State v. HaskinsState v. Haskins
{1} Defendant, a massage therapist, was convicted of eight counts of criminal sexual contact of a minor (CSCM) by use of coercion by a person in a position of authority, contrary to
FACTS
{2} Defendаnt’s convictions arise from actions he took while administering massage therapy to Jessica, age 15, and Stephanie, age 17. Jessica testified that she first went to Defendant’s house to split a one-hour massage with her mother. This was the first massage she had ever received. She did not have a conversation with Defendant about what the massage would entail, and she did not complete a consent form prior to the massage. Jessica undressed to her underwear, covered herself with a sheet, and lay down on the table. Defendant entered the room and massaged Jessica’s head, back, stomach, legs, feet, and arms. He then told Jessica that breast massage was part of the massage, and he asked if she would like it done. Jessica consented because she thought it was part of the massage. Defendant removed the sheet and fully massaged her breasts. Defendant also massaged Jessica’s bare buttocks without consent, but Jessica thought that this was also a normal component of a full-body massage. Jessica left without having any concerns about the massage or about Defendant.
{3} Jessica returned to Defendant’s home for a second massage about a month later. This session also included sevеral minutes of full breast massage. Defendant performed the massage under the sheet and Jessica was not wearing a bra. Defendant informed Jessica when he was about to begin massaging her breasts, but he did not seek her consent. Jessica again thought this was part of a normal full-body massage. She testified that Defendant seemed like a professional and that it seemed like he knew what he was doing. Defendant also massaged Jessica’s buttocks without consent during this second massage.
{4} Defendant then asked Jessica if she wanted a vulva massage. When Jessica asked what that was, Defendant put his hand inside Jessica’s underwеar and touched her vagina. Jessica declined to have her vulva massaged, Defendant removed his hand from her underwear, and that was the end of the massage. After Jessica was fully dressed, Defendant gave her a hug, in the process brushing his hand over Jessica’s buttocks. Jessica left feeling uncomfortable, because she knew that a vulva massage was not part of a regular massage. Jessica’s mother notified the police of Defendant’s actions the same day.
{5} Stephanie testified that she went to Defendant to try to heal nerve damage to her arm suffered in an automobile accident. Stephanie’s mother helped her fill out paperwork showing which body parts she did not want Defendant to touch, including her breasts and buttocks. Stephanie undressed to her bra and underwear. Defendant told her that he would give her a full-body massage for the same price as an arm massage. Defendant worked on Stephanie’s arm, shoulders, neck, and chest. He then began to massage Stephanie’s breasts over her bra without seeking her consent. Instead, he asked if she had menstrual cramps or breast tenderness, and Stephanie replied that she did not. Stephanie testified that she felt very uncomfortable, but that she did not say
{6} Stephanie returned to Defendant four or five times over the next few months. Each time, Defendant massaged her breasts. The last time Stephanie went to see Defendant, she had just given birth and she was not producing breast milk. Defendant had told Stephanie’s mother that he could help the problem by massaging an area under Stephanie’s arm. When Stephanie came in, Defendant had her undress and remove her bra. Then, without explaining why he was doing so, he proceeded to massage her full breast, pinching her nipples the way a baby would suckle them. This made Stephanie feel very uncomfortable. Defendant then told Stephanie that when his wife was pregnant, he would suckle her breasts to try to bring in her milk. He offered to suck on Stephanie’s breasts for the same reason. Stephanie immediately ended the session. She never returned to Defеndant.
{7} Following a police investigation into the above incidents, Defendant was charged, indicted, tried, and convicted of eight separate counts of CSCM by use of coercion by a person in a position of authority (1) for touching Jessica’s breasts during her first massage session, (2) for touching her breasts, (3) vulva, and (4) buttocks at her second session, and (5-8) for touching Stephanie’s breasts on four separate occasions. Additional facts, as established at trial, will be introduced as necessary in our analysis below.
DISCUSSION
Sufficiency of the Evidence
{8} In order to convict Defendant of CSCM by use of coercion by a person in a position of authority, the State had to prove the following beyond a reasonable doubt: (1) Defendant touched or applied force to the breasts, buttocks, or vulva of the victim; (2) Defendant was a person who, by reason of his relationship to the victim, was able to exercise undue influence over the victim and used this authority to coerce the victim to submit to the sexual contact; (3) the victim was at least 13 years old but less than 18 years old; (4) Defendant’s act was unlawful; and (5) the act happened in New Mexico. UJI 14-926 NMRA. On appeal, Defendant challenges only the second element, contending that there was insufficient evidence presented to prove that he was in a position of authority over Jessica and Stephanie and that by reason of this position, he was able to exercise undue influence over the girls. This Court must determine whether a rational jury could have found this element beyond a reasonable doubt, while viewing the evidence in the light most favorable to the jury’s verdict and indulging all inferences in favor of upholding that verdict. State v. Segura,
{9} A person in a “position of authority” is defined under New Mexico law as “that position occupied by a parent, relative, household member, teacher, employer or other person who, by reason of that position, is able to exercise undue influence over a child.”
