This decision was not selected for publication inthe New Mexico Reports. Please see Rule 12- 1 405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this 2 electronic decision may contain computer-generated errors or other deviations from the official 3 paper version filed by the Supreme Court and does not include the filing date. 4 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 5

STATE OF NEW MEXICO , 6 Plaintiff-Respondent, 7 v. NO. 32,444 8 OLIVER STANLEY , 9 Defendant-Petitioner. 10

ORIGINAL PROCEEDING ON CERTIORARI 11 Ross C. Sanchez, District Judge 12 William A. O’Connell, Assist ant Appellate Defender 13 Santa Fe, NM 14 for Petitioner 15 Gary K. King, Attorney General 16 Anita Carlson, Assistant Attorney General 17 Margaret E. McLean, Assistant Attorney General 18 Santa Fe, NM 19 for Respondent 20 DECISION 21 Daniels, Chief Justice. 22 This Court granted certiorari to reviewone of the issues addressed in the 232 Court of Appeals memorandum opinion, affirming the district court’s refusal to give 1 a lesser included offense instruction on statutory rape in a case in which Defendant 2 had been charged with the greater offense of coercive rape of a minor by a person 3 in a position of authority. The State has subsequently acknowledged error on that 4 issue, conceding that the district court committed reversible error in refusing the 5 requested instruction. Weagree that the State’s concession was correct. We 6 therefore reverse the Court of Appeals, on the lesser included offense instruction 7 issue alone, and remand to the district court for a new trial. 8 Having considered the record, briefing, and applicable law in this case, we 9 conclude that there is no reasonable like lihood that a formal opinion would advance 10 New Mexico law. Acting within this Court’s discretion under Rule 12-405(B)(1) 11 NMRA to dispose of a case by decision rath er than formal opinion where the “issues 12 presented have been previously decided,” we enter this Decision. 13 I. FACTUAL AND PROCEDURAL BACKGROUND 14 Defendant Oliver Stanley was indict ed for, among other offenses, second15 degree criminal sexual penetration (CSP II), as then defined in NMSA 1978, Section 16 30-9-11(D) (2003): 17 D. Criminal sexual penetration in the second degree consists of all 18 criminal sexual penetration perpetrated: 19 (1) on a child thirteen to ei ghteen years of age when the 201 The 2007 amendment removed the “position of authority” element and 16 reworded Subsection D(1) to provide in its entirety: “by the use of force or coercion 17 on a child thirteen to eighteen years of age.” SeeNMSA 1978, § 30-9-11(E)(1) 18 (2007). Because Defendant was indicted for acts that occurred in 2003, this 19 Decision references the applicable 2003 provi sions of the CSP statute, Section 30-9- 20 11

. 21 3 perpetrator is in a position of authority over the child and uses this 1 authority to coerce the child to submit. 1 2 At the time of the offens e, the statutory element “position of authority” was 3 defined as “that position occupied by a parent, relative, household member, teacher, 4 employer or other person who, by reason of that position, is able to exercise undue 5 influence over a child.” NMSA 1978, § 30-9-10(E) (2005). The State’s evidence 6 at trial for “position of authority” and “u ses this authority to coerce the child to 7 submit”—both essential elements of C SP II theory—was that, although Defendant 8 was unrelated to thirteen-year old Victim, heacted as head of the household. Victim 9 lived with Defendant, who was in his forties, and Victim’s older sister Esther, who 10 was Victim’s legal guardian and Defendant’s fiancée. The State had removed 11 Victim from her parents’ home, and Esther had recei ved guardianship over her as 12 a result. 13 The State introduced evidence that De fendant set house ru les and controlled 14 household finances. He gave Victim anallowance and assigned her house-cleaning 154 duties, which he supervised. Victim testified that she felt Defendant was in charge 1 of the household, saying “what he said goes.” Vic tim’s testimony about her 2 relationship with Defendant was somewhat negative. She testified that she began 3 to lose respect for Defendant because of hi s behavior towards her sister. She felt her 4 sister was “pathetic” for continuing to havea relationship with Defendant. She said 5 that over time she became “withdrawn . . . not open to [Defendant] anymore.” 