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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO, 8 9 v. 10 JOHN FIERRO, 11 Defendant-Appellant. Plaintiff-Appellee, No. 30,443

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 13 John A. Dean, District Judge 14 Gary K. King, Attorney General 15 Ann M. Harvey, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Jacqueline L. Cooper, Acting Chief Public Defender 19 Kathleen T. Baldridge, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 23 SUTIN, Judge. MEMORANDUM OPINION

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Defendant John Fierro was convicted of two counts of criminal sexual

2 penetration in the fourth degree based on his penile penetration of the anus and digital 3 penetration of the vagina of his fifteen-year-old cousin. We must decide whether the 4 sequential penetrations of the victim's orifices, with two different objects, were 5 sufficiently distinct to warrant separate counts of criminal sexual penetration and pass 6 scrutiny under our double jeopardy protections. We hold that Defendant's resulting 7 two convictions do not violate double jeopardy. We therefore affirm the convictions 8 on both counts. 9 Background 10 After Defendant was originally charged with two counts of criminal sexual

11 penetration in the second degree under NMSA 1978, Section 30-9-11(E) (2009), he 12 filed a pretrial motion to dismiss one count on double jeopardy grounds. Defense 13 counsel conceded the facts as alleged by the victim and asked the district court to rule 14 on Defendant's double jeopardy claim. Relying on the State's affidavit for arrest 15 warrant and the summary of facts presented to the court, we set forth the facts as 16 follows. 17 The victim's family explained to investigators that Defendant had been kicked

18 out of his own house and was residing at their house in the meantime. According to 19 the victim, on the night of the incident Defendant bought soft drinks from a local fast-

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1 food restaurant for the victim and other family members. After drinking the beverage 2 given to her, the victim claimed she became tired and went to her room to sleep. She 3 remembered awakening to Defendant entering her room, approaching her bed, and 4 saying "What's up?" She responded, "I'm sleeping" and attempted to go back to sleep 5 by closing her eyes. After which, she felt Defendant pull her pants down and felt "a 6 whole bunch of . . . pain in [her] butt." She remembered the pain "went away," and 7 she was "going to sleep a little bit," but then felt "a lot of pressure in [her] vagina." 8 Afterward she returned to sleep. The victim's penetration claim was corroborated, in 9 the State's opinion, by the results of a medical evaluation that found "evidence of 10 physical injuries or contusions to [both] her anal . . . [and] vaginal opening[s]." 11 Defendant offered further details to the police investigator regarding the

12 penetrations, stating that he was "fingering her vagina" for five to ten minutes when 13 he decided he "was going to go inside her" anus with his penis. He stated that she 14 "turned around," but that he "barely put [his] penis against her ass" when he 15 ejaculated. 16 Sufficiency of the Evidentiary Record for Double Jeopardy Analysis 17 As a threshold matter, the State argues that this Court should forego its double

18 jeopardy analysis because Defendant "has failed to assure an adequate record for 19 review of his claim." While we acknowledge the general validity of the State's legal

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1 citations--that defendants shoulder the evidentiary burden for double jeopardy claims, 2 that counsel's assertions of double jeopardy are neither evidence nor sufficient for 3 double jeopardy review, and that double jeopardy claims must be rejected if they are 4 without a factual basis in the record--we disagree that any of these principles require 5 dismissal of Defendant's claim without further review. 6 Facing two counts of second degree criminal sexual penetration, Defendant

7 attempted to have one count dismissed on double jeopardy grounds, but this attempt 8 failed. He then accepted a plea agreement for two lesser counts of fourth degree 9 criminal sexual penetration. Accordingly, Defendant's case never proceeded to trial 10 and no evidence was submitted through factual hearings. The district court record, 11 however, contains a sufficient factual basis for our review. During the pretrial motion 12 hearing, the parties presented summaries of the facts based on interviews and 13 statements of Defendant and the victim. The affidavit used to support Defendant's 14 arrest warrant provided an additional summary of the facts based on the assigned 15 detective's investigation and was entered into the district court record. And finally, 16 the State provided a summary of the evidence supporting the convictions at the plea 17 hearing. 18 While this Court has recognized that double jeopardy claims require meticulous

19 review of the facts and can rarely be determined on the face of an indictment, State v.

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1 Sanchez, 1996-NMCA-089,

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