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State v. Simmons

Court of Appeals of New Mexico

October 25, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
PHILLIP SIMMONS, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Benjamin Chavez, District Judge

          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

          Bennett J. Baur, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          JONATHAN B. SUTIN, Judge

         {1} Defendant Phillip Simmons was convicted by a jury of two counts of criminal sexual penetration in the second degree (in the commission of a felony) (CSP II-felony) in violation of NMSA1978, Section 30-9-11(E)(5) (2009), one count of criminal sexual penetration in the second degree (by force or coercion, child 13-18) (CSP II-force/coercion) in violation of Section 30-9-11(E)(1), one count of kidnapping in the first degree in violation of NMSA 1978, Section 30-4-1 (2003), one count of distribution of a controlled substance to a minor in the second degree in violation of NMSA 1978, Section 30-31-21 (1987), and one count of contributing to the delinquency of a minor in violation of NMSA 1978, Section 30-6-3 (1990).[1]

         {2} On appeal, Defendant argues that (1) the district court failed to instruct the jury on a required element for the CSP II-felony convictions; (2) there was insufficient evidence to support the jury's guilty verdicts; and (3) this Court must vacate the kidnapping, distribution of a controlled substance to a minor, or contributing to the delinquency of a minor convictions, or else reduce the CSP II-felony convictions to CSP IV because allowing all convictions to stand would violate double jeopardy. We affirm in part and remand in order to vacate Defendant's CSP II-felony convictions.

         BACKGROUND

         {3} On an evening in July 2010, Victim, a fifteen-year-old boy, went to a concert with his family. After the concert, Victim planned on attending a party with his family and got a ride with his cousin and his cousin's friend. While in the car, Victim got into an argument with his cousin, at which point his cousin's friend kicked Victim out of the car in downtown Albuquerque near the Alvarado Transportation Center (ATC). Victim, wanting to get home, tried to get a ride home from ATC but was initially unsuccessful. After some time, Defendant pulled up to Victim and offered Victim a ride home. Defendant told Victim he needed to do something first and drove to a salon. After going to the salon, Defendant drove Victim to Defendant's apartment.

         {4} Once at the apartment, Defendant told Victim he had "to get something real quick, " and they entered the apartment. Victim testified that he felt "a little bit forced" to enter the apartment and believed he was threatened. Once inside, Defendant offered Victim a beer, as well as "[c]rack, weed, [and] coke." Victim, feeling pressured, accepted a beer and cocaine, which made him feel "woozy." At that point, Defendant began touching Victim and sucked Victim's penis. Victim testified that he was "worried about getting home" and that the encounter "made [him] feel. . . gross" and "[a]shamed of [himself]." Thereafter, Defendant sucked Victim's penis again, and they smoked more cocaine. Victim asked to go home, but Defendant told him that Defendant would take Victim home "in the morning[.]" Victim protested, telling Defendant that he had to go see his probation officer because Victim was on probation. Defendant then asked for anal sex, and Victim complied because he was afraid that if he did not, he would be anally penetrated. Victim testified that Defendant was larger than him, and he was scared.

         {5} Defendant eventually took Victim home around 7:00 a.m. When Defendant dropped Victim off, Defendant provided his name and phone number to Victim, told Victim to call him, and made promises of money and access to his car. When Victim arrived home he cried, took multiple showers, and told his mother, aunt, and grandmother what had happened. Victim was examined by a sexual assault nurse examiner (SANE), who testified that Victim disclosed that he felt coerced to have anal sex with Defendant and reported being "woken up with his genitals being sucked on[.]"

         {6} Victim identified Defendant as the perpetrator in a photo array, gave the police a fairly accurate description of Defendant's apartment, and identified Defendant as the perpetrator at trial. A forensic examiner testified at trial that she identified saliva that contained Defendant's DNA on the inside of Victim's boxer shorts.

         {7} The jury found Defendant guilty of two counts of CSP II-felony, one count of CSP II-force/coercion, one count of kidnapping, one count of distribution of a controlled substance to a minor, and one count of contributing to the delinquency of a minor. For the CSP II-felony counts, the jury was instructed that the State must prove that Defendant caused Victim to engage in fellatio and anal intercourse during the commission of kidnapping or distribution of a controlled substance to a minor or contributing to the delinquency of a minor. However, the jury was not asked to identify which felony it relied upon in reaching its verdicts on the CSP II-felony counts. Defendant was ultimately sentenced to twenty-seven years in prison, with nine years of the sentence suspended, for a total sentence of eighteen years. This appeal followed.

         DISCUSSION

         I. Jury Instructions-CSP II-felony

         {8} Defendant argues that the district court failed to instruct the jury that in order to find Defendant guilty of the CSP II-felony counts, it had to find that there was a causal link between the felony committed and the CSP. Defendant admits that trial counsel did not request that an instruction be given on the causal link between the CSP II-felony charges and the associated felonies.

         {9} When a party fails to object to a tendered jury instruction, we review the issue for fundamental error. See State v. Benally,2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. Fundamental error "only applies in exceptional circumstances when guilt is so doubtful that it would shock the judicial conscience to allow the conviction to stand." State v. Baca,1997-NMSC-045, ¶41, 124N.M. 55, 946P.2 ...


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