State v. Apodaca

Opinion

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: __________________ 3 Filing Date: February 6, 2025 4 NO. S-1-SC-38288 5 STATE OF NEW MEXICO, 6 Plaintiff-Petitioner, 7 v. 8 JOSEPH R. APODACA, 9 Defendant-Respondent.

10 ORIGINAL PROCEEDING ON CERTIORARI 11 Alisa Hart, District Judge

12 Hector H. Balderas, Attorney General 13 M. Victoria Wilson, Assistant Attorney General 14 Santa Fe, NM

15 for Petitioner

16 The Law Office of Ryan J. Villa 17 Ryan J. Villa 18 Richelle Anderson 19 Albuquerque, NM

20 for Respondent 1 OPINION 2 THOMSON, Justice. 3 {1} A jury convicted Defendant Joseph R. Apodaca of two counts of criminal 4 sexual penetration and one count of tampering with evidence. The Court of Appeals 5 reversed all three of Defendant’s convictions, concluding that the district court 6 committed reversible error by declining to provide a separate instruction to the jury 7 on Defendant’s mistake-of-fact defense. See State v. Apodaca, 2021-NMCA-001, ¶¶ 8 1, 36, 40, 482 P.3d 1224. We granted the State’s petition for writ of certiorari and, 9 based on the analysis that follows, we reverse the Court of Appeals and affirm all 10 three of Defendant’s convictions. Today, we clarify that a defendant prosecuted for 11 committing a criminal sexual penetration under both an Incapacity Theory and an 12 Express Non-Consent Theory is not entitled to a separate mistake-of-fact instruction 13 based on the defendant’s alleged belief that the victim had the legal capacity to 14 consent and did consent. 15 {2} “Criminal sexual penetration is the unlawful and intentional causing of a 16 person to engage in sexual intercourse . . . or the causing of penetration, to any extent 17 and with any object, of the genital or anal opening[] of another, whether or not there 18 is any emission.” NMSA 1978, § 30-9-11(A) (2009) (emphasis added); see also UJI 19 14-132 NMRA (“For the act to have been unlawful, it must have been done without

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1 consent . . . .”). The State’s theory of unlawfulness was that Defendant used force or 2 coercion to perpetrate the criminal sexual penetration. Cf. § 30-9-11(D)(2) 3 (“Criminal sexual penetration in the first degree consists of all criminal sexual 4 penetration perpetrated . . . by the use of force or coercion that results in great bodily 5 harm or great mental anguish to the victim.” (emphasis added)). The State’s first 6 theory of force or coercion, consistent with the plain language of the statutory 7 definition of force or coercion, was that, based on the victim’s severe intoxication, 8 Defendant “[knew] or ha[d] reason to know that the victim [was] unconscious, 9 asleep or otherwise physically helpless or suffer[ed] from a mental condition that 10 render[ed] the victim incapable of understanding the nature or consequences of the 11 [sexual penetration]” (Incapacity Theory). NMSA 1978, § 30-9-10(A)(4) (2005). 12 The State’s second theory of force or coercion was that Defendant “use[d] . . . 13 physical force or physical violence” to penetrate the victim without consent (Express 14 Non-Consent Theory). Section 30-9-10(A)(1). 15 {3} Defendant was not entitled to the requested mistake-of-fact instruction 16 because his identified mistake of fact was encapsulated within the elements of the 17 State’s Incapacity Theory, on which the jury was adequately instructed. Further, the 18 evidence presented to the jury, mostly through the testimony of Defendant himself, 19 was that Defendant was not mistaken as to the fact of B.C.’s (Victim) intoxication

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1 or consent. As the dissent in Apodaca stated, “Defendant may not have been 2 concerned about Victim’s level of intoxication, but that does not mean that he was 3 unaware of it” and therefore could not claim a mistake of fact. Apodaca, 2021- 4 NMCA-001, ¶ 65 (Vanzi, J., concurring in part and dissenting in part).

5 I. BACKGROUND 6 A. The Sexual Assault

7 {4} Defendant and Victim were middle school classmates in Grants, New Mexico, 8 but lost contact after middle school and did not speak again until March 2014. The 9 two reconnected around the same time that Victim moved from New Mexico to 10 Phoenix, Arizona. They exchanged messages, but their communications waned and 11 then stopped again. 12 {5} About three weeks after they stopped communicating with each other, 13 Defendant sent Victim a text message, which she received while driving back to 14 New Mexico to visit family. They agreed to meet in Albuquerque on an evening 15 when, as Defendant told Victim, Defendant was going to a club with some other 16 people. However, the plan changed, and only Defendant and his cousin Dustin came 17 to Albuquerque to meet Victim that evening. 18 {6} Dustin and Defendant left Grants for Albuquerque after sunset and picked up 19 a six-pack of beer, most of which they drank during the drive. They finished their

