         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: ________

Filing Date: April 7, 2014

Docket No. 32,860

STATE OF NEW MEXICO,

       Plaintiff-Respondent,

v.

LISA STEVENS,

       Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
John A. Dean, Jr., District Judge

Jacqueline L. Cooper, Chief Public Defender
William A. O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

Gary K. King, Attorney General
Martha Anne Kelly, Assistant Attorney General
Santa Fe, NM

for Respondent

                                     OPINION

DANIELS, Justice.

I.     INTRODUCTION

{1}    We granted certiorari to review Defendant Lisa Stevens’ convictions for second-
degree criminal sexual penetration during the commission of a felony, child abuse, and
contributing to the delinquency of a minor. The convictions were based on two separate
incidents in which she directed her thirteen-year-old daughter to perform oral sex on
Defendant’s twenty-four-year-old boyfriend after the three injected methamphetamine

                                          1
together.

{2}     Addressing a precedential legal issue, we clarify that simply causing another person
to engage in otherwise lawful sexual intercourse at the same time a felony is being
committed does not constitute the crime of criminal sexual penetration during the
commission of a felony. Accordingly, we disapprove any language to the contrary in State
v. Maestas, 2005-NMCA-062, ¶ 26, 137 N.M. 477, 112 P.3d 1134, rev’d on other grounds,
State v. Maestas (Maestas II), 2007-NMSC-001, ¶¶ 2, 27, 140 N.M. 836, 149 P.3d 933.

{3}     While we also hold that the jury should be instructed that the crime of criminal sexual
penetration during the commission of a felony requires the commission of unlawful sexual
activity with the victim of the felony, we conclude that the unobjected-to deficiency in the
instructions did not constitute fundamental error in the circumstances of this case where
Defendant’s guilt was clear. In the absence of any error that would justify reversal, we affirm
Defendant’s convictions.

II.    FACTUAL AND PROCEDURAL BACKGROUND

{4}    Defendant was charged by criminal information with two counts of causing criminal
sexual penetration during the commission of the felony of distribution of a controlled
substance to a minor, contrary to NMSA 1978, Section 30-9-11(E)(5) (2007, amended 2009)
(CSP II-felony). The predicate felony for CSP II-felony was distribution of a controlled
substance to a minor, punishable as a second-degree felony by NMSA 1978, Section 30-31-
21(B)(1) (1987). The charges also included two counts of child abuse, contrary to NMSA
1978, Section 30-6-1(D)(1) (2005, amended 2009); and two counts of contributing to the
delinquency of a minor, contrary to NMSA 1978, Section 30-6-3 (1990).

{5}    At trial Defendant’s daughter testified that in the fall of 2007, while her parents were
going through a divorce, she would often skip school and join Defendant and Defendant’s
boyfriend to get high on methamphetamine that Defendant and the boyfriend provided. The
daughter also testified that Defendant originally introduced her to the drug.

{6}    On two separate occasions a week or two apart in the fall of 2007 when the daughter,
Defendant, and the boyfriend were injecting methamphetamine together, Defendant told her
daughter to perform oral sex on the boyfriend. The daughter testified that, although
Defendant did not force her to perform the oral sex on either occasion, she complied with
Defendant’s direction because she was “high [and] didn’t really care.” Soon after those two
incidents, Defendant and the boyfriend moved to Phoenix, Arizona.

{7}     When questioned at trial about the dates of the two oral sex incidents, the daughter
explained that, although she had originally estimated that they happened sometime between
Halloween and Thanksgiving of 2007, she was unsure exactly when they occurred. After
remembering that her father confronted her about the two incidents on Halloween of 2007,
after he had learned about them, she realized the incidents must have actually occurred

                                              2
before instead of after Halloween. Her father became angry about what had happened, and
the daughter ended up not being allowed to go to Phoenix with Defendant and the boyfriend
as she had planned to do. On cross-examination at trial the daughter testified that it was
difficult to recall the exact dates because she had been getting high so much during that time,
but her best estimate was that it “probably happened like a couple of weeks before
Halloween.”

{8}     Neither Defendant nor the boyfriend took the stand to challenge the substance of the
daughter’s testimony, and Defendant relied instead on an alibi defense and a general
credibility attack against the daughter. After the daughter testified and the State rested its
case in chief, Defendant called the boyfriend’s sister and mother, the only defense witnesses,
to establish that Defendant and the boyfriend were in Phoenix from November 2, two days
after Halloween, to December 10, 2007, eighteen days after Thanksgiving.

{9}      After the defense rested, the State asked the court to allow an amendment to the
allegations in the original criminal information to conform to the daughter’s trial testimony
that the two incidents probably occurred in October. Over the objection of Defendant, the
trial judge allowed the amendment, which revised the alleged date range of the offense from
“[o]n or about November 12, 2007” to “on, about or between the 1st day of October, 2007,
through the 22nd day of November, 2007” in the charging documents and the resulting jury
instructions.

{10} Defendant did not submit any requested jury instructions and made no objection to
the instructions offered by the State or given by the court other than the objection to the
change in terms describing the time frame when the offenses allegedly occurred.

{11} The jury found Defendant guilty on all counts. She was sentenced to fifteen years
imprisonment for each of the two convictions for CSP II-felony to run consecutively with
each other and concurrently with the remaining sentences of three years for each of the two
child abuse convictions and eighteen months for each of the two contributing to the
delinquency of a minor convictions. All but the first fifteen years of imprisonment were
suspended.