{10} Both victims testified in a manner that could lead a rational jury to conclude that they perceived Defendant to be in a position 'оf authority over them. Jessica’s first massage with Defendant was the first she had ever experienced, and she neither completed a consent form nor conversed with Defendant about the body parts she would allow him to massage. Once the massage began and she was told that a breast massage was part of a normal body massage, she consented in the belief that Defendant was a professional whose explanations were in her best interest. She also believed that a buttock massage was a normal component of a full-body massage. A rational jury could reasonably infer that it was not until Defеndant touched Jessica’s vagina without warning that she realized that Defendant was perhaps not behaving in a professional manner, but that until that point Jessica believed Defendant to be a professional health care provider who was in a position of authority over her and used this position to exercise undue influence over her, as evidenced by his ability to convince her that breast and buttock massages are normal components of a full-body massage. See State v. Trevino,
{11} Similarly, Stephanie testified that she had thought Defendant was professional because he went to school for massage therapy, and as a result he “knows what he’s supposed to be doing and what he shouldn’t be doing.” She thought that as a trained professional, Defendant would know “the difference between right and wrong.” Although Stephanie’s breast and buttock massages were given without consent and in disregard of the fact that she had marked that she did not want either of these areas touched on the consent form she filled out prior to her first massage, she testified that Defendant exрlained what he was doing as he massaged her breasts and buttocks, and because of this fact, she did not ask questions or object to Defendant’s actions. As in Jessica’s case, a rational jury could infer that it was not until Defendant crossed a deeply personal line, i.e., asking if she would like him to suckle her breasts, that Stephanie realized that Defendant had perhaps been overstepping the bounds of professionalism, but that until that point Defendant was in a position of authority over her and exercised undue influence in the form of unconsented breast and buttock massages.
{12} Defendant contends that his relatiоnship with Jessica and Stephanie was akin to a master-servant relationship and that as an employee of the girls, he was required to obey their instructions and thus was not in a position of authority. This argument belies the facts of the case. Jessica never filled out any consent forms and never instructed Defendant in any manner with the exception of consenting to breast massage. She certainly did not instruct Defendant to put his hand on her vagina, massage her buttocks, or touch her buttocks when he hugged her. Moreover, Defendant’s massage of Stephanie’s breasts defied her explicit instructions in the consent form she completed prior to her first massage. We do not understand the fact that either girl ultimately consented or failed to object to breast or buttock massage, once undressed and within the power of Defendant’s authority and subject to his will as a presumed professional, to mean that they “instructed” Defendant in any sense of the word, and we hold that a rational jury could have found the same. See id. (“Common sense and experience teach[ ] us that children generally yield to the wishes of adults.”).
{13} Defendant’s argument also runs contrary to the training Defendant received at the Mesilla Valley School of Therapeutic Arts, whose owner, Wanita Thompson, testified at trial. Thompson testified that the
{14} Although Defendant contests the jury’s finding that he was able to exercise undue influence ovеr the girls, he provides no factual support for this assertion. Undue influence results from a moral, social, or domestic force exerted upon a party, so as to control the free action of his or her will. Gardner,
Double Jeopardy, Unit of Prosecution Analysis
{15} Both the federal and New Mexico constitutions contain a double jeopardy clause guaranteeing that no person shall be “twice put in jeopardy” for the same offense.
