State v. Cebada

544 P.3d 269

2024-NMCA-023

STATE of New Mexico, Plaintiff-Appellee,

v.Edward CEBADA, Defendant-Appellant.

No. A-1-CA-38510

Court of Appeals of New Mexico.

Filing Date: June 30, 2023

Certiorari Denied, September 27, 2023, No. S-1-SC-40010

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Jacqueline D. Flores, District Court Judge

Raúl Torrez, Attorney General, Van Snow, Assistant Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Joelle N. Gonzales, Assistant Appellate Defender, Santa Fe, NM for Appellant

OPINION

HENDERSON, Judge.

[1] {1} A jury convicted Defendant Edward Cebada of one count of criminal sexual penetration of a minor (CSPM) for digitally penetrating the vagina of a sixteen-year-old female (Victim) by force or coercion, contrary to NMSA 1978, Section 30-9-11(E)(1) (2009).¹ Defendant appeals his conviction, arguing: (1) the jury should have been instructed on the age of consent in New Mexico; (2) the jury’s question of the age of consent in New Mexico should have been answered; and (3) the district court should have granted a new trial based on the jury’s responses to polling that indicated it was confused about the age of consent in New Mexico. The district court instructed the jury that a conviction of CSPM required the act to have been unlawful, including that it was committed without consent. We again reiterate that lack of consent is not a necessary element of CSPM by force or coercion. See State v. Begaye, 2022-NMCA-012, ¶¶ 10-12, 505 P.3d 871, cert. denied (S-1-SC-39078, Feb. 17, 2022). However, no one having complained on appeal about that instruction, we take the opportunity to explain that under the facts of this case the jury was not required to be further instructed on the age of consent in New Mexico. We accordingly reject Defendant’s arguments and affirm.

BACKGROUND

{2} The factual background of this case is less relevant to our discussion than the events that occurred at trial, so we only briefly discuss them for context. At some point, Defendant became acquainted with the Victim in this case through his job working at a gas station. After exchanging a number of texts, the two arranged to go on a date at a local mall. They walked in the mall for some time before going outside and sitting together in the Victim’s car in the mall parking lot. The two were kissing when Defendant began rubbing the Victim’s thigh with his hand. The Victim testified at trial that Defendant attempted to, move his hand fur- ther up her leg and into her shorts, but that she moved his hand away and told him to stop. Despite this, Defendant ultimately slipped his hand inside the Victim’s shorts and started rubbing her vagina and digitally penetrating her. The Victim was able to move Defendant’s hand at some point, and when Defendant tried to continue she told him again that she wanted him to stop. While the two were in the car the Victim texted a friend asking her to call Victim, and when the friend called, the Victim told Defendant that she needed to leave; the encounter ended soon afterward. Law enforcement discovered the incident and Defendant was indicted by a grand jury for CSPM and other alleged crimes. In the end, Defendant was convicted of one count of CSPM, and although Defendant moved for a new trial, his motion was denied. He now appeals.

{3} We discuss any remaining facts, and the events during Defendant’s trial, as they become relevant to our analysis.

DISCUSSION

I. Age of Consent Instruction

[2] {4} We first discuss whether the district court erred by not instructing the jury on the age of consent in New Mexico. "The standard of review we apply to jury instructions depends on whether the issue has been preserved." State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. If it has been preserved, we review for reversible error, but otherwise, we review for fundamental error. See id.

[3–5] {5} The State argues that Defendant failed to preserve his claim of error because he did not tender a legally correct jury instruction to the district court. Under Rule 5-608(D) NMRA, to preserve a claim of error for failure to instruct "a correct written instruction must be tendered before the jury is instructed." The purpose of Rule 5-608(D) "is to alert the trial court to the defendant’s argument." State v. Jernigan, 2006-NMSC-003, ¶ 10, 139 N.M. 1, 127 P.3d 537. To that end, "if the record reflects that the judge clearly understood the type of instruction the [d]efendant wanted and understood the tendered instruction needed to be modified to correctly state the law, then the issue is deemed preserved for appellate review." Id. Here, Defendant tendered his requested instruction—"[a] sixteen-year-old can lawfully consent to sexual activity"—to the district court, and the parties engaged in substantial argument over its propriety. The district court had ample opportunity to provide a correct instruction, if Defendant’s requested instruction was indeed incorrect, but did not do so because it believed the age of consent to be irrelevant. See id. ¶ 15 (holding that an issue of failure to instruct was preserved when the district court "understood [the defendant wanted an attempted voluntary manslaughter instruction and had an opportunity to modify the instruction to correctly state the law …"). Thus, Defendant’s claim of error is preserved, arid we review for reversible error.

