State v. Simmons, 409 P.3d 1030

Background

Victim (15) accepted a ride from Simmons after being kicked out of a car; Simmons made stops, took Victim to his apartment, and offered alcohol and drugs.
Victim testified he felt pressured, was given beer and cocaine, was orally and anally penetrated, and complied with anal sex out of fear; SANE exam and DNA (saliva on boxer shorts) corroborated sexual contact.
A jury convicted Simmons of two counts of criminal sexual penetration in the second degree (CSP II) as felonies (CSP II-felony), one count of CSP II (force/coercion), first-degree kidnapping, distribution of a controlled substance to a minor, and contributing to the delinquency of a minor.
The CSP II-felony instructions required the jury to find sexual penetration occurred "during the commission of" one of three predicate felonies (kidnapping, distribution, or contributing), but did not require the jury to identify which predicate or find a causal nexus between the predicate felony and the sexual penetration.
On appeal Simmons argued (1) instructional error (no causal-nexus element), (2) insufficiency of the evidence, and (3) double jeopardy because overlapping convictions (particularly kidnapping and CSP II-felony) punished the same unitary conduct.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Simmons)	Held
1. Jury instruction—must jury find causal nexus between predicate felony and CSP II-felony?	Instruction was adequate; any deficiency did not rise to fundamental error because the connection was clear from the evidence.	Instruction omitted required element that the predicate felony must be committed against the victim and must assist in accomplishing the sexual penetration, so omission was fundamental error.	No fundamental error; instruction like Stevens but evidence made the nexus apparent, so convictions stand on this ground.
2. Sufficiency of the evidence for kidnapping, distribution to minor, CSP II, and contributing to delinquency	Evidence (Victim testimony, SANE, DNA) supports convictions; jury entitled to credit Victim.	Evidence was insufficient (Victim’s testimony unclear; no drug test; entry was voluntary so no kidnapping).	Evidence sufficient for all convictions; appellate court will not reweigh credibility.
3. Double jeopardy—Do CSP II-felony convictions subsume or duplicate kidnapping (and other predicates)?	A conviction must be vacated to avoid double punishment; State suggests vacating the lesser predicate (contributing) if needed.	CSP II-felony is a compound crime; the predicate (especially kidnapping) may be subsumed so either vacate kidnapping or reduce CSP II to CSP IV.	Double jeopardy violation found as to CSP II-felony paired with kidnapping because conduct may be unitary; CSP II-felony convictions (the lesser offenses here) must be vacated; kidnapping remains.

Key Cases Cited

State v. Stevens, 323 P.3d 901 (N.M. 2014) (CSP II-felony requires predicate felony committed against the victim and assisting in the sexual penetration; instructional omission reviewed for fundamental error)
State v. Montoya, 306 P.3d 426 (N.M. 2013) (if CSP II-felony instruction requires proof of elements of kidnapping, kidnapping may be subsumed and double jeopardy requires vacating lesser conviction)
State v. Frazier, 164 P.3d 1 (N.M. 2007) (unit-of-prosecution and rule that predicate felony is subsumed in felony murder context; guides double jeopardy analysis)
Swafford v. State, 810 P.2d 1223 (N.M. 1991) (two-part test for double description multiple-punishment claims: unitary conduct and legislative intent)
Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (statutory-elements test to determine whether legislature intended separate punishments)
State v. Swick, 279 P.3d 747 (N.M. 2012) (application of Blockburger and vacatur of lesser offense when double jeopardy found)