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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. 31,983

 5 MARCOS T. MEJIA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
 8 Daniel Viramontes, District Judge

 9 Gary K. King, Attorney General
10 Corinna Laszlo-Henry, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender
14 Will O’Connell, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 SUTIN, Judge.
 1   {1}   Defendant Marcos T. Mejia appeals his convictions for two counts of attempted

 2 criminal sexual contact of a minor (CSCM) (position of authority), contrary to NMSA

 3 1978, Section 30-28-1 (1963), and NMSA 1978, Section 30-9-13(C)(2)(a) (2003). On

 4 appeal, Defendant challenges the sufficiency of the evidence to support his

 5 convictions, specifically arguing that he did not use his position of authority as

 6 Victim’s minister in his attempts to commit CSCM. We affirm.

 7 BACKGROUND

 8   {2}   Defendant is a minister and, at the time of the crimes, Victim was a seventeen-

 9 year-old member of his congregation. Defendant’s convictions are based on two

10 separate incidents and are premised on jury findings that he attempted to commit the

11 crime of CSCM while using his position of authority as Victim’s minister to coerce

12 Victim to submit.

13   {3}   The first incident (Count 1) took place in November 2010 when Defendant and

14 his wife visited Victim’s home. Victim and her brother, returning from the store, met

15 Defendant and his wife upon their arrival, and Defendant asked Victim to remain

16 outside so that they could talk. When her brother went inside, Defendant picked up

17 Victim and started kissing her forehead, face, and neck. Victim testified that this

18 made her feel uncomfortable and that she told Defendant it would be better to go

19 inside. Once inside, Defendant sat next to Victim on the couch and began to caress

                                              2
 1 her back above her pants but under her blouse. Victim testified that Defendant’s

 2 hands moved “within millimeters” of her buttocks and that Defendant stopped when

 3 she “took his hands.”

 4   {4}   The second incident (Count 2) took place about a month later in December

 5 2010. After morning church services, Victim, her cousin, and another girl went to

 6 Defendant’s home to wrap some presents for congregation members. While her

 7 cousin and the other girl were in another room, Defendant began hugging and kissing

 8 Victim’s forehead, cheeks, and around her mouth until she pulled away and joined the

 9 others in the other room. Victim testified that this made her feel uncomfortable and

10 that she believed Defendant noticed she was upset.

11   {5}   Later that day at the church, Defendant called Victim into his office to

12 apologize for what happened at his home. Defendant asked Victim if she was upset,

13 and Victim responded, “no problem.” Defendant responded “okay” and proceeded

14 to hug her and kiss her forehead. When Defendant and Victim left his office and

15 walked down the hall to join the rest of the congregation, Defendant grabbed her from

16 behind, lifted her up, and kissed the back of her neck, during which time Victim’s

17 blouse lifted up. Defendant let Victim go and caressed her stomach, both under and

18 over her clothes, which Victim described as “in between grabbing it and caressing it.”

19 Victim testified that Defendant’s hands got “really close” to her breasts and that


                                             3
 1 Defendant was breathing “stronger than usual.” We discuss additional facts later in

 2 this Opinion as they are relevant to the incidents and the role of Defendant’s status as

 3 Victim’s minister.

 4 DISCUSSION

 5 Issue and Standard of Review

 6   {6}   Defendant argues the evidence is insufficient to support his convictions for two

 7 counts of attempted CSCM (position of authority), in violation of Section 30-9-

 8 13(C)(2)(a) and Section 30-28-1. See § 30-9-13(C)(2)(a) (“Criminal sexual contact

 9 of a minor . . . perpetrated . . . on a child thirteen to eighteen years of age when . . . the

10 perpetrator is in a position of authority over the child and uses [that] authority to

11 coerce the child to submit[.]”); § 30-28-1 (“Attempt to commit a felony consists of an

12 overt act in furtherance of and with intent to commit a felony and tending but failing

13 to effect its commission.”).

14   {7}   We review the evidence to determine “whether substantial evidence of either

15 a direct or circumstantial nature exists to support a verdict of guilt beyond a

16 reasonable doubt with respect to every element essential to a conviction.” State v.

17 Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. Under this standard,

18 “[w]e view the evidence in the light most favorable to supporting the verdict and

19 resolve all conflicts and indulge all inferences in favor of upholding the verdict.”


