State v. Mayfield

900 P.2d 358, 120 N.M. 198
CourtNew Mexico Court of Appeals
DecidedJune 21, 1995
Docket14999, 15287
StatusPublished
Cited by1 cases

This text of 900 P.2d 358 (State v. Mayfield) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mayfield, 900 P.2d 358, 120 N.M. 198 (N.M. Ct. App. 1995).

Opinion

OPINION

FLORES, Judge.

Earl Mayfield (Defendant) was convicted and sentenced on four counts of promoting prostitution under NMSA 1978, Section 30-9-4 (Repl.Pamp.1994) and one count of accepting earnings of a prostitute under NMSA 1978, Section 30-9-4.1 (Repl.Pamp.1994). By amended judgment, the trial court, pursuant to NMSA 1978, Section 31-18-17 (Repl. Pamp.1994), enhanced Defendant’s basic sentence, based on a finding that Defendant was an habitual offender with three prior felony convictions. Defendant first appealed from the original judgment and later appealed from the trial court’s amended judgment. We consolidated the two appeals.

Defendant raises several issues on appeal. All other issues raised in the docketing statement but not argued in the brief-in-chief are deemed abandoned. State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). We hold that the trial court committed reversible error in submitting an erroneous definitional instruction on masturbation to the jury. Accordingly, we reverse and remand for a new trial on all five counts. Some of the remaining issues asserted by Defendant are discussed in our unpublished memorandum opinion.

FACTS

Prior to the charges that form the basis of this appeal, Defendant was charged in another case with four counts of promoting prostitution under Section 30-9-4(B), (C), (E), and (G), one count of accepting earnings of a prostitute pursuant to Section 30-9-4.1, and one count of possession of cocaine under NMSA 1978, Section 30-31-23 (Repl. Pamp.1989), all relating to an incident that occurred on March 16, 1990. Defendant pleaded guilty to the possession charge and the State entered a nolle prosequi on the remaining charges. While serving that sentence, Defendant was granted work release from noon to 2 a.m. to operate his escort service, Enchanting Escorts.

The charges in this case stem from an undercover investigation of Enchanting Escorts by the Albuquerque Police Department. In November 1991, after seeing advertisements in the newspaper, vice officers Darcy Schodorf and Paul Heatley, among others, began investigating Enchanting Escorts.

Schodorf s Testimony

On December 11, 1991, Schodorf answered an advertisement in the Albuquerque Journal announcing that Enchanting Escorts was “now hiring.” Using the name “Cheryl Lopez,” Schodorf called Enchanting' Escorts and requested an interview for a job as a model. She spoke to a man who asked for her description and measurements and asked whether she would have a problem modeling lingerie. The man took Schodorfs number and called her back but was unable to reach her. Schodorf called back the next day and arranged to meet Tami Kochensparger, later identified as Defendant’s girlfriend, in the parking lot of a fast food restaurant. Kochensparger met Schodorf and took her to an apartment later identified as Defendant’s residence.

Once inside the apartment, Kochensparger introduced Schodorf to Defendant. Schodorf filled out an employment application which included the statement: “You are being employed by Enchanting Escorts. We are a legitimate business, no prostitution permitted.” Defendant told Schodorf not to worry about the application or the waiver because it was just a formality. Defendant also told Schodorf that she would be modeling lingerie, giving body massages, and engaging in adult conversation. “He [Defendant] stated if the client was nude, it would be better for me.”

Defendant described the procedure for screening clients, which included checking identification, verifying airline tickets if a client said he was from out of town, and determining whether a client was a police officer. Kochensparger told Schodorf that she was to collect a $100 agency fee from the client up front, all of which went to the agency. When asked on direct examination how she was to make any money for herself, Schodorf responded:

Off donations with the client, from the client. I was told that by [Defendant], that they don’t condone prostitution, but that’s not to say I wouldn’t get offered a lot of money for sex. He told me if I did engage in prostitution, that he encourages that I practice save [sic] sex and that any prostitution or sex that I had with a client would be off the table. ,

Defendant told Schodorf that she would be making about $500 to $1500 per week from donations. He also promised her that if she were arrested for prostitution, he would bail her out. In Defendant’s presence, Kochensparger explained that a lot of the customers would want sex, but that Schodorf did not have to provide sex. Kochensparger said Schodorf could do masturbation of the client. “She [Kochensparger] referred to masturbation between the breasts and called it a pearl necklace.” After the interview was complete, Schodorf was asked if she could start working that night. Schodorf said that she could not start until the next day, but due to safety reasons never began working at Enchanting Escorts.

Heatley’s Testimony

A week later on December 17, 1991, Heatley called a number advertised in the newspaper for Enchanting Escorts and requested that a model be sent to his hotel room. Heatley rented a hotel room under an alias. Four officers waited in a room across the hall, monitoring Heatley’s room with a listening device. At approximately 1:00 a.m. on December 18,1991, an escort, later identified as Arlene Villa, came to the hotel room.

When Villa arrived, “she went through the room, looked under the bed, looked in the shower, looked under tables, behind the curtains, by the window” and then called the agency to check in. Villa asked Heatley if he was associated with law enforcement and Heatley said that he was not. Villa explained that the service provided lingerie modeling, adult conversation, and a nude body massage, and requested an $80 agency fee.

After engaging in small talk, Heatley undressed and lay face down on the bed. Villa removed her clothes, revealing lingerie underneath, and proceeded to massage some lotion on his back. Villa then told Heatley to roll over. She placed a towel over his genitals and massaged his chest and legs. Villa then said “If there’s any place I have not massaged, take my hand and place it there,” so, Heatley placed Villa’s hand on his groin. At that time, Villa told Heatley that for a donation he had the option of “finishing” 1 between her breasts or thighs. Heatley instead requested to have sexual intercourse with Villa to which she responded, “Well, I won’t do that, but I will give you a blow job, but you have to wear a condom when I do.” Villa requested $100 for the “blow job,” which Heatley paid. At that point, officers who had been monitoring the room came in and arrested Villa.

DISCUSSION

Masturbation Jury Instruction

Defendant claims that the trial court erred by submitting, over Defendant’s objection, an erroneous definitional instruction on masturbation to the jury. We agree.

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Cite This Page — Counsel Stack

Bluebook (online)
900 P.2d 358, 120 N.M. 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mayfield-nmctapp-1995.