State Of N.M. v. Dominguez

• Decision Date: 08 October 2010
• Docket Number: NO. 28,026,28,026
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. JAMES DOMINGUEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.JAMES DOMINGUEZ, Defendant-Appellant.

NO. 28, 026

COURT OF APPEALS OF

THE STATE OF NEW MEXICO

Date: October 8, 2010

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Albert S. "Pat" Murdoch, District Judge

Gary K. King, Attorney General, Nicole Beder, Assistant Attorney General for Appellee

Hugh W. Dangler, Chief Public Defender Carlos Ruiz de la Torre, Assistant Appellate Defender for Appellant

MEMORANDUM OPINION

GARCIA, Judge.

James Dominguez (Defendant) appeals his convictions of eighteen counts ofcriminal sexual penetration of a child under thirteen (CSPM). Defendant raises four issues on appeal: (1) the district court erred in failing to dismiss nine carbon-copy counts; (2) there was insufficient evidence to support counts one through ten; (3) the district court erred in making three evidentiary rulings; and (4) the district court erred in not dismissing several of the counts for improper venue. We reverse Defendant's convictions for Counts 2, 4, 5, 6, 8, 10, 12, 14, 16, and 18 as set forth in the judgment and sentence. We affirm as to Counts 1, 3, 7, 9, 11, 13, 15, and 17 as set forth in the judgment and sentence

BACKGROUND

Defendant's convictions are based on sexual abuse of his step-daughter (Child). The abuse occurred over a four-year period beginning when Child was four years old. Defendant was convicted on eighteen counts after a jury trial. We refer in this opinion to the counts as listed in the judgment and sentence and not the counts as set forth in the grand jury indictment. This appeal followed.

DISCUSSION

Due Process and Double Jeopardy Violations

Defendant was convicted of two counts of each of the following: (1) fellatio between July 20, 2000 and July 19, 2001 (Counts 1 and 2); (2) fellatio between July 20, 2001 and July 19, 2002 (Counts 3 and 4); (3) anal intercourse between July 20, 2001 and July 19, 2002 (Counts 5 and 6); (4) fellatio between July 20, 2002 and July 19, 2003 (Counts 7 and 8); (5) anal intercourse between July 20, 2002 and July 19, 2003 (Counts 9 and 10); (6) fellatio between July 20, 2003 and July 19, 2004 (Counts 11 and 12); (7) anal intercourse between July 20, 2003 and July 19, 2004 (Counts 13 and 14); (8) fellatio between July 19, 2004 and December 31, 2004 (Counts 15 and 16); and (9) anal intercourse between July 19, 2004 and December 31, 2004 (Counts 17 and 18). Each duplicate set of counts was identical. Defendant argues that his due process and double jeopardy rights were violated because nine of the charges were carbon-copy counts based on overly broad and vague date ranges. Defendant requests that we reverse on the nine carbon-copy counts. We review Defendant's due process and double jeopardy claims de novo. State v. Dominguez, 2008-NMCA-029, ¶5, 143 N.M. 549, 178 P.3d 834 (filed 2007); State v. Andazola, 2003-NMCA-146, ¶14, 134 N.M. 710, 82 P.3d 77.

Constitutional procedural due process "requires the [s]tate to provide reasonable notice of charges against a person and a fair opportunity to defend." Dominguez, 2008-NMCA-029, ¶ 5 (internal quotation marks and citation omitted). Due process also requires that defendants be able to protect themselves from double jeopardy. Id. "[T]he failure to describe the offenses in an indictment with some particularity violates due process where there are allegations that several similar incidents tookplace and the defendant cannot tell from the charging document which events he is being prosecuted for." Id.¶10; see State v. Tafoya, 2010-NMCA-010, ¶21, 147 N.M. 602, 227 P.3d 92 (filed 2009) (stating that factually indistinguishable counts may violate a defendant's right to due process and double jeopardy), cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90. For CSPM cases, the state can charge either ongoing conduct as a single count or multiple counts supported by evidence of distinct offenses. Dominguez, 2008-NMCA-029, ¶ 11.

