State v. Carrillo ( 2012 )


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  •      This decision was not selected for publication in the New Mexico Appellate Reports. Please see
    Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Please also note that
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    1          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
    2 NO. 33,154
    3 STATE OF NEW MEXICO,
    4          Plaintiff-Petitioner,
    5 v.
    6 ADAN M. CARRILLO,
    7         Defendant-Respondent.
    8 ORIGINAL PROCEEDING ON CERTIORARI
    9 Thomas A. Rutledge, District Judge
    10 Gary K. King, Attorney General
    11 Ann M. Harvey, Assistant Attorney General
    12 Santa Fe, NM
    13 for Petitioner
    14 Jacqueline L. Cooper, Chief Public Defender
    15 William A. O’Connell, Assistant Appellate Defender
    16 Santa Fe, NM
    17 for Respondent
    1                                      DECISION
    2 BOSSON, Justice
    3   {1}   We decide this case by unpublished Decision pursuant to Rule 12-405(B)(1)
    4 NMRA. The legal issues presented in this case were previously decided, leaving only
    5 the application of facts to the law in this particular case. For reasons that follow, we
    6 reverse the Court of Appeals and affirm the convictions.
    7   {2}   On June 28, 2007, a jury convicted Defendant, Adan M. Carrillo, of two counts
    8 of criminal sexual penetration of a minor (CSPM) and one count of criminal sexual
    9 contact of a minor (CSCM). Defendant appealed, alleging among other things, that
    10 he was subjected to double jeopardy when the jury received identical jury instructions
    11 regarding the two counts of CSPM. See State v. Carrillo, No. 28,258, slip op. at 2
    12 (N.M. Ct. App. Jul. 14, 2011). Based on identical jury instructions, Defendant argued
    13 that the jury convicted him twice for the same conduct.
    14   {3}   In a Memorandum Opinion, the Court of Appeals agreed with Defendant. The
    15 Court held that insufficient evidence distinguished the alleged incidents of CSPM, so
    16 that the identical jury instructions created a double-jeopardy issue which compelled
    17 it to reverse the second CSPM conviction. Carrillo, No. 28,258, slip op. at 8, 10. The
    18 Court reasoned that the State had failed to elicit sufficient testimony from Victim
    19 distinguishing the encounters by “time, place, or conduct.” Id. at 9.
    1   {4}   We granted the State’s petition for a writ of certiorari to determine whether the
    2 two identical jury instructions, when considered in light of the evidence, violated
    3 Defendant’s right to be free from double jeopardy. State v. Carrillo, 2011-NMCERT-
    4 __, __ N.M.__, __ P.3d__. Because there was sufficient evidence from which the jury
    5 could have found that Defendant engaged in fellatio with Victim on more than one
    6 occasion, we conclude that the verdicts did not violate double jeopardy.
    7   {5}   We review constitutional questions of double jeopardy de novo. State v. Swick,
    8 
    2012-NMSC-018
    , ¶ 10, 
    279 P.3d 747
    , 752. The Fifth Amendment, applicable to New
    9 Mexico through the Fourteenth Amendment, provides that no person shall “be subject
    10 for the same offense to be twice put in jeopardy of life or limb. . . .” U.S. Const.
    11 amend. V; Swick, 
    2012-NMSC-018
    , ¶ 10. This is a unit-of-prosecution claim of
    12 double jeopardy because Defendant was charged with two violations of the same
    13 statute, NMSA 1978, Section 30-9-11 (2003) (amended 2009). See Swick, 2012-
    14 NMSC-018, ¶ 10 (stating that unit-of-prosecution cases are those where “a defendant
    15 challenges multiple convictions under the same statute”).
    16   {6}   In State v. Salazar, 
    2006-NMCA-066
    , ¶31, 
    139 N.M. 603
    , 611, 
    136 P.3d 1013
    ,
    17 1021, our Court of Appeals held that identical jury instructions regarding CSPM did
    18 not violate the defendant’s double jeopardy rights in the context of that case. The
    2
    1 defendant was charged with multiple counts of CSPM. Id. ¶ 1. The jury was
    2 instructed as to nine identical counts of CSPM, but found the defendant guilty of only
    3 two. Id. ¶ 6. Although the victim was unable to link most of the CSPM charges to
    4 particular times, the victim was able to identify various locations and differing types
    5 of penetration. Id. ¶ 30. The Court upheld the convictions in spite of the identical
    6 instructions, stating that “the evidence presented to the jury shows that there was some
    7 distinguishing facts for the different counts,” and therefore, the jury could have found
    8 that each act was in some sense distinct. Id. ¶¶ 30-31. Overall, the Court found
    9 “sufficient evidence presented to the jury from which it could have found two separate
    10 incidents of criminal sexual penetration. The fact that each incident was instructed
    11 identically does not change this conclusion.” Id. ¶ 31.
    12   {7}   In its Memorandum Opinion in this case, the Court of Appeals relied primarily
    13 on two cases to conclude that the jury convicted Defendant twice for the same
    14 conduct. In State v. Dombos, 
    2008-NMCA-035
    , 
    143 N.M. 668
    , 
    180 P.3d 675
    , the
    15 Court of Appeals upheld a defendant’s conviction for attempted criminal sexual
    16 penetration even though the jury received identical jury instructions regarding the
    17 charges. Id. ¶ 23. In Dombos, the adult victim testified that the defendant had
    18 “force[d] her to perform fellatio ‘at least four times.’” Id. ¶ 20. She further testified
    3
    1 that this conduct took place apart from the consensual intercourse the couple engaged
    2 in, and on different evenings. Id. ¶ 20 The defendant challenged the multiple charges
