State v. Stevens, 323 P.3d 901

Defendant Lisa Stevens was convicted of CSP II-felony, child abuse, and contributing to the delinquency of a minor based on two incidents where she directed her 13-year-old daughter to perform oral sex on Stevens' 24-year-old boyfriend during methamphetamine use.
The predicate felony for CSP II-felony was distribution of a controlled substance to a minor; charges included two counts each of CSP II-felony, child abuse, and contributing to the delinquency of a minor.
The daughter testified that the acts occurred in fall 2007 during methamphetamine use; dates were estimated and later revised.
The defense presented an alibi witness(es) to place the events in Phoenix from November 2 to December 10, 2007; the State amended the date range during trial.
The New Mexico Supreme Court held that CSP II-felony requires unlawful sexual conduct caused by the commission of a felony against the victim, disapproved Maestas language; found no fundamental error due to the missing unlawfulness instruction; and allowed the amended date description without prejudice, affirming the convictions.
The Court granted certiorari to address the elements of CSP II-felony and the effects of amending the charging dates.

Issue	Plaintiff's Argument	Defendant's Argument	Held
CSP II-felony requires unlawful sexual conduct caused by the felony	Stevens argued causation sufficed under Maestas	Maestas allowed broader causation without unlawfulness	Unlawfulness required; the felony must involve unlawful sexual activity against the victim
Was there fundamental error despite an unlawful element instruction deficiency	Guilt supported; error not fundamental	Missing unlawfulness instruction could be fundamental	No fundamental error; conviction affirmed given overwhelming evidence of unlawfulness and causation
Did amending the date description prejudice Stevens	Alibi defense prejudiced by later amendment	Amendment conforming to evidence within Rule 5-204(C) fair	Amendment not prejudicial; defense had notice and opportunity to respond

State v. Maestas (Maestas II), 2007-NMSC-001 (New Mexico, 2007) (defines CSP II-felony elements and unlawful conduct; limits on causation)
State v. Moore, 2011-NMCA-089 (New Mexico Court of Appeals, 2011) (recognizes unlawfulness element for CSP II when victim is a child; discusses lack of necessity to instruct on unlawfulness in certain child cases)
State v. Orosco, 1992-NMSC-006 (New Mexico, 1992) (fundamental error standard and cautions against reversal for missing element when guilt is clear)
State v. Branch, 2010-NMSC-042 (New Mexico, 2010) (review of Rule 5-204 amendment and prejudice to substantial rights)