Brecheisen v. Mondragon

• Decision Date: 12 November 1987
• Docket Number: No. 86-1247,86-1247
• Parties: Duane BRECHEISEN, Petitioner-Appellant, v. Eloy MONDRAGON, Warden; and, Attorney General, State of New Mexico, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 238

833 F.2d 238

56 USLW 2335

Duane BRECHEISEN, Petitioner-Appellant, v. Eloy MONDRAGON, Warden; and, Attorney General, State of New

Mexico, Respondents-Appellees.

No. 86-1247.

United States Court of Appeals, Tenth Circuit.

Nov. 12, 1987.

Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

Dale S. Morritz, Asst. Atty. Gen. (Paul Bardacke, Atty. Gen., with her on brief), Santa Fe, N.M., for respondents-appellees.

Before MOORE, SETH, and ANDERSON, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

This is an appeal from an order of the United States District Court for the District of New Mexico dismissing with prejudice defendant's petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Mr. Brecheisen (the defendant) argues that his petition should be granted because his earlier conviction for misdemeanor battery bars a subsequent conviction for criminal sexual penetration (CSP) under the Double Jeopardy Clause of the Fifth Amendment. Defendant also challenges the CSP statute as unconstitutionally vague and overbroad and claims there was insufficient evidence for the jury to convict him of the CSP charge. We hold the CSP conviction did not deprive defendant of his constitutional protection from double jeopardy. In addition, we believe the CSP statute is not unconstitutionally vague and that defendant lacks standing to challenge it as overly broad. Finally, we hold the evidence was sufficient to allow the jury to find that defendant and his wife lived apart at the time of the attack, as required by the CSP statute. We therefore affirm the district court's dismissal with prejudice of defendant's petition for writ of habeas corpus.

I.

On June 11, 1982, after a separation which lasted between one day and one week, defendant broke into the trailer he formerly shared with his wife and son. Ms. Brecheisen attempted to flee to her son's room, but defendant pulled her out of the room by her hair and began striking her. The victim managed to temporarily break free and ran outside. Defendant pursued her and dragged her back to the trailer. Once inside the trailer, defendant beat the victim about the head and back as he forcibly had sexual contact with her.

In January 1983, a jury convicted defendant of simple battery and disorderly conduct. The district judge declared a mistrial on the CSP charge because the jury failed to reach a verdict on that count. A second trial was held on the CSP charge six months later in which the state presented essentially the same evidence it introduced in the first trial. The jury found defendant guilty, and he was sentenced to nine years in custody with the last three years suspended.

Defendant appealed his conviction to the New Mexico Court of Appeals, raising the same four points he argues in this appeal. The court affirmed the conviction in State v. Brecheisen, 101 N.M. 38, 677 P.2d 1074 (Ct.App.1984), cert. denied, 101 N.M. 11, 677 P.2d 624 (1984). The New Mexico Supreme Court denied defendant's petition for writ of certiorari on March 1, 1984. Shortly thereafter, defendant instituted federal habeas corpus proceedings based on the same issues presented to the state courts on direct appeal. The district court adopted the magistrate's recommendation that the petition be dismissed. The defendant appeals this dismissal.

II.

A.

Defendant first contends that his retrial, conviction, and punishment on the CSP charge violates the Double Jeopardy Clause of the Fifth Amendment. The clause protects against multiple punishments for the same offense. In particular, a defendant cannot be convicted of an offense if he was previously convicted of a lesser included charge stemming from the same transaction. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). Defendant argues that his conviction of misdemeanor battery in the first trial bars his subsequent conviction of CSP because battery is a lesser included offense of second degree CSP. ¹

Defendant ignores, however, the fact that he committed several acts of battery apart from the attack forming the basis of the CSP charge. Defendant first struck the victim in her son's bedroom and then dragged her into the hallway. When Ms. Brecheisen freed herself and ran to a neighbor's house, the defendant committed a second battery by violently grabbing her and dragging her back into the home. Only the third battery, which occurred in the bathroom, was simultaneous to the act of CSP.

