2023 New Mexico Statutes › Chapter 30 - Criminal Offenses › Article 9 - Sexual Offenses › Section 30-9-13 - Criminal sexual contact of a minor.

A. Criminal sexual contact of a minor is the unlawful and intentional touching of or applying force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one's intimate parts. For the purposes of this section, "intimate parts" means the primary genital area, groin, buttocks, anus or breast.
B. Criminal sexual contact of a minor in the second degree consists of all criminal sexual contact of the unclothed intimate parts of a minor perpetrated:
(1) on a child under thirteen years of age; or
(2) on a child thirteen to eighteen years of age when:
(a) the perpetrator is in a position of authority over the child and uses that authority to coerce the child to submit;
(b) the perpetrator uses force or coercion that results in personal injury to the child;
(c) the perpetrator uses force or coercion and is aided or abetted by one or more persons; or
(d) the perpetrator is armed with a deadly weapon.
Whoever commits criminal sexual contact of a minor in the second degree is guilty of a second degree felony for a sexual offense against a child and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a minimum term of imprisonment of three years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment pursuant to the provisions of this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the provisions of Sections 31-18-17, 31-18-25 and 31-18-26 NMSA 1978.
C. Criminal sexual contact of a minor in the third degree consists of all criminal sexual contact of a minor perpetrated:
(1) on a child under thirteen years of age; or
(2) on a child thirteen to eighteen years of age when:
(a) the perpetrator is in a position of authority over the child and uses this authority to coerce the child to submit;
(b) the perpetrator uses force or coercion which results in personal injury to the child;
(c) the perpetrator uses force or coercion and is aided or abetted by one or more persons; or
(d) the perpetrator is armed with a deadly weapon.
Whoever commits criminal sexual contact of a minor in the third degree is guilty of a third degree felony for a sexual offense against a child.
D. Criminal sexual contact of a minor in the fourth degree consists of all criminal sexual contact:
(1) not defined in Subsection C of this section, of a child thirteen to eighteen years of age perpetrated with force or coercion; or
(2) of a minor perpetrated on a child thirteen to eighteen years of age when the perpetrator, who is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and who is at least eighteen years of age and is at least four years older than the child and not the spouse of that child, learns while performing services in or for a school that the child is a student in a school.
Whoever commits criminal sexual contact in the fourth degree is guilty of a fourth degree felony.
History:
1953 Comp., § 40A-9-23, enacted by Laws 1975, ch. 109, § 4; 1987, ch. 203, § 2; 1991, ch. 26, § 3; 2001, ch. 161, § 3; 2003 (1st S.S.), ch. 1, § 4.
ANNOTATIONS
Cross references.
— For sexual exploitation of children,
see
30-6A-3 NMSA 1978.
For provision that testimony of victim hereunder need not be corroborated,
see
30-9-15 NMSA 1978.
For limitations on testimony regarding victim's past sexual conduct,
see
30-9-16 NMSA 1978.
For the Sex Offender Registration and Notification Act,
see
Chapter 29, Article 11A NMSA 1978.
The 2003 (1st S.S.) amendment,
effective February 3, 2004, designated the formerly undesignated introductory language as Subsection A, inserted present Subsection B, redesignated former Subsections A and B as present Subsections C and D, added "for a sexual offense against a child" at the end of Subsection C, and substituted "C" for "A" in Paragraph (1) of Subsection D.
The 2001 amendment,
effective July 1, 2001, inserted "of a minor" in the last paragraph in Subsection A; and in Subsection B inserted the Paragraph (1) designation and added Paragraph (2).
The 1991 amendment,
effective June 14, 1991, rewrote the first sentence which read "Criminal sexual contact of a minor is unlawfully and intentionally touching or applying force to the intimate parts of a minor other than one's spouse, or unlawfully and intentionally causing a minor other than one's spouse, to touch one's intimate parts"; in Paragraph (2) of Subsection A, substituted "the perpetrator uses" for "by the use of" at the beginning of subparagraphs (b) and (c) and made related stylistic changes; and made a stylistic change in the second sentence of the section.
