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 Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 30,443 9 JOHN FIERRO, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 John A. Dean, District Judge 13 Gary K. King, Attorney General 14 Ann M. Harvey, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Jacqueline L. Cooper, Ac ting Chief Public Defender 18 Kathleen T. Baldridge, Assistant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 SUTIN, Judge. 232 Defendant John Fierro was convicted of two counts of criminal sexual 1 penetration in the fourth degree based on his penile penetration of the anus and digital 2 penetration of the vagina of his fifteen-year-old cousin. We must decide whether the 3 sequential penetrations of the victim’s orifices, with two different objects, were 4 sufficiently distinct to warrant separate c ounts of criminal sexual penetration and pass 5 scrutiny under our double jeopardy protections . We hold that Defendant’s resulting 6 two convictions do not violate double jeopardy. We therefore affirm the convictions 7 on both counts. 8 Background 9 After Defendant was originally charge d with two counts of criminal sexual 10 penetration in the second degree under NMSA 1978, Section 30-9-11(E) (2009), he 11 filed a pretrial motion to dismiss onecount on double jeopardy grounds. Defense 12 counsel conceded the facts as alleged by the victim and asked the district court to rule 13 on Defendant’s double jeopardy claim. Relying on the State’s affidavit for arrest 14 warrant and the summary of facts presented to the court, we set forth the facts as 15 follows. 16 The victim’s family explained to inves tigators that Defendant had been kicked 17 out of his own house and was residing at th eir house in the meantime. According to 18 the victim, on the night of the incident De fendant bought soft drinks from a local fast- 193 food restaurant for the victim and other family members. After drinking the beverage 1 given to her, the victim claimed she became tired and went to her room to sleep. She 2 remembered awakening to Defendant entering her room, approa ching her bed, and 3 saying “What’s up?” She responded, “I’m sl eeping” and attempted to go back to sleep 4 by closing her eyes. After which, she fe lt Defendant pull her pants down and felt “a 5 whole bunch of . . . pain in [her] butt.” She remembered the pain “went away,” and 6 she was “going to sleep a little bit,” but thenfelt “a lot of pressure in [her] vagina.” 7 Afterward she returned to sl eep. The victim’s penetration claim was corroborated, in 8 the State’s opinion, by the results of a medical evaluation that found “evidence of 9 physical injuries or contusions to [both] her anal . . . [and] vaginal opening[s].” 10 Defendant offered further details to the police investigator regarding the 11 penetrations, stating that hewas “fingering her vagina” for five to ten minutes when 12 he decided he “was going to go inside her” anus with his pe nis. He stated that she 13 “turned around,” but that he “barely put [his] penis against her ass” when he 14 ejaculated. 15 Sufficiency of the Evidentiary Record for Double Jeopardy Analysis 16 As a threshold matter, the State argues that this Court should forego its double 17 jeopardy analysis because Defendant “has failed to assure an adequate record for 18 review of his claim.” While we acknowledgethe general validity of the State’s legal 194 citations—that defendants shoulder the evidentiary burden for double jeopardy claims, 1 that counsel’s assertions of double jeopardy are neither eviden ce nor sufficient for 2 double jeopardy review, and that double jeopardy claims must be rejected if they are 3 without a factual basis in the record—we di sagree that any of these principles require 4 dismissal of Defendant’s claim without further review. 5 Facing two counts of second degree criminal sexual pene tration, Defendant 6 attempted to have one c ount dismissed on double jeopardy grounds, but this attempt 7 failed. He then accepted a plea agreement for two lesser counts of fourth degree 8 criminal sexual penetration. Accordingly, Defendant’s cas e never proceeded to trial 9 and no evidence was submitted through factual hearings. The district court record, 10 however, contains a sufficient factual basis for our review. During the pretrial motion 11 hearing, the parties presented summarie s of the facts based on interviews and 12 statements of Defendant and the victim. The affidavit used to support Defendant’s 13 arrest warrant provided an additional summary of the facts based on the assigned 14 detective’s investigation and was entered into the district court record. And finally, 15 the State provided a summary of the evid ence supporting the convictions at the plea 16 hearing. 