid a double jeopardy violation, we undertake a two-part test. See State v. 13 Carrasco , 1997-NMSC-047, ¶ 22, 124 N.M. 64, 946 P. 2d 1075. First, we ask whether 14 the conduct underlying the offenses is unitary, i.e., whether the charges under both 15 statutes are based upon the same conduct. Id. If so, we then ask “whether the 16 Legislature intended to impose multiple punishments for the unitary conduct.” Id. 17 In this case, we presume without decidi ng that Defendant is correct that his 18 conduct was unitary because hi s actions in grabbing the victim’s head and neck and 194 threatening her with the circular saw occu rred at the same time and in the same place. 1 [DMIO 3-4] However, contrary to Defe ndant’s contention, our review of the 2 aggravated assault against a household member and battery against a household 3 member statutes indicate that the Legisl ature intended to impose multiple punishments 4 for those two crimes. [DMIO 4] See State v. Cowden , 1996-NMCA-051, ¶¶ 5-14, 5 121 N.M. 703, 917 P.2d 972 (holding that the de fendant’s convictions for assault with 6 intent to commit a violent felony and aggrav ated battery with a deadly weapon did not 7 violate double jeopardy because the Legislature intended to separately punish these 8 crimes). 9 To convict Defendant of aggravated assault against a household member, the 10 State had to prove beyond a reasonable doubt th at: (1) Defendant threatened the victim 11 with a circular saw which caused her to be lieve Defendant was about to intrude on her 12 bodily integrity or personal safety by touching or applying force to her in a rude, 13 insolent or angry manner; (2) a reasonable person in the same circumstances as the 14 victim would have had the same belief; (3 ) Defendant used a d eadly weapon; and (4) 15 the victim was a household me mber. [RP 76; DMIO 4] Cf. UJI 14-305 NMRA. To 16 convict Defendant of batteryagainst a household member, the State had to prove that 17 (1) Defendant intentionally touched or applied force to the victim by “hitting, 18 grabbing, pushing or pulling” her; (2) Defendant “acted in a rude, insolent or angry 195 manner;” and (3) the victim was a household member. [RP 80] Cf. UJI 14-320 1 NMRA. Review of the essential elements of these two crimes s hows that “each crime 2 contains an element that the other does not[; therefore,] we presume that the 3 legislature intended to punish these offenses separately.” Cowden , 1996-NMCA-051, 4 ¶ 7. 5 Defendant contends that the crime of aggravated assault against a household 6 member is subsumed in the elements of the crime of battery against a household 7 member. [DMIO 5] He cites to the statutory language defining aggravated assault 8 against a household member as “unlawfully assaulting or striking at a household 9 member with a deadly weapon” and batteryagainst a household member as “unlawful, 10 intentional touching or application of force . . . when done in a rude, insolvent or 11 angry manner.” [DMIO 4] See §§ 30-3-13(A)(1) and -15. We are unpersuaded. 12 The aggravated assault and battery statutes contain alternatives which may 13 overlap. However, “we focus on the legal theory of the case and disregard any 14 inapplicable statutory elements.” Cowden , 1996-NMCA-051, ¶ 7; see Carrasco , 15 1997-NMSC-047, ¶ 27. In this case, as in Cowden , “each crime requires proof of at 16 least one element that the other does not.” Cowden , 1996-NMCA-051, ¶ 10. The 17 aggravated assault charge required proof th at the victim believed Defendant was about 18 to intrude on her bodily integrity or personal safety and that De fendant used a deadly 196 weapon. [RP 76] The battery charge required proof th at Defendant hit, grabbed, 1 pushed, or pulled the victim. [RP 80] 2 Finally, we note that the two crimes address different social evils. Id. ¶ 12 3 (stating that, in determining if there is a double jeopardy violati on, we “examine the 4 particular social evil addressed by each statute”). Assault is proscribed because it puts 5 the victim in fear while battery in th is case is an actual physical injury. Id. (stating 6 that the harm to the victim protected by the assault statutes is mental harm, i.e., putting 7 persons in fear, while the harm protected by the battery statutes is physical harm, i.e., 8 physical injury to persons). Therefore, we affirm Defendant ’s convictions and 9 punishment for both crimes. See id. ¶ 10. 10 Defendant’s Sentence as an Habitual Offender 11 Defendant challenges the admissibility and the sufficiency of the evidence 12 relied upon by the State in the course of the habitual offender proceedings. [DS 7] 13 In our notice of proposed summary dispositi on, we proposed to reverse on this issue. 14 In order to obtain a sentencing enhancement pursuant to the Habitual Offender 15 Act, NMSA 1978, §§ 31-18-17 to -20 (1977, as amended through 2003), the State 16 must prove by a preponderance of evidence th at the defendant ha s prior convictions. 17 See State v. Smith , 2000-NMSC-005, ¶¶ 9, 11, 128 N.M. 588, 995 P.2d 1030. The 18 State bears the initial burden of establis hing a prima facie cas e of a defendant’s 197 previous convictions; the defendant is thenentitled to bring forth contrary evidence. 