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1 last two beers in a parking lot while waiting for Victim. When Victim arrived, she 2 offered to share a miniature of flavored vodka, which she had brought with her. 3 Although testimony differs on this point, Defendant testified that Victim drank the 4 whole vodka miniature herself. Then, Victim, Defendant, and Dustin entered a 5 nightclub together, went upstairs to the bar, and started drinking. The three of them 6 took turns paying for rounds of alcohol. 7 {7} Victim did not remember much that occurred after she drank her third shot of 8 alcohol. The last thing that she remembered was giving her keys to Defendant. 9 Defendant did not remember exactly how many rounds they all drank but testified 10 that he spent one hundred dollars that evening between paying the cover charge and 11 buying alcohol. He did remember that they drank at least five rounds of shots of 12 various hard liquors and that between the rounds he and Dustin drank beers while 13 Victim drank mixed cocktails. Dustin recalled to law enforcement, “‘I have never 14 seen someone get so drunk so fast off three shots and a couple of beers [as Victim 15 did].’” 16 {8} Defendant and Victim began kissing, and Dustin gave his keys to Defendant 17 so that Defendant and Victim could go out to Dustin’s truck. Defendant testified that 18 he was not concerned about Victim’s level of intoxication because “she was talking 19 all right, . . . and she got down [the long, straight flight of stairs to the street level]

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1 perfectly fine.” According to Defendant, he and Victim engaged in a consensual 2 sexual encounter in the back seat of Dustin’s truck, including the use of Defendant’s 3 hands to penetrate Victim’s vagina and anus at the same time. Defendant testified 4 that Victim consented to all of the various sex acts, and the only reason they stopped 5 was that Victim defecated. 6 {9} Defendant used Victim’s shorts to clean her feces out of the back seat, and he 7 threw the dirty shorts in a dumpster before calling Dustin to ask him to come outside. 8 Dustin testified that “when [he] first saw that scene, [he thought] it look[ed] like a 9 rape.” Dustin was “freaked out” and discussed with Defendant “what [they] were 10 going to do.” They decided that Defendant would drive Victim’s car to take her 11 home and that Dustin would follow in his truck. Defendant “felt like it would be 12 better if” he drove because, in his words, “I know that I can drive . . . intoxicated.” 13 {10} Defendant testified that he and Victim talked as he drove and that she never 14 mentioned feeling any pain or having any injuries. He further asserted that Victim 15 began performing oral sex on him and “attempted to climb over the middle console 16 and [mount him]” as he drove, but he “told her to stop” and “to sit down,” which she 17 did. Dustin and Defendant became separated on the drive, so they arranged by their 18 cell phones to meet when they got to Belen. Both Dustin and Defendant parked the 19 vehicles off the road to figure out what to do because they did not know where

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1 Victim lived and did not want a passing police officer to investigate them for 2 “drinking and driving.” When Defendant asked Victim where she lived, she replied, 3 “‘I don’t know.’” He also observed that “[s]he seemed more tired.” Defendant 4 asserted he was unconcerned about what the police might think of Victim’s physical 5 or mental state because “[he] wasn’t aware of her medical state,” despite admitting 6 that Victim “was acting more and more drunk.” 7 {11} Defendant and Dustin used Victim’s cell phone to call Victim’s father to come 8 and get her and then moved Victim’s car to a parking lot so that the car would be 9 easier to find. They called her father again to give him the location of the car. When 10 asked why Defendant left Victim alone before her father arrived, he stated that he 11 “was afraid [of] . . . what [her father’s] reaction would be when he drove up and seen 12 his daughter intoxicated the way she was, . . . and then Dustin was kind of freaking 13 out about it, too, he didn’t want to be there.” 14 {12} Victim’s father found her sitting alone, unconscious, wearing just a top, in the 15 passenger side of her car. There was “blood on the console, . . . her headrests, all 16 over her seat,” and blood covered her legs and “was running down . . . onto the 17 floormat of the car.” Victim’s father called emergency services, who transported 18 Victim to the hospital.

