State v. Silva

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 28,711 10 MICHAEL ANTHONY SILVA, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Carl J. Butkus, District Judge

14 Gary K. King, Attorney General 15 Farhan Khan, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee

18 Law Offices of Nancy L. Simmons, P. C. 19 Nancy L. Simmons 20 Albuquerque, NM

21 for Appellant 22 MEMORANDUM OPINION 23 GARCIA, Judge. 24 Defendant appeals his multiple convictions for criminal sexual penetration,

2

1 kidnaping, aggravated burglary, aggravated battery, criminal sexual contact, larceny, 2 attempted criminal sexual penetration, and aggravated assault. Defendant argues that 3 (1) the district court erred in admitting statistical DNA testimony at trial; (2) the 4 district court erred in applying the crimes against the elderly enhancement; and (3) 5 there was insufficient evidence to sustain Defendant’s conviction for attempted CSP 6 (Count 25 of the indictment). We affirm regarding admission of DNA testimony and 7 the application of the elderly enhancement statute. We reverse and vacate the 8 sentence with regard to Count 25. 9 BACKGROUND 10 In 2001, Defendant entered the separate homes of three different women and 11 committed multiple criminal acts. The State and Defendant agree on the basic facts 12 underlying the incidents. We therefore need not recount the details of all three cases 13 for purposes of this opinion, but will instead limit our recitation of the facts to those 14 facts necessary for resolution of the issues raised by Defendant. Defendant was 15 charged with thirty-nine criminal counts, including criminal sexual penetration, 16 kidnaping, aggravated burglary, aggravated battery, criminal sexual contact, larceny, 17 interference with communications, attempted criminal sexual penetration, and 18 aggravated assault. The victims were three Albuquerque women who were ages 19 ninety-four, fifty-nine, and seventy-two at the time of the crimes. The trials were

3

1 severed as to each alleged victim. DNA evidence linked Defendant to all three 2 victims, and a DNA expert testified in each case. Defendant objected to the 3 foundation for this testimony at all three trials. 4 After three juries found Defendant guilty of multiple counts, the cases were 5 consolidated for sentencing purposes. The district court vacated several counts, 6 finding that they were subsumed within other counts. Defendant was ultimately 7 sentenced to 220 years, less 7 days. 8 DISCUSSION 9 Testimony Regarding DNA Evidence 10 Pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and 11 State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), Defendant 12 argues that the district court erred in allowing testimony regarding the statistical 13 calculations underlying a DNA match to be submitted to the jury. Defendant 14 maintains that there was a lack of a proper foundation to elicit such testimony. He 15 also argues that the testimony was more prejudicial than probative. 16 Because “admission of expert testimony or other scientific evidence is 17 peculiarly within the sound discretion of the [district] court,” we will not reverse a 18 district court’s ruling absent a showing of abuse of discretion. State v. Alberico, 116 19 N.M. 156, 169, 861 P.2d 192, 205 (1993). “An abuse of discretion occurs when the

4

1 ruling is clearly against the logic and effect of the facts and circumstances of the case. 2 We cannot say the [district] court abused its discretion by its ruling unless we can 3 characterize it as clearly untenable or not justified by reason.” State v. Rojo, 1999- 4 NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation 5 omitted). We also leave a determination of whether the prejudicial impact of evidence 6 outweighs its probative value to the discretion of the district court. Id. ¶ 48. In 7 determining whether the district court abused its discretion, we consider the probative 8 value of the evidence, but we do not necessarily require exclusion based on the fact 9 that some jurors might find the evidence offensive or inflammatory. Id. 10 We decline to address Defendant’s argument on this issue because he provided 11 no facts or legal authority in support of his argument. We will not consider an issue 12 if no supporting authority is cited because, absent cited authority, we assume no such 13 authority exists. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 14 (1984). Instead, we presume that rulings or decisions of the district court are correct, 15 and the party claiming error bears the burden of showing such error. State v. Aragon, 16 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211. 17 We see no error in the district court’s admission of the DNA testimony in this 18 case. New Mexico law requires that the district court “establish the reliability of 19 scientific knowledge.” State v. Lente, 2005-NMCA-111, ¶ 4, 138 N.M. 312, 119 P.3d

