State v. Gipson

• Decision Date: 07 April 2009
• Docket Number: No. 28,531.,28,531.
• Citation: 2009 NMCA 053,207 P.3d 1179
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Richard GIPSON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

207 P.3d 1179

2009 NMCA 053

STATE of New Mexico, Plaintiff-Appellee, v.Richard GIPSON, Defendant-Appellant.

No. 28,531.

Court of Appeals of New Mexico.

April 7, 2009.

Gary K. King, Attorney General, Francine A. Chavez, Assistant Attorney General, Santa Fe, NM, for Appellee.

David I. Rupp, Alamogordo, NM, for Appellant.

OPINION

CASTILLO, Judge.

{1}Defendant appeals his felony convictions for thirty-five counts of criminal sexual contact of a minor (CSCM), twelve counts of criminal sexual penetration of a minor (CSPM), and two counts of bribery or intimidation of a witness.On appeal, Defendant raises sufficiency issues surrounding some of his convictions for CSCM and CSPM.Specifically, he challenges the sufficiency of the evidence to support his convictions for counts two through seven of CSCM and the sufficiency of the evidence to support the jury's finding that he was in a position of authority as to the victim, Nicole—a finding which was required for conviction on all of the CSCM and CSPM counts.We affirm.

I.BACKGROUND

{2}Defendant's relationship with Nicole began in 1997, and the incidents leading to the charges began in August 2001.On December 12, 2006, Defendant was indicted by a grand jury on 76 counts.A total of 49 counts went to the jury, and the jury convicted Defendant on all counts.Defendant appeals the jury's verdict.We will provide further factual detail as we address Defendant's arguments.

II.DISCUSSION

A. CSCM

{3}Defendant first argues that the evidence was insufficient to support his convictions for counts two through seven of CSCM because the State failed to prove with sufficient certainty when the alleged crimes occurred.He also contends that the State failed to rebut the possibility that at least some of these crimes did not occur during the relevant time periods because Nicole testified that Defendant's step-daughter, Stephanie, was present during those times and that nothing happened when she was present.

{4}We review the evidence introduced at trial to determine "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. Sutphin,107 N.M. 126, 131, 753 P.2d 1314, 1319(1988).We view the evidence in the light most favorable to the verdict, resolving all conflicts and indulging all inferences in favor of the verdict.SeeState v. Apodaca,118 N.M. 762, 765-66, 887 P.2d 756, 759-60(1994).We do not reweigh the evidence or substitute our judgment for that of the fact finder as long as there is sufficient evidence to support the verdict.State v. Mora,1997-NMSC-060, ¶ 27, 124 N.M. 346950 P.2d 789.Furthermore, the jury is free to reject Defendant's version of the facts.State v. Rojo,1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.Finally, we note that this Court cannot consider the merit of evidence that may have supported a different result.State v. Kersey,120 N.M. 517, 520, 903 P.2d 828, 831(1995).

{5} To convict Defendant of CSCM, the State must prove beyond a reasonable doubt that (1)Defendant touched or applied force to Nicole's breast, buttocks or vagina; (2)Defendant, by reason of his relationship with Nicole, was able to exercise undue influence over her and use his authority to coerce her to submit to sexual contact; (3) Nicole was at least thirteen but less than eighteen years old; and (4) the incidents happened in the time frame specified in the instruction.SeeNMSA 1978, § 30-9-13(C)(2)(a)(2003)(providing that CSCM of a minor in the third degree consists of CSCM 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");UJI 14-926 NMRA;State v. Smith,104 N.M. 729, 730, 726 P.2d 883, 884(Ct.App.1986)(observing that "[j]ury instructions become the law of the case against which the sufficiency of the evidence is to be measured").The jury was given six separate instructions with the same language on each of counts two through seven — except that each instruction specified a time period spanning a different month between October 1, 2001, and March 31, 2002, e.g., October 1, 2001, through October 31, 2001; November 1, 2001, through November 30, 2001, etc.

{6}Defendant challenges the six CSCM convictions spanning this period because he claims that the evidence was insufficient as to the specific number of times he allegedly committed the CSCM and that it was insufficient in light of testimony suggesting that Stephanie's presence may have precluded any wrongful conduct.In analyzing Defendant's challenge, we turn to the evidence introduced at trial concerning the relevant time periods and the evidence concerning when Stephanie was present.

