Reaffirming Herron: “Sufficient Indicia of Distinctness,” Not an “Incidental Acts” Test, Governs Multiple CSP Punishments Under Section 30-9-11

Introduction

In State v. Urquidi-Martinez (N.M. Feb. 19, 2026) (unpublished), the Supreme Court of New Mexico reviewed—on certiorari—a Court of Appeals decision that had vacated two of Defendant Mario Urquidi-Martinez’s three convictions for criminal sexual penetration (CSP) under NMSA 1978, Section 30-9-11 (2009) on double jeopardy grounds.

The State, as Petitioner/Cross-Respondent, asked the Court to reverse the Court of Appeals and reinstate the two vacated convictions. The central issue was a classic unit of prosecution problem: when multiple CSP counts are charged under a single CSP statute based on one course of conduct, when does the Constitution permit multiple punishments?

The opinion’s practical core is twofold: (1) the Court reaffirmed that Section 30-9-11 is ambiguous as to the unit of prosecution under existing precedent, and (2) the Court rejected the State’s proposed alternative test that would focus on whether acts were “merely incidental,” insisting instead on the established Herron “indicia of distinctness” framework.

Summary of the Opinion

The Supreme Court declined to adopt the State’s proposed rule authorizing multiple punishments whenever CSP is committed in more than one statutory “way” (e.g., intercourse, cunnilingus, digital penetration) so long as none of the acts was “merely incidental” to another.

Applying the existing two-step unit-of-prosecution analysis and the Herron factors, the Court held that the record supported two distinct CSP convictions (cunnilingus and digital penetration) based on temporal and locational separation and intervening events (a drive to a different location and a phone call). The Court therefore reversed the Court of Appeals as to one vacated third-degree CSP count and ordered it reinstated, while otherwise affirming (leaving only two CSP convictions standing).

Analysis

Precedents Cited

  • State v. Swick, 2012-NMSC-018
    The Court relied on Swick for two pillars: the de novo standard of review for double jeopardy challenges (¶ 10) and the two-step unit-of-prosecution method (¶ 33). Swick supplies the analytic sequence: first ask whether the statute clearly defines the unit of prosecution; if ambiguous, proceed to distinctness analysis.
  • Swafford v. State, 1991-NMSC-043
    Swafford anchors the categorization of the problem as a unit of prosecution case: “multiple violations of a single statute based on a single course of conduct.” This classification is not semantic—it triggers the specific interpretive discipline used in New Mexico for multiple punishments within one statutory offense.
  • Herron v. State, 1991-NMSC-012
    Herron is the controlling authority. The Court reaffirmed two key Herron holdings:
    1. Section 30-9-11 is ambiguous as to whether the Legislature intended “a separate offense for each penetration occurring during a continuous sexual assault” (¶ 8).
    2. When ambiguity exists, multiple CSP punishments require “proof that each act of penetration is in some sense distinct from the others,” assessed using the six Herron factors (¶ 15).
    The State attempted to use Herron’s phrase “in some sense distinct” to argue that different statutory modalities (intercourse vs. cunnilingus) are inherently separate units. The Court rejected that reading, emphasizing that “distinctness” in Herron is operationalized by the factors, not presumed from statutory variety.
  • State v. Phillips, 2024-NMSC-009
    Phillips was cited to reaffirm the modern articulation of the second step: whether acts are separated by “sufficient indicia of distinctness,” and to describe the Herron factors as a “general policy” for examining distinctness. This citation underscores the Court’s view that Herron is not a relic but an actively maintained framework.
  • State v. Ramirez, 2018-NMSC-003
    The Court invoked Ramirez (as quoted in Phillips) to reinforce the established phrasing of the second step. The point was doctrinal stability: New Mexico already has a settled test for this category of double jeopardy, and the Court was unwilling to substitute an unbounded “incidental” inquiry.
  • Trujillo v. City of Albuquerque, 1998-NMSC-031
    Trujillo appeared in the Court’s response to the State’s attempt to reframe its proposed rule as consistent with precedent. The Court treated the proposal as effectively replacing the long-standing framework and noted that the parties had not made the required case for reconsidering precedent under stare decisis considerations identified in Trujillo.
  • State v. Urquidi-Martinez, 2025-NMCA-028
    The Court of Appeals decision is the immediate procedural backdrop: it had vacated two convictions on double jeopardy grounds. The Supreme Court partially disagreed with how the distinctness analysis played out on this record, reinstating one vacated count.

Legal Reasoning

1) Framing the issue as a unit-of-prosecution problem

Because Defendant’s three CSP convictions arose from a single course of conduct under the same statute, the Court treated the appeal as a unit-of-prosecution double jeopardy challenge. This framing matters because it directs the inquiry toward legislative intent and, when intent is unclear, toward factual “distinctness,” rather than comparing elements of different statutes.

