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State v. Lente

Supreme Court of New Mexico

October 31, 2019

STATE OF NEW MEXICO, Plaintiff-Petitioner,
v.
JESSE LAWRENCE LENTE, Defendant-Respondent.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Cindy Leos, District Judge

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

          Bennett J. Baur, Chief Public Defender C. David Henderson, Appellate Defender Tania Shahani, Assistant Appellate Defender Santa Fe, NM for Respondent

          OPINION

          JUDITH K. NAKAMURA, CHIEF JUSTICE

         {¶1} This is a "resident child molester" case. People v. Jones, 792 P.2d 643, 645 (Cal. 1990), as modified (Aug. 15, 1990). These cases generally involve defendants who have regular access to and control over children whom they sexually abuse in secrecy for long periods of time. See, e.g., id. The child victims in these cases are usually the sole witnesses of the crimes perpetrated and, because of their age and the frequency of the sexual abuse to which they are subjected, cannot provide detailed accounts of the abuse but only generalized accounts of frequent sexual contact with the defendant. See, e.g., id. "[T]he prosecution of resident child molesters presents unique challenges rarely present in prosecution for other crimes." R.L.G., Jr. v. State, 712 So.2d 348, 357 (Ala.Crim.App.1997), aff'd sub nom. ex parte R.L.G., Jr., 712 So.2d 372 (Ala. 1998).

         {¶2} Two issues are presented in this case which comes to us from the district court's decision to grant Defendant Jesse Lente's habeas petition. The first concerns Lente's indictment. It charged him with perpetrating various forms of sexual abuse on a regular basis against M.C., his stepdaughter. The district court, relying on Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005), and State v. Dominguez, 2008-NMCA-029, 143 N.M. 549, 178 P.3d 834, concluded that Lente's indictment included "carbon copy" charges-charges that are truly identical, and not distinguishable by time or date or by specification that each charge was predicated on different acts-that impermissibly subjected him to double jeopardy. We disagree and conclude that the district court wrongly interpreted the principles articulated in Valentine and Dominguez and erred in determining that Lente's indictment included carbon copy charges that produced a double jeopardy violation. {¶3} The second issue concerns the district court's determination that M.C.'s testimony was too generic and insufficient to support Lente's multiple convictions. Her testimony, the district court concluded, could support only one conviction for each type of sex-abuse crime Lente perpetrated and, therefore, Lente's multiple convictions violate double jeopardy. We disagree and take this opportunity to clarify the principles courts must utilize when evaluating the sufficiency of the evidence presented in resident child molester cases. We reverse and remand.

         I. BACKGROUND

         {¶4} The indictment filed against Lente included thirty-eight counts. Thirty-two of those counts involved allegations that Lente sexually abused M.C. by perpetrating varying forms of criminal sexual penetration (CSP) or criminal sexual contact of a minor (CSCM). Those counts alleged that Lente forced M.C. to engage in fellatio on six different occasions, penetrated M.C.'s vagina with his fingers on four different occasions, touched M.C.'s vagina on seven different occasions, touched M.C.'s breasts on seven different occasions, and touched M.C.'s buttocks on eight different occasions. Table A sets out in chronological order the time periods and conduct in which Lente allegedly engaged.

Date

Conduct

8/1/97 - 1/31/98 (6 month span)

Touch Buttocks (Tbu); Touch Breasts (Tbr); Touch Vagina (TVa)

2/l/98 - 7/31/98 (6 month span)

TBu; TBr; TVa

8/1/98 - 1/31/99 (6 month span)

TBu; TBr; TVa

2/1/99 - 7/31/99 (6 month span)

TBu; TBr; Tva; Penetrate Vagina Finger (PVF); Fellatio (F)

8/1/99 - 1/31/00 (6 month span)

TBu; TBr; TVa; PVF; F

2/1/00 - 7/31/00 (6 month span)

TBu; TBr; TVa; PVF; F

8/1/00 - 11/30/00 (4 month span)

