State v. Stevens
| Decision Date | 07 April 2014 |
| Docket Number | No. 32,860.,32,860. |
| Citation | 323 P.3d 901 |
| Parties | STATE of New Mexico, Plaintiff–Respondent, v. Lisa STEVENS, Defendant–Petitioner. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Jacqueline L. Cooper, Chief Public Defender, William A. O'Connell, Assistant Appellate Defender Santa Fe, NM, for Petitioner.
Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney, General Santa Fe, NM, for Respondent.
{1} We granted certiorari to review Defendant Lisa Stevens' convictions for second-degree criminal sexual penetration during the commission of a felony, child abuse, and contributing to the delinquency of a minor. The convictions were based on two separate incidents in which she directed her thirteen-year-old daughter to perform oral sex on Defendant's twenty-four-year-old boyfriend after the three injected methamphetamine together.
{2} Addressing a precedential legal issue, we clarify that simply causing another person to engage in otherwise lawful sexual intercourse at the same time a felony is being committed does not constitute the crime of criminal sexual penetration during the commission of a felony. Accordingly, we disapprove any language to the contrary in State v. Maestas, 2005–NMCA–062, ¶ 26, 137 N.M. 477, 112 P.3d 1134,rev'd on other grounds, State v. Maestas (Maestas II), 2007–NMSC–001, ¶¶ 2, 27, 140 N.M. 836, 149 P.3d 933.
{3} While we also hold that the jury should be instructed that the crime of criminal sexual penetration during the commission of a felony requires the commission of unlawful sexual activity with the victim of the felony, we conclude that the unobjected-to deficiency in the instructions did not constitute fundamental error in the circumstances of this case where Defendant's guilt was clear. In the absence of any error that would justify reversal, we affirm Defendant's convictions.
{4} Defendant was charged by criminal information with two counts of causing criminal sexual penetration during the commission of the felony of distribution of a controlled substance to a minor, contrary to NMSA 1978, Section 30–9–11(E)(5) (2007, amended 2009) (CSP II-felony). The predicate felony for CSP II-felony was distribution of a controlled substance to a minor, punishable as a second-degree felony by NMSA 1978, Section 30–31–21(B)(1) (1987). The charges also included two counts of child abuse, contrary to NMSA 1978, Section 30–6–1(D)(1) (2005, amended 2009); and two counts of contributing to the delinquency of a minor, contrary to NMSA 1978, Section 30–6–3 (1990).
{5} At trial Defendant's daughter testified that in the fall of 2007, while her parents were going through a divorce, she would often skip school and join Defendant and Defendant's boyfriend to get high on methamphetamine that Defendant and the boyfriend provided. The daughter also testified that Defendant originally introduced her to the drug.
{6} On two separate occasions a week or two apart in the fall of 2007 when the daughter, Defendant, and the boyfriend were injecting methamphetamine together, Defendant told her daughter to perform oral sex on the boyfriend. The daughter testified that, although Defendant did not force her to perform the oral sex on either occasion, she complied with Defendant's direction because she was “high [and] didn't really care.” Soon after those two incidents, Defendant and the boyfriend moved to Phoenix, Arizona.
{7} When questioned at trial about the dates of the two oral sex incidents, the daughter explained that, although she had originally estimated that they happened sometime between Halloween and Thanksgiving of 2007, she was unsure exactly when they occurred. After remembering that her father confronted her about the two incidents on Halloween of 2007, after he had learned about them, she realized the incidents must have actually occurred before instead of after Halloween. Her father became angry about what had happened, and the daughter ended up not being allowed to go to Phoenix with Defendant and the boyfriend as she had planned to do. On cross-examination at trial the daughter testified that it was difficult to recall the exact dates because she had been getting high so much during that time, but her best estimate was that it “probably happened like a couple of weeks before Halloween.”
{8} Neither Defendant nor the boyfriend took the stand to challenge the substance of the daughter's testimony, and Defendant relied instead on an alibi defense and a general credibility attack against the daughter. After the daughter testified and the State rested its case in chief, Defendant called the boyfriend's sister and mother, the only defense witnesses, to establish that Defendant and the boyfriend were in Phoenix from November 2, two days after Halloween, to December 10, 2007, eighteen days after Thanksgiving.
