State v. Wilson

• Decision Date: 10 June 1993
• Docket Number: No. 12634,12634
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Charles G. WILSON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 656

868 P.2d 656

117 N.M. 11

STATE of New Mexico, Plaintiff-Appellee, v. Charles G. WILSON, Defendant-Appellant.

No. 12634.

Court of Appeals of New Mexico.

June 10, 1993.

Certiorari Granted Aug. 30, 1993.

[117 N.M. 12] Tom Udall, Atty. Gen., Max W. Shepherd, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

MINZNER, Chief Judge.

Defendant appeals his convictions for kidnapping and four counts of criminal sexual penetration in the second degree (CSP II). Defendant and Complainant were friends and former co-workers at the time of the incident from which this case arose.

According to Complainant's testimony, in the early morning hours of January 10, 1990, Defendant appeared at her door claiming to be drunk and experiencing car trouble. After she let him into her house, he verbally threatened her, grabbed her arms, and forced her into a bedroom and to undress. In the bedroom he secured her hands with handcuffs, displayed a gun, knife, and rope, and threatened to use the gun if she did not do what he wanted. He then compelled her to engage in fellatio and, after repositioning her with the handcuffs and rope, in sexual as well as anal intercourse. He subsequently moved her into the bathroom, requested a wash cloth, wiped himself, and again compelled her to perform fellatio. Afterward, he became remorseful; apparently in sympathy, she said that she would not report the incident if he sought professional help for his problems, and he left the gun with her when he left her house. She reported the incident five days later when she came to the conclusion that he had lied about seeking professional help.

Defendant's defense theory was alibi: his wife testified that he was in bed asleep with her at the time of the alleged incident. They also presented evidence to show that the gun was not Defendant's, but rather belonged to Complainant. Defendant suggested that Complainant fabricated the charges because she was angry with him for breaking off an affair with her and also for not repaying a loan she had made to him.

The jury returned verdicts of guilty on one count of kidnapping and four counts of CSP II. At sentencing, the trial court imposed nine-year sentences for each conviction and added three years to each sentence due to aggravating circumstances, which included harm to Complainant, harm to Defendant's family, and Defendant's lack of remorse. See NMSA 1978, § 31-18-15.1 (Repl.Pamp.1990) (alteration of basic sentence for mitigating or aggravating circumstances). The trial court added one year on the basis of a prior Colorado felony conviction and one year for use of a firearm. See NMSA 1978, § 31-18-17(B) (Repl.Pamp.1990) (alteration of basic sentence; habitual offender); NMSA 1978, § 31-18-16(A) (Repl.Pamp.1990) (alteration of basic sentence; use of firearm).

Defendant raises twelve issues on appeal, seven of which deal with matters at trial and the rest of which challenge the validity of Defendant's sentence. The trial issues include Defendant's right to have the jury instructed on the lesser-included offense of criminal sexual penetration in the third degree (CSP III), the timeliness of his objection to the prosecution's use of peremptory challenges, and whether he received effective assistance of counsel. Three of the trial issues concern evidentiary rulings excluding evidence Defendant wished to introduce. We address those issues under one heading. Defendant also challenges the sufficiency of the evidence to support his convictions. The sentencing issues include the propriety of the factors on which the trial court relied in aggravating and enhancing Defendant's sentences and the sufficiency of the evidence to support multiple counts of CSP II.

We affirm Defendant's convictions; we vacate Defendant's sentence and remand for resentencing in accordance with this opinion. We address below each of the issues Defendant raises. We first address and answer summarily Defendant's contentions that his convictions are not supported by substantial evidence and that neither the multiple CSP II sentences nor the increased sentences under Sections 31-18-16(A) and -17(B) were proper.

I. ISSUES ADDRESSED SUMMARILY

We are aware of conflicts in the evidence and the conflicting inferences the jury was entitled to draw. Nevertheless, we must resolve those inferences and conflicts in the light most favorable to the judgment. State v. Lankford, 92 N.M. 1, 2, 582 P.2d 378, 379 (1978). "It is for the trier of fact to determine the weight and sufficiency of the evidence, including all reasonable inferences." State v. Vialpando, 93 N.M. 289, 292, 599 P.2d 1086, 1089 (Ct.App.), cert. denied, 93 N.M. 172, 598 P.2d 215 (1979). Based on Complainant's testimony, see NMSA 1978, §§ 30-4-1(A)(3) & 30-9-11(B)(5) (Repl.Pamp.1984), we hold that Defendant's convictions are supported by sufficient evidence. See generally State v. Duran, 107 N.M. 603, 605, 762 P.2d 890, 892 (1988) (discussing test for sufficiency of evidence to sustain guilty verdict).

