State v. Arvizo

• Decision Date: 11 May 2021
• Docket Number: No. A-1-CA-37389,A-1-CA-37389
• Citation: 499 P.3d 1221
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Enock ARVIZO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

499 P.3d 1221

STATE of New Mexico, Plaintiff-Appellee,

v.Enock ARVIZO, Defendant-Appellant.

No. A-1-CA-37389

Court of Appeals of New Mexico.

Filing Date: May 11, 2021

Certiorari Denied, July 13, 2021, No. S-1-SC-38849

Hector H. Balderas, Attorney General, Santa Fe, NM, Charles J. Gutierrez, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

BOGARDUS, Judge.

{1} Defendant Enock Arviso was indicted in 2016 for various crimes against inmates, allegedly committed while he was employed as a corrections officer. The district court granted Defendant's unopposed motion to sever the counts relating to separate victims for the purpose of trial. In one of these trials, Defendant was convicted of criminal sexual penetration (CSP) of an inmate, contrary to NMSA 1978, Section 30-9-11(E)(2) (2009). In a separate trial, Defendant was convicted of two counts of assault and attempted battery, contrary to NMSA 1978, Section 30-3-1(A) (1963).

{2} Regarding his trial for CSP of an inmate, Defendant argues that: (1) the district court erroneously denied his proposed jury instruction defining CSP of an inmate as an act committed without the inmate's consent; and (2) the district court abused its discretion by admitting testimony regarding Defendant's vasectomy

and denying Defendant's motion for a mistrial based on that testimony.

{3} Regarding his trial for assault, Defendant argues that (1) the district court abused its discretion by admitting testimony about a voicemail message that Defendant left for Victim approximately one week after the assault; (2) there was insufficient evidence to support Defendant's assault convictions; and (3) Defendant's multiple assault convictions violate double jeopardy.

{4} We discuss separately the background and issues specific to each trial. For the reasons that follow, we affirm.

BACKGROUND

{5} At Defendant's first trial for two counts of CSP of an inmate, committed against Victim N.S., the jury was instructed in relevant part that "[f]or the act to have been unlawful it must have been done without consent and with the intent to arouse or gratify sexual desire." On appeal, Defendant characterizes his defense at his first trial as a theory of "a consensual encounter" with Victim N.S. when she was an inmate. In this first trial, the jury acquitted Defendant of one count and a mistrial was declared after the jury was unable to reach a unanimous verdict on the remaining count of CSP of an inmate.

{6} Following the mistrial, the State retried Defendant for the remaining count of CSP of an inmate. Before this second trial, the district court requested briefing on whether the jury instruction defining unlawfulness for CSP of an inmate should include the language "without consent." Ultimately, the district court determined that the phrase "without consent" was not necessary in the jury instruction because, as a matter of law, an inmate cannot consent to sexual intercourse with a corrections officer in a position of authority over the inmate.

{7} The following was presented at Defendant's second trial for CSP of Victim N.S. On April 13, 2015, Victim N.S., incarcerated due to a probation violation, was transported to the courthouse for her probation revocation hearing. On that day, Victim N.S. wore a standard two-piece inmate's uniform with an elastic waistband. Additionally, she was restrained in four-point shackles, which limit movements by chaining an inmate's ankles together, which are then in turn connected by a chain to handcuffs placed on both of the inmate's wrists.

{8} Defendant was one of the corrections officers responsible for transporting Victim N.S. that day. Corrections officers are prohibited from having sexual contact with inmates, and male corrections officers are not allowed to be alone with female inmates in areas without security cameras.

{9} After Victim N.S.’s hearing was completed, she returned to a holding cell in the basement of the courthouse; Defendant then told Victim N.S. that her attorney needed to speak with her, and transported her and another female inmate back into the courtroom. While in the courtroom, Victim N.S. fell asleep. Defendant told her that since she could not stay awake, she would have to go back to the holding cell downstairs. Defendant then took Victim N.S. out of the courtroom and into an elevator used to transport inmates from the holding cell to the courtroom, which was inaccessible to the public. Security footage showed Defendant exiting the elevator with Victim N.S., but there were no cameras inside the elevator.

