State v. Schaublin ( 2014 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ___________
3 Filing Date: December 3, 2014
4 NO. 32,929
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 RICHARD SCHAUBLIN,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
11 Teddy L. Hartley, District Judge
12 Gary K. King, Attorney General
13 Paula E. Ganz, Assistant Attorney General
14 Santa Fe, NM
15 for Appellee
16 Trace L. Rabern
17 Santa Fe, NM
18 for Appellant
1 OPINION
2 SUTIN, Judge.
3 {1} A jury found Defendant Richard Schaublin guilty of one count of child
4 solicitation by electronic communication device (and appearing for a meeting with)
5 a child between thirteen and sixteen years of age, contrary to NMSA 1978, Section
6 30-37-3.2(A), (C)(1) (2007). The district court entered a judgment and sentence
7 consistent with the jury’s verdict, from which Defendant now appeals. On appeal,
8 Defendant primarily argues that he was unlawfully entrapped by a police sting
9 operation in which an adult police officer posed as a fifteen-year-old female child on
10 an adults-only section of the website “Craigslist[.]” He also raises a jury instruction
11 issue and a challenge to the constitutionality of Section 30-37-3.2 on First
12 Amendment grounds.
13 {2} We hold that Defendant was not unlawfully entrapped, either as a matter of law
14 or as a matter of fact. We do not consider Defendant’s unpreserved jury instruction
15 argument, and because Section 30-37-3.2 was held constitutional on First
16 Amendment grounds in an Opinion issued by this Court in 2011, we do not
17 reconsider the issue here. We affirm.
1 BACKGROUND
2 {3} Phil Caroland, an agent of the Curry County Sheriff’s Office, posted an ad on
3 the Craigslist website under the “women seeking men” section that was titled “New
4 in town/looking—w4m (Clovis)” and that read, “Young/cute if age doesn’t matter hit
5 me up!!!” Defendant replied to the post stating, “Hey newbie, were1 in the same boat.
6 Wanna hang out?” Agent Caroland responded as “Myrna Gonzales” (Myrna) and
7 stated, “sure asl2? description? im 15 f moved here from florida, very short and
8 skinny[.]” Defendant responded by stating, “I see. What exactley are you looking
9 for? Not sure that we could be anymore than text buddies because of your age.”
10 When Myrna responded, “thats cool . . . i like textin new ppl . . . thats how we did it
11 in florida[,]” and after a brief e-mail discussion in which Myrna revealed that she had
12 recently moved to New Mexico with her parents who were in the Air Force,
13 Defendant asked for Myrna’s phone number so that they could exchange text
14 messages.
15 {4} Defendant initiated a text-message conversation with Myrna later that
16 afternoon. In the interim, “Myrna” had gone to lunch with her “mom,” and Defendant
1
17 Quoted material from Craigslist postings, emails, and text messages are
18 verbatim throughout this Opinion, with the exception of punctuation as noted.
2
19 “Asl” is an acronym for “age, sex, location.”
2
1 asked Myrna, “what does mom think of your search for a man?” When Myrna said
2 that her mom didn’t know “or she would kill me[,]” Defendant responded “Oooh!
3 Your being a bad little girl? Did you get many [responses]?” As their conversation
4 continued, Myrna and Defendant both made repeated references to her age, with
5 Myrna also making references to her parents, and with Defendant asking Myrna why
6 she was not in school (with Myrna responding that her mom had given her “a day or
7 to to chill”).
8 {5} Within their first day of texting, Defendant began including sexual innuendo
9 in his communication with Myrna, asking her “Does your ‘fun’ involve things 15 yr
10 old girls shouldn’t be doing yet?”; telling her, “I can hear your dirty little mind
11 working!”; and, asking, albeit not in response to “thoughts” shared by Myrna, “What
12 are you going to do with all of those dirty little thoughts?” The next morning,
13 Defendant initiated a conversation with Myrna asking, “Sleep in bad girl?” and
14 whether she had “[s]weet dreams or did dirty thoughts keep you up?” Myrna
15 responded that she had slept “well[.]”