TBu; TBr; TVa; PVF; F

12/1/00 - 12/12/00 (12 day span)

TBu; F

12/13/00 (a single discrete date)

F

         Table A

         {¶5} At trial, Lente's counsel elicited unrefuted testimony showing that some of the sex abuse that Lente was alleged to have perpetrated could not have happened as Lente was not living with M.C. and her mother during the time frames some of the sex-abuse charges were alleged to have occurred. The district court rightly granted Lente's motion for directed verdict in part and dismissed the sex-abuse charges that purportedly occurred at times when Lente did not live or have contact with M.C. and, thus, could not have committed certain crimes charged.

         {¶6} Lente's jury convicted him of all twenty-six sex-abuse counts that survived directed verdict: six counts of CSP fellatio, four counts of CSP digital penetration, five counts of CSCM touching M.C.'s vagina, five counts of CSCM touching M.C.'s breasts, and six counts of CSCM touching M.C.'s buttocks.

         {¶7} Lente filed his appeal of right and raised three issues unrelated to the legality of the indictment or the sufficiency of the evidence presented at trial. State v. Lente, 2005-NMCA-111, ¶ 1, 138 N.M. 312, 119 P.3d 737. The Court of Appeals rejected all three arguments and affirmed Lente's convictions. Id. He filed a petition for a writ of certiorari which was denied. State v. Lente, 2005-NMCERT-008, 138 N.M. 328, 119 P.3d 1265.

         {¶8} Lente then filed a series of pro se habeas petitions in district court asserting that he was entitled to a new trial or, alternatively, that his convictions should be vacated and he should be released. Lente claimed that M.C. lied about the abuse as had M.C.'s mother, and he insisted that he did not commit the offenses for which he was convicted. Alternatively, he argued that his convictions violated his right to be free from double jeopardy.

         {¶9} The district court summarily denied Lente's initial pro se habeas petition without explanation. After Lente filed a subsequent habeas petition, the court appointed Lente counsel.

         {¶10} Lente's counsel made the same double jeopardy argument Lente advanced in his pro se habeas petitions: each of the counts in the indictment were "carbon copy" counts and, as a result, he was not "given adequate notice [of the charges against him], and consequently [Lente's] right to be free from [double] jeopardy was compromised." Lente's arguments relied on Valentine and Dominguez.

         {¶11} The district court agreed that Valentine and Dominguez controlled as, in the district court's view, Lente's case was effectively identical to them. The court held that, "[g]iven the holdings in Valentine and Dominguez, the lack of specificity in the indictment and the testimony of M.C., . . . the multiple convictions for the same sexual acts violates double jeopardy."

         {¶12} The court vacated most of Lente's sex-abuse convictions and sustained only one conviction for each type of the varying forms of sexual abuse Lente perpetrated upon M.C. The State appeals the district court's decision to grant Lente's habeas petition and vacate the convictions. We have jurisdiction over this appeal. Rule 12-102(A)(3) NMRA.

         II. DISCUSSION

         {¶13} The district court's conclusions require us to answer two questions. First, did Lente's indictment charge him with "carbon copy" counts and, in doing so, violate his double jeopardy rights? Second, was M.C.'s testimony sufficient to support Lente's multiple sex-abuse convictions and ensure his multiple convictions did not violate double jeopardy? We address these questions in turn.

         A. The Indictment

         {¶14} The district court concluded that Lente's indictment violated his double jeopardy rights. Specifically, the court held that the charges in Lente's indictment were insufficiently specific in the same way that the charges in the indictments in Valentine and Dominguez were and produced the same double jeopardy problems that led to the vacating of counts and/or convictions in those cases. Our review of whether a double jeopardy violation occurred is a legal question subject to de novo review. State v. Bernal, 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289. Before we address Valentine and Dominguez it is necessary to more broadly discuss the types of objections most commonly directed towards indictments in resident child molester cases. Doing so will give us clarity about the objections the district court and Lente have regarding his indictment.

