State v. Lente

Decision Date31 October 2019
Docket NumberNO. S-1-SC-36537,S-1-SC-36537
Citation453 P.3d 416
Parties STATE of New Mexico, Plaintiff-Petitioner, v. Jesse Lawrence LENTE, Defendant-Respondent.
CourtNew Mexico Supreme Court

Hector H. Balderas, Attorney General, Eran Shemuel Sharon, Assistant Attorney General, Santa Fe, NM, for Petitioner

Bennett J. Baur, Chief Public Defender, C. David Henderson, Appellate Defender, Tania Shahani, Assistant Appellate Defender, Santa Fe, NM, for Respondent

NAKAMURA, C. J.

{1} This is a "resident child molester" case. People v. Jones , 51 Cal.3d 294, 270 Cal.Rptr. 611, 792 P.2d 643, 645 (1990), as modified (Aug. 15, 1990). These cases generally involve defendants who have regular access to and control over children whom they sexually abuse in secrecy for long periods of time. See, e.g. , id. The child victims in these cases are usually the sole witnesses of the crimes perpetrated and, because of their age and the frequency of the sexual abuse to which they are subjected, cannot provide detailed accounts of the abuse but only generalized accounts of frequent sexual contact with the defendant. See, e.g. , id. "[T]he prosecution of resident child molesters presents unique challenges rarely present in prosecution for other crimes." R.L.G., Jr. v. State , 712 So. 2d 348, 357 (Ala. Crim. App. 1997), aff’d sub nom. ex parte R.L.G., Jr. , 712 So. 2d 372 (Ala. 1998).

{2} Two issues are presented in this case which comes to us from the district court’s decision to grant Defendant Jesse Lente’s habeas petition. The first concerns Lente’s indictment. It charged him with perpetrating various forms of sexual abuse on a regular basis against M.C., his stepdaughter. The district court, relying on Valentine v. Konteh , 395 F.3d 626 (6th Cir. 2005), and State v. Dominguez , 2008-NMCA-029, 143 N.M. 549, 178 P.3d 834, concluded that Lente’s indictment included "carbon copy" charges—charges that are truly identical, and not distinguishable by time or date or by specification that each charge was predicated on different acts—that impermissibly subjected him to double jeopardy. We disagree and conclude that the district court wrongly interpreted the principles articulated in Valentine and Dominguez and erred in determining that Lente’s indictment included carbon copy charges that produced a double jeopardy violation.

{3} The second issue concerns the district court’s determination that M.C.’s testimony was too generic and insufficient to support Lente’s multiple convictions. Her testimony, the district court concluded, could support only one conviction for each type of sex-abuse crime Lente perpetrated and, therefore, Lente’s multiple convictions violate double jeopardy. We disagree and take this opportunity to clarify the principles courts must utilize when evaluating the sufficiency of the evidence presented in resident child molester cases. We reverse and remand.

I. BACKGROUND

{4} The indictment filed against Lente included thirty-eight counts. Thirty-two of those counts involved allegations that Lente sexually abused M.C. by perpetrating varying forms of criminal sexual penetration (CSP) or criminal sexual contact of a minor (CSCM). Those counts alleged that Lente forced M.C. to engage in fellatio on six different occasions, penetrated M.C.’s vagina with his fingers on four different occasions, touched M.C.’s vagina on seven different occasions, touched M.C.’s breasts on seven different occasions, and touched M.C.’s buttocks on eight different occasions. Table A sets out in chronological order the time periods and conduct in which Lente allegedly engaged.

 Date Conduct
                  8/1/97-1/31/98 (6 month span)         Touch Buttocks (TBu)
                                                        Touch Breasts (TBr)
                                                        Touch Vagina (TVa)
                  2/1/98-7/31/98 (6 month span)         TBu; TBr; TVa
                  8/1/98-1/31/99 (6 month span)         TBu; TBr; TVa
                  2/1/99-7/31/99 (6 month span)         TBu; TBr; TVa
                                                        Penetrate Vagina Finger (PVF)
                                                        Fellatio (F)
                  8/1/99-1/31/00 (6 month span)         TBu; TBr; TVa; PVF; F
                  2/1/00-7/31/00 (6 month span)         TBu; TBr; TVa; PVF; F
                  8/1/00-11/30/00 (4 month span)        TBu; TBr; TVa; PVF; F
                  12/1/00-12/12/00 (12 day span)        TBu; F
                  12/13/00 (a single discrete date)     F
                

{5} At trial, Lente’s counsel elicited unrefuted testimony showing that some of the sex abuse that Lente was alleged to have perpetrated could not have happened as Lente was not living with M.C. and her mother during the time frames some of the sex-abuse charges were alleged to have occurred. The district court rightly granted Lente’s motion for directed verdict in part and dismissed the sex-abuse charges that purportedly occurred at times when Lente did not live or have contact with M.C. and, thus, could not have committed certain crimes charged.