16 {6} In their second day of communication, in response to Defendant’s request for
17 a photograph from Myrna, Agent Caroland sent two “age regressed” photographs of
18 an adult deputy intended to appear to be photos of a fifteen-year-old girl. Having
19 received the photographs, Defendant sent Myrna a text stating, “WOW! Its a good
3
1 think your not 21. You look older in [one of the photos,]” to which Myrna
2 responded, “I tried too & thank u[.]” Shortly thereafter, Defendant told Myrna, “You
3 are very pretty! Now i feel like a dirty old man!” Defendant then asked for Myrna
4 to call him on the telephone. In response to this request, an adult, female deputy had
5 a “short conversation” (as characterized by Defendant) with Defendant over the
6 phone. Defendant followed the phone conversation with a text to Myrna stating, “Ok
7 this is going to sound bad but you have THE sexiest voice! . . . Makes me want to
8 throw my morals out the window!”
9 {7} On the third day of their interaction, Defendant initiated a text communication
10 with Myrna, in which Defendant initiated a discussion containing sexual innuendo,
11 and Defendant eventually sent sexually explicit communications detailing what he
12 “would” do to/with Myrna. On the fourth day of their interaction, Defendant initiated
13 a text communication with Myrna with the greeting, “Goodmorning Lover!” and later
14 that day he introduced the topic of meeting Myrna in person. Defendant and Myrna
15 arranged to meet at Myrna’s house when her parents were out. Defendant was
16 arrested when he arrived at the address that Myrna had given him.
17 {8} Prior to trial, Defendant moved for dismissal of the charge against him on the
18 basis of illegal entrapment. As will be discussed in greater detail in the body of this
19 Opinion, the district court denied the motion, in part, but allowed Defendant to
4
1 present his entrapment defense to the jury. The jury rejected Defendant’s entrapment
2 defense, and as noted earlier, found him guilty of one count of child solicitation by
3 electronic communication device.
4 {9} On appeal, Defendant re-asserts his entrapment arguments, claiming that the
5 district court erred in denying his motion to dismiss on the ground that he was
6 subjectively entrapped as a matter of law, and also arguing that the State failed to
7 provide sufficient evidence to support the jury’s rejection of his entrapment defense
8 as a matter of law. We disagree with both of Defendant’s arguments. Defendant’s
9 additional arguments, concerning jury instructions and the constitutionality of Section
10 30-37-3.2 do not warrant this Court’s consideration.
11 DISCUSSION
12 Overview of Entrapment Law
13 {10} New Mexico recognizes two major approaches to the defense of entrapment,
14 the subjective approach and the objective approach. See State v. Vallejos, 1997-
15 NMSC-040, ¶¶ 5-6, 123 N.M. 739, 945 P.2d 957 (noting that New Mexico recognizes
16 both subjective and objective entrapment); 2 Wayne R. LaFave et al., Criminal
17 Procedure §§ 5.2, 5.2(a) (3d ed. 2007) (stating that the subjective and objective
18 approaches are the two major approaches to the defense of entrapment). Both are at
19 issue here.
5
1 {11} “Subjective entrapment occurs when the criminal design originates with the
2 [police], and they implant in the mind of an innocent person the disposition to commit
3 the alleged offense and induce its commission in order” to generate a prosecution.
4 Vallejos, 1997-NMSC-040, ¶ 5 (internal quotation marks and citation omitted). In
5 the subjective approach, the focus is on the defendant’s intent or predisposition to
6 commit the crime, with the prosecution bearing the burden of proving to the fact-
7 finder that the defendant was predisposed to commit the crime. See id.; State v.
8 Fiechter, 1976-NMSC-006, ¶¶ 10 n.6, 11, 89 N.M. 74, 547 P.2d 557 (recognizing that
9 it is the prosecution’s burden to demonstrate, as a matter of fact to be resolved by the
10 jury, “that the defendant was already willing to commit the crime”). Where the
11 prosecution proves that the defendant was predisposed to commit the crime and the
12 police merely provided an opportunity for him to do so, the subjective entrapment
13 defense must fail. Vallejos, 1997-NMSC-040, ¶ 5.
