State v. Apodaca
| Decision Date | 01 April 2020 |
| Docket Number | No. A-1-CA-36469,A-1-CA-36469 |
| Citation | 482 P.3d 1224 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Joseph APODACA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
{1} Defendant Joseph Apodaca appeals his conviction of two counts of first-degree criminal sexual penetration resulting in great bodily harm or great mental anguish (CSP), contrary to NMSA 1978, Section 30-9-11(D)(2) (2009), and one count of tampering with evidence, contrary to NMSA 1978, Section 30-22-5(B)(1) (2003). For the reasons that follow, we conclude that the district court erred by refusing to instruct the jury on Defendant's mistake of fact defense. Accordingly, we reverse Defendant's convictions and remand for a new trial. Additionally, because it is likely to reoccur on remand, we also address Defendant's bifurcation argument and conclude that bifurcation is not required by the Criminal Sentencing Act or the United States Constitution.
{2} Defendant and Victim were middle school acquaintances who reconnected via Facebook in March 2014. On May 28, 2014, Victim drove from her home in Phoenix, Arizona, to Belen, New Mexico, to visit her family. Victim agreed to meet Defendant and his cousin, Dustin Leake, the next evening in Albuquerque, New Mexico. Defendant and Leake drove from Grants, New Mexico, to Albuquerque to meet Victim.
{3} At approximately 9:48 p.m., Defendant and Leake arrived in Albuquerque and parked in a parking lot behind the Lotus Nightclub (Lotus). Defendant and Leake had purchased a six-pack of beer before leaving Grants, and each consumed three beers while driving to Albuquerque and waiting for Victim to arrive. Victim arrived shortly thereafter and, according to disputed testimony, either drank an entire miniature bottle of alcohol or half of a miniature bottle of alcohol, with Defendant drinking the other half. The three went into Lotus at approximately 10:00 p.m. and went upstairs where alcohol was served.
{4} Once inside, each consumed approximately three to five rounds of drinks consisting of shots, beers, and mixed drinks. At some point, Defendant offered to hold Victim's car keys for her because she had left her purse in her car. Victim recalled drinking the first three shots and giving her keys to Defendant but had no memory of any subsequent events that evening.
{5} Defendant and Leake testified that after the first four drinks, Victim and Defendant were kissing and holding hands. About an hour and a half after arriving at Lotus, Leake told Defendant and Victim to "go outside" and gave Defendant the keys to his truck. According to Leake, Defendant and Victim did not linger after he gave Defendant his keys, instead they got up and left. Defendant admitted that he was drunk when they left Lotus. Defendant testified that Victim "must have been feeling good, too[.]" However, Defendant further testified that Victim "was talking alright" and was able to walk out of Lotus unassisted, which Defendant said required Victim to cross two dance floors and navigate twenty-five to thirty stairs. Defendant stated that he was not concerned about Victim's level of intoxication at the time. The bouncer at Lotus testified that that he did not recall any member of the staff escorting anyone out for being overly intoxicated on the night in question.
{6} Defendant testified to the following: Once outside, Defendant and Victim had sex in the back seat of Leake's truck. Defendant "pulled [Victim's] shorts off" and they started to engage in penile-vaginal intercourse and oral sex. Victim then began inserting her own fingers into her anus, and Defendant "helped her" by penetrating Victim vaginally and anally with his fingers. Defendant penetrated Victim vaginally with all five fingers just past his knuckles in the shape of a "duckbill." After doing this, he anally penetrated Victim with four fingers. Defendant believed Victim was participating and enjoying herself because, throughout the sexual activity, Victim repeatedly stated "more" and "harder" and "she never expressed that she wanted [Defendant] to stop or anything like that." Defendant stopped after Victim defecated. He cleaned up using Victim's shorts and then "threw [the shorts] in [the] dumpster." Victim "seemed like she was kind of embarrassed," but she did not indicate or appear as if she was in pain, suffered an injury, or needed medical attention. Although Defendant did see some blood on the backseat of the truck and Victim's legs, he thought the source of the blood was from her menstrual cycle. Because Victim did not have any shorts on, Defendant called Leake and told him to come outside.
{7} Leake testified that when he got to his truck, he saw Defendant standing outside the truck with the rear passenger door open, and Victim sitting in the rear passenger seat. According to Leake, Victim was awake, conscious, talking without slurred speech, and not exhibiting signs of pain. Leake testified there was blood smeared on the rear seats as well as on Victim's shirt and legs. Leake further testified that Victim got out of the truck on her own and into the rear passenger seat of her car.1 Defendant testified that Victim was wearing "[j]ust her shirt and whatever she had on" at that time.
