State v. Daprano

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 29,433
5 LOUIS ANTHONY DAPRANO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Mark A. Macaron and Albert S. “Pat” Murdoch, District Judges
9 Gary K. King, Attorney General
10 Margaret E. McLean, Assistant Attorney General
11 Joel Jacobsen, Assistant Attorney General
12 Santa Fe, NM
13 for Appellee
14 Jacqueline L. Cooper, Chief Public Defender
15 Mary Barket, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 SUTIN, Judge.
1 Under a false name and with false credentials, Defendant Louis Anthony
2 Daprano was hired as a psychologist at the Albuquerque Family and Child Guidance
3 Center (the Counseling Center). During his term of employment, Defendant
4 “counseled” a number of patients, some of whom were minors. After a jury trial,
5 Defendant was convicted of forty-three counts of practicing psychology without a
6 license, three counts of criminal sexual contact of a minor, and one count of attempted
7 criminal sexual contact of a minor, among other crimes. We affirm.
8 BACKGROUND
9 In March 2004, Defendant (using the name Louis A. Gravina, Ph.D.) applied
10 for a master’s level psychologist position at the Counseling Center. With his
11 application, Defendant submitted a curriculum vitae in which he listed his purported
12 qualifications and certifications, including the assertion that his application for
13 licensure with the New Mexico Board of Psychological Examiners was “in process.”
14 Having been hired by the Counseling Center, Defendant presented a letter to the
15 Counseling Center, purportedly from the Department of Health (Defendant’s letter),
16 stating that he had previously passed a criminal history screening and that he did not
17 need to be fingerprinted again.
18 On June 9, 2004, Dr. Nancy Grau, executive director of the Counseling Center,
19 learned from two members of her staff that there was an issue as to the identity of
2
1 Defendant, at which point Dr. Grau instructed one of her staff to contact the
2 Department of Health to verify the authenticity of Defendant’s letter. On June 14,
3 2004, the Department of Health advised a Counseling Center staff member that
4 Defendant’s letter was fraudulent. As a result, the Counseling Center commenced an
5 investigation into Defendant’s background. As part of their investigation, Counseling
6 Center staff contacted clients with whom Defendant had met, as well as the FBI, the
7 Children, Youth, and Families Department, and the New Mexico Board of
8 Psychologist Examiners.
9 On June 15, 2004, Felix Nuñez, an investigator with the Thirteenth Judicial
10 District Attorney’s Office, went to the Counseling Center, showed the staff a photo
11 of Defendant and advised them that he was “a wanted sex offender.” Mr. Nuñez had
12 learned of Defendant’s association with the Counseling Center through the execution
13 of a June 11, 2004, search warrant at Defendant’s residence. The warrant was related
14 to an investigation of crimes in the Thirteenth Judicial District (the Sandoval County
15 case). Having been charged in the Sandoval County case, Defendant presented his
16 attorney with forged documents to be used to bolster his defense. The investigation
17 revealed that, after the district court entered orders setting conditions of release,
18 Defendant used various forged documents, including a false New Mexico driver’s
19 license and social security number, to obtain credit at the New Mexico Educator’s
3
1 Federal Credit Union (the credit union), under the name and title of Reverend Louis
2 Anthony Gravina, a Roman Catholic Priest. The investigation led to a federal case,
3 in which Defendant ultimately pleaded guilty to bank fraud (the federal case). See
4 United States v. Daprano, No. CR 04-2040 JB, 2011 WL 5220234, at *1 (D.N.M. Oct.
5 26, 2011).
6 On June 16, 2004, Mr. Nuñez executed a search warrant for the Counseling
7 Center. Defendant had not been seen at the Counseling Center since June 11, on
8 which date Dr. Grau had witnessed Defendant loading his belongings and supplies
9 into his vehicle. Cooperation between the offices of the United States Marshals in
10 Albuquerque, New Mexico and Albany, New York led to Defendant’s arrest in New
11 York on June 22, 2004. On August 23, 2004, Albany police executed a search warrant
12 for Defendant’s vehicle; the warrant was based, in part, on the June 11 warrant for
13 Defendant’s home. In the federal case, the United States conceded that the June 11,
14 June 16, and August 23, 2004, search warrants lacked probable cause and were thus
15 deficient. The federal court held, however, that Defendant had no standing to object
16 to the search of his vehicle, which he had obtained through the fraudulent loan from
17 the credit union, and that sources independent of the illegally obtained warrants to
18 search Defendant’s residence and his place of employment would inevitably have led
19 investigators to discover the evidence of his crimes.
4
1 A grand jury indicted Defendant on the charges associated with the present case
2 on October 22, 2004, and the indictment was filed on October 25, 2004. Due to
3 several extensions, during which the parties awaited the outcome of the federal case,
4 Defendant’s trial did not commence until July 8, 2008. At a hearing on Defendant’s
5 motion to suppress the evidence obtained as a result of the illegal warrants, as
6 discussed earlier, the district court adopted the federal court’s findings of fact and
7 conclusions of law, and denied Defendant’s motion.
