State v. Trevino , 116 N.M. 528 ( 1993 )

OPINION

RANSOM, Chief Justice.

Juan Trevino appealed to the Court of Appeals from his convictions on four counts of criminal sexual contact of a minor in the third degree (CSCM) under NMSA 1978, Section 30-9-13(A) (Cum.Supp.1990), and two counts of contributing to the delinquency of a minor (CDM) under NMSA 1978, Section 30-6-3 (Repl.Pamp.1984). The Court of Appeals affirmed except as to one question certified for review by this Court pursuant to NMSA 1978, Section 34-5-14(0 (Repl.Pamp.1990). See State v. Trevino, 113 N.M. 804, 806, 833 P.2d 1170, 1172 (Ct.App.1991). Trevino petitioned this Court for a writ of certiorari, requesting that we review issues not certified by the Court of Appeals. Athough it was unnecessary because jurisdiction of the entire case was transferred to this Court by the certification, see Collins ex rel. Collins v. Tabet, 111 N.M. 391, 404 n. 10, 806 P.2d 40, 53 n. 10 (1991) (certification under Section 34-5-14(0 brings entire case under Supreme Court jurisdiction), we granted certiorari and consolidated this case with State v. Orosco, which is reported at 113 N.M. 780, 833 P.2d 1146 (1992). In Orosco this Court determined that Trevino’s attack on his convictions for CDM as violating principles of double jeopardy required further consideration, and that portion of his appeal was severed. See id. at 781-82, 788, 833 P.2d at 1147-48, 1154. The parties submitted supplemental briefs, and the issues addressed therein are the basis for our opinion today. A1 other issues raised on appeal in this case were affirmed in Orosco. Id. at 787, 833 P.2d at 1153.¹

The State charged Trevino with CSCM offenses against two boys under Section 30-9-13(A), but because of different circumstances separate provisions of the statute applied. As will be discussed below, J.C. was fourteen and employed by Trevino; J.J. was twelve. With respect to J.C., Trevino was convicted of three counts of CSCM and one count of CDM. With respect to J.J., he was convicted of one count of CSCM and one count of CDM. The Court of Appeals held that “although both the crimes of [CSCM] and [CDM] were violated by the [same act of] unlawful and intentional touching of the minor’s genitals, two offenses were committed.” Trevino, 113 N.M. at 808, 833 P.2d at 1174. The Court of Appeals, applying the elements test set out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and looking at the legislative intent underlying the two statutes, concluded that convictions under both statutes for the same conduct did not violate double jeopardy. We affirm the convictions and the holding of the Court of Appeals.

Double Jeopardy. Protection against multiple punishments for the same offense is one of three types of protection embodied in the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991).² In Swafford, this Court adopted a two-step process for double jeopardy analysis. Id. at 13, 810 P.2d at 1233. The first step is to determine “whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes.” Id. In this case, it is conceded that the same conduct formed the basis for convictions under both statutes. Therefore, we turn to the second step of the analysis, a determination of “whether the legislature intended to create separately punishable offenses.” Id. When it intends to do so, the legislature may impose multiple punishments for the same offense. Double jeopardy principles in cases involving multiple punishments (like this one) are intended only to prevent imposition of a greater sentence than the legislature intended. Id. at 7, 810 P.2d at 1227; see also Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) (explaining that legislatures define crimes and fix punishments and the double jeopardy guarantee is a restraint on courts and prosecutors). If this Court were to find that it was not the legislature’s intention to impose separate sentences for CSCM and CDM when the same conduct constituted both offenses, Trevino’s convictions for CDM would have to be reversed.

We begin the second step of our double jeopardy analysis by looking to see if the legislature clearly expressed an intention to provide multiple punishment. We find no clear expression of such an intent and continue our analysis.

—The two crimes each require proof of a fact that the other does not. As we indicated in Swafford, the Blockburger test is a means of divining legislative intent by comparing the two statutes to see if each requires proof of a fact that the other does not. 112 N.M. at 8, 810 P.2d at 1228. In applying the Blockburger test, the evidence and proof offered at trial are immaterial; only the elements of the statutes are considered. Id. If one statute subsumes the other, i.e., if each offense does not require proof of a fact in addition to the facts required to prove the other, double jeopardy precludes multiple punishments. Id. at 14, 810 P.2d at 1234.