The 1987 amendment,
effective June 19, 1987, inserted "not defined in Subsection A of this section" in the first paragraph of Subsection B.
Second degree criminal sexual contact of a minor.
— Second degree criminal sexual contact of a minor as defined in Subsection B of Section 30-9-13 NMSA 1978 is limited to instances in which a defendant touches or applies force to the unclothed intimate parts of a minor.
State v. Trujillo
, 2012-NMCA-092, 287 P.3d 344, cert. denied, 2012-NMCERT-008.
Sufficient evidence of third degree criminal sexual contact of a minor.
— Where defendant caused the ten-year-old victim to touch defendant's unclothed penis while in bed; the trial court instructed the jury using the language of the uniform jury instruction in effect at the time for third degree criminal sexual contact of a minor; and defendant was found guilty of and was sentenced for second degree criminal sexual contact of a minor, defendant's conduct was a third degree felony under Subsection C, not a third degree felony under Subsection B.
State v. Trujillo
, 2012-NMCA-092, 287 P.3d 344, cert. denied, 2012-NMCERT-008.
Sufficient evidence.
— Where defendant, who was the spiritual leader of a religious group that lived together, was convicted of criminal sexual contact of a minor based on an unclothed experience with a teenage child who was a member of defendant's religious community; defendant claimed that the experience was a purely spiritual healing experience; the teenage child visited defendant alone and lay in bed naked with defendant; and the child testified that defendant kissed the child on the breast, there was sufficient evidence to support defendant's conviction of criminal sexual contact of a minor.
State v. Bent
, 2013-NMCA-108, cert. denied, 2013-NMCERT-012.
Where defendant was charged with two counts of criminal sexual contact of a minor that occurred between January 1, 2009 and February 12, 2009; most of the evidence related to an incident that occurred on February 11, 2009; the victim testified that defendant had touched the victim inappropriately prior to February 11, 2009; defendant testified on cross-examination that inappropriate things had been going on between defendant and the victim about for about a week; and a police officer testified that defendant admitted touching the victim inappropriately twice within the last week, there was sufficient evidence for the jury to conclude that defendant inappropriately touched the victim on February 11, 2009 and on another occasion between January 1, 2009 and February 12, 2009.
State v. Garcia
, 2013-NMCA-064, 302 P.3d 111, cert. denied, 2013-NMCERT-004.
Where the evidence showed that the defendant and the victim went to the trash dump two to three times per month during the period from October 2001 through May 2005; that the defendant sexually molested the victim on each trip when the defendant and the victim were alone; and that although the defendant's step-daughter accompanied the defendant and the victim to the trash dump on some occasions, there was no evidence that the step-daughter accompanied the defendant and the victim to the trash dump during the period from October 2001 through March 2002, the evidence was sufficient to support the state's charges of one count of criminal sexual contact of a minor for each month between October 2001 and March 2002.
State v. Gipson
, 2009-NMCA-053, 146 N.M. 202, 207 P.3d 1179.
Where the victim testified that defendant touched the victim's vulva and patted the victim's buttocks; the touching left the victim upset and sad; when confronted with accusations of improper sexual contact by one parent, defendant apologized, and when confronted by the victim's other parent defendant said that defendant had been forgiven, sufficient evidence supported defendant's convictions for criminal sexual contact with a minor.
State v. Kerby
, 2005-NMCA-016, 138 N.M. 232, 118 P.3d 740,
aff'd
, 2007-NMSC-014, 141 N.M. 413, 156 P.3d 704.
Where defendant was convicted of numerous counts of criminal sexual contact of a minor perpetrated on his eight-year-old daughter and four-year-old stepdaughter; the four-year-old victims' testimony that defendant twice forced her to place her hand on defendant's penis, which was corroborated by the eight-year-old child victim, the evidence was sufficient to support convictions for criminal sexual contact of a minor.
State v. Tapia
, 2015-NMCA-048, cert. denied, 2015-NMCERT-004 and cert. denied, 2015-NMCERT-004.