6 In June, 2003, Victim’s relationship with Defendant began to change, 7 becoming “very confusing and awkward.” Victim chronicled the changes in her 8 journal, writing “it seems like [Defendant] is hitting on me. I guess it is just nothing. 9 I like him as a father but not the othe r way.” Defendant began complimenting 10 Victim on her looks and at times touched her breasts. Defendant and Victim first 11 had sex on June 7, 2003. Vi ctim was somewhat ambiguous about the reasons for her 12 participation. When asked at trial why she submitted to Defendant’s advances, 13 Victim testified that she did not know. She also testified that Defendant told Victim 14 after they had sex that if she told anyone, “he was going to hurt [her] and [her] 15 family.” She said the reason she did nottell her parents wh at had happened was 16 because she was scared. Defendant and Vi ctim then had further sexual contact over 17 the next several days. 18 On June 12, 2003, Defendant, Victim, and Esther all watched TV together. 195 After Esther went to bed, Defendant kisse d Victim’s breasts, put his finger in her 1 vagina, and started to put hi s penis in her vagina. Esth er returned because she was 2 suspicious of Defendant’s and Victim’s interactions. When she returned, Esther saw 3 Victim and Defendant togeth er and confronted Defendant . While Victim testified 4 at trial that she had not wanted “to engage in th[o]se sexual activities with 5 [Defendant],” the jury also learned she had recounted the event in her journal, 6 writing “my sister caught us ” rather than “my sister caught him .” Esther reported 7 Defendant to the police on June 13, 2003, and this prosecution ensued. 8 After the close of evidence at trial, Defendant requested a lesser included 9 offense instruction for non-coercive statut ory rape (CSP IV), as defined in NMSA 10 1978, Section 30-9-11(F)(1): 11 F. Criminal sexual penetration in the fourth degree consists of all 12 criminal sexual penetration: 13 (1) not defined in Subsections C through E of this section 14 perpetrated on a child th irteen to sixteen years of age when the 15 perpetrator is at least eighteen years of age and is at least four years 16 older than the child and not the spouse of that child. 17 The State objected, and the district court refused to give the jury the option of 18 considering the lesser included offense of CSP IV. The jury convicted Defendant 19 of four counts of CSP II, among other offenses. 20 The Court of Appeals affirmed Defe ndant’s convictions in a memorandum 216 opinion, State v. Stanley , No. 28,288 (N.M. Ct. App. May 12, 2010), and this Court 1 granted certiorari to review the lesser include d offense instruction issue. Prior to the 2 scheduled oral argument, the State filed a written concession that the refusal of the 3 instruction had been reversible error. Although we were not bound by the State’s 4 concession, see State v. Foster , 1999-NMSC-007, ¶ 25, 126 N.M. 646, 974 P.2d 5 140, we agreed with it and v acated the oral argument. Inthis Decision, we set out 6 briefly the reasons Defendant’s CSP II convi ctions must be reversed and the case 7 remanded for a new trial on those counts of the indictment. 8 II. DISCUSSION 9 A. Standard of Review 10 “The propriety of jury instructions given or denied is a mixed question of law 11 and fact. Mixed questions of law and fact are reviewed de novo.” State v. Salazar , 12 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. “When considering a 13 defendant’s requested instructions, we viewthe evidence in the light most favorable 14 to the giving of the requested instruction[s].” State v. Boyett, 2008-NMSC-030, ¶ 15 12, 144 N.M. 184, 185 P.3d 355 (alte ration in original) (internal quotation marks and 16 citation omitted). 