This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 28,262 9 Consolidated with: 28,252 10 JOE CHAVEZ, 11 Defendant-Appellant. 12

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Albert S. “Pat” Murdoch, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 M. Anne Kelly, Assistant Attorney General 17 Albuquerque, NM 18 for Appellee 19 Hugh W. Dangler, Chief Public Defender 20 Karl Erich Martell, Assi stant Appellate Defender 21 Santa Fe, NM 22 for Appellant 2323 MEMORANDUM OPINION 1 BUSTAMANTE, Judge. 2 A jury convicted Defendant of kidnappi ng, criminal sexual penetration (CSP), 3 aggravated battery, and battery. Defendant appeals each of these convictions on 4 various grounds. We affirm. 5 I. BACKGROUND 6 At about five o’clock in the morning on Thanksgiving Day, 2005, officers 7 responded to a 911 call regarding a possible domestic violence incident. Hearing a 8 woman’s cries for help coming from one of the apartments, Officer St. Onge knocked 9 on the door and identified himself as the police. Nobody came to the door and the 10 officer heard a struggle. After several minutes, the Defendant, who was naked, 11 opened the inner door, saw Officer St. Onge, giggled, and closed the door. Shortly 12 thereafter, Victim opened the inner door and unlocked the outer door. Before she 13 could open the outer door, Defendant grabbed her and pulled her back. Defendant 14 tried to shut the door, but the officer wa s able to open it an d secure Defendant. 15 Defendant appeared highly intoxicated and his feet were c overed with blood and 16

excrement. 17 The apartment showed signs of a struggle. The bedroom door had been kicked 18 in. Inside the bedroom, the screen to the bedroom window had been pulled out and 194 bent. There were several holes in the wall, one of which had blood and a hair in it. 1 There were feces on the floor and bed and blood on the walls. A door leading from 2 the bedroom to the bathroom also had a ki ck hole in it, and there was quite a bit of 3 blood on the tile floor next to the bathroom . Feces were strewn about the entire 4 apartment. 5 The police found Victim crying hystericallywith her eyes swollen shut. She 6 was covered in blood, her f ace was swollen and her eyes were swollen shut, she had 7 scratches and bruises on her arms, and she had fresh feces on her bare feet. The 8 officers asked her if Defendant had done this to her and she nodded that he had. 9 Victim was transported to the hosp ital without being interviewed. 10 At trial, Victim explained what had happened the previ ous night. After 11 Defendant and Victim return ed home, Defendant went tothe store to purchase rum. 12 The two of them started drinking sometime between 6:00 and 8:00 p.m. They were 13 both drinking rum and coke. As the evening progressed, Defendant became 14 obnoxious. There is no indication of how many drinks Defendant consumed. 15 At around 9:00 p.m., Victim decided to try to escape through the bedroom 16 window. Defendant broke down the bedr oom door and pulled her away from the 17 window. Defendant then slammed Victim ’s head into the floor, rendering her 18 unconscious. Victim remembers nothing after that point until the police arrived. 195 II. DISCUSSION 1 On appeal, Defendant raises four issues: (1) that the district court erred by 2 denying an instruction regarding voluntary intoxication as a defense to kidnapping, 3 (2) that his convictions for aggravated an d simple battery violated his protections 4 against double jeopardy, (3) that there was insufficient evidence as to each conviction, 5 and (4) that the district court abused its discretion in permitting an officer to testify 6 that the domestic violence was one of the wors t he had seen in his ten-year career. We 7 address each of these issues in turn. 8 A. Voluntary Intoxication 9 Defendant argues that the district c ourt erred by denying an instruction on 10 voluntary intoxication as a defense to the specific intent element of the kidnapping 11 charge. This Court reviews whether there was evidence to support an instruction on 12 intoxication as a defense de novo, viewing th e evidence in the light most favorable to 13 giving the instruction. See State v. Romero , 1998-NMCA-057, ¶ 22, 125 N.M. 161, 14 958 P.2d 119. 