State v. Muller

Decision Date09 February 2022
Docket NumberA-1-CA-36501
Citation2022 NMCA 024
PartiesSTATE OF NEW MEXICO, Plaintiff-Appellee, v. DOMINIQUE MULLER, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Certiorari Denied, March 25, 2022

Released for Publication May 10, 2022.

Hector H. Balderas, Attorney General Benjamin Lammons, Assistant Attorney General Santa Fe, NM for Appellee.

Bennett J. Baur, Chief Public Defender William O'Connell Assistant Appellate Defender Santa Fe, NM for Appellant.



{¶1} Defendant Dominque Muller was convicted of fourth-degree criminal sexual penetration of a minor and second-degree criminal sexual penetration, perpetrated during the commission of the felony of giving alcohol to a minor. This case calls on us to clarify the mens rea for the offense of giving alcohol to a minor. The statute establishing that offense provides that a person violates the Liquor Control Act[1] by giving alcoholic beverages to a minor "if he knows or has reason to know that he is violating the provisions of this section[.]" NMSA 1978, § 60-7B-1(A) (2004, amended 2013).[2]Defendant takes issue with the jury instruction given at trial-an instruction that premised guilt on Defendant's awareness of the victim's status as a minor. Defendant contends that the "knows or has reason to know" provision of Section 60-7B-1(A) refers instead to a defendant's awareness that one's conduct is prohibited by law. We reject Defendant's reading of the statute and conclude instead that the "knows or has reason to know" provision of Section 60-7B-1(A) was correctly construed to premise guilt on Defendant's awareness that the victim was a minor.

{¶2} We also address whether the introduction of certain evidence not objected to at trial was plain error. Defendant contends the evidence, as demonstrative of his character or his commission of uncharged misconduct, violated Rule 11-404 NMRA and meets the standard for reversal. We conclude the evidence's introduction, even if error, does not rise to the level of plain error.

{¶3} There being no instructional or evidentiary error, we affirm Defendant's convictions.


{¶4} For several months in 2011, Defendant lived with his girlfriend and her fifteen-year-old daughter, M.V., in Torrance County. According to M.V., following Defendant's advances, she and Defendant had sexual intercourse on multiple occasions during those months. M.V.'s mother eventually learned of this, and, shortly after, the couple split and Defendant moved out of the home.

{¶5} About four years later, the State charged Defendant with three counts of criminal sexual penetration of a minor in the fourth degree, contrary to NMSA 1978, Section 30-9-11(G)(1) (2009), and one count of criminal sexual penetration (CSP) in the second degree, contrary to Section 30-9-11(E)(5). The latter CSP offense was charged as a second-degree felony because the State alleged it was perpetrated during the commission of another felony-specifically, giving M.V. alcohol. See § 30-9-11(E)(5) ("Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated . . . in the commission of any other felony[.]"); § 60-7B-1(F) (deeming giving alcoholic beverages to a minor, contrary to Section 60-7B-1(A), a fourth-degree felony).

{¶6} The case went to trial in January 2017. M.V. recounted four incidents in which she and Defendant had sexual intercourse. In the first, M.V.'s mother was away from home, and Defendant gave M.V. hard liquor before penetrating her on the couch. Another incident occurred some days later, in the bedroom Defendant shared with M.V.'s mother. The third was in Defendant's car, near a dog park in Albuquerque in Bernalillo County. And the fourth was on M.V.'s bed.

{¶7} The State began questioning M.V. about a fifth sexual encounter that supposedly also took place in the bedroom Defendant shared with M.V.'s mother. M.V. responded, "I know there was [such an incident], but I don't remember." When asked whether anything would help to refresh her memory, M.V. said no, "I try to forget all this." The State then ended its questioning about the incident.

{¶8} After the close of the State's evidence, the defense moved for a directed verdict on all four counts. The State clarified that the third incident, at the dog park, was not among the charges (presumably because it happened outside of Torrance County, where all the incidents alleged in the charging document occurred). The district court granted Defendant's motion as to two of the counts-involving the fourth incident on M.V.'s bed and the fifth incident M.V. could not recall-because the testimony of the incidents "blurred" and was "not specific." The district court denied the motion as to the other two counts-involving the drinking incident and the second incident that occurred in the bedroom Defendant shared with M.V.'s mother. The jury returned a guilty verdict on each of those counts.


