State v. Stevens, 2014 NMSC 011

Stevens was convicted of two counts of causing criminal sexual penetration during the commission of a felony, along with two counts of child abuse and two counts of contributing to the delinquency of a minor.
Two incidents involved Stevens directing her thirteen-year-old daughter to perform oral sex on Stevens’ twenty-four-year-old boyfriend after they injected methamphetamine together.
The acts occurred while the girl was under the influence; the daughter testified she complied because she was high and did not care.
The jury was instructed that CSP II-felony required proof of unlawful sexual activity occurring during the commission of a felony, and the State amended the charging documents’ time frame from November 12, 2007 to a broader October–November 2007 window.
The defense did not request jury instructions on unlawfulness and real-time errors were not preserved; the court allowed the date-range amendment over objection.
The Supreme Court held that CSP II-felony requires unlawful sexual activity against the victim or activity with a victim who lacked lawful consent, reversed part of Maestas’ view, and affirmed the convictions despite some instructional deficiencies.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether CSP II-felony requires unlawful sexual conduct, not merely a temporal overlap	Stevens (State) argued a causal temporal link suffices	Stevens contended no unlawful element was proven	Unlawful conduct required; temporal overlap alone insufficient
Whether the instruction’s unlawfulness element was required for CSP II-felony	State argued unlawfulness is implied by statute	Defense argued lack of explicit unlawfulness instruction was reversible	Unlawfulness must be proven as an element for CSP II-felony; no fundamental error given the circumstances
Whether the amended date description prejudiced Stevens’ alibi defense	State argued amendment conformed to evidence and notice	Stevens claimed prejudice from late amendment	Amendment proper under Rule 5-204; no prejudice; waiver of prejudice affirmed
Whether failure to preserve error on jury instructions requires reversal	State argued fundamental error standard applies	Stevens argued instructional defects were fundamental	No fundamental error; convictions affirmed given evidence of unlawfulness and causation
Whether the CSP II-felony verdicts were supported by sufficient elements given the unlawfulness requirement	State contends unlawful involvement existed via the acts	Defense emphasized lack of explicit unlawfulness language	Convictions affirmed; unlawfulness element recognized as essential in CSP II-felony context

State v. Maestas, 140 P.3d 933 (NM Supreme Court 2007) (Maestas II; clarified elements of CSP II-felony, addressing unlawfulness and causal considerations)
Moore v. State, , 2011-NMCA-089 (N.M. Ct. App. 2011) (Held that unlawfulness need not be stated when victim is a minor; discussed CSP II elements)
State v. Orosco, 113 N.M. 780, 833 P.2d 1146 (N.M. 1992) (Fundamental error standard; omission of unlawfulness not reversible under Orosco)
State v. Branch, 148 N.M. 601, 241 P.3d 602 (N.M. 2010) (Allowed amendment to conform to evidence; prejudice assessment de novo)
State v. Dombos, 143 N.M. 668, 180 P.3d 675 (N.M. Ct. App. 2008) (Amending time frame to conform to trial evidence; prejudice analysis)