         1. Notice and multiplicity

         {¶15} Objections to indictments comprised of unspecific charges are often presented as notice problems. See State v. Huerta-Castro, 2017-NMCA-026, ¶ 13, 390 P.3d 185; State v. Gardner, 2003-NMCA-107, ¶ 26, 134 N.M. 294, 76 P.3d 47; State v. Baldonado, 1998-NMCA-040, ¶ 18, 124 N.M. 745, 955 P.2d 214. Where defendants do not have adequate notice of the charges filed against them, they cannot be expected to prepare a defense to those charges. Baldonado, 1998-NMCA-040, ¶¶ 18-21. Notice/due process objections are common in resident child molester cases given that the child victim's generic testimony will likely be the only evidence available. See State v. Brown, 780 P.2d 880, 885 (Wash.Ct.App. 1989).

         {¶16} Lente never filed pretrial objections to the indictment or demanded any additional pretrial specification of the charges. Having failed to do so, he waived the opportunity to object to the indictment on notice or due process grounds. State v. Selgado, 1967-NMSC-147, ¶ 3, 78 N.M. 165, 429 P.2d 363; State v. Lott, 1963-NMSC-219, ¶ 5, 73 N.M. 280, 387 P.2d 855; State v. Altgilbers, 1989-NMCA-106, ¶ 46, 109 N.M. 453, 786 P.2d 680; State v. Gammill, 1985-NMCA-014, ¶ 5, 102 N.M. 652, 699 P.2d 125. Even if Lente was not precluded from first objecting to the indictment after trial, we are confident that Lente confronted no notice problem.

         {¶17} At the hearing on Lente's habeas petition, trial counsel testified that she reviewed the indictment with Lente, informed him that the evidence against him was significant and credible, and suggested that he consider a plea deal. Lente, however, was "adamant about going to trial." She also testified that the varying sex-abuse charges in Lente's indictment did not, in her view, present any legal issues that needed to be addressed by pretrial motions. She said that she believed each count "to be a separate event."

         {¶18} To the extent Lente was charged with crimes he could not defeat by showing lack of access to M.C., Lente's trial counsel attempted to convince the jury that M.C.'s mother fabricated the abuse because she was jealous Lente was involved with another woman. Counsel attempted to discredit M.C.'s testimony by emphasizing how details of the abuse emerged and evolved over time and by showing that M.C. did not exhibit behavior consistent with frequent and repeated sexual abuse. Lente's attempt to discredit his accusers is one commonly employed in resident child molester cases. Jones, 792 P.2d at 657-59. "Usually, the trial centers on a basic credibility issue-the victim testifies to a long series of molestations and the defendant denies that any wrongful touching occurred." Id. at 658. The evidence presented at trial indicated Lente did indeed sexually abuse M.C.

         {¶19} M.C. testified that she was subjected to nearly continuous sex abuse for years. M.C.'s mother testified that the abuse came to light when she inadvertently walked in on Lente receiving fellatio from M.C. and, upon seeing this, demanded that Lente leave their shared residence. Lente refused, and M.C.'s mother attempted to call the police. Lente hovered around her, insisted "he didn't do anything," and ripped phone cords from walls to prevent her from completing the call. When the police finally arrived at the residence, Lente fled out of a rear window and remained at large for a week.

         {¶20} All of the foregoing gives us confidence that Lente knew what he was charged with and knew what evidence he needed to marshal to defend against the charges. There is nothing to suggest that Lente was unsure of the charges he faced or was somehow precluded from defending himself, and his alibi defense did in fact succeed in eliminating several of the sex-abuse charges.

