The Court of Appeals found insufficient evidence to sustain the eight convictions because the permit at issue-the existence of which was an element of each offense-had expired. State v. Villa, 2003-NMCA-142, ¶ 10, 134 N.M. 679, 82 P.3d 46. We affirm the Court of Appeals' holding on this issue.
the jury was not instructed on that offense if (1) defendant has been given his day in court, (2) all the elements of the lesser included offense are contained in the more serious offense and (3) defendants guilt of the lesser included offense is implicit in, and part of, the jury verdict") (internal quotes omitted); Shields v. State, 722 So.2d 584 (Miss. 1998) (reviewing cases on both sides of the issue and, in a divided opinion, holding that a sentencing remand may be proper even though the lesser included offense was not charged to the jury; majority concluded the result was appropriate because record contained evidence sufficient to support a conviction on the lesser offense); People v. Patterson, 187 Colo. 431, 532 P.2d 342 (1975) (sentencing remand may be proper even though lesser included offense was not charged to jury; court reasoned defendant has been given his day in court and his guilt of lesser included offense is implicit and part of jury's verdict on greater offense); State v. Villa, 134 N.M. 679, 82 P.3d 46, 53-55 (Ct.App. 2003) (following Shields, supra, to hold that sentencing remand may be proper even though lesser included offense was not charged to jury), cert. granted December 2, 2003. Other courts will not approve a sentencing remand unless the lesser included offense was submitted to the jury.
In regard to LINKS, even if a current contract were to give rise to a relationship sufficient to bring Defendant under the Act's coverage, we see no basis on which to straddle Defendant with any continuing responsibility based on an expired contract. See State v. Villa, 2003–NMCA–142, ¶ 10, 134 N.M. 679, 82 P.3d 46 (holding that there was insufficient evidence to charge the defendant with violation of a permit when the permit was technically not in effect), aff'd in part, rev'd in part on other grounds by 2004–NMSC–031, 136 N.M. 367, 98 P.3d 1017. {35} Importantly, even if the LINKS contract relating to Jared were to have been renewed and to have been in force at the time of Jared's death, we are not convinced that it would be the sole basis or even a controlling factor in determining Defendant's legal responsibility under the Act.
In regard to LINKS, even if a current contract were to give rise to a relationship sufficient to bring Defendant under the Act's coverage, we see no basis on which to straddle Defendant with any continuing responsibility based on an expired contract. See State v. Villa, 2003-NMCA-142, ¶ 10, 134 N.M. 679, 82 P.3d 46 (holding that there was insufficient evidence to charge the defendant with violation of a permit when the permit was technically not in effect), aff'd in part, rev'd in part on other grounds by 2004-NMSC-031, 136 N.M. 367, 98 P.3d 1017. {35} Importantly, even if the LINKS contract relating to Jared were to have been renewed and to have been in force at the time of Jared's death, we are not convinced that it would be the sole basis or even a controlling factor in determining Defendant's legal responsibility under the Act.