State v. Lucero, 14649

Citation884 P.2d 1175,118 N.M. 696,1994 NMCA 129
Decision Date21 September 1994
Docket NumberNo. 14649,14649
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Ross Leon LUCERO, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

DONNELLY, Judge.

Defendant appeals his convictions of four counts of contributing to the delinquency of a minor (CDM), contrary to NMSA 1978, Section 30-6-3 (Cum.Supp.1993), and one count of criminal sexual penetration in the third degree (CSP3), contrary to NMSA 1978, Section 30-9-11(E) (Cum.Supp.1992). We (1) summarily answer Defendant's claims of: (a) insufficiency of the evidence; (b) improper admission of opinion testimony; (c) error involving jury instructions; and (d) prosecutorial misconduct; and discuss (2) whether the trial court erred in excluding evidence of the victim's alleged prior sexual conduct; and (3) Defendant's claim of cumulative error. We affirm.

FACTS

In July 1991 Defendant, an Albuquerque city policeman, observed M.R., a minor female, crying and walking down a street. After asking M.R. why she was crying, where she lived, and how old she was, Defendant accompanied her to her residence. Several weeks later, while in uniform, Defendant went to M.R.'s apartment. M.R. testified that on this occasion they kissed, and Defendant sought to have her perform fellatio. When she resisted and turned away, Defendant told her to stop turning her head. M.R. testified she did not want to do this, but complied because she was scared. She said she did not know what Defendant, a policeman, would do if she resisted.

In September 1991 Defendant saw M.R. again. This meeting occurred when M.R.'s roommate, D.M., another minor female, persuaded M.R. to go out with D.M. and Defendant. They met Defendant, who was in his police car, at a park near the city zoo. They followed Defendant to his house, where Defendant got into the back seat of D.M.'s car. Defendant asked D.M. to take him to a bar to purchase beer. After purchasing liquor at the bar, Defendant, D.M., and M.R. drank beer and some Jack Daniels. M.R. testified that she became ill and asked D.M. to take her home.

Instead of driving M.R. home, D.M. drove to a deserted lot. M.R. testified that she got out of the car because she was feeling sick. M.R. then observed that D.M. and Defendant were in the back seat engaging in sexual intercourse. Sometime later, Defendant asked M.R. to get in the car; M.R. refused. Defendant got out of the car and began to disrobe M.R. She testified that she attempted to prevent Defendant from doing this; however, Defendant undressed her and took her to the back seat of the car where they had sexual intercourse. Thereafter, Defendant and M.R. got out of the car and then engaged in sexual intercourse on the hood of the car. Despite M.R.'s complaints that Defendant was hurting her, he did not stop. M.R. testified that, thereafter, Defendant took her back inside the car where they again had sexual intercourse.

In February 1992 Defendant was charged with twenty-five different criminal offenses involving three minor teenage girls--M.R., D.M., and T.T. The specific charges that involved M.R. were two counts of CSP3, two of criminal sexual contact of a minor (CSCM), and four of CDM.

Prior to trial the district attorney's office dismissed the charges involving D.M. At the conclusion of the State's case-in-chief, the trial court directed a verdict in favor of Defendant on each of the charges involving T.T. The jury acquitted Defendant of both counts of CSCM and one count of CSP3 involving M.R. However, the jury convicted him on all counts of CDM and one count of CSP3.

1. ISSUES ANSWERED SUMMARILY
(a) Claim of Insufficiency of the Evidence

Defendant contends that there was insufficient evidence to support his convictions of CDM and CSP3 involving M.R. We disagree. There was evidence that Defendant knew that M.R. was under the age of eighteen, that he gave her alcohol, that he had sex with her on two different occasions, and that he encouraged D.M. and M.R. to engage in sexual touching of each other. The standard of review applied by an appellate court in evaluating a defendant's claim of insufficiency of the evidence is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of each charge beyond a reasonable doubt. State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992).

