State v. Gallegos

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 11:49:14 2011.07.11

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-027

Filing Date: June 15, 2011

Docket No. 31,204

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

LAWRENCE GALLEGOS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Eugenio S. Mathis, District Judge

Law Office of Craig C. Kling
Craig Charles Kling
San Diego, CA

for Appellant

Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM

for Appellee

OPINION

BOSSON, Justice.

{1} In this first-degree murder case, we affirm the convictions for murder, aggravated
arson, and conspiracy to commit murder. We find, however, that Defendant’s convictions
for two other conspiracies violate constitutional principles against double jeopardy. In so
doing, we apply for the first time our unit of prosecution analysis from double jeopardy
jurisprudence to multiple conspiracy convictions. In the course of that analysis, we clarify
existing case law and set a new course for the future application of double jeopardy
principles to multiple conspiracy convictions.

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BACKGROUND

{2} A jury convicted Defendant of one count of first-degree murder in violation of
NMSA 1978, Section 30-2-1(A) (1994); one count of kidnapping in violation of NMSA
1978, Section 30-4-1 (2003); one count of aggravated arson in violation of NMSA 1978,
Section 30-17-6 (1963); and three counts of conspiracy in violation of NMSA 1978, Section
30-28-2 (1979). The trial court vacated Defendant’s kidnapping conviction because it was
subsumed within the first-degree murder conviction. Defendant was sentenced to life
imprisonment for first-degree murder, he was given a fifteen-year concurrent sentence for
conspiracy to commit first-degree murder, a nine-year consecutive sentence for aggravated
arson, a three-year consecutive sentence for conspiracy to commit aggravated arson, and a
nine-year consecutive sentence for conspiracy to commit kidnapping.

{3} Defendant raises numerous issues on appeal. Defendant contends (1) there is
insufficient evidence of deliberate first-degree murder, (2) there is insufficient evidence to
support a conspiracy to commit murder, (3) his convictions on multiple counts of conspiracy
violate prohibitions against double jeopardy, (4) the trial court improperly denied
Defendant’s request for a continuance, (5) all convictions rest on testimony that is inherently
improbable as a matter of law, and (6) the trial court improperly denied Defendant’s motion
for new trial based on newly discovered evidence.

{4} We have jurisdiction to review Defendant’s direct appeal pursuant to Article VI,
Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA. See State v.
Smallwood, 2007-NMSC-005, ¶ 6, 141 N.M. 178, 152 P.3d 821 (“[O]ur appellate
jurisdiction extends to appeals from district court judgments imposing a sentence of life
imprisonment or death.”). We first conclude that substantial evidence supports these
verdicts. We dispose of issues 4-6 with only brief discussion. The third issue, multiple
counts of conspiracy and double jeopardy, occupies most of our attention in this Opinion.
We reverse all but one conspiracy conviction and remand to the district court for further,
appropriate action.

{5} The record at trial supports the following factual summary. On September 6, 2003,
at approximately 11 p.m., Juan Alcantar (“Victim”) was socializing at Richard “Red”
Anaya’s home in Taos when someone at the residence placed a phone call to the cell phone
of Ivan Romero, also known as “Diablo.” A little after midnight, September 7, 2003, Victim
and Steve Tollardo arrived at a local Taos bar, where security denied them entry. Before
leaving the premises, Victim got into a fight with Ivan Romero after Tollardo “called out”
Romero, who was inside that bar. Before security broke up the fight, Ivan Romero struck
Victim. Victim’s girlfriend testified at trial that Victim, at the time, owed Ivan Romero
money for drugs.

{6} After leaving the bar, Victim and Tollardo returned to Anaya’s home. At
approximately 1:15 a.m., someone placed another phone call from Anaya’s home to Ivan

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Romero’s cell phone. At approximately 1:45 a.m., Victim went to Allsup’s, during which
time someone placed an additional phone call from Anaya’s home to Ivan Romero’s cell
phone. Around the same time, Defendant, along with Luis “Tablas” Trujillo and Raquel
“Quela” Gonzales, Defendant’s girlfriend or wife at the time, stopped by Anaya’s home after
the bars were closed. After Defendant, Trujillo, and Gonzales arrived at Anaya’s home, one
or two phone calls were placed between Ivan Romero’s cell phone and Anaya’s home.

{7} Soon after these phone calls, “out of nowhere,” Defendant and Trujillo attacked
Victim. After the assault began, Defendant instructed Gonzales, Anaya, and another
individual to wait in the back bedroom. Thirty to forty-five minutes later, Defendant came
to the back room and instructed Gonzales to clean up Victim’s blood from the floor. The
only people in the living room and kitchen area at that time were Defendant and Victim.
Defendant remained at Anaya’s home in charge of Victim, who was still alive.

{8} At approximately 3:00 a.m. on September 7, Tollardo and Trujillo arrived at Elias
Romero’s shack. Tollardo and Trujillo told Elias Romero that Victim was tied up at Anaya’s
home and was threatening to kill Ivan Romero, Elias Romero’s son. Elias Romero loaded
a syringe with heroin and instructed Michelle Martinez, his girlfriend at the time, “[t]o go
take care of it.” Ultimately, Martinez testified for the State, and much of this evidentiary
recitation comes from her testimony. As a long time drug user, Martinez knew that the
amount of heroin she was given was a lethal dose and that Elias Romero was asking her to
kill Victim. When Tollardo and Trujillo returned to Anaya’s home with Martinez, Victim
was on the floor with his hands tied behind his back, and Defendant was standing over him
with a knife.

{9} When Victim saw Michelle Martinez come into the house, he began to ask for her
help. Martinez, who was wearing gloves, immediately pulled out the heroin-filled syringe.
When Victim saw the syringe, he began crying in fear for his life. Martinez attempted to
grab Victim’s arm, but he managed to kick her away. As Defendant continued to stand over
him with a knife, Victim eventually stopped resisting, and Martinez was able to inject the
full dose of heroin. Following injection, Victim continued crying and asking for help.
Tollardo responded by telling Victim that “he shouldn’t have fucked with Diablo.”
Defendant told Victim to ask for forgiveness.

{10} Once the heroin had taken effect, Defendant, Tollardo, and Trujillo moved Victim
onto a tablecloth, at which point Victim began to moan and toss about. Michelle Martinez
was of the opinion that sudden movements can potentially jolt an individual out of a heroin
overdose, and therefore she instructed Defendant and the others to prevent Victim from
moving. Several phone calls were again placed from Anaya’s home to Ivan Romero’s cell
phone.

{11} Defendant, Martinez, and Tollardo eventually carried Victim, who at this point was
unconscious, to Victim’s car, where he was placed in the fully-reclined passenger seat.
Defendant sat on top of Victim, and Martinez drove Victim’s car to the parking lot of a

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remote, local church. Once there, Victim again started making noises. In response,
Defendant and Martinez tried to kill Victim with other means. Specifically, Defendant tried
to snap Victim’s neck at least three times, and Martinez tried to suffocate Victim with a
plastic shopping bag. When these methods proved ineffective, Defendant removed the
shoelace he had been using as a belt and attempted to strangle Victim. This also proved
ineffective. Just as Defendant and Martinez were preparing to throw Victim into nearby
brush, Tollardo and Trujillo arrived in a separate car. Defendant and Martinez got into
Trujillo’s car and the group drove off, leaving Victim alone and unconscious, or barely
conscious, in the passenger seat of his car.

