State v. Orosco
| Decision Date | 07 January 1992 |
| Docket Number | Nos. 19956,19957 and 19999,s. 19956 |
| Citation | 833 P.2d 1146,113 N.M. 780,1992 NMSC 6 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Edmundo OROSCO, Defendant-Appellant. STATE of New Mexico, Plaintiff-Appellee, v. Juan TREVINO, Defendant-Appellant. Edmundo OROSCO, Petitioner, v. STATE of New Mexico, Respondent. |
| Court | New Mexico Supreme Court |
The first two of these three cases were filed in this Court after the court of appeals issued its opinion in each defendant's appeal from his district court convictions involving criminal sexual contact of a minor (CSCM) and certain other offenses. After both defendants had filed their briefs in the court of appeals, we held in State v. Osborne, 111 N.M. 654, 808 P.2d 624 (1991), that "unlawfulness" is an element of CSCM. In light of that decision, the court of appeals certified the first two cases to us, pursuant to NMSA 1978, Section 34-5-14(C) (Repl.Pamp.1990), to answer the following question: "whether the conviction[s] of criminal sexual contact of a child under the age of thirteen must be set aside and remanded for new trial in light of" Osborne. The opinions of the court of appeals raising this question and recommending how the other questions raised on each defendant's appeal should be resolved will be published together with this opinion.1 The facts in each case are set out in the applicable opinion. We accepted each certification, consolidated the two cases, and received simultaneous briefs from both sides addressing the issue certified.
Soon thereafter, each defendant applied for certiorari, requesting that we review the court of appeals' proposed disposition of the other issues discussed in the court's opinions. Although certiorari was not necessary for this Court to review these other issues, since jurisdiction over each defendant's entire case was transferred to this Court on our acceptance of the certifications,2 we granted each petition for certiorari and consolidated the two certiorari proceedings with the two cases on certification. We have now concluded, however, that one of the issues in defendant Trevino's appeal--the attack on his convictions for contributing to the delinquency of a minor as violating principles of double jeopardy--requires further consideration and should be severed from our review of the other issues raised by the appeals and by defendant Orosco's petition for certiorari. Accordingly, we have today issued an order vacating our previous consolidation of Trevino's certiorari proceeding with the other cases and severing our review of Trevino's convictions for contributing to the delinquency of a minor from our review of the other issues discussed in this opinion.
We now make the following rulings in disposing of the remaining three cases: (1) We agree with Judge Bivins in Trevino (No. 19,957), 113 N.M. at 810, 833 P.2d at 1176, and with his implicit determination in Orosco (No. 19,956), 113 N.M. at 800, 833 P.2d at 1166, that the omission of an instruction on the element of unlawfulness in the offense of criminal sexual contact of a minor under age thirteen was not, under the circumstances of each case, fundamental error requiring reversal. (2) In defendant Trevino's appeal (No. 19,957), we affirm his convictions except the convictions for contributing to the delinquency of a minor, for the reasons stated in this opinion and in the court of appeals' opinion. (3) In defendant Orosco's appeal (No. 19,956), we affirm his convictions for the reasons stated in this opinion and in the court of appeals' opinion.
We turn first to an explanation of the reasons for our answer to the question certified by the court of appeals.
In Osborne, we held that unlawfulness is an essential element3 of the offense of criminal sexual contact of a minor under age thirteen and that, under the circumstances of that case, omission of the element from the jury instruction on the offense constituted fundamental error requiring reversal. While the defendants in the present cases did not raise this ground for reversal in the court of appeals (since our decision in Osborne was issued after the briefing there was complete) and the court of appeals raised it on its own motion, defendants now seize on the point and argue that the absence of an instruction on an element of the crime is an error which deprives the trial court of jurisdiction and requires automatic reversal. To evaluate this contention requires us to review, once again, the concept of "jurisdictional error."
