Herron v. State

• Citation: 1991 NMSC 12,111 N.M. 357,805 P.2d 624
• Decision Date: 04 February 1991
• Docket Number: No. 19224,19224
• Parties: James HERRON, Petitioner, v. STATE of New Mexico, Respondent.
• Court: Supreme Court of New Mexico

Page 624

805 P.2d 624

111 N.M. 357

James HERRON, Petitioner, v. STATE of New Mexico, Respondent.

No. 19224.

Supreme Court of New Mexico.

Feb. 4, 1991.

Rehearing Denied March 5, 1991.

As Amended March 6, 1991.

Jacquelyn Robins, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for petitioner.

Tom Udall, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for respondent.

OPINION

RANSOM, Justice.

A jury convicted James Herron on all counts under a twenty-three count indictment. He was convicted on one count of kidnapping in violation of NMSA 1978, Section 30-4-1 (Repl.Pamp.1984), and one count of conspiracy to commit criminal sexual penetration in violation of NMSA 1978, Sections 30-28-2 and 30-9-11 (Repl.Pamp.1984). Additionally, he was convicted on twenty-one counts of second-degree criminal sexual penetration in violation of NMSA 1978, Section 30-9-11(B).¹ Two of the latter counts involved aiding and abetting and are not at issue. The court of appeals affirmed the convictions. We granted certiorari to determine whether, in light of our recent decision in State v. Pierce, 110 N.M. 76, 792 P.2d 408 (1990), convictions for nineteen of the twenty-one counts of second-degree criminal sexual penetration are contrary to the double jeopardy clauses of the New Mexico and United States Constitutions. N.M. Const. art. II, Sec. 15; U.S. Const. amend. V. We affirm in part, reverse in part, and remand.

Facts. The victim was approached by three men in a car while walking along Central Avenue in Albuquerque late in the evening of August 1, 1987. From a previous meeting in San Gabriel Park, the victim recognized two of the car's occupants, James Herron and his uncle, Marvin Herron. She entered their car. The men drove to Marvin's house and asked the victim if she would come in for a minute.

Inside the house, Marvin repeatedly asked the victim to have sex with him and at one point offered her ten dollars in return for sex. The victim laughed and refused, stating she would not do such a thing for less than fifty dollars. Marvin later offered her fifty dollars, and the victim responded that she was not serious and again refused his offer. The victim then stated to the men that she wanted to leave. James scoffed at her request and threw her to the floor, struck her, and threatened to kill her if she did not stop struggling. The victim was ordered to remove her clothing whereupon Marvin penetrated her vaginally while James forced her to perform fellatio on him. Marvin left the room, and James continued to have sex with the victim for a period spanning one hour until the victim, still naked, fled the house and obtained help.

At issue are Herron's conviction on nineteen counts of second-degree criminal sexual penetration for each penetration that occurred while he was alone with the victim. Those counts were supported, in large part, by the following testimony of the victim:

Question (by prosecutor): Do you recall, specifically, the [exact] sequencing of [events]?

Answer (by victim): No.

* * * * * *

Question: Are you sure each of those [acts] occurred?

Answer: Positive.

Question: Do you know * * * approximately how many times each act occurred?

Answer: Approximately, he penetrated me five times with his penis in my mouth, approximately five times with his penis in my vagina, approximately five times with his penis in my anus, and approximately three times with his finger in my vagina, and just once with his finger in my anus.

The victim later clarified by the term "approximately" she meant at "a minimum."

Double jeopardy. Herron contends that his convictions on each of the nineteen counts at issue violated the state and federal constitutional guarantees against double jeopardy because they subjected him to multiple punishment for the same offense.² Specifically, he argues that his assault should be prosecuted on an "object-orifice" theory: penetration of an orifice by a distinct object is one offense, and later penetrations of the same orifice by the same object are not separate offenses.³ Herron's argument rests on the premise that when multiple acts are committed in close temporal proximity, they are part of a continuous process and constitute but one offense. Crawford v. State, 688 P.2d 347, 348 (Okla.Crim.App.1984) (where two acts of rape have occurred within a short period of time, it is part of a continuous process and constitutes only one crime). The court of appeals, on the other hand, held that each penetration, however temporally proximate, constituted a separate and distinct offense under Section 30-9-11.

