State v. Sanchez

STATE OF NEW MEXICO, Plaintiff-Appellee, v. KYLE SANCHEZ, Defendant-Appellant.

Docket No. A-1-CA-35775

COURT OF APPEALS OF NEW MEXICO

May 22, 2019

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, David N. Williams, District Judge

COUNSEL

Hector H. Balderas, Attorney General, Santa Fe, NM, Jane A. Bernstein, Assistant Attorney General, Albuquerque, NM for Appellee

Bennett J. Baur, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM for Appellant.

JUDGES

JACQUELINE R. MEDINA, Judge. WE CONCUR: J. MILES HANISEE, Judge, KRISTINA BOGARDAS, Judge

AUTHOR: JACQUELINE R. MEDINA

MEMORANDUM OPINION

MEDINA, Judge.

{1} Defendant Kyle Sanchez was convicted of two counts of attempted criminal sexual penetration of a minor (CSPM). He raises three issues on appeal. First, he challenges the sufficiency of the evidence supporting each conviction. Second, he argues the State should have charged him with attempted child solicitation by electronic device, and not CSPM. Third, he argues that his two convictions violate double jeopardy. We reverse one of Defendant's convictions on double jeopardy grounds, affirm the other, and remand to the district court for resentencing.

BACKGROUND

{2} Albuquerque Police Department Detective Steven Walsh, posing as "Stu Wall," placed an ad captioned "glory hole party" on Craigslist as part of a sting operation to catch would-be sexual predators, Defendant replied to the ad, "[S]ounds like fun," and asked, "How young are they?" Stu Wall responded, "[Y]es fun is one word that could be used. [J]ust so we don[']t waste each other's time they are very young." Defendant replied, "That's ok with me! Count me in." Stu Wall and Defendant continued communicating by email and eventually changed to cell phone texting.

{3} Through these communications, Defendant learned that the children at the "glory hole party" would be eleven and nine years old. Defendant expressed his excitement about the "glory hole party," and asked Stu Wall if it were possible to "play"¹ with the children before the "party" which was scheduled for a month away. The two men arranged for a pre-party meeting between Defendant and "Kim," Stu Wall's fictitious eleven-year-old step-daughter. Stu Wall asked Defendant what he would like to do with Kim. Defendant replied that he intended to engage in cunnilingus and fellatio with Kim, as well as watch Kim engage in activities with Stu Wall.

{4} Stu Wall suggested that Defendant bring a CD for Kim as a present to "win her over" and informed Defendant that he had no condoms. Defendant agreed to bring the CD and offered to bring his own condoms. On the evening of the arranged pre-party meeting, Stu Wall notified Defendant that he could head over and provided Defendant with an address at an apartment complex. Defendant told Stu Wall that he had forgotten the CD, and Stu Wall suggested that Defendant instead bring orange Fanta. Defendant spent twenty to twenty-five minutes searching for the soda. Stu Wall eventually provided Defendant with a list of possible purchase locations and Defendant found an open convenience store. After purchasing the orange Fanta, Defendant drove to the apartment complex, parked, and texted Stu Wall that he was "here."

{5} Defendant then asked Stu Wall for a show of "good faith" by letting Kim come outside of the apartment so Defendant could see her. Stu Wall denied this request, but offered to stand in the doorway of his apartment with Kim. Not being able to see either Stu Wall or Kim, Defendant put his car into reverse and began to leave.

{6} Other officers participating in the sting operation and positioned in the parking lot of the apartment complex stopped and arrested Defendant. Officers found two bottles of orange Fanta in his vehicle, but did not find condoms in the vehicle or on Defendant's person. At the police station, Defendant stated he knew what a "glory hole" was and that he brought the Fantas to make Kim feel comfortable with him and to exchange them for sex with her. Detective Walsh asked Defendant if he went to the apartment complex to"either have or get oral sex from an eleven-year-old," Defendant responded, "[Y]es, I'll say yes to that."

