                                                             I attest to the accuracy and
                                                              integrity of this document
                                                                New Mexico Compilation
                                                              Commission, Santa Fe, NM
                                                             '00'04- 16:41:16 2012.09.19

Certiorari Denied, July 19, 2012, No. 33,665; Certiorari Denied, August 1, 2012, No.
33,678

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-092

Filing Date: May 24, 2012

Docket No. 30,281

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

NICK ADAM TRUJILLO,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge

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

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

WECHSLER, Judge.

{1}     Defendant Nick Adam Trujillo appeals his conviction for second degree criminal
sexual contact of a minor (CSCM). Defendant argues that (1) the State presented insufficient
evidence to support Defendant’s conviction, (2) the district court deprived Defendant of his

                                             1
rights to due process and confrontation by not requiring the police case agent to testify, and
(3) the district court erred in sentencing Defendant for second degree CSCM because (a) the
jury was instructed using the third degree CSCM jury instruction, or, alternatively, (b)
Defendant’s conduct did not violate the statute for second degree CSCM, NMSA 1978, § 30-
9-13(B) (2003), and instead his conduct is a third degree felony contrary to Section 30-9-
13(C). We hold that the State presented sufficient evidence to support Defendant’s
conviction and that the district court did not violate Defendant’s confrontation or due process
rights. However, because Defendant’s conduct amounted to a third degree felony under
Section 30-9-13(C) and not a second degree felony under Section 30-9-13(B), the district
court erred by denying Defendant’s motion to amend the degree of charge. Accordingly, we
reverse the CSCM conviction under Section 30-9-13(B) (second degree felony) and remand
for entry of a CSCM conviction under Section 30-9-13(C) (third degree felony).

BACKGROUND

{2}     A jury found Defendant guilty of second degree CSCM, contrary to Section 30-9-
13(B)(1), after Defendant allegedly placed the hand of his girlfriend’s ten-year-old daughter
(C.A.) on his unclothed penis. C.A. testified that she usually slept on the couch, but that the
night of the incident she was scared. She got up and asked her mother (Mother) if she could
sleep in Mother’s room with Mother, Defendant, and her brother. C.A. watched television
for a little while and then went to sleep in between Defendant and her brother. C.A.
awakened to Defendant grabbing her wrist and “put[ting her hand] on his middle part.” She
stated that her hand was under Defendant’s clothing and that she touched skin. When asked
whether Defendant was awake, C.A. stated that she believed he was awake and that she saw
his eyes open and then close. C.A. then said Defendant’s name, and it caused Defendant to
turn his head around and Mother to wake up. Mother went into the kitchen, and C.A.
followed her and told Mother what had happened. Mother told C.A. something to the effect
that Defendant “must have been asleep, dreaming, or something” and went back to bed.

{3}      Defendant presented testimony from Mother that C.A. did not stay at the house with
her, Defendant, and C.A.’s siblings on the night of the incident. Mother additionally
testified that C.A. always wanted to be the focus of attention and was jealous of Defendant
and her siblings, and, therefore, Mother and C.A. were not close. Mother also testified that
C.A. had previously made similar allegations about Mother’s ex-boyfriend and his father.

{4}      After the jury returned its verdict, Defendant filed a motion to amend the degree of
the charge, arguing that Defendant’s conduct was not prescribed by Section 30-9-13(B) as
a second degree felony, but instead was a third degree felony under Section 30-9-13(C). The
district court denied the motion and sentenced Defendant for second degree CSCM. This
appeal timely followed.

SUFFICIENCY OF THE EVIDENCE

{5}    Defendant contends that the State failed to present sufficient evidence that he

                                              2
intentionally caused C.A. to touch his unclothed penis. We review the sufficiency of the
evidence pursuant to a substantial evidence standard. State v. Sutphin, 107 N.M. 126, 131,
753 P.2d 1314, 1319 (1988). “The relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” State v. Garcia, 114 N.M. 269,
274, 837 P.2d 862, 867 (1992) (alteration, internal quotation marks, and citation omitted).
This Court evaluates the sufficiency of the evidence in a criminal case by viewing the
evidence in the light most favorable to the verdict, resolving all conflicts and indulging all
permissible inferences in favor of upholding the conviction, and disregarding all evidence
and inferences to the contrary. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971
P.2d 829. We will not substitute our judgment for that of the factfinder, nor will we reweigh
the evidence. State v. Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 (1993).

