State v. Sarellano, 36,172

Defendant Aron Sarellano was convicted in a bench trial of third-degree criminal sexual contact of a minor (CSCM) after being charged with criminal sexual penetration of a minor (CSPM).
The victim, a young child, testified that Defendant "touched her on the inside of her private[s] where she pees."
The district court, sua sponte, treated CSCM as a lesser included offense of the charged CSPM and convicted Defendant of CSCM.
On appeal, this Court issued a proposed summary disposition to affirm; Defendant filed a memorandum in opposition raising several challenges.
Defendant argued the victim’s testimony unequivocally proved penetration (supporting only CSPM), that he lacked notice to defend against the uncharged lesser offense, and that evidence was insufficient to support CSCM.
The Court of Appeals rejected these contentions, finding the victim’s wording ambiguous as to penetration, concluding CSCM was properly considered sua sponte in a bench trial, and affirming the conviction.

Issue	Plaintiff's Argument (State)	Defendant's Argument	Held
Whether CSCM is a permissible lesser included offense of CSPM in a bench trial	Lesser included offenses may be considered sua sponte; defendant was on notice of lesser offense	CSCM should not have been considered because victim’s testimony unequivocally established penetration (only CSPM)	Court: CSCM properly considered sua sponte; victim’s testimony ambiguous about penetration, so lesser offense applicable
Whether victim’s testimony proved penetration (CSPM) rather than mere contact (CSCM)	Testimony did not unequivocally establish penetration; could support contact	Testimony explicitly established penetration, so CSCM not available	Court: testimony ambiguous; did not explicitly describe penetration, so CSCM could be considered
Whether Defendant had adequate notice to defend against uncharged lesser included offense	Charging CSPM puts defendant on notice of any lesser included offenses	Defendant claims lack of notice to defend CSCM	Court: precedent holds defendant is on notice of lesser included offenses; denial of touching addressed elements of CSCM
Sufficiency of evidence to support CSCM conviction	Credibility and conflicts resolved by factfinder; evidence supported contact	If witness testimony was incredible or inconsistent, conviction on lesser should fail too	Court: will not reweigh credibility on appeal; evidence sufficed for CSCM; affirmed

State v. Archuleta, 108 N.M. 397, 772 P.2d 1320 (N.M. Ct. App. 1989) (in bench trials, a lesser included charge may be considered sua sponte)
State v. Lente, 138 N.M. 312, 119 P.3d 737 (N.M. Ct. App. 2005) (victim testimony explicitly describing penetration supported CSPM)
State v. Paiz, 140 N.M. 815, 149 P.3d 579 (N.M. Ct. App. 2006) (clear trial testimony of attempted penetration supports CSPM)
State v. Collins, 137 N.M. 353, 110 P.3d 1090 (N.M. Ct. App. 2005) (charging a greater offense places defendant on notice of lesser included offenses)
State v. Meadors, 121 N.M. 38, 908 P.2d 731 (N.M. 1995) (defendant should be aware of possible lesser included offenses and have opportunity to prepare a defense)
State v. Notah-Hunter, 137 N.M. 597 (N.M. Ct. App. 2005) (remand for resentencing on an uncharged lesser included offense where evidence insufficient for greater offense; defendant had opportunity to address lesser elements)
State v. Slade, 331 P.3d 930 (N.M. Ct. App. 2014) (direct remand rule does not apply where jury was not instructed on a lesser included offense)
State v. Villa, 136 N.M. 367, 98 P.3d 1017 (N.M. 2004) (direct remand rule limitations in jury-trial contexts)
State v. Salas, 127 N.M. 686, 986 P.2d 482 (N.M. Ct. App. 1999) (appellate courts defer to factfinder on witness credibility and conflicts in testimony)