State v. Osborne

• Citation: 1991 NMSC 32,808 P.2d 624,111 N.M. 654
• Decision Date: 04 April 1991
• Docket Number: No. 19533,19533
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Donald Wayne OSBORNE, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 624

808 P.2d 624

111 N.M. 654

STATE of New Mexico, Plaintiff-Appellee, v. Donald Wayne OSBORNE, Defendant-Appellant.

No. 19533.

Supreme Court of New Mexico.

April 4, 1991.

Rehearing Denied April 16, 1991.

[111 NM 655] Jacqueline Robins, Chief Public Defender, Amme M. Hogan, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Tom Udall, Atty. Gen., Margaret B. Alcock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

MONTGOMERY, Justice.

Defendant Osborne challenges his conviction of criminal sexual contact of a minor (CSCM). In response to questions certified by the court of appeals, we are called upon to determine:

(1) Whether under our CSCM statute, which defines the offense as "unlawfully and intentionally touching or applying force to the intimate parts of a minor other than one's spouse ...", NMSA 1978, Sec. 30-9-13 (Cum.Supp.1990), "unlawfulness" is an element of the offense; and

(2) whether defendant's objection to a proposed instruction on unlawfulness as an element of the offense constituted waiver of any error based on the absence of an instruction to the jury on that issue.

We also address whether the absence of a jury instruction on unlawfulness, and consequent lack of any determination whether defendant's actions were justifiable or unlawful, renders the conviction so uncertain as to constitute fundamental error.

I.

Mr. Osborne was convicted on September 20, 1989, of one count of CSCM for having touched the buttocks of M.C., a seven-year old child, while he was hugging her. The buttock is included as an "intimate part" under the statute. Defendant also pled guilty to a charge of failure to appear at the time of trial on this and another charge. He was sentenced to three years in prison and two years of parole for CSCM, and to eighteen months in prison and one year of parole for the failure to appear, the sentences to run consecutively.

Defendant lived with his girlfriend Glenda Bell and her seven-year old daughter B.M.G. at Bell's home during the time in which the illegal touching is claimed to have occurred. The alleged victim, M.C., was a close friend of B.M.G. and a frequent visitor and overnight guest at the home. M.C. testified that she was a daily visitor at B.M.G.'s home and that she spent every Friday night of the school year there.

Bell worked at a nearby power plant, usually on a late shift, and therefore was frequently not at home during the evening. Defendant was often alone with the two girls while Bell was at work. He was unemployed during much of the time in question and spent much of his time around the house. He was the primary caregiver to B.M.G., doing the laundry, cooking, cleaning, and household maintenance.

M.C. claimed that defendant patted or rubbed her buttocks on one occasion when she was staying overnight with B.M.G. at the Bell residence. M.C. testified that the touching had occurred while she was hugging the defendant good-night, and that she was wearing panties and a long t-shirt at the time. The State presented no other witnesses or other evidence of the touching.

Defendant did not recall ever touching M.C.'s bottom and said that while it was possible he might have touched her bottom at some point, it would not have been in an inappropriate manner or with an inappropriate intent.

The State also presented evidence, through the testimony of M.C., that defendant had engaged in other improper sexual conduct toward the child which did not involve contact, but he was not charged with any of these other alleged acts. Defendant denied having committed any of these other acts alleged by M.C.

The issues in this case arise essentially from two sources: the CSCM statute and related uniform jury instruction (UJI), and defendant's objection at trial to an instruction proposed by the court that might have cured the problem. First, although the statute provides that the prohibited touching must be committed both "unlawfully and intentionally," the uniform jury instruction given in this case contains no reference to the term "unlawfully."¹ SCRA 1986, 14-925; see committee commentary to SCRA 1986, 14-921 (CSCM statute "requires that the sexual contact be both unlawful and intentional"). The instruction states only that to find the defendant guilty of criminal sexual contact of a child under the age of thirteen, the state must prove beyond a reasonable doubt that:

1. The defendant touched or applied force to the [intimate part] of [the victim];

2. [The victim] was 12 years of age or younger;

3. This happened in New Mexico on or about [date].

SCRA 1986, 14-925.