{6}     In order for the jury to find Defendant guilty of CSCM, the State had to prove that
(1) Defendant caused C.A. to touch his unclothed penis, and (2) C.A. was twelve years of
age or under. C.A.’s testimony regarding the incident was sufficient for a reasonable jury
to conclude that Defendant committed CSCM by causing C.A. to touch his unclothed penis.
See State v. Nichols, 2006-NMCA-017, ¶¶ 5-11, 139 N.M. 72, 128 P.3d 500 (holding that
the victim’s partially impeached testimony was sufficient evidence to convict a defendant
for criminal sexual penetration). Although Defendant argues that the evidence did not
support a conclusion that he acted intentionally, “[i]ntent is subjective and is almost always
inferred from other facts in the case, as it is rarely established by direct evidence.” State v.
Sosa, 2000-NMSC-036, ¶ 9, 129 N.M. 767, 14 P.3d 32 (internal quotation marks and citation
omitted). In this case, the evidence that Defendant caused C.A. to touch his unclothed penis
by grabbing her wrist, while in bed, with his eyes open, is sufficient to infer that he
committed CSCM intentionally.

{7}     Defendant points to contrary evidence in support of his argument that the State failed
to prove that he intentionally committed CSCM. He argues that the evidence established that
there was no source of light in the bedroom where the events occurred because the electricity
was out, the lights were off, and the curtains were closed, and, therefore, C.A. could not have
seen whether Defendant’s eyes were open. Further, Mother testified that C.A. stayed at a
friend’s house the night of the incident, and Defendant “vehemently denied the allegations
below.” Although this evidence may support Defendant’s denial of the allegations, it is not
the role of this Court to substitute our judgment for that of the factfinder. See Hernandez,
115 N.M. at 26, 846 P.2d at 332. Further, “it is the role of the factfinder to judge the
credibility of witnesses and determine the weight of evidence.” State v. LaPietra, 2010-
NMCA-009, ¶ 11, 147 N.M. 569, 226 P.3d 668 (alteration, internal quotation marks, and
citation omitted).

CASE AGENT’S TESTIMONY

{8}   Defendant argues that the district court violated his confrontation right to cross-
examine witnesses and his due process rights because the district court did not require the

                                               3
police case agent to testify at trial and, thereby, did not allow him to present a likely defense.
As both issues present a question of law, we review de novo. See State v. Gonzales, 1999-
NMSC-033, ¶ 22, 128 N.M. 44, 989 P.2d 419 (“Confrontation Clause claims are issues of
law that we review de novo.” (internal quotation marks and citation omitted)); State v.
Johnson, 2004-NMCA-058, ¶ 12, 135 N.M. 567, 92 P.3d 13 (reviewing a defendant’s claim
that witness testimony violated his due process rights de novo).

{9}      Four days before trial, the State informed the district court that Detective Randy
Pitcock, the case agent who conducted the investigation, was going to be on vacation during
the trial. The State had listed Detective Pitcock on its witness list and had subpoenaed him
for trial. However, the State told the district court that it did not want the matter continued,
and Detective Pitcock would probably not be called as a witness. The State further told the
district court that it did not need Detective Pitcock’s testimony to prove its case. Defense
counsel did not subpoena Detective Pitcock and stated that it was not defense’s practice to
subpoena the case agent or other officers.

{10} Defense counsel argued that Detective Pitcock needed to be available for information
regarding matters that may arise during trial. He noted that Detective Pitcock interviewed
all the witnesses in the case and was responsible for the entire investigation in the case. He
argued that Defendant had a right to cross-examine and confront witnesses. The district
court stated that Detective Pitcock was not going to be a State witness and that it would not
compel his attendance or move the trial date unless defense counsel presented a compelling
need.

