State v. ErwinState v. Erwin
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Judge
Santa Fe, NM
Adam Greenwood, Assistant Attorney General
Albuquerque, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
WECHSLER, Judge.
{1} We address in this appeal the elements required to convict for the crime of criminal sexual contact of a minor under
{2} Defendant Larry Erwin was convicted for sexually abusing his girlfriend‘s daughter, a person over whom he held a position of authority as a household member. He appeals, principally arguing that, although the child was a household member, the State failed to prove that he used this position of authority to coerce the child to submit to sexual contact. He alternatively argues that the evidence was insufficient to sustain his convictions because of inconsistencies in the testimony and that the district court did not properly instruct the jury because the court‘s elements instruction allowed the jury to convict because Defendant was a household member without finding that he was also actually in a position of authority over the child. We hold that, under the definition of “position of authority” in
BACKGROUND
{3} Defendant was convicted of three counts of criminal sexual contact with a minor—one a second degree felony and the others third degree felonies. The child was thirteen years of age at the time of the incidents, which occurred between July 12, 2011 and December 30, 2011. Defendant had been the boyfriend of the child‘s mother. Defendant had moved into the home with the mother and her children in late 2009. By December 30, 2011, Defendant and the child‘s mother may no longer have been a couple, but Defendant continued to live in the home.
{4} The child testified that Defendant began abusing her when she was about twelve or thirteen and that the abuse entailed numerous, almost daily sexual contact and sexual acts, including intercourse. She stated that Defendant made her promise not to tell
SUFFICIENCY OF THE EVIDENCE
Statutory Requirement and Position of Authority
{5} Defendant‘s main argument concerns the sufficiency of the evidence underlying his convictions; he claims that the evidence did not meet the statutory requirement that he was both a “household member” and a “person who, by reason of [his] position, [was] able to exercise undue influence over a child[.]”
{6} Defendant was convicted of criminal sexual contact of a child thirteen to eighteen years of age under Subsections (B) and (C) of
{7} Defendant‘s argument, therefore, requires that the language “who, by reason of that position, is able to exercise undue influence over a child” pertains to each of the types of position of authority listed in the definition. We do not believe, however, that such a reading is consistent with the apparent legislative intent.
{8} In
{9} The Legislature added this catch-all category using the disjunctive “or.” As a result, a perpetrator need only fall within any of the designated relationships to hold a position of authority. See Wilson v. Denver, 1998-NMSC-016, ¶ 17, 125 N.M. 308, 961 P.2d 153 (“As a rule of construction, the word ‘or’ should be given its normal disjunctive meaning unless the context of a statute demands otherwise.” (internal quotation marks and citation omitted)). But, the disjunctive joining the catch-all category does not also link the language describing the type of “other person” who also can hold a position of authority. Such a requirement would be inconsistent with the Legislature‘s designating the specific relationships. Indeed, if the requirement of the ability to exercise undue influence over a child by reason of a position applied to each of the designated relationships, those relationships would become surplusage to the definition. All persons, regardless of their specific relationship to a child, would have a position of authority if they can exercise undue influence over a
{10} Defendant does not dispute the evidence that he was a household member. Under
Inconsistencies in the Evidence
{11} Defendant additionally argues that the evidence supporting his convictions was insufficient because of inconsistencies in the evidence. According to Defendant, the child and her mother testified in a conflicting manner as to details relating to the circumstances surrounding the mother‘s discovery of Defendant with the child, in particular with respect to the location of a blanket, the source of light on the scene, the position of the child‘s shorts, and the mother‘s possession of her cell phone.
{12} As Defendant acknowledges, however, “it is the role of the factfinder to judge the credibility of witnesses and determine the weight of evidence.” State v. LaPietra, 2010-NMCA-009, ¶ 11, 147 N.M. 569, 226 P.3d 668 (alteration, internal quotation marks, and citation omitted). Moreover, the facts Defendant questions do not undermine the more specific testimony of sexual abuse that Defendant does not dispute. Under our standard of review, the inconsistencies Defendant points out do not render the evidence insufficient to support the verdicts. State v. Ortiz-Burciaga, 1999-NMCA-146, ¶ 22, 128 N.M. 382, 933 P.2d 96 (“It is the exclusive province of the jury to resolve factual inconsistencies in testimony.” (internal quotation marks and citation omitted)).
VALIDITY OF THE JURY INSTRUCTION
{13} Defendant additionally argues that the district court improperly instructed the jury because its instruction did not require the jury to find all the elements of criminal sexual contact with a minor. This argument parallels Defendant‘s main argument concerning the sufficiency of the evidence by arguing that the jury instruction allowed the jury to convict without finding that he was a person in a position of authority over the child.
{14} Defendant did not raise this objection to the jury instruction in the district court and thus argues on appeal that the instruction given constituted fundamental error. See
{15} The elements instruction given for each of the crimes of which Defendant was convicted read:
[D]efendant was a household member or person who by reason of [D]efendant‘s relationship to [the child] was able to exercise undue influence over [the child] AND used this authority to coerce [the child] to submit to sexual contact[.]
Defendant argues that the instruction was in error because the “use of the ‘or’ in the instruction allowed a conviction for simply being a household member” without requiring the jury to additionally find that Defendant was in a position of authority over the child and used that authority to coerce the child. However, as we have held with respect to Defendant‘s sufficiency of the evidence argument,
{16} Nor do we agree with Defendant that the given instructions deviated from the
For you to find the defendant guilty of criminal sexual contact of a minor by use of coercion by a person in a position of authority [as charged in Count ______], the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant [touched or applied force to the [unclothed] ________________ of ________________ (name of victim);] [OR] [caused ________________ (name of victim) to touch the ________________ of the defendant;]
2. The defendant was a [parent] [relative] [household member] [teacher] [employer] [person who by reason of the defendant‘s relationship to _____________________ (name of victim) was able to exercise undue influence over ____________________ (name of victim)] AND used this authority to coerce _____________________ (name of victim) to submit to sexual contact;
3. _________________ (name of victim) was at least thirteen (13) but less than eighteen (18) years old;
[4. The defendant‘s act was unlawful;]
5. This happened in New Mexico on or about the ____ day of ________________, ______.
(Emphasis omitted). Use Note 4 to
{17} While we agree with Defendant that
CONCLUSION
{18} We affirm Defendant‘s convictions.
{19} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
RODERICK T. KENNEDY, Judge