With this statutory background, we turn to the double jeopardy analysis and "first ask whether the conduct was unitary, meaning whether the same criminal conduct is the basis for both charges." State v. Reed, 2022-NMCA-025, ¶ 8, 510 P.3d 1261 (internal quotation marks and citation omitted), cert. denied (S-1-SC-39187, May 3, 2022). A. Defendant’s Conduct Was Unitary
Instead, we conclude that "according to the State's theory of the case, articulated to the jury during closing arguments and presented in the jury instructions, there can be no neat delineation between Defendant's actions." See State v. Reed, 2022-NMCA-025, ¶ 12, 510 P.3d 1261; see also State v. Montoya, 2011-NMCA-074, ¶ 43, 150 N.M. 415, 259 P.3d 820 (explaining that the state can avoid double jeopardy violations by identifying specific, nonunitary conduct injury instructions). For that reason, "the completed offense principle does not control."
, we proceed to the second Swafford prong: "whether the Legislature intended to create separately punishable offenses." State v. Reed, 2022-NMCA-025, ¶ 8, 510 P.3d 1261 (text only) (citation omitted). We look first to the language of the statutes themselves to determine whether the Legislature has expressly authorized multiple punishments.
Essentially, we return to the original question presented in the unitary conduct analysis: whether "the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses."State v. Reed, 2022-NMCA-025, ¶ 9, 510 P.3d 1261 (text only) (citation omitted). In order to determine whether different factual bases could be inferred, we consider "the elements of the charged offenses, the facts presented at trial, and the instructions given to the jury."
Because the factual bases for the charged offenses are distinct, Defendant's conduct is not unitary and there is no double jeopardy violation with regard to Defendant's convictions for aggravated assault on a peace officer and evading an officer related to Defendant's interactions with Officer Romero. See State v. Begaye, 2023-NMSC-015, ¶ 20, 533 P.3d 1057 (providing that "the conduct underlying the offenses is unitary" if "the same conduct violates both statutes" (internal quotation marks and citation omitted); see also State v. Reed, 2022-NMCA-025, ¶ 8, 510 P.3d 1261 (explaining that if the conduct is not unitary, "the protection against double jeopardy has not been violated and we proceed no further").
We do not accept the State's parsing of the facts on appeal to avoid a double jeopardy violation. See State v. Reed, 2022-NMCA-025, ¶ 27, 510 P.3d 1261 ("The [s]tate cannot wait for an appeal to adequately separate [the d]efendant's conduct to support each conviction; rather, the [s]tate must do this work below to ensure that distinct conduct supports each charge tried.").
"If it is, we proceed to ask whether the Legislature intended to create separately punishable offenses." State v. Reed, 2022-NMCA-025, ¶ 8, 510 P.3d 1261 (alteration, internal quotation marks, and citation omitted). In this case, the State concedes that the Legislature did not intend multiple punishments under the second step of the Swafford analysis for the charges at issue because battery against a household member is a lesser included offense of aggravated battery against a household member.
{¶8} Because the conduct underlying the two convictions was not unitary, there was no violation of double jeopardy, and we do not reach the second prong of the Swafford analysis to determine legislative intent. See State v. Reed, 2022-NMCA-025, ¶ 8, 510 P.3d 1261.
{¶8} Defendant argues that the conduct underlying the convictions on the resisting charge and the assault charge arose from unitary conduct, which violates double jeopardy protections.See State v. Reed, 2022-NMCA-025, ¶ 8, 510 P.3d 1261 (explaining that convictions violate double jeopardy if they are based on unitary conduct for which the Legislature did not intend multiple punishments). To the contrary, based on the State's arguments and the evidence of Defendant's conduct, we conclude that the convictions do not violate double jeopardy protections, because the resisting charge and assault charge were separated by "sufficient indicia of distinctness" and the conduct was therefore not unitary. See State v. Andazola, 2003-NMCA-146, ¶ 15, 134 N.M. 710, 82 P.3d 77 ("[C]onduct is not unitary if the defendant's acts have sufficient indicia of distinctness."); State v. DeGraff, 2006-NMSC-011, ¶¶ 28-30, 139 N.M. 211, 131 P.3d 61 (evaluating unitary conduct based on the statutory definitions of the crime, the jury instructions, and the evidence presented at trial).
State v. Reed, 2022-NMCA-025, ¶ 31, 510 P.3d 1261 (citations omitted) (text only).