{12} After stopping at Allsup’s, Defendant, Martinez, Tollardo, and Trujillo returned to
Elias Romero’s shack. As they were driving, Defendant mentioned that fingerprints had
been left at the scene and suggested returning to the church to set Victim on fire. When the
group arrived at the shack, Elias Romero asked if they had done it, to which they responded
in the affirmative. After someone again mentioned burning Victim, Elias Romero instructed
Martinez to get some lantern fuel, which she retrieved and placed on a table. Defendant took
the fuel and left the shack with Tollardo and Trujillo.

{13} After some time, the three returned to the shack bragging about setting Victim on
fire. Tollardo said that he had started the blaze with a cherry bomb. They also mentioned
driving to the house of Ivan Romero, who paid Defendant, Tollardo, and Trujillo $50 each.
Shortly thereafter, all three men left the shack in Trujillo’s car. Several hours later, a series
of phone calls was placed from Trujillo’s residence to Ivan Romero’s cell phone and then
from Ivan Romero’s cell phone to the same house.

{14} At trial, Victim’s cause of death was attributed to both the drug overdose and the
church parking lot fire. Victim’s lungs contained residue of smoke and soot, indicating that
Victim was still alive when he was set ablaze.

DISCUSSION

Sufficient Evidence of Deliberation to Support First-Degree Murder

{15} Defendant claims the record is insufficient to support a first-degree murder
conviction. In applying our standard of review, we first “‘view the evidence in the light
most favorable to the state, resolving all conflicts . . . and indulging all permissible
inferences . . . in favor of the verdict.’” State v. Graham, 2005-NMSC-004, ¶ 6, 137 N.M.
197, 109 P.3d 285 (quoting State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319
(1988)). We then “‘determine[] whether the evidence, [when] viewed in this manner, could
justify a finding by any rational trier of fact that each element of the crime charged has been
established beyond a reasonable doubt.’” Id. (quoting State v. Sanders, 117 N.M. 452, 456,
872 P.2d 870, 874 (1994)). We are at all times mindful of “the jury’s fundamental role as
factfinder in our system of justice and the independent responsibility of the courts to ensure
that the jury’s decisions are supportable by evidence in the record, rather than mere guess

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or conjecture.” State v. Flores, 2010-NMSC-002, ¶ 2, 147 N.M. 542, 226 P.3d 641.

{16} Our Legislature has defined first-degree murder as “any kind of willful, deliberate
and premeditated killing.” Section 30-2-1(A)(1).

“Deliberate intention” is intention that is “arrived at or determined upon as
a result of careful thought and the weighing of the consideration for and
against the proposed course of action.” [State v.] Cunningham, 2000-NMSC-
009, ¶ 25, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation
omitted). We have emphasized that circumstantial evidence alone can
amount to substantial evidence. Id. ¶ 29; see also [State v.] Rojo, 1999-
NMSC-001, ¶ 23, 126 N.M. 438, 971 P.2d 829. Indeed, “[i]ntent is
subjective and is almost always inferred from other facts in the case . . . .”
[State v.] Duran, 2006-NMSC-035, ¶¶ 7-8, 140 N.M. 94, 140 P.3d 515
(internal quotation marks and citation omitted) (“Deliberate intent may be
inferred from the particular circumstances of the killing . . . .”).

Flores, 2010-NMSC-002, ¶ 19.

{17} To demonstrate that he did not act with the requisite “deliberate intent,” Defendant
emphasizes that he was not at Elias Romero’s shack when the plot to kill Victim was likely
hatched and that there is no direct evidence showing Elias Romero passed along instructions
for Defendant to harm Victim in any way. Defendant also argues that, after Trujillo and
Tollardo returned to Anaya’s home with Michelle Martinez, Martinez immediately pulled
out a syringe and injected Victim with heroin, leaving Defendant with no opportunity to
weigh the consequences of his actions. Defendant additionally claims that his multiple
attempts to kill Victim in the church parking lot were not the legal cause of death and,
therefore, do not support his conviction for murder. Even assuming the fire could have been
the cause of death, Defendant insists that he did not intend to kill Victim but only meant to
destroy incriminating evidence by setting the fire.

{18} The State responds that Defendant is engaged in a classic case of “divide-and-
conquer,” whereby each piece of evidence is viewed in isolation, ignoring reasonable
inferences from the totality of the circumstances that support guilt. See Graham, 2005-
NMSC-004, ¶ 13. We agree with the State.

{19} The jury reasonably could have concluded that Defendant possessed a deliberate
intent to kill throughout the evening. First, the jury could have determined that Defendant
possessed a deliberate intent to kill even before Michelle Martinez arrived at Anaya’s home
and that his intent continued through Victim’s death. Such a finding is supported by the
timing of the phone calls placed between Anaya’s home and Ivan Romero’s cell phone;
Defendant’s participation in the initial, unprovoked assault; and his subsequent acts of
clearing witnesses from the area, covering up evidence of the assault, and preparing the
house for subsequent criminal conduct. See State v. Sosa, 2000-NMSC-036, ¶ 9, 129 N.M.

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767, 14 P.3d 32 (“Intent is subjective and is almost always inferred from other facts in the
case, as it is rarely established by direct evidence.” (internal quotation marks and citation
omitted)).

{20} The jury could have also determined that Defendant continued to possess a deliberate
intent to kill when Martinez injected Victim with heroin. By this time, Defendant had been
standing guard over the bound Victim with a knife while awaiting the return of Tollardo and
Trujillo. Defendant continued his menacing conduct as a gloved Martinez struggled to inject
the heroin. Then, when Victim began to cry in fear for his life, Defendant taunted him.

{21} Defendant’s actions at Anaya’s home, which actually took place over the course of
a few hours, clearly support the jury’s conclusion that Defendant had a sufficient opportunity
to weigh the consequences of his actions. See id. Of course, Defendant’s culpability did not
end with the events at Anaya’s home. When viewed in the light most favorable to the
verdict, Defendant’s subsequent conduct in the church parking lot, including his attempt to
snap Victim’s neck and strangle him with a shoelace, further supports a reasonable finding
by the jury that Defendant continued to possess a deliberate intent to kill as the evening
unfolded.

{22} Defendant’s contention that he did not intend to kill Victim when starting the fire is
also unavailing. The jury reasonably could have found that Defendant and his co-
conspirators knew Victim was alive and returned to the church parking lot to finish the task.
Indeed, Martinez testified that Victim was alive when they initially left him in the car at the
church parking lot. Furthermore, a forensic pathologist testified that Victim was breathing
when the fire started. The jury could have used this evidence to conclude that after several,
less-than-successful attempts to kill Victim, Defendant, along with Tollardo and Trujillo,
returned to the church parking lot with the deliberate intent to finish the job.

{23} “Typically, criminal liability is premised upon a defendant’s culpable conduct, the
actus reus, coupled with a defendant’s culpable mental state, the mens rea.” State v. Padilla,
2008-NMSC-006, ¶ 12,143 N.M. 310, 176 P.3d 299; accord United States v. Bailey, 444
U.S. 394, 402 (1980). Here, the forensic pathologist opined that Victim’s death was caused
by drug intoxication with inhalation of smoke and soot as a “significant contributing
condition[].” Based on this testimony, the jury reasonably could have concluded that both
the heroin overdose and the fire killed Victim. See State v. Simpson, 116 N.M. 768, 772, 867
P.2d 1150, 1154 (1993) (“General principles of criminal law do not require that a
defendant’s conduct be the sole cause of the crime. Instead, it is only required that the result
be proximately caused by, or the natural and probable consequence of, the accused’s
conduct. (internal quotation marks and citation omitted)). Substantial evidence in this case
supports a finding of “concurrence” between Defendant’s actus reus and requisite mens rea
for willful, deliberate murder of Victim. See State v. Lopez, 1996-NMSC-036, ¶ 23, 122
N.M. 63, 920 P.2d 1017.