—CSCM requires proof of a fact not required to prove CDM. The elements of CSCM differ for the two victims in this case, so we must examine the two versions separately. Under Section 30-9-13(A)(l), the elements are: (1) an unlawful and (2) intentional (3) touching or applying of force to the intimate sexual parts of the victim, or causing the victim to touch the intimate sexual parts of the defendant (4) when the victim is a minor less than thirteen years old. Under Section 30-6-3, the elements of CDM are: (1) commission of an act or omission of the performance of a duty (2) that causes or tends to cause or encourage (3) the delinquency (4) of any person under the age of eighteen. Under our uniform jury instructions, the jury in this case was instructed under CDM that they also must find that Trevino’s acts were intentional. See SCRA 1986,14-141 (general criminal intent instruction — given except when crime requires specific intent or has no intent requirement). CSCM of a minor under the age of thirteen requires proof of a fact that CDM does not— an unlawful sexual touching.

The elements of Section 30-9-13(A)(2) are the same as Section 30 — 9—13(A)(1), except the age of the victim must be between thirteen and eighteen, and the perpetrator must be a person in a position of authority over the child and use that authority to coerce the child to submit. CSCM of a minor between the ages of thirteen and eighteen requires proof of an unlawful sexual touching and adds the element of coercion, neither of which is needed to prove CDM.

—CDM requires proof of a fact not required to prove CSCM. CDM requires proof that the act of the defendant contributed to the “delinquency” of a minor.³ We always have relied on juries to determine what acts constitute contributing to delinquency in a particular case. “The common sense of the community, as well as the sense of decency, the propriety, and the morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.” State v. McKinley, 53 N.M. 106, 111, 202 P.2d 964, 967 (1949) (quoting State v. Millard, 18 Vt. 574, 577 (1846))⁴

The appellate courts of this state consistently have upheld findings that an unlawful sexual touching (or penetration) supported a conviction for CDM. See State v. Favela, 91 N.M. 476, 478, 576 P.2d 282, 284 (1978) (upholding conviction for CDM when adult female had consensual intercourse with fifteen-year-old boy), overruled on other grounds by State v. Pitts, 103 N.M. 778, 780, 714 P.2d 582, 584 (1986) (holding defendant need not be adult to commit CDM); McKinley, 53 N.M. at 110-11, 202 P.2d at 967 (holding man’s act of having sex with fourteen-year-old girl could constitute CDM); State v. Corbin, 111 N.M. 707, 711, 809 P.2d 57, 61 (Ct.App.) (evidence that defendant attempted to touch minor sexually, showed him a Playboy magazine, encouraged him to “get it hard,” and told him to unbutton his pants was sufficient to support conviction for CDM), cert. denied, 111 N.M. 720, 809 P.2d 634 (1991); State v. Leyba, 80 N.M. 190, 192, 453 P.2d 211, 213 (Ct.App.) (upholding CDM conviction for touching the private parts of and talking indecently to a minor), cert. denied, 80 N.M. 198, 453 P.2d 219 (1969). The defendant in State v. Dodson, 67 N.M. 146, 353 P.2d 364 (1960), was charged with CDM for engaging in “certain illicit sex practices” with a minor. She moved to dismiss the indictment on the grounds there was insufficient evidence to substantiate the charge. The trial court denied the motion and this Court affirmed, stating in dicta that: “We can conceive of few acts which would more manifestly tend to cause delinquency than those charged here____” Id. at 149, 353 P.2d at 367.

The fact that we have upheld jury findings that sexual conduct with a minor contributed to delinquency does not mean that juries always must find that such conduct contributes to delinquency. While unlawful sexual touching of a minor factually may evince a tendency to cause or encourage delinquency, even manifestly so in particular circumstances, it does not do so as a matter of law. In a given case, the evidence may belie a finding, beyond a reasonable doubt, that the sexual contact tended to cause or encourage delinquency. Such a case may involve contact with a sleeping child. Contributing to delinquency, therefore, is a fact separate from an unlawful sexual touching, and thus CDM is not subsumed within CSCM. Application of the Blockburger test shows that neither of the offenses subsumes the other, raising a rebuttable presumption that the legislature intended separate punishments. Swafford, 112 N.M. at 14, 810 P.2d at 1234.

—Other indicia of legislative intent. Having established a presumption that the legislature intended separate punishments for the two offenses, we continue our inquiry by reviewing other indications of legislative intent. See id. We look first to the purposes of the two statutes because if they are “directed toward protecting different social norms and achieving different policies [they] can be viewed as separate and amenable to multiple punishments.” Id. We are mindful that “social evils can be elusive and subject to diverse interpretation.” Id. There is also a danger, as Trevino points out, that a court could interpret the simple fact that the legislature passed two statutes as an indication that different purposes are addressed.

