State v. Haskins

186 P.3d 916

2008 NMCA 086

STATE of New Mexico, Plaintiff-Appellee, v. David HASKINS, Defendant-Appellant.

No. 26,595.

Court of Appeals of New Mexico.

April 2, 2008.

Certiorari Denied, No. 31,064, May 14, 2008.

Gary K. King, Attorney General, Santa Fe, NM, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} Defendant, a massage therapist, was convicted of eight counts of criminal sexual contact of a minor (CSCM) by use of coercion by a person in a position of authority, contrary to NMSA 1978, § 30-9-13(A) (2003). On appeal, he argues that (1) there was insufficient evidence to prove that he was in a position of authority over the victims, (2) his sentences violated double jeopardy on a multiple punishment, unit of prosecution theory, (3) the trial court abused its discretion in allowing certain testimony concerning aspects of massage theory, and (4) the trial court erred in allowing videotaped witness testimony. We affirm.

FACTS

{2} Defendant's convictions arise from actions he took while administering massage therapy to Jessica, age 15, and Stephanie, age 17. Jessica testified that she first went to Defendant's house to split a one-hour massage with her mother. This was the first massage she had ever received. She did not have a conversation with Defendant about what the massage would entail, and she did not complete a consent form prior to the massage. Jessica undressed to her underwear, covered herself with a sheet, and lay down on the table. Defendant entered the room and massaged Jessica's head, back, stomach, legs, feet, and arms. He then told Jessica that breast massage was part of the massage, and he asked if she would like it done. Jessica consented because she thought it was part of the massage. Defendant removed the sheet and fully massaged her breasts. Defendant also massaged Jessica's bare buttocks without consent, but Jessica thought that this was also a normal component of a full-body massage. Jessica left without having any concerns about the massage or about Defendant.

{3} Jessica returned to Defendant's home for a second massage about a month later. This session also included several minutes of full breast massage. Defendant performed the massage under the sheet and Jessica was not wearing a bra. Defendant informed Jessica when he was about to begin massaging her breasts, but he did not seek her consent. Jessica again thought this was part of a normal full-body massage. She testified that Defendant seemed like a professional and that it seemed like he knew what he was doing. Defendant also massaged Jessica's buttocks without consent during this second massage.

{4} Defendant then asked Jessica if she wanted a vulva massage. When Jessica asked what that was, Defendant put his hand inside Jessica's underwear and touched her vagina. Jessica declined to have her vulva massaged, Defendant removed his hand from her underwear, and that was the end of the massage. After Jessica was fully dressed, Defendant gave her a hug, in the process brushing his hand over Jessica's buttocks. Jessica left feeling uncomfortable, because she knew that a vulva massage was not part of a regular massage. Jessica's mother notified the police of Defendant's actions the same day.

{5} Stephanie testified that she went to Defendant to try to heal nerve damage to her arm suffered in an automobile accident. Stephanie's mother helped her fill out paperwork showing which body parts she did not want Defendant to touch, including her breasts and buttocks. Stephanie undressed to her bra and underwear. Defendant told her that he would give her a full-body massage for the same price as an arm massage. Defendant worked on Stephanie's arm, shoulders, neck, and chest. He then began to massage Stephanie's breasts over her bra without seeking her consent. Instead, he asked if she had menstrual cramps or breast tenderness, and Stephanie replied that she did not. Stephanie testified that she felt very uncomfortable, but that she did not say anything because Defendant was explaining what he was doing. He spent about five minutes on each breast, including the nipples. He then massaged her stomach, legs, and back. Finally, he massaged her buttocks, pulling her underwear to one side to do so. This made Stephanie uncomfortable, but because he was explaining what he was doing, Stephanie thought it was part of a normal full-body massage.

{6} Stephanie returned to Defendant four or five times over the next few months. Each time, Defendant massaged her breasts. The last time Stephanie went to see Defendant, she had just given birth and she was not producing breast milk. Defendant had told Stephanie's mother that he could help the problem by massaging an area under Stephanie's arm. When Stephanie came in, Defendant had her undress and remove her bra. Then, without explaining why he was doing so, he proceeded to massage her full breast, pinching her nipples the way a baby would suckle them. This made Stephanie feel very uncomfortable. Defendant then told Stephanie that when his wife was pregnant, he would suckle her breasts to try to bring in her milk. He offered to suck on Stephanie's breasts for the same reason. Stephanie immediately ended the session. She never returned to Defendant.