Evidence of a Conspiracy to Commit Murder

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{24} Defendant claims his conviction for conspiracy to commit first-degree murder is not
supported by substantial evidence because, again, he was not present at Elias Romero’s
shack when the agreement to kill Victim was likely formed. We review this claim for a
sufficiency of the evidence. Sanders, 117 N.M. at 456, 872 P.2d at 874.

{25} “The gist of conspiracy under the statute is an agreement between two or more
persons to commit a felony.” State v. Deaton, 74 N.M. 87, 89, 390 P.2d 966, 967 (1964).
“In order to be convicted of conspiracy, the defendant must have the requisite intent to agree
and the intent to commit the offense that is the object of the conspiracy.” State v. Varela,
1999-NMSC-045, ¶ 42, 128 N.M. 454, 993 P.2d 1280. “It is the agreement constituting the
conspiracy which the statute punishes.” State v. Gilbert, 98 N.M. 77, 81, 644 P.2d 1066,
1070 (Ct. App. 1982).

{26} That Defendant was not physically present at Elias Romero’s shack has little bearing
on whether he agreed to commit murder, because the State was not required to define the
precise moment in time when Defendant entered into a conspiratorial agreement. “A
conspiracy may be established by circumstantial evidence. Generally, the agreement is a
matter of inference from the facts and circumstances.” State v. Ross, 86 N.M. 212, 214, 521
P.2d 1161, 1163 (Ct. App. 1974). “The agreement need not be verbal, but may be shown to
exist by acts which demonstrate that the alleged co-conspirator knew of and participated in
the scheme.” State v. Trujillo, 2002-NMSC-005, ¶ 62, 131 N.M. 709, 42 P.3d 814. “[T]he
prosecutor need not prove that each defendant knew all the details, goals or other
participants.” United States v. Perez, 280 F.3d 318, 347 (3d Cir. 2002). A review of the
complete evidentiary record supports a jury finding that Defendant agreed to murder Victim,
making it immaterial whether this agreement occurred before Trujillo and Tollardo returned
to Anaya’s home with Martinez or at some point later that evening.

Defendant’s Multiple Conspiracy Convictions Constitute Double Jeopardy

{27} Defendant argues that he has been improperly convicted of three counts of
conspiracy: (1) conspiracy to commit first-degree murder, (2) conspiracy to commit
kidnapping, and (3) conspiracy to commit aggravated arson. According to Defendant, his
three convictions for violating the same conspiracy statute runs afoul of the prohibition
against double jeopardy. The State responds that the existence of one or more conspiracies
is purely a factual issue for the jury to decide, one that does not implicate double jeopardy
principles. Applying a deferential, sufficiency-of-the-evidence standard, the State relies on
substantial evidence to support each of the three conspiracy convictions.

{28} We find ourselves squarely faced with a conflict in terms of how our courts should
analyze a double jeopardy challenge to multiple conspiracy convictions. Proceeding as the
State suggests, with a pure substantial evidence review, would lead almost inevitably to
affirmance. There is no doubt that each of the three conspiracy convictions is supported by
substantial evidence in the record, but substantial evidence does not address legislative
intent. Proceeding as Defendant proposes leads to a more nuanced, analytical review, which

7
acknowledges the court’s role in determining whether multiple punishments for violation of
the same criminal statute conflicts with legislative intent.

{29} Strangely, the question of which body of law to apply to multiple conspiracy
convictions has never been directly presented to this Court, and so we are faced with an issue
of first impression. State v. Bernal, 2006-NMSC-050, ¶ 23, 140 N.M. 644, 146 P.3d 289;
cf. State v. Turner, 2007-NMCA-105, ¶¶ 10-12, 142 N.M. 460, 166 P.3d 1114; State v.
Jackson, 116 N.M. 130, 133-34, 860 P.2d 772, 775-76 (Ct. App. 1993). Before taking that
question head on, we begin with a brief discussion of basic double jeopardy principles.

{30} The double jeopardy clause of both the federal and state constitutions affords three
levels of protection to a criminal defendant. “‘It protects against a second prosecution for
the same offense after acquittal. It protects against a second prosecution for the same
offense after conviction. And it protects against multiple punishments for the same
offense.’” Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991) (quoting North
Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Defendant has been convicted three times
of violating the same conspiracy statute, and therefore this is a multiple punishment case.

{31} We classify multiple punishment cases in two ways. First, there are “‘double
description [cases] in which a single act results in multiple charges under different criminal
statutes.’” Bernal, 2006-NMSC-050, ¶ 7 (quoting Swafford, 112 N.M. at 8, 810 P.2d at
1228). Second, there are “unit of prosecution [cases] in which an individual is convicted of
multiple violations of the same criminal statute.” Id. (quoting Swafford, 112 N.M. at 8, 810
P.2d at 1228). This being three convictions under the same conspiracy statute, we apply a
unit of prosecution analysis. For unit of prosecution cases, we have previously instructed
courts to engage in the following two-step analysis:

First, we review the statutory language for guidance on the unit of
prosecution. State v. Barr, 1999-NMCA-081, ¶¶ 13-14, 127 N.M. 504, 984
P.2d 185. If the statutory language spells out the unit of prosecution, then we
follow the language, and the unit-of-prosecution inquiry is complete. Id. ¶
14. If the language is not clear, then we move to the second step, in which
we determine whether a defendant’s acts are separated by sufficient “indicia
of distinctness” to justify multiple punishments under the same statute. Id.
¶ 15. In examining the indicia of distinctness, courts may inquire as to the
interests protected by the criminal statute, since the ultimate goal is to
determine whether the legislature intended multiple punishments. See State
v. Alvarez-Lopez, 2004-NMSC-030, ¶ 42, 136 N.M. 309, 98 P.3d 699. If the
acts are not sufficiently distinct, then the rule of lenity mandates an
interpretation that the legislature did not intend multiple punishments, and a
defendant cannot be punished for multiple crimes. Barr, 1999-NMCA-081,
¶ 14.

Bernal, 2006-NMSC-050, ¶ 14.

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{32} We are mindful that both stages of the unit of prosecution analysis turn on legislative
intent. See Herron v. State, 111 N.M. 357, 359, 805 P.2d 624, 626 (1991) (“The issue,
though essentially constitutional, becomes one of statutory construction.”). As we have
previously recognized, “the only function the Double Jeopardy Clause serves in cases
challenging multiple punishments is to prevent the prosecutor from bringing more charges,
and the sentencing court from imposing greater punishments, than the Legislative Branch
intended.” State v. Pierce, 110 N.M. 76, 84-85, 792 P.2d 408, 416-17 (1990) (internal
quotation marks and citation omitted); see also Missouri v. Hunter, 459 U.S. 359, 366 (1983)
(The prohibition against multiple punishment “prevent[s] the sentencing court from
prescribing greater punishment than the legislature intended.”).

