State v. Luna

Decision Date23 January 2018
Docket NumberA-1-CA-34709
Citation458 P.3d 457
Parties STATE of New Mexico, Plaintiff-Appellee, v. Gavino LUNA, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Hector H. Balderas, Attorney General, Santa Fe, NM, Jane A. Bernstein, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellant.


{1} The formal opinion filed in this case on December 13, 2017, is hereby withdrawn, and this opinion is substituted in its place.

{2} Defendant Gavino Luna was convicted by a jury of (1) criminal sexual contact of a minor (Child under 13) (CSCM) in the third degree, (2) intimidation of a witness, (3) unlawful exhibition of motion pictures to a minor, and (4) contributing to the delinquency of a minor (CDM) for forcing a minor to "engage in sexual acts and watch pornographic movies[.]" He was sentenced to eleven-and-one-half years' incarceration, less one day, to be followed by parole for five years to life. Defendant appeals his convictions, challenging: (1) his right to be free from double jeopardy, (2) the adequacy of two jury instructions given, (3) the sufficiency of the evidence supporting his convictions, (4) the admission of certain lay testimony, and (5) the admission of specific expert testimony. We affirm in part, reverse in part, and remand for further proceedings.


{3} Defendant's convictions stem from events that occurred the afternoon of May 3, 2013, when Defendant was looking after J.C. (Child), a nine-year-old boy, and Child's twelve-year-old sister because Child's mother was hospitalized. Defendant lived with Child's grandmother. According to Child, Defendant showed Child "ugly" movies that showed photographs of women "showing themselves." Child could not recall details of the movie, such as what the women in the movie were doing, but he explained that the women in the movie were wearing "red" clothes "like ... you wear outside" and that they kept their clothing on. There were no other people in the pictures with the women. Child did not like the movies because he found them "very ugly" because they "showed ... all of [the] parts ... of the women." Child did not want to look at the photos and movies and tried to leave the room but was not allowed; Child thought that if he ran, Defendant would get mad.

{4} Child also testified that at one point, Defendant pulled down Defendant's shorts and showed Child his "parts," which Child explained meant Defendant's penis. Child could not recall whether Defendant made Child touch any of Defendant's "parts," but he remembered that Defendant touched Child's penis two times: once with his hand, and once with his mouth. The contact occurred over Child's clothing and was not skin-to-skin. This made Child feel "very bad[ ]."

{5} Defendant told Child not to tell anyone and that he would take Child far away and leave Child there if Child told anyone. Child was afraid of Defendant and approximately one week after the incident told his mother what happened. Child's mother contacted the Deming, New Mexico Police Department, and Defendant was subsequently charged with and tried for criminal sexual penetration of a minor (CSPM) in the first degree, CSCM, intimidation of a witness, CDM, and unlawful exhibition of motion pictures to a minor. The district court granted Defendant's motion for a directed verdict on the CSPM charge based on a lack of sufficient evidence to support the charge but allowed all other counts to go to the jury. The jury convicted Defendant on all submitted counts, after which the district court entered judgment and sentenced Defendant. This appeal followed.


{6} Defendant makes the following challenges on appeal: (1) Defendant's convictions for CSCM, unlawful exhibition, and CDM violate his Fifth Amendment right to be free from double jeopardy; (2) the district court fundamentally erred in instructing the jury as to the elements of unlawful exhibition of motion pictures to a minor and CSCM; (3) there was insufficient evidence to support Defendant's convictions for unlawful exhibition of motion pictures, CDM, and intimidation of a witness; (4) the district court committed plain error in admitting the lay testimony of Detective Sergio Lara, the investigating officer, who testified that he recovered a "pornographic" video from Defendant's house; and (5) the district court committed plain error in admitting the expert testimony of Sylvia Aldaz-Osborn, a forensic interviewer who was allowed to watch and comment on Child's videotaped deposition when it was shown to the jury during trial. We address each issue in turn.

