Lead Opinion
OPINION
Juan Trevino appealed to the Court of Appeals from his convictions on four counts of criminal sexual contact of a minor in the third degree (CSCM) under NMSA 1978, Section 30-9-13(A) (Cum.Supp.1990), and two counts of contributing to the delinquency of a minor (CDM) under NMSA 1978, Section 30-6-3 (Repl.Pamp.1984). The Court of Appeals affirmed except as to one question certified for review by this Court pursuant to NMSA 1978, Section 34-5-14(0 (Repl.Pamp.1990). See State v. Trevino,
The State charged Trevino with CSCM offenses against two boys under Section 30-9-13(A), but because of different circumstances separate provisions of the statute applied. As will be discussed below, J.C. was fourteen and employed by Trevino; J.J. was twelve. With respect to J.C., Trevino was convicted of three counts of CSCM and one count of CDM. With respect to J.J., he was convicted of one count of CSCM and one count of CDM. The Court of Appeals held that “although both the crimes of [CSCM] and [CDM] were violated by the [same act of] unlawful and intentional touching of the minor’s genitals, two offenses were committed.” Trevino,
Double Jeopardy. Protection against multiple punishments for the same offense is one of three types of protection embodied in the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. Swafford v. State,
We begin the second step of our double jeopardy analysis by looking to see if the legislature clearly exрressed an intention to provide multiple punishment. We find no clear expression of such an intent and continue our analysis.
—The two crimes each require proof of a fact that the other does not. As we indicated in Swafford, the Blockburger test is a means of divining legislative intent by comparing the two statutes to see if each requires proof of a fact that the other does not.
—CSCM requires proof of a fact not required to prove CDM. The elements of CSCM differ for the two victims in this case, so we must examine the two versions separately. Under Section 30-9-13(A)(l), the elements are: (1) an unlawful and (2) intentional (3) touching or applying of force to the intimate sexual parts of the victim, or causing the victim to touch the intimate sexual parts of the defendant (4) when the victim is a minor less than thirteen years old. Under Section 30-6-3, the elements of CDM are: (1) commission of an act or omission of the performance of a duty (2) that causes or tends to cause or encourage (3) the delinquency (4) of any person under the age of eighteen. Under our uniform jury instructions, the jury in this case was instructed under CDM that they also must find that Trevino’s acts were intentional. See SCRA 1986,14-141 (general criminal intent instruction — given except when crime requires specific intent or has no intent requirement). CSCM of a minor under the age of thirteen requires proof of a fact that CDM does not— an unlawful sexual touching.
The elements of Section 30-9-13(A)(2) are the same as Section 30 — 9—13(A)(1), except the age of the viсtim must be between thirteen and eighteen, and the perpetrator must be a person in a position of authority over the child and use that authority to coerce the child to submit. CSCM of a minor between the ages of thirteen and eighteen requires proof of an unlawful sexual touching and adds the element of coercion, neither of which is needed to prove CDM.
—CDM requires proof of a fact not required to prove CSCM. CDM requires proof that the act of the defendant contributed to the “delinquency” of a minor.
The appellate courts of this state consistently have upheld findings that an unlawful sexual touching (or penetration) supported a conviction for CDM. See State v. Favela,
The fact that we have upheld jury findings that sexual conduct with a minor contributed to delinquency does not mean that juries always must find that such conduct contributes to delinquency. While unlawful sexual touching of a minor factually may evince a tendency to cause or encourage delinquency, even manifestly so in particular circumstances, it does not do so as a mаtter of law. In a given case, the evidence may belie a finding, beyond a reasonable doubt, that the sexual contact tended to cause or encourage delinquency. Such a case may involve contact with a sleeping child. Contributing to delinquency, therefore, is a fact separate from an unlawful sexual touching, and thus CDM is not subsumed within CSCM. Application of the Blockburger test shows that neither of the offenses subsumes the other, raising a rebuttable presumption that the legislature intended separate punishments. Swafford,
—Other indicia of legislative intent. Having established a presumption that the legislature intended separate punishments for the two offenses, we continue our inquiry by reviewing other indications of legislative intent. See id. We look first to the purposes of the two statutes because if they are “directed toward protecting different social norms and achieving different policies [they] can be viewed as separate and amenable to multiple punishments.” Id. We are mindful that “social evils can be elusive and subject to diverse interpretation.” Id. There is also a danger, as Trevino points out, that a court could interpret the simple fact that the legislature passed two statutes as an indication that different purposes are addressed.
