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State v. Fielder6/22/2005
al charge might have on the jury's conviction on the remaining charges. If we cannot determine the effect, retrial on the remaining charges is necessary. Thus, we reverse the CSP III, aggravated burglary, and false imprisonment convictions and remand them for a new trial.
4. CSP III and False Imprisonment are Separate Offenses Upon which a Defendant may be Separately Convicted and Sentenced
Defendant claims that his double jeopardy rights were also violated by his conviction and sentence for both CSP III and false imprisonment based on the same facts. He relies on State v. Pisio, 119 N.M. 252, 259, 261-62, 889 P.2d 860, 867, 869-70 (Ct. App. 1994), and State v. Corneau, 109 N.M. 81, 87-88, 781 P.2d 1159, 1165-66 (Ct. App. 1989). However, those cases involved CSP II in the commission of a felony where the felony was the restraining of the victim that could occur during any CSP. Pisio, 119 N.M. at 259-60, 889 P.2d at 867-68; Corneau, 109 N.M. at 85-87, 781 P.2d at 1163-65. The State properly argues, relying on Swafford v. State, 112 N.M. 3, 14, 810 P.2d 1223, 1234 (1991), that reviewing the elements of these crimes is the proper test to determine if double jeopardy is violated by separate convictions and sentences. So doing, it can be seen that the commission of a felony is an element of CSP II committed in the commission of a felony whereas the elements of CSP III and false imprisonment are distinct. CSP III requires sexual conduct perpetrated through force or coercion, whereas false imprisonment does not require sexual conduct and requires knowledge that the perpetrator has no authority to restrain or confine the victim. See NMSA 1978, § 30-4-3 (1963); NMSA 1978, § 30-9-11(A), (E) (2003). The difference in elements, according to Swafford, gives rise to a presumption that the legislature intended separate punishments. 112 N.M. at 14, 810 P.2d at 1234.
We next look at the social evils sought to be prevented, construing them narrowly, as well as the quantum of punishment for each offense. Id. at 14-15, 810 P.2d at 1234-35. The CSP statute is designed to prevent unwanted sexual violence while the false imprisonment statute is designed to prevent unlawful restraint of any sort. See id. at 15, 810 P.2d at 1235 (discussing the difference between the elements of CSP and incest). In addition, CSP III is a third degree felony punishable by three years of imprisonment while false imprisonment is a fourth degree felony punishable by one and one-half years of imprisonment. See § 30-4-3; § 30-9-11(D)(5); NMSA 1978, § 31-18-15(A)(7), (8) (2003). If there is a CSP that is committed during the commission of a separate false imprisonment, the crime may be punished as CSP II, which is a second degree felony punishable by nine years of imprisonment. See § 30-9-11; § 31-18-15(A)(4). Under these circumstances, we believe that the legislature likely intended CSP III and false imprisonment to be separately punished by four and one-half years of imprisonment in appropriate cases within the prosecutor's discretion.
Defendant argues, however, that the Swafford analysis is not correctly applied to his offenses in the above manner because this Court has already decided, in State v. Crain, 1997-NMCA-101, 15-22, 124 N.M. 84, 946 P.2d 1095, that the legislature did not intend separate punishment for every offense of restraint that is necessarily included as a factual matter within every offense of CSP. We do not agree that Crain went so far.
Crain concerned a defendant who was convicted of two counts of CSP II (one with personal injury and one in the commission of a felony) and of the separate charge of kidnapping. Id. 15. The kidnapping itself was the very felony involved in
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