{33} Accordingly, even when analyzing whether an “indici[um] of distinctness”
sufficiently separates the acts of the accused to justify multiple punishment, we remain
guided by the statute at issue, including its language, history, and purpose, as well as the
quantum of punishment that is prescribed. State v. Vallejos, 2000-NMCA-075, ¶ 7, 129
N.M. 424, 9 P.3d 668; see also State v. Frazier, 2007-NMSC-032, ¶ 50 n.3, 142 N.M. 120,
164 P.3d 1 (Chavez, C.J., specially concurring) (“[I]f the defendant was charged with
multiple violations of the same statute, a unit-of-prosecution case, then the only question to
be answered in determining whether two charges are the ‘same offense’ is whether the
defendant’s conduct underlying each charge was part of the ‘same act or transaction’ as
defined by the legislature.” (emphasis omitted)).

{34} We have not, however, had occasion to apply our unit of prosecution case law to the
crime of conspiracy. In fact, as the State suggests, our case law currently treats the question
of more than one conspiracy as an issue of fact for the jury, whose determination is reviewed
by our courts for a mere sufficiency of the evidence. See Ross, 86 N.M. at 215-16, 521 P.2d
at 1164-65. This is the position advocated by the State as the basis for review here. We
codified this deferential standard in Sanders, where we wrote the following:

The standard for determining whether one who has conspired to
commit a number of crimes is guilty of one or more conspiracies was
established in [Ross, 86 N.M. at 214-15, 521 P.2d at 1163-64]. In Ross, our
Court of Appeals held that the number of agreements is the focus for
determining the number of conspiracies: Where there is one agreement to
commit two or more criminal acts, the perpetrators are guilty of a single
conspiracy. Because the conspiracy statute, NMSA 1978, Section 30-28-2
(Repl. Pamp. 1984), criminalizes the agreement constituting the conspiracy,
[Gilbert, 98 N.M. at 81, 644 P.2d at 1070], the number of agreements to
break the law determines the number of criminal conspiracies subject to
prosecution. We review the question whether there was one agreement or
several under the sufficiency-of-evidence standard set out above. See State
v. Hernandez, 104 N.M. 268, 278, 720 P.2d 303, 313 (Ct. App.) (stating that
determination of number of conspiracies is fact question for jury; jury
findings reviewed under sufficiency-of-evidence principles), cert. denied,

9
 104 N.M. 201, 718 P.2d 1349 (1986).

117 N.M. at 457, 872 P.2d at 875.

{35} Neither Sanders nor Ross purports to be a double jeopardy case or makes a conscious
decision not to apply double jeopardy principles. It appears that our courts have looked at
multiple conspiracies in terms of substantial evidence almost by default. Accordingly, the
case before us presents the first opportunity, or at least the first of which we are aware, to
bring together both analytical points of view—sufficiency of the evidence and multiple
punishment/double jeopardy—and to determine the proper role for each.

{36} Our holding in Sanders is largely based on the United States Supreme Court’s
opinion in Braverman v. United States, 317 U.S. 49 (1942). The defendants in Braverman
were convicted of seven counts of conspiring to violate portions of the U.S. Internal Revenue
Code relating to the unlawful production, possession, transportation, and distribution of
liquor. Id. at 50 n.1. The Supreme Court reversed all but one of the seven convictions after
the government conceded that the defendants had entered into only one agreement to commit
an assortment of crimes. The Court reasoned that “[t]he single agreement is the prohibited
conspiracy, and however diverse its objects it violates but a single statute . . . . For such a
violation only the single penalty prescribed by the statute can be imposed.” Id. at 54.

{37} Braverman also cautioned against defining a conspiracy in terms of the criminal
objects that were intended to be accomplished. Rather, “the precise nature and extent of the
conspiracy must be determined by reference to the agreement which embraces and defines
its objects.” Id. at 53.

Whether the object of a single agreement is to commit one or many crimes,
it is in either case that agreement which constitutes the conspiracy which the
statute punishes. The one agreement cannot be taken to be several
agreements and hence several conspiracies because it envisages the violation
of several statutes rather than one.

Id.

{38} While Braverman teaches that the number of prosecutable conspiracies from an
evidentiary perspective under the federal conspiracy statute is based on the number of
agreements, the opinion does not address how to define the number of agreements and
whether this is an issue for the judge or jury. Of course, under the specific facts of
Braverman, there was no need for the Court to engage in such analysis in light of the
government’s concession. Accordingly, we turn elsewhere—to jurisdictions outside New
Mexico, both state and federal—for guidance on whether the existence of more than one
conspiracy is a question of law for the court, or one of fact for the jury to determine.

{39} Our review of state cases in this area demonstrates a significant split in authorities.

10
Some states, such as Pennsylvania, have decided that the number of conspiracies is an
evidentiary issue for the jury. See, e.g., Wade v. State, 581 So. 2d 1255, 1256 (Ala. Crim.
App. 1991) (“The problem is a factual one and each case is unique.” (internal quotation
marks and citation omitted)); People v. Morocco, 191 Cal. App. 3d 1449, 1453 (Cal. Ct.
App. 1987) (“It is well-settled law that the question whether one or multiple conspiracies are
present is a question of fact, to be resolved by a properly instructed jury.” (internal quotation
marks and citation omitted)); Commonwealth v. Andrews, 768 A.2d 309, 314 (Pa. 2001)
(“[T]he issue is more properly presented as a challenge to the sufficiency of the evidence,
with the facts being reviewed in the light most favorable to the verdict winner.”);
Commonwealth v. Marinez, 777 A.2d 1121, 1125-26 (Pa. Super. Ct. 2001) (same); Williams
v. Commonwealth, 407 S.E.2d 319, 322 (Va. Ct. App. 1991) (“The question of whether the
evidence presented in a single trial establishes the existence of one conspiracy or multiple
conspiracies is a factual issue for the jury’s determination.”).

{40} In contrast, other states such as Washington have determined that multiple
conspiracies raise double jeopardy concerns—questions of law for the court. See, e.g., State
v. Pham, 136 P.3d 919, 934-35 (Kan. 2006) (“[W]hether convictions are multiplicitous is a
question of law subject to unlimited review.”); State v. Day, 925 A.2d 962, 976 (R.I. 2007)
(“In cases such as this, where a defendant has been charged with multiple conspiracies but
only one exists in actuality, in order to safeguard the defendant’s constitutional right not to
be placed in double jeopardy, he or she should be sentenced with respect to only one of the
counts with the other count(s) being dismissed.”); State v. Johnson, 371 S.E.2d 340, 352 (W.
Va. 1988) (“[T]he defendant’s conviction of two conspiracy offenses constituted a violation
of the . . . established double jeopardy principles.”); State v. Bobic, 996 P.2d 610, 617-20
(Wash. 2000) (explaining that convictions for more than one count of conspiracy is a double
jeopardy unit of prosecution problem).