177 B. The MeadorsCognate Approach 1 In State v. Meadors , 121 N.M. 38, 44, 908 P.2d 731, 737 (1995), this Court 2 articulated the “cognate approach” a trial court should apply in considering a request 3 for a lesser included offense instruction. The court should first apply a definitional 4 elements test and give the instruction “when the statutory elements of the lesser 5 crime are a subset of the statutory elements of the charged crime.” Id. Prior to 6 Meadors , when a defendant requested an instruction, we applied only this strict 7 elements approach, in which the lesser o ffense cannot have any essential element 8 that is not included in the defi nition of the greater offense. See State v. Henderson , 9 116 N.M. 537, 541, 865 P.2d 1181, 1185 (1993), overruled by Meadors , 121 N.M. 10 at 46-47, 908 P.2d at 739-40. Meadorsrecognized that we should go beyond 11 theoretical possibilities to consider case r ealities in determining when a jury should 12 be given the option of acquitting on a greater offense and convicting on a lesser. 13 Under the Meadorscognate approach, even if the tr aditional strict elements test has 14 not been satisfied, the lesser offense instruction should also be granted if: 15 (1) the defendant could not have co mmitted the greater offense in the 16 manner described in the charging document without also committing 17 the lesser offense, and therefore notice of the greater offense 18 necessarily incorporates notice of the lesser offense; (2) the evidence 19 adduced at trial is sufficient to sustain a conviction on the lesser 20 offense; and (3) the elements that distinguish the lesser and greater 21 offenses are sufficiently in dispute such that a jury rationally could 228 acquit on the greater offense and convict on the lesser. 1 121 N.M. at 44, 908 P.2d at 737. 2 Although the holding in Meadorsaddressed a request for a lesser included 3 offense instruction by the State and not by the defendant, this Court also reasoned 4 that “the defendant’s right to such an instruction is at least as great as the State’s 5 right, and that the defendant is entitled to such an instruction if, under the facts of 6 a given case, the State would be so entitled.” Id. at 47, 908 P.2d at 740; see also 7 State v. Campos , 1996-NMSC-043, ¶ 21 n.2, 122 N.M. 148, 921 P.2d 1266 (citing 8 Meadorsfor the proposition that the cognate appr oach is also applicable when the 9 defendant requests a lesser in cluded offense instruction). 10 The application of the cognate approach in Meadorsitself is instructive. The 11 grand jury in Meadorsreturned a three-count indictment charging the defendant with 12 attempted first-degree murder, aggravated arson, and neg ligent use of an explosive. 13 See Meadors , 121 N.M. at 41, 908 P.2d at 734. Evidence at trial indicated the 14 defendant carried a cup of gasoline into the house of his victim, threw the gasoline 15 on the victim, struck a match, and set the victim on fire. Id. at 40-41, 908 P.2d at 16 733-34. The defendant claimed that he had spilled the gasoline on the victim by 17 accident and then lit the match in self defense. Id. At the close of the evidence, the 18 State requested and received over the defendant’s objection a jury instruction on 199 aggravated battery as a lesser included o ffense of attempted first-degree murder. Id. 1 at 41, 908 P.2d at 734. Meadorsfirst analyzed the statut ory elements of aggravated 2 battery: “an unlawful touching and either the use of a deadly weapon, great bodily 3 harm, or the likelihood of great bodily harm.” Id. We acknowledged that none of 4 those elements are statutory essentia l elements of attempted murder. Id. 5 Applying the cognate approach, however , we confirmed that a court should 6 “determine the need for lesser-included o ffense instructions by examining not only 7 the offense alleged in the charging instrume nt but also the evidence adduced at trial, 8 for it is that evidence which will ultimately confirm or invalidate the accuracy of the 9 accusatory pleading.” Id. at 44, 908 P.2d at 737. Ev en though the defendant was 10 charged with attempted murder and arson, in light of the combination of the facts 11 alleged in the charging document and the ev idence introduced at trial, a jury could 12 have concluded that the de fendant could have committed aggravated battery instead 13 of murder. See id. The charges in the indictmentall related to the same conduct, 14 and while no single charge contained all of the necessary elements for aggravated 15 battery, the combined charges did. Id. at 46, 908 P.2d at 739. The “substantial part 16 of First Degree Murder” alleged in the attempted murder count was the defendant’s 17 throwing gasoline on the victimand lighting the match. Id. at 45, 908 P.2d at 738. 