STATE V. CRAIN, 1997-NMCA-101, 124 N.M. 84, 946 P.2d 1095
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
MICHAEL LEE CRAIN, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1997-NMCA-101, 124 N.M. 84, 946 P.2d 1095
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY. W. John Brennan, District Judge.
Cert. denied, SC24,654, September 30,
1997. Released for Publication October 6, 1997.
TOM UDALL, Attorney General, JOAN M.
WATERS, Assistant Attorney General, Santa Fe, NM, for Appellee.
T. GLENN ELLINGTON, Chief Public
Defender, LAUREL A. KNOWLES, Assistant Appellate Defender, Santa Fe, NM, for
Appellant.
M. CHRISTINA ARMIJO, Judge. WE CONCUR:
LYNN PICKARD, Judge, MICHAEL D. BUSTAMANTE, Judge.
AUTHOR: M. CHRISTINA ARMIJO
{1} Defendant appeals
from his convictions for kidnapping and two alternative counts of criminal
sexual penetration in the second degree (CSP II). The grounds for Defendant's
appeal are that: (1) the trial court erred in its jury instructions for the
crime of CSP II; (2) Defendant was subjected to double jeopardy when he was
sentenced to multiple punishments for the same offense; and (3) the cumulative
errors of Defendant's trial counsel deprived Defendant of his right to
effective assistance of counsel. "Issues raised in the docketing statement
but not briefed are deemed abandoned."
State v. Ramos,
115 N.M.
718, 720,
858 P.2d 94, 96 (citation omitted). Because we are not persuaded that
the legislature intended multiple punishments for the same offense or that the
legislature intended to punish every CSP that resulted from force and restraint
as a second-degree felony, we remand this case to the trial court with
instructions to vacate Defendant's conviction and sentence for kidnapping and
CSP II in the commission of a kidnapping. We affirm Defendant's remaining
conviction and sentence for CSP II resulting in personal injury.
{2} Defendant's
convictions arose from an evening of drinking and dancing at a country-western
bar in Albuquerque, New Mexico, on August 21 and 22, 1993. The victim was a
prior acquaintance of Defendant who spent time with him at the nightclub that
evening and followed him to his car near closing time to go to breakfast. The
victim entered Defendant's car and the two talked, smoked, and kissed
initially. Defendant and the victim then engaged in sexual intercourse in
Defendant's car.
{3} According to the
victim's testimony, she resisted from the beginning and did not consent to have
sexual intercourse at any time. The victim testified that she kicked and fought
and tried to escape, but Defendant prevented her from opening the car door. She
explained that she yelled "Daddy, Daddy, please stop" during the attack
because
{*87} "what [Defendant] was
doing to me reminded me of how my father was with me as a child." The
victim further testified that she had been sexually abused as a child by her
father.
{4} According to
Defendant's testimony, his sexual intercourse with the victim was consensual
and ended when he promptly and voluntarily withdrew from the victim as she
stated "Daddy, Daddy," and began to yell at him. Defendant
interpreted the victim's statement to mean that "maybe she was fantasizing
something."
{5} After the
incident, the victim was taken to a hospital where the treating physician
observed bruises and scratches on her body. The victim's arm was in a sling and
she was upset. No test results were presented at trial because the parties
stipulated that Defendant had sexual intercourse with the victim.
{6} On January 21,
1994, Defendant was indicted on alternative counts of CSP II in violation of
NMSA 1978, §
30-9-11(D) (Repl. Pamp. 1994), kidnapping (no great bodily harm)
in violation of NMSA 1978, §
30-4-1 (Repl. Pamp. 1994), and aggravated battery
in violation of NMSA 1978, §
30-3-5 (Repl. Pamp. 1994). A jury trial commenced
on September 13, 1994. At the close of evidence, the trial court dismissed the
aggravated battery charge.
{7} The jury was given
essential-elements instructions patterned on the uniform jury instructions
(UJIs) for CSP II (personal injury), UJI
14-949 NMRA 1997, CSP II (commission
of a felony), UJI
14-954 NMRA 1997, and kidnapping (no great bodily harm), UJI
14-403 NMRA 1997. The jury also was given definitional instructions for the
terms "sexual intercourse" and "hold for service." These
definitional instructions were patterned on UJI
14-982 NMRA 1997 and SCRA 1986,
14-405 (withdrawn 1993). The trial court refused the following instruction
tendered by Defendant:
Should you find that [the victim] did consent to have
sexual intercourse with Defendant, and that her later admonition for Defendant
to cease such intercourse was under her misapprehension that Defendant was her
father, then you must return your verdict of not guilty as to all counts.