{41} A review of federal case law reveals a greater uniformity among the federal circuits
than among the states. The federal circuits frame challenges to multiple conspiracy
convictions as constitutional matters that must be resolved by the court as a matter of law.1

1
Under federal case law, the multiple conspiracy issue is occasionally raised in the
context of a variance defense. “A variance [defense] arises when an indictment charges a
single conspiracy but the evidence presented at trial proves only the existence of multiple
conspiracies.” United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir. 2008). Asserting
a variance following conviction on a single count of conspiracy permits a defendant to defeat
criminal liability by arguing that, although he belonged to multiple uncharged conspiracies,
he did not take part in the conspiracy alleged at trial. See United States v. Abbamonte, 759
F.2d 1065, 1068 (2d Cir. 1985), overruled on other ground by United States v. Macchia, 41
F.3d 35, 39 (2d Cir. 1994). As opposed to double jeopardy claims, the existence of a
variance is a question of fact for the jury. See Ninth Circuit Manual of Model Criminal Jury
Instructions, Multiple Conspiracies § 8.22 (2010 ed.), available at
http://207.41.19.15/web/sdocuments.nsf/ddfcae883f401d45882576f100661bbb/1c90435a

11
See United States v. Singleton, 177 F. Supp. 2d 12, 21 (D.D.C. 2001); William H. Theis, The
Double Jeopardy Defense and Multiple Prosecutions For Conspiracy, 49 SMU L. Rev. 269,
299 n.159, 306-07 (1996). Federal circuits have adopted this position, in part, because the
“[t]he Double Jeopardy Clause prohibits subdivision of a single criminal conspiracy into
multiple violations of one conspiracy statute.” United States v. Montgomery, 150 F.3d 983,
989 (9th Cir. 1998) (internal quotation marks and citation omitted); see also United States
v. Daniels, 857 F.2d 1392, 1393 (10th Cir. 1988) (“[I]f two charges of conspiracy are in fact
based on a defendant’s participation in a single conspiracy, the [double] jeopardy clause bars
the second prosecution.”).2

{42} Every federal circuit to have considered this issue, except the Tenth Circuit, applies
a multi-factor “totality of the circumstances” test for the court to determine “whether there
are two agreements or only one,” and hence several conspiracies or one. United States v.
Rigas, 605 F.3d 194, 213 (3d Cir. 2010) (internal quotation marks and citation omitted); cf.
United States v. Sasser, 974 F.2d 1544, 1549 n.4 (10th Cir. 1992). Among the factors used
by the federal circuits to analyze the number of agreements are whether:

(a) the [location] of the two alleged conspiracies is the same; (b) there is a
significant degree of temporal overlap between the two conspiracies charged;
(c) there is an overlap of personnel between the two conspiracies (including
unindicted as well as indicted coconspirators); and (d) the overt acts charged
and [(e)] the role played by the defendant . . . [in the alleged conspiracies are]
similar.

46b389358825773f005e73d9?OpenDocument; Tenth Circuit Criminal Pattern Jury
Instructions No. 2.20 (2005 ed.), available at
http://federalcriminaljuryinstructions.com/uploads/10th_Circuit_Jury_Instructions_Crim
inal_2006_PDF.pdf.
2
In federal court, multiple conspiracies most frequently present in the context of
successive conspiracy prosecutions. See, e.g., United States v. Korfant, 771 F.2d 660, 662
(2d Cir. 1985); United States v. Dortch, 5 F.3d 1056, 1061-64 (7th Cir. 1993). However,
the U.S. Supreme Court has repeatedly noted that whether a defendant is subject to multiple
punishments for the same offense does not depend upon whether the charges were brought
at a single trial or a successive trial. See Frazier, 2007-NMSC-032, ¶ 47 n.2 (Chavez, C.J.,
specially concurring). “If two offenses are the same . . . for purposes of barring consecutive
sentences at a single trial, they necessarily will be the same for purposes of barring
successive prosecutions.” Brown v. Ohio, 432 U.S. 161 (1977). “We have often noted that
the [Double Jeopardy] Clause serves the function of preventing both successive punishment
and successive prosecution, but there is no authority . . . for the proposition that it has
different meanings in the two contexts.” United States v. Dixon, 509 U.S. 688, 704 (1993)
(citations omitted).

12
Rigas, 605 F.3d at 213 (first and second alterations in original) (quoting United States v.
Liotard, 817 F.2d 1074, 1078 (3d Cir. 1987)); see Susan R. Klein & Katherine P. Chiarello,
Successive Prosecutions and Compound Criminal Statutes: A Functional Test, 77 Tex. L.
Rev. 333, 348-49 (1998). The Third Circuit asks several related questions, including “(1)
whether there was a common goal among the conspirators; (2) whether the agreement
contemplated bringing to pass a continuous result that will not continue without the
continuous cooperation of the conspirators; and (3) the extent to which the participants
overlap in the various dealings.” Rigas, 605 F.3d at 213 (internal quotation marks and
citation omitted)).

{43} With this background in mind, we proceed to the question at hand. Should New
Mexico treat multiple conspiracies merely as an issue of evidentiary sufficiency, or should
unit of prosecution principles apply as well? First, it is not readily apparent why the crime
of conspiracy should remain an outlier from our double jeopardy jurisprudence. We have
consistently applied unit of prosecution principles to criminal statutes as far flung as attempt,
Bernal, 2006-NMSC-050, ¶¶ 13-31; child abuse, State v. Castaneda, 2001-NMCA-052, ¶¶
12-18,130 N.M. 679, 30 P.3d 368; and defacing tombs, State v. Morro, 1999-NMCA-118,
¶¶ 7-26, 127 N.M. 763, 987 P.2d 420; and presumably conspiracy should be no different.
We are unable to offer any principled basis for isolating conspiracy from all other criminal
statutes.

{44} Second, given the nature of conspiracy, good reason exists for our courts to take
greater precautions and exercise more judicial oversight when presiding over multiple
conspiracy prosecutions. We are mindful of former U.S. Supreme Court Justice Robert
Jackson’s admonition more than sixty years ago:

The modern crime of conspiracy is so vague that it almost defies definition.
. . . It sounds historical undertones of treachery, secret plotting and violence
on a scale that menaces social stability and the security of the state itself. .
. . However, even when appropriately invoked, the looseness and pliability
of the doctrine present inherent dangers which should be in the background
of judicial thought . . . .

Krulewitch v. United States, 336 U.S. 440, 446-49 (1949) (Jackson, J., concurring).
Numerous scholars have likewise criticized conspiracy as overly vague, such that the nature
of the crime creates a distinct advantage for the prosecution over the accused. See 2 Wayne
R. LaFave, Substantive Criminal Law § 12.1(b)(1), at 256-57 (2d ed. 2003) (describing the
various scholarly critiques of conspiracy law).

{45} For instance, “[a] conspiracy is complete when the agreement is reached.” State v.
Villalobos, 120 N.M. 694, 697, 905 P.2d 732, 735 (Ct. App. 1995); see also State v. Lopez,
2007-NMSC-049, ¶ 21, 142 N.M. 613, 168 P.3d 743 (noting that New Mexico does not
require proof of an overt act). Yet, “[b]ecause most conspiracies are clandestine in nature,
the prosecution is seldom able to present direct evidence of the agreement.” 2 LaFave, supra

13
§ 12.2(a), at 267. The jury may therefore infer the existence of an agreement based on the
defendant’s conduct and surrounding circumstances, which raises at least the specter of
conviction by guess and speculation. See generally Ross, 86 N.M. at 214, 521 P.2d at 1163.