                                                 4
 1 State v. Hernandez, 1993-NMSC-007, ¶ 68, 115 N.M. 6, 846 P.2d 312. We do not re-

 2 weigh the evidence, nor substitute our judgment for that of the fact-finder, so long as

 3 there is sufficient evidence to support the verdict. Sutphin, 1988-NMSC-031, ¶ 21.

 4 Sufficiency of the Evidence

 5   {8}   Sufficient evidence was presented from which the jury could have reasonably

 6 inferred that Defendant used his position of authority as Victim’s minister in his

 7 attempts to coerce Victim to submit to CSCM.           In his sufficiency challenge,

 8 Defendant concedes there was evidence that he attempted to touch Victim’s intimate

 9 parts, acknowledging that “[Defendant] failed in his attempt to touch the alleged

10 [V]ictim’s intimate parts” and “[Victim] testified that [Defendant] did no more than

11 try, and abjectly fail, to touch her intimate parts.” Defendant’s sufficiency challenge

12 instead focuses on the role his position of authority played in his actions. See NMSA

13 1978, § 30-9-10(E) (2005) (providing that “position of authority” means “that position

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

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

16   {9}   While agreeing that Victim “was certainly justified in perceiving [Defendant]

17 as an authority figure,” Defendant disputes a finding that he used or attempted to use

18 this authority to coerce Victim to submit to CSCM. From Defendant’s perspective,

19 he is just a middle-aged man who happens to be a minister whose “hapless advances”


                                              5
 1 were rebuffed by a seventeen-year-old girl. Thus, while Defendant acquiesces that he

 2 was in a position of authority and perhaps could have exercised undue influence to

 3 coerce Victim, he argues there was no evidence that he ever invoked such authority.

 4 Defendant best sums up his argument with his statement that he “held the authority

 5 card[,] but he did not play it.”

 6   {10}   As an abstract proposition, Defendant’s status as a person of authority in the

 7 role of Victim’s minister does not by itself establish that he used this authority in his

 8 attempt to coerce Victim to submit to CSCM. See State v. Trevino, 1991-NMCA-085,

 9 ¶ 6, 113 N.M. 804, 833 P.2d 1170 (reviewing the employer’s CSCM of a minor

10 employee and stating, “[t]his is not to say that the position of employer in and of itself

11 necessarily establishes the use of that position as coercion”). Here, however, our

12 review of the evidence provides that there was ample evidence from which the jury

13 could have inferred that Defendant’s role as Victim’s minister was the doorway

14 through which Defendant facilitated his attempted sexual abuse. Further, as discussed

15 later in this Opinion, the jury could have inferred that, by virtue of his role as Victim’s

16 minister, Defendant was able to gain the trust of Victim and her family, to cause

17 Victim to be afraid and question whether she was “thinking wrongly” about

18 Defendant’s actions, to spend time alone with Victim and, ultimately, to gain the

19 opportunity to commit the attempted crimes. See id. (concluding that while the


                                                6
 1 position of employer does not necessarily show coercion, “where there exists

 2 sufficient connection between the employment and the sexual contact, . . . the jury can

 3 appropriately infer that the employer used coercion”).

 4   {11}   Regarding the use of his role as Victim’s minister to gain Victim’s trust,

 5 evidence was presented that Victim and her family were congregants at the church

 6 where Defendant served as minister. Victim was very close with both Defendant and

 7 his wife, considering them “like family.” After Victim and her boyfriend broke up,

 8 Victim discussed her feelings about the breakup with Defendant’s wife and sought

 9 Defendant’s spiritual advice about the breakup. While Defendant had not been

10 particularly close to Victim when she had a boyfriend, he grew closer to Victim after

11 the breakup and, at some point, gave Victim a box of chocolates. See State v. Gillette,

12 1985-NMCA-037, ¶ 31, 102 N.M. 695, 699 P.2d 626 (considering that the victim had

13 a close, confidential relationship with the defendant and frequently sought the

14 defendant’s advice as factors in concluding that the defendant used his position of

15 authority to coerce the victim to submit to the sexual acts); see also State v. Gardner,

16 2003-NMCA-107, ¶¶ 33-38, 134 N.M. 294, 76 P.3d 47 (holding that there was

17 sufficient evidence to support a conclusion that the unlawful contact “was at least in

18 part a result of [the assistant principal’s] position of authority” and that he used his




                                              7
 1 position to gain the victims’ trust, so as to have an opportunity to touch them and to

 2 cause them to submit to his touch).