{12} Defendant appealed her convictions to the Court of Appeals on two grounds: (1) that
the convictions for CSP II-felony resulted from fundamental error because the jury was not
instructed that the State had to prove that the sexual activity occurring during the
commission of a felony was otherwise “criminal” and (2) that allowing the State to amend
the description of the dates of the offenses during trial was reversible error. See State v.
Stevens, No. 29,357, mem. op. at 2, 6-7 (N.M. Ct. App. Jan. 18, 2011) (nonprecedential).
The Court of Appeals affirmed the convictions in an unpublished memorandum opinion,
declining to reconsider its holding in Maestas that a conviction for CSP II-felony can be
based on otherwise lawful sex occurring during the commission of a felony. Stevens, No.
29,357, mem. op. at 10, 17. We granted certiorari to review both of Defendant’s issues.


                                              3
III.   DISCUSSION

{13} The jury was instructed that in order to convict Defendant of the crime of CSP II-
felony, as charged in each of counts 1 and 2, the State had to prove beyond a reasonable
doubt the following elements:

       1.      The defendant caused [the daughter] to engage in fellatio on [the
               boyfriend];
       2.      The defendant committed the act during the commission of
               distribution of a controlled substance to a minor;
       3.      Distribution of a controlled substance to a minor consist[s] of:
               (a)     transferring methamphetamine to [the daughter];
               (b)     [t]he defendant knew the controlled substance was
                       methamphetamine;
               (c)     [the daughter] was 17 years of age or younger;
       4.      This happened in New Mexico on, about or between the 1st day of
               October, 2007, through the 22nd day of November, 2007.

{14} We address first the propriety of the elements portions of the instruction, then
whether the elements description constituted fundamental error requiring reversal on appeal
in the absence of proper preservation of the issue in the district court, and finally whether
the amendment to the date description was reversible error.

A.     The Offense of Criminal Sexual Penetration Committed During the Commission
       of a Felony Requires Proof of Unlawful Sexual Conduct Caused by the
       Commission of a Felony Against the CSP Victim

{15} “‘In determining what is or is not an essential element of an offense, we begin with
the language of the statute itself, seeking of course to give effect to the intent of the
legislature.’” State v. Swick, 2012-NMSC-018, ¶¶ 56, 58, 279 P.3d 747 (citation omitted)
(reversing a second-degree murder conviction for fundamental error because a missing
element in the jury instructions may have led to an unjust conviction). It is “‘the high duty
and responsibility of the judicial branch of government to facilitate and promote the
legislature’s accomplishment of its purpose.’” State v. Smith, 2004-NMSC-032, ¶ 8, 136
N.M. 372, 98 P.3d 1022 (citation omitted). Although we look first to the language of the
statute, we will reject “a formalistic and mechanical statutory construction when the results
would be absurd, unreasonable, or contrary to the spirit of the statute.” Id. ¶ 9-10.

{16} The provisions of the criminal sexual penetration statute relevant to the issue before
us are,

       A.      Criminal sexual penetration is the unlawful and intentional causing
       of a person to engage in sexual [acts]
       ....

                                             4
       E.       Criminal sexual penetration in the second degree consists of all
       criminal sexual penetration perpetrated:
                (1)     by the use of force or coercion on a child thirteen to eighteen
       years of age;
                (2)     on an inmate confined in a correctional facility or jail when
       the perpetrator is in a position of authority over the inmate;
                (3)     by the use of force or coercion that results in personal injury
       to the victim;
                (4)     by the use of force or coercion when the perpetrator is aided
       or abetted by one or more persons;
                (5)     in the commission of any other felony; or
                (6)     when the perpetrator is armed with a deadly weapon.
                ....
       F.       Criminal sexual penetration in the third degree consists of all criminal
       sexual penetration perpetrated through the use of force or coercion not
       otherwise specified in this section. . . .
       G.       Criminal sexual penetration in the fourth degree consists of all
       criminal sexual penetration:
                (1)     not defined in Subsections D through F of this section
       perpetrated on a child thirteen to sixteen years of age when the perpetrator
       is at least eighteen years of age and is at least four years older than the child
       and not the spouse of that child; . . .
                ....

Section 30-9-11 (2007).

{17} In Maestas, 2005-NMCA-062, our appellate courts first undertook the judicial task
of determining the essential elements of CSP II-felony, enumerated at that time as
Subsection (D)(5) of Section 30-9-11. Maestas’s convictions arose from “allegations that he
accepted sexual favors from Victim in exchange for leniency in the resolution of charges
against Victim in municipal court” where he was a judge. Id. ¶ 2. He was convicted both of
the felony of requesting or receiving something of value conditioned upon or given in
exchange for promised performance of an official act, in violation of NMSA 1978, Section
10-16-3(D) (1993, amended 2011) of the Governmental Conduct Act, and of criminal sexual
penetration during the commission of that felony, in violation of Section 30-9-11(D)(5)
(2003). Maestas, 2005-NMCA-062, ¶ 1.

{18} Maestas, whose theory of the case was that the adult victim had enticed him to
engage in consensual sex acts, objected to the failure of the jury instructions to clarify that
simply having otherwise lawful consensual sex during the commission of a felony was not
criminal sexual penetration. Id. ¶¶ 2, 13. The Court of Appeals concluded that the instruction
given to the jury that required the accused to have “caused” a person to engage in sex during
the commission of an underlying felony would establish a “causal connection between the
felony and the sex act” and “insure that an accused will not be convicted for engaging in

                                              5
purely consensual sex.” Id. ¶ 24. The Court held that “the legislature intended to punish
those who participate in certain sexual activity, even without force or coercion, when the . . .
sex act is caused by the defendant in the commission of any other felony,” that the
underlying statutory felony need not be a felony with any “element of force or coercion,”
and that causation between the felony and the sex could even be unintentional or accidental.
Id. ¶¶ 25-26. Nothing in Maestas considered the significance of the basic definition of
criminal sexual penetration in Section 30-9-11(A) (2003), requiring the penetration to be
both “unlawful and intentional.”