15 Kidnapping is a specific intent crime. See State v. Clark , 80 N.M. 340, 343, 16 455 P.2d 844, 847 (1969). To convict for kidnapping, the State had to prove that 17 Defendant intended to hold Victim against her will to inflict physical injury on her. 186 However, a showing of intoxication could be used to negate this element of specific 1 intent. See Romero , 1998-NMCA-057, ¶ 22. 2 Our cases have distinguished consumption of alcohol from intoxication. 3 “[M]ere evidence that the defendant c onsumed an intoxicant is not enough.” Id. ¶ 26. 4 In State v. Williams , our Supreme Court held that th e defendant was not entitled to a 5 jury instruction on intoxication when he had shown only that he had consumed a 6 double scotch an hour before he shot his former friend. 76 N.M. 578, 585-86, 417 7 P.2d 62, 67 (1966). Instead, Williamsheld that the defendant was required to produce 8 evidence of his condition. See id. More recently, this Court upheld a decision to deny 9 an instruction on intoxication despite evid ence that a bank robber had consumed beer 10 prior to the robbery. State v. Hernandez , 2003-NMCA-131, ¶¶ 21-22, 134 N.M. 510, 11 79 P.3d 1118. There, we observed that “[th e d]efendant presented no evidence . . . 12 that he was intoxicated to any degree, let alone to the point that it affected his ability 13 to form the necessary mental stat e for a specific-intent crime.” Id. ¶ 21. 14 To receive an instruction on intoxication, “evidence as to intoxication must be 15 substantial and must relate to defendant’s condition as of the time of the commission 16 of the [crime].” Romero , 1998-NMCA-057, ¶ 23 (alteration in original) (internal 17 quotation marks and citation omitted). Here, the kidnapping was complete when 18 Defendant forcibly kept the Victim from leaving the apartment with the intent to 197 inflict physical injury on her. See State v. McGuire , 110 N.M. 304, 309, 795 P.2d 1 996, 1001 (1990) (noting that the kidnapping is complete once the defendant restrains 2 the victim with the requisite intent); State v. Dombos , 2008-NMCA-035, ¶ 11, 143 3 N.M. 668, 180 P.3d 675 (“A kidnapping begins w ith the initial restraint and continues 4 until the victim has been released from c onfinement.” (internal quotation marks and 5 citation omitted)). The jury could reasona bly have inferred that this took place when 6 Defendant pulled the Victim away fro m the window and knocked her unconscious. 7 Thus, the instruction was required if the record contains substantial evidence that 8 Defendant was intoxicated at that time. 9 We agree with the district court thatthere was not substantial evidence that 10 Defendant was intoxicated at the time the kidnapping occurred. Unlike Romero, 11 1998-NMCA-057, ¶ 27, where evidence that th e defendant had difficulty walking just 12 fifteen minutes prior to the a ssault was sufficient to require an instruction, there is no 13 evidence that Defendant wa s impaired. Instead, the facts are similar to Hernandez , 14 where there was no evidence of how much the defendanthad consumed or how it 15 affected him. See 2003-NMCA-131, ¶ 21. Victim’s testimony suggests that, similar 16

to Williams , Defendant consumed only one drink prior to the critical time. And while 17 there is substantial evidence that Defe ndant was mean or obnoxious, this does not 18 support an inference that his behavior was due to intoxication. Cf. Hernandez , 2003- 198 NMCA-131, ¶ 22 (finding that impulsive or irrational behavior is not evidence of 1 intoxication). Similarly, the testimony fro m one of the 911 callers that both parties 2 had been “drinking heavily,” by itself, is not probative of intoxication. Even viewing 3 this evidence in the light most favorable to giving the instruction, the evidence shows 4 only consumption, not intoxication. 