8 II. DISCUSSION
9 On appeal, Defendant makes several arguments. He argues that his
10 constitutional rights to a speedy trial and to be free from double jeopardy were
11 violated. Additionally, he contends that all of the evidence against him should have
12 been suppressed as a result of the illegal warrants. He also argues that there was
13 insufficient evidence to support one of his convictions for criminal sexual contact of
14 a minor. And finally, he contends that the district court’s act of reading one of
15 Defendant’s prior statements aloud to the jury constituted fundamental error. We
16 examine each of Defendant’s arguments in turn, and finding no error, we affirm his
17 convictions.
18 A. Speedy Trial
5
1 Defendant argues that his constitutional right to a speedy trial was violated
2 because his trial in this matter did not occur until forty-four months and two weeks
3 after he was indicted. He claims that the delay was caused by the State and by his
4 own counsel who stipulated to continuances and rule extensions against his wishes.
5 He claims that the delay resulted in prejudice to his defense and to him personally.
6 To determine whether Defendant’s constitutional right to a speedy trial was
7 violated we must consider four factors: (1) length of the delay, (2) reasons for the
8 delay, (3) whether Defendant asserted his right to a speedy trial, and (4) whether
9 Defendant suffered any prejudice. State v. Rojo, 1999-NMSC-001, ¶ 49, 126 N.M.
10 438, 971 P.2d 829. “In considering each of the factors, we defer to the district court’s
11 factual findings but review de novo the question of whether [the d]efendant’s
12 constitutional right to a speedy trial was violated.” State v. Montoya, 2011-NMCA-
13 074, ¶ 9, 150 N.M. 415, 259 P.3d 820.
14 1. Length of Delay
15 In order to provide guidance to the district courts in analyzing the length of
16 delay, our Supreme Court, in State v. Garza, 2009-NMSC-038, ¶¶ 48-49, 146 N.M.
17 499, 212 P.3d 387, established benchmarks for determining when a delay in bringing
18 a case to trial may become presumptively prejudicial. For cases of intermediate or
19 greater complexity, the passage of fifteen to eighteen months may prompt a district
6
1 court to consider the three remaining speedy trial factors. See id. In this case, the
2 district court found that at the time of Defendant’s speedy trial motions hearing, the
3 case had been pending for thirty-eight months and three weeks, thereby triggering a
4 speedy trial analysis.
5 2. Reasons for the Delay
6 Defendant contends that the reasons for the delay were attributable to his
7 defense counsel, who agreed to rule extensions against his wishes and failed to
8 actively represent him or to move the case along; the State’s failure to make a good
9 faith effort to bring him to trial; and the district court’s failure to effectively manage
10 its docket. Nevertheless, Defendant does not attack any of the district court’s forty-
11 one findings regarding the reasons for the delay, all of which led to the court’s
12 conclusion that “[i]n total, substantially less than [fifteen] months of the delay in this
13 case is weighed against the State.” The district court concluded that “[t]he majority
14 of the delay . . . either weighed against . . . Defendant or occurred for valid reasons not
15 weighed against either party. This factor does not weigh against the State.” In the
16 absence of any challenge to the district court’s findings, we presume that they are
17 correct. See Rule 12-213(A)(4) NMRA (stating that an appellant’s brief “shall set
18 forth a specific attack on any finding, or such finding shall be deemed conclusive”).
19 Having been presented with no persuasive argument to the contrary, we conclude that
7
1 the district court did not err in determining that the “reasons for delay” factor weighed
2 against Defendant.
3 3. Assertion of Speedy Trial Right
4 Defendant asserted his right to a speedy trial four times, beginning in January
5 2005 and culminating in his September 2007 pro se motion alleging violation of his
6 right to a speedy trial. The district court found that the “assertion of right to speedy
7 trial” factor weighed in Defendant’s favor “but not heavily due to the other findings
8 stated” in its order. Although the court did not specify the particular “other
9 findings[,]” the court’s order noted numerous indications of Defendant’s acquiescence
10 to continuances, as well as Defendant’s personal acknowledgment that it was in his
11 best interest to await the outcome of the federal case before proceeding to trial in the
12 district court. Defendant argues, pursuant to Zurla v. State, 109 N.M. 640, 644, 789
13 P.2d 588, 592 (1990), that his early and forceful assertion of his right to a speedy trial
14 causes this factor to weigh heavily in his favor. Notwithstanding Defendant’s
15 assertions of the right, which the district court found to be “early and not often[,]” the
16 effect of Defendant’s own actions, as recited by the district court, cause this factor to
17 weigh neutrally rather than in Defendant’s favor. See Garza, 2009-NMSC-038, ¶ 32
18 (stating that the frequency and force of the defendant’s objections must be analyzed
19 in conjunction with defendant’s actions regarding the delay, and recognizing case law
8
1 that held the assertion-of-the-right factor weighs neutrally when the defendant engages
2 in procedural maneuvers that result in delaying the trial).
3 4. Prejudice to Defendant
4 The final factor of the speedy trial analysis, whether Defendant was prejudiced
5 by the pretrial delay, is analyzed “in light of the interests that the speedy trial right is
6 designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize
7 anxiety and concern of the accused; and (3) to limit the possibility that the defense
8 would be impaired.” State v. Marquez, 2001-NMCA-062, ¶ 23, 130 N.M. 651, 29
9 P.3d 1052.
10 Defendant broadly asserts that he was prejudiced by the delay and that the
11 prejudice in this case “is obvious[,] as defense counsel told the court, [Defendant] lost
12 his house, [his] car, and [his] personal belongings, and there was a loss of memory by
13 the child witnesses.” He further contends that he was extremely depressed and taking
14 medication and that he “was anxious about his case during the almost four years of
15 waiting to go to trial.” Based on these assertions, Defendant states that the prejudice
16 factor of the speedy trial analysis “unquestionably weighs in his favor.”
