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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-026

Filing Date: March 9, 2018

Docket No. S-1-SC-36000

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

OSCAR ARVIZO,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI

Briana H. Zamora, District Judge

Hector H. Balderas, Attorney General

Laura Erin Horton, Assistant Attorney General 

Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender

Steven James Forsberg, Assistant Appellate Defender

Santa Fe, NM

for Respondent

OPINION

MAES, Justice.

{1} In this case we consider whether a child victim’s opposition to sexual contact by a

relative, after the contact already occurred, negates the element of coercion. Defendant

Oscar Arvizo was found guilty of two counts of criminal sexual contact of a minor (CSCM)

by a person in a position of authority—one in the second degree and one in the third degree.

See NMSA 1978, § 30-9-13(B)(2)(a), (C)(2)(a) (2004). The Court of Appeals reversed the

two convictions, holding that the evidence failed to prove that Defendant “used his position

of authority to coerce A.B. to submit to criminal sexual contact[s]” because “when both
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sexual contacts took place without warning, A.B. immediately pushed Defendant away.”

State v. Arvizo, No. 33,697, mem. op. ¶¶ 24-25 (N.M. Ct. App. June 28, 2016) (nonprecedential).

{2} The State sought further review of a single issue: whether “the Court of Appeals

erroneously [held] that a child’s physical resistance after the fact negates other evidence for

the element of coercion by a person in a position of authority in a conviction for CSCM.”

We granted certiorari under Rule 12-502 NMRA. We reverse the Court of Appeals and

reinstate the convictions. We remand the case back to the Court of Appeals to consider any

remaining appellate issues presented by Defendant.

I. BACKGROUND

{3} In December 2009, Valerie Barreras and her husband Anthony Barreras had two

daughters—A.B., then thirteen years old, and her younger sister S.B., then six years old.

Defendant was married to Valerie’s sister Darlene, making him A.B.’s uncle. Defendant and

Darlene had four young children of their own. Valerie and Darlene were very close, and the

two families often spent time together at the Barreras house, at social events, and at Valerie’s

and Darlene’s parents’ house.

{4} Defendant’s family went to dinner with the Barreras family on a Friday evening that

December to celebrate a bonus Anthony had received earlier that day. The families returned

to the Barreras home for a sleepover as they had often done in the past.

{5} Shortly after the families returned home from dinner, A.B. accompanied S.B. to the

bathroom. In the hallway leading to the bathroom, they encountered Defendant, who

grabbed A.B.’s buttock as they passed. A.B. was surprised and pushed his hand away but

said nothing as she and S.B. continued on to the bathroom. Defendant laughed afterward.

A.B. gathered herself in the bathroom, came out, and said nothing about what had happened.

{6} Later that evening, the four adults went to bed and four of the children eventually fell

asleep on a pull-out couch in the living room as they had many times before. At some point

that night, A.B. awoke and discovered Defendant hovering over her with his hand directly

on the “outer lip” of her “private area.” Her pajama pants, she found, had been lowered to

her mid-thigh. Reacting, she exclaimed, “What are you doing?” and “Get off me.”

Defendant responded by whispering in her ear, “I’m looking for your pussy, so I can stick

my finger in it.” A.B. pushed Defendant off, and Defendant returned to the bedroom he and

Darlene were sharing that night. A.B. ran to her own bedroom. She locked the door, went

to her closet, ripped up her pajama pants, cried for a time, and eventually fell asleep with the

lights on.

{7} Early the next morning, Defendant walked into A.B.’s bedroom and asked A.B., “Are

you going to tell anybody?” A.B.’s father, Anthony, passing through the hallway at the time,

overheard Defendant broaching the question. Anthony asked, “Tell anybody about what?”
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Defendant quickly fabricated a story, explaining he had accidentally tripped A.B. that night,

she had hurt her knee, and he had been hoping to ensure nobody thought he had intended to

cause the injury. Anthony observed A.B. to see if Defendant’s story and explanation were

true, and A.B. lowered her head and nodded in agreement.

