State v. PitnerState v. Pitner
- Reporters:
- , ,
- Before:
- Timothy L. Garcia, Roderick T. Kennedy, M. Monica Zamora
OPINION
GARCIA, Judge.
{1} Defendant appeals his conviction for criminal sexual contact of a minor (CSCM), in violation of
I. BACKGROUND
{2} A jury found Defendant guilty of one count of second degree CSCM after Victim, the nine-year-old cousin of Defendant‘s girlfriend, accused him of unzipping her “footie” pajamas and using his fingers to rub the skin below her underwear and “a little above [her] privates.” Victim testified that on the night of the incident, she was staying overnight at her aunt‘s house, where Defendant was also staying. She stated that she and her nine-year-old, male cousin were watching a movie in the top bunk of a bunk bed when they fell asleep. She described that she was wearing “footie” pajamas that covered her “feet[] to [her] neck.”
{3} Victim testified that in the middle of the night, due to a bad dream, she moved from the top bunk to the lower bunk to sleep with her female cousin, Defendant‘s girlfriend. At the time Victim moved to the lower bunk, Defendant was not sleeping in the lower bunk with her cousin. But when Victim awoke in the morning, her “pajamas were unzipped and [Defendant‘s] hand was in [her] pants.” Victim stated that when she went to bed, she zipped her pajamas “[a]ll the way to [her] neck” and she did not unzip them during the night; however, when she awoke, her pajamas were unzipped to “about [her] waist[]line.” She stated that Defendant, who was laying on the other side of Victim‘s female cousin, positioned his hand “[i]n [her] underwear[,]” and when she looked at him, “he pulled his hand away . . . and he acted like he was asleep[,]” closing his eyes “right away.” She described that while Defendant‘s hand was “[n]ot very far” into her underwear, Defendant “was . . . touching [the] skin . . . [u]nderneath [her] underwear” in a “rubbing” motion. On cross-examination, Victim clarified that Defendant‘s hand did not touch her “privates,” but that “[i]t was above—a little above [her] privates.”
{4} Victim testified that she then “got up and [she] went to go and tell [her] aunt.” While she told her aunt that Defendant was unzipping her pajamas, she chose not to tell her aunt that Defendant put his hand in her underwear as she was embarrassed and scared. Soon thereafter, her aunt called her mother, and her mother “rushed over to the house” to pick her up. It was not until later, when she arrived at her own home that she told her mom Defendant put his hand in her underwear.
{5} Following the trial, the jury was provided, in relevant part, with the instruction containing the elements of CSCM and the definitions of “mons veneris,” “vulva,” and “vagina.” The jury was not provided with an instruction defining “groin.” During closing arguments, the State informed the jury that “[t]here is no legal definition for the groin area.” The State posed to the jury: “[i]s there a way for a 21-year old man to have his hands in [her] underpants without touching the groin area? What do you consider the groin? . . . [D]oes the groin area extend past the underpants? If it does, we have ourselves an element[] that is met.” Defendant did not object to the State‘s comments in closing arguments or to the absence of a definition for “groin” in the jury instructions. The jury convicted Defendant of CSCM. Defendant appeals this conviction.
II. DISCUSSION
a. There Was Sufficient Evidence Presented to Sustain Defendant‘s Conviction
{6} Defendant contends that there was insufficient evidence presented at trial to sustain his conviction for CSCM. The standard of review for a sufficiency of the evidence claim requires the appellate court to
{7} CSCM consists of “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.”
{8} Defendant contends that the State failed to prove that Defendant unlawfully touched Victim‘s “unclothed vagina, vulva and/or groin” as Victim was “small for her age” and her underwear were “granny panties, . . . such that the waist band of the underwear when worn was near the belly button of [a] small girl.” Furthermore, Defendant argues that because Victim explicitly stated that Defendant did not touch “her privates, . . . there is no way the jury could have found that [Defendant] touched [Victim‘s] vagina, vulva, mons veneris[,] or groin area.” We disagree.
{9} Victim testified that while Defendant‘s hand was “[n]ot very far” underneath her underwear, it was “a little above [her] privates.” It would be reasonable for a jury to assume that when Victim, a young child, was testifying regarding her “privates,” she was referring to what is technically termed to be her “vulva” or her “vagina.” Thus, Victim made clear that Defendant did not “touch[] or appl[y] force to [her] unclothed [vagina or vulva.]”