A federal court in a habeas corpus proceeding should defer to a state court's interpretation of a state statute as to whether a number of acts constitute only one criminal offense or separate offenses for double jeopardy purposes. Tarrant v. Ponte, 751 F.2d 459 (1st Cir.1985). The New Mexico Court of Appeals has held that a battery occurring separately from an act of CSP is not a lesser offense of the CSP. In State v. Archunde, 91 N.M. 682, 579 P.2d 808 (Ct.App.1978), the defendant committed forcible rape after lying on top of the victim and threatening to kill her if she made any noise. The court held that the initial contact and threats constituted battery. Because this battery preceded sexual contact, the court further ruled that it did not merge with the activities constituting the CSP. See also State v. Young, 91 N.M. 647, 579 P.2d 179 (Ct.App.1978), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978), cert. denied, 439 U.S. 957, 99 S.Ct. 357, 58 L.Ed.2d 348 (1978) (convicting defendant of both aggravated burglary, which includes batteries committed after the unlawful entry, and for CSP does not constitute double jeopardy).

In accordance with this precedent, we hold that the evidence establishes that the defendant committed three separate and distinct offenses. Double jeopardy, therefore, does not preclude the first two batteries supporting the conviction for battery, even though the third battery satisfies elements of the CSP charge. For merger of two offenses to be warranted, one offense must necessarily involve the other. It must be impossible to commit the greater crime without also committing the lesser offense. E.g., State v. Jacobs, 102 N.M. 801, 701 P.2d 400 (Ct.App.1985). According to this test, the third battery is a lesser included offense, since this battery provides an essential element of the CSP. The first two batteries, however, are distinct from the acts constituting the CSP. Even if the defendant had not committed the first two batteries, he still could have been convicted of the CSP charge. Furthermore, neither of the first two batteries involved causing the victim "to engage in sexual intercourse, fellatio, or anal intercourse," the major element of second degree CSP.

B.

The defendant argues that the jury in the first trial most likely convicted him only for the battery committed simultaneously with the CSP. We disagree. The record of the first trial contains ample evidence suggesting that a jury could have convicted the defendant of battery in at least two instances entirely separate from the actions constituting the CSP. Because these two acts standing alone were enough to convict the defendant of battery, we presume the jury did not base its verdict in the first trial solely upon the third battery. Moreover, the jury in the first trial was unable to reach a verdict on the CSP charge but separately convicted defendant of simple battery. The jury's failure to convict defendant of the CSP charge, which included a thorough review of the acts constituting the third battery, indicates that the battery conviction was not based on a consideration of the third battery, but primarily a review of the other two batteries. ²

III.

Defendant also argues that he was denied due process because of his conviction under an unconstitutionally vague statute. The CSP statute prohibits the "unlawful intentional causing of a person, other than one's spouse, to engage in sexual intercourse." N.M.Stat.Ann. Sec. 30-9-11 (1983). Spouse is defined for purposes of this section as "a legal husband or wife, unless the couple is living apart or either husband or wife has filed for separate maintenance or divorce." N.M.Stat.Ann. Sec. 30-9-10(E) (1983). Defendant claims that these statutes are unconstitutionally vague because they do not define "living apart" and therefore do not provide a fair warning of the proscribed conduct.

When a criminal statute is attacked on grounds of vagueness, it must be shown that the statute as written and construed would fail to alert the average person of the prohibited conduct. Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). When reviewing a statute alleged to be vague, courts must indulge a presumption that it is constitutional, and the statute must be upheld unless the court is satisfied beyond all reasonable doubt that the legislature went beyond the confines of the Constitution. E.g., Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). Guided by this presumption, we hold that the plain language of the statute belies defendant's claim that the statute is unconstitutionally vague. Commentary published at the time of defendant's conviction and subsequent interpretations by New Mexico courts further support this position. ³

A court should give statutory language its ordinary meaning when reviewing a claim that a criminal statute is unconstitutionally vague unless a contrary legislative intent is given. E.g., State of Utah v. Kleppe, 586 F.2d 756 (10th Cir.1978), cert. granted, Andrus v. Utah, 442 U.S. 928, 99 S.Ct. 2857, 61 L.Ed.2d 296 (1979), rev'd on other grounds, 446 U.S. 500, 100 S.Ct. 1803, 64 L.Ed.2d 458 (1980). We believe the legislature used the phrase "living apart" to include a suspended marital relationship. The definition of spouse as a "legal husband or wife, unless the couple is living apart or either husband or wife has filed for separate maintenance or divorce" (emphasis added), suggests the statute was...