State v. Elliott

1

STATE OF NEW MEXICO, Plaintiff-Appellee, v. MAURY MONTEL ELLIOTT a/k/a MAURY MONTEL ELLIOT, Defendant-Appellant.

No. A-1-CA-40436

Court of Appeals of New Mexico

November 19, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY T. Glenn Ellington, District Court Judge

Raúl Torrez, Attorney General Lee Green, Assistant Solicitor General Santa Fe, NM for Appellee

Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellant

OPINION

JANE B. YOHALEM, JUDGE

{¶ 1} Defendant Maury Montel Elliott appeals his convictions for contributing to the delinquency of a minor (CDM), contrary to NMSA 1978, Section 30-6-3 (1990); and criminal sexual penetration in the commission of a felony (CSP II-felony), contrary to NMSA 1978, Section 30-9-11(E)(5) (2009). Defendant's primary claim is that his right to be free from double jeopardy was violated by his convictions for both CDM and CSP II-felony, where CDM was also the predicate felony relied on to increase what was otherwise criminal sexual penetration of a minor (CSPM), a fourth degree felony to CSP II-felony, a second degree felony. Defendant also challenges the sufficiency of the evidence to support his CDM and CSP II-felony convictions. Finally, Defendant contends that CDM is not an appropriate predicate felony to support a CSP II-felony conviction because it is too generic and nonspecific, or alternatively that, when CDM is the predicate felony, the use of force or coercion should be included in the jury instructions as an essential element of CSP II-felony. We conclude that Defendant's convictions for both CDM and CSP II-felony violate Defendant's right to be free from double jeopardy. We, therefore, vacate Defendant's conviction for CDM. We otherwise affirm.

BACKGROUND

{¶ 2} The State presented the following evidence at Defendant's trial. Defendant, who was twenty-three years old at the time, and his adult friend, met fifteen-year-old Victim, and Victim's fifteen-year-old friend, one evening at the plaza in Santa Fe, New Mexico. The two men approached the girls and offered them a drink of alcohol from a bottle concealed in a brown paper bag. The two men and the two girls chatted for about twenty minutes. When they left, Victim got both men's Instagram accounts. They planned to meet again at the plaza the following week.

{¶ 3} When that meeting did not work out, Defendant and his friend contacted

Victim through the friend's Instagram account. During the conversation, Victim mentioned that her mother would be out of town that night. Defendant, his friend, and Victim made plans to meet that evening.

{¶ 4} Victim testified that, approximately ten minutes after her mother's departure for the night, she contacted one of the men and instructed him to pick her up at a school near her house. Victim snuck out and walked to the school. When Victim arrived at the school, the two men came up to her and handed her a glass container of alcohol. The three got into Defendant's friend's car.

{¶ 5} Defendant's friend drove around the downtown area, and eventually stopped at a park where the three were alone. Victim and the two men got out of the car, sat on a curb, and began passing the bottle of alcohol around, each taking a drink.

Defendant's friend was smoking marijuana, and drank less frequently than Defendant and Victim, so Defendant and Victim passed the bottle back-and-forth, each drinking from it. When Victim mentioned not knowing how to smoke marijuana, Defendant inhaled smoke, created a tunnel with his hands (or with his hand and Victim's hand), connected one end of the tunnel to the end of his lips and the other to Victim's mouth and blew the marijuana smoke directly into her mouth.

{¶ 6} Victim testified that, after a while, she could not hold her head up and had to put her hands behind her on the curb in order to support herself. After another few rounds of drinking, Victim testified she "couldn't even walk straight" and was "really out of it." When asked how much she drank, Victim answered that she drank "a lot for [her]" because she was "in and out [of consciousness] the whole night."

{¶ 7} Victim fell down and vomited and one or both men (Victim could not remember) helped Victim get up and get back into Defendant's friend's car. They drove to Defendant's apartment. When Victim tried to get out of the car, she struggled, lacked balance, and could not walk on her own. Defendant's friend helped Victim out of the car and helped her walk up the stairs to Defendant's apartment.

