State v. Williams
| Decision Date | 26 November 1986 |
| Docket Number | No. 9099,9099 |
| Citation | 105 N.M. 214,730 P.2d 1196,1986 NMCA 122 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. James Earl WILLIAMS, aka Clint Williams, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals from multiple convictions and sentences stemming from a residential burglary in Albuquerque. We address (1) defendant's two separate claims of double jeopardy; (2) claims of error as to jury instructions; and (3) a claim of judicial bias in sentencing. We affirm the convictions but vacate two of the sentences and remand for the entry of an amended judgment and sentence.
The state's principal witness testified that she unknowingly entered the home of her father-in-law while it was being burglarized by defendant and an accomplice. She said defendant threatened her with a silver candelabra, then dragged her into one of the bedrooms where he bound her hands, removed her clothing, and began touching her breasts and genital area. Defendant was joined in this activity by his accomplice who did the same thing. She said defendant then tied her to the bed, and that he and the accomplice left the residence, taking her car with them. Defendant was convicted of aggravated burglary and aggravated assault, robbery, kidnaping, assault with intent to commit criminal sexual penetration, four counts of criminal sexual contact, the unlawful taking of a vehicle, larceny over $2,500 and conspiracy to commit larceny. He was sentenced to consecutive terms of imprisonment for each conviction, resulting in a total term of imprisonment of thirty-seven and one-half years.
Defendant raises two separate claims of double jeopardy, both involving the concept of merger. He argues, first, that the four counts of CSC must be merged into one count; and secondly, that his conviction for assault with intent to commit CSP must be merged into the conviction for kidnaping. Both claims involve the constitutional prohibition on multiple punishments for the same offense. The first claim requires a determination of whether the separate acts of sexual contact constituted separate or multiple criminal offenses. See State v. Edwards, 102 N.M. 413, 696 P.2d 1006 (Ct.App.), cert. quashed, 102 N.M. 412, 696 P.2d 1005 (1985). The second claim requires a determination of whether the greater offense of kidnaping necessarily involved the commission of the lesser crime of assault with intent to commit CSP. See State v. Johnson, 102 N.M. 110, 692 P.2d 35 (Ct.App.1984).
The initial claim raises a question of first impression concerning the "allowable unit of prosecution" under the statutory offense of criminal sexual contact, NMSA 1978, Section 30-9-12 (Repl.Pamp.1984). See State v. Edwards. The state obtained four separate convictions on the theory that defendant committed one offense by touching the victim's breast, another by touching her genital area, both of which resulted in personal injury, and that he committed two additional offenses by touching the same areas, but was assisted the second time by his accomplice.
The proscription in Section 30-9-12 is as follows:
Criminal sexual contact is intentionally touching or applying force without consent to the unclothed intimate parts of another who has reached his eighteenth birthday * * * * For purposes of this section "intimate parts" means the primary genital area, groin, buttocks, anus or breast.
The statute makes the offense a misdemeanor when perpetrated through the use of force or coercion. It becomes a fourth degree felony under any of three aggravating circumstances: (1) the contact results in personal injury to the victim; (2) the perpetrator is aided or abetted by another; or (3) the perpetrator is armed with a deadly weapon. The state relied on the first aggravating factor for counts 6 and 7. It relied on the second aggravating factor for counts 8 and 9. Thus, two issues are presented: (1) whether Section 30-9-12 permits multiple counts based on multiple touchings, and (2) whether it permits multiple counts based on multiple aggravating factors.
The committee that drafted the uniform jury instructions applicable to Section 30-9-12 considered the latter question and determined that the aggravating factors should not be used to classify separate offenses:
Throughout the statutes on sexual offenses * * * alternative methods are set forth for committing the offenses. For example, there are three ways in which a defendant can commit criminal sexual contact in the fourth degree. * * * Separate instructions have been prepared for each of these methods, and where force or coercion is an essential element of a particular method, separate instructions for each definition of force or coercion have been prepared. There are, therefore, ten separate instructions setting forth the essential elements of the single crime of criminal sexual contact in the fourth degree.