The purpose of the CSCM statute is clear — to protect the bodily integrity and personal safety of minors, whether awake or asleep. See State v. Williams,
We also have looked to the quantum of punishment established by the legislature for each of the crimes. All of Trevino’s CSCM convictions were under Section 30-9-13(A), making them third-degree felonies. CDM is a fourth-degree felony. See Section 30-6-3. If the statutes were to share “many” elements, the greater penalty for CSCM could indicate a legislative intent not to punish the two offenses separately. Swafford,
By application of Swafford, we conclude today that the legislature intended for the crimes of CSCM and CDM to be separate crimes, punishable separately even when unitary conduct violates both statutes. Accord Commonwealth v. Norris,
The State is not required to present separate evidence that the defendant’s act contributed to the delinquency of a minor. Trevino contends that if commission of CSCM is not ipso facto proof of CDM, then a conviction for CDM must be supported by proof in addition to proof of the defendant’s act. In other words, if contributing to a minor’s delinquency is a seрarate fact, the State should be required to present additional evidence in support of that fact. This essentially is an attack on the sufficiency of the evidence in this case because the State did not present any separate evidence (such as expert testimony) that Trevino’s acts of sexual contact caused or tended to cause or encourage delinquency on the part of either of the two minors involved. Cf. State v. R.J. (In re R.J.),
Although we have held that CDM requires proof of a fact that is not required to prove CSCM, that does not mean that the different facts cannot be proved by the same evidence. In none of the above-cited New Mexico cases is any reference made to any evidence beyond proof of sexual conduct with a minor. This comports with the rule that this is' a jury decision and the jury is to use the common sense and the sense of decency, propriety, and morality that most people entertain. McKinley,
The defendant’s act need not actually cause delinquency. Finally, Trevino argues that a conviction for CDM must be supported by evidence of actual delinquency because possible delinquency in the future is speculative. This point is without merit. The plain language of Section 30-6-3 prohibits acts that cause or tend to cause or encourage delinquency. The defendant is punished for his own acts, not those of the juvenile. The jury can convict for CDM if the defendant’s act actually caused or encouraged the particular minor to commit a delinquent act or if the act only tends to cause or encourage delinquency generally. The “tends to cause or encourage” language refers to an objective view of defendant’s conduct. The jury does not speculate; it convicts or acquits based on an actual act by or omission of the defendant. See Favela,
Conclusion. We hold today that convictions on charges of both CSCM and CDM based on unitary conduct do not violate principles of double jeopardy, that the State is not required to present evidence beyond the defendant’s act to support a conviction for CDM, and that the act of the defendant need not actually cause delinquency. As a result of our holding today and resolution of the other issues raised on appeal by Trevino in Orosco, we affirm his convictions.
IT IS SO ORDERED.