{19} Although this Court granted certiorari to consider the proper interpretation of the
elements of CSP II-felony, we reversed the defendant’s convictions in Maestas II without
reaching that issue after the Attorney General candidly conceded that the Legislature
expressly excluded judges from application of the Governmental Conduct Act, removing any
predicate felony that could arguably support a conviction of CSP II-felony. See Maestas II,
2007-NMSC-001, ¶¶ 2, 6-7.

{20} The elements of CSP II-felony were next considered in State v. Moore, 2011-NMCA-
089, 150 N.M. 512, 263 P.3d 289, cert. denied, 2011-NMCERT-008, 268 P.3d 513. The
Court of Appeals panel that decided Moore was not the same panel that decided Maestas.
Moore was an appeal by the state from a district court dismissal of an indictment for failure
of the state to instruct the grand jury that lack of consent was an element of the criminal
sexual penetration of a fourteen-year-old child victim who had been supplied with marijuana
by an adult defendant. See Moore, 2011-NMCA-089, ¶¶ 3, 6. Unlike Maestas, Moore
squarely addressed the importance of the fact that “CSP II incorporates the same universal
definition of criminal sexual penetration in Section 30-9-11(A), including the requirement
that the act be unlawful,” but concluded that the unlawfulness element was established where
the victim was “a statutorily defined child” whose consent was irrelevant to the unlawfulness
of the sex. Moore, 2011-NMCA-089, ¶ 13. Moore specifically relied on prior case law
holding that “the consent of a child between the ages of thirteen and sixteen is legally
irrelevant for both CSP III, where force is required, and CSP IV, where force is not
required.” Id. Distinguishing the situation from that involving an adult victim where consent
may be an issue, the court reversed, holding that there was no need to include language
referring to consent “in the definition of unlawfulness for CSP II and CSP IV in a case
involving an alleged victim that was a statutorily defined child.” Id. ¶¶ 19-20. Moore did not
overrule or expressly disapprove of the more expansive interpretation in Maestas, citing it
with approval as additional support for reversing the district court. Moore, 2011-NMCA-
089, ¶ 14.

{21} The Court of Appeals opinion in this case includes a brief acknowledgment of the
unlawfulness component of the basic statutory definition of criminal sexual penetration:
“The description of the sexual conduct [in the elements instruction for CSP II-felony] that
Defendant caused her daughter . . . , a thirteen-year-old girl, to give fellatio to an adult male,
was sufficient to satisfy the unlawfulness element.” Stevens, No. 29,357, mem. op. at 9. But,
as with Moore, the Court of Appeals in Stevens also cited Maestas with approval: “Since our

                                                6
Supreme Court [in Maestas II] did not address these issues [of unlawfulness in its reversal
of Maestas on other grounds], this Court’s opinion remains the applicable, controlling law
in New Mexico with regard to them.” Stevens, No. 29,357, mem. op. at 9. The Court of
Appeals concluded that the requirement of the elements instruction that the sex occurred
during the commission of a felony was, in the language of Maestas, “‘enough to insure that
an accused will not be convicted for engaging in purely consensual [i.e., lawful] sex.’”
Stevens, No. 29,357, mem. op. at 8-9 (alteration in original). Stevens provided no explanation
for its bracketed language equating lawful sex with consensual sex or for how, in the
elements instruction, the requirement of the concurrent timing of a felony and a sex act
would insure that a person would not be convicted for engaging in purely consensual and
lawful sexual activity.

{22} We now face the statutory construction issue that we did not reach in our Maestas
II opinion vacating the conviction in Maestas. As always, we start with an examination of
the statutory text. The description of the offense of criminal sexual penetration during the
commission of a felony is deceptively simple. Section 30-9-11(E)(5) (2007) defines it as
“criminal sexual penetration perpetrated . . . in the commission of any other felony.” And
what is the punishable “criminal sexual penetration” that becomes an elevated offense if
perpetrated in the commission of another felony? Section 30-9-11(A) (2007) provides the
only statutory definition: “Criminal sexual penetration is the unlawful and intentional
causing of a person to engage in sexual [acts].” Maestas acknowledges this definition but
never addresses the significance of the modifying word “unlawful,” stating simply that the
basic criminal sexual penetration “definition says nothing about force or coercion; instead,
it speaks in terms of ‘causing’ a person to engage in a sex act.” Maestas, 2005-NMCA-062,
¶ 18.

{23} Actually, the statute defines “criminal” sexual penetration as, among other things,
the “unlawful” causing of a person to engage in a sex act. Otherwise, the description of CSP
II would have omitted the term “criminal” and simply described the offense as “sexual
penetration perpetrated . . . in the commission of any other felony.” This Court has
repeatedly cautioned that the statutory term “unlawful” has significance in determining
legislative intent and defining elements of offenses. State v. Osborne, 1991-NMSC-032, ¶
33, 111 N.M. 654, 808 P.2d 624 (holding that “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”); see State v. Parish, 1994-NMSC-073, ¶¶ 1, 12, 118 N.M. 39, 878
P.2d 988 (reversing a homicide conviction for failure to instruct the jury on the statutory
element of unlawfulness and holding that a “jury instruction which does not instruct the jury
upon ‘all questions of law essential for a conviction of any crime submitted to the jury’ is
reversible error” (citation omitted)). Recognizing the independent significance of the
statutory modifier “unlawful” is a principle that has been honored since the earliest days of
our territorial justice system. See Territory v. Miera, 1866-NMSC-004, ¶¶ 2, 5, 1 N.M. 387
(holding an assault indictment defective for failure to allege that a beating was administered
unlawfully, emphasizing that “[b]y using the word ‘unlawfully’ in the statute, the legislature

                                              7
intended to discriminate between acts of violence which may be lawful and those which are
not.”).

