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State v. Santillanes1/10/2000
{1} In this appeal, we address whether a defendant can be punished for a single death under two different statutes. Under the specific facts of this appeal, we answer that question negatively. Defendant appeals his convictions of five counts of vehicular homicide, contrary to NMSA 1978, § 66-8-101 (1991), and four counts of child abuse resulting in death, contrary to NMSA 1978, § 30-6-1(C) (1997), along with driving while intoxicated (DWI) and other related offenses. Defendant's convictions resulted from a traffic accident in which five persons were killed, four of them children. Defendant contends that the vehicular homicide and child abuse convictions violated the prohibition against double jeopardy. He also raises other issues involving the sentence he received for the vehicular homicides, merger of the DWI conviction, the jury instructions on reckless driving, the change of venue, and instructions on causation relating to the vehicular homicide charges. We affirm the vehicular homicide convictions but reverse on the double jeopardy and merger issues. We therefore remand to the trial court to (1) vacate the convictions for child abuse resulting in death and DWI and (2) resentence Defendant. We affirm on all other issues.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} On the day of the accident giving rise to the criminal charges, Defendant was driving a motor vehicle. His girlfriend and four children were in the vehicle with him. As Defendant approached an intersection where he was going to make a left-hand turn, he saw a truck "quite a ways off." He proceeded through the intersection. The truck, which was traveling much faster than the posted speed limit, hit Defendant's vehicle, killing everyone in the vehicle but Defendant. Evidence established that Defendant had a blood alcohol level of .15 at the time of the accident. The blood alcohol level of the other driver was .23. Defendant admitted to drinking as much as a six-pack of beer that day. There was an open container of beer found in the vehicle after the crash. He also admitted to smoking marijuana that morning and having taken cocaine the night before. The cocaine was detected in Defendant's blood. We include additional facts in our discussion of the issues.
II. DISCUSSION
A. Double Jeopardy
{3} Defendant was convicted of nine homicide crimes-five counts of vehicular homicide and four counts of child abuse resulting in death. He contends these convictions impermissibly subject him to multiple punishment for four of the five deaths caused by the accident. See U.S. Const. amends. V, XIV; N.M. Const. art. II, § 15. Defendant raises this issue for the first time on appeal. See NMSA 1978, § 30-1-10 (1963) (providing that the "defense of double jeopardy . . . may be raised by the accused at any stage of a criminal prosecution").
{4} In cases involving multiple punishment, we apply a two-step process. Swafford v. State, 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991). We first must determine whether a defendant's conduct was unitary. If it was not, then there is no double jeopardy violation and our analysis ends. See State v. Livernois, 1997-NMSC-019, 19, 123 N.M. 128, 934 P.2d 1057. If the conduct was unitary, however, then we must consider whether the legislature intended to create separately punishable offenses. In determining whether conduct is unitary, we "inquire into whether `two events are sufficiently separated by either time or space (in the sense of physical distance between the places where the acts occurred) . . . [or whether] the quality and nature of the acts or . . . the objects and results involved' can be distinguished." Id. 20 (quoting Swafford, 112 N.M. a
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