347 P.3d 738
N.M. Ct. App.2015Background
- Defendant was convicted of multiple counts arising from sexual assaults of his daughter (H.T.) and step-daughter (L.T.): CSPM (several counts), CSCM (several counts), and four kidnapping counts; convictions were appealed.
- Victim testimony described skin-to-skin digital and penile contact (H.T. described fingers sliding "up and down" and anal penetration; L.T. described being rubbed and being forced to touch Defendant's penis).
- A PA examined the girls; she found redness and a small scratch on L.T. but no injuries on H.T.; the PA was not qualified as an expert but was permitted to testify about observations and whether findings could be "consistent with" sexual abuse.
- Jury received instructions defining CSPM (penetration "to any extent") and, after a statewide amendment, "sexual intercourse" as penetration of the "vulva or vagina." The CSCM instruction still referenced the "vagina"/groin in describing contact.
- The State prosecuted separate counts for multiple acts and for movements/restraints alleged as kidnapping; Defendant argued insufficiency of evidence, instruction confusion, that the kidnapping allegations were incidental to sexual assault, and evidentiary error over the PA's testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for digital vaginal penetration (Counts 2, 13) | Victim testimony and PA findings permitted a reasonable inference of penetration "to any extent" (vulva/vagina) | Insufficient proof of actual penetration; need anatomical specificity | Affirmed: testimony (skin-to-skin rubbing/sliding) and PA findings were sufficient to support CSPM convictions on Counts 2 and 13 |
| Sufficiency of evidence for anal penetration (Count 8) | H.T.'s direct testimony that Defendant put his penis "in [her] butt" supports anal penetration element | Testimony was ambiguous (buttocks v. anus); insufficient to show anal penetration | Affirmed: jury reasonably found anus penetration based on H.T.'s testimony |
| Sufficiency for "sexual intercourse" via "labial coitus" (Counts 5,7,11) | Circumstantial testimony of repeated penis-to-unclothed-genital contact and emission supported penetration of labia (penetration "to any extent") | No direct testimony of penetration into vagina; insufficient to prove CSPM | As to Count 11 (H.T.) affirmed for CSPM; Count 5 resulted in conviction for lesser included CSCM; Count 7 acquittal stands |
| Multiple CSCM counts for forced touching (Counts 3 & 4) | Testimony (L.T. direct; H.T. corroborating two incidents) supports two distinct occurrences | H.T.'s testimony was indirect and thus incompetent to prove separate incidents | Affirmed: L.T.'s direct testimony plus H.T.'s corroboration supported two separate CSCM convictions |
| Jury instruction confusion (overlap between CSPM "vulva or vagina" and CSCM) | Instructions were legally sufficient and jury applied them (convictions/lesser-included verdicts show understanding) | Amendments creating overlap could have confused jury and caused fundamental error | No fundamental error: potential overlap not dispositive; court suggests removing "vagina" from CSCM instructions to avoid confusion but affirms convictions where appropriate |
| Kidnapping counts based on movements/restraints (Counts 6, 10, 15, 16) | Movements/restraints accompanied the assaults and could support kidnapping convictions | Movements/restraints were incidental to sexual assaults and not independent kidnapping conduct | Reversed: restraints/movements were incidental to sexual assaults and insufficient as a matter of law to sustain kidnapping convictions |
| PA testimony that findings were "consistent with sexual abuse" (admissibility) | PA was allowed to testify about observations and consistency; State relied on that testimony | PA was not qualified as an expert; testimony on consistency should be excluded or limited | Issue not reviewed on appeal: Defendant agreed at trial to the scope of PA testimony and failed to timely object; appellate court deems the objection unpreserved |
Key Cases Cited
- State v. Apodaca, 118 N.M. 762 (1994) (describing standard for sufficiency-of-evidence review)
- State v. Sutphin, 107 N.M. 126 (1988) (jury verdicts supported by substantial evidence not to be disturbed)
- State v. Tafoya, 147 N.M. 602 (2010) (holding sexual intercourse definition includes vulva and clarifying UJI amendment)
- State v. Nichols, 139 N.M. 72 (2006) (victim testimony in CSP prosecutions need not be corroborated)
- State v. Luna, 92 N.M. 680 (1979) (weight and effect of evidence are for the trier of fact)
- State v. Smith, 130 N.M. 117 (2001) (juries are presumed to have followed written instructions)
- State v. Barber, 135 N.M. 621 (2004) (doctrine of fundamental error and its two limited applications)
- State v. Rojo, 126 N.M. 438 (1999) (appellate court will not search the record for unpreserved issues)