Beginning apparently with State v. Walsh, 81 N.M. 65, 463 P.2d 41 (Ct.App.1969), New Mexico courts have referred to a trial court's failure to instruct upon the essential elements of a crime for which a defendant has been convicted as jurisdictional error. See State v. Southerland, 100 N.M. 591, 594, 673 P.2d 1324, 1327 (Ct.App.), cert. denied, 100 N.M. 689, 675 P.2d 421 (1983). However, we have abandoned application of the jurisdictional error rule, thereby permitting a conviction to be affirmed, in cases where an element omitted from the instructions was not factually in issue. See State v. Hargrove, 108 N.M. 233, 236-37, 771 P.2d 166, 169-70 (1989) (); see also Ortiz v. State, 106 N.M. 695, 698, 749 P.2d 80, 83 (1988) (); cf. State v. Bell, 90 N.M. 134, 140-43, 560 P.2d 925, 931-34 (1977) ().
The error in the cases before us could be considered to fall within this exception to the rule of jurisdictional error. However, we decline to describe what occurred in these cases under the rubric "jurisdictional error." Some New Mexico cases, in addition to using the phrase to denote error which may be raised for the first time on appeal, have used it to indicate that a court which has failed to instruct upon an essential element lacked the competency to convict the defendant. See Southerland, 100 N.M. at 594, 673 P.2d at 1327; State v. Gunzelman, 85 N.M. 295, 300-01, 512 P.2d 55, 60-61 (1973). To the extent our cases have held or implied that this error deprived the court of competency to act, we disagree and disapprove such holdings or implications. We agree with Judge Bivins that the term "jurisdictional error" should be confined to instances in which the court was not competent to act and that it is inappropriate to equate jurisdictional error with other instances in which an error may be raised for the first time on appeal.4
In civil cases, a failure to state a claim upon which relief may be granted does not deprive the court of its subject matter jurisdiction. Sundance Mechanical & Util. Corp. v. Atlas, 109 N.M. 683, 687-90, 789 P.2d 1250, 1254-57 (1990). Of course, fundamental rights of an accused, which may not be present in the civil context, are implicated where the jury is permitted to return a conviction without having been instructed on an essential element of crime. This does not, however, diminish or eliminate the court's jurisdiction to act. We believe the principle governing failure to state a claim in a civil case applies to the deficiency in the instructions in these cases. By failing to instruct on an element of an offense, the trial court cannot really be said to have lost its competence to act in the matter. Rather, the deficiency in the instructions constitutes error, and it is the task of an appellate court to determine whether the error so undermined the reliability of the conviction or prejudiced the defendant's rights as to require reversal.
In Osborne, 111 N.M. at 662, 808 P.2d at 632, we determined that if the instructions omitted an element which was at issue in the case, the error could be considered fundamental: The question of guilt would be so doubtful that it would "shock the conscience" of this Court to permit the conviction to stand. In the present cases, however, the court of appeals has asked us to determine whether the rule of fundamental error applies in the opposite factual setting: "[A]bsent the essential element of 'unlawfulness' as required in Section 30-9-13, did fundamental error occur so as to require us to set aside the conviction[s]," in cases in which there was no claim or evidence that the touchings, if they occurred, were other than unlawful?
The element of unlawfulness clearly was not "in issue" in either of these cases. Defendant Orosco denied having been involved in the alleged incident. Trevino denied that the alleged incident took place. We do not look to the defendants' assertions alone, however, to reach this conclusion; we recognize that even if a defendant believed that he or she had performed an innocent or lawful touching, the defendant might prefer, as a matter of trial strategy or for some other reason, to deny that the incident occurred rather than attempt to establish that the touching, though it may have occurred, was lawful. The question is whether there was any evidence or suggestion in the facts, however slight, that could have put the element of unlawfulness in issue.
In neither case was there anything in the facts to suggest that the touchings, if they occurred, might have involved the provision of medical care, custodial care or affection, or any other lawful purpose. In Orosco, the principal (Villegas) was alleged to have fondled the child's intimate parts in the restroom of a bar. No other version of the facts relating to the manner of the touching was presented....
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