{7} Following a police investigation into the above incidents, Defendant was charged, indicted, tried, and convicted of eight separate counts of CSCM by use of coercion by a person in a position of authority (1) for touching Jessica's breasts during her first massage session, (2) for touching her breasts, (3) vulva, and (4) buttocks at her second session, and (5-8) for touching Stephanie's breasts on four separate occasions. Additional facts, as established at trial, will be introduced as necessary in our analysis below.

DISCUSSION

Sufficiency of the Evidence

{8} In order to convict Defendant of CSCM by use of coercion by a person in a position of authority, the State had to prove the following beyond a reasonable doubt: (1) Defendant touched or applied force to the breasts, buttocks, or vulva of the victim; (2) Defendant was a person who, by reason of his relationship to the victim, was able to exercise undue influence over the victim and used this authority to coerce the victim to submit to the sexual contact; (3) the victim was at least 13 years old but less than 18 years old; (4) Defendant's act was unlawful; and (5) the act happened in New Mexico. UJI 14-926 NMRA. On appeal, Defendant challenges only the second element, contending that there was insufficient evidence presented to prove that he was in a position of authority over Jessica and Stephanie and that by reason of this position, he was able to exercise undue influence over the girls. This Court must determine whether a rational jury could have found this element beyond a reasonable doubt, while viewing the evidence in the light most favorable to the jury's verdict and indulging all inferences in favor of upholding that verdict. State v. Segura, 2002-NMCA-044, ¶ 10, 132 N.M. 114, 45 P.3d 54. We do not substitute our judgment for that of the factfinder concerning the credibility of witnesses or the weight to be given their testimony. State v. Riggs, 114 N.M. 358, 362-63, 838 P.2d 975, 979-80 (1992).

{9} A person in a "position of authority" is defined under New Mexico law 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." NMSA 1978, § 30-9-10(F); see also State v. Gardner, 2003-NMCA-107, ¶ 38, 134 N.M. 294, 76 P.3d 47 (holding that assistant principal used position of authority "to gain the trust of the victims, to obtain the opportunity to touch the victims, and to cause them to submit to his unlawful touching"); Segura, 2002-NMCA-044, ¶¶ 16-17, 132 N.M. 114, 45 P.3d 54 (holding that, but for faulty jury instruction, uncle's conviction for criminal sexual contact with a minor by person in position of authority would have been upheld); State v. Corbin, 111 N.M. 707, 710, 809 P.2d 57, 60 (Ct.App.1991) (holding that employer controlled the victim's will, at least in part, by using his position as the victim's employer); State v. Gillette, 102 N.M. 695, 702, 699 P.2d 626, 633 (Ct.App.1985) (holding that live-in babysitter was in position of authority over child). The question of whether a massage therapist may be found to be in a position of authority for purposes of CSCM is a question of first impression in New Mexico. We answer this question in the affirmative and hold that based on the evidence in this case, a rational jury could have found that Defendant was in a position of authority over Jessica and Stephanie.

{10} Both victims testified in a manner that could lead a rational jury to conclude that they perceived Defendant to be in a position of authority over them. Jessica's first massage with Defendant was the first she had ever experienced, and she neither completed a consent form nor conversed with Defendant about the body parts she would allow him to massage. Once the massage began and she was told that a breast massage was part of a normal body massage, she consented in the belief that Defendant was a professional whose explanations were in her best interest. She also believed that a buttock massage was a normal component of a full-body massage. A rational jury could reasonably infer that it was not until Defendant touched Jessica's vagina without warning that she realized that Defendant was perhaps not behaving in a professional manner, but that until that point Jessica believed Defendant to be a professional health care provider who was in a position of authority over her and used this position to exercise undue influence over her, as evidenced by his ability to convince her...