State v. Tapia, 32,277.

Docket NºNo. 35,182.
Citation347 P.3d 738
Case DateFebruary 17, 2015
CourtCourt of Appeals of New Mexico

347 P.3d 738

STATE of New Mexico, Plaintiff–Appellee
v.
Augustine TAPIA, Defendant–Appellant.

32,277.
No. 35,190.
No. 35,182.

Court of Appeals of New Mexico.

Feb. 17, 2015.
Certiorari Denied, April 10, 2015,
Certiorari Denied, April 20, 2015,


347 P.3d 740

Hector H. Balderas, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender, David Henderson, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

HANISEE, Judge.

{1} Defendant appeals his conviction for five counts of criminal sexual penetration of a minor (CSPM), five counts of criminal sexual contact of a minor (CSCM), and four counts of kidnapping. He asserts: (1) there was insufficient evidence presented at trial to support all but one of his convictions for CSPM and CSCM; (2) the State failed to prove two counts of CSPM were separate and distinct from one another; (3) the conduct

347 P.3d 741

charged as kidnapping was incidental to sexual assault and not a separate crime; (4) the jury instructions were contradictory, resulting in fundamental error; and (5) the district court erred by allowing a non-expert witness to testify that her findings were consistent with sexual abuse. We affirm in part, reverse in part, and remand for resentencing in accordance with this Opinion.

BACKGROUND

{2} Defendant's convictions are a product of multiple instances of sexual assault perpetrated against his eight-year-old daughter, H.T., and his four-year-old step-daughter, L.T. Both victims testified at trial, as did the physician's assistant (the PA) who examined the girls following the sexual assaults. Due to the numerous counts of conviction and the many issues on appeal, we reserve further discussion of the underlying facts for the accompanying analysis.

CSPM CONVICTIONS

{3} A jury convicted Defendant of five instances of CSPM: Counts 2, 8, 11, 12, and 13.1 Counts 2 and 13 charged Defendant with digitally penetrating the vaginas of L.T. and H.T., respectively. Count 8 charged Defendant with engaging in anal intercourse with H.T. Counts 5, 7, 11, and 12 arose from Defendant engaging in what constitutes the statutory definition of “sexual intercourse” with L.T. and H.T.

{4} Defendant appeals his CSPM convictions on Counts 2, 8, 11, and 13, asserting that there was insufficient evidence presented at trial to support digital vaginal penetration, anal penetration, or “sexual intercourse.”2 Our sufficiency of the evidence review is a two-step process: we first view the evidence in the light most favorable to the verdict, and then we legally determine “whether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.” State v. Apodaca, 1994–NMSC–121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation marks and citation omitted). We do not reweigh the evidence, nor will we substitute our judgment for that of the fact finder so long as the record contains sufficient evidence to support the verdict. State v. Sutphin, 1988–NMSC–031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. “Where ... a jury verdict in a criminal case is supported by substantial evidence, the verdict will not be disturbed on appeal.” Id.

{5} “Criminal sexual penetration” as defined by NMSA 1978, Section 30–9–11(A) (2009), in relevant part, is “the unlawful and intentional causing of a person to engage in sexual intercourse ... or the causing of penetration, to any extent and with any object, of the genital or anal openings of another [.]” UJI 14–982 NMRA defines “sexual intercourse” as “the penetration of the vulva or vagina, the female sex organ, by the penis ... to any extent.” The “vulva” is defined as “the external parts of the female organ of sexual intercourse[,] ... composed of the major and minor lips, the clitoris and the opening of the vagina[,]” and the “vagina” is “the canal or passage for sexual intercourse in the female, extending from the vulva to the neck of the uterus.” UJI 14–981 NMRA.

A. Counts 2 and 13: Digital Vaginal Penetration

{6} The State alleged in Counts 2 and 13 that Defendant penetrated the vaginas of L.T. and H.T., respectively, with his finger. At trial, L.T. testified that one night when she was alone in the living room with Defendant, he “rubbed” her “privates” with his hand. L.T. did not provide any additional details about specifically how or where Defendant touched her. The PA who examined L.T. for evidence of sexual abuse, later that same day, testified that she observed redness on L.T.'s labia majora and minora, including

347 P.3d 742

a small scratch to the right labia minora. The PA indicated that her observations could be the result of sexual abuse, L.T.'s underwear being too tight, scratching herself, “or something like that.” Similarly, as to Count 13, H.T. testified that Defendant would “slide his fingers up and down on [her] private part.” H.T. elaborated that Defendant would not move his fingers “in and out” but “up and down.” When the PA examined H.T. several days later, she did not observe any injuries.

{7} As to each count, the jury was instructed that in order to find Defendant guilty of CSPM, it must find that the State proved that Defendant “caused the insertion, to any extent, of a finger into the vagina” of L.T. and H.T. Although it was instructed as to the statutory definitions of both “vagina” and “vulva,” the jury was not told that penetration of the latter was sufficient to find Defendant guilty of either or both counts. Defendant contends that this exclusion is fatal to the convictions. The State answers that use of the term “vagina” in the jury instructions for Counts 2 and 13 was sufficient to support convictions for CSPM premised upon the testimony of L.T. and H.T. because “vagina” as contained in the jury instruction “was meant to convey not just the vaginal canal but rather the area of the vulva or genital openings of the female.” The State relies on this Court's clarification in State v. Tafoya that the definition of sexual intercourse, as contained within the jury instruction for CSPM, includes not only penetration of the vagina but of the vulva as well. 2010–NMCA–010, ¶ 52, 147 N.M. 602, 227 P.3d 92.

