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State v. Fielder6/22/2005
Defendant appeals his convictions of third degree criminal sexual penetration (CSP III), aggravated battery, and false imprisonment. He does not challenge a fourth conviction of larceny. His briefs raised the following three double jeopardy issues: (1) that his conviction at a second trial of CSP III, after he was tried for CSP II at a first trial that resulted in neither a verdict nor any inquiry into the degree of CSP on which the jury was hung, compels a discharge on all levels of CSP; (2) that his conviction of false imprisonment as well as CSP, which necessarily involves the confinement of a victim, compels a discharge on the false imprisonment count; and (3) that the prosecutor's conduct in the first trial during jury deliberations, in obtaining instruction on CSP III and in subsequent supplemental closing argument, was sufficiently egregious conduct to require a discharge on all counts under State v. Breit, 1996-NMSC-067, 122 N.M. 655, 930 P.2d 792.
We agree with Defendant that his double jeopardy rights were violated by the State's prosecution of Defendant at the second trial for CSP II because there was no manifest necessity for a mistrial on that charge during the first trial. However, the remedy for the violation is a retrial on that count with the highest exposure being to CSP III. Further, we hold that the prosecutor's conduct did not rise to a level compelling a dismissal under Breit. Therefore, there is no double jeopardy bar to further trials. However, we believe that the double jeopardy error of submitting CSP II to the jury during the second trial tainted all of the convictions resulting from that trial, and therefore the proper remedy is to reverse the three convictions and remand for a third trial. Finally, we hold that false imprisonment, while a lesser included offense of CSP II, is not a lesser included offense of CSP III because the crimes have different elements.
FACTS AND BACKGROUND
Victim made a 911 call to the police department and reported that she had just been raped inside her home. Victim stated that she had been unable to see the perpetrator's face throughout the incident. Furthermore, she reported that the perpetrator was armed with a knife during the incident. When the police arrived to interview Victim, Victim realized that her television and VCR were missing from her living room. After the police searched the area, the police noticed a trail of footprints leading from Victim's house to Defendant's house. After receiving consent to enter Defendant's home, the police found a VCR and television with serial numbers that matched those that they had received from Victim. Defendant was arrested for theft of Victim's property.
Subsequently, Defendant admitted that he had had sexual intercourse with Victim on the night in question, although Defendant stated that the intercourse was consensual. Furthermore, Defendant stated that Victim had agreed to lend him her television and VCR. Further investigation by the police led them to discover clothes in Defendant's home that matched those described by Victim as the type worn by the perpetrator. However, even after conducting a thorough search of the area, the police were unable to locate the knife Victim had described as being used by the perpetrator. Although the knife was not found, Defendant was eventually indicted for criminal sexual penetration of Victim while armed with a deadly weapon (CSP II).
Defendant was charged with four counts: Count 1 charged aggravated burglary, Count 2 charged CSP II, Count 3 charged false imprisonment, and Count 4 charged larceny. At the first trial, after the State and Defendant had presented their cases, the four counts were sub
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