State v. Luna, A-1-CA-34709

Background

Defendant Gavino Luna, while caring for a 9‑year‑old boy (Child) and his 12‑year‑old sister, showed the child motion pictures and engaged in sexual contact on May 3, 2013.
Child testified Defendant exposed his penis, touched the child’s penis over clothing (hand and mouth), and threatened the child not to tell anyone; Child disclosed the conduct about a week later.
Defendant was tried on charges including criminal sexual contact of a minor (CSCM, third degree), intimidation of a witness, unlawful exhibition of motion pictures to a minor, and contributing to the delinquency of a minor (CDM); the jury convicted on all submitted counts after the district court granted a directed verdict on a charged sexual penetration count.
The State’s theory at trial tied the CDM charge to the combined acts of forcing Child to engage in sexual acts and to watch pornographic movies; the unlawful‑exhibition charge rested on the motion picture shown to Child.
Trial evidence included Child’s videotaped deposition, Child’s live testimony, and Detective Lara’s testimony that he recovered a video he described as “pornographic”; a forensic interviewer (Aldaz‑Osborn) viewed Child’s deposition and testified about child coping behaviors.
On appeal, the court considered double jeopardy (CDM vs. CSCM and unlawful exhibition), jury‑instruction adequacy for unlawful exhibition and CSCM, sufficiency of evidence (intimidation), and admissibility of certain lay and expert testimony.

Issues

Issue	State's Argument	Luna's Argument	Held
Double jeopardy: CDM vs. CSCM & unlawful exhibition	Trevino/Blockburger elements test controls; CDM and CSCM/unlawful exhibition punish different elements	CDM is a generic multipurpose statute; apply Gutierrez’s modified Blockburger (statutory reformulation) and CDM is subsumed	Court applied Gutierrez reformulation, held CDM as charged was subsumed and reversed CDM conviction (vacated)
Jury instruction — unlawful exhibition of motion pictures to a minor	Instruction given was adequate	Instruction omitted required elements and statutory definitions (nudity; harmful to minors) and mis‑framed elements	Court held omission was fundamental error; reversed unlawful‑exhibition conviction and remanded for retrial
Jury instruction — CSCM unlawfulness element	Unlawfulness element need only be given if evidence puts it in issue	Failure to instruct on unlawfulness was error	Court held no fundamental error: no evidence suggested the touching was lawful, so instruction not required
Sufficiency of evidence — intimidation of a witness	Child’s testimony (including that Defendant threatened to take him away) and circumstantial inferences suffice	Child’s testimony was elicited via leading questions and therefore unreliable	Court held evidence sufficient; affirmed intimidation conviction
Admission of expert testimony (forensic interviewer)	Testimony described common child coping reactions to trauma and was admissible; jury heard Child directly	Admission of expert interpretation of Child’s behavior invaded credibility and was plain error	Court held no plain error as the jury viewed Child directly, and convictions for CSCM and intimidation were supported without relying on expert interpretation

Key Cases Cited

Blockburger v. United States, 284 U.S. 299 (establishes elements test for multiple punishments)
Gutierrez v. State, 150 N.M. 232, 258 P.3d 1024 (adopts modified Blockburger/statutory reformulation for multipurpose statutes)
Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (two‑part test for double description cases; examine unitary conduct and legislative intent)
Trevino v. State, 116 N.M. 528, 865 P.2d 1172 (applied strict Blockburger pre‑Gutierrez; discussed in parties’ arguments)
Pandelli v. United States, 635 F.2d 533 (discusses evolution of Blockburger and need to narrow generic statutes)
Whalen v. United States, 445 U.S. 684 (U.S. Supreme Court double jeopardy jurisprudence informing modified approach)
Illinois v. Vitale, 447 U.S. 410 (U.S. Supreme Court double jeopardy jurisprudence informing modified approach)