5 Furthermore, although it seems clear that Defendant was drunk at five in the 6 morning, no evidence was presented to relate this back to the kidnapping the night 7 before. “[A]s the passage of time lengthe ns between intoxication and the commission 8 of the crime, the greater the likelihood th at additional evidence will be required to 9 assist the jury and avoid rank speculation.” Romero , 1998-NMCA-057, ¶ 26; see also 10 State v. Lovato , 110 N.M. 146, 147-48, 793 P.2d 276, 277-78 (Ct. App. 1990) 11 (holding that evidence of intoxication four hours before the crime was insufficient 12 despite the fact that one witness claimed that the defendant had continued to drink 13 during those four hours). Here, at least eight hours passed between the time of the 14 kidnapping and the time at wh ich Defendant was observed to be intoxicated. Because 15 there was insufficient eviden ce to demonstrate that Defe ndant’s intoxication related 16 back to the time of the actual kidnapping, an instruction on intoxication was not 17 required. We therefore affirm the distri ct court’s denial of the instruction on 18 intoxication. 199 B. Double Jeopardy 1 Defendant’s next argument is that his conviction for battery is a double 2 jeopardy violation because it is “clearlysubsumed within” his conviction for 3 aggravated battery. We review the cons titutional question of whether there has been 4 a double jeopardy violation de novo. State v. Andazola , 2003-NMCA-146, ¶ 14, 134 5 N.M. 710, 82 P.3d 77. 6 “The Double Jeopardy Clause of the Fi fth Amendment, enforced against the 7 states by the Fourteenth Amendment, protects defendants from receiving ‘multiple 8 punishments for the same offense.’” State v. DeGraff , 2006-NMSC-011, ¶ 25, 139 9 N.M. 211, 131 P.3d 61 (quoting N.C. v. Pearce , 395 U.S. 711, 717 (1969)). Swafford 10 v. State , 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991), sets forth three separate 11 protections afforded by th e double jeopardy prohibition: (1) protection against a 12 second prosecution for the same offense after acquittal, (2) protection against a second 13 prosecution for the same offense after convi ction, and (3) protection against multiple 14 punishments for the same offense. For the double jeopardy protection against multiple 15 punishments, there are two types of cases: (1) when a defendant is charged with 16 multiple violations of the same statute ba sed on a single course of conduct, referred 17 to as “unit of prosecution” cases; and (2) wh en a defendant is charged with violations 18 of multiple statutes for the same conduct, referred to as “double-description” cases. 1910 See DeGraff , 2006-NMSC-011, ¶ 25 (internal quotation marks and citation omitted). 1 “In double-description cases, we consider first whether the conduct underlying the 2 offenses is unitary and then consider whether the Legislature intended multiple 3 punishments for this conduct.” Id. ¶ 26. If the conduct is not unitary, the inquiry is 4 over and multiple punishments are allowed. Swafford , 112 N.M. at 14, 810 P.2d at 5 1234. 6 Whether a course of conduct is unitaryis determined by examining whether 7 “indicia of distinctness” separate the defendant’s acts. See id. at 13, 810 P.2d at 1233. 8 Indicia of distinctness include the proximity of the events in time or space, the 9 existence of intervening events, and th e defendant’s objective during each act. See 10 State v. Dominguez , 2005-NMSC-001, ¶ 23, 137 N.M. 1, 106 P.3d 563. Here, the 11 conviction for aggravated battery was predicated on Defendant knocking Victim 12 unconscious in the bedroom at 9:00 p.m. on Thanksgiving Eve. The simple battery 13 conviction rested on Defendant pulling Vic tim away from the doorwhen she let the 14 police in at five in the morning on Thanksgiving Day. Because Defendant’s acts were 15 separated in time by eight hour s and occurred in different rooms, the conduct was not 16 unitary. See State v. Franco , 2005-NMSC-013, ¶ 10, 137 N.M. 447, 112 P.3d 1104 17 (finding conduct not to be unitary when a woman’s possession of crack was separated 18 by thirty to forty-five minutes and occurred in different locations within a small 1911 efficiency apartment); see also Swafford , 112 N.M. at 15, 810 P.2d as 1235 (holding 1 conduct not to be unitary when the de fendant bound the victim, threatened her 2 verbally for a period of time, and then sexually assaulted her). The intervening CSP 3 provides an additional indication of distinctness. See DeGraff , 2006-NMSC-011, ¶ 27 4 (“In our consideration of whether c onduct is unitary, we have looked for an 5 identifiable point at which one of the ch arged crimes had been completed and the 6 other not yet committed.”). 