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State v. Luna

Court of Appeals of New Mexico

January 23, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
GAVINO LUNA, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY Daniel Viramontes, District Judge

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

          Bennett J. Baur, Chief Public Defender Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe, NM for Appellant



         {1} The formal opinion filed in this case on December 13, 2017, is hereby withdrawn, and this opinion is substituted in its place.

         {2} Defendant Gavino Luna was convicted by a jury of (1) criminal sexual contact of a minor (Child under 13) (CSCM) in the third degree, (2) intimidation of a witness, (3) unlawful exhibition of motion pictures to a minor, and (4) contributing to the delinquency of a minor (CDM) for forcing a minor to "engage in sexual acts and watch pornographic movies[.]" He was sentenced to eleven-and-one-half years' incarceration, less one day, to be followed by parole for five years to life. Defendant appeals his convictions, challenging: (1) his right to be free from double jeopardy, (2) the adequacy of two jury instructions given, (3) the sufficiency of the evidence supporting his convictions, (4) the admission of certain lay testimony, and (5) the admission of specific expert testimony. We affirm in part, reverse in part, and remand for further proceedings.


         {3} Defendant's convictions stem from events that occurred the afternoon of May 3, 2013, when Defendant was looking after J.C. (Child), a nine-year-old boy, and Child's twelve-year-old sister because Child's mother was hospitalized. Defendant lived with Child's grandmother. According to Child, Defendant showed Child "ugly" movies that showed photographs of women "showing themselves." Child could not recall details of the movie, such as what the women in the movie were doing, but he explained that the women in the movie were wearing "red" clothes "like . . . you wear outside" and that they kept their clothing on. There were no other people in the pictures with the women. Child did not like the movies because he found them "very ugly" because they "showed . . . all of [the] parts . . . of the women." Child did not want to look at the photos and movies and tried to leave the room but was not allowed; Child thought that if he ran, Defendant would get mad.

         {4} Child also testified that at one point, Defendant pulled down Defendant's shorts and showed Child his "parts, " which Child explained meant Defendant's penis. Child could not recall whether Defendant made Child touch any of Defendant's "parts, " but he remembered that Defendant touched Child's penis two times: once with his hand, and once with his mouth. The contact occurred over Child's clothing and was not skin-to-skin. This made Child feel "very bad[]."

         {5} Defendant told Child not to tell anyone and that he would take Child far away and leave Child there if Child told anyone. Child was afraid of Defendant and approximately one week after the incident told his mother what happened. Child's mother contacted the Deming, New Mexico Police Department, and Defendant was subsequently charged with and tried for criminal sexual penetration of a minor (CSPM) in the first degree, CSCM, intimidation of a witness, CDM, and unlawful exhibition of motion pictures to a minor. The district court granted Defendant's motion for a directed verdict on the CSPM charge based on a lack of sufficient evidence to support the charge but allowed all other counts to go to the jury. The jury convicted Defendant on all submitted counts, after which the district court entered judgment and sentenced Defendant. This appeal followed.


         {6} Defendant makes the following challenges on appeal: (1) Defendant's convictions for CSCM, unlawful exhibition, and CDM violate his Fifth Amendment right to be free from double jeopardy; (2) the district court fundamentally erred in instructing the jury as to the elements of unlawful exhibition of motion pictures to a minor and CSCM; (3) there was insufficient evidence to support Defendant's convictions for unlawful exhibition of motion pictures, CDM, and intimidation of a witness; (4) the district court committed plain error in admitting the lay testimony of Detective Sergio Lara, the investigating officer, who testified that he recovered a "pornographic" video from Defendant's house; and (5) the district court committed plain error in admitting the expert testimony of Sylvia Aldaz-Osborn, a forensic interviewer who was allowed to watch and comment on Child's videotaped deposition when it was shown to the jury during trial. We address each issue in turn.

