Description:

Las Cruces, New Mexico third degree criminal sexual penetration lawyer represented the Defendant.

A jury convicted Defendant of eight counts of third degree criminal sexual penetration (CSP III), contrary to NMSA 1978, Section 30-9-11(F) (2009); one count of first degree kidnapping, contrary to NMSA 1978, Section 30-4-1 (2003); and one count of aggravated battery against a household member, contrary to NMSA 1978, Section 30-3-16(B) (2018).

On appeal, Defendant argues that (1) the multiple CSP III charges violate double jeopardy protections; (2) prosecutorial misconduct warrants a new trial; (3) two of the convictions are not supported by the evidence; (4) presentence confinement credit was incorrectly calculated; and (5) for the CSP III convictions, the State did not substantiate the serious violent offender designations for purposes of the earned meritorious deductions statute under NMSA 1978, Section 33-2-34 (2015). The State concedes that the record does not support the challenged serious violent offender designations. Our review of the record confirms the State's concession, and without further analysis, we reverse the judgment on that issue. See State v. Solano, 2009-NMCA-098, ¶ 10, 146 N.M. 831, 215 P.3d 769 (requiring the district court to articulate a "factual basis" to support a serious violent offender designation).

Outcome: We further conclude that the facts supporting two of the CSP III counts were insufficiently distinct to avoid a violation of double jeopardy protections, and we therefore remand for the district court to vacate one of those convictions. Otherwise, we affirm.

State v. Baltazar, A-1-CA-40400 (N.M. App. Sep 12, 2024)

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