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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from 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. A-1-CA-35459 4 THOMAS GARCIA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Charles W. Brown, District Judge 8 Hector H. Balderas, Attorney General 9 Eran Sharon, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 L. Helen Bennett, P.C. 13 L. Helen Bennett 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 ZAMORA, Judge. 182 {1} Defendant Thomas Garcia appeals his convictions of two counts of fourth 1 degree criminal sexual penetr ation, contrary to NMSA1978, Section 30-9-11(G)(1) 2 (2009) (CSP IV). Defendant rais es two arguments. He contends that the district court 3 committed reversible error by instructing th e jury on the uncharged offense of CSP 4 IV and that Defendant’s two CSP IV convictions violated his constitutional protection 5 against double jeopardy. We hold that the jury was properly instructed and that one 6 of Defendant’s convictions for CSP IV must be vacated because Defendant’s right to 7 be free from double jeopardy was violated. 8 BACKGROUND 9
{2} Victim and her younger sister were ba bysat by their older sister, K.M., while 10 their mother worked an overnight shift. K.M . lived in an apartment with her boyfriend, 11 Casey Valdez. Defendant is a cousin to Mr. Valdez and was visiting. The group spent 12 the evening together and eventually settle d in to watch movies. After K.M. and Mr. 13 Valdez went to sleep in the bedroom, De fendant engaged in sexual activity with 14 Victim, who was then thirteen years of age. 15
{3} As a result of the incident with Victim , Defendant was charged with two counts 16 of criminal sexual penetration in the sec ond degree, contrary to Section 30-9-11(E)(1) 17 (CSP II). In relevant part, th e grand jury indictment mistakenly referenced Section 30- 18 9-11(F), rather than Section 30-9-11(E)(1). As acknowledged by Defendant, that error 193 is not legally relevant and does not form the basis of a challenge by Defendant. See 1 Rule 5-204(A) NMRA (stating that an erro r or imperfection in an indictment that 2 “does not prejudice the substantial rights of the defendant upon the merits” shall not 3 invalidate the indictment or affect the trial or judgment). Our reference will be to 4 Section 30-9-11(E)(1). At trial, after the State concluded its presentation of evidence 5 but prior to formally resting, the State moved to “include the le sser[]included offense 6 of [CSP IV].” Over the objection of Defendant , the district court instructed the jury 7 on two counts of CSP IV as lesser included charges to the two charged counts of CSP 8 II. The jury convicted Defe ndant of two count s of CSP IV. Additional facts will be 9 provided as necessary in the discussion of the issues. 10 Lesser Included Charge Instruction Was Appropriate 11
{4} Defendant contends that the CSP IV ju ry instruction was improper because it 12 “violat[ed Defendant]’s substantive right to mount a defense to the charges as set forth 13 by the grand jury,” in that Defendant was “ not . . . on notice that he would have to 14 prepare a defense to the cl aim that, even if [Victim] voluntarily consented to the 15 [sexual] acts . . ., she was between the ages of thirteen and eighteen when [the 16 incident] occurred.” This argument appears to be grounded in the contention that it 17 was error for the district court to determine that CSP IV was a lesser included charge 18 of CSP II. 194 {5} Defendant appears to argue that the di strict court improperly applied Rule 5- 1 204(C) when it instructed the jury on the ch arge of CSP IV. Our review of the record 2 reflects that, although there was some initialambiguity to the State’s request, the 3 district court concluded that it would “allow [the charge of CSP IV] to go to the jury 4 as an included offense.” Whether the distri ct court committed error by instructing the 5 jury on CSP IV as “an uncharged lesser in cluded offense [of CSP II] is a question of 6 law[,] which we review de novo.” State v. Collins , 2005-NMCA-044, ¶ 8, 137 N.M. 7 353, 110 P.3d 1090, overruled on other groundsby State v. Willie , 2009-NMSC-037, 8 ¶ 18, 146 N.M. 481, 212 P.3d 369. 9