18 The arson charge, which alleged the “defendant . . . did . . . start a fire . . . which 1910 caused great bodily harm to [the victim], ” fulfilled the “great bodily harm” element 1 of aggravated battery. Id. at 46, 908 P.2d at 739. Viewed as a whole, the indictment 2 would have put the defendant on notice that the State would allege at trial that he 3 unlawfully touched the victim and that th e unlawful touching resulted in great bodily 4 harm. Id. 5 Meadorsalso noted that it was reasonably po ssible that the lesser charge could 6 have been the greatest charge the jury might unanimously have found established 7 beyond a reasonable doubt. Id. at 46-47, 908 P.2d at 739-40. “[B]ased upon the 8 allegations in the indictment and the evidence adduced at trial, a jury could 9 reasonably conclude that [the defendant ] had intended to throw gasoline on [the 10 victim] and ignite him, but that he lacked the intent to take [the victim]’s life.” Id. 11 at 44, 908 P.2d at 737. Viewed in this way by a jury, the evidence would have 12 supported a conviction of aggravated battery but not of attempted murder. Id. This 13 Court accordingly upheld the district court’ s decision to instruct the jury on the 14 uncharged lesser included offens e of aggravated battery. Id. 15 Similar applications of the cognateapproach have been employed in 16 subsequent cases. See State v. Neatherlin , 2007-NMCA-035, ¶ 1, 141 N.M. 328, 17 154 P.3d 703 (reversing for failure to instruct on the lesser misdemeanor offense of 18 aggravated battery in a case charging fe lony aggravated battery with a deadly 1911 weapon); State v. Muñoz , 2004-NMCA-103, ¶ 1, 136 N.M. 235, 96 P.3d 796 1 (reversing for failure to instruct on the lesser offense of DWI in a case charging 2 reckless driving resulting in great bodily harm); State v. Romero , 1998-NMCA-057, 3 ¶ 2, 125 N.M. 161, 958 P.2d 119 (reversing fo r failure to instruct on the lesser 4 misdemeanor offense of crim inal trespass where defendant was charged with felony 5 aggravated burglary). 6 The cognate approach’s emphasis on case realities instead of hypothetical 7 theories alone means that a lesser offens e instruction is not justified where the 8 evidence is so overwhelming that no rational juror could view the evidence in such 9 a way as to acquit on the gr eater charge and convict on the lesser charge. The 10 defendant in State v. Lente , 2005-NMCA-111, 138 N.M. 312, 119 P.3d 737, was 11 convicted of four counts of criminal sexual penetration of a minor, among other 12 crimes, based on the victim’s testimony that the defendant had inserted his finger all 13 the way inside her vagina more than fifty times. Id. ¶¶ 15-16. The defendant 14 requested, but was denied, le sser included offense instructions for criminal sexual 15 contact of a minor. Id. ¶¶ 14-16. Applying the third prong of the Meadorstest, the 16 Court of Appeals held that, because th ere was no ambiguity in the evidence that 17 could lead any rational juror to acquit on penetration yet convict on contact alone, 18 denial of the defendant’s reque sted instruction was proper. Id. ¶¶ 16, 19; see also 1912 State v. Juan , 2010-NMSC-041, ¶ 1, 148 N.M. 747, 242 P.3d 314 (upholding the 1 denial of a lesser instruction where the conduct underlying the greater charge and the 2 conduct that would have s upported the lesser included o ffense instruction were not 3 the same). 