{7} A jury convicted Defendant of two counts of attempted CSPM, pursuant to NMSA 1978, Section 30-9-11(A), (D)(1) (2009), and NMSA 1978, Section 30-28-1 (1963). The district court entered a conditional discharge and placed Defendant on probation for five years.

DISCUSSION

I. Sufficient Evidence Supports Defendant's Convictions for Attempted CSPM

{8} Defendant contends the evidence was insufficient to support his convictions for two reasons: first, he claims because an actual child was not involved in the sting operation that it was impossible for him to commit the goal crimes of CSPM, and second, he claims the State failed to prove that he "took a substantial step beyond mere preparation" toward committing the crimes of CSPM. The State argues Defendant's "impossibility" argument is misplaced because Defendant was convicted of the crimes of attempted CSPM. The State further argues that the evidence was sufficient to support the jurors finding that he took overt acts in furtherance of the commission of the crimes.

{9} "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. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted). We "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 disregard all evidence and inferences that support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation omitted).

{10} We agree with Defendant that a conviction for criminal sexual penetration of a minor requires evidence that the crime was committed on a child under thirteen years of age. Section 30-9-11(A) ("Criminal sexual penetration is the unlawful and intentional causing of a person to engage in . . . cunnilingus, fellatio . . . whether or not there is any emission."); Section 30-9-11(D)(1) ("Criminal sexual penetration in the first degree consists of all criminal sexual penetration perpetrated . . . on a child under thirteen years of age[.]"). Defendant, however, was not convicted of criminal sexual penetration of a minor. He was convicted of two counts of attempted CSPM. The crime of attempt to commit a felony "consists of an overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission." Section 30-28-1.

{11} While other jurisdictions recognize two types of an "impossibility" defense, "legal impossibility" and "factual impossibility," we do not distinguish between the two. See State v. Lopez, 1983-NMSC-069, ¶¶ 4, 8, 100 N.M. 291, 669 P.2d 1086. Instead, we treat a defendant in accordance with the facts as he believes them to be. See Id. ¶¶ 8-9 ("The fact that the pocket was empty should not insulate the pickpocket from prosecution for an attempt to steal." (internal quotation marks and citation omitted)). Therefore, if the evidence established that Defendant believed he was going to meet a child under thirteen years of age in the apartment for the purpose of engaging in criminal sexual penetration, the State was not required to present evidence that there was an actual child involved in the sting operation.

{12} Here, Defendant admitted during his police interview that he drove to the apartment believing he was going to meet an eleven-year-old child for the purpose of performing and receiving oral sex. According to Defendant he brought the orange Fanta to make the child feel comfortable with him and to exchange the soda for sex with her. Defendant's admissions, along with the evidence consisting of his text messages in which he stated his intent to engage in cunnilingus and fellatio with the eleven-year-old child, were sufficient evidence from which a reasonable jury could conclude that Defendant believed he was going to engage in two acts of sexual penetration with an 11-year-old child. See Lopez, 1983-NMSC-069, ¶¶ 8-9. Therefore, treating the facts as Defendant believed them to be, impossibility was not an applicable defense to attempted CSPM.

{13} Defendant next contends the evidence was insufficient to demonstrate that he "took a substantial step beyond mere preparation" to support his convictions for attempted CSPM. The crime of attempt has two essential elements: (1) "[a]n overt act in furtherance of but failing to consummate the goal crime"; and (2) "the intent to commit the goal crime." State v. Green, 1993-NMSC-056, ¶ 21, 116 N.M. 273, 861 P.2d 954. "[E]ven slight acts in furtherance of the crime will constitute an attempt." State v. Brenn, 2005-NMCA-121, ¶ 14, 138 N.M. 451, 121 P.3d 1050 (alteration, internal quotation marks, and citation omitted); State v. Trejo, 1972-NMCA-019, ¶ 8, 83 N.M. 511, 494 P.2d 173 ("The overt act must be more than preparation; it must be in part execution of the intent to commit the crime. However, slight acts in furtherance of that intent will constitute an attempt.").

{14} We recognize that the line between preparation and...