I. Whether Defendant's Convictions for CDM, CSCM, and Unlawful Exhibition of Motion Pictures to a Minor Violate His Right to Be Free From Double Jeopardy

{7} Defendant contends that the sentence imposed by the district court violates his Fifth Amendment right to be free from double jeopardy because the conduct underlying his CDM conviction is identical to that used as the basis for his CSCM and unlawful exhibition of motion pictures convictions. Defendant argues that the CDM statute is generic and multipurpose, requiring us to analyze his claim using the modified Blockburger approach articulated in State v. Gutierrez , 2011-NMSC-024, ¶ 58, 150 N.M. 232, 258 P.3d 1024. Such approach, Defendant argues, leads to the conclusion that the Legislature did not intend to punish separately Defendant's unitary conduct as specifically charged and argued by the State. The State contends that the CDM statute, while broad in scope, is not "unacceptably vague" and, therefore, we need not follow Gutierrez 's modified Blockburger approach. Thus, the State urges us to apply Blockburger 's strict elements test that was used in State v. Trevino , 1993-NMSC-067, 116 N.M. 528, 865 P.2d 1172, a pre- Gutierrez case holding that there was no double jeopardy violation for CDM and CSCM convictions. The State argues that Trevino should continue to control. We disagree. Under the current state of the law, we agree with Defendant that Gutierrez is now controlling, and we reverse his CDM conviction.

A. The Blockburger Test

{8} The Double Jeopardy Clause of the Fifth Amendment, made applicable to New Mexico by incorporation through the Fourteenth Amendment, "functions in part to protect a criminal defendant against multiple punishments for the same offense." State v. Swick , 2012-NMSC-018, ¶ 10, 279 P.3d 747 (internal quotation marks and citation omitted). Cases "where the same conduct results in multiple convictions under different statutes" are known as double description cases. Id. In a double description case, we apply the two-part test set forth in Swafford v. State , 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. We first ask "whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes." Id. Here, the State does not dispute that the same conduct—Defendant's sexual contact of and exhibition of "pornographic" movies to Child—formed the basis of his CDM, CSCM, and unlawful exhibition convictions. Thus, we turn to the second part of the Swafford test and focus "on the statutes at issue to determine whether the [L]egislature intended to create separately punishable offenses." Id.

{9} Our Supreme Court has described legislative intent as "the touchstone of our inquiry" because in this context "[i]t is well established that the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the [L]egislature intended." Gutierrez , 2011-NMSC-024, ¶ 50, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and citations omitted). Unless the Legislature has clearly and expressly authorized multiple punishments for the same conduct, we apply the following test articulated in Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine intent: "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one[ ] is whether each provision requires proof of a fact which the other does not." Id. As our Supreme Court explained in Swafford :

The rationale underlying the Blockburger test is that if each statute requires an element of proof not required by the other, it may be inferred that the [L]egislature intended to authorize separate application of each statute. Conversely, if proving violation of one statute always proves a violation of another (one statute is a lesser included offense of another, i.e., it shares all of its elements with another), then it would appear the [L]egislature was creating alternative bases for prosecution, but only a single offense.

Swafford , 1991-NMSC-043, ¶ 12, 112 N.M. 3, 810 P.2d 1223. Importantly, Swafford explained that "the Blockburger test is not a constitutional rule, but merely a canon of construction used to guide courts in deciphering legislative intent." Id. It, therefore, follows that the starting point in a Blockburger analysis—looking to the statute's language itself—is consistent with the general rule of statutory construction that "[i]n analyzing legislative intent, [courts] first look to the language of the statute itself." Swick , 2012-NMSC-018, ¶ 11, 279 P.3d 747 ; see State v. Suazo , 2017-NMSC-011, ¶ 16, 390 P.3d 674 (explaining that courts "begin with the plain language of the statute, which is the primary indicator of legislative intent." (alteration, internal quotation marks, and citation omitted)). It also follows that where the plain language of the statute is ambiguous, we engage in further interpretation in order to glean legislative intent. See State v. Almeida , 2011-NMCA-050, ¶ 11, 149 N.M. 651, 253 P.3d 941 ("[I]f a statute is vague or ambiguous and cannot be interpreted by a simple...

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