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1 {13} At the hospital, the doctors noted that there was significant swelling 2 throughout Victim’s vagina, rectum, and anus. Her vagina was dilated “at least ten 3 centimeters,” a degree that does not naturally occur “[a]side from the delivery of a 4 baby.” The doctors opined that the dilation was caused by a “foreign object,” 5 approximately the diameter of the barrel of a “baseball bat” or a “balled-up fist.” 6 There was a “deep laceration,” about ten centimeters long, “that extended from 7 nearly the opening of the vagina . . . to . . . the very end of the vagina” near the 8 cervix. After gynecological surgery, Victim’s rectum required another specialist to 9 repair a tear through “[a]ll the layers of the rectal wall” that ran ten centimeters up 10 the rectum from her sphincter. Her injuries required multiple surgeries. 11 {14} After Dustin and Defendant left Victim, they drove home to Grants. Along 12 the way, they stopped to eat at a twenty-four-hour diner where Defendant told Dustin 13 that he “fisted” Victim and that he used his hand to penetrate her. Dustin “was 14 scared” and “worried” that Defendant would get in trouble. He told Defendant “to 15 save those text messages and everything [communicated between Defendant and 16 Victim] because something is going to come up.” The next day, Dustin “reminded 17 [Defendant] that [Defendant] needed to go out and clean [the] truck.” However, 18 Defendant maintained that he was not concerned about Victim or getting into 19 trouble, and he cleaned the truck only “[b]ecause it needed to be cleaned.”

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1 B. Charges and the Defense 2 {15} The State charged Defendant with multiple crimes, including the three counts 3 on which he was convicted: two counts of criminal sexual penetration and one count 4 of tampering with evidence. 5 {16} Concerning Defendant’s two convictions for criminal sexual penetration, 6 Count 1 alleged that Defendant penetrated Victim’s vagina by force or coercion, 7 resulting in great bodily harm or great mental anguish; and Count 2 alleged that 8 Defendant penetrated Victim’s anus by force or coercion, resulting in great bodily 9 harm or mental anguish. The jury was instructed to determine whether Defendant 10 committed the crimes alleged in Count 1 and Count 2 based on two alternative 11 theories of force or coercion. Specifically, the jury could find force or coercion if it 12 determined that (1) he penetrated Victim when he knew or had reason to know that 13 Victim was incapable of giving consent (Incapacity Theory) or (2) he penetrated 14 Victim, who had the capacity to consent, when she did not consent (Express Non- 15 Consent Theory). See § 30-9-10(A)(1), (4). Regarding Defendant’s conviction for 16 tampering with evidence, the jury was instructed that the State was required to prove 17 that “Defendant destroyed, changed, or hid blood evidence by cleaning [the truck,] 18 . . . intend[ing] to prevent the apprehension, prosecution, or conviction of himself 19 for the crime of criminal sexual penetration.”

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1 {17} Defendant’s trial strategy portrayed the events of the evening as the 2 unfortunate result of “a couple of young kids who . . . drank too much, and . . . they 3 engaged in . . . very unusual sexual activity.” Defendant argued that the injuries to 4 Victim were an accident but not a crime because Victim was conscious and 5 consented to everything that occurred. Victim’s level of intoxication, especially as 6 to how it would have affected her conduct, awareness, perceptions, and capabilities, 7 was highly contested. Experts opined on her level of intoxication, including whether 8 it would have significantly affected her cognitive abilities, including her capacity to 9 consent. One expert suggested that some persons could “seem lucid” and could “do 10 things from driving vehicles, going out and emptying out their bank account[s], but 11 still be in an alcohol blackout.” Defendant also elicited lay witness testimony about 12 Victim’s tolerance to alcohol and expert testimony about how Victim’s level of 13 intoxication could affect her ability to perceive pain, arguing that this testimony 14 undermined the expert opinion that Victim’s injuries would have been so painful 15 that they were “inconsistent with consensual intercourse.” As the recitation of facts 16 indicate, however, Defendant never claimed Victim was not intoxicated, only that 17 she could somehow consent to such acts, and that she did. 18 {18} Based on his trial strategy, Defendant requested a mistake-of-fact instruction. 19 The district court denied the requested mistake-of-fact instruction, concluding the

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1 criminal sexual penetration instructions, the tampering with evidence instruction, 2 and the accompanying unlawfulness instruction adequately instructed the jury 3 concerning Defendant’s purported mistake of fact. The jury found Defendant guilty 4 of both counts of first-degree criminal sexual penetration and one count of tampering 5 with evidence. For those crimes, the district court sentenced Defendant to thirty-six 6 years in prison. In a split decision, the Court of Appeals concluded that Defendant 7 had been “entitled to the mistake of fact instruction” concerning each crime and 8 therefore reversed all three convictions. Apodaca, 2021-NMCA-001, ¶¶ 32-33, 36, 9 40. The relevant portion of the minority’s dissent concluded that there was not 10 sufficient evidence to grant Defendant a mistake-of-fact instruction. Id. ¶ 60 (Vanzi, 11 J., concurring in part and dissenting in part). The dissent would have also affirmed 12 the district court’s denial of the instruction on tampering with evidence. Id. ¶ 66. We 13 granted the State’s petition for certiorari review. 14 II. ANALYSIS 15 {19} The State claims that the Court of Appeals erred when it determined that 16 Defendant was entitled to mistake-of-fact instructions, on both counts of criminal 17 sexual penetration and the count of tampering with evidence, and argues that the jury 18 instructions were adequate.