{9} After the defense rested, the State asked the court to allow an amendment to the allegations in the original criminal information to conform to the daughter's trial testimony that the two incidents probably occurred in October. Over the objection of Defendant, the trial judge allowed the amendment, which revised the alleged date range of the offense from “[o]n or about November 12, 2007” to “on, about or between the 1st day of October, 2007, through the 22nd day of November, 2007” in the charging documents and the resulting jury instructions.
{10} Defendant did not submit any requested jury instructions and made no objection to the instructions offered by the State or given by the court other than the objection to the change in terms describing the time frame when the offenses allegedly occurred.
{11} The jury found Defendant guilty on all counts. She was sentenced to fifteen years imprisonment for each of the two convictions for CSP II-felony to run consecutively with each other and concurrently with the remaining sentences of three years for each of the two child abuse convictions and eighteen months for each of the two contributing to the delinquency of a minor convictions. All but the first fifteen years of imprisonment were suspended.
{12} Defendant appealed her convictions to the Court of Appeals on two grounds: (1) that the convictions for CSP II-felony resulted from fundamental error because the jury was not instructed that the State had to prove that the sexual activity occurring during the commission of a felony was otherwise “criminal” and (2) that allowing the State to amend the description of the dates of the offenses during trial was reversible error. See State v. Stevens, No. 29,357, mem. op. at 2, 6–7, 2011 WL 704649 (N.M.Ct.App. Jan. 18, 2011) (nonprecedential). The Court of Appeals affirmed the convictions in an unpublished memorandum opinion, declining to reconsider its holding in Maestas that a conviction for CSP II-felony can be based on otherwise lawful sex occurring during the commission of a felony. Stevens, No. 29,357, mem. op. at 10, 17. We granted certiorari to review both of Defendant's issues.
{13} The jury was instructed that in order to convict Defendant of the crime of CSP II-felony, as charged in each of counts 1 and 2, the State had to prove beyond a reasonable doubt the following elements:
1. The defendant caused [the daughter] to engage in fellatio on [the boyfriend];
2. The defendant committed the act during the commission of distribution of a controlled substance to a minor;
3. Distribution of a controlled substance to a minor consist[s] of:
(a) transferring methamphetamine to [the daughter];
(b) [t]he defendant knew the controlled substance was methamphetamine;
(c) [the daughter] was 17 years of age or younger;
4. This happened in New Mexico on, about or between the 1st day of October, 2007, through the 22nd day of November, 2007.
{14} We address first the propriety of the elements portions of the instruction, then whether the elements description constituted fundamental error requiring reversal on appeal in the absence of proper preservation of the issue in the district court, and finally whether the amendment to the date description was reversible error.
A. The Offense of Criminal Sexual Penetration Committed During the Commission of a Felony Requires Proof of Unlawful Sexual Conduct Caused by the Commission of a Felony Against the CSP Victim
{15} “ ‘In determining what is or is not an essential element of an offense, we begin with the language of the statute itself, seeking of course to give effect to the intent of the legislature.’ ” State v. Swick, 2012–NMSC–018, ¶¶ 56, 58, 279 P.3d 747 (citation omitted) ( a second-degree murder conviction for fundamental error because a missing element in the jury instructions may have led to an unjust conviction). It is “ ‘the high duty and responsibility of the judicial branch of government to facilitate and promote the legislature's accomplishment of its purpose.’ ” State v. Smith, 2004–NMSC–032, ¶ 8, 136 N.M. 372, 98 P.3d 1022 (citation omitted). Although we look first to the language of the statute, we will reject “a formalistic and mechanical statutory construction when the results would be absurd, unreasonable, or contrary to the spirit of the statute.” Id. ¶ 9–10.
{16} The provisions of the criminal sexual penetration statute relevant to the issue before us are,
....
E. Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated:
(1) by the use of force or coercion on a child thirteen to eighteen years of age;
(2) on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate;
(3) by the use of force or coercion that results in personal injury to the victim;
(4) by the use of force or coercion when the perpetrator is aided or abetted by one or more persons;
(5) in the commission of any other...
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... ... {11} But other precedent of our Supreme Court demonstrates that an actual, though implicit, jury determination on an omitted element is not an absolute prerequisite to affirmance. State v. Stevens , 2014-NMSC-011, 323 P.3d 901, illustrates the narrow circumstance in which a conviction will be upheld because the jury's verdict, considered together with the given instructions and the parties legal and factual presentations, leaves no doubt that the jury would have found the omitted element ... ...
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