14 {12} Under rare circumstances, the issue of subjective entrapment may be resolved
15 as a matter of law, in which instance, the fact-finder would not consider the
16 defendant’s predisposition. See Fiechter, 1976-NMSC-006, ¶ 11 (“[I]t is rare indeed
17 when [subjective] entrapment may correctly be held to exist as a matter of law. And
18 if entrapment in law is not present, then the jury must decide whether the defendant
19 was predisposed to commit the crime.”); see, e.g., Sherman v. United States, 356 U.S.
6
 1 369, 373 (1958) (holding, pursuant to the subjective approach, that the defendant was
2 entrapped as a matter of law); Sorrells v. United States, 287 U.S. 435, 441, 448-49
3 (1932) (same); see LaFave, supra, § 5.2(a) (recognizing that the subjective approach
4 is also called the Sherman-Sorrells doctrine because it was adopted by a majority of
5 the Supreme Court in those cases).
6 {13} “The objective approach focuses upon the inducements used by the” police.
7 LaFave, supra, § 5.2(b). A defendant may succeed in his objective entrapment
8 defense in one of two ways, a “factual inquiry” or a “normative inquiry.” Vallejos,
9 1997-NMSC-040, ¶¶ 11, 14-15. In a factual inquiry, a jury must consider whether “as
10 a matter of fact . . . police conduct created a substantial risk that [a hypothetical]
11 ordinary person not predisposed to commit a particular crime would have been caused
12 to commit that crime[.]” Id. ¶¶ 11-12. A defendant’s predisposition “plays no role
13 whatsoever” in the factual inquiry; and the prosecution bears the burden of proving
14 that the police did not “exceed[] the bounds of permissible law enforcement conduct.”
15 Id. ¶ 13; UJI 14-5161 NMRA.
16 {14} In a normative inquiry, the district court may rule “as a matter of law [and
17 policy] that police conduct exceeded the standards of proper investigation[.]”
18 Vallejos, 1997-NMSC-040, ¶¶ 11, 15-16. In conducting a normative inquiry, the
19 district court considers “whether police tactics offend our notions of fundamental
7
1 fairness, or are so outrageous” that they offend principles of due process, or violate
2 “principles of fair and honorable administration of justice[.]” Id. ¶¶ 16-17 (internal
3 quotation marks and citation omitted). A defendant’s predisposition may, but does
4 not necessarily, factor into a court’s normative inquiry. See id. ¶ 15 (stating, for
5 example, that where police persuade a recovering drug addict to use illegal drugs, the
6 defendant’s predisposition toward drug abuse may factor into the normative inquiry
7 because, in that circumstance, the police conduct may exceed the standards of proper
8 investigation, notwithstanding the notion that an “ordinary person” would not be
9 susceptible to such persuasion).
10 The District Court’s Entrapment Ruling
11 {15} The district court considered whether Defendant was entrapped pursuant to any
12 of the foregoing standards. Through his pleadings and argument, Defendant
13 persuaded the district court that the issue of subjective entrapment and factual-inquiry
14 objective entrapment should be presented to and resolved by the jury. In regard to
15 normative-inquiry objective entrapment, the district court found that the police,
16 posing as a female, Myrna, created a profile online through which Defendant
17 contacted Myrna who told Defendant that she was fifteen years old. Defendant and
18 Myrna “engaged in email, text[,] and telephone conversations[,]” some of which
19 communications “were sexual in nature.” “Ultimately, . . . Defendant arrived at a
8
1 residence to meet [Myrna] in person[,]” and he was arrested. The district court
2 concluded that “the police conduct followed a well[-]established manner of
3 investigation into these types of crimes” and “neither the methods [n]or purposes of
4 police conduct offend . . . notions of fundamental fairness.” Accordingly, the district
5 court ruled that, pursuant to a normative inquiry, objective entrapment did not occur.
