United States v. Hykes

• Decision Date: 06 December 2022
• Docket Number: CR 15-4299 JB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. GRANT HYKES, Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff, v. GRANT HYKES, Defendant.

No. CR 15-4299 JB

United States District Court, D. New Mexico

December 6, 2022

Alexander M. M. Uballez

United States Attorney

Samuel A. Hurtado

Assistant United States Attorney

United State Attorney's Office

Albuquerque, New Mexico

Attorneys for the Plaintiff

Kari T Morrissey

Kari T. Morrissey, Attorney at Law

Albuquerque, New Mexico

-- and --

Nicole Moss

Law Office of Nicole W Moss

Albuquerque, New Mexico

Attorneys for the Defendant

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Petition for Revocation of Supervised Release, filed January 14, 2011 (Doc. 87)(“Petition”). The Court held evidentiary revocation hearings on: (i) March 28, 2022, see Clerk's Minutes at 1, filed March 28, 2022 (Doc. 120)(“March 28 Clerk's Minutes”); (ii) April 19, 2022, see Clerk's Minutes at, filed April 19, 2022 (Doc. 121)(“April 19 Clerk's Minutes”); and (iii) November 14, 2022, see Clerk's Minutes at 1, filed November 14, 2022 (Doc. 128)(“November 14 Clerk's Minutes”). The primary issues are whether Hykes: (i) sexually penetrated a minor, in violation of N.M.S.A. § 30-9-11(D)(1); (ii) made sexual contact with a minor, in violation of N.M.S.A. § 30-9-13(B)(2)(a); (iii) intimidated a witness, in violation of N.M.S.A. § 30-24-3(A)(3); (iv) abused a child, in violation of N.M.S.A. § 30-6-1(D)(1); and (v) used or possessed alcohol, in violation of his supervised release special condition. The Court concludes, by a preponderance of the evidence, that Hykes: (i) did not sexually penetrate a minor; (ii) did not have sexual contact with a minor; (iii) did not intimidate a witness; (iv) did not abuse a child; but (v) used or possessed alcohol. Accordingly, because Hykes committed a Grade C violation and has a criminal history category of II, the United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) establish a revocation imprisonment range of 4 to 10 months.

PROCEDURAL BACKGROUND

On March 21, 2017, the Court sentenced Hykes to 48 months imprisonment for one count of violating 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm and ammunition. See Judgment in a Criminal Case at 1, filed January 14, 2018 (Doc. 82)(“Judgment”). The Court also imposed three years of supervised release following Hykes' release from prison. See Judgment at 1. For Hykes' supervised release, the Court imposed four mandatory conditions, thirteen standard conditions, and seven special conditions. See Judgment at 3-5. Hykes' first mandatory condition is: “You must not commit another federal, state, or local crime.” Judgment at 3. Hykes' first special condition is: “You must not use or possess alcohol.” Judgment at 5.

Hykes began his supervision on May 7, 2019. See Petition at 1. On May 13, 2020, the United States Probation Office (“USPO”) notified the Court that Hykes had provided a positive breath alcohol sample. See Report on Offender Under Supervision No Court Action Recommended, filed May 13, 2020 (Doc. 83). The Court ordered that no action was necessary at that time. See Order, filed May 18, 2020 (Doc. 84)(text-only entry). On January 12, 2021, the USPO again notified the Court that Hykes had provided a positive breath alcohol sample. See Report on Offender Under Supervision No Court Action Recommended, filed January 12, 2021 (Doc. 85). The Court again ordered that no action was necessary at that time. See Order, filed January 20, 2021 (Doc. 86)(text-only entry). Hykes' term of supervised release was set to expire on May 7, 2022. See Petition at 1.

FINDINGS OF FACT

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d)'s purposes. The Court makes these findings by a preponderance of the evidence. See 18 U.S.C. § 3583(e)(3). The Federal Rules of Evidence do not apply to revocation proceedings. See United States v. Henry, 852 F.3d 1204, 1206 (10th Cir. 2017). Instead, in making these findings, the Court does not consider any evidence or testimony from the hearing that violates the balancing test that the United States Court of Appeals for the Tenth Circuit adopted in United States v. Jones, 818 F.3d 1091, 1098 (10th Cir. 2016)(“ Jones”). “When applying the balancing test, the Court must weigh the defendant's interest in cross-examining and confronting [a] witness with the government's good cause for not presenting the witness.” United States v. Hernandez, 428 F.Supp.3d 775, 788 (D.N.M. 2019)(Browning, J.)(citing Jones, 818 F.3d at 1098).

1. The Weekend of November 27, 2021.

1. On November 27, 2021, the Saturday following Thanksgiving, Hykes and his girlfriend, Bethany Coburn, went to Hykes' ranch in Tijeras, New Mexico. See Transcript of Hearing at 25:2-4 (taken April 19, 2022)(“April 19 Tr.”)(Coburn), filed May 25, 2022 (Doc. 123).

