State v. Trevino

• Citation: 1993 NMSC 67,116 N.M. 528,865 P.2d 1172
• Decision Date: 10 November 1993
• Docket Number: No. 19997,19997
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Juan TREVINO, Defendant-Petitioner.
• Court: Supreme Court of New Mexico

Page 1172

865 P.2d 1172

116 N.M. 528

STATE of New Mexico, Plaintiff-Respondent, v. Juan TREVINO, Defendant-Petitioner.

No. 19997.

Supreme Court of New Mexico.

Nov. 10, 1993.

[116 N.M. 529] Sammy J. Quintana, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-petitioner.

Tom Udall, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-respondent.

OPINION

RANSOM, Chief Justice.

Juan Trevino appealed to the Court of Appeals from his convictions on four counts of criminal sexual contact of a minor in the third degree (CSCM) under NMSA 1978, Section 30-9-13(A) (Cum.Supp.1990), and two counts of contributing to the delinquency of a minor (CDM) under NMSA 1978, Section 30-6-3 (Repl.Pamp.1984). The Court of Appeals affirmed except as to one question certified for review by this Court pursuant to NMSA 1978, Section 34-5-14(C) (Repl.Pamp.1990). See State v. Trevino, 113 N.M. 804, 806, 833 P.2d 1170, 1172 (Ct.App.1991). Trevino petitioned this Court for a writ of certiorari, requesting that we review issues not certified by the Court of Appeals. Although it was unnecessary because jurisdiction of the entire case was transferred to this Court by the certification, see Collins ex rel. Collins v. Tabet, 111 N.M. 391, 404 n. 10, 806 P.2d 40, 53 n. 10 (1991) (certification under Section 34-5-14(C) brings entire case under Supreme Court jurisdiction), we granted certiorari and consolidated this case with State v. Orosco, which is reported at 113 N.M. 780, 833 P.2d 1146 (1992). In Orosco this Court determined that Trevino's attack on his convictions for CDM as violating principles of double jeopardy required further consideration, and that portion of his appeal was severed. See id. at 781-82, 788, 833 P.2d at 1147-48, 1154. The parties submitted supplemental briefs, and the issues addressed therein are the basis for our opinion today. All other issues raised on appeal in this case were affirmed in Orosco. Id. at 787, 833 P.2d at 1153.¹

The State charged Trevino with CSCM offenses against two boys under Section 30-9-13(A), but because of different circumstances separate provisions of the statute applied. As will be discussed below, J.C. was fourteen and employed by Trevino; J.J. was twelve. With respect to J.C., Trevino was convicted of three counts of CSCM and one count of CDM. With respect to J.J., he was convicted of one count of CSCM and one count of CDM. The Court of Appeals held that "although both the crimes of [CSCM] and [CDM] were violated by the [same act of] unlawful and intentional touching of the minor's genitals, two offenses were committed." Trevino, 113 N.M. at 808, 833 P.2d at 1174. The Court of Appeals, applying the elements test set out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and looking at the legislative intent underlying the two statutes, concluded that convictions under both statutes for the same conduct did not violate double jeopardy. We affirm the convictions and the holding of the Court of Appeals.

Double Jeopardy. Protection against multiple punishments for the same offense is one of three types of protection embodied in the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991).² In Swafford, this Court adopted a two-step process for double jeopardy analysis. Id. at 13, 810 P.2d at 1233. The first step is to determine "whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes." Id. In this case, it is conceded that the same conduct formed the basis for convictions under both statutes. Therefore, we turn to the second step of the analysis, a determination of "whether the legislature intended to create separately punishable offenses." Id. When it intends to do so, the legislature may impose multiple punishments for the same offense. Double jeopardy principles in cases involving multiple punishments (like this one) are intended only to prevent imposition of a greater sentence than the legislature intended. Id. at 7, 810 P.2d at 1227; see also Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) (explaining that legislatures define crimes and fix punishments and the double jeopardy guarantee is a restraint on courts and prosecutors). If this Court were to find that it was not the legislature's intention to impose separate sentences for CSCM and CDM when the same conduct constituted both offenses, Trevino's convictions for CDM would have to be reversed.

We begin the second step of our double jeopardy analysis by looking to see if the legislature clearly expressed an intention to provide multiple punishment. We find no clear expression of such an intent and continue our analysis.

