State v. Hargrove

• Citation: 108 N.M. 233,1989 NMSC 12,771 P.2d 166
• Decision Date: 21 March 1989
• Docket Number: No. 17559,17559
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ronald Edward "Cyrus" HARGROVE, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 166

771 P.2d 166

108 N.M. 233

STATE of New Mexico, Plaintiff-Appellee, v. Ronald Edward "Cyrus" HARGROVE, Defendant-Appellant.

No. 17559.

Supreme Court of New Mexico.

March 21, 1989.

[108 NM 234] Jacquelyn Robins, Chief Public Defender, Lynne Fagan, Appellate Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

RANSOM, Justice.

The defendant, Ronald E. "Cyrus" Hargrove, appeals from his convictions on four counts of incest and four counts of criminal sexual penetration. Hargrove received two life sentences plus twenty-seven years. His assignments of error charge impropriety in the imposition of the life sentences, erroneous jury instructions, improper conviction under the general criminal sexual penetration statute, and various violations of his right to a fair trial and due process. We affirm in part and reverse in part, which results in a reduction of the sentence to two life sentences plus twenty-one years.

The defendant was charged in 1986 and tried in 1987. The charges stemmed from his activities as a self-styled messiah who, with the help of two of his other followers, published a religious tract entitled Oracle to the Nations. He professed that a person proved a love of God by giving of oneself sexually. The defendant openly practiced sex with his young daughters, Rebecca and Rachel, and a wife of one of his followers. Evidence of the defendant's mental state was adduced at trial and the jury resolved that he was not legally insane. The jury also was instructed that it could find the defendant guilty but mentally ill, but it determined otherwise.

As an initial procedural matter, we address the State's objection to the submission on appeal of the defendant's handwritten personal statement. The State correctly points out that the statement was not part of the record below, was not subject to cross-examination, and should not be considered on appeal. Upon further reflection, we believe that our leave to submit this statement was improvidently granted. The defendant's personal statement will be stricken from the appellate record.

The defendant contends that the life sentences imposed for two of his convictions should be reduced to eighteen years each. Specifically, the defendant was convicted on two counts of criminal sexual penetration of a child under thirteen years of age, which is a first degree felony. See NMSA 1953, Sec. 40A-9-21(A) (Vol. 6, 2d Repl., Pocket Supp.1975); NMSA 1978, Sec. 30-9-11(A)(1) (Repl.Pamp.1984 & Cum.Supp.1988). The charged offenses were perpetrated on December 25, 1976, and May 7, 1978. Under the sentencing law as it existed in 1976 and 1978, a first degree felony called for life imprisonment. See NMSA 1953, Sec. 40A-29-3 (Vol. 6, 2d Repl.1972). Effective July 1, 1979, however, the basic sentence for a first degree felony was changed to eighteen years. N.M.Laws 1979, ch. 152, Sec. 1.

To support his argument, the defendant relies upon NMSA 1978, Section 31-18-13 (Repl.Pamp.1987), which states that "[u]nless otherwise provided in this section, all persons convicted of a crime under the laws of New Mexico shall be sentenced in accordance with the provisions of the Criminal Sentencing Act [31-18-12 to 31-18-21 NMSA 1978]." The defendant maintains that the language mandates that he be sentenced under the new act, as opposed to the old law, because he is a person who was charged and convicted after the Criminal Sentencing Act became effective. The defendant also cites authority for the proposition that where an amendatory statute mitigates punishment, the lighter sentence should be imposed, rather than the sentence in force when the offense was committed. See, e.g., In re Fink, 67 Cal.2d 692, 63 Cal.Rptr. 369, 433 P.2d 161 (1967) (in bank); In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (1965) (in bank); People v. Oliver, 1 N.Y.2d 152, 134 N.E.2d 197, 151 N.Y.S.2d 367 (1956).