{8} It is true that in Tafoya, we held that the definition of “sexual intercourse” includes penetration not just of the vagina, but also of the vulva; thus, we concluded that the CSPM statute was meant to be inclusive of the “broader sense of the female genitalia as opposed to just the vaginal canal.” Id. Indeed, the statutory definition of vagina is inclusive of the vulva. See UJI 14–981 (stating that the “vagina” is “the canal or passage for sexual intercourse in the female, extending from the vulva to the neck of the uterus”). Our holding in Tafoya in no way altered the anatomical definition of “vulva” and “vagina” as defined by our Supreme Court, see UJI 14–981, when it amended UJI 14–982 (2010), nor do we view Tafoya as requiring anatomical specificity in every case in which the sexual organs of a child have been penetrated to the slightest degree. Compare UJI 14–982 (2009) with UJI 14–982 (2010) (modifying the definition of sexual intercourse to include penetration of the vagina as well as the vulva). To the contrary, the statutory language clearly instructs that CSPM occurs if the Defendant engaged in an act of “penetration[ ] to any extent.” Section 30–9–11(A). Although there may be circumstances of a given case that warrant scrutiny of particular parts of the genitalia, pursuant to the sufficiency of the evidence standard of review, we review the evidence in the light most favorable to the verdict this jury rendered. See Sutphin, 1988–NMSC–031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (stating that under a sufficiency of the evidence standard of review, we “must view the evidence in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict”).

{9} Moreover, at trial Defendant elected not to challenge the CSPM charges against him based upon any absence of definitional distinctions, but rather upon the victims' lack of credibility and the factual impossibility of the occurrences of the charged crimes. Defendant's closing argument was premised upon the difficulty of defending this case, stating “how does one ... explain [that] a child isn't being truthful[?] We all want to believe that a child wouldn't lie about something like this[.]” Yet Defendant now argues that the evidence and the inferences from the evidence do not support the jury verdict, not from the standpoint of non-occurrence, but from the asserted failure of the State to present evidence of precisely which portion of the victims' genitalia were penetrated by his fingers. When reviewing the presence or absence of substantial evidence on appeal, however, we need not be so anatomically exacting. Here, the nature of the acts testified to by both victims involved physical interaction that was skin to skin, and during which Defendant rubbed or repetitiously slid

347 P.3d 743

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42 practice notes
  • State v. Garcia, No. A-1-CA-35812
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 23, 2019
    ...of the assault beyond that inherent to the underlying crime. Id. ¶¶ 34, 36, 37, 39 ; see also State v. Tapia , 2015-NMCA-048, ¶ 31, 347 P.3d 738.450 P.3d 428 {20} According to Victim, she encountered Defendant in an outdoor shed and, upon seeing him, tried to retreat through the shed’s open......
  • State v. Ocon, A-1-CA-37575
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 8, 2021
    ...violation that amounts to fundamental error."). Although we are not bound by the State's concession, State v. Tapia , 2015-NMCA-048, ¶ 31, 347 P.3d 738, we agree that our precedents require reversal.12 {26} Section 30-22-1 has four subsections that provide "alternative means by which the of......
  • State v. Serrato, A-1-CA-36381
    • United States
    • New Mexico Court of Appeals of New Mexico
    • February 17, 2020
    ...and enticement of a child were the same. While we do not need to accept the State's concession, State v. Tapia , 2015-NMCA-048, ¶ 31, 347 P.3d 738, we agree that Defendant's convictions for kidnapping and enticement of a child were premised upon unitary conduct: Defendant telling Victim tha......
  • State v. Jackson, No. A-1-CA-36400
    • United States
    • New Mexico Court of Appeals of New Mexico
    • February 26, 2020
    ...a household member and CSC was unitary. While we are not bound by the State's concession, see State v. Tapia , 2015-NMCA-048, ¶ 31, 347 P.3d 738, we agree. As the jury instructions demonstrate, both of Defendant's convictions were premised on Defendant touching Victim with a knife, and the ......
  • Request a trial to view additional results
39 cases
  • State v. Garcia, No. A-1-CA-35812
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 23, 2019
    ...of the assault beyond that inherent to the underlying crime. Id. ¶¶ 34, 36, 37, 39 ; see also State v. Tapia , 2015-NMCA-048, ¶ 31, 347 P.3d 738.450 P.3d 428 {20} According to Victim, she encountered Defendant in an outdoor shed and, upon seeing him, tried to retreat through the shed’s open......
  • State v. Ocon, A-1-CA-37575
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 8, 2021
    ...violation that amounts to fundamental error."). Although we are not bound by the State's concession, State v. Tapia , 2015-NMCA-048, ¶ 31, 347 P.3d 738, we agree that our precedents require reversal.12 {26} Section 30-22-1 has four subsections that provide "alternative means by which the of......
  • State v. Serrato, A-1-CA-36381
    • United States
    • New Mexico Court of Appeals of New Mexico
    • February 17, 2020
    ...and enticement of a child were the same. While we do not need to accept the State's concession, State v. Tapia , 2015-NMCA-048, ¶ 31, 347 P.3d 738, we agree that Defendant's convictions for kidnapping and enticement of a child were premised upon unitary conduct: Defendant telling Victim tha......
  • State v. Jackson, No. A-1-CA-36400
    • United States
    • New Mexico Court of Appeals of New Mexico
    • February 26, 2020
    ...a household member and CSC was unitary. While we are not bound by the State's concession, see State v. Tapia , 2015-NMCA-048, ¶ 31, 347 P.3d 738, we agree. As the jury instructions demonstrate, both of Defendant's convictions were premised on Defendant touching Victim with a knife, and the ......
  • Request a trial to view additional results

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