17 The district court found that a lack of prejudice was implicit in this case because
18 Defendant and his counsel made a tactical decision to await the outcome of the federal
19 case before going to trial in the present case. As proof of Defendant’s intention to
9
1 delay the trial, the district court referenced Defendant’s own statements, as well as
2 those of his counsel that showed an acquiescence on Defendant’s behalf to delay trial
3 until the federal case had been resolved. The court also enumerated the benefits to
4 Defendant as follows:
5 First, if a conviction were obtained in the state case, it could adversely
6 affect the federal case. Second, by awaiting the [f]ederal [c]ourt’s
7 rulings on similar suppression issues involving the same warrants as the
8 state case, . . . Defendant could benefit by suppression of evidence if the
9 [s]tate [c]ourt were to consider the precedent of the U.S. [d]istrict
10 [j]udge’s decision and rule in a similar manner. Third, regardless of the
11 U.S. [d]istrict [j]udge’s decision[,] . . . Defendant would have the benefit
12 of transcripts of testimony by the same witnesses who would later appear
13 in the [s]tate [c]ourt and the legal briefs of counsel from the federal case.
14 Fourth, (which occurred in this case) the State might concede the
15 invalidity of certain warrants based upon the [f]ederal [c]ourt’s decision.
16 Also, delay of the state case until the federal case was ripe for resolution
17 can be inferred as a tactic in this case which might give . . . [D]efendant
18 leverage in plea negotiations. . . . The record indicates that [D]efendant’s
19 federal and state attorneys met and discussed with prosecutors the
20 possibility of a plea agreement involving the federal and state cases.
21 Regarding Defendant’s argument about anxiety and health concerns, the district court
22 found that it was unclear “whether the anxiety and health concerns [were] due to the
23 delay or [due to] his anticipation that he [would] be transferred to [s]tate custody” and
24 noted that Defendant had indicated “that he must avoid state custody at all cost.”
25 Additionally, with regard to the child witnesses, the court found that Defendant
26 acknowledged that he was unable to show prejudice by impairment of his defense
10
1 because some of the children had given safe house statements, and much of the
2 witness testimony was preserved by transcripts in the federal case.
3 Defendant does not refute or otherwise address the district court’s factual
4 findings in regard to prejudice. See Rule 12-213(A)(4). Nor does his argument
5 include any citation to the record. See Rule 12-213(A)(3) NMRA (stating that an
6 appellant’s brief “shall contain citations to the record proper, transcript of
7 proceedings[,] or exhibits supporting each factual representation”); Fahrbach v.
8 Diamond Shamrock, Inc., 1996-NMSC-063, 122 N.M. 543, 551, 928 P.2d 269, 277
9 (stating that an appellate court “will not search the record to find evidence to support
10 an appellant’s claims” (internal quotation marks and citation omitted)). Moreover,
11 “[a]n assertion of prejudice is not a showing of prejudice[,]” Montoya, 2011-NMCA-
12 074, ¶ 13 (internal quotation marks and citation omitted), and here, Defendant’s
13 assertion that the prejudice “is obvious” is not a showing of prejudice. We are not
14 persuaded by Defendant’s argument, and we hold that the prejudice factor of the
15 speedy trial analysis does not weigh in Defendant’s favor.
16 Defendant’s speedy trial rights were implicated by the passage of more than
17 forty-four months between the indictment and his trial. The district court correctly
18 found, given that Defendant heavily contributed to the delay, the “reasons for the
19 delay” factor did not weigh against the State. Defendant’s assertion of the right, when
11
1 viewed in the context of his own actions, caused the second speedy trial factor to
2 weigh neutrally. And finally, Defendant has not shown that he was prejudiced by the
3 delay. Based on the foregoing, we conclude that Defendant’s right to a speedy trial
4 was not violated.
5 B. Suppression
6 Defendant contends that evidence obtained in violation of his right to be free
7 from unlawful search and seizure under the Fourth Amendment to the United States
8 Constitution and under Article II, Section 10 of the New Mexico Constitution should
9 have been suppressed. The district court denied Defendant’s motion to suppress based
10 on its finding that the State’s evidence would have been inevitably discovered by
11 other sources and that there were independent sources of that evidence.