         I. Whether Defendant's Convictions for CDM, CSCM, and Unlawful Exhibition of Motion Pictures to a Minor Violate His Right to Be Free From Double Jeopardy

         {7} Defendant contends that the sentence imposed by the district court violates his Fifth Amendment right to be free from double jeopardy because the conduct underlying his CDM conviction is identical to that used as the basis for his CSCM and unlawful exhibition of motion pictures convictions. Defendant argues that the CDM statute is generic and multipurpose, requiring us to analyze his claim using the modified Blockburger approach articulated in State v. Gutierrez, 2011-NMSC-024, ¶ 58, 150 N.M. 232, 258 P.3d 1024 . Such approach, Defendant argues, leads to the conclusion that the Legislature did not intend to punish separately Defendant's unitary conduct as specifically charged and argued by the State. The State contends that the CDM statute, while broad in scope, is not "unacceptably vague" and, therefore, we need not follow Gutierrez's modified Blockburger approach. Thus, the State urges us to apply Blockburger's strict elements test that was used in State v. Trevino, 1993-NMSC-067, 116 N.M. 528, 865 P.2d 1172, a pre-Gutierrez case holding that there was no double jeopardy violation for CDM and CSCM convictions. The State argues that Trevino should continue to control. We disagree. Under the current state of the law, we agree with Defendant that Gutierrez is now controlling, and we reverse his CDM conviction.

         A. The Blockburger Test

         {8} The Double Jeopardy Clause of the Fifth Amendment, made applicable to New Mexico by incorporation through the Fourteenth Amendment, "functions in part to protect a criminal defendant against multiple punishments for the same offense." State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747 (internal quotation marks and citation omitted). Cases "where the same conduct results in multiple convictions under different statutes" are known as double description cases. Id. In a double description case, we apply the two-part test set forth in Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. We first ask "whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes." Id. Here, the State does not dispute that the same conduct-Defendant's sexual contact of and exhibition of "pornographic" movies to Child-formed the basis of his CDM, CSCM, and unlawful exhibition convictions. Thus, we turn to the second part of the Swafford test and focus "on the statutes at issue to determine whether the [L]egislature intended to create separately punishable offenses." Id.

         {9} Our Supreme Court has described legislative intent as "the touchstone of our inquiry" because in this context "[i]t is well established that the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the [L]egislature intended." Gutierrez, 2011-NMSC-024, ¶ 50 (internal quotation marks and citations omitted). Unless the Legislature has clearly and expressly authorized multiple punishments for the same conduct, we apply the following test articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine intent: "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one[] is whether each provision requires proof of a fact which the other does not." Id. As our Supreme Court explained in Swafford:

The rationale underlying the Blockburger test is that if each statute requires an element of proof not required by the other, it may be inferred that the [L]egislature intended to authorize separate application of each statute. Conversely, if proving violation of one statute always proves a violation of another (one statute is a lesser included offense of another, i.e., it shares all of its elements with another), then it would appear the [L]egislature was creating alternative bases for prosecution, but only a single offense.

Swafford, 1991-NMSC-043, ¶ 12. Importantly, Swafford explained that "the Blockburger test is not a constitutional rule, but merely a canon of construction used to guide courts in deciphering legislative intent." Id. It, therefore, follows that the starting point in a Blockburger analysis-looking to the statute's language itself-is consistent with the general rule of statutory construction that "[i]n analyzing legislative intent, [courts] first look to the language of the statute itself." Swick, 2012- NMSC-018, ¶ 11; see State v. Suazo, 2017-NMSC-011, ¶ 16, 390 P.3d 674 (explaining that courts "begin with the plain language of the statute, which is the primary indicator of legislative intent." (alteration, internal quotation marks, and citation omitted)). It also follows that where the plain language of the statute is ambiguous, we engage in further interpretation in order to glean legislative intent. See State v. Almeida, 2011-NMCA-050, ¶ 11, 149 N.M. 651, 253 P.3d 941 ("[I]f a statute is vague or ambiguous and cannot be interpreted by a simple consideration of the statutory language, the court must look to other means of statutory interpretation.").