In determining whether the State's charging pattern suffered from multiplicity,⁴ we first must identify the appropriate unit of prosecution under Section 30-9-11. As we recently observed in State v. Pierce, 110 N.M. 76, 792 P.2d 408 (1990), " 'the only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended.' " Id. at 84-85, 792 P.2d at 416-17 (quoting Whalen v. United States, 445 U.S. 684, 697, 100 S.Ct. 1432, 1440, 63 L.Ed.2d 715 (1980) (Blackmun, J., concurring)). The issue, though essentially constitutional, becomes one of statutory construction.

Section 30-9-11 defines criminal sexual penetration as:

[T]he unlawful and intentional causing of a person * * * 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 any emission.

That language does not indicate unambiguously whether the legislature intended under Section 30-9-11 to create a separate offense for each penetration occurring during a continuous sexual assault. The legislative and statutory history of Section 30-9-11, as well, provide little or no guidance whether the legislature intended to punish separately multiple penetrations of the same orifice. Section 30-9-11 was enacted in 1975, during a period marked by wide-ranging reform of rape legislation. The legislature consolidated the prior crimes of rape, statutory rape, child rape, and sodomy into a single statutory section.⁵ In so doing, the legislature preserved much of the operative language of the former laws. "Sexual intercourse," under the 1953 compilation, meant "penetration of the vagina of a female to any extent by the penis of a male." NMSA 1953, Sec. 40A-9-1 (repealed 1975). Similarly, a person committed sodomy by "intentionally placing his or her sexual organ in the mouth or anus of any other * * *. Any penetration, however slight, [was] sufficient to complete the crime * * *." NMSA 1953, Sec. 40A-9-6 (repealed 1975). We are cognizant of the rule of construction that when enacting a statute the legislature is deemed to be aware of existing statutes and judicial decisions and to have amended or enacted the statute in light thereof. Quintana v. New Mexico Dep't of Corrections, 100 N.M. 224, 668 P.2d 1101 (1983). However, that rule is of no utility in cases, such as the instant case, in which the issue was not decided under the former law.⁶

In People v. Harrison, 48 Cal.3d 321, 768 P.2d 1078, 256 Cal.Rptr. 401 (1989), the California Supreme Court considered the appropriateness of multiple convictions and sentences based on repeated penetrations of the same orifice with the same object. The defendant in Harrison was convicted of three violations under a California statute that prohibited the "penetration, however slight, of the genital or anal openings of another person, by any foreign object * * *." Cal.Penal Code Sec. 289(a) (West 1988) (amended 1988). According to the victim, the sexual assault lasted approximately ten minutes. During that time, the defendant digitally penetrated the victim's vagina in three brief assaultive episodes that were temporally distinct in different locations within the same room.

In sweeping language the California Supreme Court affirmed defendant's convictions holding, without qualification, that each time a person causes the penetration of another he commits a separate and independent violation of Section 289: "a new and separate violation of Section 289 is 'completed' each time a new and separate 'penetration, however slight' occurs." Harrison, 48 Cal.3d at 329, 768 P.2d at 1082, 256 Cal.Rptr. at 405 (quoting Cal.Penal Code Sec. 289). The court based this conclusion on the premise that "a violation of Section 289 is complete the instant slight penetration of the proscribed nature occurs." Id.

In our view, on criteria we discuss below, the Harrison court may well have reached the correct result in affirming defendant's convictions. Nevertheless, we find the court's reasoning unpersuasive and agree with Justice Mosk that:

the statutory provision may properly be interpreted to declare that each penetration constitutes a separate offense in the general case. But [it is] hard to believe that the provision can be read--as it is read by the majority [in Harrison ]--to declare that each penetration constitutes a separate offense in all cases and under all circumstances as a matter of law.

Id. at 339, 768 P.2d at 1089, 256 Cal.Rptr. at 412 (Mosk, J., concurring).

Both the majority in Harrison and the court of appeals in the instant case were led astray by the notion of completeness. In both cases the courts held that because the crime is "complete" the instant penetration "however slight" or "to any extent" occurs, subsequent withdrawal and repenetration must, as a matter of logic, constitute a new and separate offense. The conclusion, however, is not compelled by either logic or common sense. As Justice Mosk points out in Harrison, the phrase "penetration, however slight," was intended by the California Legislature to distinguish between an attempt and the completed crime, not between...