State v. Jensen

• Decision Date: 06 August 2005
• Docket Number: No. 24,526.,24,526.
• Citation: 2005 NMCA 113,118 P.3d 762
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. David JENSEN, Defendant-Appellant.
• Court: New Mexico Supreme Court

118 P.3d 762

2005 NMCA 113

STATE of New Mexico, Plaintiff-Appellee, v. David JENSEN, Defendant-Appellant.

No. 24,526.

Court of Appeals of New Mexico.

June 23, 2005.

Certiorari Granted, No. 29,343, August 6, 2005.

COPYRIGHT MATERIAL OMITTED

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender, Jennifer Byrns, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} In November 2002, Defendant David Jensen grabbed his wife (Wife) by the arms, sat her on a bed, ignored her telling him "no" and to stop, and, overcoming her physical resistance, while kneeling on her arms Defendant took off Wife's jeans and underwear, took off his own pants, and proceeded to force Wife to have sex with him. In August 2003, Defendant was tried on charges of criminal sexual penetration (CSP) under NMSA 1978, § 30-9-11(D)(3) (2003), and assault with intent to commit CSP on a household member (assault) under NMSA 1978, § 30-3-14(A) (1995). In addition to the element of causing Wife to engage in sexual intercourse, the jury instruction given for CSP contained the elements of physical force or physical violence resulting in abrasions of the labia minora. The jury instruction given for assault with intent to commit CSP contained the elements, among others, that Defendant "threw, pushed and/or restrained [Wife] on the bed," and that this conduct caused Wife to believe Defendant "was about to intrude on [her] bodily integrity or personal safety by touching or applying force to [her] in a rude, insolent or angry manner." Defendant did not testify, but argued the sex was consensual and that he did not force Wife in any way. On appeal, Defendant raises issues of (1) double jeopardy and (2) ineffective assistance of counsel. We affirm.

DISCUSSION

Double Jeopardy

{2} Defendant contends that the assault charge is a lesser included offense of the CSP charge and that his conviction of both violated double jeopardy. More particularly, he argues that his alleged actions were unitary, having occurred in a single, continuous chain of events for the sole purpose of perpetrating CSP, and that the Legislature did not intend multiple punishments. See Swafford v. State, 112 N.M. 3, 7-15, 810 P.2d 1223, 1227-35 (1991) (setting out the analyses for a court considering a claim of double jeopardy based on multiple punishments). For his multiple punishments argument, Defendant compares the elements of assault and CSP. See id. at 14-15, 810 P.2d at 1234-35 (discussing the elements test). Defendant acknowledges that each statute contains an element the other does not, i.e., that the assault charge contained the element that the victim be a household member, and the CSP charge contained the element of personal injury to the victim. Defendant nevertheless argues that the presumption, based on this elements showing, that the statutes punish distinct offenses, is rebutted based on a review of other indicia of legislative intent. See id. at 14, 810 P.2d at 1234 (stating that the presumption that the statutes punish distinct offenses "may be overcome by other indicia of legislative intent").

{3} In support of his argument, Defendant states that Section 30-3-14(A) (assault with intent to commit CSP against a household member) is identical to NMSA 1978, § 30-3-3 (1977) (assault with intent to commit CSP) in elements, except for the additional element in Section 30-3-14 that the victim be a household member. Defendant also states that other household member statutes, NMSA 1978, § 30-3-12 (1995) (assault against a household member), and NMSA 1978, § 30-3-13 (1995) (aggravated assault against a household member), mirror the general assault statutes, except for their requirement that the victim be a household member. Continuing, Defendant contends that assault against a household member with intent to commit CSP in Section 30-3-14, and assault with intent to commit CSP in Section 30-3-3 are both third degree felonies, and, therefore, the Legislature did not intend to punish an assault more severely because the victim was a wife rather than a stranger. According to Defendant, "[h]ad the legislature believed that assaults against a spouse should be punished more severely than assaults against a non-spouse, then it would have enacted harsher penalties for assault against a household member."