Sufficient evidence of attempt to commit second-degree criminal sexual contact of a minor.
— Where defendant was charged with attempt to commit second-degree criminal sexual contact of a minor, and where the child victim testified at trial that defendant entered the room where she was sleeping, lifted the blanket off her, pulled down her pajama pants and underwear, pulled down his own pants, and rubbed her arm while masturbating, then walked to the other side of the bed, laid down next to her, and continued masturbating while rubbing her upper ribs over her clothing, and further testified that she was afraid that defendant was going to touch her private parts, there was substantial evidence to support defendant's conviction for attempted criminal sexual contact of a minor.
State v. Notah
, 2022-NMCA-005, cert. denied.
The district court did not err in denying defendant's proposed jury instruction for attempt to commit third-degree CSCM as a lesser included offense.
— Where defendant was charged with attempt to commit second-degree criminal sexual contact of a minor (CSCM), and where the child victim testified at trial that defendant entered the room where she was sleeping, lifted the blanket off her, pulled down her pajama pants and underwear, pulled down his own pants, and rubbed her arm while masturbating, then walked to the other side of the bed, laid down next to her, and continued masturbating while rubbing her upper ribs over her clothing, and further testified that she was afraid that defendant was going to touch her private parts, and where defendant requested a jury instruction for a lesser included offense of attempt to commit third-degree CSCM, claiming that the evidence tended to better prove an intent to touch the child's breast area, which remained clothed, thus supporting a third-degree rather than a second-degree charge, the district court did not err in denying defendant's proposed jury instruction, because the elements of the crime differ in such a way that each may be committed without necessarily committing the other. Third-degree CSCM is not a lesser included offense of second-degree CSCM, because the element distinguishing between the two degrees of CSCM under thirteen years of age is whether the child victim's intimate part was clothed or unclothed, and in this case there was no reasonable view of the evidence that would support a jury finding that defendant partially undressed the child in an attempt to touch a clothed intimate part of her body but not an unclothed intimate part.
State v. Notah
, 2022-NMCA-005, cert. denied.
Position of authority.
— Where the defendant and the victim were neighbors; the victim's mother worked with the defendant and the families were good friends; the families did things together; the defendant fixed things at the victim's house and took the trash to the trash dump as requested by the victim's mother; the victim thought of the defendant as a father figure; the victim spent the night at the defendant's house on a regular basis; the victim's mother entrusted the defendant with the victim's care; the defendant allowed the victim to earn money at the defendant's place of business, the jury could reasonably conclude that the defendant was in a position of authority over the victim.
State v. Gipson
, 2009-NMCA-053, 146 N.M. 202, 207 P.3d 1179.
Where the minor victims believed that the defendant, who was a massage therapist, was a professional healthcare provider; the victims had never had a massage; the defendant told the victims that a breast and buttock massage was part of a normal body massage, the defendant was in a position of authority over the victims. State v. Haskins, 2008-NMCA-086, 144 N.M. 287, 186 P.3d 916, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677.
"Position of authority" interpreted.
— In 30-9-10(E) NMSA 1978, the legislature has designated certain relationships with a child that represent a "position of authority," and the language "who, by reason of that position, is able to exercise undue influence over a child" does not pertain to each of the types of position of authority listed in the definition. Under the definition of "position of authority", a household member is presumed to be able to exercise undue influence over a child such that additional proof concerning a perpetrator's use or possession of such authority is not required.
State v. Erwin
, 2016-NMCA-032, cert. denied.
Where defendant, who was charged with criminal sexual contact of a child thirteen to eighteen years of age, did not dispute the evidence that he was a household member, but claimed that the state failed to prove that he used this position of authority to coerce the child to submit to sexual contact, the state was not required to prove that defendant, by reason of his position as a household member, was able to exercise undue influence over the child, because the legislature has designated certain relationships with a child, including a household member, that represent a position of authority for purposes of prosecution under 30-9-13 NMSA 1978.
State v. Erwin
, 2016-NMCA-032, cert. denied.