{8} During
deliberations, the jury sent the following question to the trial court:
"If the women [sic] says no after the sex act begins, does continuing
constitute rape[?]" In chambers with counsel present, the trial court
stated: "The way I propose to answer the question is that, 'I'm sorry. I
cannot answer that question. You'll have to rely on the instructions and the
evidence.'" Neither Defendant nor the State objected to the Court's proposed
answer.
{9} On September 19,
1994, the jury returned a verdict of guilty on both alternative counts of CSP
II and the kidnapping charge. On April 3, 1995, the trial court sentenced
Defendant to nine years on each of the three charges, ordered that all three
sentences would run concurrently, and suspended eight years and six months of
the nine-year sentences. This appeal followed.
{10} Defendant claims
it was reversible error to refuse the instruction tendered by his trial counsel
regarding the purported effect of the victim's misapprehension that Defendant
was her father. Defendant also claims that the trial court's refusal to provide
an instruction on the victim's withdrawal of consent during intercourse in response
to a question from the jury amounts to a more fundamental error of failing to
instruct on essential elements of the offense. On appeal, Defendant argues that
the trial court failed to define the terms "sexual intercourse" or
"penetration" in a manner that would exclude from the crime of CSP II
those acts of sexual intercourse or penetration that begin with the victim's
consent.
{11} We conclude that
the trial court's decision not to provide an additional definitional
instruction regarding these terms in response to the jury's question did not
amount to fundamental error because a failure to give a definitional
instruction is not a failure to instruct on an essential element.
See Ramos,
115 N.M. at 725, 858 P.2d at 101. The jury was given the UJI defining
"sexual
{*88} intercourse,"
UJI 14-982, and we conclude that the instructions given adequately covered the
law.
See State v. Stettheimer,
94 N.M. 149, 154,
607 P.2d 1167, 1172 .
{12} The trial court's
instructions to the jury also did not deprive Defendant of his right to present
his theory of the case. Defendant's theory at trial was that the entire act of
sexual intercourse was consensual because Defendant promptly and voluntarily
withdrew from the victim when she began to say "Daddy, Daddy." The essential-elements
instructions given to the jury adequately covered the concept of lack of
consent, and Defendant's trial counsel reinforced this concept in his closing
argument by asserting that the State had the burden of proving that the
intercourse was not consensual.
{13} We construe
Defendant's tendered instruction regarding the victim's misapprehension that
Defendant was her father as raising a separate issue of mistaken identity or a
challenge to the victim's credibility. This instruction was not sufficient to
alert the mind of the trial court to an issue of withdrawal of consent or the
victim's change of mind during intercourse. The issue of withdrawal of consent
during intercourse did not arise until the jury submitted a question to the
trial court during deliberations. The lack of an objection by Defendant's trial
counsel to the trial court's decision not to instruct the jury on withdrawal of
consent at this point is consistent with Defendant's theory that the entire act
of sexual intercourse was consensual.
{14} For these
reasons, we also conclude that Defendant's tendered instruction on the victim's
misapprehension that Defendant was her father was not sufficient to preserve
Defendant's claim on appeal that it was reversible error for the trial court
not to instruct the jury on withdrawal of the victim's consent after sexual
intercourse had begun.
See Rule
5-608(D) NMRA 1997 ("Objection to
any instruction given must be sufficient to alert the mind of the court to the
claimed vice therein, or, in case of failure to instruct on any issue, a
correct written instruction must be tendered before the jury is
instructed."). We affirm the trial court's decision regarding the use of
jury instructions for CSP II in this case.
{15} Defendant alleges
that his constitutional right to be free from double jeopardy was violated
because he was convicted and given distinct sentences for CSP II (personal
injury) under Section 30-9-11(D)(2), CSP II (commission of a felony) under
Section 30-9-11(D)(4), and kidnapping (no great bodily harm) under Section
30-4-1. We review Defendant's double jeopardy claims on appeal despite
Defendant's failure to raise these claims before the trial court or in his
docketing statement because double jeopardy claims are not waivable.
See
NMSA 1978, §
30-1-10 (Repl. Pamp. 1994);
State v. Sanchez,
122 N.M. 280,
283,
923 P.2d 1165, 1168 (Ct. App.),
cert. denied,
122 N.M. 279,
923
P.2d 1164 (1996).