The purpose of the CSCM statute is clear — to protect the bodily integrity and personal safety of minors, whether awake or asleep. See State v. Williams, 105 N.M. 214, 217, 730 P.2d 1196, 1199 (Ct.App.) (holding criminal sexual penetration and criminal sexual conduct statutes protect interests of bodily integrity and personal safety of individuals), cert, denied, 105 N.M. 111, 729 P.2d 1365 (1986). The purpose of the CDM statute is a bit more broad. See State v. Pitts, 103 N.M. 778, 780, 714 P.2d 582, 584 (1986) (stating intent of legislature in enacting CDM statute was to protect children, who may be led astray in innumerable ways); State v. Cuevas, 94 N.M. 792, 794, 617 P.2d 1307, 1309 (1980) (holding purpose of CDM statute is to protect children from harmful adult conduct), overruled on other grounds by Pitts, 103 N.M. at 780, 714 P.2d at 584 (holding that perpetrator of CDM need not be an adult); McKinley, 53 N.M. at 111, 202 P.2d at 967 (holding purpose of juvenile law is to protect youths from persons who would lead them astray); Leyba, 80 N.M. at 192, 453 P.2d at 213 (holding acts are sufficient to constitute CDM if they tend to cause or encourage the minor to act in a manner injurious to the minor’s morals). The CDM statute is intended to protect minors from “delinquency”. Whatever the community sense of decency and morality determines delinquency to be under the CDM statute, it is addressed more to the mental and behavioral aspects of children than to their physical well-being. We find that the two statutes protect different interests, even though both interests may be violated by the same conduct.

We also have looked to the quantum of punishment established by the legislature for each of the crimes. All of Trevino’s CSCM convictions were under Section 30-9-13(A), making them third-degree felonies. CDM is a fourth-degree felony. See Section 30-6-3. If the statutes were to share “many” elements, the greater penalty for CSCM could indicate a legislative intent not to punish the two offenses separately. Swafford, 112 N.M. at 15, 810 P.2d at 1235. Nonetheless, we conclude that the only common element between the statutes is the involvement of a minor as the victim of either physical or moral insult.

By application of Swafford, we conclude today that the legislature intended for the crimes of CSCM and CDM to be separate crimes, punishable separately even when unitary conduct violates both statutes. Accord Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246, 251-52 (1982) (holding convictions under Pennsylvania laws for both rape and “corruption of a minor” did not violate double jeopardy even though both convictions were supported by the same act of sexual intercourse); People v. Bobb, 207 Cal.App.3d 88, 254 Cal.Rptr. 707, 713 (1989) (noting that California’s CDM statute is no longer a necessarily included offense of “unlawful sexual intercourse”), review denied, disagreed with on other grounds by People v. Eilers, 231 Cal.App.3d 288, 282 Cal.Rptr. 252 (1991) and People v. Barton, 18 Cal.App.4th 119, 15 Cal.Rptr.2d 649, review granted, 17 Cal.Rptr.2d 814, 847 P.2d 1030 (1993). Therefore, we reject Trevino’s claim that his convictions under both statutes violated double jeopardy principles.

The State is not required to present separate evidence that the defendant’s act contributed to the delinquency of a minor. Trevino contends that if commission of CSCM is not ipso facto proof of CDM, then a conviction for CDM must be supported by proof in addition to proof of the defendant’s act. In other words, if contributing to a minor’s delinquency is a separate fact, the State should be required to present additional evidence in support of that fact. This essentially is an attack on the sufficiency of the evidence in this case because the State did not present any separate evidence (such as expert testimony) that Trevino’s acts of sexual contact caused or tended to cause or encourage delinquency on the part of either of the two minors involved. Cf. State v. R.J. (In re R.J.), 224 Neb. 842, 401 N.W.2d 691, 693 (1987) (father testified as to child’s behavior). Instead, the State relied on the “common sense and the pooled knowledge” of the jury to the effect that sexual abuse and exploitation of minors have many serious consequences to their future well-being.