Defendant also contends that the facts in the present case establish one continuous offense, and that his sentences are contrary to the prohibition against multiple punishments for a single offense. This argument, based on his right to be free from double jeopardy, raises an issue of legislative intent. There is controlling Supreme Court precedent.

The New Mexico Supreme Court in Herron v. State, 111 N.M. 357, 805 P.2d 624 (1991), recently detailed the factors to be used to determine whether multiple acts committed in close temporal proximity constitute a continuous offense or separate and distinct offenses under Section 30-9-11. Under Herron, penetrations of separate orifices with the same object constitute separate offenses. Therefore, the acts of anal intercourse, sexual intercourse, and at least one instance of fellatio constitute separate offenses under Herron. To determine if the second instance is a separate offense we refer to the factors set out in Herron for making such a determination. The second instance of fellatio occurred only a short time after the anal penetration. However, Defendant had moved the victim from the bathroom to the bedroom before forcing her to engage in fellatio a second time. In addition, there had been an intervening event between the anal intercourse and the second act of fellatio. We conclude that the second act of fellatio was a separate and distinct act under Herron. Therefore, we hold that there was no double jeopardy violation.

Defendant also challenges the firearm enhancement of his sentence. We recently answered a similar challenge based on double jeopardy in State v. Charlton, 115 N.M. 35, 38-41, 846 P.2d 341, 344-47 (Ct.App.1992), cert. denied, 114 N.M. 577, 844 P.2d 827 (1993). Based on that opinion, we conclude that Defendant's challenge to the firearm enhancement of his sentence lacks merit.

Finally, Defendant argues that a habitual offender enhancement was improperly imposed because the Colorado felony for which he was previously convicted is not a felony in New Mexico. See § 31-18-17(A)(2)(c); State v. Knight, 75 N.M. 197, 199, 402 P.2d 380, 382 (1965). Whether or not the Colorado felony is a felony in New Mexico, the felony conviction may be used if it was punishable by imprisonment of more than one year. State v. Mankiller, 104 N.M. 461, 469, 722 P.2d 1183, 1191 (Ct.App.), cert. denied, 104 N.M. 378, 721 P.2d 1309 (1986). Defendant admitted that he was convicted in Colorado of the class five felony of possession of a dangerous weapon, and the State introduced the judgment and sentence of this conviction. Thus, the State presented a prima facie case for a habitual offender enhancement. Id. Moreover, the trial court noted that a felony by definition is punishable by more than one year, and indeed, a fifth class felony conviction was punishable by more than one year of imprisonment at the time of Defendant's prior conviction. Colo.Rev.Stat.Ann. § 18-1-105(1)(a)(II) (West 1986). Accordingly, it was proper to impose a habitual offender enhancement.

We next address the trial court's ruling on denying an instruction on CSP III. We then address the remaining trial issues and the question of whether Defendant's sentences were aggravated on a proper basis.

II. INSTRUCTION ON CSP III

A defendant is entitled to a lesser-included offense instruction only if there is evidence tending to establish the lesser offense, and there must be some view of the evidence tending to establish that the lesser offense is the highest degree of crime committed. State v. Fish, 102 N.M. 775, 779, 701 P.2d 374, 378 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). We agree with the trial court's analysis of this issue, which was that the evidence did not support the instruction.

Defendant tendered a correct CSP III instruction at trial, arguing the evidence in support of the instruction consisted of Complainant's testimony that he set the gun down before the actual sexual penetrations commenced. That argument would not support the giving of a CSP III instruction. However, based on our review of the record, we believe that the trial court rejected the instruction on another ground, which is the issue raised on appeal. We next address the issue raised on appeal. See State v. Corneau, 109 N.M. 81, 88, 781 P.2d 1159, 1166 (Ct.App.) (addressing comparable issue despite tender that may have been unclear or equivocal), certs. denied, 108 N.M. 668, 777 P.2d 907 (1989).

The trial court was entitled to refuse Defendant's instruction on CSP III if there was no view of the evidence tending to establish the lesser offense as the highest degree of the crime committed. Fish, 102 N.M. at 779, 701 P.2d at 378. Defendant asks us to allow the jury to select portions of Complainant's testimony, portions of Defendant's testimony, and base a...