State v. Stevens , 2014 NMSC 11 ( 2014 )


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  •                                                         I attest to the accuracy and
    integrity of this document
    New Mexico Compilation
    Commission, Santa Fe, NM
    '00'04- 17:13:04 2014.05.09
    IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
    Opinion Number: 2014-NMSC-011
    Filing Date: April 7, 2014
    Docket No. 32,860
    STATE OF NEW MEXICO,
    Plaintiff-Respondent,
    v.
    LISA STEVENS,
    Defendant-Petitioner.
    ORIGINAL PROCEEDING ON CERTIORARI
    John A. Dean, Jr., District Judge
    Jacqueline L. Cooper, Chief Public Defender
    William A. O’Connell, Assistant Appellate Defender
    Santa Fe, NM
    for Petitioner
    Gary K. King, Attorney General
    Martha Anne Kelly, Assistant Attorney General
    Santa Fe, NM
    for Respondent
    OPINION
    DANIELS, Justice.
    I.     INTRODUCTION
    {1}    We granted certiorari to review Defendant Lisa Stevens’ convictions for second-
    degree criminal sexual penetration during the commission of a felony, child abuse, and
    contributing to the delinquency of a minor. The convictions were based on two separate
    incidents in which she directed her thirteen-year-old daughter to perform oral sex on
    Defendant’s twenty-four-year-old boyfriend after the three injected methamphetamine
    1
    together.
    {2}     Addressing a precedential legal issue, we clarify that simply causing another person
    to engage in otherwise lawful sexual intercourse at the same time a felony is being
    committed does not constitute the crime of criminal sexual penetration during the
    commission of a felony. Accordingly, we disapprove any language to the contrary in State
    v. Maestas, 2005-NMCA-062, ¶ 26, 
    137 N.M. 477
    , 
    112 P.3d 1134
    , rev’d on other grounds,
    State v. Maestas (Maestas II), 2007-NMSC-001, ¶¶ 2, 27, 
    140 N.M. 836
    , 
    149 P.3d 933
    .
    {3}     While we also hold that the jury should be instructed that the crime of criminal sexual
    penetration during the commission of a felony requires the commission of unlawful sexual
    activity with the victim of the felony, we conclude that the unobjected-to deficiency in the
    instructions did not constitute fundamental error in the circumstances of this case where
    Defendant’s guilt was clear. In the absence of any error that would justify reversal, we affirm
    Defendant’s convictions.
    II.    FACTUAL AND PROCEDURAL BACKGROUND
    {4}    Defendant was charged by criminal information with two counts of causing criminal
    sexual penetration during the commission of the felony of distribution of a controlled
    substance to a minor, contrary to NMSA 1978, Section 30-9-11(E)(5) (2007, amended 2009)
    (CSP II-felony). The predicate felony for CSP II-felony was distribution of a controlled
    substance to a minor, punishable as a second-degree felony by NMSA 1978, Section 30-31-
    21(B)(1) (1987). The charges also included two counts of child abuse, contrary to NMSA
    1978, Section 30-6-1(D)(1) (2005, amended 2009); and two counts of contributing to the
    delinquency of a minor, contrary to NMSA 1978, Section 30-6-3 (1990).
    {5}    At trial Defendant’s daughter testified that in the fall of 2007, while her parents were
    going through a divorce, she would often skip school and join Defendant and Defendant’s
    boyfriend to get high on methamphetamine that Defendant and the boyfriend provided. The
    daughter also testified that Defendant originally introduced her to the drug.
    {6}    On two separate occasions a week or two apart in the fall of 2007 when the daughter,
    Defendant, and the boyfriend were injecting methamphetamine together, Defendant told her
    daughter to perform oral sex on the boyfriend. The daughter testified that, although
    Defendant did not force her to perform the oral sex on either occasion, she complied with
    Defendant’s direction because she was “high [and] didn’t really care.” Soon after those two
    incidents, Defendant and the boyfriend moved to Phoenix, Arizona.
    {7}     When questioned at trial about the dates of the two oral sex incidents, the daughter
    explained that, although she had originally estimated that they happened sometime between
    Halloween and Thanksgiving of 2007, she was unsure exactly when they occurred. After
    remembering that her father confronted her about the two incidents on Halloween of 2007,
    after he had learned about them, she realized the incidents must have actually occurred
    2
    before instead of after Halloween. Her father became angry about what had happened, and
    the daughter ended up not being allowed to go to Phoenix with Defendant and the boyfriend
    as she had planned to do. On cross-examination at trial the daughter testified that it was
    difficult to recall the exact dates because she had been getting high so much during that time,
    but her best estimate was that it “probably happened like a couple of weeks before
    Halloween.”
    {8}     Neither Defendant nor the boyfriend took the stand to challenge the substance of the
    daughter’s testimony, and Defendant relied instead on an alibi defense and a general
    credibility attack against the daughter. After the daughter testified and the State rested its
    case in chief, Defendant called the boyfriend’s sister and mother, the only defense witnesses,
    to establish that Defendant and the boyfriend were in Phoenix from November 2, two days
    after Halloween, to December 10, 2007, eighteen days after Thanksgiving.
    {9}      After the defense rested, the State asked the court to allow an amendment to the
    allegations in the original criminal information to conform to the daughter’s trial testimony
    that the two incidents probably occurred in October. Over the objection of Defendant, the
    trial judge allowed the amendment, which revised the alleged date range of the offense from
    “[o]n or about November 12, 2007” to “on, about or between the 1st day of October, 2007,
    through the 22nd day of November, 2007” in the charging documents and the resulting jury
    instructions.
    {10} Defendant did not submit any requested jury instructions and made no objection to
    the instructions offered by the State or given by the court other than the objection to the
    change in terms describing the time frame when the offenses allegedly occurred.
    {11} The jury found Defendant guilty on all counts. She was sentenced to fifteen years
    imprisonment for each of the two convictions for CSP II-felony to run consecutively with
    each other and concurrently with the remaining sentences of three years for each of the two
    child abuse convictions and eighteen months for each of the two contributing to the
    delinquency of a minor convictions. All but the first fifteen years of imprisonment were
    suspended.