{6} A request by the state for a jury instruction on a lesser included charge 10 implicates a defendant’s due process right to notice of the crime against which he 11 must defend. See State v. Meadors , 1995-NMSC-073, ¶ 5, 121 N.M. 38, 908 P.2d 731. 12 “It is improper to instruct the jury as to a crime not formally ch arged if that crime is 13 not a lesser included offense of the crime formally charged.” State v. Johnson , 14 1985-NMCA-074, ¶ 26, 103 N.M. 364, 707 P.2d 1174. “When one offense is a lesser 15 included offense of a crime named in a ch arging document, the defendant is put on 16 notice that he . . . must defend not only agai nst the greater offense as charged but also 17 against any lesser included offense.” State v. Montoya , 2015-NMSC-010, ¶ 43, 345 18 P.3d 1056 (internal quotation marks and citati on omitted). “A lesser[ ]included offense 195 is a less serious crime than the one char ged, but one that an accused necessarily 1 committed in carrying out the more serious crime.” Id. ¶ 39 (internal quotation marks 2 and citation omitted). 3
{7} In Meadors , our Supreme Court articulated th e analytical framework that we 4 apply to determine whether a crime is a lesser included offense. See 1995-NMSC-073, 5 ¶¶ 6, 10-12, 18. When, as here, the State requests an instructi on on a lesser included 6 offense, “the [district] court should . . . grant the request when the statutory elements 7 of the lesser crime are a subset of the st atutory elements of the charged crime.” Id. ¶ 8 12. This inquiry into the relationship betw een the elements of the lesser and greater 9 crimes is known as the “strict elements test.” Id. ¶¶ 6, 12. If one statute is not 10 subsumed within the other, th e strict elements test is not satisfied. We then apply the 11 cognate approach for further analysis. Id. ¶ 12. 12
{8} Under the cognate approach, the request for a lesser included instruction should 13 be granted if: 14 (1) the defendant could not have committed the greater offense in the 15 manner described in the charging doc ument without also committing the 16 lesser offense, and therefore notice of the greater offense necessarily 17 incorporates notice of the lesser offens e; (2) the evidence adduced at trial 18 is sufficient to sustain a convicti on on the lesser offense; and (3) the 19 elements that distinguish the lesser and greater offenses are sufficiently 20 in dispute such that a jury rationally could acquit on the greater offense 21 and convict on the lesser. 226 Id. In applying the cognate approach, the district court “examine[s] not only the 1 offense alleged in the charging instrument but also the evidence adduced at trial.” Id. 2 ¶ 11 (internal quotation marks and citation omitted). Put another way, for an offense 3 to be “necessarily included [under the cognate approach], the greater offense cannot 4 be committed under the facts of the case as alleged in the charging document and 5 supported by the evidencewithout also committing the lesser offense.” Id. ¶ 10 6 (alteration, internal quotation marks, and citation omitted). 7
{9} Last, in Meadorsour Supreme Court emphasized that when the state requests 8 a lesser included offense instruction, the di strict court should perform “an independent 9 analysis of the notice issue [and, i]f the j udge determines for any reason that under the 10 circumstances of th[e] case” the notice provided to the defendant was constitutionally 11 inadequate, the trial court should deny the request. 1995-NMSC-073, ¶ 18. 12 Strict Elements Test 13
