1997 -NMCA- 101, State v. Crain

• Decision Date: 13 August 1997
• Docket Number: No. 16463,16463
• Citation: 1997 NMCA 101,124 N.M. 84,946 P.2d 1095
• Parties: , 1997 -NMCA- 101 STATE of New Mexico, Plaintiff-Appellee, v. Michael Lee CRAIN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1095

946 P.2d 1095

124 N.M. 84, 1997 -NMCA- 101

STATE of New Mexico, Plaintiff-Appellee, v. Michael Lee CRAIN, Defendant-Appellant.

No. 16463.

Court of Appeals of New Mexico.

Aug. 13, 1997.

Certiorari Denied Sept. 30, 1997.

Tom Udall, Attorney General, Joan M. Waters, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

T. Glenn Ellington, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

ARMIJO, Judge.

¶1 Defendant appeals from his convictions for kidnapping and two alternative counts of criminal sexual penetration in the second degree (CSP II). The grounds for Defendant's appeal are that: (1) the trial court erred in its jury instructions for the crime of CSP II; (2) Defendant was subjected to double jeopardy when he was sentenced to multiple punishments for the same offense; and (3) the cumulative errors of Defendant's trial counsel deprived Defendant of his right to effective assistance of counsel. "Issues raised in the docketing statement but not briefed are deemed abandoned." State v. Ramos, 115 N.M. 718, 720, 858 P.2d 94, 96 (Ct.App.1993) (citation omitted). Because we are not persuaded that the legislature intended multiple punishments for the same offense or that the legislature intended to punish every CSP that resulted from force and restraint as a second-degree felony, we remand this case to the trial court with instructions to vacate Defendant's conviction and sentence for kidnapping and CSP II in the commission of a kidnapping. We affirm Defendant's remaining conviction and sentence for CSP II resulting in personal injury.

I. BACKGROUND

¶2 Defendant's convictions arose from an evening of drinking and dancing at a country-western bar in Albuquerque, New Mexico, on August 21 and 22, 1993. The victim was a prior acquaintance of Defendant who spent time with him at the nightclub that evening and followed him to his car near closing time to go to breakfast. The victim entered Defendant's car and the two talked, smoked, and kissed initially. Defendant and the victim then engaged in sexual intercourse in Defendant's car.

¶3 According to the victim's testimony, she resisted from the beginning and did not consent to have sexual intercourse at any time. The victim testified that she kicked and fought and tried to escape, but Defendant prevented her from opening the car door. She explained that she yelled "Daddy, Daddy, please stop" during the attack because "what [Defendant] was doing to me reminded me of how my father was with me as a child." The victim further testified that she had been sexually abused as a child by her father.

¶4 According to Defendant's testimony, his sexual intercourse with the victim was consensual and ended when he promptly and voluntarily withdrew from the victim as she stated "Daddy, Daddy," and began to yell at him. Defendant interpreted the victim's statement to mean that "maybe she was fantasizing something."

¶5 After the incident, the victim was taken to a hospital where the treating physician observed bruises and scratches on her body. The victim's arm was in a sling and she was upset. No test results were presented at trial because the parties stipulated that Defendant had sexual intercourse with the victim.

¶6 On January 21, 1994, Defendant was indicted on alternative counts of CSP II in violation of NMSA 1978, § 30-9-11(D) (Repl.Pamp.1994), kidnapping (no great bodily harm) in violation of NMSA 1978, § 30-4-1 (Repl.Pamp.1994), and aggravated battery in violation of NMSA 1978, § 30-3-5 (Repl.Pamp.1994). A jury trial commenced on September 13, 1994. At the close of evidence, the trial court dismissed the aggravated battery charge.

¶7 The jury was given essential-elements instructions patterned on the uniform jury instructions (UJIs) for CSP II (personal injury), UJI 14-949 NMRA 1997, CSP II (commission of a felony), UJI 14-954 NMRA 1997, and kidnapping (no great bodily harm), UJI 14-403 NMRA 1997. The jury also was given definitional instructions for the terms "sexual intercourse" and "hold for service." These definitional instructions were patterned on UJI 14-982 NMRA 1997 and SCRA 1986, 14-405 (withdrawn 1993). The trial court refused the following instruction tendered by Defendant:

Should you find that [the victim] did consent to have sexual intercourse with [D]efendant, and that her later admonition for [D]efendant to cease such intercourse was under her misapprehension that [D]efendant was her father, then you must return your verdict of not guilty as to all counts.