{24} Like the Court of Appeals, we have struggled with trying to determine legislative
intent by simply parsing individual words and phrases of the criminal sexual penetration
statute. But unarticulated assumptions of legislators and unanticipated applications faced by
the judicial branch often require that we search more deeply for legislative intent, to avoid
the danger in the law, as in life, of not seeing the forest for the trees. Because neither the
briefs of the parties in this case nor the opinions construing the statute have provided any
analysis of the origins or purpose of the offense of CSP II-felony, we have found it necessary
to do so on our own. See State v. Morales, 2010-NMSC-026, ¶ 13, 148 N.M. 305, 236 P.3d
24 (observing that to determine legislative intent, we must consider not only statutory
language and structure but also legislative history and motivating policies). We begin our
analysis with a historical review of the evolution of our criminal sexual penetration statutes.

{25} The common law from which Anglo-American sexual assault crimes originated
traditionally focused on forcible or nonconsensual intercourse, but “from ancient times the
law has afforded special protection to those deemed too young to understand the
consequences of their actions.” U.S. v. Ransom, 942 F.2d 775, 777 & n.2 (10th Cir.1991),
cert. denied, 502 U.S. 1042 (1992) (quoting Blackstone’s Commentaries for the proposition
“that by the year 1275 the law in England prohibited ‘carnally knowing and abusing any
woman child under the age of ten years; in which case the consent or non-consent is
immaterial, as by reason of her tender years she is incapable of judgment and discretion’”
(citation omitted)). A review of the Model Penal Code, which contains no suggested offense
involving criminal sexual penetration during the commission of a felony, indicates the same
approach to criminalizing imposition of sex acts on unwilling victims or those not deemed
to be in a position to provide a free and lawful consent. See Model Penal Code § 213, Sexual
Offenses, 10A U.L.A. 432 (2001).

{26} New Mexico’s first territorial statutes contained only one sex crime: “If any person
shall unlawfully have carnal knowledge of any woman by force and against her will, he
shall, on conviction thereof, be castrated or imprisoned not exceeding ten years, or fined not
exceeding one thousand dollars.” 1846 Kearny Code of Laws, Crimes and Punishments, art.
II, § 2. In 1854, the Territorial Legislature added the common law offense of statutory rape
involving sex with a child below the age of lawful consent, punishing by “imprisonment . . .
for life” anyone who “shall unlawfully and carnally know and abuse any female child under
the age of ten years.” 1853-54 N.M. Laws, Act 28, ch. III, § 34.

{27} In the century and a half of New Mexico’s existence as a territory and a state, the
Legislature has made various amendments to our sexual assault laws, but it has never
deviated from the common law approach of criminalizing only those sex acts that are
perpetrated on persons without their consent, either as a matter of fact or, in the case of
children or other vulnerable victims, as a matter of law. See, e.g., 1963 N.M. Laws, ch. 303,
§ 9 (enacting a new criminal code and providing punishments for sexual intercourse with

                                              8
children under the age of sixteen years, Subsection 9-3, and for intercourse with a victim
“without her consent” when her resistance is forcibly overcome, she is unconscious or
physically unable to resist, she is incapable of giving consent because of a mental disability,
or when she has been plied with resistance-impairing substances, Subsection 9-2).

{28} The sexual penetration during commission of a felony offense was first enacted as
part of a complete restructuring of the New Mexico sexual assault laws in 1975, prompted
by widespread concerns locally and nationally about the discriminatory aspects of many
features of our traditional rape laws. See R. Bruce Washburn, Rape Law: The Need for
Reform, 5 N.M. L. Rev. 279, 279 & nn.1-4 (1975) (describing the 1975 enactment in historic
perspective); Charles W. Daniels, The Impact of the Equal Rights Amendment on the New
Mexico Criminal Code, 3 N.M. L. Rev. 106, 112-14 (1973) (arguing for statutory reform to
protect male as well as female victims and punish female as well as male criminal acts).
Although there is no written New Mexico legislative history, the new statutes were clearly
part of a national trend, influenced in part by the ground-breaking Michigan Sexual Conduct
Act, the result of several years of drafting and lobbying efforts by the Michigan Women’s
Task Force on Rape. See W. Patrick Dreisig, Note, Criminal Law—Sexual Offenses—A
Critical Analysis of Michigan’s Sexual Conduct Act, 23 Wayne L. Rev. 203, 204 n.8 (1976)
(indicating that 28 states, including New Mexico, revised their rape laws).

