State v. Moore
150 N.M. 512
N.M. Ct. App.2011Background
- State appealed district court's pretrial dismissal of three CSP counts, each charged as CSP II or CSP IV.
- Grand jury was instructed that unlawfulness required intent to arouse/gratify sex, intrusion, or other unlawful purpose, omitting consent language.
- Victim was fourteen; Defendant was forty-six; relationship described as victim's father's friend with two-and-a-half months of activity.
- District court dismissed Counts I, V, VI due to omission of 'without consent' language, finding consent issue present.
- Appellate court held victim's consent is legally irrelevant to unlawfulness for CSP II and CSP IV; instruction was proper.
- Case remanded for further proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether absence of consent language was required for unlawfulness in CSP II | Moore | Moore | Consent irrelevant; no error |
| Whether consent is a defense at grand jury stage for CSP II | Moore | Moore | Consent not required to be shown at grand jury for unlawfulness |
| Whether UJI 14-132 requires without-consent language for CSP II/IV | Moore | Moore | Proper to use bracketed alternatives; without-consent language not required |
| Whether district court erred by relying on Jensen about post-2005 consent defense | Moore | Moore | District court erred; Jensen distinctions apply differently |
Key Cases Cited
- State v. Perea, 145 N.M. 123, 194 P.3d 738 (2008-NMCA-147) (consent of underage victim irrelevant to CSP II/IV)
- State v. Maestas, 137 N.M. 477, 112 P.3d 1134 (2005-NMCA-062) (CSP II can punish except in force contexts; underlying felony relation)
- State v. Jensen, 138 N.M. 254, 118 P.3d 762 (2005-NMCA-113) (absence of consent not element of CSP; post-2005 consent instruction)
- State v. Ulibarri, 128 N.M. 546, 994 P.2d 1164 (1999-NMCA-142) (duty to instruct grand jury on essential elements; dismissal without prejudice remedy)
- State v. Augustin M., 133 N.M. 636, 68 P.3d 182 (2003-NMCA-065) (prosecution must instruct grand jury on elements, not defenses)
- State v. Gillette, 699 P.2d 626 (Ct.App. 1985) (absence of consent not element of CSP II)