    3 on the basis that this testimony was insufficient to demonstrate that the attempted acts
    4 of fellatio were separate and distinct. Id. ¶ 22. The Court of Appeals disagreed. Id.
    5 ¶¶ 22-23. The Court held that the identical jury instructions did not violate the
    6 defendant’s double jeopardy rights, stating that the adult victim’s testimony
    7 established that the conduct “was not unitary because the incidents were separated by
    8 time and intervening events.” Id. ¶ 23.
    9   {8}   In State v. Martinez, 
    2007-NMCA-160
    , ¶ 14, ¶ 17, 
    143 N.M. 96
    , 101, 
    173 P.3d 10
     18, 23, the Court of Appeals upheld defendant’s convictions of multiple counts of
    11 CSPM, despite the jury having received carbon-copy jury instructions. Id. ¶ 14, ¶17.
    12 The indictment charged the defendant with multiple counts of CSPM occurring over
    13 two different time periods. See Id. ¶ 4, ¶ 11, ¶ 15. The victim, an adolescent, testified
    14 about various locations where the events took place and gave specific details about
    15 the events. Id. ¶12-13 Additionally, the Court found it significant that the defendant
    16 confessed to having sexual intercourse with the victim. Id. ¶ 14. The Court held the
    17 carbon-copy instructions did not violate double jeopardy because the victim described
    18 with particularity the alleged events, such that there was substantial evidence for the
    4
    1 jury to find the defendant guilty of each separate crime. Id. ¶ 14, ¶ 17.
    2   {9}    In considering these cases, we recognize, as did the Court of Appeals, that the
    3 Victim in this case did not provide as much specificity regarding the different
    4 encounters with Defendant as did the victims in Dombos and Martinez. Yet, unlike
    5 the victims in those two cases, Victim here was only seven years old when she
    6 testified as to events that had occurred when she was only five years old. In sexual
    7 abuse cases, children are often unable to remember specific dates and times of sexual
    8 abuse. See State v. Baldonado, 
    124 N.M. 745
    , 750, 
    955 P.2d 214
    , 219 (Ct. App.
    9 1998) (recognizing that prosecuting child sexual assault cases is difficult as the crimes
    10 are often unwitnessed, and stating “it is not difficult to appreciate that young children
    11 cannot be held to an adult’s ability to comprehend and recall dates and other
    12 specifics”) (internal quotation marks, alteration, and citation omitted).
    13   {10}   Notwithstanding the relative lack of specificity when compared to Dombos and
    14 Martinez, we find it especially significant that Defendant in this case was charged
    15 with only two counts of CSPM, not with every incident in which CSPM might have
    16 occurred. Therefore, we need be satisfied only that the evidence supported more than
    17 one count of CSPM, not each and every incident that might have supported a criminal
    18 charge.
    5
    1   {11}   Like Salazar, the evidence in this case supported a conclusion that, at the very
    2 least, Defendant inflicted more than one act of fellatio—separate and distinct from
    3 each other—upon the Victim. At trial, Victim testified that Defendant would “stick
    4 his private in my mouth.” After he did this, Victim stated that she would “spit up.”
    5 When asked on direct examination how often this occurred, Victim testified that “[i]t
    6 happened a lot of times.” Specifically, on direct examination, when asked if this
    7 occurred more than once, Victim answered “yes.” When asked if this occurred more
    8 than twice, Victim answered “yes.” Finally, when asked if this occurred more than
    9 three times, Victim answered “yes.” On cross-examination, Victim testified that she
    10 would spit up at different locations in the room—by the chest and by the door.
    11 Similar to the victim in Salazar who could identify different locations where the abuse
    12 occurred, Victim in this case was able to identify various locations where she would
    13 spit up. Although perhaps less specific than the testimony in Salazar, Victim’s
    14 testimony here was sufficient enough for the jury to find more than one incident of
    15 CSPM, despite the identical jury instructions.
    16   {12}   As stated previously, we do acknowledge that the evidence of distinctness in
    17 this case is less exacting than descriptions given by the older victims in other cases.
    18 In its closing argument, the State also recognized this shortcoming in explaining why
    6
    1 Defendant was charged with only two counts. (“[Victim] can’t tell you when it
    2 happened.”. . . “We’re here with two counts because we can’t pinpoint when, but we
    3 know it happened and we know who did it.”). We think the State correctly
    4 demonstrated self-restraint in its selection of charges, and based on our review of the
    5 evidence we are satisfied that those charges are sufficiently distinct so as to avoid
    6 double-jeopardy concerns.
    7 CONCLUSION
    8   {13}   Accordingly, we reverse the Court of Appeals and reinstate Defendant’s
    9 conviction for the second count of CSPM.
    10   {14}   IT IS SO ORDERED.
    11                                                ______________________________
    12                                                RICHARD C. BOSSON, Justice
    13 WE CONCUR:
    14 __________________________________
    15 PETRA JIMENEZ MAES, Chief Justice
    16 __________________________________
    17 EDWARD L. CHÁVEZ, Justice
    7
    1 __________________________________
    2 CHARLES W. DANIELS, Justice
    3 __________________________________
    4 PAUL J. KENNEDY, Justice
    8
    

Document Info

Docket Number: 33,154

Filed Date: 10/4/2012

Precedential Status: Non-Precedential

Modified Date: 4/18/2021