State Of N.M. v. Alatorre

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.ISIDRO ALATORRE, Defendant-Appellant.

No. 27, 923

COURT OF APPEALS OF THE STATE OF NEW MEXICO.

Filed: January 24, 2011

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY Douglas R. Driggers, District Judge

Gary K. King, Attorney General Santa Fe, NM for Appellee.

Jacqueline R. Medina, Assistant Attorney General Albuquerque, NM for Appellee.

Hugh W. Dangler, Chief Public Defender Will O'Connell, Assistant Appellate Defender Santa Fe, NM for Appellant.

MEMORANDUM OPINION

SUTIN, Judge.

Defendant appeals his convictions for one count of first degree criminal sexual penetration of a minor (CSPM) (child under 13 years of age), contrary to NMSA 1978, Section 30-9-11(A) and (C)(1) (1995, prior to amendments through 2009); six counts of third degree criminal sexual contact of a minor (CSCM) (child under 13 years of age), contrary to NMSA 1978, Section 30-9-13(A) (1991, prior to amendments through 2003); five counts of second degree CSPM (child 13-16 years of age, position of authority), contrary to Section 30-9-11(A) and (D) (2001, prior to amendments through 2009); and four counts of third degree CSCM (position of authority), contrary to Section 30-9-13(A) (2001) (amended 2003). On appeal, Defendant challenges the sufficiency of the evidence, arguing specifically that (1) Victim's testimony supports only four, as opposed to six, convictions for third degree CSCM (child under 13 years of age); (2) the evidence does not support the jury's determination that Defendant acted in a position of authority; and (3) Victim's testimony is not credible. For reasons discussed in this opinion, we affirm.

The Evidence Supports Defendant's Convictions for Six Counts of Third Degree CSCM (Child Under 13 Years of Age)

Defendant argues that the evidence is insufficient to support his six convictions for CSCM as charged in Counts 2 through 7 on the asserted basis that Victim's testimony supports only four incidents of CSCM. We review the evidence to determine "whether substantial evidence of either a direct or circumstantial natureexists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Under this standard, "we must view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We do not re-weigh the evidence, nor substitute our judgment for that of the factfinder, so long as there is sufficient evidence to support the verdict. Sutphin, 107 N.M. at 131, 753 P.2d at 1319.

To convict Defendant of Counts 2 through 7 of third degree CSCM, the State was required to prove beyond a reasonable doubt that Defendant, on six different occasions, unlawfully and intentionally touched or applied force to Victim's penis; that Victim was twelve years of age or younger; and that this happened in New Mexico between June 6, 2001, and June 20, 2001. See § 30-9-13(A) (1991); UJI 14925 NMRA.

The State relied on Victim's testimony to prove that Defendant committed the crimes. Victim began his testimony by describing his grandmother's house where the crimes took place. Victim testified about the touching incidents that took place when Defendant, his uncle, came for his grandfather's funeral and stayed at his grandmother's house for about two weeks between June 6, 2001, and June 20, 2001.

At this time, Victim was not yet thirteen years old. As discussed more fully later in this opinion, Victim testified about three specific incidents during this time-frame, which, for ease of reference, we refer to as the "porch incident," the "bedroom incident," and the "sofa incident." Apart from these three specific incidents, Victim also confirmed that Defendant touched him "three or four other times" down his pants. As for the porch incident, Victim testified that this was the first touching incident and that it took place a few days after his grandfather passed away. Victim testified that he stepped outside at night on his grandmother's porch "to go take a breather, and just reminisce." Defendant went outside, hugged him from the back, and then put his hands down the front of Victim's pants and touched Victim's penis.

With regard to the bedroom incident, Victim testified that this touching took place in the bedroom where his aunt and grandmother slept. Victim testified that he was lying down watching television in this bedroom when Defendant came in, sat next to him, and then touched him on his penis both over then under his clothes. In addition to the touching, this bedroom incident culminated in Defendant masturbating Victim and having Victim anally penetrate him (the subject of Defendant's conviction for first degree CSPM (child under 13 years old)). Victim further related a third touching, the sofa incident, which took place when Victim was sitting on the sofa and Defendant stuck his hand down Victim's pants.

