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State v. Mann6/6/2000
be distinguished. Swafford, 112 N.M. at 13-14, 810 P.2d at 1233-34. Consequently, the act was unitary.
Because we have determined that the conduct was unitary, we must next consider the second prong-whether the Legislature intended to impose multiple punishments in this instance. Carrasco, 1997-NMSC-047, 23. Initially, we conduct this inquiry by determining if the elements of one offense are subsumed within the elements of the other. Id. If they are, then for double jeopardy purposes, the statutes are the same, and Defendant cannot be punished for violating both statutes. Id.
To find Defendant guilty of child abuse resulting in death, the jury was required to find the following elements: (1) Defendant intentionally and without justification cruelly punished his son; (2) Defendant's actions or failure to act resulted in his son's death; (3) Defendant's son was less than eighteen years of age. See UJI 14-602 NMRA 1999; NMSA 1978, § 30-6-1(C) (1989). "Intentionally" is defined as purposely doing an act. See UJI 14-610 NMRA 1999. The elements of second-degree murder are: (1) Defendant killed another human being without lawful justification; and (2) Defendant knew that his acts created a strong probability of death or great bodily harm to another human being. See UJI 14-210 NMRA 1999; NMSA 1978, § 30-2-1(B) (1994). The State must also prove that Defendant acted intentionally, that is, that he purposely did the act the law declares to be a crime even if he did not know it was unlawful. See UJI 14-141 NMRA 1999.
Under either statute, there is a requirement that the jury find that Defendant intentionally committed an act that resulted in the death of his son. Because there are additional elements to the crime of child abuse resulting in death, namely that the victim is less than eighteen, and that Defendant must be acting to cruelly punish the victim, our inquiry should focus on whether Defendant could have committed intentional child abuse resulting in death without committing second- degree murder. Under either statute, he must act intentionally. Under the second-degree- murder statute (Section 30-2-1(B)), Defendant must do an act that creates a strong probability of death or great bodily harm. Under the child abuse statute (Section 30-6-1(C)), Defendant's actions must result in the death of the victim. An act that results in the death of the victim, by definition, has a strong probability of resulting in the death of the victim.
Because the child abuse statute requires a finding that Defendant intended to cruelly punish the child and that the victim be under the age of eighteen, the child-abuse statute and the second- degree-murder statute can stand independently and thus the elements of one are not subsumed within the other. If the two statutes can stand independently, then there is a rebuttable presumption that the legislature intended multiple punishments. Carrasco, 1997-NMSC-047, 23. Other indicia of legislative intent, however, such as the language, history, and subject of the statutes may be used to overcome the presumption. See Swafford, 112 N.M. at 14, 810 P.2d at 1234.
Under the facts of this appeal, we believe the presumption that multiple punishments are appropriate is overcome by the general rule that one homicide by the acts of one defendant should result in one homicide conviction. See State v. Cooper, 1997-NMSC-058, 53, 124 N.M. 277, 949 P.2d 660; see also State v. Mora, 1997-NMSC-060, 64, 124 N.M. 346, 950 P.2d 789 (stating that defendant's right to be free from double jeopardy is violated by his conviction of intentional child abuse resulting in death and felony murder); State v. Pierce, 110 N.M. 76, 85,
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