    {12} Defendant appealed her convictions to the Court of Appeals on two grounds: (1) that
    the convictions for CSP II-felony resulted from fundamental error because the jury was not
    instructed that the State had to prove that the sexual activity occurring during the
    commission of a felony was otherwise “criminal” and (2) that allowing the State to amend
    the description of the dates of the offenses during trial was reversible error. See State v.
    Stevens, No. 29,357, mem. op. at 2, 6-7 (N.M. Ct. App. Jan. 18, 2011) (nonprecedential).
    The Court of Appeals affirmed the convictions in an unpublished memorandum opinion,
    declining to reconsider its holding in Maestas that a conviction for CSP II-felony can be
    based on otherwise lawful sex occurring during the commission of a felony. Stevens, No.
    29,357, mem. op. at 10, 17. We granted certiorari to review both of Defendant’s issues.
    3
    III.   DISCUSSION
    {13} The jury was instructed that in order to convict Defendant of the crime of CSP II-
    felony, as charged in each of counts 1 and 2, the State had to prove beyond a reasonable
    doubt the following elements:
    1.      The defendant caused [the daughter] to engage in fellatio on [the
    boyfriend];
    2.      The defendant committed the act during the commission of
    distribution of a controlled substance to a minor;
    3.      Distribution of a controlled substance to a minor consist[s] of:
    (a)     transferring methamphetamine to [the daughter];
    (b)     [t]he defendant knew the controlled substance was
    methamphetamine;
    (c)     [the daughter] was 17 years of age or younger;
    4.      This happened in New Mexico on, about or between the 1st day of
    October, 2007, through the 22nd day of November, 2007.
    {14} We address first the propriety of the elements portions of the instruction, then
    whether the elements description constituted fundamental error requiring reversal on appeal
    in the absence of proper preservation of the issue in the district court, and finally whether
    the amendment to the date description was reversible error.
    A.     The Offense of Criminal Sexual Penetration Committed During the Commission
    of a Felony Requires Proof of Unlawful Sexual Conduct Caused by the
    Commission of a Felony Against the CSP Victim
    {15} “‘In determining what is or is not an essential element of an offense, we begin with
    the language of the statute itself, seeking of course to give effect to the intent of the
    legislature.’” State v. Swick, 2012-NMSC-018, ¶¶ 56, 58, 
    279 P.3d 747
    (citation omitted)
    (reversing a second-degree murder conviction for fundamental error because a missing
    element in the jury instructions may have led to an unjust conviction). It is “‘the high duty
    and responsibility of the judicial branch of government to facilitate and promote the
    legislature’s accomplishment of its purpose.’” State v. Smith, 2004-NMSC-032, ¶ 8, 
    136 N.M. 372
    , 
    98 P.3d 1022
    (citation omitted). Although we look first to the language of the
    statute, we will reject “a formalistic and mechanical statutory construction when the results
    would be absurd, unreasonable, or contrary to the spirit of the statute.” 
    Id. ¶ 9-10.
    {16} The provisions of the criminal sexual penetration statute relevant to the issue before
    us are,
    A.      Criminal sexual penetration is the unlawful and intentional
    causing of a person to engage in sexual [acts]
    ....
    4
    E.      Criminal sexual penetration in the second degree consists of
    all criminal sexual penetration perpetrated:
    (1)    by the use of force or coercion on a child thirteen to
    eighteen years of age;
    (2)    on an inmate confined in a correctional facility or jail
    when the perpetrator is in a position of authority over the inmate;
    (3)    by the use of force or coercion that results in personal
    injury to the victim;
    (4)    by the use of force or coercion when the perpetrator
    is aided or abetted by one or more persons;
    (5)    in the commission of any other felony; or
    (6)    when the perpetrator is armed with a deadly weapon.
    ....
    F.      Criminal sexual penetration in the third degree consists of all
    criminal sexual penetration perpetrated through the use of force or coercion
    not otherwise specified in this section. . . .
    G.      Criminal sexual penetration in the fourth degree consists of all
    criminal sexual penetration:
    (1)    not defined in Subsections D through F of this section
    perpetrated on a child thirteen to sixteen years of age when the perpetrator
    is at least eighteen years of age and is at least four years older than the child
    and not the spouse of that child; . . .
    ....
    Section 30-9-11 (2007).
    {17} In Maestas, 2005-NMCA-062, our appellate courts first undertook the judicial task
    of determining the essential elements of CSP II-felony, enumerated at that time as
    Subsection (D)(5) of Section 30-9-11. Maestas’s convictions arose from “allegations that he
    accepted sexual favors from Victim in exchange for leniency in the resolution of charges
    against Victim in municipal court” where he was a judge. 
    Id. ¶ 2.
    He was convicted both of
    the felony of requesting or receiving something of value conditioned upon or given in
    exchange for promised performance of an official act, in violation of NMSA 1978, Section
    10-16-3(D) (1993, amended 2011) of the Governmental Conduct Act, and of criminal sexual
    penetration during the commission of that felony, in violation of Section 30-9-11(D)(5)
    (2003). Maestas, 2005-NMCA-062, ¶ 1.
    {18} Maestas, whose theory of the case was that the adult victim had enticed him to
    engage in consensual sex acts, objected to the failure of the jury instructions to clarify that
    simply having otherwise lawful consensual sex during the commission of a felony was not
    criminal sexual penetration. 
    Id. ¶¶ 2,
    13. The Court of Appeals concluded that the instruction
    given to the jury that required the accused to have “caused” a person to engage in sex during
    the commission of an underlying felony would establish a “causal connection between the
    felony and the sex act” and “insure that an accused will not be convicted for engaging in
    5
    purely consensual sex.” 
    Id. ¶ 24.