12 “The denial of a motion to suppress requires us to determine [whether] the law
13 was correctly applied to the facts.” State v. Gutierrez, 2005-NMCA-015, ¶ 9, 136
14 N.M. 779, 105 P.3d 332. On review, we defer to the factual findings of the district
15 court, under a substantial evidence standard, State v. Neal, 2007-NMSC-043, ¶ 15,
16 142 N.M. 176, 164 P.3d 57, and we review de novo the legal question of whether
17 constitutional standards were satisfied. State v. Johnson, 2006-NMSC-049, ¶ 9, 140
18 N.M. 653, 146 P.3d 298.
12
1 Defendant’s argument broadly pertains to all of the evidence that was
2 discovered through the search of his vehicle, his home, and the Counseling Center,
3 and also pertains to the witness testimony. By asserting that there was “no entirely
4 untainted information[,]” Defendant appears to argue that all of the evidence against
5 him should have been suppressed as a result of the illegal warrant to search his home
6 and, by extension, the warrants to search his vehicle and his office, which stemmed
7 from the initial illegal search warrant. The State makes four arguments with regard
8 to the evidence as it related to the unlawfully obtained warrants. Namely, that
9 (1) Defendant failed to show that any of the victims’ testimony or any of the exhibits
10 were obtained by exploitation of the searches and that, in particular, the victims’
11 testimony was not linked with the illegal searches; (2) the testimony of the victims and
12 their parents, the public records, and the records of the Counseling Center were
13 independent sources of information, unrelated to any illegal police activity;
14 (3) evidence in this case would inevitably have been discovered as a result of the
15 Counseling Center’s own investigation; and (4) Defendant lacked standing to object
16 to a search of the Counseling Center. Since the record reflects that in the district court
17 the State focused on the inevitable-discovery and independent-source doctrines, and
18 because the district court based its holding on those doctrines, we limit our discussion
19 to those arguments.
13
1 Although Defendant references Fourth Amendment jurisprudence, he
2 acknowledges that it does not weigh in his favor and therefore requests that this Court
3 analyze the suppression issue under the State Constitution. See, e.g., State v.
4 Wagoner, 2001-NMCA-014, ¶ 28, 130 N.M. 274, 24 P.3d 306 (stating that United
5 States Supreme Court case law applying the independent-source doctrine “teaches us
6 that the interest of society in deterring unlawful police conduct and the public interest
7 in having juries receive all probative evidence of a crime are properly balanced by
8 putting the police in the same, not a worse, position than they would have been in if
9 no police error or misconduct had occurred.” (emphasis in original) (alteration,
10 internal quotation marks, and citation omitted)).
11 Defendant’s argument is based primarily on Wagoner. In that case, an officer,
12 acting pursuant to a tip from a citizen informant that a residence could be the location
13 of drug dealing, requested but was denied consent by the defendant to search the
14 house. Id. ¶ 2. The officer conducted a warrantless sweep of the home, during which
15 he observed drugs and drug paraphernalia in plain view. Id. In applying for a
16 warrant, the officer included information about the contraband that he had observed
17 during the sweep. Id. The district court granted the defendant’s suppression motion
18 based on its conclusion that the warrantless sweep was not justified by exigent
19 circumstances. Id. ¶ 3. This Court agreed with the district court’s conclusion
14
1 regarding the sweep, but remanded on the issue of whether the evidence should have
2 been admitted under the inevitable-discovery doctrine, which applies “where evidence
3 may have been seized illegally, but where an alternative legal means of discovery,
4 such as a routine police inventory search, would inevitably have led to the same
5 result.” Id. ¶¶ 3, 15. On remand, the district court denied the defendant’s suppression
6 motion under the inevitable-discovery doctrine because it found that the officers
7 intended to secure a warrant prior to the illegal entry and that the magistrate would
8 have issued the warrant regardless of the illegally obtained information. Id. ¶ 6. The
9 defendant appealed. Id. ¶ 1. This Court reversed, holding that “a search conducted
10 pursuant to a warrant based partially on tainted information gathered during a prior
11 illegal search is not an independent source of the evidence seized and therefore must
12 be suppressed.” Id. ¶ 40. Defendant contends that his case is factually similar to
13 Wagoner because the police used evidence obtained during an unlawful search of his
14 home to persuade a magistrate to issue a search warrant for his place of employment.
15 Unlike Wagoner, in which the contraband was discovered after an illegal police
16 entry and then used to secure a warrant, here, Defendant’s fraud had been discovered
17 by the Counseling Center and reported to various authorities, including the FBI, prior
18 to the search of his office at the Counseling Center and prior to the Counseling Center
19 staff being notified by Mr. Nuñez or by police of Defendant’s suspected fraud.
15
1 Moreover, the Counseling Center had already started its own investigation by
2 contacting clients and their parents to report their discovery and to request information
3 as to the clients’ experiences in their sessions with Defendant. Thus, any evidence
4 that stemmed from the illegal searches would inevitably have been discovered as the
5 Counseling Center continued its course of investigation. See id. ¶ 15 (stating that for
6 the inevitable-discovery doctrine to apply, “the alternate source of evidence must be
7 pending, but not yet realized”). The district court did not err in holding that the
8 inevitable-discovery doctrine applied to these facts.
9 In addition to inevitable discovery, the State also argues that the witness
10 testimony, which included the testimony of victims and their parents, were
11 independent sources of evidence concerning what happened to them. As well, the
12 State contends that the public records and the records of the Counseling Center were
13 independent sources of evidence. The independent-source doctrine applies where the
14 evidence was obtained independent of the tainted or possibly tainted information. Id.