{16} Defendant's
double jeopardy claims are limited to the issue of multiple punishments for the
same offense. On this issue, "'the Double Jeopardy Clause does no more
than prevent the sentencing court from prescribing greater punishment than the
legislature intended.'"
Swafford v. State,
112 N.M. 3, 7,
810 P.2d
1223, 1227 (1991) (quoting
Grady v. Corbin, 495 U.S. 508, 516-17, 109 L.
Ed. 2d 548, 110 S. Ct. 2084 (1990),
overruled by U.S. v. Dixon, 509 U.S.
688, 125 L. Ed. 2d 556, 113 S. Ct. 2849 (1993)).
{17} All of
Defendant's convictions stem from the same act of sexual intercourse and
involve the use of force or physical violence as a common element. The jury
instructions for CSP II (personal injury) involve "use of physical force
or physical violence" which "resulted in scrapes or bruises or an
injured hand or arm or shoulder, or neck to" the victim. The jury
instructions for CSP II (commission of a felony) involve sexual intercourse
"during commission of Kidnapping (No Great Bodily Harm)." The
elements of jury instruction for the underlying felony of kidnapping are
restraint or confinement of the victim by force or deception and Defendant's
intent to hold the victim for service against her will. Because
{*89} both forms of CSP II and the kidnapping
charge involve the use of force during the same act of sexual intercourse, we
conclude that the conduct underlying all of Defendant's convictions is unitary.
The same conduct violates all three statutory provisions.
See Swafford,
112 N.M. at 13, 810 P.2d at 1233.
{18} We next look for
evidence that the legislature intended to provide for multiple punishments for
CSP II (personal injury), CSP II (commission of a felony), and kidnapping
relating to the same conduct.
Id. Such evidence may be found in an
express provision of the statute, or a presumption in favor of multiple
punishment may be established if each crime requires proof of a fact that the
other does not.
Id. at 14, 810 P.2d at 1234. In this case we find no
express provision calling for multiple punishments. However, we conclude that
the elements of CSP II (commission of a felony) and kidnapping require proof of
a fact that CSP II (personal injury) does not.
{19} While all of the
crimes at issue in this case may share the use of force as a common element,
CSP II (commission of a felony) and kidnapping require proof of a result or
purpose that is distinct from the one required for CSP II (personal injury).
CSP II (personal injury) requires proof of an injury resulting from the use of
force during the commission of the offense.
See § 30-9-11(D)(2); UJI
14-949 NMRA 1997. CSP II (commission of a felony) involving the underlying
felony of kidnapping requires proof that force or deception was used for the
purpose of restraining or confining the victim and with the intent of holding
the victim for service.
See §§ 30-9-11(D)(4), 30-4-1; UJI 14-954,
14-403
NMRA 1997. Because CSP II (personal injury) involves proof of facts that CSP II
(commission of a felony) and kidnapping do not require, we conclude that there
is a presumption that the CSP statutes punish different offenses.
See Swafford,
112 N.M. at 14, 810 P.2d at 1234.
{20} However, this
presumption is not conclusive and may be overcome by other indicia of
legislative intent.
Id. "Since legislatures often produce little
evidence of their intent regarding multiple punishment, the rule of lenity is
often an appropriate tool of statutory construction in such contexts."
State
v. Landgraf,
121 N.M. 445, 454,
913 P.2d 252, 261 (Ct. App.),
cert.
denied,
121 N.M. 375,
911 P.2d 883 (1996). Applying this rule, we have held
in prior cases that the enumeration of different aggravating factors, or
alternative methods of committing an offense, did not evince a legislative
intent to authorize multiple punishments for the same act.
See id.
(barring multiple punishments for same offense under homicide by vehicle
statute);
State v. Orgain,
115 N.M. 123, 125,
847 P.2d 1377, 1379
(legislature intended only one conviction for each forgery related to the same
facts involving the same check);
State v. Williams,
105 N.M. 214, 217,
730 P.2d 1196, 1199 (Ct. App. 1986) (barring multiple punishments for same
offense under criminal sexual contact statute);
cf. UJI
14-905 NMRA 1997
committee commentary (Although statutes on sexual offenses set forth
alternative methods for committing the offenses, "in all cases where
alternate methods of committing one offense are submitted to the jury, the
defendant is being charged with only one offense and may be found guilty of
only one offense."). Based on these authorities, we conclude that the
legislature has not manifested a clear intent that Defendant's single act of
sexual intercourse with the victim could provide the basis for convicting him
of both CSP II (personal injury) and CSP II (commission of a felony).