{7} Nicole first provided background testimony as to how she came to know Defendant, the relationship between her family and Defendant's, and how Defendant would come to her house to fix things and to take the trash to the dump at the request of Nicole's mother.Nicole then testified regarding the first time Defendant subjected her to CSCM in August 2001, when Nicole was spending the night at Defendant's home.Nicole was thirteen years old at the time.

{8} Nicole also testified that she saw Defendant a few weeks after the August 2001 incident when he came to her home to take the trash to the dump.She testified that she did not want to accompany Defendant to the dump, but her mother pressured her to do so.According to Nicole, during this trip to the dump, Defendant stopped on the side of the road, kissed her, and put his hands on her breasts and her legs.Defendant unbuttoned her pants, placed his hands on her vagina, put his fingers underneath her underwear, and put his fingers into her vagina.Nicole testified that she did not report the incident because Defendant told her that if she did, a lot of people would be hurt, and Nicole was afraid that something would happen to her family members if she told anyone what had happened.

{9} After describing Defendant's September 2001 actions, Nicole testified that the same thing would happen every two to three weeks — every two weeks if a burn ban was in effect and every three weeks if there was no burn ban in effect.She testified that these trips started in September 2001 and continued until May 2005.Nicole's mother also testified that the trash trips happened two to three times a month and that she pressured Nicole to accompany Defendant even when Nicole was reluctant to go.

{10} In an effort to cast doubt on the jury's verdict for the CSCM counts from October 2001 to March 2002, Defendant asserts that Nicole's testimony was inconsistent regarding the time periods when the alleged wrongful acts occurred.He notes that after testifying as to the events of September 2001, Nicole was asked what she remembered next, and she responded that the next incident she remembered was in April of the next year.Although she had previously stated that Defendant came every two to three weeks to pick up the trash and reiterated this claim after the recess, Defendant claims that her remark that the next thing she remembered was in April 2002 rendered her testimony inconsistent as to the frequency of the alleged incidents of CSCM from October 2001 through March 2002.We are unpersuaded.

{11} Contrary to Defendant's contention, Nicole never testified that nothing happened on the trips to the dump after September 2001; nor did her testimony change after the recess.Our review of Nicole's testimony indicates that she consistently testified that the trash trips to the dump happened every two to three weeks and that something happened every time she was alone with Defendant.Although she testified that the next thing she remembered was an incident in April 2002, the jury could conclude that Nicole was addressing the next time Defendant subjected her to CSCM or CSPM apart from the trips to the dump.Therefore, we disagree that Nicole's testimony was contradictory as to what occurred between October 2001 and March 2002.

{12} In addition, even if Nicole's testimony appeared to be inconsistent on some points, such inconsistencies do not warrant reversal of Defendant's convictions because they are matters for the jury to assess in determining Nicole's credibility.SeeState v. Ortiz-Burciaga,1999-NMCA-146, ¶ 22, 128 N.M. 382, 993 P.2d 96(holding that it is the "exclusive province of the jury to resolve factual inconsistencies in testimony"(internal quotation marks and citation omitted));cf.State v. Sosa,2000-NMSC-036, ¶ 8, 129 N.M. 767, 14 P.3d 32(observing that the "credibility of witnesses is for the jury");State v. Gonzales,1997-NMSC-050, ¶ 18, 124 N.M. 171, 947 P.2d 128(holding that it is the factfinder's prerogative to weigh the evidence and to judge the credibility of the witnesses).Based on the testimony of Nicole and her mother, we hold that sufficient evidence supports Defendant's convictions for counts two through seven of CSCM.See generallyState v. Sparks,102 N.M. 317, 320, 694 P.2d 1382, 1385(Ct.App.1985)(defining substantial evidence as that evidence which a reasonable person would consider adequate to support a defendant's conviction).

{13}Defendant also contends that the method of charging him on counts two to seven — one count of CSCM for each month between October 2001 and March 2002 — rendered his defense more difficult because of the uncertainty of the counts and when they occurred.He contends that the State's inability to sufficiently prove when the alleged bad acts occurred led it to take a "once a month something must have happened" approach to charging him, which was "very speculative" and patently unfair.We disagree.

{14} Nicole clearly stated that she accompanied Defendant to the dump every two to three weeks and that every time she accompanied him, he committed acts...