    The Court held that “the legislature intended to punish
    those who participate in certain sexual activity, even without force or coercion, when the . . .
    sex act is caused by the defendant in the commission of any other felony,” that the
    underlying statutory felony need not be a felony with any “element of force or coercion,”
    and that causation between the felony and the sex could even be unintentional or accidental.
    
    Id. ¶¶ 25-26.
    Nothing in Maestas considered the significance of the basic definition of
    criminal sexual penetration in Section 30-9-11(A) (2003), requiring the penetration to be
    both “unlawful and intentional.”
    {19} Although this Court granted certiorari to consider the proper interpretation of the
    elements of CSP II-felony, we reversed the defendant’s convictions in Maestas II without
    reaching that issue after the Attorney General candidly conceded that the Legislature
    expressly excluded judges from application of the Governmental Conduct Act, removing any
    predicate felony that could arguably support a conviction of CSP II-felony. See Maestas II,
    2007-NMSC-001, ¶¶ 2, 6-7.
    {20} The elements of CSP II-felony were next considered in State v. Moore, 2011-NMCA-
    089, 
    150 N.M. 512
    , 
    263 P.3d 289
    , cert. denied, 2011-NMCERT-008, 
    268 P.3d 513
    . The
    Court of Appeals panel that decided Moore was not the same panel that decided Maestas.
    Moore was an appeal by the state from a district court dismissal of an indictment for failure
    of the state to instruct the grand jury that lack of consent was an element of the criminal
    sexual penetration of a fourteen-year-old child victim who had been supplied with marijuana
    by an adult defendant. See Moore, 2011-NMCA-089, ¶¶ 3, 6. Unlike Maestas, Moore
    squarely addressed the importance of the fact that “CSP II incorporates the same universal
    definition of criminal sexual penetration in Section 30-9-11(A), including the requirement
    that the act be unlawful,” but concluded that the unlawfulness element was established where
    the victim was “a statutorily defined child” whose consent was irrelevant to the unlawfulness
    of the sex. Moore, 2011-NMCA-089, ¶ 13. Moore specifically relied on prior case law
    holding that “the consent of a child between the ages of thirteen and sixteen is legally
    irrelevant for both CSP III, where force is required, and CSP IV, where force is not
    required.” 
    Id. Distinguishing the
    situation from that involving an adult victim where consent
    may be an issue, the court reversed, holding that there was no need to include language
    referring to consent “in the definition of unlawfulness for CSP II and CSP IV in a case
    involving an alleged victim that was a statutorily defined child.” 
    Id. ¶¶ 19-20.
    Moore did not
    overrule or expressly disapprove of the more expansive interpretation in Maestas, citing it
    with approval as additional support for reversing the district court. Moore, 2011-NMCA-
    089, ¶ 14.
    {21} The Court of Appeals opinion in this case includes a brief acknowledgment of the
    unlawfulness component of the basic statutory definition of criminal sexual penetration:
    “The description of the sexual conduct [in the elements instruction for CSP II-felony] that
    Defendant caused her daughter . . . , a thirteen-year-old girl, to give fellatio to an adult male,
    was sufficient to satisfy the unlawfulness element.” Stevens, No. 29,357, mem. op. at 9. But,
    as with Moore, the Court of Appeals in Stevens also cited Maestas with approval: “Since our
    6
    Supreme Court [in Maestas II] did not address these issues [of unlawfulness in its reversal
    of Maestas on other grounds], this Court’s opinion remains the applicable, controlling law
    in New Mexico with regard to them.” Stevens, No. 29,357, mem. op. at 9. The Court of
    Appeals concluded that the requirement of the elements instruction that the sex occurred
    during the commission of a felony was, in the language of Maestas, “‘enough to insure that
    an accused will not be convicted for engaging in purely consensual [i.e., lawful] sex.’”
    Stevens, No. 29,357, mem. op. at 8-9 (alteration in original). Stevens provided no explanation
    for its bracketed language equating lawful sex with consensual sex or for how, in the
    elements instruction, the requirement of the concurrent timing of a felony and a sex act
    would insure that a person would not be convicted for engaging in purely consensual and
    lawful sexual activity.
    {22} We now face the statutory construction issue that we did not reach in our Maestas
    II opinion vacating the conviction in Maestas. As always, we start with an examination of
    the statutory text. The description of the offense of criminal sexual penetration during the
    commission of a felony is deceptively simple. Section 30-9-11(E)(5) (2007) defines it as
    “criminal sexual penetration perpetrated . . . in the commission of any other felony.” And
    what is the punishable “criminal sexual penetration” that becomes an elevated offense if
    perpetrated in the commission of another felony? Section 30-9-11(A) (2007) provides the
    only statutory definition: “Criminal sexual penetration is the unlawful and intentional
    causing of a person to engage in sexual [acts].” Maestas acknowledges this definition but
    never addresses the significance of the modifying word “unlawful,” stating simply that the
    basic criminal sexual penetration “definition says nothing about force or coercion; instead,
    it speaks in terms of ‘causing’ a person to engage in a sex act.” Maestas, 2005-NMCA-062,
    ¶ 18.
    {23} Actually, the statute defines “criminal” sexual penetration as, among other things,
    the “unlawful” causing of a person to engage in a sex act. Otherwise, the description of CSP
    II would have omitted the term “criminal” and simply described the offense as “sexual
    penetration perpetrated . . . in the commission of any other felony.” This Court has
    repeatedly cautioned that the statutory term “unlawful” has significance in determining
    legislative intent and defining elements of offenses. State v. Osborne, 1991-NMSC-032, ¶
    33, 
    111 N.M. 654
    , 
    808 P.2d 624
    (holding that “by defining [criminal sexual contact of a
    minor] as ‘unlawfully and intentionally’ touching a child’s intimate parts the legislature
    properly intended that the state must establish the unlawfulness of the touching as a distinct
    element of the offense”); see State v. Parish, 1994-NMSC-073, ¶¶ 1, 12, 
    118 N.M. 39
    , 
    878 P.2d 988
    (reversing a homicide conviction for failure to instruct the jury on the statutory
    element of unlawfulness and holding that a “jury instruction which does not instruct the jury
    upon ‘all questions of law essential for a conviction of any crime submitted to the jury’ is
    reversible error” (citation omitted)). Recognizing the independent significance of the
    statutory modifier “unlawful” is a principle that has been honored since the earliest days of
    our territorial justice system. See Territory v. Miera, 1866-NMSC-004, ¶¶ 2, 5, 
    1 N.M. 387
    (holding an assault indictment defective for failure to allege that a beating was administered
    unlawfully, emphasizing that “[b]y using the word ‘unlawfully’ in the statute, the legislature
    7
    intended to discriminate between acts of violence which may be lawful and those which are
    not”).