{11} At the conclusion of trial, defense counsel raised a number of perceived issues
regarding Detective Pitcock’s absence. He argued that Detective Pitcock’s absence did not
allow Defendant to present evidence regarding (1) prior allegations made by C.A. against
her stepfather two years earlier, which Detective Pitcock noted in his report; (2) Defendant’s
denial of the allegations and calm demeanor when arrested; (3) any information Detective
Pitcock had regarding whether C.A.’s residence had electricity the night of the incident, as
well as Detective Pitcock’s specialized knowledge in these types of cases; (4) whether
Detective Pitcock collected clothing, bedding, or photographs at the scene; and (5) whether
Detective Pitcock investigated claims that C.A. stayed at a friend’s house, including whether
Mother drove C.A. to school the day after the alleged incident.

{12} Defendant first argues that by not requiring Detective Pitcock to testify, the district
court violated his confrontation rights because he was not able to cross-examine witnesses
and ensure the reliability of the evidence presented by the State. In support, Defendant cites
cases addressing whether the trial court unduly restricted the scope of cross-examination of
a prosecution witness. See Olden v. Kentucky, 488 U.S. 227, 229-33 (1988) (addressing
whether the trial court unduly restricted the scope of cross-examination by not allowing the
defendant to cross-examine the alleged victim whether she was having an affair, which was
relevant to her motive); Chambers v. Mississippi, 410 U.S. 284, 294-303 (1973) (addressing
whether the trial court erred by not allowing cross-examination of a person who confessed

                                                4
to the crime because of a state evidentiary rule); State v. Smith, 2001-NMSC-004, ¶ 19, 130
N.M. 117, 19 P.3d 254 (addressing whether the district court unduly limited the cross-
examination of two state witnesses); State v. Martinez, 1996-NMCA-109, ¶ 14, 122 N.M.
476, 927 P.2d 31 (addressing whether the district court unduly restricted cross-examination
of a state witness by not allowing the defendant to inquire into whether he received leniency
from the state). However, this is not a case in which the district court limited the scope of
cross-examination of a State witness or admitted testimonial evidence without allowing
Defendant to cross-examine its source. The State did not call Detective Pitcock as a witness
or use information from his investigation in proving its case. Under these circumstances, the
district court’s actions did not implicate Defendant’s confrontation rights. See State v.
Romero, 2006-NMCA-045, ¶ 46, 139 N.M. 386, 133 P.3d 842 (stating that the confrontation
clause applies only to testimonial statements including “(1) ex parte in-court testimony or
its functional equivalent . . .; (2) extrajudicial statements . . . contained in formalized
testimonial materials . . .; and (3) statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be available
for use at a later trial” (internal quotation marks and citation omitted)).

{13} Defendant further argues that the district court’s failure to require Detective Pitcock
to testify violated his due process and compulsory process rights because “the admission of
evidence that is relevant and necessary to a fair determination of the issue of . . .
[D]efendant’s guilt or innocence is compelled by constitutional due process.” See Rock v.
Arkansas, 483 U.S. 44, 46-49, 62 (1987) (holding that the trial court violated the defendant’s
right to present a defense and the right to compulsory process by not allowing the
defendant’s hypnotically-refreshed testimony); Crane v. Kentucky, 476 U.S. 683, 690-91
(1986) (holding that the trial court denied the defendant the right to present a defense by not
allowing testimony regarding the voluntariness of his confession); Washington v. Texas, 388
U.S. 14, 16-17, 23 (1967) (holding that the trial court deprived the defendant of his right to
compulsory process by not requiring the defendant’s accomplice to testify). Defendant’s
argument is that the district court denied him the right to question Detective Pitcock
regarding the investigation, C.A.’s previous allegations against her stepfather, and
Defendant’s calm demeanor when arrested, and that this information was relevant to whether
Defendant committed CSCM. However, the district court did not prevent Defendant from
presenting any evidence. Had Defendant believed that Detective Pitcock had exculpatory
information, Defendant could have subpoenaed him and compelled him to testify. Defendant
does not cite any authority for the proposition that a defendant is denied due process by the
unavailability of a state witness. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d
1329, 1330 (1984) (“We assume where arguments in briefs are unsupported by cited
authority, counsel after diligent search, was unable to find any supporting authority.”). The
district court did not violate Defendant’s confrontation rights or due process rights by not
requiring Detective Pitcock to testify.