2. Hykes' ranch occupies five acres of land, see April 19 Tr. at 36:11 (Coburn), and has “a little house,” a camper-style RV trailer, and “a bunch of animals[:] goats, chickens, ducks, dogs and a horse,” see Transcript of Hearing at 61:17-25 (taken March 28, 2022)(“March. 28 Tr.”)(Moss, Zinck), filed May 25, 2022 (Doc. 122).

3. At the time, Hykes and Coburn had been dating for roughly a year-and-a-half. See April 19 Tr. at 20:2-3 (Coburn)(testifying that, as of April 2022, the two had been dating for “almost two years”).

4. Their relationship was “serious,” but “not sexual,” April 19 Tr. at 20:5 (Coburn), but “not sexual,” April 19 Tr. at 20:24 (Coburn) because whenever Coburn attempted sexual activities with Hykes, “[t]here was no physical response on his part. He was unable to obtain an erection,” April 19 Tr. at 20:22-21:8 (Moss, Coburn).

5. Coburn's mother and grandmother, as well as Coburn's colleague and friend, Marina Zinck, joined Hykes and Coburn at the ranch. See March 28 Tr. at 25:14-16 (Coburn).

6. At some point that day, Zinck and Coburn left the ranch to go to a convenience store. See March 28 Tr. at 62:20-24 (Zinck).

7. When they returned, they saw that fifteen-year-old Jane Doe had arrived with her mother, Aubrey^[1]Howard, and her mother's partner,^[2] Mikai Cropsey. See March 28 Tr. at 62:2563:18 (Moss, Zinck); April 19. Tr. at 26:10 (Coburn).

8. Howard is Hykes' “ex-girlfriend.” See April 19 Tr. at 26:10-11 (Coburn).

9. Cropsey is Hykes' friend, who Hykes often hires to help him “fix stuff around the ranch.” April 19 Tr. at 26:10-22 (Coburn, Moss).

10. Doe had visited Hykes' property on prior occasions, “to do chores and hang out with the animals.” March 28. Tr. at 39:24-25 (Daugherty).

11. On November 27, Howard appeared “very tired” and seemed “detached.” March 28 Tr. at 64:10-14 (Zinck).

12. Doe also appeared “very tired” and “frustrated with her mom.” March 28 Tr. at 64:23-25 (Zinck).

13. At one point that afternoon, while Howard was talking with Zinck, “[Doe] got up, and as she was walking away [Howard] started cussing, cussing about [Doe].” March 28 Tr. at 65:3-9 (Zinck).

14. Doe looked “very upset and distressed . . . like [she was] choking back tears.” March 28 Tr. at 64:25-65:14 (Zinck).

15. Howard, Cropsey, and Doe had been at the ranch for a “couple of hours,” when Cropsey and Hykes had an “intense” and “physical” conversation. April 19 Tr. at 28:9-23 (Coburn).

16. Shortly after that conversation ended, Doe, Howard, and Cropsey left the ranch. See April 19 Tr. at 29:3-4 (Coburn).

17. Hykes reported to the remaining guests that his intense conversation with Cropsey was related to Hykes' concerns about Doe's welfare and home environment. See April 19 Tr. at 28:15-25 (Coburn, Moss).

18. After the conversation, Doe, Cropsey, and Howard left the ranch. See April 19 Tr. at 28:9-10 (Coburn).

19. Coburn's mother and grandmother also left the ranch. See April 19 Tr. at 29:17-18 (Coburn).

20. Hykes, Coburn, and Zinck had a conversation because the three were “concerned,” April 19 Tr. at 30:14 (Coburn), that “something very upsetting [was] going on with [Doe,]” March 28 Tr. at 68:1-2 (Zinck).

21. Hykes, Coburn, and Zinck wanted to make “a plan to see what [they] could do to ensure the safety of Ms. Jane Doe.” April 19 Tr. at 29:20-21 (Coburn).

22. They discussed the possibility of Doe staying with Zinck or with a number of other friends. See April 19 Tr. at 30:5-13 (Coburn).

23. Hykes also called Howard “to see if we could either go pick up Ms. Jane Doe or have [Howard and Cropsey] drop her back off” at Hykes' ranch. April 19 Tr. at 30:14-17 (Coburn).

24. Later that day, Howard and Cropsey “brought Ms. Jane Doe back up to the ranch.” April 19 Tr. at 30:20-21 (Coburn).

25. Hykes, Coburn, and Doe spent the night of November 27 at Hykes' ranch. See April 19 Tr. at 31:6-8 (Coburn).

26. Hykes and Coburn slept in the only bed and Doe slept on the couch. See April 19 Tr. at 31:6-8 (Coburn).

27. Coburn left the ranch the following morning, Sunday, November 28, 2021, around 9:30 a.m. See April 19 Tr. at 31:9-10 (Moss, Coburn).

28. Before leaving, Coburn called Zinck, informing her that Doe had arrived at the ranch and relaying Hykes' request that Zinck come back to the ranch with a lighter she'd taken and help exchange a toy she had purchased with Coburn at the convenience store. See March 28 Tr. at 70:4-10 (Zinck).

29. Zinck stayed at the ranch for roughly five hours, arriving around 10:00 a.m. and leaving around 3:00 p.m. See March 28 Tr. at 70:21-25 (Moss, Zinck).

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