1 See State v. Sedillo , 2001-NMCA-001, ¶ 5, 130 N.M . 98, 18 P.3d 1051. “In 2 determining whether the evidence supports a criminal charge, this Court views the 3 evidence in the light most favorable to the State.” Id. ¶ 6. The State ultimately bears 4 the burden of persuasion. See State v. O’Neil , 91 N.M. 727, 729, 580 P.2d 495, 497 5 (Ct. App. 1978). 6 In this case, the State sought to enhance Defendant’s sentence as an habitual 7 offender by presenting a copy of a prior Texas conviction for aggravated assault. [RP 8 105, 134] Defendant objected because the State failed to submit a certified copy and 9 could not confirm the authenticity of the document. [SMIO 2; DS 5-6] In addition 10 to the copy of the convic tion, the State introduced the testimony of Defendant’s 11 mother regarding the Texas c onviction, but she could not remember the exact date of 12 the conviction nor the specific crime of which Defendant was convicted. [SMIO 3] 13 In our notice of proposed summary dispositi on, we proposed to hold that the district 14 court erred in enhanc ing Defendant’s sentence because the State failed to establish the 15 prior conviction by a preponderance of the evidence. 16 As discussed in our notice, the copy of the prior conviction was inadmissible 17 because it was not certified. See Rule 11-902(D) NMRA (providing that certified 18 copies of judgments and sentences are self-authenticating and admissible); State v. 198 Griffin , 108 N.M. 55, 59, 766 P.2d 315, 319 (Ct. App. 1988) (holding that the district 1 court did not abuse its discretion in admitting copies of the defendant’s prior 2 convictions because all of the exhibits werecopies of public documents and they were 3 self-authenticating under Rule 11-902 becausethey were certified by the custodian of 4 the record in compliance with Rule 11-902(A), (B), or (C)). In addition, the State has 5 failed to rebut our observation that it did not present extrinsic evidence to support 6 authentication. Cf. State ex rel. Human Services Dep’t v. McDermott , 7 1996-NMCA-048, ¶ 13, 121 N.M. 609, 916 P.2d 228 (noting that, pursuant to Rule 8 11-901 NMRA, judicial records may be admissible even if they are not certified and 9 stating that “[a]ll that is necessary [for admission of judicial records] is the testimony 10 of a witness who knows that the documents in fact came from the legal custodian of 11 the document”). 12 In its memorandum in opposition, the State explains that the prosecutor had 13 both a certified copy of the Texas convicti on and a Xerox copy, but states that he 14 brought the wrong copy to court. [SMIO 2] We are unconvinced that the failure to 15 bring the certified copy renders the non-certified copy admissible in the absence of 16 some testimony as to its authenticity. Cf. State v. Ellis , 95 N.M. 427, 428, 622 P.2d 17 1047, 1048 (Ct. App. 1980) (rec ognizing that a public record is only admissible if it 18 is self-authenticating or authenticated pursuant to Rule 11-901); State v. Gallegos , 91 199 N.M. 107, 111, 570 P.2d 938, 942 (C t. App. 1977) (holding that copies of verdicts in 1 prior criminal cases involving the defendant were properly admitted when “[e]ach 2 document was authenticated under . . . Rule [11-]902”). In this case, the document 3 was not certified or self-authenticating and no one with knowledge testified as to its 4 authenticity. See Rules 11-901 and -902. 5 Other than the inadmissible copy of the Texas conviction, the only evidence 6 introduced in support of Defendant’s prio r conviction was his mother’s testimony 7 which was vague as to the type of prior conviction or the dateof the conviction. 8 [SMIO 2-3; DS 5] We disagree that the mother’s testimony was “particularly 9 credible” or reliable given that she was th e victim of the crime for which Defendant 10 was being sentenced. [SMIO 2] Therefore, the information provided by the State was 11 insufficient to prove Defendant’s prio r conviction by the preponderance of the 12 evidence. Cf. State v. Clements , ___-NMSC ___, ¶¶ 31-32, ___ N.M. ___, ___ P.3d 13 [No. 26,953 (filed May 5, 2009)], (holding that the State failed to make a prima facie 14 showing of the defendant’s prior Texas conviction). 15 Therefore, we reverse the habitual offender portion of Defendant’s sentence and 16 remand for re-sentencing. See State v. Aragon , 116 N.M. 267, 269-72, 861 P.2d 948, 17 950-53 (1993) (holding that “habitual o ffender proceedings do not involve a 18 determination of guilt of any offense” so double-jeopardy protec tions generally do not 1910 apply to such proceedings). 1 CONCLUSION 2 For the foregoing reasons as well as those set forth in our notice of proposed 3 disposition, we affirm Defendant’s convictions. We reverse the sentence enhancement 4 portion of Defendant’s sentence and remand for re-sentencing. 5 IT IS SO ORDERED. 6

________________________________ 7 CELIA FOY CASTILLO, Judge 8 WE CONCUR: 9

________________________________ 10 CYNTHIA A. FRY, Chief Judge 11

________________________________ 12 LINDA M. VANZI, Judge 13