{46} Conspiracy is also described as a continuing crime. Villalobos, 120 N.M. at 697, 905
P.2d at 735. “A single conspiracy can last for years, with many of its substantive offenses
being completed during that time . . . .” Pham, 136 P.3d at 939. It ends only when “the
purposes of the conspiracy have been accomplished or abandoned.” United States v.
Eppolito, 543 F.3d 25, 47 (2d Cir. 2008) (internal quotation marks and citation omitted).
Furthermore, a conspiracy may “mature and expand” over time, adding more members and
embracing additional criminal objectives without changing the fundamental nature of the
single agreement. See State v. Orgain, 115 N.M. 123, 129, 847 P.2d 1377, 1383 (Ct. App.
1993) (Hartz, J., specially concurring) (“[A] single conspiracy may mature and expand as
more conspirators and objectives are added.”); see also United States v. Rabinowich, 238
U.S. 78, 86 (1915) (“[A] single conspiracy might have for its object the violation of two or
more of the criminal laws.”); Model Penal Code § 5.03, cmt. (1985) (“[T]he original
agreement subsequently came to ‘embrace’ additional objects.”).

{47} These characteristics of conspiracy do not impugn its validity. They do, however,
underscore the need for judicial vigilance, since courts are in the best position to assure that
multiple conspiracies and their underlying agreements are sufficiently distinct that the
accused is not twice placed in jeopardy for the same offense. Given the “inherent dangers”
and the “looseness and pliability” of conspiracy noted by Justice Jackson, it is particularly
important that the judiciary embrace its unique responsibility to assure the basic fairness and
adherence to legislative intent that only the courts can afford.

{48} Parenthetically, it is worth observing that the amount of deference our earlier cases
granted the jury cannot be justified in light of how the jury is instructed. Under cases such
as Ross and Sanders, we review the jury’s determination of one or more agreements for
sufficiency of the evidence, yet we do not provide the jury with a multiple conspiracy
instruction. We do not explain to the jury that each conspiracy conviction must be supported
by evidence of a distinct agreement beyond a reasonable doubt. Nor do we provide the jury
with guidance on how to differentiate between agreements. Essentially, we have been
deferring to the decision of the jury without ever asking the jury the necessary questions.

{49} This approach has invited needless confusion. When the jury is not explicitly
instructed that multiple conspiracy convictions require multiple agreements, we run the risk
of conflating the existence of multiple conspiracies with the existence of multiple
objectives—not multiple agreements—contrary to the holding in Braverman. See United
States v. Mallah, 503 F.2d 971, 985 (2d Cir. 1974), cert. denied, 420 U.S. 995 (1975)
(“[M]easuring only overt acts provides no protection against carving one larger conspiracy
into smaller separate [conspiracies].”).

{50} Accordingly, whether a defendant has entered into one or more conspiracies

14
inevitably presents a double jeopardy question. Of course, once past the unit of prosecution
test, a properly instructed jury must still find, subject to our traditional deferential review,
that substantial evidence supports each separate conspiracy.

{51} We now turn to the particular facts and circumstances of the case before us and begin
our unit of prosecution analysis. As a constitutional matter, our courts apply double
jeopardy analysis as a matter of law. State v. Saiz, 2008-NMSC-048, ¶ 22, 144 N.M. 663,
191 P.3d 521 (“Double jeopardy presents a question of law, which we review de novo.”
(citing Bernal, 2006-NMSC-050, ¶ 6), abrogated by State v. Belanger, 2009-NMSC-025,
¶ 36 n.1, 146 N.M. 357, 210 P.3d 783; see also State v. Rodriguez, 2006-NMSC-018, ¶ 3,
139 N.M. 450, 134 P.3d 737 (“We generally review double jeopardy claims de novo.
However, where factual issues are intertwined with the double jeopardy analysis, we review
the trial court’s fact determinations under a deferential substantial evidence standard of
review.” (citations omitted)). The first question we generally ask is whether the “statutory
language spells out the unit of prosecution . . . .” Bernal, 2006-NMSC-050, ¶ 14. “If the
statutory language for [conspiracy] were clear regarding the unit of prosecution, then the
language would control, and the . . . analysis would be complete.” Id. ¶ 19. New Mexico’s
conspiracy statute reads: “Conspiracy consists of knowingly combining with another for the
purpose of committing a felony within or without this state.” Section 30-28-2. In
Subsection B, the appropriate level of punishment has been set at the “highest crime
conspired to be committed.” Section 30-28-2(B).

{52} While our case law makes clear that the “gist” of any conspiracy is the agreement,
the plain language of the statute defines the crime in terms of the act of “combining” without
specifically requiring an agreement. While it appears, based on the plain language of the
statute, that our Legislature intended to define the unit of prosecution for conspiracy in terms
of the number of conspiratorial combinations, case law teaches that the unit of prosecution
for conspiracy is more properly framed in terms of an agreement. It is difficult to say what
difference there is, if any, between a combination and agreement. However, irrespective of
whether we refer to the prosecutable unit as a combination or as an agreement, the statutory
language evinces a clear intent on the part of the Legislature to follow the rule set forth in
Braverman and reject a definition that focuses on the criminal objectives of the agreement,
i.e., the individual crimes that each combination or agreement sets out to accomplish.

{53} It is also worth observing that the Legislature in 1979 amended the conspiracy statute
to add Subsection B, which prescribes only one increasingly severe punishment for a
conspiracy conviction regardless of the number of underlying crimes that may be the
objectives of that agreement. Compare § 30-28-2(B), with 1963 N.M. Laws, ch. 303, § 28-2.
The one punishment is calibrated at the level of the “highest crime to be committed”
pursuant to the one conspiracy. For example, a conspiracy to commit first-degree murder
and other lesser crimes would be punished as one second-degree felony. If the highest level
of crime under the conspiracy is a second-degree felony, the conspiracy is punished as a
third-degree felony, and so forth. Prior to amendment, conspiracy was punished as a lesser
fourth-degree felony no matter how diverse its criminal objects.

15
{54} By amending the statute to set punishment at the highest crime, it is reasonable to
assume that the Legislature foresaw that in many, if not most, cases there would be a single
combination or agreement, and a single punishment, regardless of how many underlying
criminal objectives were envisioned. Indeed, the statute would not contemplate a “highest”
penalty unless the Legislature determined that a single conspiracy could encompass
committing a multitude of crimes.

{55} Based on the foregoing principles, a fair inference to draw from the text, history, and
purpose of our conspiracy statute is that the Legislature established what we will call a
rebuttable presumption that multiple crimes are the object of only one, overarching,
conspiratorial agreement subject to one, severe punishment set at the highest crime conspired
to be committed. At trial, the state has an opportunity to overcome the Legislature’s
presumption of singularity, but doing so requires the state to carry a heavy burden.

{56} The totality of the circumstances test utilized by the federal circuits is the best
mechanism to determine the exceptional instances in which the Legislature’s presumption
of singularity may be overcome by demonstrating the existence of more than one conspiracy.
This multi-factored approach most appropriately tracks the specific language of our statute
and the special considerations that inform the crime of conspiracy.3

{57} When applied to the case at hand, it becomes clear that the State cannot rebut the
presumption that Defendant entered into only one agreement and took part in only one
conspiracy. First, the three charged conspiracies involve only one victim. Not only is there
one victim, but each charged conspiracy intended to inflict a similar type of harm upon that
victim. To be convicted of conspiracy, the jury found that Defendant possessed the intent
to commit the substantive offense that was the object of the conspiracy. See Varela, 1999-
NMSC-045, ¶ 42. For conspiracy to commit kidnapping, the jury found that Defendant
“intended to hold [Victim] against [his] will: to inflict death or physical injury.” See §
30-4-1. For conspiracy to commit first-degree murder, the jury found that Defendant’s
“deliberate intent” was to kill Victim. See § 30-2-1(A). For conspiracy to commit
aggravated arson, the jury found that Defendant intended to burn Victim’s car, causing him
great bodily harm. See § 30-17-6. That each charged conspiracy required Defendant and
his confederates to contemplate inflicting great bodily harm or death upon the same
individual strikes us as “a strong indicator of legislative intent,” Bernal, 2006-NMSC-050,
¶ 18, to impose no more than one, severe punishment set by statute at the “highest crime to
be committed,” § 30-28-2(B).