         {10} Historically, courts applied the Blockburger test by strictly comparing the elements-evidenced by a statute's plain language-of the challenged statutes. State v. Lee, 2009-NMCA-075, ¶ 9, 146 N.M. 605, 213 P.3d 509 ("In applying the Blockburger test, this Court compares the elements of each crime with the elements of the other."). However, in response to "the increasing volume, complexity, vagueness and overlapping nature of criminal statutes[, ]" the United States Supreme Court modified the Blockburger analysis to account for the challenges to divining legislative intent presented by multipurpose statutes that could be offended in multiple ways and address various types of wrongs. Pandelli v. United States, 635 F.2d 533, 535-39 (6th Cir. 1980) (explaining the evolution of the Blockburger test that occurred in Whalen v. United States, 445 U.S. 684 (1980), and Illinois v. Vitale, 447 U.S. 410 (1980)). Now, in cases involving a criminal statute that is generic, multipurpose, vague, unspecific, ambiguous, and/or written in the alternative, we must engage in "statutory reformulation" by "narrow[ing] the statute to be analyzed until it includes only the alternatives relevant to the case at hand." Pandelli, 635 F.2d at 538; Gutierrez, 2011-NMSC-024, ¶¶ 58-59. In effect, this modified approach recognizes that comparing in the abstract ambiguous facial statutory elements fails to provide requisite guidance to a court in determining legislative intent. See State v. Franco, 2005-NMSC-013, ¶ 14, 137 N.M. 447, 112 P.3d 1104 (explaining that "a statute that serves several purposes and has been written in the alternative may have many meanings and a wide range of deterrent possibilities" and that "[u]nless we focus on the relevant alternatives, we run the risk of misconstruing legislative intent" (internal quotation marks and citation omitted)). As this Court has explained:

Analyzing statutory elements from the vantage point of the particular case before the court . . . enables a reviewing court to remain faithful to legislative intent to provide alternative means of prosecution against a single category of wrongdoers, and to avoid the confusion and injustice that may arise from looking at statutes in the abstract when each statute contains an element which the other does not.

State v. Rodriguez, 1992-NMCA-035, ¶ 10, 113 N.M. 767, 833 P.2d 244. Thus, in cases involving such statutes, a court considering a double jeopardy challenge must rely on the state's specific legal theory as the basis for establishing the proper elemental comparison in applying the Blockburger test. See State v. Silvas, 2015-NMSC-006, ¶ 14, 343 P.3d 616; State v. Gutierrez, 2012-NMCA-095, ¶ 14, 286 P.3d 608 (explaining that the modified Blockburger approach "applies when one of the statutes at issue is written with many alternatives, or is vague or unspecific" and that "a reviewing court should look at the legal theory of the offense that is charged[] instead of looking at the statute in the abstract when comparing elements under Blockburger" (internal quotation marks and citation omitted)). Specifically, "we look to the charging documents and jury instructions to identify the specific criminal causes of action for which the defendant was convicted." State v. Ramirez, 2016-NMCA-072, ¶ 18, 387 P.3d 266, cert. denied, -NMCERT- (No. S-1-SC-35949, July 20, 2016). Where "[n]either the indictment nor the jury instructions shed any light on the [s]tate's trial theory[, ]" and/or to confirm our understanding of the state's theory, we may also look to the state's closing argument for evidence of the specific factual basis supporting its theory. Id. ¶¶ 17, 20; Silvas, 2015-NMSC-006, ¶¶ 19-21 (explaining that "[o]ur reading of the [jury] instructions is confirmed when we look to how the prosecutor asked the jury to apply [the] instructions" and reviewing the prosecutor's closing argument). By doing this, we may properly identify the appropriate "provisions" for comparison that are at the heart of the Blockburger test. See Blockburger, 284 U.S. at 304.