Defendant relies on Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005), to support his argument that the carbon-copy counts violated double jeopardy. The reasoning in Valentine was adopted in Dominguez, 2008-NMCA-029, ¶¶ 7-11. In Tafoya, we recently affirmed our decision in Dominguez. The case before us is factually similar to Tafoya. The defendant in Tafoya was charged with two sets of indistinguishable counts of CSPM. 2010-NMCA-010, ¶¶ 1, 23-24. At trial, the victim described a pattern of abuse and stated that each happened lots of times, but she did not relate the acts to a specific incident. Id. ¶ 24. We held that the undifferentiated counts violated the defendant's right to due process and allowed only one count for each type of CSPM. Id.; see Dominguez, 2008-NMCA-029, ¶¶ 1, 10-11 (affirming the dismissal of five counts of criminal sexual contact of a minor "that could not be tied to individual, factually distinguishable incidents of allegedmisconduct" because it would have violated the defendant's due process to defend against the five carbon-copy counts that were not factually distinguished from one another).

Similar to Tafoya and Dominguez, the State in this case did not provide factual differentiation between the carbon-copy counts. Child essentially testified that acts of anal CSPM and fellatio occurred more than once each year when she was four, five, six, seven, and eight years old. The testimony differentiated between charging periods but not between each count within a charging period. The State failed to distinguish between the identical counts by tying the count to a specific event. Instead, the evidence only established a pattern of conduct. In addition, the jury instructions for each set of charges were identical. See Swafford v. State, 112 N.M. 3, 14, 810 P.2d 1223, 1234 (1991) (requiring that the jury be able to reasonably infer "independent factual bases for the charged offenses" in order to survive a double jeopardy claim). There is no independent factual basis to distinguish any of the duplicate counts for which the jury was instructed to consider when it convicted Defendant.

Without testimony tying each count to a specific event, there is no way to differentiate between each of the duplicate counts. The state cannot prosecute "supposedly distinct offenses based on no distinguishing facts or circumstances at all" because a defendant is unable to properly defend against such carbon-copy charges.

Dominguez, 2008-NMCA-029, ¶ 10. The carbon-copy charges in this case violated Defendant's due process right to protect himself from double jeopardy. See Tafoya, 2010-NMCA-010, ¶ 24; Dominguez, 2008-NMCA-029, ¶10. We reverse one of each of the indistinguishable convictions set forth in the judgment and sentence: Count 2, Count 4, Count 6, Count 8, Count 10, Count 12, Count 14, Count 16, and Count 18. See Tafoya, 2010-NMCA-010, ¶ 24 (reversing only one of two convictions for vaginal CSPM and for anal CSPM because there was no due process violation for each remaining single count when the evidence established a pattern of conduct during the charging period and the defendant had notice and an opportunity to defend).

Defendant also generally asserts that the district court erred by not determining whether the charging periods were too vague. Defendant cites to the nine factors listed in State v. Baldonado, 1998-NMCA-040, ¶¶ 26-29, 124 N.M. 745, 955 P.2d 214, that are analyzed to determine if the state could have provided greater specificity and if the defendant was prejudiced by vague charging periods. Defendant, however, does not develop his argument under Baldonado by analyzing the nine factors. For this reason, we will not address Defendant's undeveloped argument. See State v. Fuentes, 2010-NMCA-027, ¶29, 147 N.M. 761, 228 P.3d 1181 (filed 2009) (declining to review the defendant's undeveloped argument), cert. denied, 2010-NMCERT-002, 147 N.M. 704, 228 P.3d 488.

Sufficiency of the Evidence for Counts 1 Through 10

Defendant argues that there was insufficient evidence to support a conviction for Counts 1 through 10. We have already reversed Counts 2, 4, 6, 8, and 10. In its brief, the State concedes there was insufficient evidence for Count 5, so we dismiss this count as well. Therefore, we limit our analysis of the sufficiency of the evidence to Counts 1, 3, 7, and 9.

"Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Rojo, 1999-NMSC-001, ¶19, 126 N.M. 438, 971 P.2d 829 (filed 1998). When reviewing whether there is substantial evidence, we determine whether a rational jury could have found the essential elements of the crime beyond a reasonable doubt. Id. We review the evidence, "resolv[ing] all disputed facts in favor of the [s]tate, indulg[ing] all reasonable inferences in support of the verdict, and disregarding] all evidence and inferences to the contrary." Id.

"Criminal sexual penetration is the 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." NMSA 1978, § 30-9-11(A) (1995, as amended through 2009). Criminal sexual penetration on a child under the age ofthirteen is criminal sexual penetration in the first degree. Section 30-9-11(C). For Count 1, 3, and 7, the State had to prove that Defendant made Child, who was under the age of thirteen, engage in fellatio between the specified dates. See § 30-9-11; UJI 14-957 NMRA. For Count 9, the State had to prove that Defen...