    {24} Like the Court of Appeals, we have struggled with trying to determine legislative
    intent by simply parsing individual words and phrases of the criminal sexual penetration
    statute. But unarticulated assumptions of legislators and unanticipated applications faced by
    the judicial branch often require that we search more deeply for legislative intent, to avoid
    the danger in the law, as in life, of not seeing the forest for the trees. Because neither the
    briefs of the parties in this case nor the opinions construing the statute have provided any
    analysis of the origins or purpose of the offense of CSP II-felony, we have found it necessary
    to do so on our own. See State v. Morales, 2010-NMSC-026, ¶ 13, 
    148 N.M. 305
    , 
    236 P.3d 24
    (observing that to determine legislative intent, we must consider not only statutory
    language and structure but also legislative history and motivating policies). We begin our
    analysis with a historical review of the evolution of our criminal sexual penetration statutes.
    {25} The common law from which Anglo-American sexual assault crimes originated
    traditionally focused on forcible or nonconsensual intercourse, but “from ancient times the
    law has afforded special protection to those deemed too young to understand the
    consequences of their actions.” United States v. Ransom, 
    942 F.2d 775
    , 777 & n.2 (10th
    Cir.1991), cert. denied, 
    502 U.S. 1042
    (1992) (quoting Blackstone’s Commentaries for the
    proposition “that by the year 1275 the law in England prohibited ‘carnally knowing and
    abusing any woman child under the age of ten years; in which case the consent or non-
    consent is immaterial, as by reason of her tender years she is incapable of judgment and
    discretion’” (citation omitted)). A review of the Model Penal Code, which contains no
    suggested offense involving criminal sexual penetration during the commission of a felony,
    indicates the same approach to criminalizing imposition of sex acts on unwilling victims or
    those not deemed to be in a position to provide a free and lawful consent. See Model Penal
    Code § 213, Sexual Offenses, 10A U.L.A. 432 (2001).
    {26} New Mexico’s first territorial statutes contained only one sex crime: “If any person
    shall unlawfully have carnal knowledge of any woman by force and against her will, he
    shall, on conviction thereof, be castrated or imprisoned not exceeding ten years, or fined not
    exceeding one thousand dollars.” 1846 Kearny Code of Laws, Crimes and Punishments, art.
    II, § 2. In 1854, the Territorial Legislature added the common law offense of statutory rape
    involving sex with a child below the age of lawful consent, punishing by “imprisonment . . .
    for life” anyone who “shall unlawfully and carnally know and abuse any female child under
    the age of ten years.” 1853-54 N.M. Laws, Act 28, ch. III, § 34.
    {27} In the century and a half of New Mexico’s existence as a territory and a state, the
    Legislature has made various amendments to our sexual assault laws, but it has never
    deviated from the common law approach of criminalizing only those sex acts that are
    perpetrated on persons without their consent, either as a matter of fact or, in the case of
    children or other vulnerable victims, as a matter of law. See, e.g., 196
    3 N.M. L
    aws, ch. 303,
    § 9 (enacting a new criminal code and providing punishments for sexual intercourse with
    8
    children under the age of sixteen years, Subsection 9-3, and for intercourse with a victim
    “without her consent” when her resistance is forcibly overcome, she is unconscious or
    physically unable to resist, she is incapable of giving consent because of a mental disability,
    or when she has been plied with resistance-impairing substances, Subsection 9-2).
    {28} The sexual penetration during commission of a felony offense was first enacted as
    part of a complete restructuring of the New Mexico sexual assault laws in 1975, prompted
    by widespread concerns locally and nationally about the discriminatory aspects of many
    features of our traditional rape laws. See R. Bruce Washburn, Rape Law: The Need for
    Reform, 
    5 N.M. L
    . Rev. 279, 279 & nn.1-4 (1975) (describing the 1975 enactment in historic
    perspective); Charles W. Daniels, The Impact of the Equal Rights Amendment on the New
    Mexico Criminal Code, 
    3 N.M. L
    . Rev. 106, 112-14 (1973) (arguing for statutory reform to
    protect male as well as female victims and punish female as well as male criminal acts).
    Although there is no written New Mexico legislative history, the new statutes were clearly
    part of a national trend, influenced in part by the ground-breaking Michigan Sexual Conduct
    Act, the result of several years of drafting and lobbying efforts by the Michigan Women’s
    Task Force on Rape. See W. Patrick Dreisig, Note, Criminal Law—Sexual Offenses—A
    Critical Analysis of Michigan’s Sexual Conduct Act, 23 Wayne L. Rev. 203, 204 n.8 (1976)
    (indicating that 28 states, including New Mexico, revised their rape laws).