5

1 737. New Mexico case law has also recognized that DNA testing has been generally 2 accepted in the scientific community. State v. Anderson, 118 N.M. 284, 300-01, 881 3 P.2d 29, 45-46 (1994) (addressing the FBI’s method for determining the probability 4 of a coincidental DNA match); State v. Stills, 1998-NMSC-009, ¶ 31, 125 N.M. 66, 5 957 P.2d 51 (stating that any remaining controversy over the results of the DNA 6 testing goes to the weight of the evidence). Given this authority, it does not appear 7 that the district court abused its discretion when it permitted the DNA testimony in 8 this case. Consequently, we affirm the district court’s admission of testimony 9 regarding the statistical calculations underlying a DNA match. 10 Application of the Elderly Enhancement Statute 11 On December 28, 2005, the State charged Defendant with thirty-nine criminal 12 counts and applied elderly enhancements under NMSA 1978, Section 31-18-16.1 13 (1993) (repealed 2003), to the following charges: criminal sexual penetration, 14 kidnaping, aggravated burglary, aggravated battery, attempted criminal sexual 15 penetration, and criminal sexual contact. In the two trials involving victims who were 16 sixty years of age or older at the time the crimes were committed, the district court 17 permitted juries to consider enhancing Defendant’s sentence for many of the counts 18 under the elderly enhancement statute. Both juries found the requisite factual findings 19 to apply the elderly enhancement, and Defendant received elderly enhancements for

6

1 eleven of the counts for which he was convicted. 2 Defendant argues that the district court erred in applying the elderly 3 enhancement statute. In 2003, the Legislature simultaneously repealed the elderly 4 enhancement statute and replaced it with the Hate Crimes Act, NMSA 1978, Sections 5 31-18B-1 to 5 (2003), for crimes based upon certain identified categories, including 6 age. 2003 N.M. Laws, ch. 384, §§ 1-7. The parties agree that the elderly 7 enhancement statute was in place at the time the offenses were committed; however, 8 the statute was repealed before Defendant was charged with any crime. 9 We review issues of statutory interpretation de novo. State v. Duhon, 10 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. When interpreting statutory 11 language, our primary goal is “to give effect to the intent of the [L]egislature.” State 12 v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. We apply a de novo 13 standard of review when reviewing the legality of a sentence under a statute. State v. 14 Brown, 1999-NMSC-004, ¶¶ 7-8, 126 N.M. 642, 974 P.2d 136. 15 The elderly enhancement statute provided that “[w]hen a separate finding of 16 fact by the court or jury shows that in the commission of a noncapital felony a person 17 sixty years of age or older . . . was intentionally injured, the basic sentence . . . shall 18 be increased.” Section 31-18-16.1. The statute permitted either a one-year or two- 19 year enhancement, depending on the existence or absence of great bodily harm and/or

7

1 the presence of a deadly weapon. Cf. Sections 31-18-16.1(A) (1) through (2). The 2 statute was repealed and replaced with the Hate Crimes Act, which states that “[w]hen 3 a separate finding of fact by the court or jury shows beyond a reasonable doubt that 4 an offender committed a noncapital felony motivated by hate, the basic sentence . . . 5 may be increased by one year.” Section 31-18B-3. “[M]otivated by hate” is defined 6 as “the commission of a crime with the intent to commit the crime because of the 7 actual or perceived race, religion, color, national origin, ancestry, age, handicapped 8 status, gender, sexual orientation or gender identity of the victim, whether or not the 9 offender’s belief or perception was correct.” Section 31-18B-2(D) (emphasis added). 10 Defendant argues that under State v. Lucero, the elderly enhancement statute 11 should not have been applied because Defendant’s case was not pending at the time 12 the statute was repealed. 2007-NMSC-041, ¶ 20, 142 N.M. 102, 163 P.3d 489 13 (holding that the elderly enhancement statute did apply under the circumstance where 14 the defendant’s case was pending at the time the statute was repealed). We disagree. 15 Lucero relied upon Article IV, Section 34 of the New Mexico Constitution, which 16 provides that “[n]o act of the [L]egislature shall affect the right or remedy of either 17 party, or change the rules of evidence or procedure, in any pending case.” Lucero, 18 2007-NMSC-041, ¶ 14 (internal quotation marks and citation omitted). In addition, 19 Lucero identified an important factor in this analysis when it noted that the “elements

8

1 of a crime” contained in the elderly enhancement statute must be determined by the 2 jury’s “factual findings, beyond a reasonable doubt . . . at the time the offense was 3 committed.” Id. ¶ 17. The Supreme Court also affirmed its longstanding position that 4 “the law, at the time of the commission of the offense, is controlling.” Id. ¶ 14 5 (internal quotation marks and citation omitted). In State v. Allen, the Court held that 6 the punishment defined within the version of the first degree murder statute that was 7 in effect at the time of the commission of the crime was controlling. 82 N.M. 373, 8 374, 482 P.2d 237, 238 (1971). Similarly, in State v. Armstrong, the Court determined 9 that an amendment to the Parole Act did not change the statutory penalty for the 10 underlying crime of manslaughter, and that the applicable penalty for manslaughter 11 was the penalty in effect at the time the crime was committed. 61 N.M. 258, 260-61, 12 298 P.2d 941, 942-43 (1956). 13 This position is applicable to Defendant’s case under Article IV, Section 33 of 14 the New Mexico Constitution, which states that “[n]o person shall be exempt from 15 prosecution and punishment for any crime or offenses against any law of this state by 16 reason of the subsequent repeal of such law.” N.M. Const. art. IV, § 33; see State v. 17 Shay, 2004-NMCA-077, ¶ 18, 136 N.M. 8, 94 P.3d 8 (recognizing that Section 33 18 only applies where the Legislature repeals a law proscribing a crime or offense). 19 Section 31-18-16.1 contains the elements of a crime and requires a jury to make