4 With those principles in mind, we now apply the analysis required by the 5 cognate approach to th e record in this case. 6 C. Application of the Cognate Approach 7 In this case, the district court be gan its analysis by applying the pre-Meadors 8 strict elements test, reasoning that the lesser offense of statutory rape “is not 9 necessarily included in the greater” b ecause “the second degree offense can be 10 committed without also committing the . . . fourth degree offense.” “In the lesser 11 offense, the victim must be at leas t 13 but less than 16 years old. Thus, 12 hypothetically, if the victim is over 16 year s of age, 17 years old and up to 18 years 13 of age, the greater offense could be committed without also committing the lesser 14 offense.” This kind of theoretical analysis that ignores the realities of a particular 15 case was exactly what led this Court to re ject the “overly technical inflexibility of 16 the strict elements approach” and adopt the more realistic cognate approach in 17 Meadors , 121 N.M. at 44, 908 P.2d at 737. It istheoretically possible that Victim 18 could have been seventeen years old instead of thirteen, but th e jury knew she was 1913 not. 1 New Mexico precedent recognizes the nontechnical approach required by 2 Meadorsin analyzing the allegations of th e charging document. As the Court of 3 Appeals has specifically recognized, “thecharging document does not take on some 4 talismanic quality under Meadors , but merely serves as a reliable indicator of the 5 State’s theory for purposes of determini ng whether Defendant was afforded proper 6 notice of the charges against him.” State v. Darkis , 2000-NMCA-085, ¶ 17, 129 7 N.M. 547, 10 P.3d 871. Because the fair no tice function of a charging document is 8 less important in evaluating a defendant’s request fo r a lesser included offense 9 instruction, “a defendant’s right to a lesser-included offens e instruction [under 10 Meadors ] is effectively greater than the State’s.” Id. ¶¶ 1, 16 (reversing conviction 11 for failure to instruct on misdemeanor possession of drug paraphernalia in a case 12 where the defendant was charged with felony possession of cocaine, although the 13 indictment said nothing about the cocaine being found inside an item of 14 paraphernalia). In this case, there c ould have been no doubt that the State was 15 relying from the beginning on its theory thatDefendant used his position as an adult 16 authority figure, who in fact was at leas t four years older than thirteen-year-old 17 Victim, to coerce her into sexual intercour se. The notice concerns in the first 18 Meadorsfactor were at least as clearly satisfied here as they were in Darkis

. 1914 The district court was legally correct in its acknowledgment of the second 1 Meadorsfactor, the sufficiency of the eviden ce to sustain a conviction on the lesser 2 offense, but was simply mistaken about the evidence in the r ecord in finding that 3 “the evidence adduced at trial is not suffi cient to sustain a conviction on the lesser 4 offense. The defendant’s age was not addu ced at trial. The age difference required 5 by the lesser offense has not been accomplis hed in evidence.” The trial transcript 6 demonstrates that evidence had been introduced showing Victim’s age as thirteen 7 and Defendant’s age as over forty. The ev idence clearly was sufficient to sustain a 8 conviction of statutory rape in that it overwhelmingly would have supported findings 9 that Defendant perpetrated se xual penetration on “[1] a child thirteen to sixteen years 10 of age [2] when the pe rpetrator is at least eighteen year s of age [3] and is at least four 11 years older than the child [4] and not th e spouse of that child.” Section 30-9- 12 11(F)(1). 13 The district court briefly mentioned the third Meadorsfactor, that “the 14 elements that distinguish the lesser and gr eater offenses are sufficiently in dispute 15 such that a jury rationally could acquit on the greater offense and convict on the 16 lesser,” but dismissed the factor with a brief conclusory statement that it had not 17 been met in this case. Meadors , 121 N.M. at 44, 908 P.2d at737. The application 18 of this factor does not depend on the re lative weight of evidence supporting the 1915 greater and lesser offenses. The result in Meadorsitself might well have been 1 different if this Court had weighed the re lative plausibility of the State’s