15 ¶ 13. Under this doctrine, “[t]he applicable inquiry is whether the evidence would not
16 have come to light ‘but for’ the illegality.” State v. Gurule, 2011-NMCA-063, ¶¶ 25-
17 26, 150 N.M. 49, 256 P.3d 992, cert. granted, 2011-NMCERT-006, 150 N.M. 764,
18 266 P.3d 633. Because the inquiry requires an inference of what might have occurred,
19 we defer to the district court’s factual findings. Id. ¶ 26. Here, the record supports the
16
1 district court’s finding that the information would have come to light by inevitable
2 discovery and through independent sources regardless of the illegal searches.
3 Defendant does not attack this finding by the district court, nor does he refute the
4 State’s argument that the information would have come to light notwithstanding the
5 illegal search. In sum, there is nothing to suggest that “but for” the illegal search of
6 Defendant’s home or place of employment, the victims, their parents, the Counseling
7 Center documents, and the public records regarding Defendant’s lack of a license to
8 practice psychology would not have come to light. See id. ¶¶ 25-26 (affirming the
9 district court’s exclusion of a witness’s testimony because the district court reasonably
10 inferred that “but for” an officer’s illegal seizure of evidence, the witness would not
11 have testified). The evidence was properly admitted at Defendant’s trial under both
12 the inevitable-discovery and independent-source doctrines.
13 C. Double Jeopardy
14 1. Multiple Counts of Practicing Psychology Without a License
15 Defendant argues that the forty-three counts of practicing psychology without
16 a license should have been charged as one course of conduct resulting in only one
17 conviction for the “ongoing act” of working as a psychologist at the Counseling
18 Center. Alternatively, Defendant argues that, at most, he should have been charged
19 with only fifteen counts—one for each client. Defendant’s statutory construction
17
1 argument presents a question of law, which we review de novo. State v. Rowell, 121
2 N.M. 111, 114, 908 P.2d 1379, 1382 (1995).
3 “A statute should be construed so that no part of it is rendered surplusage or
4 superfluous.” State v. Dunsmore, 119 N.M. 431, 433, 891 P.2d 572, 574 (Ct. App.
5 1995). “The main goal of statutory construction is to give effect to the intent of the
6 [L]egislature.” Rowell, 121 N.M. at 114, 908 P.2d at 1382. “The words of a statute
7 . . . should be given their ordinary meaning, absent clear and express legislative
8 intention to the contrary, but our construction must not render the statute’s application
9 absurd, unreasonable, or unjust[.]” Id. (omission in original) (internal quotation marks
10 and citations omitted).
11 The pertinent statute, NMSA 1978, § 61-9-14 (1993), provides that:
12 A. It is a misdemeanor:
13 (1) for any person not licensed under the Professional
14 Psychologist Act . . . to practice psychology or to represent
15 himself as a psychologist or a psychologist associate;
16 ....
17 B. Such misdemeanor shall be punishable upon conviction by
18 imprisonment for not more than three months or by a fine of not more
19 than one thousand dollars . . . or by both such fine and imprisonment.
20 Each violation shall be deemed a separate offense.
21 NMSA 1978, Section 61-9-3(H) (2002) defines the phrase “practice of psychology”
22 as follows:
18
1 “practice of psychology” means the observation, description, evaluation,
2 interpretation[,] and modification of human behavior by the application
3 of psychological principles, methods[,] and procedures for the purpose
4 of preventing or eliminating symptomatic, maladaptive[,] or undesired
5 behavior and of enhancing interpersonal relationships, work and life
6 adjustment, personal effectiveness, behavioral health and mental health,
7 and further means the rendering of such psychological services to
8 individuals, families[,] or groups regardless of whether payment is
9 received for services rendered. The practice of psychology includes
10 psychological testing or neuropsychological testing and the evaluation
11 or assessment of personal characteristics such as intelligence,
12 personality, abilities, interests, aptitudes[,] and neuropsychological
13 functioning; counseling, psychoanalysis, psychotherapy, hypnosis,
14 biofeedback, behavior analysis[,] and therapy; diagnosis and treatment
15 of any mental and emotional disorder or disability, alcoholism and
16 substance abuse, disorders of habit or conduct[,] and the psychological
17 aspects of physical illness, accident, injury[,] and disability; and
18 psychoeducational evaluation, therapy, remediation[,] and consultation[.]
19 In unit-of-prosecution cases, our Supreme Court has provided a two-step analysis:
20 “First, we review the statutory language for guidance on the unit of prosecution. If
21 the statutory language spells out the unit of prosecution, then we follow the language,
22 and the unit-of-prosecution inquiry is complete.” State v. Gallegos, 2011-NMSC-027,
23 ¶ 31, 149 N.M. 704, 254 P.3d 655 (internal quotation marks and citations omitted).
24 Here, the statutory language spells out the unit of prosecution by declaring that
25 “[e]ach violation shall be deemed a separate offense.” Section 61-9-14(B). Relying
26 on the definition provided by Section 61-9-3(H), the State argues that Defendant
27 rendered psychological services each time he met with one of his “clients.” We agree.
28 Defendant’s progress notes from each of the “counseling sessions,” which were
19
1 exhibits at trial, indicated that Defendant was providing the service of “individual
2 therapy” to the clients—the very act prohibited by Section 61-9-14 and described by
3 Section 61-9-3(H). See State v. House, 2001-NMCA-011, ¶ 19, 130 N.M. 418, 25
4 P.3d 257 (“[A] charge of multiple counts of violating a statute is appropriate only
5 where the actus reus prohibited by the statute—the gravamen of the offense—has been
6 committed more than once.” (internal quotation marks and citation omitted)). Because
7 the statutory language spells out the unit of prosecution, our inquiry is complete.