{¶ 8} Once in the apartment, Victim testified that she began to feel sick again. Defendant helped Victim to the restroom and then to his bed. Defendant then lay down on the opposite side of the bed, next to Victim. Defendant's friend fell asleep on the floor next to the bed.

{¶ 9} Victim testified that she vomited again before losing consciousness. She woke up to find Defendant taking off her shoes. She once again lost consciousness. The next time she woke up, she was on her stomach, and Defendant was touching her on the outside of her pants, rubbing and palming her buttocks, between her legs, and her vagina. She described being scared, and either losing consciousness or "spacing out" and not being aware of what was happening.

{¶ 10} The next time Victim woke up, she was still on her stomach and Defendant was sliding her pants down. Defendant attempted to penetrate her with his penis, but ended up poking the area between her anus and vagina instead. She once again lost consciousness. The next time that she woke up, she was on her side, and Defendant was behind her with his penis inside her vagina. After some time, Defendant said he was going to ejaculate. Victim testified that she "snapped . . . back into reality" and pushed him away. She turned around and saw Defendant's friend asleep on the floor beside the bed. Victim then remembered falling back asleep.

{¶ 11} On the morning of the next day, Defendant woke Victim up and told her that his friend was going to take her back home. She testified that, during the car ride, she felt dirty and disgusted with herself. Victim directed Defendant's friend to drop her off a block from her house, and she walked home.

{¶ 12} A few days later, Victim reported to a trusted school official that something had happened to her. The school official contacted Victim's mother and notified law enforcement. Victim told her mother and law enforcement what occurred. Later that month, law enforcement interviewed Defendant. Defendant confirmed that he had sexual intercourse with Victim, but claimed that the encounter was consensual. The State introduced a recording of Defendant's interview. Defendant did not testify at trial.

{¶ 13} Defendant was convicted by the jury of CDM. The jury completed a special verdict form unanimously finding CDM based on Defendant helping Victim drink alcohol and use drugs. The jury also found Defendant guilty of CSP II-felony in the commission of CDM. This appeal followed.

DISCUSSION

{¶ 14}We take up Defendant's three claims of error in turn. First, we address the sufficiency of the evidence and conclude that the jury's guilty verdicts for CDM and CSP II-felony are supported by substantial evidence. Second, we turn to Defendant's double jeopardy challenge and conclude that his convictions for both CSP II-felony and CDM violate Defendant's right to be free from double jeopardy and accordingly vacate his CDM conviction. Third, we address Defendant's claim that CDM is not an appropriate predicate felony to elevate CSP II-felony because it is too generic and nonspecific or, alternatively, that the jury instruction for CSP II-felony in the commission of CDM was flawed because the jury was not instructed on what Defendant claims is an additional element: the use of force or coercion.

Rejecting this argument as inconsistent with legislative intent, we affirm the CSP II-felony conviction.

I. Sufficient Evidence Supports Defendant's Convictions for CDM and CSP

II-Felony {15} Defendant challenges the sufficiency of the evidence supporting his convictions for CDM and CSP II-felony. Defendant contends that the evidence presented at trial was insufficient to establish two elements of CDM: that Defendant actively helped Victim drink alcohol and use drugs, and that Defendant's conduct "caused or encouraged [Victim] to conduct herself in a manner injurious to her morals, health, or welfare." Defendant also challenges the sufficiency of the evidence of CSP II-felony, arguing that the evidence fails to establish that the sexual intercourse was perpetrated "during the commission of [CDM]," or that "[t]he commission of [CDM] assisted [D]efendant in causing [Victim] to engage in sexual intercourse." See UJI 14-954 NMRA (element 5).

A. Standard of Review

{¶ 16} "The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction." State v. Guerra 2012-NMSC-027, ¶ 10, 284 P.3d 1076 (internal quotation marks and citation omitted). "The reviewing court views the evidence in the light most favorable to the guilty verdict," id. (text only) (citation omitted), "resolv[ing] all disputed facts in favor of the [s]tate, indulg[ing] all reasonable inferences in support of the verdict, and disregard[ing] all evidence and inferences to the contrary," State v....