State v. Trevino
| Citation | 833 P.2d 1170,113 N.M. 804,1991 NMCA 85 |
| Decision Date | 02 July 1991 |
| Docket Number | No. 12375,12375 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Juan TREVINO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals his convictions on four counts of criminal sexual contact of a minor (criminal sexual contact), NMSA 1978, Sec. 30-9-13 (Cum.Supp.1990), and two counts of contributing to the delinquency of a minor (contributing), NMSA 1978, Sec. 30-6-3 (Repl.Pamp.1984). On appeal, defendant argues (1) insufficient evidence of use of authority under Section 30-9-13(A)(2)(a); (2) merger of the contributing counts and the criminal sexual contact counts; (3) error in the admission of evidence of other uncharged acts; (4) error in refusing his request to exclude a testifying police officer from the courtroom; (5) prosecutorial misconduct; (6) failure to give requested jury instructions; (7) violation of his right to counsel; and (8) unconstitutional denial of trial tapes on appeal. We address issues (1) and (2) thoroughly and the remaining issues summarily, indicating how we would rule on these issues but for the following question. Although not raised, we also discuss a question of possible fundamental error: whether the conviction of criminal sexual contact of a child under the age of 13 must be set aside and remanded for new trial in light of our supreme court's recent decision in State v. Osborne, 111 N.M. 654, 808 P.2d 624 (1991), which was decided after the parties filed their briefs. We believe this question involves a significant question of law under the constitution of the United States and also an issue of substantial public interest that should be determined by the supreme court. See NMSA 1978, Sec. 34-5-14(C)(1) & (2) (Repl.Pamp.1990). We are concerned that Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973) compels a decision by this court with which the supreme court ultimately might not agree. Additionally, as our discussion points out, resolution of a part of the issue may involve a choice between what appears to be conflicting decisions by the supreme court. Therefore, we certify the case to the New Mexico supreme court. We first discuss the factual background, then we discuss issues (1) and (2), followed by a summary discussion of issues (3) through (8). Finally, we address the issue we certify.
Defendant operated a go-cart track in Roswell, New Mexico. He employed J.C., age fourteen, and permitted J.J., age twelve, to "help out" at the track in exchange for free rides. J.C.'s principal duties included operation of the ticket booth, while J.J. usually retrieved used go-carts. According to testimony at trial, defendant fondled the genitals of both boys on several occasions during their tenure at the track. Defendant was thereafter charged and convicted of one count of criminal sexual contact of J.J., three counts of criminal sexual contact of J.C., and two counts of contributing.
Defendant challenges the sufficiency of the evidence with respect to the requirement in Section 30-9-13(A)(2)(a) that he used his position of authority to coerce one of the boys, J.C., to submit to criminal sexual contact. Section 30-9-13 states, in relevant part:
A. Criminal sexual contact of a minor in the third degree consists of all criminal sexual contact of a minor perpetrated:
* * * * * * (2) on a child thirteen to eighteen years of age when:
* * * * * *
(a) the perpetrator is in a position of authority over the child and uses this authority to coerce the child to submit[.]
Cf. Sec. 30-9-13(B) (). Here, there is no dispute that defendant's status as employer placed him in a position of authority. See NMSA 1978, Sec. 30-9-10(D) (Repl.Pamp.1984). Rather, we are asked to review the evidence to determine whether defendant used his position as employer in a manner contemplated by Section 30-9-13(A)(2)(a).
On appeal, we view the evidence in the light most favorable to the jury verdict, resolving all conflicts and indulging all reasonable inferences in support thereof. See State v. Brown, 100 N.M. 726, 676 P.2d 253 (1984). Use of a position of authority to coerce sexual contact may be proven inferentially. See State v. Gillette, 102 N.M. 695, 699 P.2d 626 (Ct.App.1985). In State v. Corbin, 111 N.M. 707, 809 P.2d 57 (Ct.App.1991), we recently addressed the issue of what constitutes "use of authority" in an employer/employee context. We stated that an authority figure uses his position to coerce a child where the child's submission is the result of undue influence or external forces. Id. Significantly, we held that sufficient evidence exists where a defendant's position of authority plays at least a partial role in the coercion. Id. In other words, the state does not have to prove that the coercion was exclusively the result of a defendant's exercise of authority over the child.