6 Defendant’s Entrapment Argument
7 {16} Defendant does not challenge the district court’s ruling regarding objective
8 entrapment, nor does he challenge the sufficiency of the State’s evidence to prove that
9 the police “did not exceed the bounds of permissible law enforcement conduct”
10 required to support the jury’s rejection of his objective entrapment defense. See UJI
11 14-5161. Instead, Defendant’s entrapment argument focuses on the “predisposition”
12 element of subjective entrapment. In that regard, Defendant argues that, pursuant to
13 Sherman and Sorrells, he was entrapped as a matter of law and that the State failed
14 to present sufficient evidence that he was predisposed to sexually converse with or
15 meet a fifteen-year-old.
16 Standard of Review
17 {17} To the extent that Defendant challenges the district court’s denial of his motion
18 to dismiss on the basis of subjective entrapment pursuant to Sherman and Sorrells as
19 an issue distinct from whether sufficient evidence supported the jury’s rejection of his
9
1 subjective entrapment defense, we consider the single issue on appeal to be whether
2 the jury’s verdict was supported by sufficient evidence. See State v. Myers, 2009-
3 NMSC-016, ¶ 14, 146 N.M. 128, 207 P.3d 1105 (“[W]hen a case proceeds to trial,
4 error resulting from an improperly denied pretrial motion is not reversible for the
5 result becomes merged in the subsequent trial.” (internal quotation marks and citation
6 omitted)). In reviewing Defendant’s argument regarding the sufficiency of the State’s
7 predisposition evidence, we view the evidence in the light most favorable to the
8 guilty verdict to determine whether it was supported by substantial evidence. State
9 v. Nichols, 2014-NMCA-040, ¶ 15, 321 P.3d 937, cert. granted, 2014-NMCERT-
10 003, 324 P.3d 376. In so doing, we do not re-weigh the facts, substitute our judgment
11 for that of the jury, or search for inferences supporting a contrary verdict. State v.
12 Slade, 2014-NMCA-088, ¶ 13, 331 P.3d 930, cert. granted, 2014-NMCERT-008, 334
13 P.3d 425.
14 Sherman and Sorrells Are Not Supportive of Defendant’s Argument
15 {18} Defendant relies on the statement in Sherman that “[e]ntrapment occurs only
16 when the criminal conduct was ‘the product of the creative activity’ of
17 law[]enforcement officials” for the proposition that, but for the creative activity of the
18 police in this case, he would not have solicited a sexual relationship with a child. 356
19 U.S. at 372 (quoting Sorrells, 287 U.S. at 451). The particular creative police activity
10
1 by which Defendant claims to have been induced was the officer’s use of an adult-
2 only Craigslist board to post Myrna’s ad, the officer’s act of directing Myrna’s
3 interaction with Defendant “toward the sexual,” and the officer’s act of using an adult
4 woman’s photograph and voice to accompany the “Myrna” persona. Defendant
5 argues that the foregoing police conduct “was designed to plant a seed” in
6 Defendant’s mind that would “germinate into a plan” that, once carried out, would
7 create an opportunity to prosecute a crime. Cf. Sherman, 356 U.S. at 372
8 (recognizing that entrapment may be indicated where “the criminal design originates
9 with the [police], and they implant in the mind of an innocent person the disposition
10 to commit the alleged offense and induce its commission in order that they may
11 prosecute” (internal quotation marks and citation omitted)).
12 {19} In both Sherman and Sorrells, the United States Supreme Court recognized that
13 police may detect criminals by means of a ruse. See Sherman, 356 U.S. at 372
14 (recognizing that “[c]riminal activity is such that stealth and strategy are necessary
15 weapons in the arsenal of the police officer”); Sorrells, 287 U.S. at 441 (“Artifice and
16 stratagem may be employed to catch those engaged in criminal enterprises.”). It is
17 only where, acting under the cover of such ruse, the police (or government agent)
18 persuades an otherwise law abiding citizen to engage in criminal activity through
19 repeated and consistent appeals, that the line is crossed between setting a “trap for the
11
1 unwary criminal” and impermissible entrapment of the “unwary innocent.” Sherman,
2 356 U.S. at 372-74 (holding that the defendant was unlawfully entrapped by a
3 government agent who sought to persuade the defendant to obtain narcotics by
4 making repeated requests, first to overcome the defendant’s refusal, then his
5 evasiveness, and then his hesitancy before finally achieving capitulation); see
6 Sorrells, 287 U.S. at 441 (holding that the government agent lured the defendant,
7 otherwise not predisposed, to engage in criminal activity by “repeated and persistent
8 solicitation in which he succeeded by taking advantage of the [defendant’s]
9 sentiment”); see also United States v. Vasco, 564 F.3d 12, 18 (1st Cir. 2009)
10 (recognizing that government overreach may be demonstrated by “such conduct as
11 intimidation, threats, dogged insistence, excessive pressure[,] or exploitation of a
12 noncriminal motive”).