{10} Our application of the strict elements test requires the comparison of the two 14 statutory provisions at issue. Defendant was indicted under Section 30-9-11(E)(1), 15 which provides, in relevant part, that “[ c]riminal sexual penetration in the second 16 degree consists of all criminalsexual penetration perpetrated . . . by the use of force 17 or coercion on a child thirteen to eighteenyears of age.” The State requested jury 18 instructions based on Section 30-9-11(G)(1), which provides, in relevant part, that 197 “[c]riminal sexual penetration in the fourthdegree consists of all criminal sexual 1 penetration . . . perpetrated on a child thirteen to sixteen years of age when the 2 perpetrator is at least eighteen years of age and is at least four years older than the 3 child and not the spouse of that child.” Thes e statutes are not nested because, in the 4 abstract, the greater crime can be co mmitted without committing the lesser crime. 5 Compare § 30-9-11(E)(1) (punishing, as a second degree felony, criminal sexual 6 penetration where the victim is thirteen to eighteen years of age, without reference to 7 the age of the perpetrator, and without re ference to the age differential between the 8 victim and the perpetrator), with§ 30-9-11(G)(1) (requiring, for punishment as a 9 fourth degree felony, that the victim not be older than sixteen year s of age, that the 10 perpetrator be at least eighteenyears of age, and that th e age differential between the 11 perpetrator and the victim be at least four years). Accordingly, the statutory elements 12 test is not met. See State v. Munoz , 2004-NMCA-103, ¶ 13, 136 N.M. 235, 96 P.3d 13 796 (“Under the strict elements test, if it is possible, considering the statutory elements 14 of the charged offense in the abstract , to hypothesize a manner of committing the 15 greater offense without also committing the lesser offense, then the lesser offense is 16 not necessarily included in the greater.”). We therefore proceed to analyze the issue 17 under the cognate approach. 188 {11} Our initial consideration is whether De fendant “could not have committed the 1 greater offense in the manner describe d in the charging document without also 2 committing the lesser offense.” Meadors , 1995-NMSC-073, ¶ 12. The State alleged 3 in the indictment that Victim was between th irteen and eighteen years of age. At trial, 4 testimony was presented that Victim was, infact, thirteen years old. Testimony was 5 also presented that Defendant was made aw are of Victim’s age just after the sexual 6 activity. Thus, the indictment contemplatedthat Victim was between the ages of 7 thirteen and sixteen, as required under CSP IV, and the evidence attrial established 8 that she was thirteen years of age at the time of the incide nt. The other aspects of the 9 lesser offense that are not subsumed within the greater charge—that Defendant was 10 at least eighteen years of age and four y ears older than Victim—relate to Defendant’s 11 age. The indictment does not refer to Defe ndant’s age. However, testimony presented 12 at trial indicated that Defendant was thirty- one years of age at the time of the incident, 13 and, moreover, there is nothing in the recordto suggest otherwis e. Thus, we conclude 14 from the allegations in the indictment and the evidence presented at trial that 15 Defendant could not have committed the charged crime of CSP II without also 16 committing the crime of CSP IV. See id. ¶¶ 16-17, 19-20 (stating that the cognate 17 approach to determining whether one crimin al offense is a lesser included offense of 18 another “looks to the evidence adduced at trial to help interpret the applicability of 199 those elements set out in the instrument”) . Turning to the second and third factors 1 from Meadors , we conclude that the evidence adduced at trial was sufficient to sustain 2 the conviction for CSP IV and that the issue of force was sufficiently in dispute that 3 a reasonable jury could have acquitted De fendant of CSP II wh ile convicting him of 4 CSP IV. Accordingly, we conc lude under the specific facts of this case that the district 5 court did not commit error by instructing the jury on CSP IV as a lesser included 6 charge of CSP II. 7 Defendant Was Put on Notice of the Lesser Included Offense 8
