792 P.2d 408 (N.M. 1990), 18151, State v. Pierce

Docket Nº:18151.
Citation:792 P.2d 408, 110 N.M. 76, 1990 -NMSC- 049
Opinion Judge:[10] Donnelly
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Christopher Scott PIERCE, Defendant-Appellant.
Attorney:Hal Stratton, Atty. Gen., Margaret B. Alcock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee., Jacquelyn Robins, Chief Public Defender, Susan Gibbs, Appellate Defender, Santa Fe, for defendant-appellant. [7] Hal Stratton, Atty. Gen., Margaret B. Alcock, Asst. Atty. Gen., Santa Fe, for plaint...
Case Date:May 17, 1990
Court:Supreme Court of New Mexico
 
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Page 408

792 P.2d 408 (N.M. 1990)

110 N.M. 76, 1990 -NMSC- 049

STATE of New Mexico, Plaintiff-Appellee,

v.

Christopher Scott PIERCE, Defendant-Appellant.

No. 18151.

Supreme Court of New Mexico.

May 17, 1990

Page 409

[Copyrighted Material Omitted]

Page 410

[110 N.M. 78] Hal Stratton, Atty. Gen., Margaret B. Alcock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Susan Gibbs, Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

DONNELLY, Judge, Court of Appeals.

Defendant appeals his convictions of first degree murder, three counts of first degree criminal sexual penetration of a minor (CSPM), contrary to NMSA 1978, Section 30-9-11(A)(1) (Repl.Pamp.1984), one count of third degree criminal sexual contact of a minor (CSCM), contrary to NMSA 1978, Section 30-9-13(A) (Repl.Pamp.1984), two counts of fourth degree child abuse, contrary to NMSA 1978, Section 30-6-1 (Repl.Pamp.1984), and fourteen counts of child abuse resulting in death or great bodily harm, also contrary to Section 30-6-1. Two issues are asserted on appeal: (1) whether the evidence presented at trial is sufficient to support defendant's convictions of CSPM and CSCM; and (2) whether defendant improperly was convicted of first degree murder and duplicative counts of child abuse. We affirm in part and reverse in part.

In 1987 defendant began living with Dawn Simandl and her two minor children, a son, age four, and a daughter, age two. Simandl's four-year-old son previously had lived with his maternal grandparents, where he had been toilet trained. When he returned to live with his mother and the defendant, he began to exhibit eating and elimination disorders.

In October 1987 Simandl began attending classes at a beauty college and left the children in defendant's care. The second day of school, defendant phoned her and stated that her son had fallen and broken his arm and was unconscious. After a four-hour delay, defendant and Simandl took the child to a hospital, where he died several hours later.

Medical evidence showed the child had been injured over approximately 90% of his body, that he had sustained over 80 separate blows, and that most of the injuries occurred within 24 to 48 hours of death and were life threatening in nature. Medical evidence indicated that the child's internal injuries were grouped into three categories: those occurring within 12-24 hours of death; those within 3-5 days of death; and those more than a week old. Some of the injuries were described as "pattern" injuries, meaning that one could identify the means of injury by evidence of its pattern. Medical experts testified that the child's

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[110 N.M. 79] broken arm was consistent with having been caused by a blow from defendant's fist, and that bites received by the child were consistent with having been caused by defendant's teeth. An expert in blood stain pattern analysis testified that evidence of the child's blood stains indicated the beating had occurred in two different locations in the camper where the child lived. A doctor testified that the child's death was caused by intentionally inflicted injuries.

The pathologist testified that there had been three separate penetrations of the child's anus. Additionally, an inmate who had been incarcerated in the county jail with defendant testified that defendant admitted to having beaten the child because he was "in the way," and that defendant killed the child when defendant "lost it" during a period when he was using "crank," a form of methamphetamine. This witness also testified that defendant admitted disciplining the child as he would a dog, and that he "shove[d] something up the boy's butt."

Defendant was charged with first-degree murder, three counts of CSPM, two counts of CSCM, sixteen counts of child abuse resulting in death or great bodily harm, and four counts of child abuse not resulting in death or great bodily harm. Each count of child abuse was based on a separately identifiable injury received by the child. Defendant waived a jury trial. Following trial he was acquitted on one charge of CSCM and four charges of child abuse, and the court found him guilty of the remaining counts of the indictment. The court ordered that defendant's sentences for the three CSPM convictions run concurrent to each other and consecutive to the conviction of first-degree murder. The remainder of defendant's convictions were ordered to be served concurrently with the charge of murder.