In all cases where alternate methods of committing one offense are submitted to the jury, the defendant is being charged with only one offense and may be found guilty of only one offense.
Committee commentary, NMSA 1978, UJI Crim. 9.03 (Repl.Pamp.1982). The committee's interpretation of the statute is persuasive. See State v. Orona, 97 N.M. 232, 638 P.2d 1077 (1982). We agree that the enumeration of different aggravating factors, or alternative methods of committing fourth degree CSC, does not evince a legislative intent to authorize multiple punishments for the same act. Thus, defendant's conviction on counts 8 and 9, based on defendant's contact with the victim's breast and genital areas while aided by an accomplice, are not sustainable as separate offenses.
The question remains, however, whether the separate touchings of the breast and genital areas constitute separate offenses. In arguing that the offenses should be merged, defendant claims that the touching of the two areas constituted one continuing offense. He points to the victim's own testimony that the incident lasted no more than five minutes and that there was no break in activity by the defendant. We disagree, however, that these facts are dispositive. Defendant's premise is akin to the "same transaction" test which our supreme court rejected in State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975). Our courts have instead held that whether a particular course of conduct involves one or more punishable offenses is largely a question of the legislative intent in proscribing the conduct. See State v. Ellenberger, 96 N.M. 287, 629 P.2d 1216 (1981); State v. Edwards. In ascertaining legislative intent, the courts must consider the statutory elements of the crime and whether the evidence offered in support of one offense would sustain a conviction of the other offense. See State v. Ellenberger.
In this case, the facts offered in support of count 6 were that defendant "manually manipulated" the victim's breasts. The facts offered in support of count 7 were that defendant "pulled" the victim's "pubic hair and area." New Mexico courts have previously held that different operative facts will sustain separate convictions for the same offense. See State v. Johnson, 103 N.M. 364, 707 P.2d 1174 (Ct.App.), cert. quashed, 103 N.M. 344, 707 P.2d 552 (1985) (); State v. Smith, 94 N.M. 379, 610 P.2d 1208 (1980) (); State v. Cuevas, 94 N.M. 792, 617 P.2d 1307 (1980) ().
We agree with the state that the legislatively-protected interest under the CSP and CSC statutes is the bodily integrity and personal safety of the individual. See State v. Srader, 103 N.M. 205, 704 P.2d 459 (Ct.App.), cert. denied, 103 N.M. 177, 704 P.2d 431 (1985). In defining "intimate parts," the CSC statute lists five separate protected areas: the genital area, groin, buttocks, anus and breast. We hold that the legislative intent was to protect the victim from intrusions to each enumerated part. Thus, under the facts of this case, which showed distinctly separate touchings of two of the protected areas, defendant was properly convicted and separately sentenced for counts 6 and 7. Our decision here is limited. Separate punishments are sustainable where evidence shows distinctly separate touchings to the different parts. However, where alternative methods of committing criminal sexual contact are submitted to the jury, the accused may be found guilty of only one offense.
Defendant was convicted of kidnaping by holding for service. He claims that double jeopardy requires the merger of the kidnaping and the assault with intent to commit criminal sexual penetration convictions. Defendant concedes that the statutory elements for the two offenses are different. Compare NMSA 1978, Secs. 30-4-1(A)(3) & -3-3 (Repl.Pamp.1984). However, he argues that the assault offense is an included offense of kidnaping under the facts of the case. See State v. Jacobs, 102 N.M. 801, 701 P.2d 400 (Ct.App.1985). We disagree.
In Jacobs, this court concluded that it was factually--and hence legally--impossible for the defendant to have committed the greater offense of aggravated burglary without necessarily committing the lesser offense of dangerous use of explosives. The same is not true here. The victim testified that defendant restrained her in the kitchen and dragged her into the bedroom, where he knocked her to the floor and tied her hands and feet. The victim at this point thought she was going to be raped. Defendant, however,...
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