8 Defendant was properly charged with one violation of the statute for each “counseling
9 session” he held with each of the clients.
10 We are unpersuaded by Defendant’s attempt to analogize this case to State v.
11 Edwards, 102 N.M. 413, 696 P.2d 1006 (Ct. App. 1984). In Edwards, this Court
12 analyzed the unit of prosecution under the unauthorized practice of law statute, NMSA
13 1953, § 36-2-28 (1925) (repealed by 2011 N.M. Laws, ch. 107, § 3) (current versions
14 at NMSA 1978, §§ 36-2-28.1, -28.2 (2011)). Edwards, 102 N.M. at 415-16, 696 P.2d
15 at 1008-09. Unlike Section 61-9-14, Section 36-2-28 did not spell out the unit of
16 prosecution. See Edwards, 102 N.M. at 416, 696 P.2d at 1009 (“If any person shall,
17 without having become duly licensed to practice, or whose licenses to practice shall
18 have expired either by disbarment, failure to pay his license fee or otherwise, practice
19 or assume to act or hold himself out to the public as a person qualified to practice or
20
1 carry on the calling of a lawyer, he shall be guilty of an offense . . . and on conviction
2 thereof be fined not to exceed five hundred dollars . . . or be imprisoned, for a period
3 not to exceed six months, or both.” (internal quotation marks and citation omitted)).
4 Therefore, the Edwards analysis differs from that in the present case where we are
5 able to follow the statutory language to complete our unit-of-prosecution inquiry. See
6 Gallegos, 2011-NMSC-027, ¶ 31 (“If the statutory language spells out the unit of
7 prosecution, then we follow the language, and the unit-of-prosecution inquiry is
8 complete.”).
9 2. Multiple Counts of Criminal Sexual Contact of a Minor
10 Defendant claims that his right to be free from double jeopardy was violated
11 with respect to two of his victims, E.G. and C.L., in that in each instance he was
12 subjected to multiple punishments for one offense. “Because there are no disputed
13 material facts, we review Defendant’s double jeopardy challenge using a de novo
14 standard of review.” State v. Haskins, 2008-NMCA-086, ¶ 15, 144 N.M. 287, 186
15 P.3d 916.
16 Defendant was convicted of criminal sexual contact of a minor for touching
17 E.G.’s breasts and for attempted criminal sexual contact of a minor for intending and
18 beginning the act of touching E.G.’s buttocks and/or genital area. Evidence presented
19 at trial indicated that, during a “counseling session,” E.G. told Defendant that what he
21
1 disliked about himself was that he was “fat” or “chubby.” In response, Defendant
2 instructed E.G. to stand in front of a mirror and to take off his shirt. E.G. having done
3 so, Defendant “put his hand around [E.G.’s] waist, mostly rubbing it. And he kept
4 trying to touch [E.G.’s] arm, as if he was enjoying it[.]” He then asked E.G. to take
5 off his pants. E.G. refused, but Defendant “kept repeating himself[.]” E.G. repeatedly
6 said “no” and also stated that he was “uncomfortable about it.” Defendant then
7 threatened E.G. by saying that if he did not take off his pants, he would have the
8 police escort E.G. out of the Counseling Center, take him to jail, and have E.G.’s
9 mother punish him. E.G. testified that he “was afraid” and “[did not] know what to
10 do.” Following Defendant’s threat, E.G. took off his pants. Defendant then started
11 touching “all around” E.G.’s legs and putting his hand, “his thumb mostly,” under
12 E.G.’s underwear. When Defendant asked E.G. to take off his underwear, E.G.
13 “panicked” and pulled up his pants, then asked if he could go get a drink of water. At
14 trial, the district court agreed with the State that Defendant’s act of massaging and
15 fondling E.G.’s breasts, including his nipples was a separate and distinct act from
16 Defendant’s attempt, after having caused E.G. to remove his pants, to fondle E.G.’s
17 buttocks or genital area.