3
One of the federal factors analyzes the nature of the overt acts committed by
conspiracy participants. See, e.g., Rigas, 605 F.3d at 213. While New Mexico law does not
require the existence of an overt act, our courts may still rely on this factor to help determine
whether a defendant entered into one or more conspiratorial agreements.

16
{58} The relatively short time frame also supports the existence of one conspiracy. The
entire series of events, from the fight at the bar up through the murder by arson, took place
between the hours of midnight and seven in the morning of September 7, 2003. While a six-
to eight-hour time frame might support a finding of distinctness in the context of other
crimes, the time frame for conspiracy depends upon the unique nature of the crime.

{59} Conspiracy was criminalized to address “the special and continuing dangers incident
to group activity.” 2 LaFave, supra § 12.1, at 254. Conspiracy is also an inchoate crime,
developed as “a means for preventive intervention against persons who manifest a
disposition to criminality” without necessarily ever committing the underlying crime which
is the object of the agreement. 2 LaFave, supra § 12.1(c), at 263; see also Boyle v. United
States, __ U.S. __, __, 129 S. Ct. 2237, 2246 (2009) (“[A] conspiracy is an inchoate crime
that may be completed in the brief period needed for the formation of the agreement and the
commission of a single overt act in furtherance of the conspiracy.”).

{60} Because the crime is characterized by multiple individuals who have agreed to
achieve illegal objectives, a single conspiracy may take longer to develop than crimes such
as criminal sexual penetration, robbery, or shooting at a motor vehicle, where group activity
is not inherent to the offense and where planning and consensus building are less relevant.
Under the facts presented here, we think that the modest time line, which was continuous and
undisturbed by any intervening event, strongly suggests that Defendant and his co-
conspirators formed one overarching agreement, rather than three distinct agreements,
separated by time and space.

{61} Another factor that points to the existence of a single conspiratorial combination is
that the actions of all conspirators were overlapping and mutually dependent. The same
conspirators are implicated in all three charged conspiracies, and without their concerted
action and continued communication, none of the substantive crimes would have otherwise
taken place.

{62} Finally, it is unclear how this Court can meaningfully distinguish between the three
charged conspiracies in a way that would justify multiple punishment under the conspiracy
statute. For instance, even if we credit Defendant’s argument that he was unaware of the
plot to murder while taking part in the initial kidnapping, it does not follow that Defendant
entered a new combination when he later joined his confederates in their efforts to kill.4

4
As we have previously indicated, a reasonable inference that the jury could have
drawn from the evidence is that Defendant and his confederates held Victim against his will
with the understanding that he was to be killed later that evening. According to this view of
the evidence, the conspiracy to commit kidnapping was subsumed within the scheme to kill
because an intent to kill was fully formed by the time the kidnapping occurred. In other
words, we would be justified in concluding, in the alternative, that the conspiracy to commit
kidnapping was a “necessary immediate step” to the conspiracy to commit murder. See

17
Such a finding would be contrary to the plain language of our conspiracy statute, which
punishes the act of combining with another, not the objects that were to be committed, and
contrary to the holding in Braverman, which adopted a similar rationale. That the same
agreement evolved over time to embrace a murderous new objective upon the introduction
of Michelle Martinez and her heroin overdose did not create a new crime but simply added
a new objective to the same criminal combination. Because the objectives of a single
agreement may change over time without such changes creating a new agreement, the
conspiracy to commit kidnapping should be understood as one aspect of a larger continuous
combination that eventually embraced murder as its central objective. Orgain, 115 N.M. at
129, 847 P.2d at 1383 (Hartz, J., specially concurring). Under the terms of our statute, the
addition of this objective would justify greater liability, but only insofar as first-degree
murder is now the “highest crime conspired to be committed.” Section 30-28-2(B). The
agreement, and hence the combination, would remain the same.

{63} In a similar sense, the conspiracy to commit aggravated arson is subsumed within the
larger agreement. By the time Defendant and Tollardo left Elias Romero’s shack to burn
Victim alive, there had been numerous attempts on Victim’s life, all of which were
unsuccessful or not yet fully effective. The fact that Defendant and his hapless confederates
decided to light Victim on fire after their previous attempts to kill—a heroin overdose, a
broken neck, and strangulation—had proven ineffective was not tantamount to forming an
additional agreement to kill by use of fire. Their actions did not create a new criminal
combination.

{64} We are persuaded that this is the type of routine case on which the Legislature clearly
intended to impose one punishment. Because the State cannot overcome the strong
presumption of singularity embodied in the conspiracy statute, we conclude that the
Legislature did not intend to allow multiple punishments in this case. We have held that
double jeopardy problems are not cured “by the trial court imposing concurrent sentences
for the multiple convictions” because “a separate conviction is itself punishment that has
potential adverse consequences.” Barr, 1999-NMCA-081, ¶ 12 (citing Pierce, 110 N.M. at
87, 792 P.2d at 419). For this reason, the appropriate remedy is to vacate Defendant’s
redundant convictions with punishment imposed on the single remaining conspiracy at the
level of the “highest crime conspired to be committed,” which is a conspiracy to commit
first-degree murder. See § 30-28-2(B). Accordingly, we remand this case to the district
court to vacate Defendant’s convictions for conspiracy to commit kidnapping and conspiracy
to commit aggravated arson and resentence Defendant in a manner consistent with this
Opinion.

Andrews, 768 A.2d at 316-17 (discussing Commonwealth v. Richbourg, 394 A.2d 1007,
1011 (Pa. Super. Ct. 1978), where a conspiracy to commit robbery was a “necessary
intermediate step” to a conspiracy to commit burglary, because the “robbery was committed
for the purpose of obtaining keys to a restaurant that was later burglarized”).

18
Request for a Continuance to Secure the Presence of Defense Witnesses

{65} Defendant claims the district court erred by refusing to grant a continuance to secure
the attendance of two defense witnesses at trial. Those witnesses are Kami Ramsey, a guard
at the Cibola County Detention Center during Michelle Martinez’s incarceration at that
facility, and Surtina Cohoe, Martinez’s former cell mate at the Cibola County facility. The
court ultimately read their testimony to the jury in the form of a stipulation which the parties
jointly drafted. We review Defendant’s claim for an abuse of discretion. See State v.
Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135 (“The grant or denial of a
continuance is within the sound discretion of the trial court, and the burden of establishing
abuse of discretion rests with the defendant.”).

