Both the fifth amendment to the United States Constitution and article II, section 15 of the New Mexico Constitution preclude the imposition of multiple punishments for one act or offense. See State v. Boeglin, 90 N.M. 93, 559 P.2d 1220 (Ct.App. 1977) (a single offense may not be split into many parts and made the subject of multiple prosecutions); see also State v. Sandoval, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486 (1977) (merger is an aspect of double jeopardy and involves a determination of whether more than one offense has occurred); State v. Altgilbers, 109 N.M. 453, 786 P.2d 680 (Ct.App. 1989). We hold that defendant's convictions under Counts 23 and 24 for child abuse not resulting in death or great bodily harm constitute a single offense because the evidence does not establish that the two charges occurred at a time period different from each other or that they were inflicted during separate episodes of child abuse other than the incident which resulted in the child's death.

Santillanes, 2000-NMCA-017, ¶ 9; see Pierce, 110 N.M. at 85, 792 P.2d at 417 ("These offenses merged into the greater offense of first-degree murder."). In Pierce, we relied on the articulation of the merger doctrine by the Court of Appeals in State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App. 1977). Pierce, 110 N.M. at 85-86, 792 P.2d at 417-18.

Merger is an aspect of double jeopardy; the concept is applied to prevent a person from being punished twice for the same offense. State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct. App.), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977). The test of whether one criminal offense has merged with another is whether one offense necessarily involves the other.

Nevertheless, the Court did not examine the defendant's conduct, but instead examined the statutory elements of burglary and larceny and concluded that since stealing, a necessary element of larceny, was not an element of burglary, the convictions did not merge. Id. at 111, 428 P.2d at 650; see also State v. Sandoval, 90 N.M. 260, 263, 561 P.2d 1353, 1355 (Ct.App. 1977) (aggravated battery conviction not merged with armed robbery conviction after comparison of statutory elements under necessarily involved test). Cast as an examination of the statutory elements in the abstract, the necessarily involved test is equivalent to the same evidence test as interpreted by Stephens.

We note at the outset that plaintiffs' claim of breach of contract between plaintiffs and defendants was not briefed to this Court; hence, we deem it to be abandoned. SCRA 1986, 12-216; State v. Sandoval, 90 N.M. 260, 261, 561 P.2d 1353, 1354 (Ct.App.), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977). A motion to dismiss tests the legal sufficiency of the complaint.

In Smith, supra, this Court repeated that two offenses "merge" if one offense necessarily involves the other. See State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App. 1977), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977). But in Smith, we implied that ultimately the test for merger is the same evidence test, or whether the same facts offered in support of one offense will sustain a conviction of the other.

The facts offered in support of one of the counts here would sustain a conviction of all the other counts, except that each of the counts charged Smith with trafficking in a different drug. In State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App. 1977), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977), relied on by the Court of Appeals here in merging the four counts, the issue was whether the defendant could be charged with armed robbery and aggravated battery as a result of only one criminal act or occurrence. The Court of Appeals there held that the same evidence test did not apply, since the facts required to be proved for the two offenses differed.

In the past, New Mexico courts have used several concepts in determining whether two crimes constitute the same offense. See State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App. 1977); State v. Tanton, 88 N.M. 5, 536 P.2d 269 (Ct.App. 1975) ( Tanton I) overruled in part; State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975) ( Tanton II). "Merger" is the name applied to the concept of multiple punishment when multiple charges are brought in a single trial.

The policy against fragmentation of criminal proceedings set forth by the New Jersey court echoes that which was previously established by this Court in adult criminal cases. See State v. Tijerina, 86 N.M. 31, 519 P.2d 127 (1973), cert. denied, 417 U.S. 956, 94 S.Ct. 3085, 41 L.Ed.2d 674 (1974); State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App. 1977), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977). The court's original order transferring jurisdiction over appellant on the matters alleged in the second petition was proper.

The "same evidence" test has been adopted as the law in New Mexico. Tanton, supra; State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App. 1977), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977). In the case before us, different elements were required to be proved in order to sustain each of the three convictions, and different evidence was admitted to prove the different elements.