State v. Garcia

• Decision Date: 06 December 2012
• Docket Number: No. 31,470.,31,470.
• Citation: 294 P.3d 1256
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Joe T. GARCIA, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

294 P.3d 1256

STATE of New Mexico, Plaintiff–Appellee,

v.Joe T. GARCIA, Defendant–Appellant.

No. 31,470.

Court of Appeals of New Mexico.

Oct. 4, 2012.

Certiorari Granted, Dec. 6, 2012, No. 33,895.

Gary K. King, Attorney General, Olga Serafimova, Assistant Attorney General, Santa Fe, NM, for Appellee.

Jacqueline L. Cooper, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} Defendant Joe Garcia appeals his conviction of contributing to the delinquency of a minor (CDM), a fourth degree felony, contrary to NMSA 1978, Section 30–6–3 (1990). We hold that (1) the State presented sufficient evidence to support Defendant's conviction; (2) the CDM statute did not violate Defendant's right to free expression under the federal and state constitutions; (3) the CDM statute is not unconstitutionally overbroad under the First Amendment to the United States Constitution; (4) as a matter of due process, the CDM statute is not unconstitutionally vague; and (5) under the general/specific rule, the State was not required to charge Defendant for violating the statute prohibiting providing sexually oriented materials harmful to a minor (the sexual oriented materials statute) instead of CDM. Accordingly, we affirm.

BACKGROUND

{2} Defendant's conviction arose out of a handwritten, sexually explicit letter that Defendant's biological daughter, Y.G., found in her underwear drawer. Y.G. lived with her mother, Defendant, and her younger brother. Defendant had recently moved back into the house after a two-to-three year separation from Y.G.'s mother. Although they resided in the same house, Y.G. and Defendant did not speak to each other because she lost trust in Defendant and felt abandoned that he previously left the household.

{3} On June 10, Y.G. left the house with her mother and two brothers, leaving Defendant alone in the house. Later that same day, Y.G.'s mother and Defendant left the house and Y.G. stayed home. Y.G. started looking for her cellular phone. When she looked in her underwear drawer, she found a handwritten letter containing a story entitled “I Just a Fantasy Story,” which contained five pages describing various sexual acts between the writer, a male, and the reader, a female. Y.G. testified that she immediately recognized the handwriting in the letter to be that of Defendant's. She pretended that nothing had happened, returned to the living room with her cousins for that evening without saying anything, then spent the next day avoiding Defendant. She did not tell her mother until the next evening.

{4} Based on the letter, the State charged Defendant with criminal solicitation to commit incest or, in the alternative, CDM. After a trial, the jury convicted Defendant of CDM. On appeal, Defendant argues that (1) the State presented insufficient evidence to support his conviction; (2) the CDM statute as applied in this case is a content-based regulation that violates Defendant's right to freedom of speech; (3) the CDM statute is unconstitutionally overbroad; (4) the CDM statute is unconstitutionally vague; and (5) under a general/specific analysis, the State was required to charge Defendant under the sexually oriented materials statute.

SUFFICIENCY OF THE EVIDENCE

{5} In order for the jury to convict Defendant of CDM, the State had to prove that

1. ... [D]efendant wrote a letter to his biological daughter ... soliciting sexual acts, which was placed in [Y.G.'s] underwear drawer;

2. This encouraged [Y.G.] to commit the offense of [i]ncest, or conduct herself in [a] manner injurious to the morals or the health, or the welfare of [Y.G.];

3. [Y.G.] was under the age of 18[.]

Defendant argues that there was insufficient evidence to support Defendant's conviction because the State submitted no evidence that it was Defendant who placed the letter in Y.G.'s drawer.

{6} “The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Sena, 2008–NMSC–053, ¶ 10, 144 N.M. 821, 192 P.3d 1198 (internal quotation marks and citation omitted). “[S]ubstantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[.]” State v. Baca, 1997–NMSC–059, ¶ 14, 124 N.M. 333, 950 P.2d 776 (internal quotation marks and citation omitted). We view the evidence in the light most favorable to, and indulge all inferences in favor of, the verdict. Sena, 2008–NMSC–053, ¶ 10, 144 N.M. 821, 192 P.3d 1198;State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). If there is substantial evidence supporting the verdict, we do not reweigh the evidence or substitute our judgment for that of the factfinder. State v. Fuentes, 2010–NMCA–027, ¶ 13, 147 N.M. 761, 228 P.3d 1181.