Notes
. In his supplemental brief, Trevino also argues, summarily, that the uniform jury instruction for CDM is "wrong and requires reversal.” This is not an issue mentioned in this Court’s order requesting supplemental briefs, and we do not address it in this opinion. We do discuss the issue in another case we decide today, see Henderson v. State,
. There is a double jeopardy provision in the New Mexico Constitution as well, see N.M. Const, art. II, § 15, but Trevino does not raise it. In any event, this Court has held that the state provision and the federal provision are so similarly worded that they should be subject to the same construction and interpretation. See State v. Rogers,
. This Court is divided three to two on the question of whether the evidence established that Trevino contributed to either boy’s delinquency. In support of its view that proof of delinquency is absent, the dissenting justices quote language from the majority opinion’s double jeopardy section even though the Court is unanimous in its belief that double jeopardy principles have not been violated in this case. The division of the Court lies not in the discussion of double jeopardy principles but in the majority opinion’s holding in its last section that Trevino’s acts need not be proved to have actually caused or encouraged delinquency in either of the boys if his acts tended to cause or encourage delinquency. The double jeopardy principles turn on the language of the criminal statutes, while proof of any given element turns on the evidence. The doublе jeopardy section refers to delinquency without distinguishing between the disjunctive requirements that the defendant's acts either cause or tend to cause or encourage delinquency. The dissent poses the question of what evidence was adduced to prove a fact different from the fact that defendant committed an unlawful sexual touching, with or without coercion. The majority answers that the same evidence that proved touching also proved encouragement of delinquency.
. Courts in other states have reached similar conclusions. See, e.g., State v. Sullivan,
Dissenting Opinion
(dissenting).
In State v. Davis,
The question thus arises: Where is the evidence to prove a fact not required to prove CSCM — to prove that defendant’s acts contributed to either boy’s delinquency? The answer: There is none.
The majority concedes as much. The majority acknowledges that “the State did not present any separate evidence ... that Trevino’s acts of sexual contact caused or tended to cause or encourage delinquency on the part of either of the two minors involved.” The majority is on sound ground in making this concession. It correctly appraises the State’s position because, among other things, the prosecutor told the jury in his opening statement that criminal sexual contact was the basis for the CDM charge.
Thus, even though the majority professes to hold (again, to avoid the double jeopardy problem) that contributing to the delinquency of a minor requires proof of a fact not required to prove criminal sexual contact of a minor, in the end the majority states that the different facts to establish the different offenses may be proved by the same evidence. To the question, what evidence was adduced in this case to prove a fact different from the fact that defendant committed CSCM?, the majority answers: evidence that defendant committed CSCM. I cannot accept this self-contradictory analysis.
In lieu of evidence, the Court offers the jury’s “common sense” and “the sense of decency, propriety, and morality which most people entertain.” Now, I fully agree that in deciding whether the State in a criminal case has carried its burden to prove, beyond a reasonable doubt, every element of the crime with which the defendant is charged, see State v. Garcia,
The majority turns this requirement for evidence on its head, saying “While it may be helpful for the jury to hear evidence on whether a particular act tends to cause or encourage delinquent behavior either generally or with respect to the particular victim, such evidence is not required in the jury’s exercise of common sense.” In other words, to enable a jury applying its common sense to determine that the defendant’s act did not contribute tо delinquency, it is incumbent on the defendant to adduce evidence that his or her act did not contribute to the minor’s delinquency. This effectively shifts the burden of proof to the defendant and is unconstitutional, as established by, among other cases, Jackson v. Virginia.
The majority states, “While unlawful sexual touching of a minor factually may evince a tendency to cause or encourage delinquency, ... it does not do so as a matter of law.” As a practical matter, however, the majority’s holding in this case makes the commission of CSCM ipso facto the commission of CDM. An accused who is charged with CSCM automaticаlly is guilty, under the majority’s holding, of CDM (at least if the jury, without the benefit of any evidence on the subject, so declares). I find no such per se equivalence between the two offenses in our statutes, and I disagree that commission of the former may be tantamount (depending on what the jury may find when it consults its common sense) to commission of the latter.
The majority says that “[i]f the jury finds that the defendant’s conduct violated the community sense of decency, propriety, and morality, the jury may infer an adverse impact on the minor.” Similarly, the majority relies on the State’s position that sexual abuse and exploitation of minors have “many serious consequences to their future well-being.” But there was no need for the jury to draw inferences along these lines; there was direct testimony from each boy’s mother that her son’s experiences with defendant caused him to suffer adverse effects. J.C.’s mother testified that he was crying, shaking, and babbling incoherently following his last encounter with defendant; J.J.’s mother testified that he began throwing temper tantrums and bed-wetting following revelation of defendant’s sexual activities.