    {29} One of the authors of the 1975 Michigan Criminal Sexual Conduct Act was
    prosecutor Patricia Boyle, who later went on to serve as a justice of the Michigan Supreme
    Court. See Ann Zaniewski, Patricia Boyle: Former Michigan Supreme Court justice
    dedicated to public service, Detroit Free Press, Jan. 15, 2014, at A5 (citing, in Justice
    Boyle’s obituary, her role in helping to draft the landmark legislation). In an article
    contemporaneous with the Michigan legislation, Justice Boyle discussed the statute she said
    had been “specifically designed to comprehensively codify and define sexual crimes,
    rationally relate penalties to the harmfulness of the conduct and encourage reporting and
    prosecution of sexual offenses by victims.” Patricia Boyle, The Criminal Sexual Conduct
    Act, 43 Detroit Lawyer at 6 (October 1975). The 1975 Michigan act created a new offense
    of sexual penetration that “occurs during the commission of another felony.” Boyle, 43
    Detroit Lawyer at 8; see also Mich. Comp. Laws Ann. § 750.520b(1)(c) (West 2014) (“A
    person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual
    penetration with another person and . . . [s]exual penetration occurs under circumstances
    involving the commission of any other felony.”). Despite the fact that the Michigan
    Legislature, unlike the New Mexico Legislature, did not insert the modifiers “criminal” or
    “unlawful” before the term “sexual penetration,” it was clear that the intent of the drafters
    was to punish criminal sexual conduct “achieved by ‘force or coercion’: broadly defined to
    include not only actual force but submission due to the presence of a weapon, threats to use
    force, or . . . threats to retaliate in the future.” Boyle, 43 Detroit Lawyer at 9. The goals of
    the Michigan act were “to alter the attitudes of the public and the criminal justice system
    toward the offense, the offender, and the victim.” 
    Id. at 11.
    The conduct prohibited is assaultive conduct against the sexual privacy of
    9
    another person, as opposed to the prior prohibition against unauthorized
    eroticism. The offense is the invasion of that privacy by force, coercion, or
    other undue advantage. . . . The[] goals . . . will be accomplished only to the
    extent that those charged with responsibility for enforcing and interpreting
    the Act, that is, police, prosecutor, trial and appellate benches, understand
    and apply the Act in light of the legislative purpose.
    
    Id. {30} Despite
    the lack of textual specificity in the Michigan act, Michigan courts have
    recognized their “duty to give a reasonable statutory construction to the statute to prevent
    the entire statute from being rendered unconstitutional” and to avoid applying a serious
    criminal statute in “‘ridiculous’ circumstances.” People v. Lockett, 
    814 N.W.2d 295
    , 301-02
    (Mich. Ct. App. 2012) (summarizing precedents and upholding conviction where there was
    a direct relationship between the sexual penetration and the felony of providing sexually
    explicit material to a minor and where the victim of the felony was also the victim of the
    sexual penetration).
    {31} Our review of the statutes of all 50 states shows that the vast majority of other states,
    even those that have patterned their statutes after the Michigan Criminal Sexual Conduct
    Act, never followed Michigan’s lead in creating a separate offense of sexual penetration
    during the commission of a felony. Of the very few states that adopted any sexual offenses
    enhanced by commission of a separate felony, all have statutory language or court
    interpretations that clarify that the victim must be forcibly or otherwise nonconsensually the
    subject of the defendant’s sexual conduct.
    {32} Definitional elements of the Delaware statute include that “[t]he sexual intercourse
    occurs without the victim’s consent and it was facilitated by or occurred during the course
    of the commission or attempted commission of . . . [a]ny felony.” Del. Code Ann. tit. 11, §
    773(a)(2)a (West 2010).
    {33} The Illinois statute defining aggravated criminal sexual assault requires that the
    defendant commit both the predicate felony and a criminal sexual assault. See 720 Il. Comp.
    Stat. Ann. 5/11-1.30(a)(4) (West 2011) (enhancing the penalties for criminal sexual assault
    perpetrated during the commission of a felony); 720 Il. Comp. Stat. Ann 5/11-1.20(a) (West
    2011) (defining the base crime of criminal sexual assault as sexual penetration by force or
    threat of force, when the victim is unable to give knowing consent, or when the victim is a
    minor); People v. Cox, 
    557 N.E.2d 288
    , 295 (Ill. App. Ct. 1990) (observing that a conviction
    for aggravated criminal sexual assault of an adult victim required both commission of the
    predicate felony and “an act of sexual penetration by the use of force or threatening the use
    of force”).
    {34} The New Jersey statutes involving sexual assaults during commission of a felony
    require both an act of sexual penetration using “physical force or coercion” and a predicate
    10
    felony limited to “robbery, kidnapping, homicide, aggravated assault on another, burglary,
    arson or criminal escape.” See N.J. Stat. Ann. § 2C:14-2c(1) (West 2012) (requiring the use
    of force or coercion for the sexual assault crime); N.J. Stat. Ann. § 2C:14-2a(3) (enhancing
    the penalties for sexual assaults committed during commission of the specified felonies);
    State v. Drury, 
    919 A.2d 813
    , 824 (N.J. 2007) (holding that the felony of carjacking does not
    qualify as a statutory predicate offense).
    {35} South Carolina law provides enhanced penalties if a “sexual battery” is inflicted on
    a “victim of forcible confinement, kidnapping, trafficking in persons, robbery, extortion,
    burglary, housebreaking, or any other similar offense or act.” See S.C. Code Ann. § 16-3-
    652(1)(b) (2010).
    {36} The Washington statute defining rape during commission of a felony requires
    penetration by “forcible compulsion” with severe limitations on the nature of the predicate
    felony, which may be either kidnapping of the rape victim or felonious entry into the
    building or vehicle where the rape victim is located. See Wash. Rev. Code Ann. §
    9A.44.040(1) (West 1998).
    {37} “While looking to similar state statutes cannot conclusively answer the question of
    what actions our own Legislature meant to proscribe,” we have recognized that comparisons
    can be “instructive” in understanding legislative intent. State v. Tafoya, 2012-NMSC-030,
    ¶ 23, 
    285 P.3d 604
    (analyzing statutes of other states in construing the legislative purpose
    of the New Mexico drive-by shooting statute). It is significant that no other American
    jurisdiction has been willing to impose sexual assault convictions on adults with the capacity
    to consent who engage in otherwise lawful sexual activity simply because the sex occurs at
    the same time as or can be said to have been facilitated or caused by the commission of a
    felony offense. In the case before us, for example, such a broad interpretation would have
    supported convicting both Defendant and her adult boyfriend of CSP II-felony for having
    consensual relations with each other after they became euphoric from using illegal drugs.