{12} Given the notice concerns raised by a request from the State for a lesser 9 included offense instruction, we turn to review whether Defendant received 10 constitutionally adequate noti ce of the lesser offense. See State v. Villa , 2004-NMSC11 031, ¶ 12, 136 N.M. 367, 98 P. 3d 1017 (emphasizing that “when ruling on a motion 12 by the [s]tate to instruct the jury on a lesser[]included offense, the [district] court 13 should conduct an independent inquiry to determine whether the defendant has 14 received constitutionally adequate notice of the lesser offense”); Meadors , 1995- 15 NMSC-073, ¶ 18 (“If [upon conduc ting an independent analysis of the notice issue] 16 the judge determines for any reason that under the circumstan ces of that case a 17 defendant has not received constitutionally adequate notice of a lesser offense, then 18 the judge should deny the instru ction.”). We observe that, prior to trial, Defendant was 1910 aware of the age of Victim, his own age, and, as a consequence, the age differential 1 between Victim and himself. Furthermore, it was a significant aspect of Defendant’s 2 theory of the case that Victim particip ated in the sexual activity of her own 3 volition—that is, without force or coercion—sowe cannot say that a charge predicated 4 on sexual activity with Victim that was neith er forced nor coercedwas a surprise. We 5 also observe that Defendant did not suggest during his objection at trial to the CSP IV 6 instruction or on appeal that he could havechallenged Victim’s age, his age, or that 7 the sexual activity occurred. See State v. Hernandez , 1999-NMCA-105, ¶ 30, 127 8 N.M. 769, 987 P.2d 1156 (concluding that the defendant’s right to notice of the 9 charges against him was violated where the jury was instructed on an uncharged lesser 10 included offense where the defendant conte nded that he “would have put on specific 11 evidence” that contradictedthe evidence offered by the state to prove uncharged 12 elements of the lesser charge). The noti ce Defendant received th at he faced liability 13 for CSP IV was constitutionally adequate . Accordingly, our review of the 14 “independent analysis [by the district court] of the notice issue[,]” indicates that 15 Defendant’s constitutional right s were not violated by facing liability for CSP IV and 16 has not undermined this Court’s conclusion that CSP IV was a lesser included charge 17 of CSP II under the specific ci rcumstances of this case. Meadors , 1995-NMSC-073, 18 ¶ 18. 1911 Double Jeopardy 1
{13} Defendant argues that his convictions fo r two counts of CSP IV violated double 2 jeopardy under the facts of this case. Defe ndant was convicted for two violations of 3 the same statute based on the same cour se of conduct, which raises a unit of 4 prosecution issue. See Swafford v. State , 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 5 1223 (stating that unit of prosecution double jeopardy issues arise when “the 6 defendant has been charged with multiple violations of a single statute based on a 7 single course of conduct”). Our review is de novo. See State v. Swick , 2012-NMSC8 018, ¶ 10, 279 P.3d 747 (“A double jeopardy ch allenge is a cons titutional question of 9 law which we review de novo.”). 10
{14} In a unit of prosecution case, “[t]he relevant inquiry . . . is whether the 11 [L]egislature intended punishment for the en tire course of conduct or for each discrete 12 act.” Swafford , 1991-NMSC-043, ¶ 8. Such cases “aresubject to a two-step analysis 13 that courts utilize to discern legislative intent.” State v. Bernard, 2015-NMCA-089, 14 ¶ 17, 355 P.3d 831. We first “analyze the statute at issue to determine whether the 15 Legislature has defined the unit of prosecution.” Swick , 2012-NMSC-018, ¶ 33. If the 16 unit of prosecution is clear from the analysis of the language of the statute, we need 17 not inquire further. See id. If not, we proceed to “determi ne whether a defendant’s acts 1812 are separated by sufficient indicia of dis tinctness to justify multiple punishments.” Id. 1 (internal quotation marks and citation omitted). 2
