State v. Figueroa

• Decision Date: 12 August 2019
• Docket Number: No. A-1-CA-36391,A-1-CA-36391
• Citation: 457 P.3d 983
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Marcos FIGUEROA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

457 P.3d 983

STATE of New Mexico, Plaintiff-Appellee,

v.Marcos FIGUEROA, Defendant-Appellant.

No. A-1-CA-36391

Court of Appeals of New Mexico.

Filing Date: August 12, 2019

Certiorari Denied, November 19, 2019, S-1-SC-37904

Hector H. Balderas, Attorney General, Eran Shemuel Sharon, Assistant Attorney General, Santa Fe, NM, for Appellee

L. Helen Bennett, P.C., L. Helen Bennett, Albuquerque, NM, for Appellant

IVES, Judge.

{1} A jury convicted Marcos Figueroa (Defendant) of two counts of criminal sexual penetration of a minor (CSPM) in the second degree (CSPM-II) perpetrated against a child between the ages of thirteen and eighteen through force or coercion contrary to NMSA 1978, Section 30-9-11(E)(1) (2009). On appeal, Defendant argues that (1) the use of an inapplicable jury instruction was fundamental error; (2) insufficient evidence supports his conviction; and (3) the district court incorrectly credited only the portion of Defendant's pretrial release that he spent under house arrest towards his sentence. We reverse Defendant's convictions, remand for a new trial, and affirm the district court's order regarding credit for time spent on pretrial release.

BACKGROUND

{2} The State charged Defendant by criminal information with four counts of CSPM-II committed against his underage son, G.F., and two counts of CSPM-II committed against his underage stepson, A.C. At trial, all of these charges were dismissed save two—Counts 4 and 5, which related to G.F. and were identical except for the charged timeframe. They alleged:

That between June 01, 2014[,] and July 01, 2014, [for Count 4, and September 01, 2014, and October 7, 2014, for Count 5, D]efendant did cause [G.F.] to engage in sexual intercourse/anal intercourse/cunnilingus/fellatio, and [G.F.] was at least thirteen but less than eighteen years of age, a second degree felony for a sexual offense against a child[.]

The amended information alleged that this conduct violated Section 30-9-11(E)(1), which proscribes CSPM perpetrated "by the use of force or coercion on a child thirteen to eighteen years of age[.]"

{3} G.F. provided the only testimony at trial regarding the two incidents on which Counts 4 and 5 were based. The substance of his testimony was as follows:

STATE: [B]etween June 1 of 2014 and July 1 of 2014, what did your father do to you when you say he molested you?

G.F.: I woke up in the living room upstairs, I can't remember if I was in the recliner with it opened and laying down or if I had two of the recliners next to each other and I was laying across that, but I was upstairs laying in those, and I woke up, but he didn't know I did, to my pants pulled down, and he was doing oral.

STATE: He was performing oral sex?

G.F.: Yes.

STATE: When you say oral sex ... what was he doing exactly?

G.F.: He had his mouth on my penis.

STATE: Did he ever know you woke up?

G.F.: Not that I know.

STATE: And did he say anything about it?

G.F.: No.

....

STATE: Had you ever told him "don't do that"?

G.F.: No.

STATE: Did he ever say anything to you when he did this?

G.F.: He did not.

STATE: Now, later that year, between September 1, 2014, and October 7[,] 2014, did your father also perform oral sex on you?

G.F.: Yes.

STATE: Tell me about what you remember about that incident.

G.F.: I was downstairs in my room, in my bed, I was sleeping, I woke up, again my pants were down, and the same thing was happening, he was, oral sex.

....

STATE: Describe what he was doing when you say ‘oral sex.’

G.F.: He had his mouth over my penis.

....

STATE: Did he pull your pants back up when he was done?

G.F. He did.

....

STATE: Do you remember what time of day it was?

G.F.: It was nighttime; I was in bed, sleeping.

G.F. testified that he was sixteen years old at the time of trial, making him either thirteen or fourteen at the time this abuse occurred.

{4} The parties discussed jury instructions with the district court following the close of evidence. The court expressed some confusion as to the applicable instructions and noted that it had been presented with alternative theories of the case, one of which involved the use of "physical force," see NMSA 1978, § 30-9-10(A)(1) (2005). In response, the State disavowed any reliance on a "physical force" theory of CSPM-II. Instead, the prosecutor informed the court, the State's "theory of the case [was] that Defendant, by reason of his relationship [with G.F.], was able to exercise undue influence over [G.F.] and used his position to coerce him to submit to the act." The prosecutor asserted that that theory was supported by the trial evidence "because that's what the testimony [was,]" summarizing the State's position as "[t]he child woke up, [Defendant] was there, the child continued to lie there because ... it was his dad doing it."

