State v. Henderson
Decision Date | 10 November 1993 |
Docket Number | No. 21127,21127 |
Parties | STATE of New Mexico, Plaintiff-Respondent, v. Winford HENDERSON, Defendant-Petitioner. |
Court | New Mexico Supreme Court |
Winford Henderson was convicted on two counts each of contributing to the delinquency of a minor (CDM) under NMSA 1978, Section 30-6-3 (Cum.Supp.1992), and of false imprisonment under NMSA 1978, Section 30-4-3 (Repl.Pamp.1984). He appealed to the Court of Appeals, which affirmed. See State v. Henderson, 116 N.M. 541, 865 P.2d 1185 (Ct.App.1993). We granted his petition for a writ of certiorari and now review two issues: whether the uniform jury instruction on CDM (SCRA 1986, 14-601) is deficient, and whether it was error for the trial court to refuse to instruct the jury on the offense of indecent exposure before a minor as a lesser included offense of CDM. We affirm on those issues and affirm without discussion the other issues addressed in the opinion of the Court of Appeals.1
The CDM jury instruction adequately reflects the statute. Section 30-6-3 makes it a criminal offense for any person to commit an act or omission that "causes or tends to cause or encourage the delinquency of any person under the age of eighteen years." As Henderson points out, the jury instructions must accurately reflect the elements of the crime. See Jackson v. State, 100 N.M. 487, 489, 672 P.2d 660, 662 (1983) ( ). Henderson argues that the court's jury instruction does not accurately reflect the elements of CDM. We review those arguments today to determine if the language of the instruction, as given in this case, "substantially follow[s] the language of the statute or use[s] equivalent language." State v. Maestas, 63 N.M. 67, 71, 313 P.2d 337, 340 (1957).
The uniform jury instruction does not tell the jury, in the words of Section 30-6-3, that it must find the defendant "contributed to delinquency." Instead, three alternative types of delinquent behavior are described, and the exact wording of the instruction given depends on the circumstances of the particular case. See SCRA 14-601. Under Uniform Jury Instruction 14-601, the jury is instructed to find the defendant guilty of CDM if the defendant's conduct causes or encourages the minor to: (1) commit a crime; (2) refuse to obey the lawful command or directions of a person with lawful authority over the minor (such as a parent or teacher); or (3) conduct herself in a manner injurious to the morals, health, or welfare of herself or another person. See id. The terms "morals," "health," and "welfare" may be given individually or in combination. Id. In this case the jury was instructed to find Henderson guilty of CDM if his acts encouraged each of the girls in question to conduct herself in a manner injurious to her morals, health, or welfare.
Our inquiry is whether the language of the instruction substantially follows the statute or uses language equivalent to the meaning of "delinquent" as that term is used in thE Cdm statute. cf. state v. cawley, 110 N.M. 705, 710, 799 P.2d 574, 579 (1990) ( ). To make that determination, we must examine the meaning of the term "delinquency" in our CDM statute. We explained in State v. Trevino, 116 N.M. 528, 532, 865 P.2d 1172, 1176 (1993), that whether the defendant's acts contributed to delinquency is a question for the jury. "The common sense of the community, as well as the sense of decency, the propriety, and the morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it." State v. McKinley, 53 N.M. 106, 111, 202 P.2d 964, 967 (1949) (quoting State v. Millard, 18 Vt. 574, 577 (1846)).
Neither the legislature nor our courts have precisely defined "delinquency" as used in the CDM statute because it is not susceptible to precise definition. See McKinley, 53 N.M. at 110, 202 P.2d at 966 ( )(quoting State v. Friedlander, 141 Wash. 1, 250 P. 453, 455 (1926), appeal dismissed, 275 U.S. 573, 48 S.Ct. 17, 72 L.Ed. 433 (1927)). This Court reaffirmed that the definition of CDM was not unconstitutionally vague for failing to enumerate each and every act that would constitute contributing to delinquency in State v. Favela, 91 N.M. 476, 478, 576 P.2d 282, 284 (1978) (per curiam), overruled in part on other grounds by State v. Pitts, 103 N.M. 778, 780, 714 P.2d 582, 584 (1986).