{66} Both parties agree that our opinion in State v. Torres, 1999-NMSC-010, 127 N.M.
20, 976 P.2d 20, controls. In Torres, we promulgated a number of factors for courts to
consider when evaluating a motion for a continuance. Id. ¶ 10. These factors include “the
length of the requested delay, the likelihood that a delay would accomplish the movant’s
objectives, the existence of previous continuances in the same matter, the degree of
inconvenience to the parties and the court, the legitimacy of the motives in requesting the
delay, the fault of the movant in causing a need for the delay, and the prejudice to the
movant in denying the motion.” Id.

{67} In applying the Torres factors to the present case, we conclude that the district court
did not abuse its discretion in denying Defendant’s motion for a continuance. When
prompted, defense counsel could not provide the court with an estimate for the amount of
time needed to bring either Ramsey or Cohoe to court. Nor did counsel attempt to explain
why granting a continuance would likely result in their ultimate appearance. Regarding the
degree of inconvenience, by the time defense counsel motioned the court for a continuance
on the third day of the three-day trial, the State had already called its final witness, and one
of the two alternate jurors had been excused.

{68} The district court properly ascribed fault to defense counsel in creating the need for
a delay. The district court raised significant questions about whether the witnesses had been
properly subpoenaed. While defense counsel insisted that his investigator was prepared to
testify as to service of process, the court’s offer of a stipulation was accepted without
counsel ever providing proof of service. Regarding Cohoe, even assuming she was properly
served, defense counsel did not timely notify the court that Cohoe had failed to appear on
the appropriate subpoena date. This was a particularly egregious oversight in light of
defense counsel’s repeated assurances that Cohoe was reliable and trustworthy and would
show up to testify as she promised. The court was justified in holding defense counsel
accountable for creating the need for a delay to secure Ramsey’s attendance. On the first day
of trial, defense counsel refused the court’s offer to issue a warrant and admitted that
Ramsey’s testimony was not sufficiently important to justify any kind of delay.

{69} As to the final Torres factor—prejudice—Defendant argues that Cohoe’s live

19
testimony was vital to his defense, as she was prepared to refute Martinez’s version of events
and undercut her credibility. Despite these contentions, Defendant cannot show how
Cohoe’s live testimony would have differed from what was presented by stipulation. In
addition, as Martinez’s cell mate, Cohoe had credibility problems of her own; even her
stipulated testimony was subject to character-based impeachment by way of her prior
convictions.

{70} Finally, Cohoe’s testimony was cumulative. The record reveals that defense counsel
attacked Martinez’s credibility throughout the trial. Specifically, Defendant demonstrated
that Martinez had changed her story several times, she had committed numerous crimes of
dishonesty, she had accepted a generous plea deal, she had engaged in a litany of related
misdeeds, and she had a reputation in jail for lying. In light of the voluminous evidence
presented on Martinez’s credibility, including the stipulated testimony itself, we cannot
conclude that Defendant was prejudiced by his inability to present live testimony from either
Ramsey or Cohoe.

Improbability of Michelle Martinez’s Testimony as a Matter of Law

{71} Defendant argues that Michelle Martinez’s uncorroborated testimony is inherently
improbable as a matter of law. See State v. Trujillo, 60 N.M. 277, 291, 291 P.2d 315, 319
(1955) (“an appellate court will not uphold a judgment or verdict based upon evidence
inherently improbable” (internal quotation marks and citation omitted)); State v. Boyd, 84
N.M. 290, 292, 502 P.2d 315, 317 (Ct. App. 1972) (“The rule is that testimony is not
inherently improbable unless what is claimed to have occurred could not in fact have
occurred.”).

{72} Notwithstanding Defendant’s position, any potential inconsistencies in Martinez’s
testimony or questions regarding her veracity do not justify reversal, since weighing the
evidence, like credibility determinations, falls within the “exclusive province of the jury.”
Orgain, 115 N.M. at 126, 847 P.2d at 1380. Furthermore, even assuming Martinez’s
testimony was improbable, the record contains ample evidence that independently
corroborates Martinez’s version of events.

Defendant’s Motion for a New Trial

{73} The district court denied Defendant’s motion for a new trial based on newly
discovered evidence. In general, “we will not disturb a trial court’s exercise of discretion
in denying or granting a motion for a new trial unless there is a manifest abuse of
discretion.” See State v. Garcia, 2005-NMSC-038, ¶ 7, 138 N.M. 659, 125 P.3d 638. A
motion for new trial based on newly discovered evidence may be properly granted where the
newly discovered evidence: (1) “will probably change the result if a new trial is granted,”
(2) “must have been discovered since the trial,” (3) “could not have been discovered before
the trial by the exercise of due diligence,” (4) “must be material,” (5) “ must not be merely
cumulative, and” (6) “must not be merely impeaching or contradictory.” Id. ¶ 8 (internal

20
quotation marks and citation omitted).

{74} The alleged newly discovered evidence is that Michelle Martinez committed perjury
at Elias Romero’s criminal trial. According to Defendant, Martinez admitted to lying about
the color and type of gun that Elias Romero was known to possess. Since the district court
did not have access to the transcript of Martinez’s perjurious testimony when it denied
Defendant’s motion for a new trial, Defendant claims that the district court could not have
properly evaluated this new evidence. Defendant requests that we order a remand for the
district court to conduct a more searching review of Martinez’s testimony during Elias
Romero’s trial.

{75} We reject Defendant’s claim. Defendant cannot show why the district court needed
Elias Romero’s trial transcript before it could rule on his motion for a new trial. Defendant
never asked the district court to consider the transcript and never disputed the district court’s
characterization of Martinez’s testimony.

{76} In any event, the newly discovered evidence fails to satisfy many of the factors set
forth in Garcia. First, the newly discovered evidence is not substantive, as Martinez’s
perjury is “merely impeaching.” In addition, Defendant cannot explain why a new jury
would likely reach a different result based on new evidence, when a description of Elias
Romero’s gun is not material to Defendant’s case. Martinez did not admit to lying about
Defendant’s degree of involvement in the crime. Finally, the newly discovered evidence is
cumulative. In light of Defendant’s sustained attacks against Martinez at trial, we are
unpersuaded that impeaching her credibility with this new act of perjury would have
provided the jury with information that it had not already heard.

{77} Given the wide latitude we provide to district courts in resolving motions for a new
trial based on newly discovered evidence, we cannot conclude that an abuse of discretion
occurred on these facts. See State v. Sosa, 1997-NMSC-032, ¶ 16, 123 N.M. 564, 943 P.2d
1017 (explaining that motions for a new trial based on newly discovered evidence are “not
encouraged” and the “denial of such a motion will only be reversed if the district court has
acted arbitrarily, capriciously, or beyond reason”).

CONCLUSION

{78} Accordingly, we affirm in part, reverse in part, and remand to the district court for
further proceedings.

{79} IT IS SO ORDERED.

______________________________________
RICHARD C. BOSSON, Justice

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WE CONCUR:

______________________________________
CHARLES W. DANIELS, Chief Justice

______________________________________
PATRICIO M. SERNA, Justice

______________________________________
PETRA JIMENEZ MAES, Justice

______________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Gallegos, Docket No. 31,204

CT CONSTITUTIONAL LAW
CT-DJ Double Jeopardy

CL CRIMINAL LAW
CL-AR Arson
CL-CF Capital Felony
CL-HO Homicide
CL-CS Conspiracy
CL-KP Kidnapping
CL-MU Murder
CL-UC Unitary Conduct

CA CRIMINAL PROCEDURE
CA-DJ Double Jeopardy
CA-SE Substantial or Sufficient Evidence

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