These, however, in my opinion, are precisely the kinds of adverse impact that the statute proscribing CSCM is intended to prevent. To the extent that the majority opinion implies that the only purpose of the CSCM statute is to protect a minor’s bodily integrity and personal safety, I respectfully disagree. I believe that the statute also protects against the kind of emotional and psychological trauma that is such a well-known result of sexual abuse and that is exhibited in the record of this case. However, the statute proscribing CDM criminalizes conduct that causes or tends to cause or encourage the delinquency of a minor. The Uniform Jury Instruction, given in this case (see supra note 1), requires an accused to refrain from conduct injurious to thе morals of the minor.
The majority draws some support for its per se equivalence between CSCM and CDM from this Court’s dictum in State v. Dodson (cited in the majority opinion) that “We can conceive of few acts which would more manifestly tend to cause delinquency than those charged here.”
As for other New Mexico cases (and without dissecting them all), the majority’s own parenthetical description of State v. Corbin (cited in the opinion) shows that the extensive “sexual conduct” engaged in by the defendant was sufficient at least to “encourage” the victim to engage in conduct injurious to his morals. Here, on the other hand, the effect of defendant’s conduct was, as they testified, only to cause the boys to feel fear.
As for decisions elsewhere around the country, the cases seem to be split over the precise issue considered here, but there is certainly authority supporting the position adopted in this dissent. See, e.g., State v. Stone,
The majority allows a defendant to be convicted of CDM by proof only of the defendant’s act, without reference to the effect of the act on the victim. Yet our Criminal Code defines many crimes in terms of the effect on the victim. See, e.g., NMSA 1978, § 30-2-1 (Repl.Pamp.1984) (defining murder); § 30-3-4 (defining battery); § 30-4-3 (defining false imprisonment); § 30-6-1 (Cum.Supp. 1993) (defining abandonment or abuse of a child). I doubt that it is possible to determine whether a defendant in fact contributed to the delinquency of a minor without examining the effect of the defendant’s conduct on the victim. Thus, for example, while offering liquor to one child might cause or tend tо cause that child to become delinquent, another child might angrily refuse the offer and in no way be encouraged toward delinquent behavior. In the latter case (which obviously is not before us), I would be inclined to doubt that the perpetrator had contributed to the delinquency of a minor and that any conviction of that offense should be sustained.
I would not sustain Trevino’s convictions of CDM in this case. The majority having done so, I respectfully dissent.
. The prosecutor’s theory was carried forward ' into the trial court's instructions to the jury. The court instructed the jury that, to find defendant guilty of contributing to each boy's delinquency, the Stаte had to prove to the jury's satisfaction beyond a reasonable doubt each of the following two critical elements of the crime: (1) that defendant "touched the penis” of J.J. and "touched the penis and buttocks” of J.C., and (2) that these acts caused or encouraged J.J. and J.C. to conduct themselves in a manner injurious to their morals. See SCRA 1986, 14-601 (Uniform Jury Instruction on elements of CDM). As described in the text, there was no evidence apart from the touchings that those touchings caused or encouraged either minor to conduct himself in a manner injurious to his morals.
. The Uniform Jury Instruction also describes other types оf delinquent behavior that, depending on the facts of a particular case, may be caused or encouraged by the defendant, including commission of a crime, refusal to obey lawful commands or directions of persons in authority, and conduct injurious to the minor's health or welfare (in addition to his or her morals). See SCRA 1986, 14-601.
Perhaps the mothers' testimony concerning their sons' reactions to defendant's conduct would have been sufficient to support a jury finding that the conduct was injurious to each boy’s "health” (i.e., mental health) or "welfare,” but the jury clearly was not instructed on any such theory.
. To the extent this dictum can be read as saying that proof of touching a minor's intimate parts will alone support a conviction of CDM, I would expressly disapprove it.