         {¶21} Because Lente did have notice of the charges, was capable of preparing a defense, and did not raise due process objections, Lente also cannot avail himself of the arguments raised in Baldonado, 1998-NMCA-040. There, the defendant argued that the two-year charging period during which he was alleged to have engaged in two counts of criminal sexual contact was too long to provide him "reasonable notice" of the charges. Id. ¶¶ 1, 18. For the reasons already stated, Lente cannot raise an equivalent argument to the overall charging period in his case which involved a series of consecutive, six-month charging intervals. A comment about these charging intervals is necessary.

         {¶22} The district court and Lente both appear to question the State's authority to charge Lente with engaging in certain sex-abuse crimes in a repeating pattern of six-month intervals. Lente contends that the decision to charge in six-month intervals is "meaningless" and the district court characterized the choice as "inexplicable" and "random." We do not agree that the State's decision to charge by six-month intervals is somehow flawed or in any way unlawful.

         {¶23} Thirty years ago, our Court of Appeals persuasively reasoned that the State is not, in resident child molester cases, stuck with only two choices: (1) charge a single count for the entire period of time the abuse allegedly occurred or (2) charge one count for every possible infraction. Altgilbers, 1989-NMCA-106, ¶ 43. The Court explained that "dividing the multi-year period of the alleged infractions into two- or three-month intervals advances the public interest in having the number of charges reflect the magnitude of the conduct while reducing [the] potential problems . . . that would arise from a single count encompassing several years." Id.

         {¶24} Altgilbers correctly acknowledged that, while there is no hard and fast principle controlling how the State may elect to divide the time during which sexual abuse occurs in resident child molester cases, the absence of such a principle in no way precludes line drawing. Id. That line drawing is often necessary and an appropriate exercise of the State's authority to prosecute resident child molesters in a manner that correctly reflects condemnation of lengthy and repeated sexual abuse of children. There is nothing objectionable about the six-month intervals selected here.

         {¶25} Multiplicity is also a common objection in multiple-charge instances like resident child molester cases. It is "the charging of a single offense in several counts." United States v. Reedy, 304 F.3d 358, 363 (5th Cir. 2002) (internal quotation marks and citation omitted); accord Herron v. State, 1991-NMSC-012, ¶ 6 n.4, 111 N.M. 357, 805 P.2d 624. Multiplicitous indictments are problematic because "[t]he repeated assertion of the details of a singular course of conduct in multiple counts will prejudice the defendant and confuse the jury by suggesting that not one but several crimes have been committed." United States v. Hearod, 499 F.2d 1003, 1005 (5th Cir. 1974) (per curiam).

         {¶26} Multiplicity is a concern that arises from the Double Jeopardy Clause. United States v. Pires, 642 F.3d 1, 15 (1st Cir. 2011). "When an indictment includes multiple counts charging a violation of the same statutory provision and a claim of multiplicity is raised, an inquiring court must determine whether the facts undergirding each count can be treated as a distinct unit of prosecution." Id. "The critical inquiry is whether [the Legislature] intended to punish each statutory violation separately." Id. (internal quotation marks and citation omitted). The objection that an indictment is multiplicitous must be asserted before trial or the defense is waived. United States v. Mastrangelo, 733 F.2d 793, 800 (11th Cir. 1984).

         {¶27} Lente did not object to the indictment as multiplicitous before trial, and we are confident that this was not a consequence of oversight or attorney error. The indictment alleged that Lente had different and discrete instances of sexual contact with M.C. on different and distinct dates over a period of years. As we already noted, Lente's counsel viewed each count as a separate event. This view is correct; each of these instances of sexual contact plainly constituted a different offense. The indictment did not produce a unitary conduct question. That is, Lente's activity is not "better characterized as one unitary act[.]" State v. Bernal, 2006-NMSC-050, ¶ 16.

         {¶28} Lente suggests otherwise and argues that it is still unclear whether "the sexual acts to which [M.C.] was exposed occurred together as part of one assaultive episode or whether each instance of misconduct stood alone" (emphasis added). This claim is unpersuasive as this is not a case involving "one assaultive episode." Herron is the quintessential case of this species. 1991-NMSC-012. Lente's crimes do not prompt the questions that had to be asked in Herron.