primary 2 theory, that the defendant had intentionally thrown gasoline and a lighted match on 3 the victim with an intent to kill or do great bodily harm, against the defendant’s 4 theory on which the State requested a le sser offense instruction, that he had 5 accidentally poured the gasoline on the vi ctim and only threw the match on him in 6 self defense. Instead, we held that the St ate had a right to give the jury the option 7 of convicting of a lesser offense in the event the State’s theory failed to persuade all 8 twelve jurors beyond a reasonable doubt. Th e accused has at least as much right as 9 the State to have a jury exercise its c onstitutional role of deciding these issues of 10 guilt and innocence. See Darkis , 2000-NMCA-085, ¶ 20 (holding that it is the right 11 of a Defendant “to allow the jury the ability to make a c hoice, that is, as between a 12 lesser and a greater charge”). 13 The evidence in this case would have supported a conviction for either CSP 14 II or CSP IV. The only question remaining is whether a jury rationally could have 15 harbored reasonable doubt about either of the two elements distinguishing 16 Defendant’s culpability under the CSP II statute: his position of authority and his 17 use of coercion. While th e evidence was certainly suffi cient to support findings on 18 those two elements beyond a reasonable doubt, it is also possible that the jury might 1916 not have been persuaded that Victim was coerced into having sex, given her 1 testimony that she did not know why she consented to sex w ith Defendant, her 2 testimony about her confusion, her keeping the activity secret, and her diary entry 3 that her sister “caught us.” Even view ing Defendant as de facto head of the 4 household, it is within the realm of reas onable possibilities that the jury could have 5 had a doubt as to whether the proof estab lished that the sexual acts occurred as a 6 result of coercion by Defendant as an authority figure and would not have occurred 7 if Defendant had been merely a neighbor or visitor or other adult whom Victim 8 knew. We must take into account that the State had the burden of proof on both 9 those elements and that the jury was re quired by law to resolve all reasonable doubts 10 in favor of Defendant. UJI 14-5060 NMRA(“Presumption of innocence; reasonable 11 doubt; burden of proof”). Under either vi ew of the evidence, Defendant’s conduct 12 was reprehensible and felonious, but onereason a Defendant may want a lesser 13 included offense instruction is because of a concern that a jury might otherwise be 14 inclined to resolve doubts in favor of guilt on the greater offense if the only 15 alternative for the jury is to acquit a culp able defendant complete ly. As this Court 16 recognized in State v. Reynolds , 17 [t]o argue that a finding by the jury that the defendant [was guilty of 18 the greater offense] precludes any possibility that they [would have 19 convicted of the lesser] begs the question. The jury was simply not 2017 given the choice. We do not cons ider this to be harmless and 1 non-prejudicial where the evidence would support such a choice by the 2 jury. 3 98 N.M. 527, 528-29, 650 P.2d 811, 812-13 (1982) (reversing a first-degree murder 4 conviction for failure to give a le sser included instruction on voluntary 5 manslaughter). 6 III. CONCLUSION 7 The district court erred when it refused to instruct the jury on CSP IV. 8 Accordingly, we reverse De fendant’s convictions of C SP II and remand this matter 9 to the district court for appropriate acti on. The State may retry Defendant on the 10 CSP II counts, for which there is substantial evidence. In all other respects, the 11 memorandum opinion of the Court of Appeals shall constitute the law of the case. 12 IT IS SO ORDERED. 13

___________________________________ 14 CHARLES W. DANIELS, Chief Justice 1518 WE CONCUR: 1

___________________________________ 2 PATRICIO M. SERNA, Justice 3

___________________________________ 4 PETRA JIMENEZ MAES, Justice 5

___________________________________ 6 RICHARD C. BOSSON, Justice 7

___________________________________ 8 EDWARD L. CHÁVEZ, Justice 9