 3   {12}   Apart from using his position of authority to gain Victim’s trust, evidence was

 4 presented that Defendant capitalized on his role as Victim’s minister to cause Victim

 5 to be afraid and to question whether she was “thinking wrongly” about his

 6 inappropriate actions. When testifying about the two incidents, Victim related that

 7 Defendant’s actions made her feel confused and really uncomfortable and that she did

 8 not know what to do. Victim testified that she did not want Defendant touching her

 9 the way he did, but did not tell him so because she was afraid. When asked about

10 Defendant’s temper, Victim testified that when Defendant was upset he was impulsive

11 and that she had seem him shake and start yelling. Victim also testified that

12 Defendant had once mentioned he had a pistol and that this made her feel afraid.

13 Victim further testified that Defendant frequently preached against making allegations

14 of inappropriate touching, saying that “if you were thinking wrongly, those were your

15 thoughts, that was your heart.” As a consequence, Victim testified that she herself did

16 not know if Defendant had acted with a bad intention or if she was “thinking

17 wrongly.” Similarly, another congregant testified that Defendant preached against

18 people accusing their fellows because God would punish the accuser for his or her

19 sins. Victim testified that everyone in the congregation regarded Defendant with


                                               8
 1 respect and that she did not think people would believe her. And notably, after the

 2 second incident, Victim did not return to her church until Defendant was no longer the

 3 pastor. See Trevino, 1991-NMCA-085, ¶ 5 (considering, among other things, the

 4 victim’s testimony that he did not tell others of the incident because he was afraid and

 5 “didn’t know how to handle it” as evidence from which the jury could infer that the

 6 defendant used his position of authority to coerce the victim (internal quotation marks

 7 omitted)).

 8   {13}   Lastly, we consider that Defendant, through his role as Victim’s minister and

 9 trusted advisor, was able to place himself in situations where he was alone with

10 Victim and thereby gain the opportunity to commit the crimes. To this end, the first

11 incident was precipitated by Defendant asking Victim to wait outside when her

12 brother went inside their home so that he could talk to Victim about a problem she

13 was having. And the second incident was precipitated by Defendant calling Victim

14 into his church office to apologize about his actions earlier at his home. See State v.

15 Gipson, 2009-NMCA-053, ¶¶ 24-25, 146 N.M. 202, 207 P.3d 1179 (affirming the

16 jury’s determination that the defendant used his position of authority to commit the

17 crimes when the defendant was in the role of a trusted family friend who was allowed

18 to be alone with the victim); Trevino, 1991-NMCA-085, ¶ 5 (“In light of [the]

19 defendant’s ability to place [the victim] in a confined, private workstation and [the


                                              9
 1 victim’s] testimony that he was scared, we believe the jury could infer that defendant

 2 used his position of authority to coerce [the victim] to submit to the sexual contact.”).

 3   {14}   In sum, while Defendant did not use physical violence in his attempt to coerce

 4 Victim, the jury could infer from the evidence that he used a more subtle form of

 5 coercion by capitalizing on his role as her minister in his attempts to control her will.

 6 See Gillette, 1985-NMCA-037, ¶ 32 (recognizing that use of a position of authority

 7 to coerce sexual contact may be proved inferentially); see also Gardner, 2003-

 8 NMCA-107, ¶ 22 (recognizing that undue influence can result from a moral, social,

 9 or domestic force exerted upon a party). Despite this improper use of his authority,

10 however, Defendant still maintains that he never “played the authority card” or

11 “press[ed] his advantage” because, after Victim rebuffed his advances, he did not then

12 proceed to assert his authority over Victim to coerce her to submit. What Defendant

13 fails to acknowledge, however, is that Victim’s “rebuffing” of his advances was not

14 the triggering mechanism for whether Defendant would then elect to assert his

15 authority.     Rather, Defendant had already used his authority throughout his

16 interactions with Victim as a precursor to and part of a subtle “grooming behavior,”

17 leading up to the specific incidents for which he attempted to coerce Victim to submit.