7 Because the conduct underlying the convic tions for aggravated battery and 8 battery was not unitary, we need not consid er “whether the [L]egislature intended to 9 create separately punishable offenses.” Swafford , 112 N.M. at 13, 810 P.2d at 1233. 10 We therefore affirm Defendant ’s convictions for aggravated battery and for battery. 11 C. Sufficiency of the Evidence 12 Defendant contends that there is insufficient evidence to support each of his 13 convictions. “In reviewing the sufficiency of the evidence, we must view the evidence 14 in the light most favorable to the guilty verdict, indulging all reasonable inferences 15 and resolving all conflicts in the ev idence in favor of the verdict.” State v. 16 Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “Substantial 17 evidence review requires analysis of whether direct or circumstantial substantial 18 evidence exists and supports a verdict of guilt beyond a reasonable doubt with respect 1912 to every element essential for conviction.” State v. Kent , 2006-NMCA-134, ¶ 10, 140 1 N.M. 606, 145 P.3d 86. “To determine wh ether substantial evidence exists, we 2 measure the evidence agai nst the instructions submitted to the jury.” State v. 3 Caldwell , 2008-NMCA-049, ¶ 29, 143 N.M. 792, 182 P.3d 775. 4 Criminal Sexual Penetration 5 Defendant argues that his conviction for CSP is not supported by sufficient 6 evidence because Victim, who was unconsci ous at the time, “could not say with 7 requisite certainty who had sex with her—or whether such penetration even took 8 place.” Accordingly, we limit our analysis to those issues. See Rule 12-213(A)(4) 9 NMRA. 10 The following evidence supporting penetrati on was introduced. Victim testified 11 that her clothes were removed while she was unconscious and that she found condoms 12 in the apartment when she wa s cleaning it after she returnedfrom the hospital. Victim 13 also testified to suffering from bowel incontinence starting immediately after the 14 incident and for months thereafter. The fresh feces strewn throughout the apartment 15 on the morning of Defendant’s arrest co rroborate the incontinence. Dr. George 16 Borowski testified that the incontinence c ould have been caused either by head injury 17 or by rectal trauma. However, he also te stified that incontinence due to head injury 18 would be short lived and would manifest itself as urinary incontinence, but bowel 1913 incontinence due to rectal trauma could belong lasting and might require surgery to 1 fix. Based on this evidence, the jury coul d reasonably have concluded that Victim had 2 been anally penetrated. See State v. Brown , 100 N.M. 726, 728-29, 676 P.2d 253, 3 255-56 (1984) (holding sufficient evidence exis ted to convict for CSP despite the lack 4 of witnesses or direct evidence). 5 The jury could also reasonably conc lude that it was Defendant who had 6 penetrated her. Victim shared an apartment with Defendant. At the beginning of the 7 evening, both parties arrived home. No evidence was offered that any other person 8 was present. Police testimony shows that Victim was still alone with Defendant when 9 the officers arrived. Viewing these facts in the light most favorable to the guilty 10 verdict, we determine thatthe evidence supports the c onviction for criminal sexual 11 penetration. 