{8} According to both Defendant and Leake, Victim "was too drunk" to drive, so they decided that Defendant would drive Victim back to Belen while Leake followed in his truck. Defendant admitted he and Leake "were kind of racing, [they] were going really fast, probably over a hundred[,]" and that they got to Belen in about twenty minutes. Defendant testified that Victim was giving him oral sex and attempted to climb onto his lap while he was driving on the freeway. Defendant then testified that Victim was unable to give directions to her home after giving him instructions on what exit to take from the freeway, and Defendant became lost in Belen. At that point, Defendant testified he was "[k]ind of" concerned about Victim's state of intoxication though he claimed he "wasn't aware of her medical state." According to their testimony, Defendant and Leake met up at a parking lot in Belen to determine what to do. Because Victim was too drunk to place a call, Defendant and Leake used her phone to call her father "so that he could come and get her[.]"
{9} Victim's father testified that he received a call at 1:50 a.m. from Defendant on Victim's phone. During that phone call, Defendant indicated that he had Victim but she did not know where she lived. Victim's father agreed to meet them at a dirt parking lot at the intersection of Main Street and Didier. Victim's father asked them to remain with Victim until he arrived, but they refused. Victim's father testified that he heard one of them say,
{10} When Defendant and Leake believed Victim's father was approximately five minutes away,2 they left in Leake's truck, leaving Victim alone. Victim was found by her father in an empty parking lot alone and bleeding in the passenger seat of her car with only a top on. Blood was all over her legs, running down her legs, under her shoes, and on the floor mat. There was also blood on the console, the passenger-side headrest, and all over the passenger seat. Victim was unconscious, her eyes were rolled back in her head, and her father was unable to wake her. Approximately ten minutes after receiving the first call from Defendant, Victim's father called 911. Officers responded quickly because a concerned citizen had already called to report suspicious activity in the parking lot.
{11} Officer Amanda Torres testified that upon seeing Victim in the car, unconscious and breathing, she called for medical assistance. Officer Torres noted Victim had blood on her arms and hands and "from her vaginal area all the way down to her legs towards her feet." Officer Torres attempted to wake Victim by calling her name and shaking her shoulder, but Victim did not respond at first. Officer Torres testified that, eventually, Victim opened her eyes, which "were kind of rolling back in her head[,] and her head was bobbing back and forth." Officer Torres's lapel camera was operating at the time and was later played for the jury.
{12} Paramedics then arrived, and with the assistance of Officer Torres, lifted Victim out of the car, placed her onto a gurney, and into the ambulance. During the ambulance ride, Victim was intermittently conscious but never really understood what was happening. Paramedics were concerned that Victim might be in shock and believed this was a life-threatening situation. When asked, Victim told the paramedics that she was not in any pain; however, when the paramedic palpated Victim's abdomen, Victim said that it hurt. Victim was transported to the University of New Mexico Hospital (UNMH) in Albuquerque for immediate care.
{13} At the hospital, doctors determined that, among other injuries, Victim suffered a deep, ten-centimeter laceration to the vaginal wall "that extended from nearly the opening of the vagina, nearly to the top"; two smaller tears to the vaginal wall
; a rupture of the anal sphincter; and a ten-centimeter, full-thickness3 tear to the rectal wall beginning at the anal sphincter. The two large tears were considered life-threatening due to blood loss and risk of infection. During an initial emergency operation, and because visualization of Victim's vagina was so difficult due to it being dilated and swollen, doctors sutured only the ten-centimeter tear to the vaginal wall, performed vaginal packing,4 and placed a colostomy bag to prevent infection in the anal cavity. After the emergency operation, a sexual assault nurse examiner (SANE) performed an examination and documented bruising to Victim's lips and back as well as abrasions to her nipples. The SANE examination also noted bruising, swelling, and scraping to her left knee and shin. The initial blood collection,5 which...
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State v. Begaye
...of consent as an element of the crime. Stevens , 2014-NMSC-011, ¶¶ 27, 39, 323 P.3d 901{15} Defendant also refers us to State v. Apodaca , 2021-NMCA-001, 482 P.3d 1224, cert. granted , 2020-NMCERT-–––– (No. S-1-SC-38288, Nov. 25, 2020), where this Court noted that the jury had to find lack ......