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State v. Figueroa

Court of Appeals of New Mexico

August 12, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
MARCOS FIGUEROA, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY Matthew G. Reynolds, District Judge

          Hector H. Balderas, Attorney General Eran Shemuel Sharon, Assistant Attorney General Santa Fe, NM for Appellee

          L. Helen Bennett, P.C. L. Helen Bennett Albuquerque, NM for Appellant

          OPINION

          IVES, JUDGE.

         {¶1} 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.

         BACKGROUND

         {¶2} 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 child[.]

         The 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[.]"

         {¶3} 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?
G.F.: Yes.
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?
G.F.: No.
STATE: Had you ever told him "don't do that"?
G.F.: No.
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 you?
G.F.: Yes.
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 sex.'
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 ...

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