18 Thus, after being rebuffed, whether Defendant elected to again attempt to overtly




                                              10
 1 coerce Victim is not determinative because Defendant had already played his

 2 “authority card,” but failed in his attempt to coerce Victim to submit.

 3   {15}   We further disagree with Defendant’s argument that the evidence does not

 4 support a finding of coercive use of his authority because Victim “had no real

 5 difficulty in thwarting [his] sexual advances[.]” Related to this, Defendant argues that

 6 his “powerlessness to touch [Victim’s] intimate areas demonstrates not a use of his

 7 position of authority but, if anything, its opposite.” We disagree. As emphasized by

 8 the State throughout its answer brief, it was Defendant’s intent to exercise undue

 9 influence and to compel submission that was determinative, not whether he actually

10 succeeded in doing so. See § 30-28-1 (attempting to commit a felony requires “an

11 overt act in furtherance of and with intent to commit” the crime). Victim’s rebuffing

12 of Defendant’s advances does not preclude a finding that Defendant used his authority

13 in an attempt to coerce Victim and in fact provides some insight into why Defendant

14 failed in his attempts to touch Victim’s intimate parts, thereby leading to his

15 convictions for attempted CSCM rather than CSCM.

16   {16}   Lastly, we point out that affirmance is consistent with State v. Segura, 2002-

17 NMCA-044, 132 N.M. 114, 45 P.3d 54, which addresses the distinction in proof

18 between a completed versus attempted CSCM by a person in a position of authority.

19 In Segura, this Court reversed the defendant’s convictions for attempted CSCM


                                              11
 1 because the submitted jury instruction did not make it clear to the jury “that the

 2 initiatory crime of attempt applied to all elements of the underlying crime.” Id. ¶¶ 12,

 3 16. Specific to this, the submitted jury instruction in Segura recited as an element of

 4 the crime that “[t]he defendant was a person who by reason of his relationship to [the

 5 c]hild was able to exercise undue influence over [the c]hild and used this authority to

 6 force or coerce her to submit to sexual contact[.]” Id. ¶ 12 (alterations and internal

 7 quotation marks omitted).

 8   {17}   Absent any extension of the attempt aspect of the crime to the position of

 9 authority element, Segura concluded that the submitted jury instruction became “the

10 law of the case against which the sufficiency of the evidence is to be measured.” Id.

11 ¶ 13 (internal quotation marks and citation omitted). As a consequence, even though

12 the defendant was charged with attempted CSCM, “in order to convict [the d]efendant,

13 the jury was required to determine beyond a reasonable doubt [the d]efendant by

14 reason of his position of authority was actually able to exercise undue influence over

15 [the c]hild and succeeded in forcing or coercing her to submit to sexual contact

16 through the use of that position of authority.” Id. And because there was no evidence

17 that the child “was at all actually unduly influenced to submit to any sexual contact[,]”

18 Segura reversed. Id. ¶¶ 15-16. In doing so, however, and significantly, Segura

19 emphasized that had the jury been properly instructed on an attempt crime, “the jury


                                              12
 1 would have been on solid grounds to draw reasonable inferences from the

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

 3 authority).” Id. ¶ 16. Unlike Segura, in the present case, the jury instruction follows

 4 the format for attempt crimes, as set forth in UJI 14-2801 NMRA (felony attempt

 5 crimes), instructing that Defendant intended to commit CSCM by use of coercion by

 6 a person in authority and “began to do an act which constituted a substantial part of

 7 [CSCM] by use of coercion by a person of authority[.]”

 8 CONCLUSION

 9   {18}   Based on the foregoing discussion and viewing the evidence in the light most

10 favorable to the State in light of all the circumstances, we conclude that there was

11 ample evidence from which the jury could conclude that Defendant used his authority

12 in his attempts to coerce Victim to submit to sexual contact. See generally State v.

13 Sparks, 1985-NMCA-004, ¶ 6, 102 N.M. 317, 694 P.2d 1382 (defining “substantial

14 evidence” as evidence that a reasonable mind would consider adequate to support a

15 defendant’s conviction). We therefore affirm Defendant’s convictions.

16   {19}   IT IS SO ORDERED.


17                                         __________________________________
18                                         JONATHAN B. SUTIN, Judge




                                             13
1 WE CONCUR:


2 _______________________________
3 LINDA M. VANZI, Judge


4 _______________________________
5 J. MILES HANISEE, Judge




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