Trustworthiness doctrine.
—- The mere fact that defendant made multiple confessions or that he was suffering from Huntington's Disease when he made the confessions that he had inappropriately touched his daughter, who was two year old, and had made her touch him was not sufficient to establish the trustworthiness of his statements which the state relied upon to establish the corpus delicti of criminal sexual contact of a minor.
State v. Weisser
, 2007-NMCA-015, 141 N.M. 93, 150 P.3d 1043.
The mere fact that defendant's daughter, who was two years old, exhibited two of sixteen behaviors that could be corroborative of sexual abuse was not sufficient to establish the trustworthiness of the defendant's statements that he had inappropriately touched his daughter and had made her touch him which the state relied upon to establish the corpus delicti of criminal sexual contact of a minor.
State v. Weisser
, 2007-NMCA-015, 141 N.M. 93, 150 P.3d 1043.
Denial of severance motion.
— Where the trial court denied defendant's motion to sever the counts in the indictment relating to each of two female victims, with the result that the jury heard and was allowed to consider the evidence pertaining to both victims, and the evidence relating to each victim would not have been cross-admissible in separate trials to show defendant's plan to commit the offenses of criminal sexual contact of a minor in the third degree by a person in a position of authority and aggravated indecent exposure, the trial court abused its discretion when it denied defendant's severance motion for two trials.
State v. Gallegos
, 2005-NMCA-142, 138 N.M. 673, 125 P.3d 652, cert. granted, 2005-NMCERT-012, 138 N.M. 772, 126 P.3d 1137,
aff'd in part, rev'd in part
, 2007-NMSC-007, 141 N.M. 185, 152 P.3d 828.
Deportation as consequence of guilty plea.
— The district court was not constitutionally required to advise defendant that his guilty plea to criminal sexual contact of a minor almost certainly would result in his deportation.
State v. Paredez
, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799.
Guilty plea entered knowingly and voluntarily.
— In prosecution for criminal sexual contact of a minor in the third degree, where defendant understood the charges, understood the penalties, understood his constitutional rights and that he was waiving them, understood the factual basis on which the charges were brought, agreed with the facts, and fully intended to enter a plea of guilty, and at no time did defendant say anything that would indicate that he was reluctant to plead guilty, that he had been unduly rushed into agreeing to enter a plea, or that he was entering the plea based on fear or concern that, even though he was innocent, his attorney was not prepared for trial and he would likely be convicted although innocent, plea was entered knowingly and voluntarily.
State v. Moore
, 2004-NMCA-035, 135 N.M. 210, 86 P.3d 635.
Not vague or overbroad.
— The statutory crime of criminal sexual contact of a minor is not unconstitutionally vague.
State v. Benny E
., 1990-NMCA-052, 110 N.M. 237, 794 P.2d 380.
This section is not unconstitutionally vague or overbroad, nor does the statute encourage arbitrary or discriminatory prosecution.
State v. Pierce
, 1990-NMSC-049, 110 N.M. 76, 792 P.2d 408;
State v. Scott
, 1991-NMCA-081, 113 N.M. 525, 828 P.2d 958, cert. quashed,
sub nom
.
Gibson v. State
, 113 N.M. 524, 828 P.2d 957 (1992).
Double jeopardy.
— Where defendant massaged the child's nude body, touching the child's breasts, buttocks, and vagina, was one continuous course of conduct, and there was no lapse in time between the times defendant touched the child's different body parts and no intervening events, there was one continuous course of conduct that was not capable of being split into three charges merely because defendant touched three different body parts and defendant's conviction for three counts of criminal sexual contact of a minor violated the Double Jeopardy Clause.
State v. Ervin
, 2008-NMCA-016, 143 N.M. 493, 177 P.3d 1067, cert. denied, 2008-NMCERT-001, 143 N.M. 398, 176 P.3d 1130.
Where defendant attempted to move child's hand toward his groin area twice within a few minutes, one of his two convictions for attempted third degree criminal sexual contact of a minor violated double jeopardy.