Therefore, Defendant's conviction and sentence for one of these CSP II offenses
must be set aside. The question of which CSP conviction must be set aside is
answered by consideration of Defendant's next issue.
{21} Defendant also
argues that there was insufficient evidence to support convictions for CSP II
(commission of a felony) and kidnapping (no great bodily harm). Defendant
relies on
State v. Pisio,
119 N.M. 252, 259, 261-62,
889 P.2d 860, 867,
869-70 , and
State v. Corneau,
109 N.M. 81, 87,
781 P.2d 1159, 1165 (Ct.
App. 1989). There, we held that the legislature did not intend to turn every
CSP III into CSP II just because force or restraint was involved. Rather, in
order to raise the offense to CSP
{*90} II,
there had to be force or restraint beyond that necessarily involved in every
sexual penetration without consent. We agree with Defendant and hold here that,
just as CSP III cannot be charged as CSP II without some force or restraint
occurring either before or after the sexual penetration without consent, so too
kidnapping cannot be charged out of every CSP III without some force,
restraint, or deception occurring either before or after the sexual
penetration.
{22} The State argues
that there are such facts in this case in that the kidnapping involved acts of
deception by Defendant that occurred much earlier than the sexual intercourse.
However, this argument is inconsistent with the State's theory at trial that
the kidnapping was accomplished by force. Also, the jury's verdict does not
indicate whether it found the kidnapping was accomplished by force or by deception,
and therefore we do not know on which of these alternatives Defendant's
kidnapping conviction was based. Under these circumstances, we will presume
that the conduct underlying Defendant's convictions for kidnapping and CSP II
(commission of a felony) was based on a theory that potentially violated
Defendant's double jeopardy rights.
See State v. Rodriguez,
113 N.M.
767, 772,
833 P.2d 244, 249 (when crime is presented to jury in alternative and
appellate court cannot tell if jury found constitutional or unconstitutional
alternative, conviction must be set aside). Accordingly, Defendant's conviction
for CSP II (commission of a felony), as well as his conviction for kidnapping,
must be set aside.
C. Ineffective Assistance of Counsel.
{23} On appeal,
Defendant alleges that his trial counsel committed several errors which had the
cumulative effect of depriving Defendant of effective assistance of counsel,
namely: (1) introduction of Defendant's character into evidence through the use
of a character witness; (2) calling two witnesses who gave contradictory
testimony regarding the operation of the door locks on Defendant's car; (3)
failure to raise the issue of withdrawal of consent or object to the trial
court's proposed answer to the jury's question regarding this issue; (4)
failure to object to the trial court's refusal of a jury instruction tendered
by Defendant regarding the victim's misapprehension that Defendant was her
father; (5) failure to object to testimony by the victim's treating physician according
to which the victim said the man who raped her was named Michael; (6) failure
to object to the form of the prosecutor's questions (leading questions) during
cross-examination of Defendant's character witness; (7) failure to move for a
new trial after the trial court expressed some doubt about Defendant's guilt at
the sentencing hearing; (8) failure to call an expert witness on the effects of
childhood sexual abuse on the victim; (9) failure of trial counsel to
adequately listen to the proceedings due to a hearing problem; and (10) failure
to move for a directed verdict on the charges of kidnapping and CSP II
(commission of a felony).
{24} We address these
claims of ineffective assistance of counsel under the two-part test derived
from
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104
S. Ct. 2052 (1984). Defendant argues in his brief that we should interpret the
guarantee of effective assistance of counsel in the New Mexico Constitution
differently than its federal counterpart. However, we choose to follow our
prior decisions adopting and applying the
Strickland test, particularly
when the New Mexico Supreme Court has recently used that test.
See State v.
Lopez,
122 N.M. 63, 70,
920 P.2d 1017, 1024 (1996) (utilizing the
Strickland
Test);
State v. Wilson,
116 N.M. 793, 795-96,
867 P.2d 1175, 1177-78
(1994) (stating that it is desirable to make the law certain and holding that
Court of Appeals is bound by Supreme Court precedent). To prevail under the
Strickland
test, Defendant "must prove that defense counsel did not exercise the
skill of a reasonably competent attorney and that this incompetent
representation prejudiced the defendant's case, rendering the trial court's
results unreliable."