In addition to the foregoing three incidents, evidence was presented that Defendant touched Victim "three or four other times." This evidence was presented first by Victim on direct examination. Then on redirect examination, the prosecutor asked Victim about times that Defendant touched him by putting his hand down Victim's pants. The following exchange took place, reiterating Victim's earlier testimony:

[Prosecutor:] So when you said that he touched you on the porch, and touched you on the sofa during the funeral-during that time he was here for the funeral, and then he touched you three or four other times down your pants, are you sure of that?

[Victim:] Yes, ma'am.

We agree with Defendant that the reference to "three or four other times" can only reasonably be viewed as supporting a finding of three other touching incidents, but not four. This contention is uncontested by the State. Given Victim's equivocal testimony, viewing this reference as support for four incidents would allow for the possibility of an impermissible verdict based on mere conjecture or surmise. See generally State v. Padilla, 104 N.M. 446, 448, 722 P.2d 697, 699 (Ct. App. 1986) (providing that "[i]f the evidence must be buttressed by surmise and conjecture rather than logical inference, the conviction cannot stand").

In dispute, however, is the scope of the three other times. From the State's perspective, the "other times" statement references three additional touching incidentsseparate from the porch, sofa, and bedroom incidents. In this regard, Defendant concedes that the bedroom incident, which culminated in an anal penetration, could not be viewed as encompassed within the three other times. This is because it "involved a sexual touching that was different from the generic 'hands-down-the-pants' scenario" about which Victim was testifying when the prosecutor asked the "other times" question. Defendant asserts, however, that the porch and sofa incidents are necessarily included within the three other times because they are not distinct from the "hands-down-the-pants" scenarios. We disagree. The prosecutor's question clearly references three other such incidents apart from the porch, sofa, and bedroom incidents, and from this, the jury could have reasonably inferred that such "hands-down-the-pants" incidents were in addition to those particular incidents. See State v. Garcia, 2005-NMSC-017, ¶ 20, 138 N.M. 1, 116 P.3d 72 (recognizing that the jury is entitled to draw reasonable inferences from the evidence to reach a conclusion that the defendant committed a crime).

Based on the foregoing discussion, we hold that Victim's testimony referencing the porch and sofa incidents, the three other times, and the bedroom incident, support the jury's determination that Defendant touched Victim's penis on six separate occasions during the period that Defendant was staying at the grandmother's house for the grandfather's funeral.

The Evidence Supports the Jury's Determination That Defendant Acted in a Position of Authority When He Committed the Crimes

In support of his sufficiency argument, Defendant also argues that the evidence was insufficient to show that he occupied a position of authority over Victim for his convictions for Counts 8 through 16.

To convict Defendant of the sexual offenses by a person in a position of authority, the State had to prove beyond a reasonable doubt that "Defendant was a person who[,] by reason of his relationship [with Victim,] was able to exercise undue influence over [Victim] and used his position of authority to coerce [Victim] to submit to the act[s.]" See NMSA 1978, § 30-9-10(E) (1993) (amended 2001 and 2005) (defining "position of authority" as "that position occupied by a parent, relative, household member, teacher, employer or other person who, by reason of that position, is able to exercise undue influence over a child"). The undue influence to compel submission "might take many forms but is less overtly threatening than physical force or threats." State v. Gardner, 2003-NMCA-107, ¶ 22, 134 N.M. 294, 76 P.3d 47 (internal quotation marks and citation omitted). "Undue influence results from moral, social, or domestic force exerted upon a party, so as to control the free action of his or her will." Id. (alteration omitted) (internal quotation marks and citation omitted).

In the present case, our review of the evidence supports the jury's determination that Defendant was in a position of authority over Victim and used this...