9

1 specific findings regarding the alleged offense against the elderly. Lucero, 2007- 2 NMSC-041, ¶ 17. Consistent with Allen and Armstrong, we determine that Article IV, 3 Section 33 would apply to any repeal of a statute defining the elements and 4 punishment for an underlying criminal offense charged against an accused. The 5 determination of when the elements of such an offense are pending for factual 6 determination must be made at the time the offense was committed, pursuant to the 7 specific language in the elderly enhancement statute. Lucero, 2007-NMSC-041, ¶ 17. 8 Therefore, Defendant’s elderly enhancement offense was not exempt from prosecution 9 by reason of the subsequent repeal of the elderly enhancement law. 10 Defendant’s reliance upon several cases dealing with the habitual offender 11 enhancement under Section 31-18-17 is misplaced. See Shay, 2004-NMCA-077; State 12 v. Stanford, 2004-NMCA-071, 136 N.M. 14, 94 P.3d 14. As we noted in Shay, the 13 definition of “pending” for the purpose of Article IV, Section 34, depends on the 14 statute in question. 2004-NMCA-077, ¶ 20. Under our habitual offender statute, a 15 person must be convicted of a noncapital felony before the habitual offender 16 enhancement can be applied. Lucero, 2007-NMSC-041, ¶ 17. Conviction is a 17 prerequisite; therefore, this “[enhancement] is entirely contingent upon and does not 18 ripen until a defendant is convicted of a crime.” Shay, 2004-NMCA-077, ¶ 20. 19 Consequently, the habitual offender proceeding in Shay was not pending until a

10

1 supplemental information was filed following conviction, and only thereafter did “the 2 issue of habitual offender status . . . need[] to be decided.” Id. As a result, a habitual 3 offender enhancement is clearly distinguished from an elderly enhancement offense. 4 The habitual enhancement is strictly a sentencing statute that does not ripen until after 5 a conviction and contains no factual elements associated with the time an underlying 6 offense was committed. In contrast, the elderly enhancement statute contains 7 elements of a crime which require that findings be made at the time the offense was 8 committed. Defendant’s reliance upon the analysis of the habitual offender 9 enhancement under Shay and Stanford was also distinguished in Lucero. 2007- 10 NMSC-041, ¶¶ 17-18. Lucero is controlling and requires that the determination of 11 when the elderly enhancement offense is ripe for imposition against Defendant be 12 established at the time that the offense was committed. Id. Therefore, the elderly 13 enhancement statute was properly applied to Defendant’s case because the elements 14 of the offense were pending for factual determination at the time the offense was 15 committed, and the statute was not repealed until several years later. 16 Attempted Criminal Sexual Penetration (Count 25) 17 At trial, Defendant moved for a directed verdict as to Count 25, but that request 18 was denied. Defendant argues that there was insufficient evidence to sustain his 19 conviction for attempted criminal sexual penetration. Specifically, Defendant argues

11

1 that there was a lack of evidence that he committed an overt act in furtherance of this 2 crime. 3 In reviewing the sufficiency of the evidence, we analyze “whether direct or 4 circumstantial substantial evidence exists and supports a verdict of guilt beyond a 5 reasonable doubt with respect to every element essential for conviction. We 6 determine whether a rational factfinder could have found that each element of the 7 crime was established beyond a reasonable doubt.” State v. Kent, 2006-NMCA-134, 8 ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations omitted). We “view the evidence in the 9 light most favorable to the guilty verdict, indulging all reasonable inferences and 10 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 11 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 12 Section 30-28-1 defines attempt to commit a felony as “an overt act in 13 furtherance of and with intent to commit a felony and tending but failing to effect its 14 commission.” NMSA 1978, § 30-28-1 (1963). Criminal sexual penetration is 15 defined as “the unlawful and intentional causing of a person to engage in sexual 16 intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to 17 any extent and with any object, of the genital or anal openings of another, whether or 18 not there is any emission.” NMSA 1978, § 30-9-11(A) (1995) (amended 2009). It is 19 undisputed that the act underlying Count 25 was an alleged attempt to cause one of