Lopez, 122 N.M. at 70, 920 P.2d at 1024.
{25} Regarding claims
(1), (2), and (3), we regard trial counsel's choice and presentation of
defenses and defense witnesses as falling within the ambit of trial tactics and
strategy.
See State v. Martinez,
122 N.M. 476, 484,
{*91}
927 P.2d 31, 39 (Ct. App.) (citation omitted),
cert. denied,
122
N.M. 416,
925 P.2d 882,
and cert. denied 122 N.M. 578,
929 P.2d 269
(1996). "Trial counsel's strategic choice made as a result of
investigation as to what defense to pursue is 'virtually
unchallengeable.'"
State v. Baca,
115 N.M. 536, 543,
854 P.2d 363,
370 (quoting
Strickland, 466 U.S. at 690). Hence, we do not find that
Defendant's trial counsel was ineffective in his choice and presentation of
defense witnesses as alleged in claims (1) and (2).
{26} We elaborate
further on claim (3). On appeal, Defendant argues that his trial counsel was
ineffective in failing to advance a withdrawal-of-consent theory either at
trial or during jury deliberations when presented with a question from the
jury. At trial, however, Defendant advanced the theory that the entire act of
sexual intercourse was consensual and attacked the victim's credibility by
arguing that she mistakenly accused Defendant of raping her because she was
upset by prior sexual abuse involving her father. From the record before us, it
appears that Defendant's trial counsel made the strategic or tactical decision
to rely entirely on the theory of consent and mistaken identity instead of
presenting an alternative theory of withdrawal of consent after penetration has
begun. We cannot say that Defendant's trial counsel failed to exercise the
skill of a reasonably competent attorney in making this decision.
{27} Although we do
not rule on the merits of the issue of withdrawal of consent under New Mexico
law, we note that other jurisdictions have questioned the legal validity of the
proposition that there can be no rape or CSP crime if the victim's consent is
withdrawn after penetration has begun.
State v. Crims, 540 N.W.2d 860,
865 (Minn. Ct. App. 1995);
See State v. Siering, 35 Conn. App. 173, 644
A.2d 958, 961-63 (Conn. App. Ct. 1994);
State v. Robinson, 496 A.2d
1067, 1069-71 (Me. 1985). Noting the questionable legal validity of the
withdrawal-of-consent theory in other jurisdictions and the evidence presented
at trial, we do not find that Defendant's trial counsel acted unreasonably in
declining to present or rely upon this novel theory.
{28} We regard claims
(4) through (8) as insufficiently prejudicial to render the trial court's
results unreliable. Our disposition of the issue of instructional error
precludes a showing of prejudice regarding claim (4). Since we hold that the
jury instructions given by the trial court adequately covered Defendant's
theory that the entire act of sexual intercourse was consensual, we also conclude
that Defendant was not prejudiced by his trial counsel's failure to object to
the trial court's refusal of his tendered instruction on the victim's
misapprehension that Defendant was her father.
Cf. Lopez, 122 N.M. at
70, 920 P.2d at 1024 (disposition of issue regarding instructional error
precluded showing of ineffective assistance).
{29} Regarding claim
(5), the failure to object to the treating physician's hearsay statement was
insufficiently prejudicial because it was cumulative of the testimony of the
victim and other witnesses concerning the offender's identity.
See State v.
Martinez,
99 N.M. 48, 52,
653 P.2d 879, 883 (admission of objectionable
testimony may be harmless error where testimony is cumulative of other
evidence). Regarding claim (6), the failure to object to the form of the
prosecutor's questions was insufficiently prejudicial because the trial court
objected on Defendant's behalf and put a stop to the improper form of
questioning.
{30} Regarding claim
(7), a motion for a new trial on grounds other than newly discovered evidence
must be made within ten days after the verdict or within such further time as
the trial court may fix during that ten-day period.
See Rule
5-614 NMRA
1997. The record does not indicate that the trial court extended the time to
move for a new trial until the date of the sentencing hearing, more than four
months after the verdict was reached, and the trial court's statements
regarding its doubts about Defendant's guilt do not constitute "newly
discovered evidence." Indeed, a jury's verdict will not be set aside
solely on the basis that the trial court is not satisfied beyond a reasonable
doubt of the defendant's guilt.