The trial judge, believing that "unlawfulness" was an element of the offense, was concerned about the absence of a UJI instruction on the unlawfulness of the touching. Our rules require the court to instruct the jury upon "all questions of law essential for a conviction of any crime submitted to the jury," SCRA 1986, 5-608(A), and we have held that the failure of the court to instruct the jury on the essential elements of a crime constitutes fundamental or jurisdictional error. See Jackson v. State, 100 N.M. 487, 672 P.2d 660 (1983); State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973). The trial judge also expressed concern that the CSCM statute may be unconstitutionally vague because it provides no guidance as to the circumstances under which a touching is "unlawful," and that the statute therefore may not provide citizens with adequate notice as to what kind of conduct is prohibited. Defendant initially asserted the unconstitutionality of the statute on grounds of vagueness and overbreadth as a principal defense in a pretrial motion to dismiss. Although the court denied the motion, the judge later said that the problem with the statute "became more apparent to the Court when jury instructions were being settled."

To correct what he thus perceived as a potentially critical shortcoming in the uniform jury instruction, the trial judge proposed, on his own motion, an additional instruction framing "unlawfulness" as an element of the offense and providing a definition of the term. The proposed instruction read:

In addition to the other elements of Criminal Sexual Contact of a Minor, the State must prove beyond a reasonable doubt that the behavior was unlawful. For the behavior to be unlawful it may be otherwise identical to lawful behavior, but inappropriate considering the sex, age and relationship of the participants, the manner of the touching, the time and place of occurrence and the surrounding circumstances.

Both parties objected to the proposed instruction. The State objected, fearing reversible error for failure to use the standard jury instruction. See State v. Jackson, 99 N.M. 478, 660 P.2d 120 (Ct.App.) (error to alter uniform jury instruction on the elements of a crime), rev'd on other grounds, 100 N.M. 487, 672 P.2d 660 (1983).

Defendant also objected to the instruction, thus giving rise to the second principal issue in this case, waiver. Defense counsel apparently believed that in the event of a conviction, defendant would be held on appeal to have waived his claim that the statute was unconstitutionally vague and overbroad if he acceded to the judge's corrective instruction. Given the dual objections to the proposed instruction on unlawfulness, the court, despite its concern about the failings of the uniform instruction, declined on its own initiative to give the instruction.

While defendant's appeal was pending in the court of appeals, this Court addressed the facial constitutionality of the CSCM statute in State v. Pierce, 110 N.M. 76, 792 P.2d 408 (1990). We determined that the CSCM statute, and its companion statute on criminal sexual penetration of a minor (CSPM), were not unconstitutionally vague or overbroad, noting that persons of ordinary intelligence could easily determine whether their conduct fell within the class of acts prohibited by the statute and that the statutes do not encourage arbitrary or discriminatory prosecution. Id. at 83, 792 P.2d at 415. This holding was premised, at least in part, on our determination that

the CSPM and CSCM statutes specifically limit the application of such offenses to instances wherein defendant's conduct in touching or penetrating the child is "unlawful" or "unlawfully" committed.... Neither CSPM nor CSCM prohibit the touching or penetration of the intimate parts of a minor for purposes of providing reasonable medical treatment to a child, nor do they criminalize nonabusive parental or custodial care.

Id. at 80, 792 P.2d at 412.

The court of appeals read this statement in Pierce as an apparent recognition that the CSCM statute makes "unlawfulness" an essential element of the offense of CSCM. However, the court recognized that it lacks the authority to declare insufficient a uniform jury instruction adopted by this Court. State v. Chavez, 101 N.M. 136, 139, 679 P.2d 804, 807 (1984). In order to examine the sufficiency of the instruction on the offense of CSCM, and to reconcile what it believed to be conflicting rulings from this Court on the issue of waiver of error in jury instructions, the court of appeals certified to us the two questions stated at the beginning of this opinion.

II.

The state maintains that use of the term "unlawfully" in the CSCM statute simply establishes an exception or defense of "lawfulness" to the described offense, providing the defendant with an opportunity to introduce evidence showing that his actions were within the scope of lawful activities such as routine child care. See State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977) (when statute creating offense includes an exception, the prosecution need not negate the exception; rather defendant must prove that he comes within it as a matter of defense). After an analysis of the CSCM statute, however, we here confirm what we implicitly recognized in Pierce--that unlawfulness is an essential element of the offense of CSCM as defined by our...