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1 {20} Defendant asks this Court to affirm the Court of Appeals and argues that the 2 jury should have been instructed to find him not guilty of criminal sexual penetration 3 if it found “that he honestly and reasonably believed [Victim] was capable of and 4 consented to the sexual activity.” He also argues the Court of Appeals correctly 5 determined he was entitled to a mistake-of-fact instruction that provided the jury 6 could only convict Defendant of tampering with evidence if it first found him guilty 7 of criminal sexual penetration and then found that he cleaned the truck seat to avoid 8 being found guilty of criminal sexual penetration. In Defendant’s view, the district 9 court’s errors require the reversal of all his convictions. We consider the arguments 10 related to the criminal sexual penetration convictions, and then turn to the arguments 11 related to the tampering with evidence conviction. 12 A. Standard of Review 13 {21} “The propriety of jury instructions given or denied is a mixed question of law 14 and fact.” State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. We 15 review de novo whether a reasonable view of the evidence could support a requested, 16 and rejected, instruction. State v. Gaitan, 2002-NMSC-007, ¶¶ 10-11, 131 N.M. 758, 17 42 P.3d 1207. If we determine that there is a reasonable view of the evidence that 18 supports giving a requested instruction, a defendant is entitled to the instruction. Id. 19 ¶ 11. Only if we determine that the district court erred, by refusing to give the

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1 requested instruction, do we proceed to the ultimate question, whether the error 2 amounted to reversible or fundamental error. See State v. Benally, 2001-NMSC-033, 3 ¶ 12, 131 N.M. 258, 34 P.3d 1134 (stating the two applicable standards of review 4 when a defendant challenges jury instructions on appeal: reversible error and 5 fundamental error). Ordinarily, a defendant is only entitled to a requested mistake- 6 of-fact instruction if the defendant’s “ignorance or mistake of fact . . . negates the 7 existence of a mental state essential to the crime charged.” Reese v. State, 1987- 8 NMSC-079, ¶ 17, 106 N.M. 498, 745 P.2d 1146 (Ransom, J., specially concurring). 9 In this case, because we determine that the district court did not err when it declined 10 to give the requested mistake-of-fact instruction, we do not reach the question of 11 whether the alleged error would constitute reversible or fundamental error.

12 B. Defendant Was Not Entitled to the Requested Instruction Related to His 13 Criminal Sexual Penetration Convictions

14 {22} “Criminal sexual penetration is the unlawful and intentional causing . . . of 15 penetration, to any extent and with any object, of the genital or anal openings of 16 another, whether or not there is any emission.” Section 30-9-11(A). Defendant faced 17 two counts of criminal sexual penetration “by the use of force or coercion that results 18 in great bodily harm or great mental anguish to the [V]ictim.” Section 30-9-11(D)(2). 19 Defendant admitted that he intentionally penetrated Victim’s vagina and anus with 20 his hands. However, he argued that the conduct was lawful because Victim

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1 consented to those acts; in other words, he did not “use . . . force or coercion.” See 2 id. 3 {23} The Court of Appeals majority and dissenting opinions suggested that the 4 analysis should focus on whether Victim consented to the graphic “physical force” 5 used that caused the injuries to victim. See Apodaca, 2021-NMCA-001, ¶ 31 (stating 6 that the jury had to determine whether Victim “consent[ed] to the use of physical 7 force or physical violence”); id. ¶ 61 (Vanzi, J., concurring in part and dissenting in 8 part) (same). We disagree with this approach. Although the amount of physical force 9 used to accomplish the penetration may be relevant circumstantial evidence, the 10 amount of physical force is not direct evidence that resolves whether Victim 11 willingly agreed, or consented, to being penetrated. 12 {24} Whether a person consents to being penetrated is the touchstone of the 13 analysis, not whether the person agrees to the use of any specific measure of physical 14 force. In this case, the jury was required to determine whether Victim consented to 15 having her vagina and anus penetrated by Defendant’s hands. If Victim did not 16 willingly agree—did not consent—to the penetration, Defendant committed first- 17 degree criminal sexual penetration by “force or coercion.” See § 30-9-11(A), (D)(2); 18 UJI 14-132. 19 {25} “[F]orce or coercion” occurs when the jury finds the existence of any one of