13 {20} Defendant’s reliance on Sherman and Sorrells is unpersuasive under the
14 circumstances of this case. Notwithstanding the fact that Myrna’s ad was posted in
15 the adults-only section of Craigslist3, Myrna informed Defendant immediately, in her
3
16 Defendant does not appeal the district court’s conclusion that the “well-
17 established” police investigation technique of posting “Myrna’s” ad to the adults-only
18 section of Craigslist was within the bounds of fundamental fairness, thereby
19 effectively conceding the correctness of the district court’s ruling. See Rule 12-
20 213(A)(4) NMRA (stating that a finding that the appellant does not attack in his brief
21 in chief “shall be deemed conclusive”).
12
1 response to Defendant’s initial response to her ad, that she was fifteen years old. The
2 record of Defendant’s ensuing e-mail and text exchange with Myrna is void of any
3 indication that police attempted to persuade Defendant, through even a single request,
4 to continue communicating with Myrna. Further, Defendant’s contention that it was
5 Myrna, instead of Defendant, who inserted sexuality into their communications is
6 contradicted by the record, which reflects that the subject of sexuality was first
7 broached by Defendant in the following text exchange.
8 Defendant: What you be doing right now if you could?
9 Myrna: Not sure something fun & not have to worry bout.
10 Defendant: There you go with that fun thing again. Does your ‘fun’
11 involve things 15 yr old girls shouldn’t be doing yet?
12 Myrna: Hmmmmm I’m shy lol
13 Defendant: What does that mean?
14 ....
15 Defendant: I’ve got a pretty good idea just by where you posted[.]
16 Myrna: Hehehe is that bad?
17 Defendant: I found you didn’t i? Guess were both bad!
18 Myrna: Hehehe guess so . . . . Now wat?
19 Defendant: I can hear your dirty little mind working!
13
1 See United States v. Brand, 467 F.3d 179, 195 (2d Cir. 2006) (holding that the jury
2 could have interpreted the defendant’s “use of sexual innuendo [in his online
3 communications with an undercover agent posing as a thirteen-year-old child] as
4 ‘oblique requests’ of enticement to engage in sexual activity”). Also contrary to
5 Defendant’s representation, the foregoing exchange occurred before police sent any
6 photographs to Defendant and before Myrna phoned Defendant. Later text messages,
7 including those that were exchanged after Defendant received the photographs and
8 telephone call, contained increasingly graphic sexual language that was consistently
9 introduced by Defendant, but none reflect any repeated or persistent attempt by police
10 to persuade Defendant to communicate with Myrna, sexually or otherwise.
11 {21} In sum, from the foregoing, the jury could reasonably have concluded that
12 Defendant engaged with Myrna willingly and without having been persuaded to do
13 so by any manner of persistent or insistent cajoling by the police. Accordingly, the
14 circumstances here do not bear reasonable comparison to the circumstances of
15 Sherman and Sorrells, nor do we read Sherman or Sorrells to support reversal of the
16 jury’s verdict in this case.
17 Evidence of Defendant’s Predisposition Was Sufficient
18 {22} Defendant’s overarching argument regarding his predisposition is that there
19 was “no evidence to support the conclusion that, absent the insertion of the fake
14
1 persona into his life, [he] would ever [have] exchanged sexual texts with a juvenile.”