State v. Segura
, 2002-NMCA-044, 132 N.M. 114, 45 P.3d 54, cert. denied, 132 N.M. 193, 46 P.3d 100.
Specific intent not element.
— The legislature did not intend to adopt a requirement of specific sexual intent as an element of this section.
State v. Pierce
, 1990-NMSC-049, 110 N.M. 76, 792 P.2d 408.
Unlawfulness as element.
— 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.
State v. Osborne
, 1991-NMSC-032, 111 N.M. 654, 808 P.2d 624.
Lack of consent is not an element of criminal sexual contact of a minor.
— Where defendant was convicted of one count of criminal sexual contact of a minor for forcibly touching the breast of a sixteen-year-old female victim, and where the evidence at trial established that defendant, a thirty-three year old man, who appeared intoxicated, entered a candy shop where the victim was working alone, that defendant lingered and made lewd comments of a sexual nature to the victim, that defendant repeatedly asked the victim to give him a hug, that when the victim instead extended her hand across the counter in an attempt to shake the defendant's hand, defendant took her hand and forcibly pulled her into a hug, and that as defendant released the victim from the hug, he brushed his hand over her chest and squeezed her breast, and where defendant claimed that fundamental error occurred because of the failure to instruct the jury on lack of consent, claiming that surveillance video footage of his encounter with the victim was evidence of the victim's consent to his actions, fundamental error did not occur, because lack of consent is not an element of criminal sexual contact of a minor. Consent of a child between the ages of thirteen and sixteen to engage in sexual contact is irrelevant where force occurred.
State v. Begaye
, 2022-NMCA-012, cert. denied.
Contributing to delinquency of a minor is separate offense.
— The legislature intended for the crimes of criminal sexual contact of a minor and contributing to the delinquency of a minor to be separate crimes, punishable separately even when unitary conduct violates both statutes. Therefore, convictions under both statutes do not violate double jeopardy principles.
State v. Trevino
, 1993-NMSC-067, 116 N.M. 528, 865 P.2d 1172.
Merger of attempted criminal sexual penetration and criminal sexual contact of minor from unitary conduct.
— Despite the state's contention that the conduct underlying the offenses charged against the defendant was not unitary, in that the defendant's action of lying on the victim constituted criminal sexual contact of a minor and his action of preparing to "hump" her constituted attempted criminal sexual penetration of a minor, the actions can only reasonably be deemed to constitute unitary conduct; the contact and attempted penetration all took place within the same short space of time, with no physical separation between the illegal acts.
State v. Mora
, 2003-NMCA-072, 133 N.M. 746, 69 P.3d 256, cert. denied, 133 N.M. 727, 69 P.3d 237.
Criminal sexual contact of minor is not lesser included offense of attempted criminal sexual penetration.
— For purposes of double jeopardy, the offenses of criminal sexual contact of a minor and attempted criminal sexual penetration of a minor cannot be characterized as lesser included and greater inclusive crimes because they each contain different elements and stand independently in relation to one another.
State v. Mora
, 2003-NMCA-072, 133 N.M. 746, 69 P.3d 256, cert. denied, 133 N.M. 727, 69 P.3d 237.
Sufficiency of notice of crime charged.
— Where a child was charged with unlawfully and intentionally touching or applying force to the intimate parts of his sister, and the charging document contained not only a time frame, but the name of the alleged victim, the child was given adequate notice to enable him to prepare a defense and to assure that any conviction or acquittal would be res judicata against a subsequent prosecution for the same offense.
State v. Benny E
., 1990-NMCA-052, 110 N.M. 237, 794 P.2d 380.
Statements part of res gestae.
— In prosecution for sexual assault upon four year old female child, statements made by victim within 45 minutes after awaking, crying and scared, upon being discovered in bed with defendant, could be seen as contemporaneous with shocked condition and as spontaneous utterances, and were properly admitted under the res gestae exception to the hearsay rule.
State v. Apodaca
, 1969-NMCA-038, 80 N.M. 244, 453 P.2d 764.
