State v. Calderon

• Court: Court of Appeals of New Mexico
• Writing for the Court: JANE B. YOHALEM, JUDGE
• Docket Number: A-1-CA-41121
• Decision Date: 30 October 2025
• Citation: State v. Calderon, A-1-CA-41121 (N.M. App. Oct 30, 2025)
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. GONZALO CALDERON, Defendant-Appellant.

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STATE OF NEW MEXICO, Plaintiff-Appellee, v. GONZALO CALDERON, Defendant-Appellant.

No. A-1-CA-41121

Court of Appeals of New Mexico

October 30, 2025

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY George Eichwald District Court Judge

Raúl Torrez, Attorney General Teresa Ryan, Assistant Solicitor General Santa Fe, NM for Appellee

Rothstein Donatelli LLP Wouter Zwart Marc M. Lowry Albuquerque, NM for Appellant

OPINION

JANE B. YOHALEM, JUDGE

{¶1} A jury found Defendant Gonzalo Calderon guilty of two counts of criminal sexual penetration (CSP) in the second degree (child age 13-18) (force or coercion), in violation of NMSA 1978, Section 30-9-11(E)(1) (2009). Defendant asks this Court to reverse his convictions, arguing that (1) there is insufficient evidence of Defendant's use of "physical force" to cause or perpetrate the nonconsensual penetration of Victim; (2) Section 30-9-11(E)(1) is unconstitutionally vague because it does not provide fair warning that a person can be convicted of nonconsensual sexual penetration of a child age thirteen to eighteen by "physical force," when the "physical force" used to perpetrate the penetration was no greater than that used in consensual intercourse; and (3) the district court erred in admitting internet searches extracted from Defendant's cellphone using Cellebrite software because the State failed to establish with expert testimony the scientific basis and reliability of the Cellebrite software, or in the alternative, the searches were either irrelevant, under Rule 11-401 NMRA, or unduly prejudicial, under Rule 11-403 NMRA. Because we find all of these arguments to be without merit, we affirm Defendant's convictions.

DISCUSSION

{¶2} We group the issues raised in this case concerning the construction of the term "physical force" together and then discuss the evidentiary issues concerning the admission of internet searches downloaded from Defendant's cellphone. We provide the factual and procedural background relevant to each set of issues at the outset of each discussion.

I. CSP Is Caused or Perpetrated by "Physical Force" When Any Degree of Physical Force, However Minimal, Is Used to Penetrate an Unwilling Victim

A. Background

{¶3} Seventeen-year-old Victim and Defendant's teenage daughter (Daughter) were best friends. Victim, who was living with her grandmother in Santa Fe, New Mexico, visited Daughter, who lived in Rio Rancho, New Mexico, often. Victim knew Defendant and Daughter's mother well, had stayed overnight often at the family's home, and had gone camping with the family.

{¶4} Around three o'clock in the morning on November 17, 2019, after spending an evening with her boyfriend, Victim arrived at Defendant's home, where she had made plans to spend the night with Daughter. The girls went to Daughter's bedroom and talked for about an hour before going to sleep. Victim slept on an air mattress, which was on the floor next to the bed where Daughter slept.

{¶5} Victim testified that she was awakened by flashing lights and a clicking noise that she described as sounding like a camera. She then felt Defendant massaging her foot and her lower leg. Victim testified that she was frightened, and was trembling. She described being in a state of shock, unable to move. Defendant removed the blanket covering Victim. Apparently noticing that Victim was trembling, Defendant asked if she was cold. She replied that she was.

{¶6} Defendant left the bedroom and returned with another blanket, which he put over Victim. He then got under the blankets next to her on the air mattress and proceeded to touch Victim's legs, chest, and buttocks, before falling asleep with his hand on Victim's chest.

{¶7} After about fifteen minutes, Defendant woke up and left the room. He returned a while later. Defendant did not say anything to Victim. This time, Defendant removed the blanket covering Victim and pulled down Victim's pants slowly.^[1]Defendant lay down beside Victim and began to masturbate, rubbing himself against her and touching Victim's vaginal and anal areas with his fingers. Defendant touched his penis against both Victim's labia and anus. Victim described stiffening all her muscles, trying to resist Defendant's touch. Defendant continued this for ten to fifteen minutes. Defendant then pulled up Victim's pants, put a blanket over her, and left the room.