{29} One of the authors of the 1975 Michigan Criminal Sexual Conduct Act was
prosecutor Patricia Boyle, who later went on to serve as a justice of the Michigan Supreme
Court. See Ann Zaniewski, Patricia Boyle: Former Michigan Supreme Court justice
dedicated to public service, Detroit Free Press, Jan. 15, 2014, at A5 (citing, in Justice
Boyle’s obituary, her role in helping to draft the landmark legislation). In an article
contemporaneous with the Michigan legislation, Justice Boyle discussed the statute she said
had been “specifically designed to comprehensively codify and define sexual crimes,
rationally relate penalties to the harmfulness of the conduct and encourage reporting and
prosecution of sexual offenses by victims.” Patricia Boyle, The Criminal Sexual Conduct
Act, 43 Detroit Lawyer at 6 (October 1975). The 1975 Michigan act created a new offense
of sexual penetration that “occurs during the commission of another felony.” Boyle, 43
Detroit Lawyer at 8; see also Mich. Comp. Laws Ann. § 750.520b(1)(c) (West 2014) (“A
person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual
penetration with another person and . . . [s]exual penetration occurs under circumstances
involving the commission of any other felony.”). Despite the fact that the Michigan
Legislature, unlike the New Mexico Legislature, did not insert the modifiers “criminal” or
“unlawful” before the term “sexual penetration,” it was clear that the intent of the drafters
was to punish criminal sexual conduct “achieved by ‘force or coercion’: broadly defined to
include not only actual force but submission due to the presence of a weapon, threats to use
force, or . . . threats to retaliate in the future.” Boyle, 43 Detroit Lawyer at 9. The goals of
the Michigan act were “to alter the attitudes of the public and the criminal justice system
toward the offense, the offender, and the victim.” Id. at 11.

       The conduct prohibited is assaultive conduct against the sexual privacy of

                                               9
       another person, as opposed to the prior prohibition against unauthorized
       eroticism. The offense is the invasion of that privacy by force, coercion, or
       other undue advantage. . . . The[] goals . . . will be accomplished only to the
       extent that those charged with responsibility for enforcing and interpreting
       the Act, that is, police, prosecutor, trial and appellate benches, understand
       and apply the Act in light of the legislative purpose.

Id.

{30} Despite the lack of textual specificity in the Michigan act, Michigan courts have
recognized their “duty to give a reasonable statutory construction to the statute to prevent
the entire statute from being rendered unconstitutional” and to avoid applying a serious
criminal statute in “‘ridiculous’ circumstances.” People v. Lockett, 814 N.W.2d 295, 301-02
(Mich. Ct. App. 2012) (summarizing precedents and upholding conviction where there was
a direct relationship between the sexual penetration and the felony of providing sexually
explicit material to a minor and where the victim of the felony was also the victim of the
sexual penetration).

{31} Our review of the statutes of all 50 states shows that the vast majority of other states,
even those that have patterned their statutes after the Michigan Criminal Sexual Conduct
Act, never followed Michigan’s lead in creating a separate offense of sexual penetration
during the commission of a felony. Of the very few states that adopted any sexual offenses
enhanced by commission of a separate felony, all have statutory language or court
interpretations that clarify that the victim must be forcibly or otherwise nonconsensually the
subject of the defendant’s sexual conduct.

{32} Definitional elements of the Delaware statute include that “[t]he sexual intercourse
occurs without the victim’s consent and it was facilitated by or occurred during the course
of the commission or attempted commission of . . . [a]ny felony.” Del. Code Ann. tit. 11, §
773(a)(2)a (West 2010).

{33} The Illinois statute defining aggravated criminal sexual assault requires that the
defendant commit both the predicate felony and a criminal sexual assault. See 720 Il. Comp.
Stat. Ann. 5/11-1.30(a)(4) (West 2011) (enhancing the penalties for criminal sexual assault
perpetrated during the commission of a felony); 720 Il. Comp. Stat. Ann 5/11-1.20(a) (West
2011) (defining the base crime of criminal sexual assault as sexual penetration by force or
threat of force, when the victim is unable to give knowing consent, or when the victim is a
minor); People v. Cox, 557 N.E.2d 288, 295 (Ill. App. Ct. 1990) (observing that a conviction
for aggravated criminal sexual assault of an adult victim required both commission of the
predicate felony and “an act of sexual penetration by the use of force or threatening the use
of force”).

{34} The New Jersey statutes involving sexual assaults during commission of a felony
require both an act of sexual penetration using “physical force or coercion” and a predicate

                                             10
felony limited to “robbery, kidnapping, homicide, aggravated assault on another, burglary,
arson or criminal escape.” See N.J. Stat. Ann. § 2C:14-2c(1) (West 2012) (requiring the use
of force or coercion for the sexual assault crime); N.J. Stat. Ann. § 2C:14-2a(3) (enhancing
the penalties for sexual assaults committed during commission of the specified felonies);
State v. Drury, 919 A.2d 813, 824 (N.J. 2007) (holding that the felony of carjacking does not
qualify as a statutory predicate offense).

{35} South Carolina law provides enhanced penalties if a “sexual battery” is inflicted on
a “victim of forcible confinement, kidnapping, trafficking in persons, robbery, extortion,
burglary, housebreaking, or any other similar offense or act.” See S.C. Code Ann. § 16-3-
652(1)(b) (2010).

{36} The Washington statute defining rape during commission of a felony requires
penetration by “forcible compulsion” with severe limitations on the nature of the predicate
felony, which may be either kidnapping of the rape victim or felonious entry into the
building or vehicle where the rape victim is located. See Wash. Rev. Code Ann. §
9A.44.040(1) (West 1998).