Similar prior acts.
— Admission into evidence of prior sexual acts between defendant and prosecuting witness similar to those charged in conviction for indecent handling and touching of girl under age of 16 was not an abuse of trial court's discretion as a matter of law.
State v. Minns
, 1969-NMCA-035, 80 N.M. 269, 454 P.2d 355, cert. denied, 80 N.M. 234, 453 P.2d 597.
In a prosecution for criminal sexual contact with a minor, the admission of evidence of prior "bad" acts, including uncharged sexual battery dating back to the victim's early childhood, was not error. The evidence corroborated the victim's testimony and placed the charged acts in context. The evidence of defendant's treatment of the victim was relevant to the issue of credibility and not merely offered to show defendant's character and propensity to commit the crime.
State v. Landers
, 1992-NMCA-131, 115 N.M. 514, 853 P.2d 1270,
overruled on other grounds by
State v. Kerby
, 2005-NMCA-106, 138 N.M. 232, 118 P.3d 740.
Physical evidence is not required
to support a conviction under this section.
State v. Landers
, 1992-NMCA-131, 115 N.M. 514, 853 P.2d 1270, cert. quashed, 115 N.M. 535, 854 P.2d 362,
overruled on other grounds by
State v. Kerby
, 2005-NMCA-106, 138 N.M. 232, 118 P.3d 740.
Circumstantial evidence was sufficient
to allow a jury to find accused guilty under this section beyond a reasonable doubt.
Mora v. Williams
, 111 Fed. Appx. 537 (10th Cir. 2004).
Child's testimony sufficient.
— The uncorroborated testimony of a minor child competent to testify, unless there be something inherently improbable in it, is deemed substantial evidence and sufficient to uphold a conviction.
State v. Trujillo
, 1955-NMSC-094, 60 N.M. 277, 291 P.2d 315.
Corroboration was not essential to conviction
in a prosecution for indecent handling and touching of a minor under 18 years of age.
State v. Trujillo
, 1955-NMSC-094, 60 N.M. 277, 291 P.2d 315.
Use of a position of authority to coerce sexual contact
may be proven inferentially and although the position of employer in and of itself does not necessarily establish the use of that position as coercion, where there exists sufficient connection between the employment and the sexual contact, the jury can appropriately infer that the employer used coercion.
State v. Trevino
, 1991-NMCA-085, 113 N.M. 804, 833 P.2d 1170,
aff'd sub nom
.
State v. Orosco
, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.
Coercion by a person in a position of authority is not negated where victim resists the defendant's attempts to force sexual contact.
— Where defendant was found guilty of two counts of criminal sexual contact of a minor by a person in a position of authority, where the evidence at trial established that defendant grabbed his thirteen-year-old niece's clothed buttocks while she walked past him, and later placed his hand directly on the "outer lip" of her genital area while she was sleeping, and where defendant argued that the child was not coerced to submit to sexual contact because she immediately resisted his attempts to force sexual contact, there was sufficient evidence 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 because of the nature of the relationship between defendant and the child and the child's testimony that she felt pressure not to interfere with the family dynamics given the close relationship between her family and her uncle's family. 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.
State v. Arvizo
, 2018-NMSC-026,
rev'g
No. 33,697, mem. op. (N.M. Ct. App. June 28, 2016) (non-precedential).
Instruction on position of authority.
— The defendant's requested jury instruction that "[t]he fact the defendant was in a position of authority does not alone establish that he used that authority to coerce sexual contact" was not a correct statement of the law because coercion for the purposes of this section occurs when a defendant occupies a position which enables that person to exercise undue influence over the victim and that influence is the means of compelling submission to the contact.
State v. Gardner
, 2003-NMCA-107, 134 N.M. 294, 76 P.3d 47, cert. denied, 134 N.M. 179, 74 P.3d 1071.
Defendant's motivation irrelevant.
— A defendant who unlawfully and intentionally touches an intimate part of a minor's body is guilty of criminal sexual contact of a minor, regardless of whether the defendant was motivated by a desire to obtain sexual gratification or by some other desire.