{5} Defendant did not object to instructions based on a "position of authority" theory, and the district court consequently instructed the jury on the elements of "position of authority" CSPM-II. The jury found Defendant guilty of both counts under the given instructions. Defendant appeals.

DISCUSSION

I. Fundamental Error Occurred Because the Jury Convicted Defendant Under an Invalid Legal Theory

{6} Defendant contends that we must reverse his conviction because it was error for the district court to instruct the jury on "position of authority" CSPM-II. Defendant failed to preserve this claim of error at trial, and we therefore review only for fundamental error. State v. Stevens , 2014-NMSC-011, ¶ 42, 323 P.3d 901. Under fundamental error review, we first determine "whether a reasonable juror would have been confused or misdirected by the [given] instruction." State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (internal quotation marks and citation omitted). Confusion or misdirection may result from instructions that are "facially contradictory or ambiguous," as well as those that, "through omission or misstatement, fail to provide the juror with an accurate rendition of the relevant law." Id. "If ... a reasonable juror would have been confused or misdirected, then we review the entire record, placing the jury instructions in the context of the individual facts and circumstances of the case, to determine whether the defendant's conviction was the result of a plain miscarriage of justice." State v. Candelaria , 2019-NMSC-004, ¶ 31, 434 P.3d 297 (internal quotation marks and citation omitted). To the extent that our analysis involves issues of statutory interpretation, our review is de novo. State v. Arvizo , 2018-NMSC-026, ¶ 13, 417 P.3d 384.

{7} The instructions the district court gave informed the jury that, "to find [D]efendant guilty of criminal sexual penetration of a child [thirteen] to [eighteen] by use of coercion by a person in a position of authority[,]" it had to find beyond a reasonable doubt:

1. [D]efendant caused [G.F.] to engage in fellatio;

2. [G.F.] was at least [thirteen] but less than [eighteen] years old;

3. [D]efendant was a person who by reason of his relationship to [G.F.] was able to exercise undue influence over [G.F.] and used his position of authority to coerce him to submit to the act;

4. This happened in New Mexico on or between June 1, 2014, and July 1, 2014[, for Count 4, and on or between September 1, 2014, and October 7, 2014, for Count 5].

These instructions were modelled on an inapplicable uniform jury instruction, UJI 14-945 NMRA. Its use note states that the instruction "is only to be used in cases based on crimes that occurred before the [Legislature's] 2007 amendment [of Section 30-9-11 ]."

{8} Before the amendment, Section 30-9-11(D)(1) (2003) classified as CSPM-II all CSPM perpetrated "on a child thirteen to eighteen years of age when the perpetrator is in a position of authority over the child and uses this authority to coerce the child to submit[.]" As of July 1, 2007, however, Section 30-9-11 no longer contains any reference to "position of authority" CSPM. Instead, Section 30-9-11(E)(1) now provides that all CSPM perpetrated "by the use of force or coercion on a child thirteen to eighteen years of age" is CSPM-II. Because the law in effect at the time a criminal offense is committed is controlling, State v. Lucero , 2007-NMSC-041, ¶ 14, 142 N.M. 102, 163 P.3d 489, the current version of Section 30-9-11 was the statute applicable to the charges Defendant faced, and the district court erred by instructing the jury on "position of authority" CSPM-II.

{9} The State argues that we should not reverse because the given "position of authority" instructions required the jury to find that Defendant "coerce[d]" G.F. and therefore contained every essential element of "force or coercion" CSPM-II. We disagree.¹ The plain language of our sex offense statutes and precedent interpreting those statutes demonstrate that the given instructions would have confused or misled a reasonable juror because they omitted the essential element of "force or coercion" and included the legally irrelevant elements of "position of authority" CSPM-II.

{10} "[F]orce or coercion," as that phrase is used in Section 30-9-11, has five alternative definitions:

(1) the use of physical force or physical violence;

(2) the use of threats to use physical violence or physical force against the victim or another when the victim believes that there is a present ability to execute the threats;

(3) the use of threats, including threats of physical punishment, kidnapping, extortion or retaliation directed against the victim or another when the victim believes that there is an ability to execute the threats;

(4) the perpetration of criminal sexual penetration or criminal sexual contact when the perpetrator knows or has reason to know that the victim is unconscious, asleep or otherwise physically helpless or suffers from a mental condition that renders the victim incapable of understanding the nature or consequences of the act; or

(5) the perpetration of criminal sexual penetration or criminal sexual contact by a psychotherapist on his patient, with or without

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