State v. Samora

Decision Date08 August 2016
Docket NumberNO. S–1–SC–34733,S–1–SC–34733
Citation387 P.3d 230,2016 NMSC 031
Parties State of New Mexico, Plaintiff–Appellee, v. Anthony Samora, Defendant–Appellant.
CourtNew Mexico Supreme Court

Bennett J. Baur, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Hector H. Balderas, Attorney General, Steven H. Johnston, Assistant Attorney General, Santa Fe, NM, for Appellee.


CHÁVEZ, Justice.

{1} Defendant Anthony Samora was accused of luring a sixteen-year-old male into his truck by deception, driving him to a secluded location in Albuquerque, and then forcibly penetrating him in the anus. A jury convicted Defendant of second-degree criminal sexual penetration in the commission of a felony (CSP–felony), contrary to NMSA 1978, Section 30–9–11(E)(5) (2007, amended 2009), and first-degree kidnapping, contrary to NMSA 1978, Section 30–4–1(A)(4) (2003). Due to sentencing enhancements, Defendant was sentenced to life imprisonment with the possibility of parole after thirty years for his CSP–felony conviction plus a consecutive eighteen-year sentence for his kidnapping conviction. In this direct appeal, Defendant brings a variety of challenges to both convictions, including a challenge to the district court for omitting that the sexual act must have been non-consensual when instructing the jury on CSP–felony.

{2} Because we conclude that it was fundamental error to omit the phrase "without consent" from the jury instructions relevant to CSP–felony, we must reverse Defendant's CSP conviction. The same fundamental error also infected the jury's findings with respect to Defendant's intent to inflict a sexual offense against the alleged victim, and we must therefore also reverse Defendant's kidnapping conviction. Accordingly, we remand this case to the district court, where Defendant may be retried on both charges.


{3} J.Z.1 was at a bus stop in downtown Albuquerque "bugging people for money" so that he could catch a bus home. Defendant approached him, stated that he knew J.Z.'s family, and offered to give J.Z. a ride home. J.Z. got into Defendant's pickup truck, and Defendant started driving.

{4} J.Z. testified that he soon noticed that Defendant was not driving J.Z. toward his house. J.Z. told Defendant he was driving the wrong way, and Defendant did not respond. Defendant eventually stopped the truck in a remote location under a highway underpass. Defendant then punched J.Z. in the head, and J.Z. became "dizzy." Defendant pulled down J.Z.'s pants, maneuvered him into a receptive position, got on top of J.Z., and penetrated J.Z.'s anus with his penis. J.Z. further testified that he tried to escape by opening the passenger-side door of Defendant's truck, but the door would not open. After a few minutes Defendant ejaculated and said, "Now I can take you home." Defendant dropped off J.Z. on the west side of Albuquerque at a gas station near a Walmart. J.Z. testified that he was afraid to call the police because he did not want to be arrested for a probation violation. He also testified that he fought back throughout the encounter but that Defendant threw him around and overpowered him. J.Z. was sixteen years old at the time of the alleged crime.

{5} Two days later, J.Z. was arrested for absconding from juvenile probation. In jail, J.Z. told a counselor that he had been sexually assaulted. J.Z. went through a sexual assault nurse examination (SANE exam) four days after the alleged attack. During the SANE exam, a nurse took swabs from J.Z.'s anus, penis, and mouth. The nurse found no evidence of any injuries on his body, and no DNA from Defendant was found on the swabs.

{6} After his release from custody about thirty days later, J.Z. told Jennifer Brown, his big sister under the Big Brothers Big Sisters program, what had happened to him and described his attacker, including the fact that the attacker wore a GPS monitor on his belt. Ms. Brown located a photograph of Defendant and Defendant's address on a website, and from that website photograph J.Z. recognized Defendant as his attacker. J.Z. drove to the address listed on the website, and J.Z. identified Defendant's truck as the truck in which he was attacked. State employees later matched the locations and sequence of Defendant's GPS coordinates to those described in J.Z.'s story.

{7} Defendant was indicted on two counts of criminal sexual penetration in the second degree "by the use of force or coercion on a child thirteen to eighteen years of age" (CSP–force/coercion). Section 30–9–11(E)(1). Each count was alternatively charged as CSP–felony. Section 30–9–11(E)(5). Defendant was also charged with criminal sexual contact of a minor in the fourth degree (CSC), contrary to NMSA 1978, Section 30–9–13(D)(1) (2003), and kidnapping, contrary to Section 30–4–1(A)(4). With respect to an allegation that Defendant forced J.Z. to engage in fellatio or touched J.Z.'s penis without his consent, the jury unanimously found Defendant not guilty of CSP–felony or CSP–force/coercion and not guilty of the charge of CSC. The jury also unanimously found Defendant guilty of CSP–felony with respect to the allegation of anal penetration and guilty of kidnapping. The jury hung on whether Defendant was guilty of CSP–force/coercion with respect to the allegation of anal penetration.