{6} Defendant’s argument is two-fold. First, Defendant broadly asserts that "where the alleged Victim is [sixteen] or [seventeen] years old, New Mexico precedent clearly recognizes that a lack of consent, as a component of unlawfulness, is an essential element [of CSPM by force or coercion] upon which the jury must be instructed" Second, Defendant contends that the specific facts of this case supported an instruction on the age of consent in New Mexico, and the failure to instruct accordingly resulted in juror confusion.

[6] {7} As to Defendant’s first argument, this case does not require us to examine whether consent is an essential element of CSPM by force or coercion. The jury was instructed that to convict Defendant of CSPM it must conclude that the act charged in Count 1 was "unlawful." It was further instructed that "[f]or the act to have been unlawful it must have been done without consent and with the intent to, arouse or gratify sexual, desire." See UJI 14-132 NMRA. The unlawfulness instruction was given to the jury at Defendant’s request, and over the State’s objection. Requiring the jury to find that Defendant acted without consent contradicts our Supreme Court’s statement in State v. Samora, 2016-NMSC-031, 387 P.3d 230. There, our Supreme Court noted that in a prosecution for criminal sexual penetration of a child between the ages of thir- teen and eighteen by force or coercion, "if the prosecution has proved that force or coercion was used by the perpetrator, it has also necessarily proved that the act was non-consensual, and a separate finding of a lack of consent is not required." Id. ¶ 26; see also Begaye, 2022-NMCA-012, ¶ 12, 505 P.3d 871 (rejecting an argument that our Supreme Court’s statement in Samora was dicta, concluding that "the use of force on a child between the ages of thirteen and eighteen makes consent irrelevant"); see also NMSA 1978, § 30-9-10(A) (2005) ("Physical or verbal resistance of the victim is not an element of force or coercion."). However, unchallenged jury instructions become law of the case on appeal. Estate of Saenz ex rel. Saenz v. Ranack Constructors, Inc., 2018-NMSC-032, ¶ 40, 420 P.3d 576. Rather than the propriety of instructing on the age of consent, the question before us is, given the fact the jury was instructed as such, was the district court required to further instruct on the legal age of consent in New Mexico.

[7–9] {8} We therefore address whether the facts warranted an instruction on the legal age of consent in New Mexico and if the instruction would have confused or misled the jury. "When evidence at trial supports the giving of an instruction on a defendant’s theory of the case, failure to so instruct is reversible error." See State v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69. A review of the record makes clear that Defendant’s theory of the case was not that the Victim consented, but that he never penetrated her. The only evidence at trial concerning consent was provided by the Victim—and she denied that she gave it. The Victim testified that she repeatedly told Defendant, "No. I don’t want to do that. No," and "No, I didn’t want to, really," when he digitally penetrated her vagina. Defendant does not point us to any evidence to the contrary. While he asserts that the Victim consented to going on a date and to kissing, consent to those prior acts is not evidence of consent to digital penetration. "A person is entitled to withdraw [their] consent or express a lack of consent to an act of criminal sexual penetration at any point prior to the act itself …." See State v. Pisio, 1994-NMCA-152, ¶ 38, 119 N.M. 252, 889 P.2d 860. No evidence of consent to digital penetration was presented during trial, even during Defendant’s cross-examination of the Victim.

[10] {9} We nevertheless acknowledge that consent was put in issue when the district court instructed the jury that to convict Defendant of CSPM it must find that he acted without consent. Defendant argues that by not further instructing the jury on the age of consent in New Mexico, the district court failed to instruct on "all questions of law essential for a conviction of" CSPM by force or coercion, constituting reversible error. However, even if we were to assume including the language regarding consent into the unlawfulness instruction made the age of consent essential, "[w]hen there can be no dispute that the essential element was established … failure to instruct on that element does not require reversal of the conviction." Santillanes v. State, 1993-NMSC-012, ¶ 32, 115...