I. SUFFICIENCY OF THE EVIDENCE AS TO CSPM AND CSCM

Defendant argues that, although evidence was presented by the state indicating that the child's anus had been penetrated on three different occasions prior to his death, the jail mate's testimony was the only evidence linking defendant with such acts, and that this evidence was insufficient to support his convictions of CSPM and CSCM. Defendant also contends the inmate's testimony concerning defendant's statement that he "shoved something up the boy's butt" does not indicate defendant had penetrated the child for sexual reasons. Defendant contends the evidence instead indicated that he had been attempting to discipline or punish the child in order to persuade him to stop his incontinence. Defendant urges that the evidence was insufficient to support his convictions of CSPM or CSCM because there was no proof that he committed such acts with the requisite criminal intent.

Criminal sexual penetration, defined by our legislature in Section 30-9-11, provides as follows:

Criminal sexual penetration is the unlawful and intentional causing of a person, other than one's spouse, to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse, or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is an emission.

A. Criminal sexual penetration in the first degree consists of all criminal sexual penetration perpetrated:

(1) on a child under thirteen years of age; or

(2) by the use of force or coercion which results in great bodily harm or great mental anguish to the victim.

Whoever commits criminal sexual penetration in the first degree is guilty of a first degree felony....

Section 30-9-13 defines criminal sexual contact of a minor as:

[U]nlawfully and intentionally touching or applying force to the intimate parts of a minor other than one's spouse or unlawfully and intentionally causing a minor, other than one's spouse to touch one's intimate parts. For purposes of this section, "intimate parts" means the

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[110 N.M. 80] primary genital area, groin, buttock, anus or breast.

A. Criminal sexual contact of a minor in the third degree consists of all criminal sexual contact of a minor perpetrated:

(1) on a child under thirteen years of age

....

Defendant specifically argues that his convictions of CSPM and CSCM under Sections 30-9-11 and -13 were not supported by substantial evidence because the state failed to prove that the anal penetration of the child was done with the intent of arousing or gratifying sexual desire in the victim or himself. Citing the requirements of the fourteenth amendment to the United States Constitution and Article II, Section 18, of the New Mexico Constitution, defendant asserts that proof of such intent must be read into the language of both the CSPM and CSCM statutes, otherwise the statutes are unconstitutional and overbroad, prohibiting both innocent as well as criminal conduct.

Defendant reasons that the acts of a parent or caretaker of a child when dressing, bathing, changing diapers, or using a rectal thermometer may involve intentional touching or penetration of the child's intimate parts. Similarly, defendant contends that even necessary medical treatment performed by a health care provider falls within the prohibition of the statutes. We disagree.

We begin our analysis by noting that the CSPM and CSCM statutes specifically limit the application of such offenses to instances wherein defendant's conduct in touching or penetrating the child is "unlawful" or "unlawfully" committed. The terms "unlawful" or "unlawfully" limit the scope of prohibited conduct to those acts that are without legal justification or excuse. See State v. Larson, 94 N.M. 795, 617 P.2d 1310 (1980); State v. Noble, 90 N.M. 360, 563 P.2d 1153 (1977); Territory v. Anderson, 4 N.M. 213, 13 P. 21 (1887); see also State v. Chenault, 20 N.M. 181, 147 P. 283 (1915). Neither CSPM nor CSCM prohibit the touching or penetration of the intimate parts of a minor for purposes of providing reasonable medical treatment to a child, nor do they criminalize nonabusive parental or custodial child care. Moreover, the constitutionality of a statute is generally subject to challenge only by a person who demonstrates the unconstitutional application of the statute to him. State v. Casteneda, 97 N.M. 670, 642 P.2d 1129 (Ct.App.1982).

Defendant also argues that there is no clear demarcation between both CSPM and CSCM and the offenses of battery, contained in NMSA 1978, Section 30-3-4 (Repl.Pamp.1984), or child abuse, proscribed by Section 30-6-1. We disagree.

Our CSPM statute prohibits penetration of the genital or anal openings of a child. Sec. 30-9-11(A)(1). Similarly, CSCM also prohibits the unlawful touching of the "intimate parts" of another, other than one's spouse. Sec. 30-19-13. In defining "intimate parts," the CSCM statute lists five separate protected areas: the genital area, groin, buttocks, anus, and breast. Sec. 30-9-13. The legislative intent underlying both CSPM and CSCM is to protect children from unlawful intrusions to each enumerated area of the body. See State v. Williams, 105 N.M. 214, 730 P.2d 1196 (Ct.App.1986). The language of...

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