17 While this Court has recognized that double jeopardy claims require meticulous 18 review of the facts and can rarely be determined on the face of an indictment, State v. 195 Sanchez , 1996-NMCA-089, ¶¶ 8, 11, 122 N.M. 280, 923 P.2d 1165, wehave relied 1 on evidence outside factual hearings that is established from the record of a guilty plea 2 without trial. State v. Andazola , 2003-NMCA-146, ¶ 2, 134 N.M. 710, 82 P.3d 77 3 (“Because the charges were resolved by a plea agreement, we have the factual 4 background in the record proper, including the affidavit to the criminal complaint and 5 the sworn depositions of the victims, as well as the transcript of the hearings in this 6 case.”); State v. Handa , 120 N.M. 38, 40-42, 897 P.2d 225, 227-29 (Ct. App. 1995) 7 (relying on facts from a pretrial motion to strike and from a sentencing memorandum 8 to determine double jeopardy claim); State v. Jackson , 116 N.M. 130, 132, 860 P.2d 9 772, 774 (Ct. App. 1993) (basing double jeopardy review on the summary of facts 10 presented at the plea hearing); State v. Tsethlikai , 109 N.M. 371, 372-74, 785 P.2d 11 282, 283-85 (Ct. App. 1989) (rely ing on an exhibit that reported pertinent events and 12 was tendered by the defendant at a senten cing hearing for a double jeopardy analysis). 13 Unlike in Sanchez , where the defendant “base[d] his double jeopardy claim 14 solely on the indictment with no underlying f actual record[,]” the factual record here, 15 as presented to the districtcourt in affidavit and summary form, is sufficient for our 16 double jeopardy review. 1996-NMCA-089, ¶ 8. The procedural posture and factual 17 record of this case are indisti nguishable from those reviewed in Andazola , Handa , and 186 Jackson , and no legally sound reason exists to forego a full review of Defendant’s 1 double jeopardy claim. 27 Defendant’s Convictions Do Not Violate Double Jeopardy 1 Defendant contends that one of his two fourth degree criminal sexual 2 penetration convictions violates the c onstitutional guarantee against double jeopardy 3 because it subjected him to multiple punishments for the same offense. Specifically, 4 Defendant argues that although he pleaded no contest to penile penetration of the 5 victim’s anus and digital penetration of the victim’s vagina, both penetrations were 6 merely part of “a singular intent to engage in sexual relati ons with one individual, i.e., 7 a single course of conduct” and cannot be punished separately. 8 Defendant’s claim is governed by our doubl e jeopardy jurisprudence as applied 9 to unit-of-prosecution cases. Swafford v. State , 112 N.M. 3, 8, 810 P.2d 1223, 1228 10 (1991) (describing unit-of-prosecution cases as ones in which “the defendant has been 11 charged with multiple violations of a single statute based on a single course of 12 conduct”). In this context, multiple punishments will violate double jeopardy unless 13 (1) “the [L]egislature intended to create a separate offense for each violation of the 14 statute that occurred during a continuous series of events[,]” or (2) the violations are 15 in some sense distinct. State v. Haskins , 2008-NMCA-086, ¶¶ 16-17, 144 N.M. 287, 16 186 P.3d 916. Because our Supreme Court ha s held that the Legislature has not 17 unambiguously declared its intention to puni sh separately each penetration, we must 188 determine whether Defendant’s anal penetration of the victim was in some sense 1 distinct from the vaginal penetration. Id. 2 There are six factors to consider indetermining distinctness according to 3 Herron v. State , 111 N.M. 357, 805 P.2d 624 (1991). Those factors are: 4 (1) temporal proximity of penetrati ons (the greater the interval between 5 acts the greater the likelihood of separate offenses); (2) location of the 6 victim during each penetration (movement or repositioning of the victim 7 between penetrations tends to show separate offenses); (3) existence of 8 an intervening event; (4) sequencing of penetrations (serial penetrations 9 of different orifices, as opposed to repeated penetrations of the same 10 orifice, tend to establish separate offenses); (5) defendant’s intent as 11 evidenced by his conduct and uttera nces; and (6) number of victims 12 (although not relevant here, multiple victims will likely give rise to 13 multiple offenses). 14 Id. at 361, 805 P.2d at 628. The Herron Court clarified that none of these factors 15 alone is determinative, “[e]xcept for penetrations of separate orifices with the same 16 object,” which alone can establish distinct acts. Id. at 362, 805 P.2d at 629. 17 In evaluating Defendant’s claim, whic h was raised as a pretrial motion to 18 dismiss, we accept the State’s factual allegations and review the legal determination 19 de novo. State v. Johnson , 2009-NMSC-049, ¶¶ 3-4, 147 N.M. 177, 218 P.3d 863 20 (“Since this matter is before us on review of [the d]efendant’s motion to dismiss, we 21 briefly set forth the allegations in the [p rosecution’s] criminal complaint. . . . A 22 defendant’s pretrial motion to dismiss cannot contradict allegations of fact supported 23 by probable cause; to do so would raise a factual issue for the jury to decide.” (internal 249 quotation marks and citations omitted)). Moreover, we apply a de novo standard of 1 review to the constitutional question of whether there has been a double jeopardy 2 violation. Andazola , 2003-NMCA-146, ¶ 14. 