    Because marital status is now irrelevant to culpability for modern criminal sexual
    penetration, a conviction for CSP II-felony could be imposed against a married or single
    couple, each adult causing the other to have mutually consensual intercourse while either
    participant is operating an unlawful gambling enterprise, see NMSA 1978, § 30-19-3 (1963);
    or neglecting a nursing home resident, see NMSA 1978, § 30-47-5(B) (1990); or retaining
    stolen property, see NMSA 1978, § 30-16-11(F) (2006); or practicing dentistry without a
    license, see NMSA 1978, § 61-5A-18(A) (2003); or any of the multitude of felonies that the
    New Mexico Statutes punish as felonies, most having nothing to do with coercive sexual
    behavior.
    {38} Like the Michigan court in Lockett, we recognize our judicial responsibility to avoid
    ridiculous applications of the law by construing ambiguous statutes in a way that will
    “harmonize all relevant statutory provisions and avoid absurd results.” State ex rel. Children,
    Youth & Families Dep’t v. Marlene C., 2011-NMSC-005, ¶ 15, 
    149 N.M. 315
    , 
    248 P.3d 863
    .
    Section 30-9-11(G) criminalizes sexual conduct perpetrated on children under the age of
    11
    lawful consent, and Section 30-9-11(F) criminalizes criminal sexual penetration
    accomplished “through the use of force and coercion.” NMSA 1978, Section 30-9-10(A)
    (2005) defines “force and coercion” as including not only physical force but also threats of
    future force or retaliation, intercourse with mentally or physically vulnerable victims, and
    consensual or nonconsensual penetration of a patient by a psychotherapist. There is an
    obvious and consistent thread in the New Mexico criminal sexual penetration statutes that
    is consistent with both New Mexico sexual offense history and with the law of all other
    American jurisdictions, punishing imposition of sexual activity on those who are not willing
    participants in fact or in law, and there is nothing in our statutes or their history that
    articulates or even implies any legislative intent to deviate from that fundamental concept.
    {39} We conclude that more than a simple temporal or causal relationship is necessary to
    honor the legislative intent underlying the criminal sexual penetration statutes, criminalizing
    sexual acts perpetrated on persons without their consent, either as a matter of fact or, in the
    case of children or other vulnerable victims, as a matter of law. Our interpretation is guided
    not only by the kinds of offenses described in the statute but also by the history of criminal
    sexual assault laws and by the recognition that sexual intercourse involving consenting
    adults is not only a normal, desirable, and biologically essential human activity but is also
    a fundamental constitutional liberty. See Lawrence v. Texas, 
    539 U.S. 558
    , 578 (2003)
    (holding that the choice of consenting adults to engage in intimate physical relationships is
    a form of liberty protected by the Due Process Clause of the Fourteenth Amendment to the
    United States Constitution, regardless of the marital status or sexual preference of the
    participants). We therefore hold that when a CSP II charge is based on the commission of
    a felony, it must be a felony that is committed against the victim of, and that assists in the
    accomplishment of, sexual penetration perpetrated by force or coercion or against a victim
    who, by age or other statutory factor, gave no lawful consent.
    {40} Maestas suggested that our jury instruction on the elements of CSP II-
    felony—requiring the jury to find in element number one that the defendant caused a person
    to engage in a sex act and in element number two that the defendant committed that act
    “during the commission of” a felony—“constitute[s] a requirement that there be a causal
    connection between the felony and the sex act.” Maestas, 2005-NMCA-062, ¶ 24; see UJI
    14-954 NMRA (including as elements number one and two the identical two elements
    applicable to Maestas before an amendment adding the unlawfulness element to the
    instruction became effective in 2005). Moore followed the reasoning of Maestas in holding
    that the jury need not be instructed that the sex act must be unlawful in a case where the
    victim supplied with drugs by a defendant is in fact a child below the age of consent. Moore,
    2011-NMCA-089, ¶ 13. While a properly instructed jury in both Maestas and Moore might
    well have been justified in finding both unlawfulness in the sexual activity and a causal link
    between felonies committed against the victim and the resulting unlawful sex acts, the fact
    is that the juries were not called on to make any of those findings. And the law is clear that
    the Sixth Amendment right to trial by jury guarantees that all facts essential to a defendant’s
    sentence must be determined by a jury, whether or not a judge or panel of judges might think
    those facts were proved in a particular case. See State v. Frawley, 2007-NMSC-057, ¶¶ 3-5,
    12
    12-13, 
    143 N.M. 7
    , 
    172 P.3d 144
    (relying on Apprendi v. New Jersey, 
    530 U.S. 466
    (2000),
    and holding unconstitutional a provision of the Criminal Sentencing Act which allowed a
    trial judge to increase a defendant’s basic sentence by up to one-third upon a finding of
    certain aggravating circumstances). Accordingly, we request that our Uniform Jury
    Instructions Committee for Criminal Cases recommend amendments to our jury instructions
    to clarify the elements juries must consider before returning verdicts for CSP-felony.
    {41} We now turn to the issue whether the deficiency in the elements instructions in this
    case constituted fundamental error that requires reversal despite Defendant’s failure to object
    or otherwise preserve the error at trial.
    B.     There Was No Fundamental Error in the Circumstances of This Case
    {42} We review an unpreserved challenge to a jury instruction for fundamental error. See
    State v. Benally, 2001-NMSC-033, ¶ 12, 
    131 N.M. 258
    , 
    34 P.3d 1134
    (distinguishing the
    reversible error standard of review for a preserved challenge to a jury instruction from the
    fundamental error standard of review for an unpreserved challenge). “‘Fundamental error
    only applies in exceptional circumstances when guilt is so doubtful that it would shock the
    judicial conscience to allow the conviction to stand.’” State v. Cunningham, 2000-NMSC-
    009, ¶ 13, 
    128 N.M. 711
    , 
    998 P.2d 176
    (citation omitted). A “trial court’s error in failing to
    instruct on an essential element of a crime for which defendant has been convicted, where
    there can be no dispute that the element was established, therefore does not require reversal
    of the conviction.” State v. Orosco, 1992-NMSC-006, ¶ 12, 
    113 N.M. 780
    , 
    833 P.2d 1146
    .