The jury convicted Defendant of causing M.R. to perform fellatio. This formed the basis of his convictions for CDM (renumbered Count 1) and CSP3 (renumbered Count 2). Defendant's act of providing alcohol or drinking alcohol with M.R. provided the basis for his conviction of CDM under renumbered Count 3. Defendant's act of encouraging M.R. to sit on his lap and engage in sexual intercourse provided the basis for his conviction of CDM as charged in renumbered Count 4; and Defendant's act of encouraging D.M. and M.R. to lay on top of one another and engage in sexual touching constituted the basis for Defendant's conviction of CDM involving M.R. under renumbered Count 7. The jury could properly determine from this evidence that Defendant's acts were sufficient to provide a factual basis for his convictions of CDM; each of these acts tended to "cause or encourage delinquency" on the part of M.R. State v. Trevino, 116 N.M. 528, 534, 865 P.2d 1172, 1178 (1993).

In challenging his convictions of CDM, Defendant argues that in order for the State to prove that he committed CDM it was required to show that Defendant's acts had an adverse effect on M.R. and caused her to become delinquent. We find this argument unpersuasive. In order to prove the offense of CDM, in violation of Section 30-6-3, the State does not need to prove that Defendant's acts had any particular effect on the victim; it is enough that his acts encourage the child to engage in delinquent behavior. Trevino, 116 N.M at 533, 865 P.2d at 1177.

Defendant also argues that there was insufficient evidence to support his conviction of one count of CSP3 involving M.R. M.R. testified that Defendant forced her to perform fellatio; that Defendant was in uniform when this occurred; and that Defendant used physical force. This testimony was sufficient to support Defendant's conviction on this charge. Although Defendant testified that M.R.'s act of performing fellatio was consensual, a reviewing court will not second-guess the jury's decision concerning the credibility of witnesses, reweigh the evidence, or substitute its judgment for that of the jury. See State v. Landers, 115 N.M. 514, 520, 853 P.2d 1270, 1276 (Ct.App.1992), cert. quashed, 115 N.M. 535, 854 P.2d 362 (1993). The test is whether substantial evidence exists to support a verdict of guilty beyond a reasonable doubt as to each essential element of the charged offense. See State v. Sutphin, 107 N.M. 126, 130-31, 753 P.2d 1314, 1318-19 (1988). The question of whether Defendant's acts which caused M.R. to perform fellatio was accompanied by sufficient force to constitute CSP3 was an issue to be determined by the jury. Cf. State v. Clokey, 89 N.M. 453, 453, 553 P.2d 1260, 1260 (1976) (determination of whether the defendant's acts were accompanied by sufficient force to constitute robbery was factual issue to be resolved by fact finder).

To prove CSP3, the State must establish that the penetration was intentional. Section 30-9-11. During sentencing the judge stated, "I do not feel that there was a criminal intent in the sense that I find in so many other people where there's intent to harm someone else." Defendant contends the judge's statement constituted a finding that the State failed to present proof of his intent to commit CSP3. We disagree. The statement merely reflected the court's observation during sentencing that it did not believe Defendant physically intended to harm M.R.; the statement did not constitute a finding that there was no evidence upon which the jury could determine that Defendant lacked the requisite general intent necessary to prove the offense of CSP. Cf. Ledbetter v. Webb, 103 N.M. 597, 604, 711 P.2d 874, 881 (1985) (trial court's verbal remarks can be used to clarify, but not to reverse, a finding).

Defendant also argues that the State presented no evidence concerning a police officer's responsibility when off duty. Defendant contends that the State's references to Defendant's status as a police officer left the jury with the impression that he was under a higher duty to observe the law than individuals who are not police officers. In prosecuting Defendant for CDM and CSP, the State was not required to offer evidence of Defendant's off-duty responsibilities. The State, however, did present evidence that, at all relevant times herein, Defendant was employed as a police officer and that during the commission of certain of the offenses he was in uniform. Evidence of Defendant's status as a police officer was material and relevant to the issue of whether he committed CSP3 using his status as a police officer to force M.R. to engage in fellatio or perform other delinquent acts. See Sec. 30-9-11(C). The State told the jury during closing argument that Defendant had a duty as a police officer not to drink with minors or to encourage them to become intoxicated. Defendant argues again that this conduct occurred while he was off duty. We decline to address this portion of Defendant's argument because he has failed to indicate on appeal that he objected on this ground or otherwise presented this argument to the trial court. See SCRA 1986, 12-213(A)(3) (Repl.1992) (requiring showing on appeal how issue was preserved below); see also SCRA 1986, 12-216(A) (Repl.1992) (to preserve question for...

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