2 He argues that had he been presented with an “ordinary opportunity” to respond to
3 an ad that was “clearly . . . for a fifteen-year-old” there was no evidence that he would
4 have done so. And he contends that he was, in fact, responding to the “improper lure”
5 or “special inducement” by the police that commenced with the adults-only section
6 of the Craigslist posting and was followed by photos and telephone communication
7 with an adult woman, all of which led him to be “suspicious that [Myrna] was an
8 adult role-playing a minor.”
9 {23} Where the police offer an “ordinary opportunity” to commit a crime, that is, an
10 opportunity that is free of police inducement and overreach and the defendant avails
11 himself of the opportunity, an entrapment defense will not succeed. See Jacobson v.
12 United States, 503 U.S. 540, 550 (1992) (“Had the agents in this case simply offered
13 petitioner the opportunity to order child pornography through the mails, and
14 petitioner . . . had promptly availed himself of this criminal opportunity, it is unlikely
15 that his entrapment defense would have warranted a jury instruction.”); United States
16 v. Gendron, 18 F.3d 955, 961-62 (1st Cir. 1994) (stating that an “ordinary
17 opportunity” is one that is not characterized by police inducement and overreaching).
18 Examples of improper inducement or overreaching include: (1) the use of
19 “intimidation and threats against a defendant’s family,” (2) calling every day and
15
1 threatening and acting belligerent toward the defendant, (3) engaging “in forceful
2 solicitation and dogged insistence until [the defendant] capitulated,” (4) playing upon
3 the defendant’s sympathy or sentiment, (5) using “repeated suggestions which
4 succeeded only when [the] defendant had lost his job and needed money for his
5 family’s food and rent,” and (6) an agent presenting herself as “suicidal and in
6 desperate need of money[.]” Id. (internal quotation marks and citations omitted).
7 {24} In this case, the police presented an opportunity, via Myrna’s Craigslist posting
8 and her immediate representation of herself as a fifteen-year-old child, for Defendant
9 to commit a crime. This did not constitute an improper overreach by the police. See
10 Gendron, 18 F.3d at 961 (“It is proper (i.e., not an ‘inducement’) for the government
11 to use a ‘sting,’ at least where it amounts to providing a defendant with an
12 ‘opportunity’ to commit a crime.”); see also State v. Sorto-Enamorado, 544 Fed.
13 Appx. 298, 300 (5th Cir. 2013) (holding that the defendant was not entitled to an
14 entrapment defense where he “pushed for a ‘hook up’ ” with an undercover police
15 officer who responded to the defendant’s Craigslist ad and told him that she was only
16 fifteen years old). Defendant availed himself of the opportunity presented by the
17 police when he continued to communicate with Myrna even after having learned her
18 age and when he introduced sexuality into the communications. The police only
19 continued the ruse of presenting Myrna as a fifteen year old that was seeking a
16
1 relationship. The record does not reflect that the police used any improper
2 overreaching or inducement in order to persuade Defendant to engage in these
3 activities.
4 {25} Further, although Defendant argues that, based on the police’s use of an adult
5 to portray Myrna in photos and over the telephone, he believed that Myrna was an
6 adult playing the role of a child, the jury was not persuaded by this representation,
7 and we will not second guess its determination. See Sorto-Enamorado, 544 Fed.
8 Appx. at 300 (holding that it was irrelevant to the question of the defendant’s
9 predisposition that a photograph purportedly of a fifteen-year-old child “could be
10 thought to be an older girl” because the photo was accompanied by an age
11 disclosure); see also Slade, 2014-NMCA-088, ¶ 13 (stating that we will not substitute
12 our judgment for that of the jury). Nor are we persuaded that Defendant’s testimony
13 in that regard was “uncontradicted.” To the contrary, viewing the evidence in the
14 light most favorable to the State, the record reflects that Defendant believed that