--The two crimes each require proof of a fact that the other does not. As we indicated in Swafford, the Blockburger test is a means of divining legislative intent by comparing the two statutes to see if each requires proof of a fact that the other does not. 112 N.M. at 8, 810 P.2d at 1228. In applying the Blockburger test, the evidence and proof offered at trial are immaterial; only the elements of the statutes are considered. Id. If one statute subsumes the other, i.e., if each offense does not require proof of a fact in addition to the facts required to prove the other, double jeopardy precludes multiple punishments. Id. at 14, 810 P.2d at 1234.

[116 N.M. 531] --CSCM requires proof of a fact not required to prove CDM. The elements of CSCM differ for the two victims in this case, so we must examine the two versions separately. Under Section 30-9-13(A)(1), the elements are: (1) an unlawful and (2) intentional (3) touching or applying of force to the intimate sexual parts of the victim, or causing the victim to touch the intimate sexual parts of the defendant (4) when the victim is a minor less than thirteen years old. Under Section 30-6-3, the elements of CDM are: (1) commission of an act or omission of the performance of a duty (2) that causes or tends to cause or encourage (3) the delinquency (4) of any person under the age of eighteen. Under our uniform jury instructions, the jury in this case was instructed under CDM that they also must find that Trevino's acts were intentional. See SCRA 1986, 14-141 (general criminal intent instruction--given except when crime requires specific intent or has no intent requirement). CSCM of a minor under the age of thirteen requires proof of a fact that CDM does not--an unlawful sexual touching.

The elements of Section 30-9-13(A)(2) are the same as Section 30-9-13(A)(1), except the age of the victim must be between thirteen and eighteen, and the perpetrator must be a person in a position of authority over the child and use that authority to coerce the child to submit. CSCM of a minor between the ages of thirteen and eighteen requires proof of an unlawful sexual touching and adds the element of coercion, neither of which is needed to prove CDM.

--CDM requires proof of a fact not required to prove CSCM. CDM requires proof that the act of the defendant contributed to the "delinquency" of a minor.³ We always have relied on juries to determine what acts constitute contributing to delinquency in a particular case. "The common sense of the community, as well as the sense of decency, the propriety, and the morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it." State v. McKinley, 53 N.M. 106, 111, 202 P.2d 964, 967 (1949) (quoting State v. Millard, 18 Vt. 574, 577 (1846)).⁴

The appellate courts of this state consistently have upheld findings that an unlawful sexual touching (or penetration) supported a conviction for CDM. See State v. Favela, 91 N.M. 476, 478, 576 P.2d 282, 284 (1978) (upholding conviction for CDM when adult female had consensual intercourse with fifteen-year-old boy), overruled on other grounds by State v. Pitts, 103 N.M. 778, 780, 714 P.2d 582, 584 (1986) (holding defendant need not be adult to commit CDM); McKinley, 53 N.M. at 110-11, 202 P.2d at 967 (holding man's act of having sex with fourteen-year-old girl could constitute CDM); State v. Corbin, 111 N.M. 707, 711, 809 P.2d 57, 61 (Ct.App.) (evidence that defendant attempted to touch minor sexually, showed him a Playboy magazine, encouraged him to "get it hard," and told him to unbutton his pants was sufficient to support conviction for CDM), cert. denied, 111 N.M. 720, 809 P.2d 634 (1991); State v. Leyba, 80 N.M. 190, 192, 453 P.2d 211, 213 (Ct.App.) (upholding CDM conviction for touching the private parts of and talking indecently to a minor), cert. denied, 80 N.M. 198, 453 P.2d 219 (1969). The defendant in State v. Dodson, 67 N.M. 146, 353 P.2d 364 (1960), was charged with CDM for engaging in "certain illicit sex practices" with a minor. She moved to dismiss the indictment on the grounds there was insufficient evidence to substantiate the charge. The trial court denied the motion and this Court affirmed, stating in dicta that: "We can conceive of few acts which would more manifestly tend to cause delinquency than those charged here...." Id. at 149, 353 P.2d at 367.

The fact that we have upheld jury findings that sexual conduct with a minor contributed to delinquency does not mean that juries always must find that such conduct contributes to delinquency. While unlawful sexual touching of a minor factually may evince a tendency to cause or encourage delinquency, even manifestly so in particular circumstances, it does not do so as a matter of law. In a given case, the evidence may belie a finding, beyond a reasonable doubt, that the sexual contact tended to cause or encourage delinquency. Such a case may involve contact with a sleeping child. Contributing to delinquency, therefore, is a fact separate from an unlawful sexual touching, and thus...