See State v. Garcia,
84 N.M. 519, 521,
505 P.2d 862, 864 . Hence, we find no
{*92} merit
to Defendant's claim that he was prejudiced by his trial counsel's failure to
move for a new trial in response to the trial court's remarks at the sentencing
hearing.
{31} Regarding claim
(8), Defendant cites
State v. Hernandez,
115 N.M. 6,
846 P.2d 312 (1993),
to support the proposition that his trial counsel rendered ineffective
assistance by failing to call an expert witness on the effects of childhood
sexual abuse on the victim. However, in
Hernandez, 115 N.M. at 17, 846
P.2d at 323, the Court held that, even if it were to assume for the purposes of
argument that the failure to call an expert witness fell below the standard of
a reasonably competent attorney, the defendant did not show that he was
sufficiently prejudiced by this failure. In the present case, a showing of
prejudice to Defendant also is lacking for two reasons.
{32} First, it is not
clear to what extent evidence of the victim's past sexual abuse would be
admissible under New Mexico's rape-shield law, NMSA 1978, §
30-9-16 (Repl.
Pamp. 1994),
see Ramos, 115 N.M. at 724, 858 P.2d at 100, or other rules
of evidence.
See, e.g.,
State v. Scott,
113 N.M. 525, 529-30,
828
P.2d 958, 962-63 (construing SCRA 1986, 11-608(B), and citing general rule that
extraneous evidence regarding collateral matters is not admissible). The
question of the relevancy of past sexual conduct is not raised by asserting
that it exists; Defendant must show a reasonable basis for believing that such
conduct is pertinent to a material issue in the case.
State v. Herrera,
92 N.M. 7, 16,
582 P.2d 384, 393 (Ct. App. 1978). In this case, the victim
testified that she "knew what was happening" and that she did not
"have the Defendant confused with somebody else" when she said
"Daddy, Daddy, please stop." Under these circumstances, we find no
reasonable basis to conclude that expert testimony regarding the victim's
childhood trauma or any psychological counseling she may have received would be
probative of her ability to comprehend, know, recall, and correctly relate the
truth about the incident at issue.
See Ramos, 115 N.M. at 724, 858 P.2d
at 100.
{33} Second, apart
from the conjecture of Defendant's appellate counsel, there is nothing in the
record to indicate that a defense expert was available to testify regarding the
victim's past sexual abuse or what the content of this testimony would have
been. Defendant has not made a prima facie case that the testimony of an expert
witness would have rebutted the State's evidence to such an extent that it
amounts to a showing of prejudice under the second prong of the
Strickland
test.
See Martinez, 122 N.M. at 484, 927 P.2d at 39 ("This Court
has expressed its preference for habeas corpus proceedings over remand when the
record on appeal does not establish a prima facie case of ineffective
assistance of counsel.").
{34} Regarding claim
(9), we find that Defendant has not established a prima facie case that his
trial counsel's alleged hearing problem or failure to listen to the proceedings
deprived Defendant of the effective assistance of counsel.
See id. The
record on appeal in this case indicates that the trial court and even the
prosecutor took several measures to accommodate trial counsel's needs, such as
installing computers and hearing devices in the courtroom, instructing
witnesses to speak directly into the microphone, and sending the jury out so
the attorneys could speak louder and closer to the microphone during side-bar
discussions. In addition, the record shows that trial counsel notified the
trial court and directed the speaker to "start over" when he was
unable to hear. Defendant admits that "the record does
not--cannot--show" the possible times when trial counsel "missed
something." Hence, we do not remand on this claim of ineffective
assistance.
{35} Regarding claim
(10), our disposition of Defendant's double jeopardy claim makes it unnecessary
to reach the issue of whether Defendant was prejudiced by his trial counsel's
failure to move for a directed verdict on the charges of kidnapping and CSP II
(commission of a felony). Given our rulings on the issues of instructional
error and double jeopardy, the cumulative impact of any errors by Defendant's
trial counsel was slight.
See State v. Woodward,
121 N.M. 1, 12,
908
P.2d 231, 242 (1995). We conclude from our review of the record that Defendant
was not denied effective assistance of counsel.
{36} For the foregoing
reasons, we remand this case to the trial court with instructions to vacate
Defendant's conviction and sentence for kidnapping and Defendant's conviction
and sentence for CSP II (commission of a felony). We affirm Defendant's
remaining conviction and sentence for CSP II (personal injury).
M. CHRISTINA ARMIJO, Judge
MICHAEL D. BUSTAMANTE, Judge