{10} Once inside the elevator, Defendant grabbed Victim N.S. roughly, forcibly kissed her, put her hand on his erect penis, and forced her onto her knees, telling her "you know what to do." Victim N.S. performed fellatio on Defendant, after which Defendant pulled her up by her hair, turned her around, and roughly penetrated her vaginally. Victim N.S. described feeling ripping and tearing

. After approximately three to four minutes, Defendant told Victim N.S. to pull up her pants and took her from the elevator to a holding cell. When Victim N.S. used the restroom in her holding cell, she found blood and wetness in her underwear, which she interpreted as blood from her injuries and Defendant's ejaculate.

{11} Defendant transported Victim N.S. back to the detention center, where she immediately entered a twenty-three-hour lockdown for possessing contraband art supplies that were discovered in her cell. After the lockdown period ended, Victim N.S. showered, but kept her underwear from the day of the assault in a plastic bag. Victim N.S. contacted an advocate lawyer and disclosed the incident with Defendant, which led to a law enforcement investigation and an exam completed by a Sexual Assault Nurse Examiner (SANE). At the exam, Victim N.S. provided the underwear she wore on the day of the assault.

{12} Victim N.S. observed Defendant's penis for approximately twenty seconds and testified that although it was difficult for her to discern because his penis was erect, it appeared "pointy" and circumcised. The SANE nurse who examined Victim N.S. testified that a photograph of Defendant's flaccid penis appeared uncircumcised, but she could not be certain without a physical exam because a circumcised penis can appear uncircumcised and likewise, an uncircumcised penis can appear circumcised.

{13} The serology report presented at trial identified the presence of semen, but no sperm, on Victim N.S.’s underwear, and additional evidence at trial established that a vasectomy

is one reason why a semen sample might not contain sperm. Based on DNA testing, Defendant could not be eliminated as the source of the male DNA on Victim N.S.’s underwear.

{14} Another alleged victim (Victim A.S.) of Defendant testified at the same trial. Before she testified, the State reminded the district court of the previous ruling allowing limited testimony from Victim A.S. regarding Defendant's statement that he was "fixed"—that she interpreted to mean Defendant previously had a vasectomy—and asked the district court to further expand the scope of her testimony to include her observations of Defendant's penis and her opinion about whether he was circumcised. After hearing arguments on the issue, the district court permitted testimony regarding Defendant's own statement about being "fixed" but denied the State's request to present additional testimony regarding Victim A. S.’s observations of Defendant's penis and whether she believed he was circumcised.

{15} During Victim A.S.’s testimony, when asked who she recognized in the courtroom, she replied that she recognized the prosecutor and Victim N.S.’s advocate; defense counsel immediately asked to approach for a bench conference during which he moved for a mistrial. When Victim A. S. resumed her testimony, the State began by stating, "I realize that you recognize many people from witness interviews with the attorney general's office and that sort of thing. Do you recognize anyone else from prior to that?" Victim A.S. then identified Defendant as someone with whom she had previous contact and testified that Defendant told her that he was "fixed," which she understood to mean that she could not get pregnant if Defendant had sex with her. When later ruling on Defendant's motion for a mistrial, the district court offered a curative instruction, which Defendant declined.

{16} The jury convicted Defendant of CSP of an inmate.

DISCUSSION

I. The District Court Properly Denied Defendant's Proposed Jury Instruction Defining CSP of an Inmate as an Act Committed Without the Inmate's Consent

{17} Defendant contends that "[b]ecause unlawfulness is always an element of CSP," consent is an available defense to CSP of an inmate and therefore Defendant was entitled to a jury instruction defining unlawfulness in terms of lack of consent. The State does not contest that unlawfulness is an element of CSP, but argues that Defendant was not entitled to his proposed instruction because as a matter of law, an inmate cannot consent to sexual intercourse with a corrections officer in a position of authority over the inmate.

{18} Because Defendant preserved his objection to the jury instruction given, we review for reversible error. State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. Here, the applicability of a consent defense for CSP of an inmate requires statutory interpretation, which this Court reviews de novo. State v. Martinez , 2006-NMCA-068, ¶ 5, 139 N.M. 741, 137 P.3d 1195. "In determining what is or is not an essential element of an offense, we begin with the language of the statute itself, seeking of course to give effect to the intent of the [L]egislature." State v. Stevens , 2014-NMSC-011, ¶ 15, 323 P.3d 901 (internal quotation marks and citation omitted). "In interpreting a statute, our primary objective is to give effect to ...