2) Step one: Section 30-9-11 remains ambiguous as to the unit of prosecution

The State argued that Section 30-9-11(A) unambiguously sets separate units of prosecution by listing different sexual acts separated by “or,” and by suggesting different harms. The Court rejected this argument as inconsistent with Herron, noting the statutory language had not changed since Herron and that Herron already held the statute does not clearly answer whether multiple penetrations in a continuous assault are separate punishable units.

Critically, the Court clarified that Herron’s conclusion that multiple penetrations were separate in that case did not transform the statute into an “each modality is a unit” rule. Rather, Herron found distinctness based on the factors, including penetrations of different orifices and the protracted nature of the assault.

3) Step two: rejecting an “incidental acts” test and reaffirming the Herron factors

The State proposed a new rule: in a prolonged assault, if CSP is committed in more than one way and no act is “merely incidental to another,” then multiple punishments are permitted. The Court refused for three related reasons:

  • The proposal conflicted with the established second step requiring “sufficient indicia of distinctness,” not merely “non-incidental” conduct.
  • The State provided no workable definition or source for “incidental,” leaving trial and appellate courts without administrable standards.
  • Adopting the rule would effectively supplant the long-standing framework without the necessary showing under stare decisis principles.

4) Applying Herron: two distinct penetrations were supported by the evidence

The Court recognized evidence of three acts: (1) cunnilingus, (2) digital vaginal penetration, and (3) intercourse. However, the opinion emphasizes that the record was specific about cunnilingus and digital penetration (including the sequence of moving locations), while there was no evidence establishing when or where intercourse occurred.

Using the Herron factors, the Court held cunnilingus and digital penetration were sufficiently distinct, relying particularly on:

  • Temporal proximity: a meaningful gap existed because the victim blacked out and later “came to” after Defendant had driven to a new location.
  • Location: cunnilingus occurred while parked in front of the victim’s car; later events occurred at the Whole Foods parking lot and then en route to the Sage Inn.
  • Intervening events: driving to Whole Foods and Defendant’s phone call (and related interaction) supported separation between acts.

On that basis, the Court concluded Defendant “committed two distinct acts of CSP,” reinstating one vacated third-degree CSP conviction and leaving only one conviction vacated.

Impact

  • Doctrinal stability in CSP unit-of-prosecution cases: The decision reinforces that Herron remains the governing approach and that litigants should argue distinctness through the six factors rather than through categorical “different act” theories.
  • No shortcut to multiple punishments based on statutory modalities: Prosecutors cannot assume that charging intercourse, cunnilingus, and digital penetration automatically yields three punishable units; they must develop record evidence showing factor-based distinctness.
  • Evidence-development signal: The outcome highlights the importance of proving when and where each act occurred and what separated them. Where the record lacks specificity (as with the intercourse here), distinctness may fail.
  • Stare decisis discipline: The Court’s reliance on Trujillo v. City of Albuquerque underscores that attempts to replace established multi-factor tests with new formulations must be justified as a true stare decisis challenge, not presented as a minor refinement.
  • Practical note on citability: The Court issued a nonprecedential decision under Rule 12-405 NMRA, limiting formal citation. Nevertheless, the opinion reflects how the Court applies existing precedent and may be informative in arguing or evaluating similar fact patterns.

Complex Concepts Simplified

Double jeopardy (multiple punishments)
The constitutional rule that a defendant generally cannot be punished more than once “for the same offense.” In this case, the question was whether multiple CSP counts were truly separate punishable “offenses” or just multiple descriptions of one punishable unit.
Unit of prosecution
The Legislature defines what “one crime” is under a statute. If a statute is unclear about whether multiple acts during one episode count as one crime or multiple crimes, courts treat it as “ambiguous” and apply additional tests.
Statutory ambiguity (in this context)
Ambiguity does not mean the statute is vague in the due process sense; it means the statute does not clearly answer how many punishable “units” exist when a defendant commits multiple acts covered by the same statute in a single course of conduct.
The Herron factors
A set of six considerations—time, location, intervening events, sequencing/orifices, intent, and number of victims—used to decide whether penetrations are distinct enough to punish separately.
Stare decisis
The principle that courts generally follow prior decisions. To replace an established framework like Herron, a party must do more than propose a new test; it must justify departure from precedent using recognized factors.

Conclusion

State v. Urquidi-Martinez reaffirms that under Section 30-9-11, multiple CSP punishments in a single course of conduct do not turn on whether different statutory modalities were involved, nor on an undefined notion of “incidental” acts. Instead, where the statute is ambiguous, courts must apply the established Herron distinctness inquiry. On this record, the Supreme Court found sufficient indicia of distinctness for two penetrations—cunnilingus and digital penetration—reinstating one CSP count the Court of Appeals had vacated and leaving only two convictions to stand.