Although we have held that CDM requires proof of a fact that is not required to prove CSCM, that does not mean that the different facts cannot be proved by the same evidence. In none of the above-cited New Mexico cases is any reference made to any evidence beyond proof of sexual conduct with a minor. This comports with the rule that this is' a jury decision and the jury is to use the common sense and the sense of decency, propriety, and morality that most people entertain. McKinley, 53 N.M. at 111, 202 P.2d at 967. While it may be helpful for the jury to hear evidence on whether a particular act tends to cause or encourage delinquent behavior either generally or with respect to the particular victim, such evidence is not required in the jury’s exercise of common sense. If the jury finds that the defendant’s conduct violated the community sense of decency, propriety, and morality, the jury may infer an adverse impact on the minor that tends to cause or encourage delinquency.

The defendant’s act need not actually cause delinquency. Finally, Trevino argues that a conviction for CDM must be supported by evidence of actual delinquency because possible delinquency in the future is speculative. This point is without merit. The plain language of Section 30-6-3 prohibits acts that cause or tend to cause or encourage delinquency. The defendant is punished for his own acts, not those of the juvenile. The jury can convict for CDM if the defendant’s act actually caused or encouraged the particular minor to commit a delinquent act or if the act only tends to cause or encourage delinquency generally. The “tends to cause or encourage” language refers to an objective view of defendant’s conduct. The jury does not speculate; it convicts or acquits based on an actual act by or omission of the defendant. See Favela, 91 N.M. at 477-78, 576 P.2d at 283-84 (if CDM applied only when child actually committed a crime, adult could be charged as a principle or accessory and CDM would not be needed); Leyba, 80 N.M. at 192, 453 P.2d at 213 (CDM does not depend on the end result, but on the defendant’s acts).

Conclusion. We hold today that convictions on charges of both CSCM and CDM based on unitary conduct do not violate principles of double jeopardy, that the State is not required to present evidence beyond the defendant’s act to support a conviction for CDM, and that the act of the defendant need not actually cause delinquency. As a result of our holding today and resolution of the other issues raised on appeal by Trevino in Orosco, we affirm his convictions.

IT IS SO ORDERED.

BACA and FROST, JJ., concur. MONTGOMERY, J. (dissenting). FRANCHINI, J. (joining in dissent).

1 . In his supplemental brief, Trevino also argues, summarily, that the uniform jury instruction for CDM is "wrong and requires reversal.” This is not an issue mentioned in this Court’s order requesting supplemental briefs, and we do not address it in this opinion. We do discuss the issue in another case we decide today, see Henderson v. State, 116 N.M. 537, 865 P.2d 1181 (1993), and our resolution of the issue in that case would not change the result here.

2 . There is a double jeopardy provision in the New Mexico Constitution as well, see N.M. Const, art. II, § 15, but Trevino does not raise it. In any event, this Court has held that the state provision and the federal provision are so similarly worded that they should be subject to the same construction and interpretation. See State v. Rogers, 90 N.M. 604, 605-06, 566 P.2d 1142, 1143-44 (1977).

3 . This Court is divided three to two on the question of whether the evidence established that Trevino contributed to either boy’s delinquency. In support of its view that proof of delinquency is absent, the dissenting justices quote language from the majority opinion’s double jeopardy section even though the Court is unanimous in its belief that double jeopardy principles have not been violated in this case. The division of the Court lies not in the discussion of double jeopardy principles but in the majority opinion’s holding in its last section that Trevino’s acts need not be proved to have actually caused or encouraged delinquency in either of the boys if his acts tended to cause or encourage delinquency. The double jeopardy principles turn on the language of the criminal statutes, while proof of any given element turns on the evidence. The double jeopardy section refers to delinquency without distinguishing between the disjunctive requirements that the defendant's acts either cause or tend to cause or encourage delinquency. The dissent poses the question of what evidence was adduced to prove a fact different from the fact that defendant committed an unlawful sexual touching, with or without coercion. The majority answers that the same evidence that proved touching also proved encouragement of delinquency.

4 . Courts in other states have reached similar conclusions. See, e.g., State v. Sullivan, 11 Conn.App. 80, 525 A.2d 1353, 1361 (1987) (holding jury must determine if minor’s morals were impaired using “their own knowledge, experience and common sense as adults"); State v. R.J. (In re R.J.), 224 Neb. 842, 401 N.W.2d 691, 693 (1987) (injuries to minor victim’s principles and habits regarding right or wrong determined by jury's "[cjommon sense, as well as the sense of decency, propriety, and the morality which most people entertain”); Commonwealth v. Todd, 348 Pa.Super. 453, 502 A.2d 631, 635-36 n. 2 (1985) (jury determines whether defendant corrupted minor using " 'common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain’ ” (citation omitted)).