{37} “While looking to similar state statutes cannot conclusively answer the question of
what actions our own Legislature meant to proscribe,” we have recognized that comparisons
can be “instructive” in understanding legislative intent. State v. Tafoya, 2012-NMSC-030,
¶ 23, 285 P.3d 604 (analyzing statutes of other states in construing the legislative purpose
of the New Mexico drive-by shooting statute). It is significant that no other American
jurisdiction has been willing to impose sexual assault convictions on adults with the capacity
to consent who engage in otherwise lawful sexual activity simply because the sex occurs at
the same time as or can be said to have been facilitated or caused by the commission of a
felony offense. In the case before us, for example, such a broad interpretation would have
supported convicting both Defendant and her adult boyfriend of CSP II-felony for having
consensual relations with each other after they became euphoric from using illegal drugs.
Because marital status is now irrelevant to culpability for modern criminal sexual
penetration, a conviction for CSP II-felony could be imposed against a married or single
couple, each adult causing the other to have mutually consensual intercourse while either
participant is operating an unlawful gambling enterprise, see NMSA 1978, § 30-19-3 (1963);
or neglecting a nursing home resident, see NMSA 1978, § 30-47-5(B) (1990); or retaining
stolen property, see NMSA 1978, § 30-16-11(F) (2006); or practicing dentistry without a
license, see NMSA 1978, § 61-5A-18(A) (2003); or any of the multitude of felonies that the
New Mexico Statutes punish as felonies, most having nothing to do with coercive sexual
behavior.

{38} Like the Michigan court in Lockett, we recognize our judicial responsibility to avoid
ridiculous applications of the law by construing ambiguous statutes in a way that will
“harmonize all relevant statutory provisions and avoid absurd results.” State ex rel. Children,
Youth & Families Dep’t v. Marlene C., 2011-NMSC-005, ¶ 15, 149 N.M. 315, 248 P.3d 863.
Section 30-9-11(G) criminalizes sexual conduct perpetrated on children under the age of

                                              11
lawful consent, and Section 30-9-11(F) criminalizes criminal sexual penetration
accomplished “through the use of force and coercion.” NMSA 1978, Section 30-9-10(A)
(2005) defines “force and coercion” as including not only physical force but also threats of
future force or retaliation, intercourse with mentally or physically vulnerable victims, and
consensual or nonconsensual penetration of a patient by a psychotherapist. There is an
obvious and consistent thread in the New Mexico criminal sexual penetration statutes that
is consistent with both New Mexico sexual offense history and with the law of all other
American jurisdictions, punishing imposition of sexual activity on those who are not willing
participants in fact or in law, and there is nothing in our statutes or their history that
articulates or even implies any legislative intent to deviate from that fundamental concept.

{39} We conclude that more than a simple temporal or causal relationship is necessary to
honor the legislative intent underlying the criminal sexual penetration statutes, criminalizing
sexual acts perpetrated on persons without their consent, either as a matter of fact or, in the
case of children or other vulnerable victims, as a matter of law. Our interpretation is guided
not only by the kinds of offenses described in the statute but also by the history of criminal
sexual assault laws and by the recognition that sexual intercourse involving consenting
adults is not only a normal, desirable, and biologically essential human activity but is also
a fundamental constitutional liberty. See Lawrence v. Texas, 539 U.S. 558, 578 (2003)
(holding that the choice of consenting adults to engage in intimate physical relationships is
a form of liberty protected by the Due Process Clause of the Fourteenth Amendment to the
United States Constitution, regardless of the marital status or sexual preference of the
participants). We therefore hold that when a CSP II charge is based on the commission of
a felony, it must be a felony that is committed against the victim of, and that assists in the
accomplishment of, sexual penetration perpetrated by force or coercion or against a victim
who, by age or other statutory factor, gave no lawful consent.

{40} Maestas suggested that our jury instruction on the elements of CSP II-
felony—requiring the jury to find in element number one that the defendant caused a person
to engage in a sex act and in element number two that the defendant committed that act
“during the commission of” a felony—“constitute[s] a requirement that there be a causal
connection between the felony and the sex act.” Maestas, 2005-NMCA-062, ¶ 24; see UJI
14-954 NMRA (including as elements number one and two the identical two elements
applicable to Maestas before an amendment adding the unlawfulness element to the
instruction became effective in 2005). Moore followed the reasoning of Maestas in holding
that the jury need not be instructed that the sex act must be unlawful in a case where the
victim supplied with drugs by a defendant is in fact a child below the age of consent. Moore,
2011-NMCA-089, ¶ 13. While a properly instructed jury in both Maestas and Moore might
well have been justified in finding both unlawfulness in the sexual activity and a causal link
between felonies committed against the victim and the resulting unlawful sex acts, the fact
is that the juries were not called on to make any of those findings. And the law is clear that
the Sixth Amendment right to trial by jury guarantees that all facts essential to a defendant’s
sentence must be determined by a jury, whether or not a judge or panel of judges might think
those facts were proved in a particular case. See State v. Frawley, 2007-NMSC-057, ¶¶ 3-5,

                                              12
12-13, 143 N.M. 7, 172 P.3d 144 (relying on Apprendi v. New Jersey, 530 U.S. 466 (2000),
and holding unconstitutional a provision of the Criminal Sentencing Act which allowed a
trial judge to increase a defendant’s basic sentence by up to one-third upon a finding of
certain aggravating circumstances). Accordingly, we request that our Uniform Jury
Instructions Committee for Criminal Cases recommend amendments to our jury instructions
to clarify the elements juries must consider before returning verdicts for CSP-felony.

{41} We now turn to the issue whether the deficiency in the elements instructions in this
case constituted fundamental error that requires reversal despite Defendant’s failure to object
or otherwise preserve the error at trial.