12

1 the victims (Victim), to engage in anal intercourse. Consequently, we review whether 2 there was sufficient evidence that Defendant committed an overt act to further the 3 unlawful and intentional causing of Victim to engage in anal intercourse. 4 The parties agree regarding the basic facts. Defendant broke into Victim’s 5 home. He then ripped her clothes, beat her up, struck her with a fireplace tool, 6 blindfolded her, and tied her up. Defendant proceeded to rub oil on her upper torso 7 and then vaginally and orally penetrated Victim, although the timing of the oral rape 8 is somewhat unclear. 9 Defendant subsequently told Victim that he wanted her to accompany him into 10 the bedroom and informed her that he wanted to have anal sex with her. Victim 11 refused to accompany Defendant into the bedroom. Defendant then apparently 12 continued to rummage through Victim’s house, eventually leaving with approximately 13 $8,000. 14 Defendant does not challenge the sufficiency of the evidence for the convictions 15 stemming from the vaginal and oral penetration. He only challenges the sufficiency 16 of the evidence regarding the attempt conviction, which stems from Defendant’s 17 informing Victim that he wanted her to accompany him to the bedroom and have anal 18 sex. 19 Attempt requires two essential elements: “An overt act in furtherance of but

13

1 failing to consummate the goal crime, coupled with the intent to commit the goal 2 crime.” State v. Green, 116 N.M. 273, 280, 861 P.2d 954, 961 (1993). The overt act 3 must go beyond “mere preparation.” Id. Moreover, attempt requires specific intent, 4 and objective facts are required to corroborate the existence of that intent. Id. Intent 5 may, however, be proven by reasonable inferences shown by the evidence. Id. Intent 6 becomes a question of fact for the jury if reasonable inferences and sufficient 7 circumstances exist. Id. 8 While we agree with the State that slight acts in furtherance of intent will 9 constitute attempt, we do not agree that such an act occurred in this case. See, e.g., 10 State v. Trejo, 83 N.M. 511, 512, 494 P.2d 173, 174 (Ct. App. 1972) (noting that 11 “slight acts in furtherance of that intent will constitute an attempt”). Once Victim 12 refused to comply with his verbal command that she go into the bedroom for anal sex, 13 he appears to have made no efforts toward effectuating that goal. Instead, he turned 14 toward other criminal acts such as searching Victim’s home for jewelry and other 15 valuables. While we find Defendant’s actions utterly reprehensible, we cannot agree 16 with the State that Defendant engaged in any overt act to cause Victim to engage in 17 anal intercourse. Rather, it appears that Defendant abandoned this demand in favor 18 of other crimes once Victim refused the verbal command to accompany him. 19 Nor do we agree that Defendant’s other ongoing crimes may be used as overt

14

1 acts or demonstrate Defendant’s specific intent as to attempted anal penetration in this 2 case. The State points to State v. LeMarr for the proposition that the ripping of a 3 victim’s shirt and the attempt to remove a victim’s pants may support a conviction for 4 attempted rape. 83 N.M. 18, 20-21, 487 P.2d 1088, 1090-91 (1971). In LeMarr, 5 however, the specific actions of the defendant, the ripping of her shirt and the attempt 6 to remove her pants, were clearly overt actions toward rape; these overt actions were 7 distinct and not tied to other charges against the defendant for which he was 8 convicted. 9 Factually, this case is quite different from LeMarr. Here, Defendant was tried 10 and convicted for the same underlying actions that the State points to as supporting 11 the conviction for attempted criminal sexual penetration. Defendant was tried and 12 convicted for, among other charges, both the vaginal and oral penetrations, aggravated 13 battery, and aggravated burglary. The State points to no separate, overt action that 14 Defendant took toward causing Victim to engage in anal intercourse, other than 15 verbally commanding that she accompany him to the bedroom, a demand which she 16 refused. Under these facts, we cannot hold that sufficient evidence exists to support 17 a conviction for attempted criminal sexual penetration. We therefore reverse and 18 vacate Defendant’s conviction as to Count 25. 19 CONCLUSION

15

1 For the foregoing reasons, we affirm the district court’s admission of testimony 2 regarding DNA evidence and the application of elderly enhancement statute to the 3 Defendant’s crimes against two elderly victims. We further reverse and vacate the 4 verdict with regard to Count 25. 5 IT IS SO ORDERED.

6 ______________________________ 7 TIMOTHY L. GARCIA, Judge

8 WE CONCUR:

9 _________________________________ 10 RODERICK T. KENNEDY, Judge

11 _________________________________ 12 ROBERT E. ROBLES, Judge