FROM THE DISTRICT COURT OF SIERRA COUNTY Matthew G. Reynolds,
H. Balderas, Attorney General Eran Shemuel Sharon, Assistant
Attorney General Santa Fe, NM for Appellee
Helen Bennett, P.C. L. Helen Bennett Albuquerque, NM for
A jury convicted Marcos Figueroa (Defendant) of two counts of
criminal sexual penetration of a minor (CSPM) in the second
degree (CSPM-II) perpetrated against a child between the ages
of thirteen and eighteen through force or coercion contrary
to NMSA 1978, Section 30-9-11(E)(1) (2009). On appeal,
Defendant argues that (1) the use of an inapplicable jury
instruction was fundamental error; (2) insufficient evidence
supports his conviction; and (3) the district court
incorrectly credited only the portion of Defendant's
pretrial release that he spent under house arrest towards his
sentence. We reverse Defendant's convictions, remand for
a new trial, and affirm the district court's order
regarding credit for time spent on pretrial release.
The State charged Defendant by criminal information with four
counts of CSPM-II committed against his underage son, G.F.,
and two counts of CSPM-II committed against his underage
stepson, A.C. At trial, all of these charges were dismissed
save two-Counts 4 and 5, which related to G.F. and were
identical except for the charged timeframe. They alleged:
That between June 01, 2014[, ] and July 01, 2014, [for Count
4, and September 01, 2014, and October 7, 2014, for Count 5,
D]efendant did cause [G.F.] to engage in sexual
intercourse/anal intercourse/ cunnilingus/fellatio, and
[G.F.] was at least thirteen but less than eighteen years of
age, a second degree felony for a sexual offense against a
amended information alleged that this conduct violated
Section 30-9-11(E)(1), which proscribes CSPM perpetrated
"by the use of force or coercion on a child thirteen to
eighteen years of age[.]"
G.F. provided the only testimony at trial regarding the two
incidents on which Counts 4 and 5 were based. The substance
of his testimony was as follows:
STATE: [B]etween June 1 of 2014 and July 1 of 2014, what did
your father do to you when you say he molested you?
G.F.: I woke up in the living room upstairs, I can't
remember if I was in the recliner with it opened and laying
down or if I had two of the recliners next to each other and
I was laying across that, but I was upstairs laying in those,
and I woke up, but he didn't know I did, to my pants
pulled down, and he was doing oral.
STATE: He was performing oral sex?
STATE: When you say oral sex ... what was he doing exactly?
G.F.: He had his mouth on my penis.
STATE: Did he ever know you woke up?
G.F.: Not that I know.
STATE: And did he say anything about it?
STATE: Had you ever told him "don't do that"?
STATE: Did he ever say anything to you when he did this?
G.F.: He did not.
STATE: Now, later that year, between September 1, 2014, and
October 7[, ] 2014, did your father also perform oral sex on
STATE: Tell me about what you remember about that incident.
G.F.: I was downstairs in my room, in my bed, I was sleeping,
I woke up, again my pants were down, and the same thing was
happening, he was, oral sex.
STATE: Describe what he was doing when you say 'oral
G.F.: He had his mouth over my penis.
STATE: Did he pull your pants back up when he was done?
G.F. He did.
STATE: Do you remember what time of day ...