In many states the definition of delinquency for purposes of CDM is connected to the state's juvenile code. See, e.g., Cal.Penal Code Sec. 272 (West 1988) ( ); Ohio Rev.Code Ann. Sec. 2919.24 (Anderson 1987) (same). Other states have established a similar nexus by judicial decision. See, e.g., State v. Austin, 160 W.Va. 337, 234 S.E.2d 657, 659 (1977) ().
In McKinley, this Court noted that a previous version of New Mexico's CDM statute had tied the definition of delinquency in CDM to the definition of juvenile delinquency in the Children's Code. 53 N.M. at 108-09, 202 P.2d at 965-66 ( ). The definition of a juvenile delinquent included a minor who "habitually deports himself as to injure or endanger the morals, health or welfare of himself or others." Id. at 109, 202 P.2d at 965 ( ). The effect of severing the definition of delinquency in CDM from other statutory definitions of the term was that the meaning was no longer limited to those other definitions. Id. at 109, 202 P.2d at 966 ( ); see also State v. Leyba, 80 N.M. 190, 192, 453 P.2d 211, 213 (Ct.App.) (defendant's acts encourage conduct injurious to the minor's morals), charge of CDM is supported if cert. denied, 80 N.M. 198, 453 P.2d 219 (1969). This Court later disavowed any nexus between "delinquency" as the term is used for CDM and as defined in the Children's Code. Favela, 91 N.M. at 477-78, 576 P.2d at 283-84 (1978) ( ). While the Children's Code had been amended to narrow the definition of "delinquent act," that amendment did not "extend, amend, change or become incorporated into" the CDM statute. Id. at 478, 576 P.2d at 284.
Looking at the history of our CDM statute, we find that encouraging conduct by a minor that is injurious to the health, morals, or welfare of minors has long constituted the offense of CDM in New Mexico. The legislature's earlier and subsequent use of injurious conduct to define juvenile delinquency or establish juvenile court jurisdiction does not limit the use of injurious conduct for purposes of CDM.2 Therefore, the language of the jury instruction given in this case is equivalent to the language of the statute.
Henderson was not entitled to an instruction on indecent exposure as a lesser included offense of CDM. At trial, Henderson requested "step down" instructions on the crime of indecent exposure, see NMSA 1978, Sec. 30-9-14 (Repl.Pamp.1984), as a lesser included offense of CDM. Henderson claims that the failure to instruct on indecent exposure denied him due process and a fair trial. See Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 2390, 65 L.Ed.2d 392 (1980) ( ); State v. Riggsbee, 85 N.M. 668, 671, 515 P.2d 964, 967 (1973) ( ). We affirm the ruling of the trial court on grounds different from those relied upon by the Court of Appeals.
We do not address the grounds relied upon by the Court of Appeals. The trial court refused the instruction on the ground that Henderson did not expose himself to "public view," as that term has been interpreted by the Court of Appeals. See, e.g., State v. Artrip, 112 N.M. 87, 88, 811 P.2d 585, 586 (Ct.App.), cert. denied, 112 N.M. 21, 810 P.2d 1241 (1991) ( ). The Court of Appeals affirmed the refusal on two grounds. First, because Henderson did not argue to the trial court that the incident was visible or accessible to the general public, the Court would not allow him to raise that argument on appeal. Second, the Court of Appeals concluded that there was no evidence to support a finding that Henderson "intentionally positioned himself in such a way as to be visible or accessible to the general public." Henderson, 116 N.M. at 545, 865 P.2d at 1189.3
Henderson argues that the Court of Appeals has wrongly narrowed the statute with its interpretation of "public view." The Court of Appeals first interpreted the meaning of "public view" in State v. Romero, 103 N.M. 532, 536, 710 P.2d...
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