12 Aggravated Battery 13 Without making a specific argument, Defendant contests the sufficiency of 14 evidence for the aggravated battery and battery convictions . To convict Defendant of 15 aggravated battery against a household memb er with great bodily harm, the jury was 16 instructed that the State was required to prove beyond a reasonable doubt that: 17 1. [D]efendant touched or applied force to [Victim] by beating [her] 18 about the face, head and body; 19 2. [D]efendant intended to injure [Victim]; 2014 3. [D]efendant acted in a way thatwould likely result in death or 1 great bodily harm to [Victim]; 2 4. [Victim] was a household member. 3 The jury was further instructed that “[g]reat bodily harm means an injury to a person 4 which creates a high probability of death.” 5 The State produced pictures of the Vic tim’s injuries. Victim testified that 6 Defendant knocked her out when she tried to escape via the wi ndow. The officers 7 found a hole in the wall with blood and hair in it. This is sufficient evidence of 8 Defendant’s intent to injure Victim. State v. Hoeffel , 112 N.M. 358, 361, 815 P.2d 9 654, 657 (Ct. App. 1991) (“Inte nt can be proved by circumstantial evidence.”). The 10 emergency room physician testified that he was concerned that Vi ctim might have had 11 potentially fatal brain injuries. As disc ussed above, no evidence indicated that anyone 12 other than Defendant was present. Finally, Victim also testified that she lived with 13 Defendant, thereby satisfying the requireme nt that the State prove Defendant had 14 assaulted a household member. Viewing the evidence in the light most favorable to 15 the verdict, we conclude that there wa s sufficient evidence to support Defendant’s 16 aggravated battery conviction. 17 Battery 18 With respect to the crime of battery against a household member, the jury was 19 instructed that the State was required to prove beyond a reasonable doubt that: 2015 1. [D]efendant intentionally touche d or applied force to [Victim] by 1 yanking [her] away from the front door; 2 2. [D]efendant acted in a rude, insolent or angry manner; 3 3. [Victim] was a household member. 4 The State presented eviden ce from Officers St. Onge and Griego who witnessed 5 Defendant yank Victim from the front door. The jury could reasonably infer from this 6 that he acted in a rude, angry, or insole nt manner. As discu ssed above, Victim was 7 a household member. Accordingly, we hol d that there was sufficient evidence to 8 support Defendant’s battery conviction. 9 Kidnapping 10 Defendant also mentions kidnapping in hi s sufficiency section; however, since 11 he merely repeats his specific intent argument, we do not examine that issue for 12 sufficiency. See State v. Hernandez , 104 N.M. 268, 274, 720 P. 2d 303, 309 (Ct. App. 13 1986) (“A contention on appeal is deemed abandoned if appellant fails to cite 14 authority or to explain the claim.”). 15 D. The Police Opinion Statement 16 Finally, Defendant argues that the districtcourt’s denial of his motion in limine 17 to prevent officers from voicing their opinions that the scene of the crime was “one 18 of the worse encountered in their careers” was more prejudi cial than probative. “We 19 review the admission of evidence under an abuse of discretion standard and will not 2016 reverse in the absence of a clear abuse.” See State v. Sarracino , 1998-NMSC-022, ¶ 1 20, 125 N.M. 511, 964 P.2d 72. 2 Rule 11-403 NMRA allows the district court to exclude otherwise relevant 3 evidence “if its probative value is substantially outweighed by the danger of unfair 4 prejudice.” The district court enjoys a greatdeal of discretion in applying this rule. 5 Dombos , 2008-NMCA-035, ¶ 33. Here, the offi cer’s statement is probative of the 6 extent of Victim’s injuries relevant to the count of aggravated battery against a 7 household member. Defendant points to no unfair prejudice that resulted from the 8

statement. See State v. Fernandez , 117 N.M. 673, 677, 875 P.2d 1104, 1108 (Ct. App. 9 1994) (“In the absence of prej udice, there is no reversible error.”). We conclude that 10 the district court did not abuse its discretion. 11 III. CONCLUSION 12 For the foregoing reasons, the district court’s decision is affirmed. 13 IT IS SO ORDERED

. 14

15 MICHAEL D. BUSTAMANTE, Judge 1617 E CONCUR: 1

2 ROBERT E. ROBLES, Judge 3

4 TIMOTHY L. GARCIA, Judge 5