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1 five, alternative conducts or circumstances. See § 30-9-10(A)(1)-(5). Simply put, all 2 the alternatives of force or coercion correlate to a lack of consent, not to the nature 3 or amount of physical force used to accomplish the penetration. The State prosecuted 4 Defendant under two of those five alternatives. We have described these two as the 5 Incapacity Theory and the Express Non-Consent Theory. 6 {26} Under the State’s Incapacity Theory, the penetration was unlawful because 7 Defendant “[knew] or ha[d] reason to know that [V]ictim [was] unconscious, asleep 8 or otherwise physically helpless or suffer[ed] from a mental condition that 9 render[ed] [V]ictim incapable of understanding the nature or consequences of the 10 act.” Section 30-9-10(A)(4). Considering the State’s Incapacity Theory⸻if the 11 predicate circumstances existed⸻the victim was not capable of consenting as a 12 matter of law. Under such a circumstance, actual consent is irrelevant, even if the 13 victim’s conduct appeared to manifest consent. 14 {27} Under the State’s Express Non-Consent Theory, the penetration was unlawful 15 because Defendant “use[d] . . . physical force or physical violence” to penetrate 16 Victim. Section 30-9-10(A)(1). In other words, Victim had the capacity to consent 17 but did not consent. Considering the Express Non-Consent Theory, actual consent is 18 at issue, but capacity is not. The crucial error in Defendant’s argument and the Court

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1 of Appeals majority is the merging of the State’s two theories without a proper 2 understanding of the distinguishing factors. 3 The jury instructions 4 {28} The jury was given a single instruction for each count of first-degree criminal 5 sexual penetration that encompassed two theories as alternatives based on UJI 14- 6 961 NMRA, which allows alternative theories to be advanced in a single instruction. 7 See id. Use Note 1 (“This instruction sets forth the elements of . . . three types of 8 ‘force or coercion’ in Section 30-9-10(A) . . . : (1) use of physical force or physical 9 violence; (2) threats; (3) mental or other incapacity of the victim. If the evidence 10 supports two or more of these theories of ‘force or coercion,’ this instruction may be 11 used.”). 12 {29} Defendant requested two instructions related to his defense that Victim’s 13 consent negated his criminal liability: an instruction on unlawfulness and an 14 instruction on mistake of fact. The district court gave the jury Defendant’s requested 15 unlawfulness instruction:

16 For the act [of first-degree criminal sexual penetration] to have been 17 unlawful it must have been done without consent and with the intent to 18 arouse or gratify sexual desire or to intrude upon the bodily integrity or 19 personal safety of [Victim].

20 Criminal sexual penetration causing great bodily harm . . . does not 21 include a penetration . . . for purposes of consensual activity.

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1 {30} Defendant’s requested instruction on mistake of fact read:

2 Evidence has been presented that [Defendant] believed that [Victim] 3 consented to the sexual activity that occurred, her injuries were 4 accidental and she was not seriously injured. The burden is on the state 5 to prove beyond a reasonable doubt that [D]efendant did not act under 6 an honest and reasonable belief in the existence of those facts. If you 7 have a reasonable doubt as to whether [D]efendant’s actions resulted 8 from a mistaken belief of those facts, you must find [D]efendant not 9 guilty [of all charges].

10 The district court did not give the jury Defendant’s requested mistake-of-fact 11 instruction, concluding that the unlawfulness instruction sufficiently covered the 12 consent defense. 13 {31} Defendant, however, believes that he was entitled to the same mistake-of-fact 14 instruction concerning both counts of criminal sexual penetration and both the 15 Incapacity Theory and the Express Non-Consent Theory. See Apodaca, 2021- 16 NMCA-001, ¶¶ 30-32. This argument ignores the differences between the two 17 alternative theories of force or coercion, each of which required Defendant to have 18 possessed a different “essential” mental state which, therefore, cannot be negated by 19 the same mistake of fact. See Reese, 1987-NMSC-079, ¶ 17 (Ransom, J., specially 20 concurring) (stating that a defense by mistake of fact must “negate[] . . . a mental 21 state essential to the crime charged”). Our analysis considers the relevant distinction 22 ignored by the Court of Appeals majority.

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1 The Court of Appeals 2 {32} In a split decision, the Court of Appeals determined that Defendant was 3 entitled to the mistake-of-fact instruction. Apodaca, 2021-NMCA-001, ¶¶ 36, 40. 4 The majority held that “Defendant’s mistaken belief would negate the intent 5 necessary to convict Defendant for using physical force or physical violence to 6 penetrate a person who did not have the capacity to consent.” Id. ¶ 33. The Court 7 concluded that Defendant was entitled to a mistake-of-fact instruction regarding 8 first-degree criminal sexual penetration under the State’s Express Non-Consent 9 Theory but that he was not entitled to a mistake-of-fact instruction under the State’s 10 Incapacity Theory. Id. ¶¶ 36-37. The Court further concluded that Defendant was 11 entitled to a mistake-of-fact instruction as to tampering with evidence because 12 Defendant’s “honest and reasonable belief that Victim had the capacity to consent 13 and did consent to his actions” would negate the mens rea for tampering with 14 evidence. Id. ¶ 40. 15 {33} This opinion takes a different analytical posture than the Court of Appeals’ 16 opinion. The Court of Appeals centered its analysis on what it viewed to be the core 17 issue in this case: whether there was sufficient evidence that Defendant believed 18 Victim was capable of and did consent to acts that led to the first-degree criminal 19 sexual penetration charges; and whether Defendant was entitled to a mistake-of-fact