B.     There Was No Fundamental Error in the Circumstances of This Case

{42} We review an unpreserved challenge to a jury instruction for fundamental error. See
State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (distinguishing the
reversible error standard of review for a preserved challenge to a jury instruction from the
fundamental error standard of review for an unpreserved challenge). “‘Fundamental error
only applies in exceptional circumstances when guilt is so doubtful that it would shock the
judicial conscience to allow the conviction to stand.’” State v. Cunningham, 2000-NMSC-
009, ¶ 13, 128 N.M. 711, 998 P.2d 176 (citation omitted). A “trial court’s error in failing to
instruct on an essential element of a crime for which defendant has been convicted, where
there can be no dispute that the element was established, therefore does not require reversal
of the conviction.” State v. Orosco, 1992-NMSC-006, ¶ 12, 113 N.M. 780, 833 P.2d 1146.

{43} In convicting the Defendant of CSP II-felony in this case based on the instructions
actually given, a unanimous jury necessarily rejected Defendant’s alibi defense and found
beyond a reasonable doubt that Defendant on two occasions had caused her adult boyfriend
to sexually penetrate her daughter during the commission of the felony of distribution of a
controlled substance to a minor.

{44} There could also have been no doubt about the elements missing from the instruction,
the unlawfulness of the sexual penetration, and the fact that the penetration was a result of
the commission of a felony. The sexual penetration was unlawful by the explicit terms of
Section 30-9-11(G)(1) (2007), which criminalizes sexual relations between a child thirteen
to sixteen years of age and a person who is at least four years older. In her brief in chief
before this court, Defendant candidly acknowledged that Defendant’s daughter was thirteen
years old at the time of the events in this case and Defendant’s boyfriend was at least ten
years older. The daughter’s equivalent testimony at trial went unchallenged by the defense.

{45} Also unchallenged was the daughter’s testimony that it was after she had been
injected with methamphetamine that she acquiesced to her mother’s direction to perform oral
sex on the adult boyfriend because, in her words, she “was, like, high” and “didn’t really
care,” establishing the nexus of causation between the commission of the felony against the
daughter and the resulting unlawful sex act committed on the daughter. This case therefore

                                              13
exemplifies the kind of situation in which a preserved challenge to an instruction might have
resulted in reversal but in which the reviewing court, in the absence of a preserved challenge,
does not consider guilt to be so doubtful that a conviction would shock the judicial
conscience. See Orosco, 1992-NMSC-006, ¶ 12, (reviewing cases in which convictions were
affirmed despite omission of an essential element from the jury instructions). In Orosco, we
rejected claims of fundamental error and affirmed convictions for sex offenses committed
on children, despite the erroneous failure of the jury instructions to require findings that
criminal sexual contact must be unlawful as well as intentional. Id. ¶¶ 3, 5, 20. We observed
that the jury necessarily found that the defendants had fondled the genitals of the children
in the restroom of a bar and in a defendant’s truck, and there was no issue as to whether the
disputed “touchings, if they occurred, were other than unlawful.” Id. ¶¶ 9, 11.

{46} We similarly conclude that the deficiencies of the jury instructions in this case did
not rise to the level of fundamental error. There is simply no issue as to whether the acts of
injecting a thirteen-year-old child with methamphetamine and then causing her to participate
in fellatio with an adult, both found by the jury to have occurred, were, in the words of
Orosco, “other than unlawful.”

C.     The Amended Date Description Did Not Prejudice Defendant

{47} We also address Defendant’s argument that she was unfairly prejudiced in her
defense against all of the charges because the district court allowed the State to change the
description of the dates of the alleged offenses after Defendant had prepared and presented
an alibi defense.

{48} Rule 5-204(C) NMRA of the Rules of Criminal Procedure for the District Courts
provides that

       [n]o variance between those allegations of a complaint, indictment,
       information or any supplemental pleading which state the particulars of the
       offense, whether amended or not, and the evidence offered in support thereof
       shall be grounds for the acquittal of the defendant unless such variance
       prejudices substantial rights of the defendant. The court may at any time
       allow the indictment or information to be amended in respect to any variance
       to conform to the evidence. If the court finds that the defendant has been
       prejudiced by an amendment, the court may postpone the trial or grant such
       other relief as may be proper under the circumstances.

{49} “We review a district court’s interpretation and application of Rule 5-204 de novo.”
State v. Branch, 2010-NMSC-042, ¶ 19, 148 N.M. 601, 241 P.3d 602, overruled on other
grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 & n.6, 275 P.3d 110.

{50} A criminal indictment or information need not contain exacting detail as long as the
defendant is given sufficient notice of the charges. See State v. Cawley, 1990-NMSC-088,

                                              14
¶ 13, 110 N.M. 705, 799 P.2d 574 (recognizing the right of the accused to be apprised of the
charge against him and also recognizing that not all charging documents need to establish
the time or date of the offense); see also State v. Baldonado, 1998-NMCA-040, ¶¶ 18-21,
124 N.M. 745, 955 P.2d 214 (recognizing the need to reconcile a defendant’s “due process
right to reasonable notice of the charges” and the difficulty faced by the state in prosecuting
criminal sexual charges committed against children who often have a difficult time
remembering precise dates of crimes that may have been committed against them); accord
Rule 5-205(A)(1) NMRA (“It shall be unnecessary for a complaint, indictment or an
information to contain the [time of the commission of the offense] unless such allegations
are necessary to give the defendant notice of the crime charged.”).

