7 N.M. 663
N.M. Ct. App.2015Background
- Defendant was convicted by a jury of multiple sexual offenses against his eight‑year‑old daughter (H.T.) and four‑year‑old stepdaughter (L.T.): five counts of criminal sexual penetration of a minor (CSPM), five counts of criminal sexual contact of a minor (CSCM), and four counts of kidnapping.
- Victims and a physician’s assistant (PA) who examined them testified; some injuries were observed on L.T., none on H.T.
- Several counts alleged digital vaginal penetration, anal intercourse, or penile contact/penetration (including an alleged theory of “labial coitus”).
- Kidnapping counts arose from brief movements or restraints (e.g., defendant making victims go to another room, making one remove clothes, or lying on top of a victim during assault).
- At trial the court declined to qualify the PA as an expert but allowed her to describe observations and say whether those observations could be consistent with sexual abuse; the defense initially agreed to that limitation but later objected.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for CSPM counts (digital vaginal penetration — Counts 2 & 13) | Victim testimony of skin‑to‑skin rubbing/ sliding of fingers on unclothed genital area plus PA findings on L.T. suffice to infer penetration to any extent. | Victims did not identify anatomical specifics; conviction requires proof of vaginal (or vulvar) penetration — evidence insufficient. | Affirmed: jury permissibly inferred penetration to any extent from victims’ testimony and PA findings; should not require anatomically exact testimony from child victims. |
| Sufficiency for CSPM (anal penetration — Count 8) | H.T.’s testimony that defendant put his penis “in [her] butt” supports anal penetration. | Testimony was not specific enough to distinguish anus penetration from touching buttocks; ambiguous. | Affirmed: jury credited testimony that penis went “in” her butt and could infer anal penetration. |
| Sufficiency for CSPM (sexual intercourse / labial coitus — Count 11) | H.T. described defendant placing and moving his penis on her unclothed genitals and emission; jury could infer penetration of labia to any extent. | State failed to prove actual penetration beyond contact. | Affirmed: reasonable inference of penetration “to any extent” supports CSPM. |
| Multiplicity / distinct incidents for CSCM counts (Counts 3 & 4) | Testimony described two separate incidents; H.T. corroborated occurrence on two occasions. | Testimony inconsistent / H.T. lacked personal knowledge of L.T. touching penis so counts not proven separately. | Affirmed: L.T.’s direct testimony plus H.T.’s testimony about two episodes supported separate CSCM convictions; jury resolves inconsistencies. |
| Kidnapping convictions based on brief movement/restraint (Counts 6, 10, 15, 16) | Movement/restraint during assaults supported kidnapping because statute punishes restraint/transport with intent to commit sexual offense. | Movements and restraints were incidental to the sexual assaults and not independently punishable as kidnapping. | Reversed: movements/restraints were incidental (brief movements room‑to‑room or lying on top during assault) and did not increase culpability beyond the sexual assault; kidnapping convictions vacated. |
| Jury instruction overlap (definition of “sexual intercourse” including “vulva or vagina” vs CSCM instruction) | State: instruction wording acceptable; jury can distinguish CSPM from CSCM. | Ambiguity creates overlap—could confuse jury about penetration element and amount to fundamental error. | No fundamental error shown: only one count (Count 5) had both CSPM and CSCM instructions and jury convicted of the lesser offense; court recommends removing “vagina” from CSCM instruction to avoid future confusion but affirmed convictions. |
| PA testimony about findings being "consistent with sexual abuse" (admission/expert status) | PA allowed to testify about observations and whether they could be consistent with abuse; parties agreed to limitation at outset. | PA was not qualified as an expert and should not have been permitted to say findings were consistent with sexual abuse. | Not reviewed on merits: objection untimely (defense initially agreed to the court’s limitation), issue not preserved. |
Key Cases Cited
- State v. Apodaca, 118 N.M. 762, 887 P.2d 756 (N.M. 1994) (standard for sufficiency of the evidence review)
- State v. Sutphin, 107 N.M. 126, 753 P.2d 1314 (N.M. Ct. App. 1988) (jury verdict supported by substantial evidence will not be disturbed)
- State v. Tafoya, 147 N.M. 602, 227 P.3d 92 (N.M. Ct. App. 2010) (interpretation and modification of jury instruction defining “sexual intercourse” to include vulva)
- State v. Trujillo, 289 P.3d 238 (N.M. Ct. App. 2012) (kidnapping statute does not cover restraints or movements incidental to another felony; tests to determine incidental conduct)
- People v. Daniels, 459 P.2d 225 (Cal. 1969) (two‑prong test for when movement within premises is incidental to another crime)
- Herron v. State, 111 N.M. 357, 805 P.2d 624 (N.M. 1991) (evidence equally consistent with two hypotheses tends to prove neither)
- State v. Nichols, 139 N.M. 72, 128 P.3d 500 (N.M. Ct. App. 2006) (victim testimony in CSP prosecutions need not be corroborated)