    {43} In convicting the Defendant of CSP II-felony in this case based on the instructions
    actually given, a unanimous jury necessarily rejected Defendant’s alibi defense and found
    beyond a reasonable doubt that Defendant on two occasions had caused her adult boyfriend
    to sexually penetrate her daughter during the commission of the felony of distribution of a
    controlled substance to a minor.
    {44} There could also have been no doubt about the elements missing from the instruction,
    the unlawfulness of the sexual penetration, and the fact that the penetration was a result of
    the commission of a felony. The sexual penetration was unlawful by the explicit terms of
    Section 30-9-11(G)(1) (2007), which criminalizes sexual relations between a child thirteen
    to sixteen years of age and a person who is at least four years older. In her brief in chief
    before this court, Defendant candidly acknowledged that Defendant’s daughter was thirteen
    years old at the time of the events in this case and Defendant’s boyfriend was at least ten
    years older. The daughter’s equivalent testimony at trial went unchallenged by the defense.
    {45} Also unchallenged was the daughter’s testimony that it was after she had been
    injected with methamphetamine that she acquiesced to her mother’s direction to perform oral
    sex on the adult boyfriend because, in her words, she “was, like, high” and “didn’t really
    care,” establishing the nexus of causation between the commission of the felony against the
    daughter and the resulting unlawful sex act committed on the daughter. This case therefore
    13
    exemplifies the kind of situation in which a preserved challenge to an instruction might have
    resulted in reversal but in which the reviewing court, in the absence of a preserved challenge,
    does not consider guilt to be so doubtful that a conviction would shock the judicial
    conscience. See Orosco, 1992-NMSC-006, ¶ 12, (reviewing cases in which convictions were
    affirmed despite omission of an essential element from the jury instructions). In Orosco, we
    rejected claims of fundamental error and affirmed convictions for sex offenses committed
    on children, despite the erroneous failure of the jury instructions to require findings that
    criminal sexual contact must be unlawful as well as intentional. 
    Id. ¶¶ 3,
    5, 20. We observed
    that the jury necessarily found that the defendants had fondled the genitals of the children
    in the restroom of a bar and in a defendant’s truck, and there was no issue as to whether the
    disputed “touchings, if they occurred, were other than unlawful.” 
    Id. ¶¶ 9,
    11.
    {46} We similarly conclude that the deficiencies of the jury instructions in this case did
    not rise to the level of fundamental error. There is simply no issue as to whether the acts of
    injecting a thirteen-year-old child with methamphetamine and then causing her to participate
    in fellatio with an adult, both found by the jury to have occurred, were, in the words of
    Orosco, “other than unlawful.”
    C.     The Amended Date Description Did Not Prejudice Defendant
    {47} We also address Defendant’s argument that she was unfairly prejudiced in her
    defense against all of the charges because the district court allowed the State to change the
    description of the dates of the alleged offenses after Defendant had prepared and presented
    an alibi defense.
    {48} Rule 5-204(C) NMRA of the Rules of Criminal Procedure for the District Courts
    provides that
    [n]o variance between those allegations of a complaint, indictment,
    information or any supplemental pleading which state the particulars of the
    offense, whether amended or not, and the evidence offered in support thereof
    shall be grounds for the acquittal of the defendant unless such variance
    prejudices substantial rights of the defendant. The court may at any time
    allow the indictment or information to be amended in respect to any variance
    to conform to the evidence. If the court finds that the defendant has been
    prejudiced by an amendment, the court may postpone the trial or grant such
    other relief as may be proper under the circumstances.
    {49} “We review a district court’s interpretation and application of Rule 5-204 de novo.”
    State v. Branch, 2010-NMSC-042, ¶ 19, 
    148 N.M. 601
    , 
    241 P.3d 602
    , overruled on other
    grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 & n.6, 
    275 P.3d 110
    .
    {50} A criminal indictment or information need not contain exacting detail as long as the
    defendant is given sufficient notice of the charges. See State v. Cawley, 1990-NMSC-088,
    14
    ¶ 13, 
    110 N.M. 705
    , 
    799 P.2d 574
    (recognizing the right of the accused to be apprised of the
    charge against him and also recognizing that not all charging documents need to establish
    the time or date of the offense); see also State v. Baldonado, 1998-NMCA-040, ¶¶ 18-21,
    
    124 N.M. 745
    , 
    955 P.2d 214
    (recognizing the need to reconcile a defendant’s “due process
    right to reasonable notice of the charges” and the difficulty faced by the state in prosecuting
    criminal sexual charges committed against children who often have a difficult time
    remembering precise dates of crimes that may have been committed against them); accord
    Rule 5-205(A)(1) NMRA (“It shall be unnecessary for a complaint, indictment or an
    information to contain the [time of the commission of the offense] unless such allegations
    are necessary to give the defendant notice of the crime charged.”).
    {51} In Branch, this Court affirmed a district court decision to allow the state to amend
    the indictment in a murder trial after the state had presented its evidence. 2010-NMSC-042,
    ¶¶ 18, 26. The amendment added two predicate felonies to the charge of felony murder in
    a case involving multiple charges for crimes against multiple victims that arose from the
    defendant’s running over his girlfriend with his truck and also running down several people
    who had stopped to give her assistance, ultimately killing one. 
    Id. ¶¶ 2-4,
    21-22. The
    defendant argued that he was prejudiced by the change because his preparation and cross-
    examination might have progressed differently based on the additional predicate felonies.
    
    Id. ¶ 21.
    Branch rejected the defendant’s argument, stating that the defendant’s “mere
    speculation of how he would have conducted his defense differently does not rise to the level
    of prejudice that is required for an acquittal.” 