Here, there were several facts from which we believe the jury could infer coercion resulting from the employment relationship. First, the sexual contact took place on a job site owned by defendant, who had sole supervisory control not only over the premises but also over the victim. Second, and somewhat related to the first fact, defendant assigned J.C. to a small ticket booth where all of the incidents of sexual contact took place. That booth could only hold two or three people and it had a single entrance opposite the ticket window. J.C. testified that on the first incident, defendant came up behind him and began to fondle him sexually as he tended the booth. This continued on several separate occasions. J.C. did not tell others of the incident because he was scared and "didn't know how to handle it then." J.C. testified that on the final incident, defendant came up behind him, pulled both of their pants down, and apparently attempted anal penetration. J.C. then called his mother and tearfully told her what had happened while she drove him home. In light of defendant's ability to place J.C. in a confined, private workstation and J.C.'s testimony that he was scared, we believe the jury could infer that defendant used his position of authority to coerce J.C. to submit to the sexual contact. See State v. Corbin; State v. Gillette.
Defendant would have us disregard the realities of the situation by adopting a requirement that the state must prove employment coercion by direct evidence such as a direct threat of loss of a job if the victim did not submit, promise of a raise in exchange for sexual contact, or similar inducements related to the employment. We reject such a stringent requirement. It overlooks the nature of a minor. Common sense and experience teaches us that children generally yield to the wishes of adults. This is particularly true where an adult, such as an employer, has supervisory control. This is not to say that the position of employer in and of itself necessarily establishes the use of that position as coercion; however, where there exists sufficient connection between the employment and the sexual contact, as in the case before us, we hold that the jury can appropriately infer that the employer used coercion, as was done here.
Defendant makes two arguments under this point. First, he contends that because criminal sexual contact with a minor cannot be committed without also contributing to the delinquency of the minor, the latter must merge with the former. Second, defendant claims that the district court erred in enhancing both contributing convictions under the mandatory habitual statute because contributing is subsumed within the criminal sexual contact convictions. Because we reject defendant's merger argument and hold that the two offenses do not merge, it follows that the district court could enhance the contributing convictions.
The United States Supreme Court, in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) said: " Id. at 516, 110 S.Ct. at 2090, 109 L.Ed.2d at 561 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted)); see also State v. Ellenberger, 96 N.M. 287, 629 P.2d 1216 (1981). We are concerned here with the third protection.
The critical question for us to determine is whether the legislature intended to authorize multiple punishments for the same offense. State v. Tsethlikai, 109 N.M. 371, 785 P.2d 282 (Ct.App.1989); State v. Edwards, 102 N.M. 413, 696 P.2d 1006 (Ct.App.1984).
In recognizing contributing to the delinquency of a minor as a crime separate and distinct from any underlying violation of the law, the New Mexico Supreme Court in State v. Cuevas, 94 N.M. 792, 617 P.2d 1307 (1980), said that to hold otherwise would mean repealing the contributing statute. Further, we have no difficulty in discerning separate purposes for punishing the crimes of contributing and criminal sexual contact.
The courts have long recognized the legislative intent in enacting the contributing statute was to extend the broadest possible protection to children, recognizing that they may be led astray in innumerable ways. State v. Pitts, 103 N.M. 778, 780, 714 P.2d 582, 584 (1986). In contrast, recognizing the crime of criminal sexual contact protects the bodily integrity and personal safety of an individual. State v. Williams, 105 N.M. 214, 217, 730 P.2d 1196, 1199 (Ct.App.1986).
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