3 Reviewing the facts as alleged by the victim, along with consistent details 4 provided by Defendant himself, the result under Herron is clear. Defendant’s serial 5 penetrations of the victim’s two different orifices (anus and vagina), with two 6 different objects (penis and finger), are distinct acts and double jeopardy does not 7 prohibit their separate punishment. Herron identified only one scenario that provides 8 a definitive answer on the issue of distinctne ss—penetrations of different orifices with 9 the same object. 111 N.M. at 362, 805 P.2d at 629. Although De fendant penetrated 10 different orifices with different objects, he did not do so simultaneously, and thus 11 Defendant’s scenario is conceptually equivalent to the one specifically identified in 12 Herron as determinative. The factual scenario alone, serial penetration of different 13 orifices, is enough to surmount any double jeopardy concern. But this determination 14 is bolstered by the fact that the remaining Herron factors do not weigh in Defendant’s 15 favor. 16 The fact that Defendant targeted one victim may indicate a single act occurred. 17 But Defendant’s ejaculation during his penetration of the victim’s anus, the cessation 18 of pain as reported by the vi ctim, and her attempt to return to sleep, all occurring 1910 before the subsequent penetration of the victim’s vagina, weigh in favor of the 1 existence of an intervening event and mark a break in time sufficient to divorce the 2 two penetrations into distinct criminal act s. Additionally, Defendant admitted that the 3 victim turned over between penetrations, suggesting some change in position, which 4 under Herron is indicative of two offenses. Id. (“Two offenses were committed upon 5 returning to the living room—one digital penetration of the vagina and, after 6 repositioning the victim, one pen ile penetration of the vagi na.”). Finally, Defendant’s 7 intent, as evidenced by his conduct, does not appear to clearly indicate a single act, 8 especially where he moved fro m penile penetration of the anus resulting in ejaculation 9 to digital penetration of the vagina, w ith no apparent connection between the two 10 violations. 11 Defendant’s arguments with respect to State v. Ervin , 2008-NMCA-016, 143 12 N.M. 493, 177 P.3d 1067, State v. Segura , 2002-NMCA-044, 132 N.M. 114, 45 P.3d 13 54, and State v. Laguna , 1999-NMCA-152, 128 N.M. 345, 992 P.2d 896, are equally 14 unpersuasive. Segura and Laguna analyzed double jeopardy with respect to multiple 15 charges for repeated attempts of criminal sexual contact of a minor to a single private 16

area. Segura , 2002-NMCA-044, ¶ 9; Laguna , 1999-NMCA-152, ¶ 38. In the criminal 17 sexual penetration context, those scenarios would be tantamount to repeated attempts 1811 to penetrate the same orifice, which is legally different from the multiple orifice 1 penetrations endured by the victim here. 2 Ervin , on the other hand, does address distinct areas of the body—similar to 3 multiple orifice penetration, but is inapp licable due to the distinct treatment of 4 simultaneous and serial contacts or penetrations. The Ervin Court noted that “[the 5 d]efendant massaged [the c]hild’s nude body, touching her breasts, buttocks, and 6 vagina [in] one continuous c ourse of conduct . . . . Ther e was no lapse in time between 7 the times [the d]efendant touched [the c] hild’s different body parts and no intervening 8 event.” 2008-NMCA-016, ¶ 46. In stark c ontrast, the victim in the present case 9 described a clear break between the two penetrations she endured and therefore 10 Ervin ’s reasoning does not control our analysis here. In a pene tration context, Ervin 11 is equivalent to simultaneous penetration of different orifices which could constitute 12 a single act of penetration, depe nding on the factual circumstances. Herron , 111 N.M. 13 at 361, 805 P.2d at 628 (“Simultaneous penetration of different orifices with different 14 objects raises a similar problem.”). Herron clearly distinguished the Ervin -like 15 scenario of simultaneous penetrations from “s erial penetrations of different orifices” 16 that “tend to establish separate offenses[.]” Id. 17 Conclusion 18 The convictions are affirmed. 1912 IT IS SO ORDERED. 1

__________________________________ 2 JONATHAN B. SUTIN, Judge 3 WE CONCUR: 4

___________________________________ 5 CELIA FOY CASTILLO, Chief Judge 6

___________________________________ 7 MICHAEL E. VIGIL, Judge 8