{51} In Branch, this Court affirmed a district court decision to allow the state to amend
the indictment in a murder trial after the state had presented its evidence. 2010-NMSC-042,
¶¶ 18, 26. The amendment added two predicate felonies to the charge of felony murder in
a case involving multiple charges for crimes against multiple victims that arose from the
defendant’s running over his girlfriend with his truck and also running down several people
who had stopped to give her assistance, ultimately killing one. Id. ¶¶ 2-4, 21-22. The
defendant argued that he was prejudiced by the change because his preparation and cross-
examination might have progressed differently based on the additional predicate felonies.
Id. ¶ 21. Branch rejected the defendant’s argument, stating that the defendant’s “mere
speculation of how he would have conducted his defense differently does not rise to the level
of prejudice that is required for an acquittal.” Id. The Branch Court also explained that the
variance allowing two of the original charges to be used as additional predicate felonies in
felony murder did not prejudice the defendant’s substantial rights because the conduct
underlying these additional predicate felonies was the same as the conduct underlying one
of the predicate felonies in the original felony murder charge, providing the defendant with
adequate notice by which he “could ‘reasonably anticipate from the indictment what the
nature of proof against him [would] be.’” Id. ¶ 22 (alteration in original) (citation omitted).

{52} In State v. Dombos, the Court of Appeals affirmed the district court’s decision to
allow an amendment expanding the time frame of the charges in order to conform with
evidence presented at trial. See 2008-NMCA-035, ¶¶ 24-25, 143 N.M. 668, 180 P.3d 675.
The original indictment charged the defendant with numerous crimes stemming from several
sexual offenses against his wife that occurred in February 2004 after the two married and
moved to Alamogordo. See id. ¶¶ 1-2, 6. The original charges alleged that one count each
of kidnapping, battery, and criminal sexual penetration occurred on or between February 9,
2004, and February 18, 2004; and another set of counts in the amended indictment alleged
that each of those crimes again occurred on or about February 19, 2004. Id. ¶ 24. Partway
through the trial, the state moved to enlarge the time period to allow that the two sets of
events occurred at some time between February 1 and February 20. See id. ¶¶ 3, 24.
Although the defendant argued that the change was unfairly prejudicial, the Dombos Court
held that the defendant did not assert any specific claim of prejudice. See id. ¶ 26. Rather,
the Dombos Court explained that the defendant did not rely on the specific time frame in his
defense and that he “knew the nature of the charges and knew the identity of the victim. He

                                              15
also knew that all the charges were alleged to have occurred during the period of time [the
defendant and his wife] lived together.” Id.

{53} In this case, Defendant argues that she was prejudiced by the amended date
description because of her reliance on an alibi defense at trial. There are several flaws in this
argument.

{54} Most fundamentally, the information never alleged precise dates of the multiple
crimes charged. To the contrary, it generally alleged that all of the offenses occurred “on or
about November 12, 2007.” From the outset, Defendant and her counsel were on notice that
the daughter could not say precisely when the events occurred. In the affidavit for
Defendant’s arrest warrant, the investigating officer stated, “I asked [the daughter] if she
knew an approximate date of the incident and she said no but that it was after Halloween but
before Thanksgiving.” The State’s pretrial alibi notice demand referred to the offenses as
allegedly occurring, in the general terms of the criminal information, “on or about . . .
November 12, 2007,” and Defendant’s responsive alibi notice recited that her anticipated
alibi defense would cover “the time the alleged offenses were committed as charged in the
Criminal Information.” Neither the daughter’s trial testimony that the incidents must have
occurred shortly before Halloween, which was October 31, nor the amendment to the date
description in the information to conform to the daughter’s testimony went beyond the time
frame fairly described in the original charges.

{55} In addition, like the defendant in Dombos who was on notice that the alleged crimes
occurred during the time he was living with his new wife in Alamogordo, Defendant was on
notice that the events at issue in this case were alleged to have occurred sometime in the fall
of 2007 when Defendant was going through a divorce and when Defendant, her daughter,
and the boyfriend all lived in the Aztec area.

{56} Finally, the defense specifically knew of the daughter’s revised date estimates as
soon as the daughter testified in the State’s case in chief, before the defense made its
reserved opening statement and before it began presenting its incomplete alibi evidence. The
State’s later request to amend the charges to conform to the evidence, as permitted by Rule
5-204, could not have been a surprise to the defense. The defense made no objection to the
daughter’s testimony, no claim of prejudice from her corrected recollection before the
beginning of the defense case, and no request for a continuance or such other relief as would
be appropriate when a defendant is actually prejudiced by an amendment. See State v.
Marquez, 1998-NMCA-010, ¶ 21, 124 N.M. 409, 951 P.2d 1070 (“The remedy afforded for
prejudice by an amendment is to ‘postpone the trial or grant such other relief as may be
proper under the circumstances.’” (quoting Rule 5-204(C))). Instead, the defense
affirmatively used the daughter’s uncertainty about the precise dates to attack her credibility,
both on cross-examination and in closing argument.

{57} Accordingly, we conclude both that Defendant was not prejudiced by the amended
date description and that Defendant waived any claim of prejudice when she failed to request

                                               16
an opportunity to respond further to the daughter’s testimony or seek other relief from the
district court and instead attempted to exploit the daughter’s uncertainty about the dates. We
affirm the Court of Appeals and hold that the State’s variance between the charging
information and jury instructions was proper under Rule 5-204(C).

IV.    CONCLUSION

{58} Although we conclude that the jury instructions on the elements of CSP II-felony
were inadequate, we hold that the deficiency did not result in fundamental error in the
circumstances of this case, where the sexual activity with Defendant’s thirteen-year-old child
was undeniably criminal sexual penetration during and resulting from the commission of a
felony. Finding no other error, we affirm all of Defendant’s convictions.

{59}   IT IS SO ORDERED.

                                              ____________________________________
                                              CHARLES W. DANIELS, Justice

WE CONCUR:

____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice




                                             17