15 Myrna was a fifteen-year-old child, even after he saw her photo and heard her voice.
16 For example, having seen the photo, Defendant sent an e-mail to Myrna stating, in
17 part:
18 So, as you know, I answered the [Craigslist] ad. Much to my surprise,
19 you reply and tell me your 15! My first reaction was to slam my
20 computer shut and throw it out the window like someone from 20/20
21 was filming my reaction to your age. Obviously I didn’t do that because
17
1 here we are now, 80 something texts and a phone call later. Now,
2 tonight Im laying here in bed with the little angel on one shoulder and
3 the little devil on the other. The funny thing is, the little devil is this
4 VERY pretty, inisent looking girl . . . . She keeps telling me that these
5 thoughts Im having are ok and thats what she wants but is too shy to say
6 it. So now Im in this pickle and know what I should do but would
7 REALLY, REALLY, REALLY like to do what I shouldnt!!!!!
8 Later on the same day that Defendant sent the foregoing e-mail, he initiated and
9 carried out a sexually explicit text conversation with Myrna, but only after inquiring
10 whether she had ever experienced sex, because he “[d]idnt want to offend [her] with
11 [his] dirty thoughts.” From the foregoing, the jury could reasonably have concluded
12 that Defendant believed that Myrna was actually a fifteen-year-old child, thereby
13 rejecting his claim to the contrary. See State v. Dominguez, 2014-NMCA-064, ¶ 28,
14 327 P.3d 1092 (noting that “[c]ontrary evidence supporting acquittal does not provide
15 a basis for reversal because the jury is free to reject the defendant’s version of the
16 facts” (alteration, internal quotation marks and citation omitted)), cert. denied, 2014-
17 NMCERT-005, 326 P.3d 111.
18 {26} In sum, Defendant’s willingness to engage in sexually explicit conversations
19 with Myrna, which was not the product of police overreach or improper inducement,
20 was sufficient evidence of his predisposition to commit the crime of child solicitation
21 by electronic device to support the jury’s rejection of his subjective entrapment
22 defense. Defendant’s argument provides no basis for reversal.
18
1 Defendant’s Remaining Arguments
2 {27} Defendant argues that an instruction given to the jury in this case providing
3 that: “[i]t is not a defense to the crime of [c]hild [s]olicitation by [e]lectronic
4 [c]ommunication [d]evice that the intended victim of . . . [D]efendant was a peace
5 officer posing as a child under sixteen[,]” was improper for a number of reasons.
6 Defendant did not object to the instruction in the district court, nor, regarding that
7 instruction or the statutory language from which it derived, did he make the
8 arguments below that he now makes on appeal. Because Defendant’s arguments in
9 this regard were not preserved in the district court, we decline to consider them. See
10 Rule 12-213(A)(4) (requiring the appellant to include a statement explaining how the
11 issue was preserved below, including citations to the record demonstrating
12 preservation); State v. Lucero, 1999-NMCA-102, ¶ 45, 127 N.M. 672, 986 P.2d 468
13 (declining to address an argument where the appellant failed to comply with the
14 preservation requirement of Rule 12-213).
15 {28} Finally, we do not consider Defendant’s argument that Section 30-37-3.2 is
16 unconstitutional because it criminalizes speech that is protected under the First
17 Amendment to the United States Constitution. In contravention of Rule 12-
18 213(A)(4), Defendant fails to demonstrate whether and, if so, how he preserved his
19 constitutional argument in the district court. More importantly, this issue was
19
1 resolved in State v. Ebert, a case that Defendant has failed to recognize in his
2 briefing, and we will not re-consider it. See 2011-NMCA-098, ¶¶ 1, 7-14, 150 N.M.
3 576, 263 P.3d 918 (rejecting a challenge to Section 30-37-3.2 on the grounds of First
4 Amendment overbreadth, among other constitutional arguments); see also Rule 12-
5 213(A)(4) (requiring an appellant, in his brief in chief, to cite applicable New Mexico
6 decisions).
7 CONCLUSION
8 {29} We affirm the district court’s judgment and sentence.
9 {30} IT IS SO ORDERED.
10 __________________________________
11 JONATHAN B. SUTIN, Judge
12 WE CONCUR:
13 _______________________________
14 TIMOTHY L. GARCIA, Judge
15 _______________________________
16 M. MONICA ZAMORA, Judge
20