{7} Although the State did not present any direct evidence that it was Defendant who placed the letter in Y.G.'s drawer, the State presented sufficient evidence for a reasonable factfinder to conclude that Defendant was the author of the letter, which leads to a reasonable conclusion that Defendant placed the letter in Y.G.'s drawer. Y.G. testified that she immediately recognized the handwriting in the letter to be that of Defendant's.The State also presented testimony from an expert handwriting analyst, who testified that the handwriting in the letter was Defendant's after comparing the letter to a sample of Defendant's writing. Further, the content of the letter provides clues that Defendant was its author. The letter begins “[s]ometimes when I'm thinking of you and wishing I was with you. I start imagining everything is all right [sic]. Like me walking into your room and your [sic] just their [sic] reading a book and we start talking.” A reasonable inference from this opening is that the writer lives in the same house as Y.G. and does not have a good relationship with her. Combined with Y.G.'s testimony that she did not speak to Defendant, this evidence leads to an inference that Defendant wrote the letter. Further, the jury heard testimony that the police executed a search warrant on June 12, 2010, and in conducting a search of the home, found an envelope in Y.G.'s parents' bedroom with the writing “I Just a fantasy” on it.

{8} The evidence that Defendant authored the letter, when combined with the evidence that Defendant was the only one of two males who lived in the house and was alone in the house on the day Y.G. found the letter, is sufficient circumstantial evidence for a reasonable factfinder to conclude that Defendant placed the letter in Y.G.'s drawer. See Baca, 1997–NMSC–059, ¶ 14, 124 N.M. 333, 950 P.2d 776. Sufficient evidence therefore supported Defendant's conviction for CDM.

CONSTITUTIONAL ISSUESIssue Raised at Oral Argument

{9} At oral argument, in framing his constitutional arguments, Defendant argued that the jury instruction stating the elements of CDM required that the State had to prove that Defendant “wrote a letter ..., which was placed in [Y.G.'s] underwear drawer.” Defendant contends that, because of the use of the passive voice in the jury instruction, the jury could have found that Defendant wrote the letter, but did not place it in Y.G.'s drawer, and still convict Defendant of CDM. However, Defendant did not object to the instruction in the district court and therefore did not preserve this issue. See State v. Nichols, 2006–NMCA–017, ¶¶ 26–30, 139 N.M. 72, 128 P.3d 500 (rejecting the defendant's argument that the broad time frame covered in jury instructions denied him due process because the defendant did not object to the instructions in order to preserve the issue). Defendant also waived this argument by failing to raise it in his brief in chief. See State v. Triggs, 2012–NMCA–068, ¶¶ 13–14, 281 P.3d 1256 (stating the general rule that this Court will not address arguments not raised in the brief in chief). Defendant argues that the issue need not be preserved because it implicates his constitutional rights. However, “[e]ven constitutional rights may be lost if not preserved below.” State v. Zamarripa, 2009–NMSC–001, ¶ 33, 145 N.M. 402, 199 P.3d 846;see also Nichols, 2006–NMCA–017, ¶¶ 26–30, 139 N.M. 72, 128 P.3d 500 (declining to address the defendant's unpreserved constitutional arguments). We therefore proceed to address Defendant's constitutional arguments under the premise that the jury was required to find, and found, that Defendant not only wrote the letter, but also placed it in Y.G.'s drawer as argued below and in the briefing before this Court.

Standard of Review

{10} Defendant makes three arguments that his conviction under the CDM statute violated his rights under the federal and state constitutions. He asserts that the CDM statute (1) is a content-based regulation that violates his rights to freedom of expression under the First Amendment of the United States Constitution and Article II, Section 17 of the New Mexico Constitution, (2) is unconstitutionally overbroad in violation of the First Amendment, and (3) is unconstitutionally vague and therefore violates Defendant's due process rights.

{11} We review each of Defendant's constitutional arguments under a de novo standard of review. See State v. Ebert, 2011–NMCA–098, ¶ 4, 150 N.M. 576, 263 P.3d 918 (reviewing the defendant's arguments that his conviction violated his rights under the First Amendment and that the statute was unconstitutionally vague under a de novo standard of review); see also Vill. of Ruidoso v. Warner, 2012–NMCA–035, ¶¶ 13, 22, ––– N.M. ––––, 274 P.3d 791 (addressing an argumentthat an ordinance is overbroad under a de novo standard of review). “We presume that the statute is constitutional, and it is the defendant's burden to rebut this presumption[.]” State v. Jacquez, 2009–NMCA–124, ¶ 6, 147 N.M. 313, 222 P.3d 685 (citation omitted).

Freedom...