The defendant's reliance on Section 31-18-13 as well as on his cited authority is misplaced. The legislature specifically enacted a transitional rule to provide sentencing guidelines for crimes committed prior to the enactment of the Criminal Sentencing Act. 1977 N.M.Laws, Chapter 216, Section 18, states that "[t]he provisions of * * * [the Criminal Sentencing Act] apply only to persons sentenced for crimes committed on or after its effective date. Prior law remains effective with respect to persons sentenced for crimes committed prior to the effective date of this act * * *." The defendant acknowledges that the creation of penalties and their application is the exclusive prerogative of the legislature. See State v. Peters, 78 N.M. 224, 430 P.2d 382 (1967). The legislature clearly expressed its intent that for crimes committed prior to July 1, 1979, the sentencing provision in effect at the time of the commission of the crime controls. See Estrada, 63 Cal.2d at 747, 48 Cal.Rptr. at 177, 408 P.2d at 953 (a saving clause expressly providing that the old law should continue to operate as to past acts controls so far as punishment is concerned). Accordingly, we will not disturb the imposition of a life sentence for each conviction of first degree criminal sexual penetration committed prior to July 1, 1979.

The defendant also seeks reversal of his convictions for incest. The defendant contends that the trial court failed to instruct the jury properly on an essential element of the offense. See Ortiz v. State, 106 N.M. 695, 749 P.2d 80 (1988) (if instructions fail to apprise jury on essential element of an offense, reversible error has been committed). In New Mexico, there is no uniform jury instruction for incest. The jury was instructed as follows:

For you to find the defendant guilty of incest as charged in Count ______, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. The defendant had sexual intercourse with ______;

2. That ______ was the daughter of the defendant;

3. This happened in New Mexico on or about the ______ day of ______.

The blanks above contained the number of the appropriate count, the name of either Rebecca or Rachel Hargrove, and the date of the alleged commission of the offense.

The defendant argues that the jury should have been instructed that it had to find that the defendant had knowledge of the prohibited degree of consanguinity. NMSA 1978, Section 30-10-3 (Repl.Pamp.1984) states: "Incest consists of knowingly * * * having sexual intercourse with persons within the following degrees of consanguinity: parents and children * * *." See State v. Hittson, 57 N.M. 100, 254 P.2d 1063 (1953) (where this Court recognized knowledge of the prohibited relationship as an element of incest); see also, e.g., State v. Moore, 242 Kan. 1, 748 P.2d 833 (1987) (aggravated incest requires that prohibited sex act be performed with victim under eighteen who is within required degree of kinship, and offender is aware of relationship); State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971) (sexual intercourse with woman or girl whom defendant knows to be his daughter constitutes incest).

The State initially responds that the defendant failed to raise and preserve any alleged error. Four months before trial, the public defender who then represented the defendant filed a requested knowledge instruction for the incest counts involving each daughter, as well as an instruction that specifically stated that proof of blood relationship is an essential element. See State v. Garcia, 100 N.M. 120, 666 P.2d 1267 (Ct.App.), (by tendering a legally correct statement of the law, defendant preserves trial court's error in failing to give proper instructions)., cert. denied, 100 N.M. 192, 668 P.2d 308 (1983). However, the public defender contemporaneously moved for and was granted withdrawal of her representation and, at trial, during the review of jury instructions, the defendant's counsel assented to instructions that omitted the essential element of knowledge. The trial court was not called upon to rule on the earlier requests. To preserve error in the failure of the court to give a proper instruction, it is necessary to call the tendered instruction to the attention of the court for a ruling. SCRA 1986, 5-608(D); Budagher v. Amrep Corp., 97 N.M. 116, 637 P.2d 547 (1981), appeal after remand, 100 N.M. 167, 667 P.2d 972 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 (1983).

The State concedes that failure to instruct on an essential element may be raised for the first time on appeal, see State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977), but maintains that the jury instructions, read as a whole, properly included the essential elements of the crime of incest. The State argues that the jury was instructed on the definition of "intentionally" and asserts that "intentionally" is an adequate substitute for "knowingly". We do not agree that the instruction, which informs the jury of the necessity to find general criminal intent in addition to the other elements of the charged offense, SCRA 1986, 14-141, was sufficient to instruct the jury that knowledge of the prohibited blood relationship is an essential element of incest. As stated in Hittson, "the free act of the one being tried, with knowledge of the relationship" is required to convict one of incest. 57 N.M. at 102-03, 254 P.2d at 1065 (emphasis added). Knowledge and intent are separate, not synonymous, elements.

The failure to give an instruction on an essential element is jurisdictional and reversible error unless the defendant affirmatively has conceded the facts underlying the essential element. Ortiz, 106 N.M. at 698, 749 P.2d at 83. In this case, if the defendant's knowledge that he was the father of either Rebecca or Rachel was not factually in issue, then the error in the instruction would be nonjurisdictional and would...