18 On appeal, Defendant argues that under the Herron factors, the touching of E.G.
19 was one continuous act of criminal sexual contact with a minor. See Herron v. State,
22
1 111 N.M. 357, 361, 805 P.2d 624, 628 (1991) (describing the six factors used in a
2 unit-of-prosecution analysis). We determine that the Herron factors support
3 Defendant’s separate convictions related to E.G. The first factor is the “temporal
4 proximity of the acts[.]” Haskins, 2008-NMCA-086, ¶ 18. Under this factor, “the
5 greater the interval between the acts the greater likelihood of separate offenses.” Id.6 Here, Defendant’s act of touching E.G.’s breasts and arm was separated by the length
7 of time during which Defendant coaxed E.G. into removing his pants first by
8 repeatedly asking him to do so and eventually culminating in the threat of arrest and
9 parental punishment. Cf. id. (holding that the defendant’s three separate acts of
10 touching the victim’s breasts, vulva, and various parts of her body during a one-hour
11 massage were sufficiently separate in time to be considered separate offenses). The
12 second factor, “the location of the victim during each act and whether there was
13 movement or repositioning of the victim,” id. ¶ 17, weighs in Defendant’s favor
14 because there was no evidence that the acts of touching E.G. took place anywhere but
15 in front of the mirror in Defendant’s office. The third factor, “the existence of an
16 intervening event,” id., weighs in favor of multiple punishments because, between the
17 first and second acts of touching, Defendant and E.G. had a discussion, as described
18 in the first-factor analysis, and E.G. took off his pants. See id. ¶ 19 (holding that there
19 was an intervening event between two acts of touching because the victim got dressed
23
1 and went to a different room between the two acts). For analysis of the fourth factor,
2 “the sequencing of the acts,” id. ¶ 17, “we analogize to the criminal sexual penetration
3 context, in which serial penetrations of different orifices, as opposed to repeated
4 penetrations of the same orifice, tend to establish separate offenses[.]” Id. ¶ 19. The
5 fact that E.G. was touched on different parts of his body weighs heavily in favor of
6 separate offenses. See id. The fifth factor, Defendant’s “intent as evidenced by his
7 conduct and utterances,” Haskins, 2008-NMCA-086, ¶ 17, weighs in Defendant’s
8 favor because Defendant’s “conduct may fairly be construed to indicate one
9 continuous intent to unlawfully and intentionally touch or apply force to [E.G.’s]
10 intimate parts.” Id. ¶ 20. The sixth Herron factor, “the number of victims[,]” id. ¶ 17,
11 weighs neutrally because E.G. was the only victim in that particular “counseling
12 session.” With three of the five applicable Herron factors weighing in favor of
13 separate offenses, we hold that Defendant’s double jeopardy rights were not violated
14 by the criminal sexual contact and attempted criminal sexual contact of E.G.
15 In regard to C.L., Defendant argues that his separate convictions for touching
16 C.L’s testicles and penis constituted double jeopardy. Evidence at trial showed that
17 in a “counseling session” with C.L., Defendant told C.L. that he was a doctor and
18 asked C.L. to pull down his pants so Defendant could check him for a hernia. When,
19 after some resistance, C.L. complied, Defendant “started putting his hand [through
24
1 the] little hole in [C.L.’s underwear], grabbed [C.L.’s] ball,” and told him to turn to
2 the right and cough. C.L. turned his head left and right and coughed, and Defendant
3 told him that he did not have a hernia and that he was “real healthy.” Defendant then
4 pulled C.L.’s foreskin back and “looked around it” and “started moving through
5 [C.L.’s] hair[,] and looking[.]”
6 Having, in an earlier paragraph, set out the Herron factors in some detail, we
7 summarily address the same factors with regard to the C.L. related convictions. First,
8 the act of touching C.L.’s testicle and the act of touching his penis were separated in
9 time by Defendant’s having conveyed his assessment that C.L. was healthy and did
10 not have a hernia. Second, as with E.G., there was no evidence that the touching of
11 C.L. occurred in more than one location, and thus, the location factor weighs in favor
12 of Defendant. Third, the intervening event between the two acts of touching was
13 Defendant’s communicating to C.L. that he was healthy and did not have a hernia.
14 With the “hernia check” completed, Defendant commenced the next touching, which
15 was the act of retracting C.L.’s foreskin. We hold that this factor weighs in favor of
16 separate offenses. See Haskins, 2008-NMCA-086, ¶ 19 (holding that the third Herron
17 factor weighed in favor of multiple punishments where the only evidence of
18 intervening events between the defendant having touched two of the victim’s intimate
19 parts was “finishing the rest of the massage” (alteration omitted)). Fourth, as
25
1 discussed in regard to E.G., the fact that Defendant touched two different parts of
2 C.L.’s body weighs heavily in favor of separate offenses. See id. Fifth, the evidence
3 indicates that Defendant’s intent was to engage in a continuous course of conduct, and
4 thus, weighs against separate offenses. See id. ¶¶ 17, 20. Because there was only one
5 victim at this “counseling session” the sixth factor is inapplicable. Thus, with regard
6 to C.L., with three Herron factors weighing in favor of separate offenses, including
7 the fourth factor which weighs heavily in favor of such, we conclude that Defendant
8 was not put twice in jeopardy for the same offense.
9 E. Sufficiency of the Evidence
10 In regard to E.G., Defendant argues that the State failed to prove that he
11 committed criminal sexual contact of a minor by touching E.G.’s unclothed breasts,
12 including his chest and nipples. Defendant’s argument is based on his contention that
13 a male “chest” is not an “intimate part” because there is “an anatomical difference
14 between male and female breasts[.]” Defendant’s argument raises an issue of
15 statutory construction, which is a matter of law that we review de novo. Rowell, 121
16 N.M. at 114, 908 P.2d at 1382.
17 NMSA 1978, Section 30-9-13(A) (2003) reads:
18 [c]riminal sexual contact of a minor is the unlawful and intentional
19 touching of or applying force to the intimate parts of a minor or the
20 unlawful and intentional causing of a minor to touch one’s intimate parts.
26
1 For the purposes of this section, “intimate parts” means the primary
2 genital area, groin, buttocks, anus[,] or breast.
3 Nothing in Section 30-9-13(A) suggests that the Legislature intended to distinguish
4 the intimate parts of a male child from the intimate parts of a female child, and “[w]e
5 will not read into a statute language which is not there, especially when it makes sense
6 as it is written.” State v. Hubble, 2009-NMSC-014, ¶ 10, 146 N.M. 70, 206 P.3d 579.