{6} Lente’s jury convicted him of all twenty-six sex-abuse counts that survived directed verdict: six counts of CSP fellatio, four counts of CSP digital penetration, five counts of CSCM touching M.C.’s vagina, five counts of CSCM touching M.C.’s breasts, and six counts of CSCM touching M.C.’s buttocks.

{7} Lente filed his appeal of right and raised three issues unrelated to the legality of the indictment or the sufficiency of the evidence presented at trial. State v. Lente , 2005-NMCA-111, ¶ 1, 138 N.M. 312, 119 P.3d 737. The Court of Appeals rejected all three arguments and affirmed Lente’s convictions. Id. He filed a petition for a writ of certiorari which was denied. State v. Lente , 2005-NMCERT-008, 138 N.M. 328, 119 P.3d 1265.

{8} Lente then filed a series of pro se habeas petitions in district court asserting that he was entitled to a new trial or, alternatively, that his convictions should be vacated and he should be released. Lente claimed that M.C. lied about the abuse as had M.C.’s mother, and he insisted that he did not commit the offenses for which he was convicted. Alternatively, he argued that his convictions violated his right to be free from double jeopardy.

{9} The district court summarily denied Lente’s initial pro se habeas petition without explanation. After Lente filed a subsequent habeas petition, the court appointed Lente counsel.

{10} Lente’s counsel made the same double jeopardy argument Lente advanced in his pro se habeas petitions: each of the counts in the indictment were "carbon copy" counts and, as a result, he was not "given adequate notice [of the charges against him], and consequently [Lente’s] right to be free from [double] jeopardy was compromised." Lente’s arguments relied on Valentine and Dominguez .

{11} The district court agreed that Valentine and Dominguez controlled as, in the district court’s view, Lente’s case was effectively identical to them. The court held that, "[g]iven the holdings in Valentine and Dominguez , the lack of specificity in the indictment and the testimony of M.C., ... the multiple convictions for the same sexual acts violates double jeopardy."

{12} The court vacated most of Lente’s sex-abuse convictions and sustained only one conviction for each type of the varying forms of sexual abuse Lente perpetrated upon M.C. The State appeals the district court’s decision to grant Lente’s habeas petition and vacate the convictions. We have jurisdiction over this appeal. Rule 12-102(A)(3) NMRA.

II. DISCUSSION

{13} The district court’s conclusions require us to answer two questions. First, did Lente’s indictment charge him with "carbon copy" counts and, in doing so, violate his double jeopardy rights? Second, was M.C.’s testimony sufficient to support Lente’s multiple sex-abuse convictions and ensure his multiple convictions did not violate double jeopardy? We address these questions in turn.

A. The Indictment

{14} The district court concluded that Lente’s indictment violated his double jeopardy rights. Specifically, the court held that the charges in Lente’s indictment were insufficiently specific in the same way that the charges in the indictments in Valentine and Dominguez were and produced the same double jeopardy problems that led to the vacating of counts and/or convictions in those cases. Our review of whether a double jeopardy violation occurred is a legal question subject to de novo review. State v. Bernal , 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289. Before we address Valentine and Dominguez it is necessary to more broadly discuss the types of objections most commonly directed towards indictments in resident child molester cases. Doing so will give us clarity about the objections the district court and Lente have regarding his indictment.

1. Notice and multiplicity

{15} Objections to indictments comprised of unspecific charges are often presented as notice problems. See State v. Huerta-Castro , 2017-NMCA-026, ¶ 13, 390 P.3d 185 ; State v. Gardner , 2003-NMCA-107, ¶ 26, 134 N.M. 294, 76 P.3d 47 ; State v. Baldonado , 1998-NMCA-040, ¶ 18, 124 N.M. 745, 955 P.2d 214. Where defendants do not have adequate notice of the charges filed against them, they cannot be expected to prepare a defense to those charges. Baldonado , 1998-NMCA-040, ¶¶ 18-21, 124 N.M. 745, 955 P.2d 214. Notice/due process objections are common in resident child molester cases given that the child victim’s generic testimony will likely be the only evidence available. See State v. Brown , 55 Wash.App. 738, 780 P.2d 880, 885 (1989).

{16} Lente never filed pretrial objections to the indictment or demanded any additional pretrial specification of the charges. Having failed to do so, he waived the opportunity to object to the indictment on notice or due process grounds. State v. Selgado , 1967-NMSC-147, ¶ 3, 78 N.M. 165, 429 P.2d 363 ; State v. Lott , 1963-NMSC-219, ¶ 5, 73 N.M. 280, 387 P.2d 855 ; State v. Altgilbers , 1989-NMCA-106, ¶ 46, 109 N.M. 453, 786 P.2d 680 ; State v. Gammill , 1985-NMCA-014, ¶ 5, 102 N.M. 652, 699 P.2d 125. Even if Lente was not precluded from first objecting to the...

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