State v. Gardner
, 2003-NMCA-107, 134 N.M. 294, 76 P.3d 47, cert. denied, 134 N.M. 179, 74 P.3d 1071.
Implicit waiver of right to confrontation.
— Where defendant at trial did not file a response to the state's motion for a videotaped deposition, nor did he object at the time of the taking of the deposition or at the time that the district court admitted the deposition tape as evidence, but, to the contrary, defendant relied on both the deposition tape and the interview tape in his opening and closing arguments, defendant's actions indicate that he implicitly waived his right to face-to-face confrontation by conduct.
State v. Herrera
, 2004-NMCA-015, 135 N.M. 79, 84 P.3d 696, cert. denied, 2004-NMCERT-001, 135 N.M. 160, 85 P.3d 802.
On appeal from a prosecution for criminal sexual contact of a minor, where defendant argued that the district court was constitutionally required to make specific findings justifying its substitution of videotaped testimony for face-to-face confrontation, even though defendant never objected to the substitution, defendant waived his Confrontation Clause claim by failing to raise the confrontation issue at trial and there is no fundamental error.
State v. Herrera
, 2004-NMCA-015, 135 N.M. 79, 84 P.3d 696, cert. denied, 2004-NMCERT-001, 135 N.M. 160, 85 P.3d 802.
Instruction on time limitation properly refused.
— Where time limitation was not an essential element of the offenses of contributing to the delinquency of a minor and criminal sexual contact of a minor, no error was committed by the court's failure to instruct the jury on time limitations in connection with the charges at issue.
State v. Cawley
, 1990-NMSC-088, 110 N.M. 705, 799 P.2d 574.
Instruction on intoxication improperly refused.
— Where trial court by instruction fixed specific intent as an essential ingredient of offense charged, sexual assault of female under the age of 16, refusal to instruct on defense of intoxication was reversible error.
State v. Rayos
, 1967-NMSC-008, 77 N.M. 204, 420 P.2d 314.
No instruction on touchings' lawfulness absent evidence.
— Although the defendant contended that all touching of the victim was colorably lawful, there was no evidence from which the jury could infer that the particular touchings that the state sought to prove were lawful. The only way to view the defendant's evidence was that he did not touch the victim whatsoever in the manner the state alleged and that all of his other touchings were lawful. Because the defendant did not allege that the particular touchings forming the basis for the charges were lawful, the issue of the lawfulness of those touchings was not at issue, and the trial court's failure to give a lawfulness instuction was not fundamental error.
State v. Landers
, 1992-NMCA-131, 115 N.M. 514, 853 P.2d 1270, cert. quashed, 115 N.M. 535, 854 P.2d 362,
overruled on other grounds by
State v. Kerby
, 2005-NMCA-106, 138 N.M. 232, 118 P.3d 740.
Attempt.
— Reversal of defendant's convictions under this section was required because the attempt aspect of the charge needed to be connected with the underlying crime in a manner that made it clear to the jury that the initiatory crime of attempt applied to all elements of the underlying crime.
State v. Segura
, 2002-NMCA-044, 132 N.M. 114, 45 P.3d 54, cert. denied, 132 N.M. 193, 46 P.3d 100.
Sufficient evidence of criminal sexual contact.
— Where defendant was charged with criminal sexual contact of a minor and where the minor child, at trial, testified that defendant unzipped her pajamas and positioned his hand in the her underwear and touched the skin underneath her underwear in a rubbing motion, a jury could reasonably believe that defendant touched or applied force to the child's unclothed groin area, and thus there was sufficient evidence of criminal sexual contact of a minor.
State v. Pitner
, 2016-NMCA-102, cert. denied.
Evidence sufficient to support conviction.
— Father's conviction on two counts of criminal sexual contact of a minor was supported by substantial evidence, including the testimony of the child and a therapist who interviewed the child.
State v. Newman
, 1989-NMCA-086, 109 N.M. 263, 784 P.2d 1006, cert. denied, 109 N.M. 262, 784 P.2d 1005.