{¶9} In challenging his convictions, Defendant raises two issues not brought to the district court's attention: (1) that the jury instruction on giving alcohol to a minor, the felony underlying his second-degree CSP conviction, was defective and (2) that testimony about his character and uncharged conduct was admitted in violation of Rule 11-404(B). Neither claim leads us to conclude that reversal is warranted.


{¶10} Defendant alleges the alcohol-to-a-minor jury instruction was defective because it omitted what he contends was the mens rea of the offense-i.e., that he knew giving alcohol to a minor was unlawful. Before addressing Defendant's contention, we first set forth the applicable standard of review and then lay out the relevant statutory text and the instruction given at trial.

A. Standard of Review

{¶11} Because Defendant did not object to the alcohol-to-a-minor jury instruction, we review this claim only for fundamental error. See Rule 5-608(D) NMRA (establishing that a claim of instructional error is preserved by objecting to the instruction before it is given); State v. Sena, 2020-NMSC-011, ¶ 34, 470 P.3d 227 (reviewing an unpreserved jury instruction argument for fundamental error). "The doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice." Sena, 2020-NMSC-011, ¶ 34 (internal quotation marks and citation omitted). We employ a two-part test when reviewing jury instructions for fundamental error. First, "we seek to determine whether a reasonable juror would have been confused or misdirected by the jury instruction." State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (internal quotation marks and citation omitted). "[J]uror confusion or misdirection may stem . . . from instructions which, through omission or misstatement, fail to provide the juror with an accurate rendition of the relevant law." Id. If this first inquiry reveals error, we move to the second part of the test "to determine whether the [d]efendant's conviction was the result of a plain miscarriage of justice." State v. Barber, 2004-NMSC-019, ¶ 19, 135 N.M. 621, 92 P.3d 633 (internal quotation marks and citation omitted).

{¶12} The first step thus requires us to determine whether the instruction given accurately sets forth the law. State v. Laney, 2003-NMCA-144, ¶ 39, 134 N.M. 648, 81 P.3d 591. Because there is no uniform jury instruction associated with the alcohol-to-minors statute, Section 60-7B-1, "the district court was required to give an instruction that substantially follows [the statute's] language[.]" State v. Luna, 2018-NMCA-025, ¶ 21, 458 P.3d 457 (alteration, internal quotation marks, and citation omitted); see also Rule 5-608(A) (requiring the court to "instruct the jury upon all questions of law essential for a conviction of [the] crime"). Given the conflict between the district court's reading of Section 60-7B-1 and how Defendant now contends it should have been read, construing that section is necessary to resolve this matter. Our review is therefore de novo. See State v. Farish, 2021-NMSC-030, ¶ 11, 499 P.3d 622.

{¶13} In construing a statute, we must ascertain and give effect to the intent of the Legislature. See id. To accomplish this, "[w]e first look to the plain meaning of the statutory language." Id. Where the statute is ambiguous, or "reasonably subject to multiple interpretations," we "proceed with further statutory analysis." State v. Almanzar 2014-NMSC-001, ¶ 15, 316 P.3d 183. In doing so, we bear in mind that "any law is passed against the background of all the law in effect at the time[,]" including the common law, and that, "[i]f no aspect of the background of law is clearly abrogated, it is presumed to be consistent with, if not incorporated into, new legislation." Sims v. Sims, 1996-NMSC-078, ¶ 24, 122 N.M. 618, 930 P.2d 153. To ascertain legislative intent in the face of an ambiguous statute, we also may consider "the history, background, and overall structure of the statute, as well as its function within a comprehensive legislative scheme." Almanzar, 2014-NMSC-001, ¶ 15 (internal quotation marks and citation omitted). We "read [the statute] as a whole, construing each section or part in connection with every other part or section so as to produce a harmonious whole[,]" State v. Baca, 2005-NMCA-001, ¶ 9, 136 N.M. 667, 104 P.3d 533 (internal quotation marks and citation omitted), read statutes in pari materia together to ascertain legislative intent, State v. Ogden, 1994-NMSC-029, ¶ 28, 118 N.M. 234, 880 P.2d 845, and construe the statute "so that no part of [it] is rendered surplusage or superfluous...

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