{8} At first, A.B. resolved to keep the events of that evening to herself. The two families

were very close. A.B. testified that she was reluctant to upset the dynamic, and she was

afraid nobody would believe her if she said anything. Eventually, however, she began

cutting herself, and the cutting soon became evident to her parents.

{9} After a Father’s Day barbecue in June 2010, more than six months after the

December sleepover, Anthony, alarmed about the cutting, took A.B. to a hospital. As they

sat in the parking lot before entering the hospital, they had a long and emotional

conversation as Anthony attempted to identify the source, or sources, of A.B.’s behavior.

After much initial reluctance, A.B. eventually revealed the abuse to her father.

{10} Defendant was charged in an amended grand jury indictment with four counts: In

Count 1, CSCM of a child thirteen to eighteen years old in the second degree by a person of

authority, for the unclothed contact with the vagina; and in Count 3, CSCM in the third

degree by a person of authority for the clothed contact with the buttock. Both the CSCM

counts further alleged that “[D]efendant was a person who by reason of his relationship to

A.B. was able to exercise undue influence over A.B. and used this authority to coerce A.B.

to submit to sexual contact,” and cited Section 30-9-13(A). In Count 2, Defendant was

charged with attempted criminal sexual penetration in the second degree of a child thirteen

to eighteen years old; and in Count 4, with bribery or intimidation of a witness. See NMSA

1978, §§ 30-28-1 (1963), 30-9-11 (2009), 30-24-3(A)(3) (1997).

{11} After a six-day trial, a jury convicted Defendant of all four charges. The district

judge who had presided over the trial recused himself from the case two days after the trial.

After post-trial motions, a new district judge vacated the conviction for attempted criminal

sexual penetration on double jeopardy grounds but left the remaining convictions intact. The

district court sentenced Defendant to twenty-four years imprisonment, fourteen years of

which were suspended, for an actual sentence of ten years.

{12} Defendant appealed, advancing ten claims, but the Court of Appeals only addressed

three: that his right to a speedy trial was violated, that the evidence was insufficient to

support the conviction on either count of CSCM, and that the evidence was insufficient to

support the conviction for bribery or intimidation of a witness. Arvizo, No. 33,697, mem.

op. ¶ 2. The Court of Appeals held that defendant failed to establish that the nearly thirty-six

month delay caused him prejudice, affirmed the conviction for witness intimidation, but

vacated both CSCM convictions upon insufficient evidence and remanded the case for entry

of judgment and sentence on two counts of simple battery as proven lesser included offenses.

Id. ¶¶ 12-13, 17, 24-25, 34.
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II. STANDARD OF REVIEW

{13} When examining a sufficiency-of-the-evidence claim, we consider “whether, after

reviewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” State

v. Treadway, 2006-NMSC-008, ¶ 7, 139 N.M. 167, 130 P.3d 746 (internal quotation marks

and citation omitted). The Court views the evidence in the light most favorable to the guilty

verdict and indulges all reasonable inferences and resolves all conflicts in the evidence in

favor of the verdict. Id. The Court will not reweigh the evidence or substitute its judgment

for the judgment of the fact-finder. Id. To the extent the challenge here implicates proper

construction of the CSCM statute, however, the Court’s review is de novo. See, e.g., State

v. Myers, 2009-NMSC-016, ¶ 13, 146 N.M. 128, 207 P.3d 1105 (setting forth standards of

review for a case involving both a sufficiency claim and an issue of statutory construction).

III. DISCUSSION

{14} Section 30-9-13(A) defines CSCM as “the unlawful and intentional touching of or

applying force to the intimate parts of a minor” including “the primary genital area, groin,

buttocks, anus or breast.” Second-degree CSCM occurs when the perpetrator touches the

unclothed intimate parts of a child thirteen to eighteen years of age and is “in a position of

authority over the child and uses that authority to coerce the child to submit.” Section 30-9-

13(B)(2)(a). Third-degree CSCM is identical to second-degree CSCM except that the child

victim is clothed. See § 30-9-13(C). The term “position of authority” is defined as “that

position occupied by a parent, relative, household member, teacher, employer or other

person who, by reason of that position, is able to exercise undue influence over a child.”