¶8 During deliberations, the jury sent the following question to the trial court: "[I]f the women [sic] says no after the sex act begins, does continuing constitute rape[?]" In chambers with counsel present, the trial court stated: "The way I propose to answer the question is that, 'I'm sorry. I cannot answer that question. You'll have to rely on the instructions and the evidence.' " Neither Defendant nor the State objected to the Court's proposed answer.

¶9 On September 19, 1994, the jury returned a verdict of guilty on both alternative counts of CSP II and the kidnapping charge. On April 3, 1995, the trial court sentenced Defendant to nine years on each of the three charges, ordered that all three sentences would run concurrently, and suspended eight years and six months of the nine-year sentences. This appeal followed.

II. DISCUSSION

A. Instructional Error

¶10 Defendant claims it was reversible error to refuse the instruction tendered by his trial counsel regarding the purported effect of the victim's misapprehension that Defendant was her father. Defendant also claims that the trial court's refusal to provide an instruction on the victim's withdrawal of consent during intercourse in response to a question from the jury amounts to a more fundamental error of failing to instruct on essential elements of the offense. On appeal, Defendant argues that the trial court failed to define the terms "sexual intercourse" or "penetration" in a manner that would exclude from the crime of CSP II those acts of sexual intercourse or penetration that begin with the victim's consent.

¶11 We conclude that the trial court's decision not to provide an additional definitional instruction regarding these terms in response to the jury's question did not amount to fundamental error because a failure to give a definitional instruction is not a failure to instruct on an essential element. See Ramos, 115 N.M. at 725, 858 P.2d at 101. The jury was given the UJI defining "sexual intercourse," UJI 14-982, and we conclude that the instructions given adequately covered the law. See State v. Stettheimer, 94 N.M. 149, 154, 607 P.2d 1167, 1172 (Ct.App.1980).

¶12 The trial court's instructions to the jury also did not deprive Defendant of his right to present his theory of the case. Defendant's theory at trial was that the entire act of sexual intercourse was consensual because Defendant promptly and voluntarily withdrew from the victim when she began to say "Daddy, Daddy." The essential-elements instructions given to the jury adequately covered the concept of lack of consent, and Defendant's trial counsel reinforced this concept in his closing argument by asserting that the State had the burden of proving that the intercourse was not consensual.

¶13 We construe Defendant's tendered instruction regarding the victim's misapprehension that Defendant was her father as raising a separate issue of mistaken identity or a challenge to the victim's credibility. This instruction was not sufficient to alert the mind of the trial court to an issue of withdrawal of consent or the victim's change of mind during intercourse. The issue of withdrawal of consent during intercourse did not arise until the jury submitted a question to the trial court during deliberations. The lack of an objection by Defendant's trial counsel to the trial court's decision not to instruct the jury on withdrawal of consent at this point is consistent with Defendant's theory that the entire act of sexual intercourse was consensual.

¶14 For these reasons, we also conclude that Defendant's tendered instruction on the victim's misapprehension that Defendant was her father was not sufficient to preserve Defendant's claim on appeal that it was reversible error for the trial court not to instruct the jury on withdrawal of the victim's consent after sexual intercourse had begun. See Rule 5-608(D) NMRA 1997 ("[O]bjection to any instruction given must be sufficient to alert the mind of the court to the claimed vice therein, or, in case of failure to instruct on any issue, a correct written instruction must be tendered before the jury is instructed."). We affirm the trial court's decision regarding the use of jury instructions for CSP II in this case.

B. Double Jeopardy.

¶15 Defendant alleges that his constitutional right to be free from double jeopardy was violated because he was convicted and given distinct sentences for CSP II (personal injury) under Section 30-9-11(D)(2), CSP II (commission of a felony) under Section 30-9-11(D)(4), and kidnapping (no great bodily harm) under Section 30-4-1. We review Defendant's double jeopardy claims on appeal despite Defendant's failure to raise these claims before the trial court or in his docketing statement because double jeopardy claims are not waivable. See NMSA 1978, § 30-1-10 (Repl.Pamp.1994); State v. Sanchez, 122 N.M. 280, 283, 923 P.2d 1165, 1168 (Ct.App.), cert. denied, 122 N.M. 279, 923 P.2d 1164 (1996).

¶16 Defendant's double jeopardy claims are limited to the issue of multiple punishments for the same offense. On this issue, " 'the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.' " Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991) (quoting Grady v. Corbin, 495 U.S. 508, 516-17, 110 S.Ct. 2084, 2090-91, 109 L.Ed.2d 548 (1990), ...