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1 defense as to either charge. See id. ¶¶ 36, 40; id. ¶ 63 (Vanzi, J., concurring in part 2 and dissenting in part) (same). 3 {34} We recognize that Defendant did not cross-appeal whether he was entitled to 4 a mistake-of-fact instruction concerning the State’s Incapacity Theory, which 5 required proof that he knew or had reason to know of Victim’s incapacity. However, 6 we first discuss the Court of Appeals determination that Defendant was not entitled 7 to a mistake-of-fact instruction concerning that theory because it highlights the 8 different mental states required by each theory. We then turn to the main issue on 9 appeal: whether Defendant was entitled to a mistake-of-fact instruction on Victim’s 10 capacity to consent under the State’s Express Non-Consent Theory. Because that 11 theory did not require proof of Victim’s legal capacity to consent or Defendant’s 12 knowledge or awareness of Victim’s capacity, we conclude that a mistake-of-fact 13 instruction on that issue was not required.

14 Defendant was not entitled to a mistake-of-fact instruction under the 15 State’s Incapacity Theory

16 {35} We agree with the Court of Appeals that Defendant was not entitled to a 17 mistake-of-fact instruction on the State’s Incapacity Theory; that is, that Victim was 18 not capable of consenting to the sexual acts and that “Defendant knew or had reason 19 to know of Victim’s incapacity.” Apodaca, 2021-NMCA-001, ¶ 37. The jury was

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1 “adequately instructed upon the matter by other instructions.” State v. Venegas, 2 1981-NMSC-047, ¶ 9, 96 N.M. 61, 628 P.2d 306 (citation omitted). 3 {36} The jury was instructed, consistent with Section 30-9-10(A)(4), that it could 4 convict if the State proved beyond a reasonable doubt that Victim “was . . . suffering 5 from a mental condition so as to be incapable of understanding the nature or 6 consequences of what [D]efendant was doing[] and [that D]efendant knew or had 7 reason to know of the condition of [Victim].” This instruction encapsulated 8 Defendant’s argued mistake of fact, that he did not know, and could not have known, 9 that Victim was too intoxicated to consent. The jury was therefore adequately 10 instructed on Defendant’s identified mistake of fact—whether Defendant knew or 11 should have known of Victim’s incapacity to consent. A separate mistake-of-fact 12 instruction concerning a defendant’s knowledge of a victim’s level of intoxication is 13 not required where the instructions given require “finding that the defendant knew, 14 or reasonably should have known, that the victim was unable to resist due to [the 15 victim’s] intoxication.” 65 Am. Jur. 2d Rape § 80 (2011); see also State v. Sosa, 16 2009-NMSC-056, ¶¶ 3, 40, 42, 147 N.M. 351, 223 P.3d 348 (affirming a defendant’s 17 conviction for criminal sexual penetration where there was sufficient evidence to 18 support the jury’s finding that the defendant “knew or had reason to know the 19 victim” was too intoxicated to give consent). We now turn to whether Defendant

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1 was entitled to a mistake-of-fact instruction under the State’s Express Non-Consent 2 Theory.

3 Defendant was not entitled to a mistake-of-fact instruction under the 4 State’s Express Non-Consent Theory

5 {37} The physical force or physical violence alternative of force or coercion does 6 not require the State to prove that a significant amount of strength or exertion was 7 used to perpetrate the sexual penetration; force or coercion simply means that the 8 victim did not consent. See § 30-9-10(A) (“Physical or verbal resistance of the victim 9 is not an element of force or coercion.”). Thus, “the question is not whether the 10 victim protested or physically resisted but rather whether the defendant was aware 11 of, and consciously disregarded, a substantial and unjustifiable possibility that [the 12 penetration] was being conducted without [the victim’s] consent.” 65 Am. Jur. 2d 13 Rape § 5 (2011). “[T]he essence of consent is that it is given out of free will.” Id. 14 {38} It would be absurd to consider whether Victim actually consented if Victim 15 lacked the legal capacity to consent, and we will not construe the law in a manner 16 that leads to an absurd result. Cf. State v. Montano, 2020-NMSC-009, ¶ 13, 468 P.3d 17 838 (observing that this Court will not construe statutes in a manner that leads to 18 absurdity); see also NMSA 1978, § 12-2A-18(A)(3) (1997). Consequently, the 19 Express Non-Consent Theory presumes that a victim had the legal capacity to 20 consent. The only question remaining is one of fact: whether the victim actually