    Id. The Branch
    Court also explained that the
    variance allowing two of the original charges to be used as additional predicate felonies in
    felony murder did not prejudice the defendant’s substantial rights because the conduct
    underlying these additional predicate felonies was the same as the conduct underlying one
    of the predicate felonies in the original felony murder charge, providing the defendant with
    adequate notice by which he “could ‘reasonably anticipate from the indictment what the
    nature of proof against him [would] be.’” 
    Id. ¶ 22
    (alteration in original) (citation omitted).
    {52} In State v. Dombos, the Court of Appeals affirmed the district court’s decision to
    allow an amendment expanding the time frame of the charges in order to conform with
    evidence presented at trial. See 2008-NMCA-035, ¶¶ 24-25, 
    143 N.M. 668
    , 
    180 P.3d 675
    .
    The original indictment charged the defendant with numerous crimes stemming from several
    sexual offenses against his wife that occurred in February 2004 after the two married and
    moved to Alamogordo. See 
    id. ¶¶ 1-2,
    6. The original charges alleged that one count each
    of kidnapping, battery, and criminal sexual penetration occurred on or between February 9,
    2004, and February 18, 2004; and another set of counts in the amended indictment alleged
    that each of those crimes again occurred on or about February 19, 2004. 
    Id. ¶ 24.
    Partway
    through the trial, the state moved to enlarge the time period to allow that the two sets of
    events occurred at some time between February 1 and February 20. See 
    id. ¶¶ 3,
    24.
    Although the defendant argued that the change was unfairly prejudicial, the Dombos Court
    held that the defendant did not assert any specific claim of prejudice. See 
    id. ¶ 26.
    Rather,
    the Dombos Court explained that the defendant did not rely on the specific time frame in his
    defense and that he “knew the nature of the charges and knew the identity of the victim. He
    15
    also knew that all the charges were alleged to have occurred during the period of time [the
    defendant and his wife] lived together.” 
    Id. {53} In
    this case, Defendant argues that she was prejudiced by the amended date
    description because of her reliance on an alibi defense at trial. There are several flaws in this
    argument.
    {54} Most fundamentally, the information never alleged precise dates of the multiple
    crimes charged. To the contrary, it generally alleged that all of the offenses occurred “on or
    about November 12, 2007.” From the outset, Defendant and her counsel were on notice that
    the daughter could not say precisely when the events occurred. In the affidavit for
    Defendant’s arrest warrant, the investigating officer stated, “I asked [the daughter] if she
    knew an approximate date of the incident and she said no but that it was after Halloween but
    before Thanksgiving.” The State’s pretrial alibi notice demand referred to the offenses as
    allegedly occurring, in the general terms of the criminal information, “on or about . . .
    November 12, 2007,” and Defendant’s responsive alibi notice recited that her anticipated
    alibi defense would cover “the time the alleged offenses were committed as charged in the
    Criminal Information.” Neither the daughter’s trial testimony that the incidents must have
    occurred shortly before Halloween, which was October 31, nor the amendment to the date
    description in the information to conform to the daughter’s testimony went beyond the time
    frame fairly described in the original charges.
    {55} In addition, like the defendant in Dombos who was on notice that the alleged crimes
    occurred during the time he was living with his new wife in Alamogordo, Defendant was on
    notice that the events at issue in this case were alleged to have occurred sometime in the fall
    of 2007 when Defendant was going through a divorce and when Defendant, her daughter,
    and the boyfriend all lived in the Aztec area.
    {56} Finally, the defense specifically knew of the daughter’s revised date estimates as
    soon as the daughter testified in the State’s case in chief, before the defense made its
    reserved opening statement and before it began presenting its incomplete alibi evidence. The
    State’s later request to amend the charges to conform to the evidence, as permitted by Rule
    5-204, could not have been a surprise to the defense. The defense made no objection to the
    daughter’s testimony, no claim of prejudice from her corrected recollection before the
    beginning of the defense case, and no request for a continuance or such other relief as would
    be appropriate when a defendant is actually prejudiced by an amendment. See State v.
    Marquez, 1998-NMCA-010, ¶ 21, 
    124 N.M. 409
    , 
    951 P.2d 1070
    (“The remedy afforded for
    prejudice by an amendment is to ‘postpone the trial or grant such other relief as may be
    proper under the circumstances.’” (quoting Rule 5-204(C))). Instead, the defense
    affirmatively used the daughter’s uncertainty about the precise dates to attack her credibility,
    both on cross-examination and in closing argument.
    {57} Accordingly, we conclude both that Defendant was not prejudiced by the amended
    date description and that Defendant waived any claim of prejudice when she failed to request
    16
    an opportunity to respond further to the daughter’s testimony or seek other relief from the
    district court and instead attempted to exploit the daughter’s uncertainty about the dates. We
    affirm the Court of Appeals and hold that the State’s variance between the charging
    information and jury instructions was proper under Rule 5-204(C).
    IV.    CONCLUSION
    {58} Although we conclude that the jury instructions on the elements of CSP II-felony
    were inadequate, we hold that the deficiency did not result in fundamental error in the
    circumstances of this case, where the sexual activity with Defendant’s thirteen-year-old child
    was undeniably criminal sexual penetration during and resulting from the commission of a
    felony. Finding no other error, we affirm all of Defendant’s convictions.
    {59}   IT IS SO ORDERED.
    ____________________________________
    CHARLES W. DANIELS, Justice
    WE CONCUR:
    ____________________________________
    BARBARA J. VIGIL, Chief Justice
    ____________________________________
    PETRA JIMENEZ MAES, Justice
    ____________________________________
    RICHARD C. BOSSON, Justice
    ____________________________________
    EDWARD L. CHÁVEZ, Justice
    Topic Index for State v. Stevens, No. 32,860
    APPEAL AND ERROR
    Fundamental Error
    Standard of Review
    CRIMINAL LAW
    Child Abuse and Neglect
    Contributing to the Delinquency of a Minor
    Controlled Substances
    Criminal Sexual Penetration
    Sexual Offences
    17
    CRIMINAL PROCEDURE
    Alibi
    STATUTES
    Interpretation
    Legislative Intent
    Rules of Construction
    18