         {¶29} In Herron, the defendant penetrated a female victim multiple times over the course of a continuous, one-hour rape. Id. ¶ 17. In such instances, the question of unitary conduct becomes all important: If vaginal penetration occurs five times in a one-hour rape, is this five acts of criminal penetration or one? Herron concluded, by reliance on a series of analytical factors, that the multiple penetrations the defendant committed during the one-hour rape were not all distinct penetrations. Id. ¶¶ 20-22. Some were committed in such a fashion that they constituted only one criminal penetration. Id. As noted, this case bears no resemblance to Herron.

         {¶30} The district court never wrestled with whether Lente's acts could, if supported by sufficient evidence, constitute multiple distinct crimes. And this is for good reason: There can be no question that our Legislature did indeed intend for different acts of criminal sexual penetration and contact perpetrated against a child on different and discrete dates over a course of years to constitute discrete violations of the statutes here implicated. See id. ¶ 15 ("[T]he greater the interval between acts the greater the likelihood of separate offenses[.]"); see also State v. Martinez, 2007-NMCA-160, ¶¶ 4-17, 143 N.M. 96, 173 P.3d 18 (rejecting a double jeopardy challenge to multiple CSPM convictions on grounds that the varying CSPMs occurred at different times); State v. Salazar, 2006-NMCA-066, ¶¶ 29-31, 139 N.M. 603, 136 P.3d 1013 (same). Multiplicity is not a concern in this case.

         {¶31} The double jeopardy violation to which Lente was subjected, according to the district court, is the one the Sixth Circuit discussed in Valentine and which our Court of Appeals discussed in Dominguez. We must begin our discussion of these cases with Russell v. United States, 369 U.S. 749 (1962). Valentine relied heavily upon it. 395 F.3d at 635. Dominguez relied heavily on Valentine. Dominguez, 2008-NMCA-029, ¶¶ 5-11. Russell is the source of the law in both cases.

         2. Russell

         {¶32} Russell is a McCarthy-era case involving the House Un-American Activities Committee. 369 U.S. at 752 n.3. The defendants were charged by indictments with refusing to answer questions posed to them by a congressional subcommittee. Id. at 752. Under the statute allegedly violated, it was a misdemeanor to refuse to answer a question "pertinent" to the matter under congressional inquiry. Id. at 755-56. The defendants moved, pretrial, to quash the indictments asserting that they failed to identify how the questions the defendants refused to answer were pertinent. Id. at 752-53. The Supreme Court accepted this argument and, in explaining its rationale for doing so, discussed the nature of indictments and their sufficiency in any given case.

         {¶33} The Court explained that an indictment must "contain[] the elements of the offense intended to be charged, and sufficiently apprise[] the defendant of what he must be prepared to meet[]." Id. at 763 (internal quotation marks and citation omitted). This is the notice requirement implicating due process concerns we have already discussed. See, e.g., Cole v. Arkansas, 333 U.S. 196, 201 (1948). Indictments must also identify the offenses allegedly committed with sufficient specificity so that "in case any other proceedings are taken against [the defendant] for a similar offense" the record will show "with accuracy to what extent he may plead a former acquittal or conviction." Russell, 369 U.S. at 764 (internal quotation marks and citation omitted). This is a double jeopardy concern and the one the district court focused on and, thus, the one we focus on.

         {¶34} The Supreme Court determined that the indictments at issue in Russell presented no double jeopardy concern. Id. The indictments were sufficiently specific and documents other than the indictment could be relied upon by the defendants in any future prosecution, if one ever came into existence. Id. The Court's own words deserve consideration.

Since the indictments set out not only the times and places of the hearings at which the petitioners refused to testify, but also specified the precise questions which they then and there refused to answer, it can hardly be doubted that the petitioners would be fully protected from again being put in jeopardy for the same offense, particularly when it is remembered that they could rely upon other ...

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