         {11} If application of either approach to the Blockburger test "establishes that one statute is subsumed within the other, the inquiry is over and the statutes are the same for double jeopardy purposes-punishment cannot be had for both." Swafford, 1991-NMSC-043, ¶ 30; see also Gutierrez, 2011-NMSC-024, ¶ 60 (holding, after applying the modified Blockburger approach, that the defendant's armed robbery conviction subsumed his unlawful taking of a motor vehicle conviction and thus vacating his conviction for the lesser-included offense). If not, there is created a presumption that multiple punishment may be had, which presumption "may be overcome by other indicia of legislative intent." Swafford, 1991-NMSC-043, ¶ 31. However, we only turn to other means of determining legislative intent if the statutes in question "survive Blockburger." State v. Branch, 2016-NMCA-071, ¶¶ 24, 28, 387 P.3d 250, cert. granted, ___ -NMCERT- ___ (No. S-1-SC-35951, July 28, 2016).

         B. Whether We Should Apply the Blockburger Strict Elements Test or Follow Gutierrez's Modified Elements Approach

         {12} Because the parties disagree whether the CDM statute falls within the reach of Gutierrez, we begin by determining whether the CDM statute is the type of statute-i.e., generic, multipurpose, ambiguous, vague or unspecific, or written in the alternative-to which Gutierrez applies.

         {13} The CDM statute provides that "[c]ontributing to the delinquency of a minor consists of any person committing any act or omitting the performance of any duty, which act or omission causes or tends to cause or encourage the delinquency of any person under the age of eighteen years." NMSA 1978, § 30-6-3 (1990). Our Supreme Court has explained that where "many forms of conduct can support" a particular statutory element, that statute "is a generic, multipurpose statute that is vague and unspecific, and we must look to the [s]tate's theory of the case to inform what" particular conduct is alleged in that particular case. Swick, 2012-NMSC-018, ¶ 25 (internal quotation marks omitted). Likewise, the presence of generic terms-such as "any unlawful act"-that allow for "numerous forms of conduct that could fulfill that requirement" necessarily render that statute subject to application of the modified Blockburger approach. Branch, 2016-NMCA-071, ¶ 26.

         {14} We have little difficulty concluding that the CDM statute qualifies for application of the modified Blockburger approach. To begin with, the statute is a quintessentially generic, multipurpose statute, as has long been recognized in New Mexico case law. See State v. Pitts, 1986-NMSC-011, ¶ 10, 103 N.M. 778, 714 P.2d 582 (explaining that New Mexico courts have "recognized that the intent of the Legislature in enacting [the CDM statute] was to extend the broadest possible protection to children, who may be led astray in innumerable ways"); State v. McKinley, 1949-NMSC-010, ¶ 12, 53 N.M. 106, 202 P.2d 964 ("The ways and means by which the venal mind may corrupt and debauch the youth of our land, both male and female, are so multitudinous that to compel a complete enumeration in any statute designed for protection of the young before giving it validity would be to confess the inability of modern society to cope with the problem of juvenile delinquency."). Additionally, the statute is both vague and unspecific in that it criminalizes "any act" or the omission of "any duty" when that act or omission results in a child's delinquency. Section 30-6-3 (emphasis added). These generic terms make it possible for numerous forms of conduct to qualify as the requisite actus reus element of the statute. Thus, absent "statutory reformulation" vis-à-vis the State's legal theory in this case, there is no way to engage in the meaningful elemental comparison that is at the heart of the Blockburger test. See Pandelli, 635 F.2d at 538. In other words, until we identify which of Defendant's specific acts or omissions form the basis for the CDM charge, there is no way to know whether other conduct for which Defendant was criminally charged is separately punishable or if one charge subsumes the other.

         C. Applying the Modified Blockburger Approach to the CDM Statute

         {15} The jury was instructed that in order to convict Defendant of ...

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