State v. Perea

2008 NMCA 147, 194 P.3d 738, 145 N.M. 123
CourtNew Mexico Court of Appeals
DecidedJuly 29, 2008
DocketNo. 26,617
StatusPublished
Cited by10 cases

This text of 2008 NMCA 147 (State v. Perea) 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. Perea, 2008 NMCA 147, 194 P.3d 738, 145 N.M. 123 (N.M. Ct. App. 2008).

Opinion

OPINION

KENNEDY, Judge.

{1} Defendant Paul Perea appeals his convictions of third degree criminal sexual penetration (CSP III) by use of force, contrary to NMSA 1978, § 30-9-11 (2003) (amended 2007), and enticement of a child, contrary to NMSA 1978, § 30-9-1 (1963). Defendant argues on appeal that the evidence only supports a conviction for CSP IV (criminal sexual penetration of a child between thirteen and sixteen years of age) and attacks the sufficiency of the evidence on an essential element of the child enticement charge. We affirm Defendant’s convictions.

FACTS

{2} The victim in this case, A.S., was eleven or twelve years old at the time she met Defendant through her mother. Mother and Defendant attended classes together, became friends, and visited at each other’s houses on occasion, sometimes in the presence of both A.S. and her younger brother.

{3} During Christmas of 2004, A.S. received a cell phone as a gift from her father and from Mother for the purpose of keeping in contact. When A.S.’s first cell phone bill arrived in February, Mother contacted her former husband to inform him that the twenty dollar phone plan had somehow turned into a bill of nearly $600. However, when Mother noticed Defendant’s number listed on the bill many times, her focus quickly changed from the amount of the bill to why Defendant was communicating with her daughter. When she confronted her daughter, A.S. broke down and told Mother about the incidents that finally led to Defendant’s being charged with CSP and child enticement. We discuss the facts with regard to the criminal offenses below.

STANDARD OF REVIEW

{4} Defendant attacks the sufficiency of evidence to support his convictions. A review for sufficiency of the evidence is a two-step process. State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994). Initially, we view the evidence in the light most favorable to the verdict, resolving all conflicts and indulging all reasonable inferences in favor of the verdict. Id. at 765-66, 887 P.2d at 759-60. Then we must make a legal determination of whether the evidence viewed in this manner could justify a finding by a rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt. Id. at 766, 887 P.2d at 760. We do not weigh the evidence or substitute our judgment for that of the fact finder. State v. Coffin, 1999-NMSC-038, ¶ 73, 128 N.M. 192, 991 P.2d 477; State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988).

{5} We review the record to determine if substantial evidence of either a direct or circumstantial nature existed such that a rational jury could have found proof beyond a reasonable doubt with respect to each element of the charged offense. State v. Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct.App.1993). “This Court does not consider the merit of evidence that may have supported a verdict to the contrary.” State v. Montoya, 2005-NMCA-078, ¶3, 137 N.M. 713, 114 P.3d 393 (internal quotation marks and citation omitted).

DISCUSSION

{6} Defendant was convicted of one count of CSP III and one count of enticement of a child. In order to convict Defendant of CSP Ill through the use of force, the jury was required to find that Defendant caused the victim to engage in sexual intercourse and that he used physical force or coercion. Section 30-9-ll(E). Defendant contends that there was not sufficient evidence of the use of force. In support of this argument, he points out that there was no testimony or physical evidence to suggest that he used force or coercion to penetrate the victim. Defendant essentially argues that although he exercised poor judgment in having sexual intercourse with A.S., there was not sufficient evidence to prove beyond a reasonable doubt that physical force or coercion was used. Likewise, he suggests that he should have been convicted of CSP IV. We disagree.

Use of Force in Criminal Sexual Penetration

{7} On January 7, 2005, the day the first incident of CSP allegedly took place, A.S. was dropped off at her bus stop at 2:30 p.m. When she got off the bus, she noticed Defendant in his car. She went over to talk with him and got into the car willingly because Defendant had become somewhat of a father figure to her. Once in the car, Defendant drove on a dirt road to a remote mesa location where he began kissing her. He had tried to kiss her before, and she had backed away. He then asked if she was “ready” and said “I think you are” as he began unbuttoning her pants. She told him that she was not ready and that she did not want to have sex, but he did not respond. He continued to unbutton her pants and then pulled them down. She did not resist because she was scared. He then took his pants off. He went to her side of the car and reclined her seat. He told her to open her legs; she complied. He informed her that it might hurt because he had a piercing in the shape of a bar bell through the head of his penis. He pushed her legs further apart with his leg and penetrated her. A.S. testified that it hurt. She told him that she wanted to stop, but he did not stop. Defendant stopped after A.S. told him a second time. There was no testimony from A.S. that she consented to the intercourse.

{8} Defendant concedes that “[tjhere is a view of these facts, standing alone, to support a conviction for CSP through physical force or violence.” We agree, and under our standard of review, that is sufficient to support a conviction. Nevertheless, Defendant continues to argue that there was no evidence of force. Defendant’s contention is that the complete picture requires more, factually: A.S.’s frequent telephone calls to him before and after the sexual incident, which included conversations about sex and their “feelings for one another,” her continued calls to him after their sexual encounter, and her arranging to skip school to meet him on January 28 (the date of a second incident). This position casting A.S. as a full partner in the encounter belies his use of force.

{9} We disagree that there could not be a finding of force based on a bare assertion that A.S. was a willing participant in sexual encounters with Defendant. His assertion of willing participation is contradicted by A.S.’s testimony that she asked him to stop and did not consent to the intercourse. Further, we hold that consent is not a viable legal defense to conviction for CSP III. Consent of a child between the ages of thirteen and sixteen to engage in sexual intercourse is irrelevant where force or coercion is involved. State v. Pisio, 119 N.M. 252, 260, 889 P.2d 860, 868 (Ct.App.1994) (“[The defendant’s] theory is not a reasonable view of the evidence.”).

{10} Defendant argues that he should have been convicted of the lesser CSP IV charge. The jury was instructed on CSP IV, which predicates guilt not on the use of force but on age difference and the ages of the victim and the offender. Under our deferential standard of review, we cannot countenance Defendant’s view of the facts in this case, which is in the light most favorable to him, contrary to the standard of review.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Ferrell
New Mexico Court of Appeals, 2022
State v. Begaye
2022 NMCA 012 (New Mexico Court of Appeals, 2021)
State v. Samora
2016 NMSC 031 (New Mexico Supreme Court, 2016)
State v. Perales
New Mexico Court of Appeals, 2013
State v. Green
New Mexico Court of Appeals, 2012
State v. Renolds
New Mexico Court of Appeals, 2012
State v. Moore
2011 NMCA 089 (New Mexico Court of Appeals, 2011)
United States v. Christy
785 F. Supp. 2d 1004 (D. New Mexico, 2011)
State v. Martin
New Mexico Supreme Court, 2010

Cite This Page — Counsel Stack

Bluebook (online)
2008 NMCA 147, 194 P.3d 738, 145 N.M. 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perea-nmctapp-2008.