7 To the contrary, the Legislature’s use of the phrase “intimate parts of a minor”
8 indicates a legislative intent to include any minor.
9 Defendant’s reliance on City of Albuquerque v. Sachs, 2004-NMCA-065, 135
10 N.M. 578, 92 P.3d 24, in this context is misplaced. This Court’s holding in Sachs
11 addressed an issue of adult public nudity and has no application in the realm of
12 criminal sexual contact. See id. ¶ 1 (examining the question of whether a city
13 ordinance which prohibits public nudity discriminated against women in violation of
14 the Equal Rights Amendment in the New Mexico Constitution because it prohibits a
15 woman from showing her nude breast in a public place when there was no such
16 prohibition against a man). Defendant does not provide any authority to support a
17 distinction, between the “intimate parts” of a male or a female in a criminal sexual
18 contact of a minor case, nor would such a distinction be appropriate. See In re
19 Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (“We assume
27
1 where arguments in briefs are unsupported by cited authority, counsel after diligent
2 search, was unable to find any supporting authority.”).
3 F. Remarks by the District Court
4 Following the presentation of the State’s evidence, the district court read the
5 following statement, which Defendant had himself stated to the court during a pretrial
6 hearing: “They’re talking about an investigation that happened at the Albuquerque
7 Family and Child Guidance Center. They were investigating Louis Gravina.
8 Certainly they found bogus information about Louis Gravina because it was a persona
9 that I created.” The court then dismissed the jury for an afternoon recess. Defendant,
10 who did not object to the court’s reading the statement, asserts on appeal that as a
11 result of the court having read the statement, Defendant was denied due process and
12 a fair trial. He requests that we review this issue for fundamental error.
13 Fundamental error applies “to prevent a miscarriage of justice, . . . if the
14 question of guilt is so doubtful that it would shock the conscience to permit the
15 conviction to stand.” State v. Gomez, 2001-NMCA-080, ¶ 21, 131 N.M. 118, 33 P.3d
16 669 (omission in original) (alteration, internal quotation marks, and citation omitted).
17 Defendant does not argue that his statement was improperly admitted against him.
18 Rather, he argues that the court’s “comment interfered with [the] role of the jury as
28
1 independent fact-finder” because it “conveyed to the jury that [the court] believed
2 [Defendant] was guilty[.]” We disagree.
3 Unlike cases in which this Court and our Supreme Court have concluded that
4 a district court’s comment was improper, the district court in this case did not
5 comment on Defendant’s credibility. See State v. Henderson, 1998-NMSC-018,
6 ¶¶ 14, 17, 125 N.M. 434, 963 P.2d 511 (holding that the district court had improperly
7 commented on the witness’s credibility before the jury by referring to the witness as
8 “the ‘guy who wanted to get drunk and get laid’”); Gomez, 2001-NMCA-080, ¶¶ 19,
9 22 (explaining that the district court’s comments had been on the “brink of
10 fundamental error” when a taped interview was played for the jury in which the
11 district court complemented a child witness by stating “[y]ou did very well and we’re
12 all very proud of you, that you came here and you told us the truth”); State v. Sanchez,
13 112 N.M. 59, 65-66, 811 P.2d 92, 98-99 (Ct. App. 1991) (holding that the district
14 court had commented on the evidence, when in the presence of the jury, after a
15 witness’s testimony, it stated that, based on the witness’s testimony, it would find that
16 the witness was “unavailable” based on a lack of memory and stating to the jury that
17 the witness’s testimony was “worthless”). Rather than conveying the court’s opinion
18 “concerning the weight of the evidence or the credibility of a witness[,]” Sanchez, 112
19 N.M. at 66, 811 P.2d at 99, here, the statement was a verbatim quote of a an earlier
29
1 statement made by Defendant. There was no error, much less fundamental error, in
2 the court’s having presented Defendant’s own statement to the jury, without
3 conveying its own opinion. Cf. id. (“Generally, remarks made by a trial judge in
4 ruling upon a motion before the court in a jury trial do not constitute error if they do
5 not amount to a comment concerning the weight of the evidence or the credibility of
6 a witness.”).
7 G. Sentencing
8 Defendant raised an issue in his brief in chief related to the legality of his
9 sentence, contending that in 2004, when the crimes were committed, the penalty for
10 criminal sexual contact of a minor was nine years imprisonment, however, he
11 concedes in his reply brief that, in 2003 the penalty was changed to fifteen years. We
12 deem that Defendant has conceded the correctness of the district court’s application
13 of the fifteen-year sentence provision under NMSA 1978, Section 31-18-15(A)(3)
14 (2003) (amended 2005 and 2007) (current version at Section 31-18-15(A)(5)), and,
15 therefore, we do not examine the argument further.
16 II. CONCLUSION
17 For the foregoing reasons, we affirm Defendant’s convictions.
18 IT IS SO ORDERED.
19 __________________________________
20 JONATHAN B. SUTIN, Judge
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1 WE CONCUR:
2 _________________________________
3 LINDA M. VANZI, Judge
4 _________________________________
5 J. MILES HANISEE, Judge
31