{16} In Swafford v. State,
{17} New Mexico’s criminal sexual contact of a minor statute рrohibits “the unlawful and intentional touching of or applying force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one’s intimate parts.” Section 30-9-13. Our courts have routinely treated this language as ambiguous for purposes of multiple punishment, unit of prosecution analysis. See State v. Ervin,
{18} Several of the Herron factors weigh in favor of multiple punishments. Under the first factor, the temporal proximity of the acts, the greater the interval between the acts the greater likelihood of separate offenses. Herron,
{19} Looking to the third Herron factor, there was certainly an intervening event between Defendant touching Jessica’s vulva and touching her buttocks, i.e., Jessica clothing herself and going to the living room to pay Defendant, but it is difficult to say from her testimony whether there were any events between the breast massage and Defendant touching her vulva with the exception of “finishfing] the rest of the massage.” Nonetheless, we hold that this factor weighs in favor of multiple punishments. With regard to the fourth factor, the sequencing of the acts, we analogize to the criminal sexual penetration context, in which serial penetrations of different orifices, as opposed to repeated penetrations of the same orifice, tend to establish separate offenses, Herron,
{21} On the balance, we hold that the Herron factors support a finding of separate punishments for Defendant touching Jessica’s breasts at some point during the one-hour massage, her vulva at the end of the massage, and her buttocks following the massage. In so doing, we note the similarity of this case and Herron, and we must distinguish this ease from two recent cases in which CSCM convictions were set aside due to a double jeopardy violation based on a unit of prosecution theory. In Ervin,
{22} In Laguna,
{23} We also distinguish this case from cases in which our appellate courts found double jeopardy violations by applying the Herron factors to nonsexual crimes, such as battery on a police officer, State v. Ford,
{24} We hold that the interests protected by the CSCM statute deviate greatly from those protected by the statutes at issue in the above cases and that, accordingly, unit of prosecution analyses under the CSCM statute must be conducted with emphasis on the fourth Herron factor, the sequencing of the acts. “The legislatively-protected interests under the ... CSCM statute[ ] are aimed at protecting the bodily integrity and personal safety of children. [G]reat[] pain, embarrаssment, psychological trauma, or humiliation may result from contact with intimate body parts as compared to contact with other parts of the body.” State v. Pierce,
Admission of Testimony Concerning “Alpha State” Relaxation
{25} During the testimony of Thompson, the owner of the massage school attended by Defendant, she referred to “Alpha state,” a brain wave pattern that-she said occurs during sleep, relaxation, and meditation. She said that it was associated with REM sleep and a light hypnotic state. Defendant contends that this testimony should not have been admitted because it was invalid and unsound under the standards set forth for the admission of scientific testimony in State v. Alberico,
{26} “Admission of evidence is within the sound discretion оf the trial court and the trial court’s determination will not be disturbed in the absence of an abuse of that discretion.” State v. Aguayo,
{27} Defendant contends neither that Thompson testified as an expert witness nor that Thompson’s references to “Alpha state” were based on scientific knowledge. Accordingly, an Alberico analysis is not required of Thompson’s lay testimony. Moreover, Defendant gives no reason why Thompson’s use of the term “Alpha state” constituted fundamental error, nor does he explain why the court abused its discretion in admitting this testimony. We understand Thompson to have used the term “Alpha state” to refer to a state of deep relaxation, and she analogized it to the feeling that would result from meditation, daydreaming, or being “in the country relaxing.” Thompson’s analogies provided concrete examples to the jury of what she meant by the term. Moreover, she did not testify that either of the girls was in an “Alpha state” at any time, but merely testified that such a state was sometimes experienced by people being massaged. We conclude that the admission of this testimony was proper and did not constitute fundamental error.
Admission of Videotaped Testimony
{28} Defendant further contends that a videotaped deposition of Jessica’s mother was inadmissible evidence. The witness was slated to move to Saudi Arabia with her husband prior to trial, and due to limited visa restrictions, she would have only limited opportunities to return to the United States for the next two to three years. Following a hearing on the matter, the trial court ordered that a videotaped deposition would be taken in the courtroom and that the trial judge would be present to make rulings on objections as they occurred. The court noted that the jury would see a video that looked just like the witness was appearing before them in the courtroom. The video was played at trial over Defendant’s objection. Defendant
{29} We review the trial court’s admission of the videotape for an abuse of discretion. See Aguayo,
{30} Moreover, the rules of evidence state that a deposition may be taken upon “order of the court at any time after the filing of the indictment or information or complaint in the district court, upon a showing that it is necessary to take the person’s deposition to prevent injustice.”
In accordance with this rule, we hold that the standard notice rules did not apply to the witness’s court-ordered deposition and that the court did not abuse its discretion by ordering the deposition under the language of this rule. Finally, Defendant has not provided any reason why he was prejudiced by the use of a videotaped deposition of an unavailable witness, recorded with defense counsel present and the trial judge ruling on objections as they were raised. The deposition was scheduled for a time convenient for both counsel, and defense counsel was allowed to interview the witness prior to the taking of the deposition. We cannot say, based upon the rules of evidence, the situation presented to the trial court, and our deferential review of the admission of evidence, that the trial court abused its discretion.
CONCLUSION
{31} We affirm.
{32} IT IS SO ORDERED.