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1 consented. That is, when the jury considered Victim’s capacity to consent, it was 2 necessarily considering only the State’s Incapacity Theory. 3 {39} Nevertheless, the Court of Appeals majority and dissent endorsed this 4 absurdity and construed New Mexico law to tolerate it. The majority determined that 5 Defendant was entitled to a mistake-of-fact instruction on Victim’s capacity when 6 the material element at issue was whether Victim actually consented, not 7 Defendant’s subjective understanding of Victim’s capacity. Apodaca, 2021-NMCA- 8 001, ¶¶ 31, 36-37; id. ¶ 61 (Vanzi, J., concurring in part and dissenting in part) 9 (quoting paragraph 31 of the majority opinion). In so doing, the Court of Appeals 10 conflated the two exclusive, alternative theories of force or coercion. See id. ¶ 30. 11 We analyze Defendant’s trial and appellate strategies here to more thoroughly 12 explain why the Court of Appeals erred. 13 {40} Defendant’s trial strategy attempted to establish both that Victim had the 14 capacity to consent and that she actually consented. Defendant testified to having 15 used the degree of physical strength or exertion necessary to commit the crime of 16 first-degree criminal sexual penetration. See § 30-9-11(A), (D)(2) (requiring, for 17 first-degree criminal sexual penetration, the “intentional . . . penetration . . . of 18 [Victim’s] genital or anal openings . . . by . . . force or coercion that results in great 19 bodily harm . . . to [Victim]”). Thus, the contested issue was consent. This trial

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1 strategy is confirmed by defense counsel’s closing argument that “whatever [Victim] 2 remembers or doesn’t remember, it didn’t happen the way she says it happened. . . . 3 [S]he[ was] not unconscious,” and by counsel’s representation that Defendant 4 “testified that [Victim] was a fully conscious and consenting participant in the sexual 5 encounter.” Where a defendant claims the victim consented and the victim denies 6 there was consent, “the jury must weigh the evidence and decide which of the two 7 witnesses is telling the truth.” 65 Am. Jur. 2d Rape § 84 (2011). 8 {41} Here, Defendant claims Victim consented; Victim did not remember but 9 asserted that she would not have consented to having her vagina or anus penetrated 10 by someone’s hand. If the jury credited Defendant’s testimony, the jury was required 11 to acquit. Instead, the jury convicted Defendant of both counts of criminal sexual 12 penetration. If the jury convicted under the State’s Incapacity Theory, it necessarily 13 determined that Victim lacked the legal capacity to consent and that Defendant knew 14 or had reason to know of that incapacity. See Section II(B)(1), paragraphs 26-27, 15 supra. If the jury convicted under the State’s Express Non-Consent Theory, it 16 necessarily determined that Victim had the capacity to consent and did not consent, 17 and that Defendant was not telling the truth. 18 {42} Confronted with the failure of his trial strategy, Defendant adjusted his tactics 19 on appeal. Defendant argued that when the jury considered the State’s Express Non-

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1 Consent Theory—whether Defendant used physical force or physical violence to 2 penetrate Victim against her will—the jury also should have been instructed to 3 consider the State’s Incapacity Theory⸻whether Defendant mistakenly, but 4 reasonably and subjectively, believed Victim consented because he was unaware of 5 Victim’s incapacity. And as we previously explained, the jury was adequately 6 instructed on that theory—that Defendant knew or had reason to know of Victim’s 7 incapacity. See Section II(B)(1), paragraphs 26-27, supra. In sum, since the Express 8 Non-Consent Theory presumed that Victim had the legal capacity to consent, 9 Defendant’s awareness of Victim’s incapacity was not material to that theory.

