PROCEEDING ON CERTIORARI Briana H. Zamora, District Judge
H. Balderas, Attorney General Laura Erin Horton, Assistant
Attorney General Santa Fe, NM for Petitioner
Bennett J. Baur, Chief Public Defender Steven James Forsberg,
Assistant Appellate Defender Santa Fe, NM for Respondent
JIMENEZ MAES, JUSTICE
In this case we consider whether a child victim's
opposition to sexual contact by a relative, after the contact
already occurred, negates the element of coercion. Defendant
Oscar Arvizo was found guilty of two counts of criminal
sexual contact of a minor (CSCM) by a person in a position of
authority-one in the second degree and one in the third
degree. See NMSA 1978, § 30-9-13(B)(2)(a),
(C)(2)(a) (2004). The Court of Appeals reversed the two
convictions, holding that the evidence failed to prove that
Defendant "used his position of authority to coerce A.B.
to submit to criminal sexual contact[s]" because
"when both sexual contacts took place without warning,
A.B. immediately pushed Defendant away." State v.
Arvizo, No. 33, 697, mem. op. ¶¶ 24-25 (N.M.
Ct. App. June 28, 2016) (non-precedential).
The State sought further review of a single issue: whether
"the Court of Appeals erroneously [held] that a
child's physical resistance after the fact negates other
evidence for the element of coercion by a person in a
position of authority in a conviction for CSCM." We
granted certiorari under Rule 12-502 NMRA. We reverse the
Court of Appeals and reinstate the convictions. We remand the
case back to the Court of Appeals to consider any remaining
appellate issues presented by Defendant.
In December 2009, Valerie Barreras and her husband Anthony
Barreras had two daughters-A.B., then thirteen years old, and
her younger sister S.B., then six years old. Defendant was
married to Valerie's sister Darlene, making him
A.B.'s uncle. Defendant and Darlene had four young
children of their own. Valerie and Darlene were very close,
and the two families often spent time together at the
Barreras house, at social events, and at Valerie's and
Darlene's parents' house.
Defendant's family went to dinner with the Barreras
family on a Friday evening that December to celebrate a bonus
Anthony had received earlier that day. The families returned
to the Barreras home for a sleepover as they had often done
in the past.
Shortly after the families returned home from dinner, A.B.
accompanied S.B. to the bathroom. In the hallway leading to
the bathroom, they encountered Defendant, who grabbed
A.B.'s buttock as they passed. A.B. was surprised and
pushed his hand away but said nothing as she and S.B.
continued on to the bathroom. Defendant laughed afterward.
A.B. gathered herself in the bathroom, came out, and said
nothing about what had happened.
Later that evening, the four adults went to bed and four of
the children eventually fell asleep on a pull-out couch in
the living room as they had many times before. At some point
that night, A.B. awoke and discovered Defendant hovering over
her with his hand directly on the "outer lip" of
her "private area." Her pajama pants, she found,
had been lowered to her mid-thigh. Reacting, she exclaimed,
"What are you doing?" and "Get off me."
Defendant responded by whispering in her ear, "I'm
looking for your pussy, so I can stick my finger in it."
A.B. pushed Defendant off, and Defendant returned to the
bedroom he and Darlene were sharing that night. A.B. ran to
her own bedroom. She locked the door, went to her closet,
ripped up her pajama pants, cried for a time, and eventually
fell asleep with the lights on.
Early the next morning, Defendant walked into A.B.'s
bedroom and asked A.B., "Are you going to tell
anybody?" A.B.'s father, Anthony, passing through
the hallway at the time, overheard Defendant broaching the
question. Anthony asked, "Tell anybody about what?"
Defendant quickly fabricated a story, explaining he had
accidentally tripped A.B. that night, she had hurt her knee,
and he had been hoping to ensure nobody thought he had
intended to cause the injury. Anthony observed A.B. to see if
Defendant's story and explanation were true, and A.B.
lowered her head and nodded in agreement.
At first, A.B. resolved to keep the events of that evening to
herself. The two families were very close. A.B. testified
that she was reluctant to upset the dynamic, and she was
afraid nobody would believe her if she said anything.
Eventually, however, she began cutting herself, and the
cutting soon became evident to her parents.
After a Father's Day barbecue in June 2010, more than six
months after the December sleepover, Anthony, alarmed about
the cutting, took A.B. to a hospital. As they sat in the
parking lot before entering the hospital, they had a long and
emotional conversation as Anthony attempted to identify the
source, or sources, of ...