{8} At a separate sentencing proceeding, see NMSA 1978, § 31–18–26 (1996), the jury unanimously found by a preponderance of the evidence that Defendant had been convicted of two violent sexual offenses pursuant to NMSA 1978, Section 31–18–25(F) (1997, amended 2015), and was accordingly subject to a mandatory enhancement by a sentence of life imprisonment. Defendant was sentenced to nine years imprisonment enhanced by a term of life imprisonment with the possibility of parole in thirty years for the second-degree CSP–felony conviction and to eighteen years imprisonment for first-degree kidnapping, to be served consecutively.

A. Defendant's Right to a Speedy Trial Was Not Violated

{9} The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial." See also N.M. Const. art. II, § 14 ("[T]he accused shall have the right to ... a speedy ... trial."). Preventing prejudice to the accused is at the heart of the speedy trial right, which also emanates from "the concomitant ‘societal interest in bringing an accused to trial.’ " State v. Serros , 2016–NMSC–008, ¶ 4, 366 P.3d 1121 (quoting State v. Garza , 2009–NMSC–038, ¶ 12, 146 N.M. 499, 212 P.3d 387 ). To determine whether the accused has been deprived of his speedy trial right, this Court follows the four-factor test established by the United States Supreme Court in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and considers "(1) the length of delay in bringing the case to trial, (2) the reasons for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) the prejudice to the defendant caused by the delay." Garza , 2009–NMSC–038, ¶ 5, 146 N.M. 499, 212 P.3d 387 (citing Barker , 407 U.S. at 530, 92 S.Ct. 2182 ). The Court "weigh[s] these factors according to the unique circumstances of each case in light of the State and the defendant's conduct and the harm to the defendant from the delay.’ " Id. ¶ 5 (quoting Garza , 2009–NMSC–038, ¶ 13, 146 N.M. 499, 212 P.3d 387 ). "In reviewing a district court's ruling on a speedy trial violation claim, we defer to the court's findings of fact, and we weigh and balance the Barker factors de novo." Id. ¶ 20.

1. Length of the delay

{10} The Court must first determine whether the length of the delay is presumptively prejudicial. "The first factor, the length of delay, has a dual function: it acts as a triggering mechanism for considering the four Barker factors if the delay crosses the threshold of being presumptively prejudicial, and it is an independent factor to consider in evaluating whether a speedy trial violation has occurred." Serros , 2016–NMSC–008, ¶ 22, 366 P.3d 1121 (internal quotation marks and citation omitted). Defendant was arrested and indicted on September 8, 2008, and his trial began on November 12, 2013. The State therefore failed to bring the case to trial for more than five years. This delay is presumptively prejudicial, regardless of the complexity of the case. See Serros , 2016–NMSC–008, ¶¶ 21–23, 366 P.3d 1121 (determining that a delay of more than four years was "presumptively prejudicial irrespective of the case's complexity"). This sixty-two-month delay is extraordinary and weighs heavily against the State. Because the delay is presumptively prejudicial, we must consider the remaining Barker factors. Serros , 2016–NMSC–008, ¶ 22, 366 P.3d 1121.

2. Reasons for the delay

{11} The Court must evaluate "the reason the government assigns to justify the delay," which "may either heighten or temper the prejudice to the defendant caused by the length of the delay." Id. ¶ 29 (internal quotation marks and citation omitted). If the State deliberately attempts to delay the trial to hamper the defense, the delay weighs heavily against the State. Id. Negligent or administrative delay must be considered because "the ultimate responsibility for such circumstances must rest with the government," although such delay is not weighed as heavily against the State. Id. (internal quotation marks and citation omitted). However, "[a]s the length of delay increases, negligent or administrative delay weighs more heavily against the State." Id. Finally, " ‘appropriate delay,’ justified for ‘a valid reason, such as a missing witness,’ is neutral and does not weigh against the State." Id. (quoting Garza , 2009–NMSC–038, ¶ 27, 146 N.M. 499, 212 P.3d 387 ). Delay caused by a defendant weighs against that defendant. See Vermont v. Brillon , 556 U.S. 81, 90, 94, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009) (holding that the defendant's "deliberate attempt...

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