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State v. Arvizo

Supreme Court of New Mexico

March 9, 2018

STATE OF NEW MEXICO, Plaintiff-Petitioner,
OSCAR ARVIZO, Defendant-Respondent.

         ORIGINAL PROCEEDING ON CERTIORARI Briana H. Zamora, District Judge

          Hector 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



         {1} 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 June 28, 2016) (non-precedential).

         {¶2} 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.

          I. BACKGROUND

         {3} 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.

         {4} 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.

         {5} 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.

         {6} 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.

         {7} 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.

         {8} 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.

         {¶9} 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 ...

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