{4} Further, Defendant asserts that the household member statutes were enacted merely to better track domestic violence prosecutions for federal funding purposes, and not because the legislature believed that one assault was more blameworthy than the other. Defendant argues that if his alleged victim had been a stranger, he could not have been convicted of both charges as he was, because the assault charge would have been subsumed within the CSP charge for double jeopardy purposes, and it was only the added element of household member status under Section 30-3-14(A) by which it can be argued that the assault charge was not thus subsumed. See Swafford, 112 N.M. at 14, 810 P.2d at 1234 (stating that "[i]f [the elements] test establishes that one statute is subsumed within the other, the inquiry is over and the statutes are the same for double jeopardy purposes").

{5} Combining all of his arguments indicated here, Defendant argues that "[i]t is not logical to assume that the legislature intended to punish this conduct twice merely because the alleged victim was [his] wife when the legislature does not generally punish more harshly assaults committed against spouses than it does those committed against non-spouses." The essence of Defendant's argument is that the assault with intent to commit CSP on a household member charge should be seen and treated no differently than an assault with intent to commit CSP charge, and because the latter (assault with intent to commit CSP charge) is subsumed under the CSP charge, the Legislature did not intend multiple punishments.

{6} We assume for the purpose of our analysis that the conduct was unitary. We reject Defendant's multiple punishment argument. We hold that the Legislature intended the CSP and assault with intent to commit CSP on a household member statutes to create separately punishable offenses. We first apply the strict elements test to determine legislative intent. See id. at 14-15, 810 P.2d at 1234-35; State v. Pisio, 119 N.M. 252, 261, 889 P.2d 860, 869 (Ct.App.1994). As Defendant acknowledges, the two offenses contain separate elements. We therefore look to the "other indicia" Defendant advances to rebut the presumption that the Legislature intended multiple punishments. Swafford, 112 N.M. at 14, 810 P.2d at 1234; Pisio, 119 N.M. at 261, 889 P.2d at 869. We are unpersuaded by Defendant's webbed argument pulling in, comparing, and contrasting an array of statutes.

{7} Sections 30-3-12 through -14 are clearly aimed at crimes against a household member. Section 30-3-14 focuses on CSP against a household member. We perceive the intent of the Legislature in enacting the criminal statutes that relate specifically to household member crimes to be to address a specific and distinct social concern apart from the general social harm that the same crimes against persons not household members are intended to address. The perpetration of an assault against a household member to commit CSP represents the Legislature's attempt to address a very specific scourge, violence against members of the household, that can reasonably be considered a distinct and separate harm. Defendant has provided no authority that places this perception of legislative intent in question. We are not prepared to say that the Legislature had only a statistical purpose for separately proscribing and punishing an assault with intent to commit CSP when the victim is a household member.

{8} Furthermore, we see only mild differences between this case and Swafford. In Swafford, our Supreme Court examined two separate statutes, CSP and incest, and determined that the two crimes had differences and were distinct. 112 N.M. at 15, 810 P.2d at 1235. The Court thought it significant that incest required proof of a certain degree of consanguinity, whereas under CSP, the relationship between the defendant and the victim was immaterial. Id. Further, the Court determined that the statutes had different policy objectives. Id. The CSP sanction was "to prevent forcible, nonconsensual sexual activity and to protect a person's important interests in uncoerced choice of sexual partners." Id. Incest, on the other hand, was "more narrowly directed toward prohibiting sexual relations, whether consensual or not, between relatives." Id. This Swafford analysis applies in the present case. It is reasonable to conclude that the Legislature narrowly tailored Section 30-3-14(A) toward prohibiting violent conduct between domestic partners and other household members.

{9} Moreover, assault with intent to commit a felony is proscribed because it "put[s] persons in fear"; whereas actual penetration "actually injure[s] persons." Cf. State v. Cowden, 1996-NMCA-051, ¶ 12, 121 N.M. 703, 917 P.2d 972 (contrasting the social evils relating to harm from assault and harm from battery). While in the present case the assault was with an intent to commit CSP, followed then by CSP, the fear, and the acts of penetration with resulting personal injury, are reasonably separable in terms of harm and social evil, and are sufficient to reflect a legislative intent to punish the conduct separately. Finally, as the Supreme Court recently pointed out, when "the quantum of punishment is the same for both statutes, [it] suggests [that] the Legislature did not intend one offense to subsume the other, but intended separate punishment for each." State v. Franco, 2005-NMSC-013 ¶ 18, 137 N.M. 447, 112 P.3d 1104.

{10} For the foregoing reasons, we hold that Defendant was not placed in double jeopardy.

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