Evidence consisting of the testimony of the victim's counselor and the victim herself was sufficient to support convictions of criminal sexual contact with a minor and criminal sexual penetration of a minor.
State v. Ortiz-Burciaga
, 1999-NMCA-146, 128 N.M. 382, 993 P.2d 96, cert. denied, 128 N.M. 149, 990 P.2d 823.
Evidence was sufficient to demonstrate that defendant coerced a 16-year old boy to submit to sexual contact by using his position as employer, where defendant, who had hired the boy to help repair appliances, closed the doors and windows when the boy indicated a desire to leave after defendant made sexual advances.
State v. Corbin
, 1991-NMCA-021, 111 N.M. 707, 809 P.2d 57, cert. denied, 111 N.M. 720, 809 P.2d 634.
Jury could infer coercion resulted from the employment relationship. First, the sexual contact took place on a job site owned by defendant, who had sole supervisory control not only over the premises but also over the victim. Second, defendant assigned victim to a small ticket booth where all of the incidents of sexual contact took place.
State v. Trevino
, 1991-NMCA-085, 113 N.M. 804, 833 P.2d 1170,
aff'd sub nom
.
State v. Orosco
, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.
Where four students testified that the defendant, an assistant principal, had on various occasions while at school touched their breasts and/or buttocks, the testimony was sufficient for a reasonable mind to conclude that the unlawful contact was at least in part a result of the defendant's position of authority.
State v. Gardner
, 2003-NMCA-107, 134 N.M. 294, 76 P.3d 47, cert. denied, 134 N.M. 179, 74 P.3d 1071.
Sufficient evidence of criminal sexual contact of a minor for purposes of retrial.
— Where defendant was convicted of one count of criminal sexual penetration of a minor and twenty-one counts of criminal sexual contact of a minor, and where defendant's convictions were overturned based on the state's violation of defendant's constitutional right against self-incrimination, there was sufficient evidence to support each of defendant's convictions for purposes of retrial where, at trial, the state presented evidence from the child victim that defendant committed multiple instances of criminal sexual contact and at least one instance of criminal sexual penetration over a four-month period and defendant's admission that he had put the child's penis in his mouth at least once and had touched the child's penis between twenty and thirty times.
State v. Atencio
, 2021-NMCA-061, cert. granted.
Disjunctive in instruction not error.
— It was not error for the district court to instruct the jury that in order to convict defendant of criminal sexual contact of a minor under the age of 13, it must conclude that defendant touched or applied force either to the vagina or breast of the victim, as the essential element of the crime is touching an intimate part of the child.
State v. Nichols
, 2006-NMCA-017, 139 N.M. 72, 128 P.3d 500.
Special probation condition did not terminate parental rights.
— Where defendant pleaded guilty to eight counts of criminal sexual contact of a minor in the fourth degree, the charges stemming from a series of incidents that occurred over the course of several months between defendant and one of his adopted daughters, and after the sentencing hearing, the district court imposed nine conditions of probation, with one condition prohibiting defendant from having direct or indirect contact with all children under the age of 18, including the victim of his crimes, absent a court order, the special condition did not amount to a "de facto" termination of parental rights, necessitating jurisdiction within the children's court.
State v. Garcia
, 2005-NMCA-065, 137 N.M. 597, 113 P.3d 867.
Law reviews.
— For symposium, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Remoteness in time of other similar offenses committed by accused as affecting admissibility of evidence thereof in prosecution for sex offense, 88 A.L.R.3d 8.
Modern status of admissibility, in statutory rape prosecution, of complainant's prior sexual acts or general reputation for unchastity, 90 A.L.R.3d 1286.
Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 A.L.R.4th 1009.
Walking cane as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 842.
Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 1268.
Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 A.L.R.4th 395.
Sexual child abuser's civil liability to child's parent, 54 A.L.R.4th 93.
Liability of church or religious society for sexual misconduct of clergy, 5 A.L.R.5th 530.
6A C.J.S. Assault and Battery § 123.