State v. Pitner, 10 N.M. 715

Defendant (adult) was convicted by a jury of second-degree criminal sexual contact of a minor (CSCM) after a nine-year-old cousin of his girlfriend testified he unzipped her footed pajamas and rubbed skin beneath her underwear "a little above [her] privates."
Victim described pajamas zipped to her neck at bedtime; when she woke her pajamas were unzipped to the waist and Defendant’s hand was in her underwear; she later told her mother the hand had been inside her underwear.
Victim clarified on cross-examination that Defendant did not touch her "privates," but that his hand was under the underwear and touching skin slightly above her privates.
Jury received UJI 14-925 (elements of CSCM) and UJI definitions for mons veneris, vulva, vagina; no instruction defining "groin." Prosecutor argued in closing that "groin" has no legal definition and suggested the jury consider whether the touching extended past underwear. Defendant did not object at trial.
On appeal Defendant argued (1) insufficient evidence that Defendant touched Victim’s unclothed vagina/vulva/groin, (2) improper jury instruction/closing argument about "groin," and (3) ineffective assistance for failing to object. The Court of Appeals affirmed the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the evidence for CSCM	State: Victim’s testimony that defendant’s hand was under her underwear and rubbing skin supports touching of the groin area	Pitner: Victim said Defendant did not touch her "privates" and underwear may have been large, so no touching of vagina/vulva/groin proved	Affirmed — viewing evidence in favor of verdict, a jury could reasonably find touch to the unclothed groin area beyond a reasonable doubt
Jury instruction/closing argument re: "groin"	State: No statutory definition; prosecutor’s descriptions were permissible argument	Pitner: Prosecutor created a conjectural/incorrect definition of "groin" and failed to provide instruction	No fundamental error; defendant failed to develop argument and show jury was misdirected or miscarriage of justice
Ineffective assistance for failing to object	State: not applicable (responded via record)	Pitner: Counsel ineffective for not objecting to instructions/closing argument	Denied on direct appeal — defendant did not present a developed prima facie claim; may pursue habeas to further develop claim
Appropriate definition of "groin" for CSCM	State: common meaning suffices (fold/line between lower abdomen and thigh)	Pitner: contested prosecutor’s suggested scope	Court adopts common-meaning approach (fold/depression between lower abdomen and thigh; region slightly above mons veneris) and finds Victim’s description fits that area

State v. Benny E., 110 N.M. 237, 794 P.2d 380 (recognizing Legislature did not define "groin" for CSCM and adopting common-meaning approach)
State v. Sutphin, 107 N.M. 126, 753 P.2d 1314 (appellate courts do not reweigh evidence; resolve factual conflicts for jury)
State v. Ortiz-Burciaga, 128 N.M. 382, 993 P.2d 96 (factual inconsistencies are for the jury to resolve)