{15} Our analysis of whether acts punishedunder Section 30-9-11 are sufficiently 3 distinct to justify multiple punishments is informed by the following six factors: 4 (1) temporal proximity of penetrati ons (the greater the interval between 5 acts the greater the likeli hood of separate offenses ); (2) location of the 6 victim during each penetr ation (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 establis h separate offenses); (5 ) [the] defendant’s intent 11 as evidenced by his conduct and utterances; and (6) number of victims[.] 12 Herron v. State , 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624. This analysis 13 “amounts to a canon of construction designe d to ascertain legislative intent.” Bernard , 14 2015-NMCA-089, ¶ 22 (internal quotation mark s and citation omitted). In the absence 15 of “a clear indication of legislative inte nt, we apply . . . a presumption against 16 imposing multiple punishments for acts that are not sufficiently distinct”—in other 17 words, we apply the rule of lenity. State v. DeGraff , 2006-NMSC-011, ¶ 32, 139 N.M. 18 211, 131 P.3d 61. 19
{16} Turning to this case, the unit of prosecu tion is not spelled out in the statute at 20 issue. See Herron , 1991-NMSC-012, ¶ 8 (concluding that Section 30-9-11 “does not 21 indicate unambiguously whether the [L]egisl ature intended . . . to create a separate 22 offense for each penetration occurring duri ng a continuous sexual assault”). Thus, we 2313 look for indicia of distinctness, indulging all presumptions in favor of the verdict in 1 reviewing the relevant facts. See State v. McClendon , 2001-NMSC-023, ¶ 5, 130 N.M. 2 551, 28 P.3d 1092 (“In reviewing the facts of the case to determine if each penetration 3 is distinct from the others, we must indulge in all presumptions in favor of the 4 verdict.” (internal quotati on marks and citation omitted )). Defendant was convicted 5 of CSP IV by insertion of his finger into the vulva or vagina of Victim. We first note 6 that the State does not analyze this case through the prism of the six Herronfactors, 7 which puts the State at a disadvantage. Th e first factor we must examine is the 8 temporal proximity of the penetrations. Th e most favorable testimony to the State was 9 provided by Victim, who testified on this issue as follows: 10 [Victim]: His face was between mylegs and his hands were on 11 my thighs. 12 [Prosecutor]: What was he doing with his face? 13 [Victim]: With his face he was licking me. 14

. . . . 15 [Prosecutor]: And what about his hands? What were his hands 16 doing? 17 [Victim]: His hands, they were like pushing my legs open, like 18 holding them open. 19 [Prosecutor]: Did his hands do anything else? 20 [Victim]: They were touching my vagina. 2114 Thus, even when the facts are viewed favorably to the verdict, the acts of penetration 1 and cunnilingus appear to have been veryclose in time. Moreover, there is no 2 indication that Defendant moved or repositione d Victim, that there was an intervening 3 event, or that any of the other factors were implicated. See Herron , 1991-NMSC-012, 4 ¶ 15 (establishing a six-factor analysis todetermine whether a defendant’s acts were 5 sufficiently distinct to justify multiple punishments). We concl ude that Defendant’s 6 acts were not separated by sufficient indicia of distinctness to justify two convictions 7 for violation of Section 30-9-11(G)(1). See Swick , 2012-NMSC-018, ¶ 33 (stating that 8 “a defendant’s acts [must be] separated by sufficient indicia of distinctness to justify 9 multiple punishments” (internal quotation marks and citation omitted)); McClendon , 10 2001-NMSC-023, ¶ 8 (holding that the defendant’s two convictions for fellatio did not 11 violate the defendant’s right to be free from double jeopardy where there were 12 significant intervening acts between the two instances, and there was “a sufficient time 13 interval between the acts” such that the McClendonCourt concluded that “the two acts 14 of fellatio were sufficiently distinct in both time and location”). 15 CONCLUSION 16
{17} The district court properly instructed th e jury on the CSP IV charges as lesser 17 included charges of CSP II and we therefore affirm. We further hold Defendant’s right 1815 to be free from double jeopardy was violated . As a result, one of Defendant’s two 1 convictions for CSP IV must be vacated. 2
{18} IT IS SO ORDERED. 3

4 M. MONICA ZAMORA, Judge 5 WE CONCUR: 6

7 LINDA M. VANZI, Chief Judge 8

9 DANIEL J. GALLEGOS, Judge 10