State v. Notah
| Decision Date | 26 August 2021 |
| Docket Number | A-1-CA-38623 |
| Citation | 503 P.3d 418 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Gerald NOTAH, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Hector H. Balderas, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM for Appellee
Bennett J. Baur, Chief Public Defender William O'Connell, Assistant Appellate Defender Santa Fe, NM for Appellant
{1} Defendant Gerald Notah appeals his conviction, following a jury trial, for attempt to commit second-degree criminal sexual contact of a minor (CSCM) under thirteen years of age, NMSA 1978, § 30-9-13(B)(1) (2003), in violation of NMSA 1978, Section 30-28-1(B) (1963). Defendant argues that (1) insufficient evidence supports his conviction, (2) the district court erred by denying his request for a jury instruction for a lesser included offense of attempt to commit third-degree CSCM under thirteen years of age, (3) the jury instruction listing the elements of second-degree CSCM constitutes fundamental error, and (4) Defendant's sentence to sex offender probation amounts to an illegal sentence. The State concedes that the district court erred by sentencing Defendant to sex offender probation and additionally raises the issue and concedes that the district court erred by sentencing Defendant to sex offender parole. The State also contends that the district court imposed an illegal sentence by sentencing Defendant to a period of incarceration less than the minimum required by the Criminal Sentencing Act. For the reasons that follow, we reverse Defendant's sentence, remand to the district court for resentencing, and otherwise affirm.
{2} The following was presented at trial. Victim was seven years old in December 2016. On the night in question, Victim's parents were out of town. Victim's grandmother and her step-grandfather, Defendant, were babysitting Victim and her siblings, including Victim's baby brother.
{3} Victim testified that Defendant entered the room where she was sleeping, lifted the blanket off her, pulled down her pajama pants and underwear, pulled down his own pants, and rubbed her arm while masturbating. Victim further testified that Defendant then walked to the other side of the bed, laid down next to her, and continued masturbating while rubbing her upper ribs over her shirt. Victim testified that she was afraid that Defendant was going to "touch [her] private parts and ... do weird stuff" to her. When she moved her body and pretended to wake up, Defendant got up quickly and left the bedroom.
{4} Victim's father (Father) testified that after he returned home, Victim told him about the incident with Defendant. At Father's request, Defendant and Victim's grandmother met with Father at Father's office the next day to discuss what happened. According to Father, Defendant admitted to trying to touch Victim and to masturbating in front of Victim.
{5} Defendant's version of events differed significantly from Victim's. He testified that on the night in question, he entered the room where Victim was sleeping because he needed to change the baby's diaper and the supplies were stored in that bedroom. Defendant claimed he merely touched Victim on the arm to move her aside and make room to change the baby's diaper on the bed. Defendant denied undressing Victim, masturbating in front of her, and touching her anywhere other than on her arm. Additionally, Defendant denied confessing to any wrongdoing when Father accused him of "playing with [him]self" in front of Victim.
{6} Defendant claims that insufficient evidence supports his conviction for attempt to commit second-degree CSCM under thirteen years of age. Specifically, he contends there was "no evidence" and "only speculation" that Defendant intended to touch Victim on an unclothed intimate part, pointing to Victim's testimony that Defendant only actually touched her on non-intimate parts.
{7} "Whether there is sufficient evidence to support a conviction is a question of law which we review de novo." State v. Neal , 2008-NMCA-008, ¶ 20, 143 N.M. 341, 176 P.3d 330. "The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction." State v. Montoya , 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[.]" State v. Salgado , 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation omitted), overruled on other grounds by State v. Martinez , 2021-NMSC-002, 478 P.3d 880. We "view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We measure the sufficiency of the evidence against the jury instructions given, which become the law of the case. State v. Jackson , 2018-NMCA-066, ¶ 22, 429 P.3d 674.
{8} "The inchoate crime of attempt to commit a felony ‘consists of an overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission.’ " State v. Green , 1993-NMSC-056, ¶ 21, 116 N.M. 273, 861 P.2d 954 (quoting Section 30-28-1). In this case, the felony at issue was second-degree CSCM under thirteen years of age. Accordingly, the State had the burden to prove three elements beyond a reasonable doubt in order for the jury to convict Defendant of attempt to commit second-degree CSCM under thirteen: (1) Defendant intended to commit the crime of second-degree CSCM under thirteen years of age; (2) Defendant began to do an act, which constituted a substantial part of second-degree CSCM under thirteen years of age, but failed to commit second-degree CSCM under thirteen years of age; and (3) the attempt happened in New Mexico on or about December 8 and 9, 2016. Defendant challenges the first element, arguing that there was "no evidence [rather] only speculation" that Defendant intended to touch any of Victim's intimate parts.
{9} We look to the evidence presented at trial to determine whether sufficient evidence supports the jury's finding that Defendant intended to commit the crime of second-degree CSCM under thirteen years of age. "The crime of attempt to commit a felony is a specific intent crime." State v. Johnson , 1985-NMCA-074, ¶ 10, 103 N.M. 364, 707 P.2d 1174. We recognize that "[s]pecific intent ... can seldom be proven by direct evidence[.]" Green , 1993-NMSC-056, ¶ 21, 116 N.M. 273, 861 P.2d 954. Therefore, we analyze Defendant's intent through Id. (internal quotation marks and citation omitted). Proof of a fact may be based on reasonable inferences from the evidence, but it may not be based on pure speculation. See State v. Slade , 2014-NMCA-088, ¶ 14, 331 P.3d 930 (); see also UJI 14-6006 NMRA ().
{10} In this case, Victim testified that Defendant entered the room where she was sleeping, lifted the blanket off her, pulled down her pajama pants and underwear, pulled down his own pants, and rubbed her arm while masturbating. Victim testified that Defendant then walked to the other side of the bed, laid down next to her, and continued masturbating while rubbing her upper ribs over her clothing. Victim testified that she was afraid that Defendant was going to "touch [her] private parts and ... do weird stuff" to her. When she moved her body and pretended to wake up, Defendant got up quickly and left the bedroom.
{11} From this conduct—partially undressing Victim, masturbating next to her, touching her, and lying down next to her while continuing to masturbate and touch her—the jury could conclude beyond a reasonable doubt that Defendant intended to commit second-degree CSCM by touching Victim's unclothed intimate parts. We note that although Defendant's admissions to Father were certainly relevant, Victim's testimony alone provided sufficient evidence to support Defendant's conviction. See State v. Hunter , 1933-NMSC-069, ¶ 6, 37 N.M. 382, 24 P.2d 251 (); see also State v. Soliz , 1969-NMCA-043, ¶ 8, 80 N.M. 297, 454 P.2d 779 ().
{12} Defendant argues that the district court erred by denying Defendant's request for a jury instruction for a lesser included offense of attempt to commit third-degree CSCM under thirteen years of age. Specifically, Defendant contends that (1) third-degree CSCM under thirteen years of age is a necessarily included offense for second-degree CSCM under thirteen years of age because the lesser charge criminalizes "all" contact with a child victim's intimate parts and the greater charge criminalizes contact with a child victim's "unclothed" intimate parts; and (2) because Victim testified that Defendant touched her ribs while masturbating, the evidence "tends to better prove an intent to touch [Victim's] breast...
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