{¶8} Defendant soon returned to the bedroom a fourth time, during which he removed both Victim's pants and underwear. Victim testified that Defendant inserted his fingers into her "vaginal and anal area," and touched her up her leg, thighs, and hips. Victim felt him pressed against her, masturbating himself. Victim stated that Defendant penetrated her labia with both his fingers and his penis. This went on for ten to fifteen minutes. Defendant pulled up Victim's pants, left the bedroom, and did not return.

{¶9} Victim was awake the rest of the night. Daughter was in her bed, asleep, the entire time. Victim left Defendant's home early that morning and drove to her grandmother's house in Santa Fe. When she told her grandmother what had happened, her grandmother called the police. The New Mexico State Police began an investigation, led by a case agent who served as the primary investigator.^[2]Defendant was charged with two counts of second degree CSP under Section 30-9-11(E)(1): Count 1 for Defendant's penetration of Victim's vagina by a finger, and Count 2 for Defendant's penetration of Victim's vulva by a penis.

{¶10} Section 30-9-11(E)(1) provides:

E. [CSP] in the second degree consists of all [CSP] perpetrated:

(1) by the use of force or coercion^[3] on a child thirteen to eighteen years of age. (Emphasis added.)

{¶11} The case was tried in October 2022 with Victim testifying as described. After the State presented its case in chief, Defendant made a motion for directed verdict, claiming that there was a "complete lack of evidence" from which force or coercion could be inferred. Defendant alleged that Victim did not testify to the use of either physical force or coercion by Defendant. The district court denied Defendant's motion, concluding that the evidence was legally sufficient for the matter to go to the jury.

{¶12} The jury was instructed that to convict Defendant of CSP in the second degree, they must find, for Count 1:

1. [D]efendant caused the insertion, to any extent, of a finger into the vagina of [Victim];

2. [D]efendant used physical force or physical violence;

3. [Victim] was at least [thirteen] but less than [eighteen] years old;

4. [D]efendant's act was unlawful;

5. This happened in New Mexico on or about November 17, 2019.

The jury instructions for Count 2 were identical to the quoted instructions for Count 1, with the exception of the first paragraph, which stated, "[D]efendant caused the insertion, to any extent, of a penis into the vulva of [Victim]." The jury was also instructed that Defendant must have acted intentionally and that the word "unlawful," in paragraph four in the above-quoted instruction on the elements of the offense, meant that the act "must have been done without consent and with the intent to arouse or gratify sexual desire."

{¶13} The jury convicted Defendant of both counts of second degree CSP, in violation of Section 30-9-11(E)(1), finding both sexual penetration by fingers and by penis; lack of consent by Victim; and the use of physical force or physical violence.

B. Standard of Review

{¶14} Because Defendant's challenge to the sufficiency of the evidence on appeal is based on his construction of Section 30-9-11(E)(1), and specifically on his construction of the first statutory definition of force or coercion in NMSA 1978, Section 30-9-10(A)(1) (2005)-which defines force or coercion as "the use of physical force or physical violence"-we first address legislative intent as to the meaning of the phrase "the use of physical force or physical violence."

{¶15} Questions of statutory construction are issues of law that we review de novo. State v. Holt, 2016-NMSC-011, ¶ 9, 368 P.3d 409. Only after reviewing the construction of the statutory terms under a de novo standard, do we then proceed to apply a substantial evidence standard of review to determine whether the verdict is supported by sufficient evidence in the record. See State v. Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891. {¶16} New Mexico's principles of statutory construction instruct that we look first to the text of the statute as "the primary, essential source of its meaning." NMSA 1978, § 12-2A-19 (1997). "In interpreting statutes, we should read the entire statute as a whole so that each provision may be considered in relation to every other part," in a way that facilitates the operation of the statute and the achievement of the Legislature's goals. N.M. Pharm. Ass'n v. State, 1987-NMSC-054, ¶ 8, 106 N.M. 73, 738 P.2d 1318. We must also consider the history and background of the statute, attempting to discern the purpose the Legislature seeks to achieve. See State v. Smith, 2004-NMSC-032, ¶¶ 9-10, 136 N.M. 372, 98 P.3d 1022.

{¶17} We note at the outset that we have the benefit of guidance from precedent both from our Supreme Court and this Court construing our CSP statutes. In State v. Stevens our Supreme Court undertook a comprehensive review of the history of New Mexico's CSP statutes, going back to the origin of the crime of rape in the common law. 2014-NMSC-011, ¶¶ 24-41, 323 P.3d 901. Given the complex history...