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State v. Felix

Court of Appeals of New Mexico

April 24, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JOSE IVAN FELIX, Defendant-Appellant.

         This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 DOÑA ANA COUNTY Fernando R. Macias, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Elizabeth Ashton, Assistant Attorney General Albuquerque, NM for Appellee.

          Bennett J. Baur, Chief Public Defender Kathleen T. Baldridge, Assistant Appellate Defender Santa Fe, NM for Appellant

          MEMORANDUM OPINION

          STEPHEN G. FRENCH, JUDGE

         {1} It is undisputed that Defendant Jose Ivan Felix, age nineteen, "hooked up" with I.G. (Victim) when she was just thirteen years old. What is disputed before this Court is whether there was sufficient evidence presented at trial to prove the element of "physical force" to sustain Defendant's conviction for one count of criminal sexual contact of a minor (CSCM), a fourth degree felony, contrary to NMSA 1978, Section 30-9-13(D)(1) (2003). After conviction, the district court entered a conditional discharge order. On appeal, Defendant argues that the State failed to present substantial evidence that "[D]efendant used physical force" in regard to the second element of the jury instruction, UJI 14-921 NMRA, or that the contact was "perpetrated with force" as required by the element contained in Section 30-9-13(D)(1). We affirm.

         I. BACKGROUND

         {2} By all accounts, Defendant and Victim met outside her mother's apartment. Defendant and Victim met through her brother and developed an attraction for each other. In what can only be described as a voluntary encounter, Defendant and Victim engaged in mutual touching, kissing, and hugging over the course of several hours. After purportedly touching Victim's body, and having his hand removed by Victim, to which Defendant complied, Defendant then "grabbed" Victim's hand and then engaged in "hand-guiding" her hand under Defendant's shorts, but over his underwear, and onto his erect penis. After a couple of seconds, Victim removed her hand. Victim testified that she did not pull away from Defendant during the "hand-guiding, " but when she felt his penis, she removed her hand. Each time that Victim moved Defendant's hand from an area of her body that she did not wish to be touched, Defendant did not resist his hand being removed. Victim also testified that she was not "threaten[ed]" or "scared" of Defendant, nor had he "made [her] do anything." Additional facts will be included as needed in the analysis that follows.

         II. DISCUSSION

         {3} "Criminal sexual contact of a minor is the unlawful and intentional touching of or applying force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one's intimate parts. For purposes of this section, 'intimate parts' means the primary genital area, groin, buttocks, anus or breast." Section 30-9-13(A) (emphasis added). Subsection (D) of the statute provides, "[c]riminal sexual contact of a minor in the fourth degree consists of all criminal sexual contact: (1) not defined in Subsection C [third degree] of this section, of a child thirteen to eighteen years of age perpetrated with force or coercion[.]" Section 30-9-13 (D)(1) (emphasis added).

         {4} Defendant argues there was insufficient evidence of physical force to sustain Defendant's conviction for fourth degree CSCM. In reviewing the sufficiency of the evidence used to support a conviction, we resolve all disputed facts in favor of the State, indulge all reasonable inferences in support of the verdict, and disregard evidence and inferences to the contrary. State v. Baca, 1997-NMSC-059, ¶ 14, 124 N.M. 333, 950 P.2d 776. We review the evidence to determine "whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. Under this standard, "[w]e view the evidence in the light most favorable to supporting the verdict and resolve all conflicts and indulge all inferences in favor of upholding the verdict." State v. Hernandez, 1993-NMSC-007, ¶ 68, 115 N.M. 6, 846 P.2d 312. We do not reweigh the evidence, nor substitute our judgment for that of the fact-finder, so long as there is sufficient evidence to support the verdict. Sutphin, 1988-NMSC-031, ¶ 21.

         {5} "The sufficiency of the evidence is assessed against the jury instructions because they become the law of the case." State v. Quinones, 2011-NMCA-018, ¶ 38, 149 N.M. 294, 248 P.3d 336. To prove criminal sexual contact of a minor, the State had to prove each of the following elements of UJI 14-921. The State submitted Jury Instruction No. 5:

For you to find [D]efendant guilty of criminal sexual contact of a minor as charged in Count 3, the [S]tate must prove to your satisfaction beyond a reasonable doubt each of ...

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