NMSA 1978, § 30-9-10(E) (2005).

{15} As to the element of coercion, the jury was instructed that it must find Defendant was

“a relative who by reason of [his] relationship to [A.B.] was able to exercise undue influence

over [A.B.] AND used this authority to coerce [A.B.] to submit to sexual contact.” See UJI

14-926 NMRA. In State v. Gardner, the Court of Appeals held that

[c]oercion for the purposes of CSCM occurs when a defendant occupies a

position which enables that person to exercise undue influence over the

victim and that influence must be the means of compelling submission to the

contact. . . . [S]uch coercion might take many forms but is less overtly

threatening than physical force or threats.

2003-NMCA-107, ¶ 22, 134 N.M. 294, 76 P.3d 47 (second alteration and omission in

original) (internal quotation marks and citation omitted).

{16} The State argues that under the statutory definition of “force or coercion,” a sleeping

victim is necessarily a coerced victim. Section 30-9-10(A)(4) defines “force or coercion”

as “the perpetration of . . . criminal sexual contact when the perpetrator knows or has reason
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to know that the victim is . . . asleep . . . . Physical or verbal resistance of the victim is not

an element of force or coercion.” Therefore, the State contends that the element of coercion

was met when Defendant touched A.B. as she slept and that her resistance afterward should

not have been considered.

{17} The CSCM statute enumerates alternative methods of committing the offense, with

each method having slightly different elements to be proven beyond a reasonable doubt. See

§ 30-9-13. For example, the commission of the offense when the perpetrator uses “force or

coercion that results in personal injury to the child” is one form or method of second-degree

CSCM. See § 30-9-13(B)(2)(b). In this case, Defendant was charged with committing the

“position of authority” method of CSCM in the second degree. See § 30-9-13(B)(2)(a). The

State asks this Court to apply the definition for an element of a crime Defendant was not

alleged to have committed. The committee commentary for UJI 14-926—the instruction

given to the jurors— specifically states that the statutory definition of “force or coercion”

that the State relies on “has no application” to the “position of authority” method of

committing the crime of CSCM. Because Defendant was not charged with “force or

coercion” CSCM and the commentary indicates that element has no application to “position

of authority” CSCM, the definition of “force or coercion” is not applicable here.

{18} The State next argues that the Court of Appeals incorrectly analogized this case to

State v. Segura, 2002-NMCA-044, 132 N.M. 114, 45 P.3d 54. In Segura, the defendant

made sexually explicit overtures toward his thirteen-year-old niece and grabbed the child’s

hand in an attempt to make the child touch his groin. Id. ¶ 4. The child successfully resisted

the defendant’s attempts and no sexual contact occurred. Id. The defendant was tried and

convicted of two counts of attempted criminal sexual contact of a minor (position of

authority), under NMSA 1978, Section 30-9-13(A)(2)(a) (1991) and Section 30-28-1.

Segura, 2002-NMCA-004, ¶ 5. The defendant appealed on the grounds of double jeopardy

and insufficient evidence. Id. ¶ 7, 10.

{19} The Court of Appeals noted that although the defendant was charged with attempted

CSCM, the jury was not properly instructed “in a manner [that] insure[d] all elements of the

underlying crime were properly placed within the context of the initiatory crime of attempt.”

Id. ¶ 16. “Thus . . . the jury was required to determine beyond a reasonable doubt that [the

d]efendant by reason of his position of authority was actually able to exercise undue

influence over [the c]hild and succeeded in forcing or coercing her to submit to sexual

contact through the use of that position of authority.” Id. ¶ 13. Because there was no

evidence the defendant actually coerced or caused the child to submit to sexual contact, the

Court correctly concluded that “there was insufficient evidence to convict [the d]efendant

as a person in a position of authority . . . under the law of the case as given to the jury.” Id.