10 C. Defendant Was Not Entitled to a Mistake-of-Fact Instruction Concerning 11 His Tampering with Evidence Count

12 {43} The Court of Appeals also determined that Defendant was entitled to a 13 mistake-of-fact instruction concerning his tampering with evidence conviction. 14 Apodaca, 2021-NMCA-001, ¶ 40. Defendant urges this Court to affirm this 15 determination and argues that if he did not believe he was committing a crime when 16 he sexually penetrated Victim, he could not have formed the specific intent required 17 to commit tampering with evidence by his removal of Victim’s blood from the truck 18 seat. We disagree. Defendant did not identify evidence for a mistake of fact that

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1 could have negated the specific intent required by the tampering with evidence 2 statute. 3 {44} “Tampering with evidence consists of destroying, changing, hiding, placing 4 or fabricating any physical evidence with intent to prevent the apprehension, 5 prosecution or conviction of any person or to throw suspicion of the commission of 6 a crime upon another.” NMSA 1978, § 30-22-5(A) (2003). “[I]ntentional conduct 7 which, by its nature, aims to prevent identification of an underlying offense or to 8 obstruct an investigation” is sufficient for conviction. State v. Jackson, 2010-NMSC- 9 032, ¶ 14, 148 N.M. 452, 237 P.3d 754, overruled on other grounds by State v. 10 Radosevich, 2018-NMSC-028, ¶ 2, 419 P.3d 176. “[T]he proper focus should be on 11 the accused’s subjective, specific intent to blind or mislead law enforcement.” Id. ¶ 12 16 (emphasis added). In fact, a defendant may be convicted of tampering with 13 evidence even if the defendant has “destroyed the evidence that could have proved 14 the exact nature and level of [the defendant’s] crime[]” so that “an underlying crime 15 could not be successfully prosecuted.” Radosevich, 2018-NMSC-028, ¶¶ 28-29. 16 {45} The specific intent required—to hamper an investigation or mislead law 17 enforcement—is not negated by a subjective belief that, ultimately, no crime was 18 committed. “[T]he intent requirements of the tampering statute can be met regardless 19 of whether a crime has in fact been committed.” Jackson, 2010-NMSC-032, ¶ 14

25

1 (internal quotation marks and citation omitted). Even if Defendant subjectively 2 believed that Victim consented and that he ultimately committed no crime, his belief 3 would not negate the intent element of the crime in this case. 4 {46} The jury was instructed that to convict Defendant of tampering with evidence, 5 the State had to prove that Defendant “intended to prevent the apprehension, 6 prosecution, or conviction of himself for the crime of sexual penetration” when he 7 cleaned the truck and “destroyed, changed, or hid blood evidence.” This instruction 8 does not require Defendant to have believed he was guilty of criminal sexual 9 penetration at the time he cleaned the truck. The Court of Appeals failed to 10 appreciate that Defendant could have formed the essential intent—to mislead law 11 enforcement and thereby thwart being apprehended or prosecuted for a 12 crime⸻while at the same time could have resolutely believed he did not commit that 13 crime. See Jackson, 2010-NMSC-032, ¶ 14. 14 {47} Defendant admitted that he left before Victim’s father arrived because he “was 15 afraid [of] . . . what [the father’s] reaction would be when he drove up and seen his 16 daughter intoxicated the way she was, . . . and then Dustin was kind of freaking out 17 about it, too, he didn’t want to be there.” On the night of the crimes when Defendant 18 told Dustin that he used his hand to penetrate Victim, Dustin “was scared” and 19 “worried,” telling Defendant “to save those text messages and everything

26

1 [communicated between Defendant and Victim] because something is going to come 2 up.” When Defendant cleaned the truck on the next day, there can be no doubt that 3 Defendant was aware of the possibility that he would be investigated. 4 {48} Although Defendant testified that he cleaned the truck only “[b]ecause it 5 needed to be cleaned,” the jury was not required to credit his testimony. See State v. 6 Cabezuela, 2011-NMSC-041, ¶ 45, 150 N.M. 654, 265 P.3d 705 (“[T]he jury is free 7 to reject [the d]efendant’s version of the facts.” (internal quotation marks and 8 citation omitted)). Considering the evidence, the jury could have inferred that 9 Defendant specifically intended “to disrupt [a] police investigation” when he cleaned 10 the back seat of Dustin’s truck out of concern that there would be an investigation 11 and that he could be questioned, arrested, and charged regardless of whether he 12 believed he committed criminal sexual penetration. State v. Garcia, 2011-NMSC- 13 003, ¶ 13, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation 14 omitted); accord State v. Telles, 2019-NMCA-039, ¶ 21, 446 P.3d 1194 (“Intent to 15 tamper with evidence can be inferred from circumstantial evidence.”). Since 16 Defendant identified no evidence for a mistake of fact that could actually negate the 17 required intent, the district court did not err by refusing to give the requested 18 instruction concerning the tampering with evidence count.

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1 III. CONCLUSION 2 {49} Based on the foregoing, we reverse the Court of Appeals and affirm all of 3 Defendant’s convictions. 4 {50} IT IS SO ORDERED.

5 6 DAVID K. THOMSON, Chief Justice

7 WE CONCUR:

8 9 MICHAEL E. VIGIL, Justice

10 11 C. SHANNON BACON, Justice

12 13 JULIE J. VARGAS, Justice