457 P.3d 983
N.M. Ct. App.2019Background
- Defendant Marcos Figueroa was tried by jury on two counts of criminal sexual penetration of a minor in the second degree (CSPM-II) for two separate incidents involving his son, G.F., who testified he woke up to the father performing oral sex when he was 13–14.
- The amended information charged violations of NMSA 1978, § 30-9-11(E)(1) (CSPM-II: perpetrated by use of force or coercion on a child 13–18).
- At the close of evidence the district court, without objection from Defendant, instructed the jury using a UJI that defined liability under a pre-2007 “position of authority”/undue-influence theory (UJI 14-945), which the court and parties later acknowledged was intended for pre-2007 law.
- The jury convicted on both counts under the given “position of authority” instructions. Defendant appealed arguing the instruction was inapplicable (fundamental error), evidence was insufficient, and presentence credit was miscalculated.
- The Court of Appeals held the “position of authority” instruction was invalid for crimes occurring after the 2007 statutory amendment (which eliminated the position-of-authority method and made CSPM-II hinge on the statutory definitions of “force or coercion”), reversed the convictions, remanded for a new trial, and affirmed the district court’s presentence credit ruling.
Issues
| Issue | State's Argument | Figueroa's Argument | Held |
|---|---|---|---|
| Whether use of a “position of authority” UJI (pre-2007 theory) was fundamental error when the statute governing the charged dates required proof of statutory “force or coercion” | The instruction included the word “coerce,” and the evidence (victim asleep) would satisfy the statutory force/coercion element, so conviction should stand | The instruction misstated the law (gave jury a nonexistent crime for post-2007 conduct); error was fundamental and requires reversal | Reversed: the jury convicted under an invalid legal theory (position-of-authority CSPM-II no longer exists post-2007); conviction vacated and new trial ordered |
| Whether evidence was sufficient to bar retrial under double jeopardy | Evidence showed fellatio and father–child relationship; sufficient under the erroneous instructions, so retrial not barred | If conviction reversed for fundamental error, retrial may still be barred only if no substantial evidence supported conviction under the erroneous instruction | Retrial permitted: substantial evidence supported conviction under the (erroneous) position-of-authority theory, so double jeopardy does not bar retrial |
| Whether appellate court may affirm on a different legal theory than the one presented to the jury | The sleeping-victim statutory theory is supported by the evidence and could be applied on appeal | Appellate affirmation on a theory not presented to the jury violates due process and notice; conviction must be reversed rather than recharacterized on appeal | Court may not affirm on an untried theory; appellate courts cannot substitute different legal theories post hoc — reversal required when jury convicted on nonexistent crime |
| Whether Defendant was entitled to presentence confinement credit for time on pretrial release (house arrest and later modified conditions) | The State argued credit only for days in custody and house arrest; later, conditions (curfew plus travel/monitoring) were insufficiently restrictive to qualify for credit | Defendant argued all time from arrest to conviction (or at least from the December 4 curfew/conditions change) qualified as official confinement for credit | Affirmed: only house arrest and actual incarceration qualified; conventional curfew and the December 4 restrictions (curfew, travel restriction, monitoring, UA, no unsupervised contact) were not sufficiently onerous to constitute official confinement for credit under § 31-20-12 and Fellhauer/Guillen framework |
Key Cases Cited
- Chiarella v. United States, 445 U.S. 222 (appellate courts may not affirm convictions on theories not presented to the jury)
- McCormick v. United States, 500 U.S. 257 (appellate courts cannot affirm on a new theory simply because facts would support it)
- Cole v. Arkansas, 333 U.S. 196 (due process violation to convict for a charge on which defendant was not tried)