¶ 17 (citation omitted). Importantly, the Segura Court stated that “[h]ad the jury been

properly instructed, the jury would have been on solid grounds to draw reasonable inferences

from the circumstances to convict [the d]efendant of attempt to commit CSCM (position of

authority).” Id. ¶ 16. The outcome of Segura hinged more upon the jury instructions than

the facts surrounding the child’s resistance against the attempted CSCM.
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{20} Nevertheless, the Court of Appeals found Segura most instructive to this case. See

Arvizo, No. 33,697, mem. op. ¶ 23. The Court of Appeals correctly identified that the critical

fact in Segura was “the child . . . successfully resisted the defendant’s attempts to force

sexual contact” but then concluded that the outcome in Segura was premised on the child’s

resistance rather than the particularities of the jury instructions. Id. This mischaracterization

of the holding of Segura leads the Court of Appeals to conclude that A.B. was not coerced

because, like the child in Segura, she immediately resisted. Arvizo, No. 33,697, mem. op.

¶ 24.

{21} A person in a position of authority does not have to use threats or physical force to

coerce a child to submit to sexual contact. See Gardner, 2003-NMCA-107, ¶ 22. A child

can be coerced through subtle social or domestic pressure on the part of the perpetrator, but

a perpetrator does not have to ultimately influence the child’s state of mind such that the

child passively acquiesces and does not resist. Id. The exercise of undue influence resulting

in the submission to sexual contact can be inferred by a child’s reluctance or fear to report

the sexual contact.

{22} The Court of Appeals’ emphasis on A.B.’s resistance to the exclusion of other

evidence is misplaced. Though a child’s resistance may have some relevance to the element

of coercion, the primary focus of the analysis should be on the perpetrator’s actions, not the

victim’s. See UJI 14-926 Comm. cmt. (“The meaning of ‘coerce’ in this offense is uniquely

related to the status of the defendant.”).

{23} In this case, there was sufficient evidence presented at trial for the jury to find that

Defendant exercised undue influence over A.B. such that she submitted to sexual contact on

both occasions. The evidence established that Defendant was A.B.’s relative and that

Defendant’s family slept over approximately once a month at A.B.’s house. A.B. testified

she felt pressure not to interfere with the family dynamics given the close relationship

between her mother and Darlene, Defendant’s wife. There was evidence that Defendant had

some degree of authority over A.B. and that she felt she had to show Defendant proper

respect. A.B. testified Defendant could tell her “to be quiet,” and that he, as “an elder,”

could tell her not to misbehave. Valerie indicated to an investigator that Defendant was “a

parent figure” when he was in the Barreras home, that the children knew they had to listen

to him, and that they knew they had to respect him.

{24} The nature of the relationship between Defendant and A.B and A.B.’s testimony that

she was afraid of what would happen if she disclosed the abuse is sufficient for a jury to

infer Defendant was in a position of authority over the child and used that authority to coerce

the child to submit to sexual contact. Gardner, 2003-NMCA-107, ¶ 38 (holding “the jury

[may] infer a connection between [the d]efendant’s position of authority and his sexual

contact with the victims, which is sufficient to infer the existence of coercion”). We hold

that coercion by a person in a position of authority does not require an affirmative forceful

act or a warning that the sexual contact is about to happen. Defendant had committed CSCM

in the second degree when he touched A.B.’s unclothed genital area and had committed
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CSCM in the third degree when he touched her clothed buttock. Accordingly, there was

sufficient evidence that Defendant coerced A.B. and this was not negated because she

pushed Defendant’s hand away after each sexual contact.

IV. CONCLUSION

{25} We reverse the Court of Appeals and reinstate Defendant’s convictions for secondand third-degree CSCM. We remand the case to the Court of Appeals to decide any

remaining unaddressed appellate issues raised by Defendant.

{26} IT IS SO ORDERED.

____________________________________

PETRA JIMENEZ MAES, Justice

WE CONCUR:

___________________________________

JUDITH K. NAKAMURA, Chief Justice

___________________________________

EDWARD L. CHÁVEZ, Justice

___________________________________

CHARLES W. DANIELS, Justice

___________________________________

BARBARA J. VIGIL, Justice