{10} As we have stated, the Legislature has not promulgated a definition for the terms “groin or groin area.” Therefore, we must turn to this Court‘s previously identified “common meaning of the word—the fold or depression marking the line between the lower part of the abdomen and the thigh, as well as the region of that line.” Benny E., 1990-NMCA-052, ¶ 18. The best way to clearly describe and explain the area encompassed by this “common meaning” is to imagine an individual sitting in a chair. When a person is sitting, a fold naturally appears delineating “the lower part of the abdomen and the thigh[.]” Id. As the common meaning encompasses the “region of that line,” id., if we were to place a straight-edge across the fold that is created, the line of the straight-edge would fall slightly above the mons veneris. The mons veneris is identified as “the rounded eminence or protuberance at the lowest point of the abdomen of a woman that is ordinarily covered with pubic hair on an adult.”
{11} Insofar as Defendant argues that Victim‘s underwear may have been too large, such that the waistband was near her bellybutton, and she testified that Defendant‘s hand was “[n]ot very far” beneath the waistband of her underwear we first note that Defendant points us to nothing in the record showing how the underwear fit Victim at the time of the assault. See
b. The Jury Was Not Improperly Instructed
{12} Defendant alleges that the State “created an issue when [it] offered a conjectural definition for ‘groin’ that does not match the commonly accepted definition[.]” As Defendant acknowledges, in the district court below, he neglected to object to the jury instructions or the State‘s comments during closing argument that he now disputes. Thus, he asks that we review this issue for fundamental error. “The doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice.” State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. One basis for “establishing fundamental error occurs when a mistake in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused.” State v. Nevarez, 2010-NMCA-049, ¶ 24, 148 N.M. 820, 242 P.3d 387 (internal quotation marks and citation omitted). In such a context, we must first make “a determination as to whether a reasonable juror would have been confused or misdirected by the jury instruction.” Id. ¶ 25. However, we have stated that “[t]here is no miscarriage of justice where, despite any misunderstanding by the jury, the circumstances of the case demonstrate that all the necessary elements of the offense were satisfied beyond a reasonable doubt.” Id. ¶ 26.
{13} We note that aside from citing caselaw for the fundamental error standard of review and the “common meaning” for the definition of “groin,” Defendant fails to present a comprehensive and developed argument explaining how the jury instructions or the State‘s descriptive statements during closing arguments constituted fundamental error. Defendant does not argue that
c. Defendant Failed to Show He Received Ineffective Assistance of Counsel
{14} Finally, pursuant to State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, ¶¶ 17-24, 103 N.M. 655, 712 P.2d 1, Defendant argues that his trial counsel was ineffective as counsel did not object to the jury instructions or the State‘s reference to the term “groin” in closing arguments. “We review claims of ineffective assistance of counsel de novo.” State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44.
{15} We note that while Defendant contends he was subjected to ineffective assistance of counsel, he does little more than cite to relevant caselaw. Additionally, he fails to provide a developed argument or analysis that would assist this Court in determining whether a prima facie case for ineffective assistance of counsel was established. As we have stated, we will not review unclear or undeveloped arguments that would require us to speculate as to the party‘s intended argument. See Urioste, 2011-NMCA-121, ¶ 29. Accordingly, the Court is unable to properly analyze Defendant‘s ineffective assistance of counsel argument, and we must further conclude that Defendant has not established a prima facie case for ineffective assistance of counsel. Defendant can still pursue habeas corpus proceedings regarding this claim. See State v. Hobbs, 2016-NMCA-006, ¶¶ 19, 23, 363 P.3d 1259 (stating that there is a preference for habeas corpus proceedings as the avenue for adjudicating ineffective assistance of counsel claims, especially when the record fails to establish a prima facie case and further development is necessary), cert. denied, 2015-NMCERT-012, 370 P.3d 472.
III. CONCLUSION
{16} For the foregoing reasons, we affirm Defendant‘s conviction.
{17} IT IS SO ORDERED.
TIMOTHY L. GARCIA, Judge
WE CONCUR:
RODERICK T. KENNEDY, Judge
M. MONICA ZAMORA, Judge