DEGREE OF CHARGE

{14}   The State instructed the jury that “to find . . . [D]efendant guilty of [CSCM], the

                                              5
[S]tate must prove to your satisfaction beyond a reasonable doubt [that D]efendant caused
[C.A.] to touch the unclothed penis of . . . [D]efendant.” This instruction was modeled after
UJI 14-925 NMRA (2005) (amended 2010), which was the uniform jury instruction in effect
at the time for third degree CSCM. In relevant part, UJI 14-925 (2005) requires that the state
prove that “[t]he defendant . . . caused ________ (name of victim) to touch the ________
[part of anatomy touched] of the defendant[.]” The State inserted “unclothed penis” as the
part of the anatomy touched, and the district court gave the instruction to the jury,
determining that it accurately reflected second degree CSCM.

{15} Defendant argues that the district court erred by sentencing Defendant for second
degree CSCM because the State instructed the jury using the language of the uniform jury
instruction for third degree CSCM. Defendant’s claim is that no jury instruction existed at
the time for second degree CSCM and that the State did not properly modify the third degree
CSCM instruction to reflect the second degree charge and, therefore, the district court erred
by sentencing Defendant for second degree CSCM. Alternatively, Defendant argues that his
conduct as reflected by the jury instruction was legally insufficient to support a second
degree CSCM conviction, and, therefore, the district court erred in not granting his motion
to amend the degree of charge.

{16} Regardless of whether the issue is framed as an illegal sentence or a legally
insufficient jury instruction, our inquiry is the same: whether Defendant’s conduct, causing
C.A. to touch Defendant’s unclothed penis, as reflected in the jury instruction, is second
degree or third degree CSCM under Section 30-9-13. Our analysis requires statutory
construction, an issue of law that we review de novo. See State v. Torres, 2006-NMCA-106,
¶ 5, 140 N.M. 230, 141 P.3d 1284. In interpreting statutes, our primary goal is to give effect
to the intent of the Legislature. Id. ¶ 8. The primary indicator of legislative intent is the
plain language of the statute. State v. Gonzales, 2011-NMCA-081, ¶ 13, 150 N.M. 494, 263
P.3d 271, cert. granted, 2011-NMCERT-008, 268 P.3d 514. Additionally, the “rule of lenity
counsels that criminal statutes should be interpreted in the defendant’s favor when
insurmountable ambiguity persists regarding the intended scope of a criminal statute.” State
v. Castillo, 2011-NMCA-046, ¶ 20, 149 N.M. 536, 252 P.3d 760 (internal quotation marks
and citation omitted), cert. denied, 2011-NMCERT-004, 150 N.M. 648, 264 P.3d 1171.

{17} We begin by looking at the relevant statutory provisions. Section 30-9-13(A) defines
CSCM generally as “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.” Section 30-9-13(C)(1) states that all “[CSCM] perpetrated . . . on a child
under thirteen years of age” is third degree CSCM. Section 30-9-13(B)(1) provides the
definition of second degree CSCM. It states that second degree CSCM “consists of all
criminal sexual contact of the unclothed intimate parts of a minor perpetrated . . . on a child
under thirteen years of age[.]”

{18} Applying the plain meaning of Section 30-9-13(B)(1), Defendant’s conduct in this
case is third degree CSCM, not second degree CSCM. See Gonzales, 2011-NMCA-081, ¶

                                              6
13. By enacting Section 30-9-13(B)(1), the Legislature classified only the “criminal sexual
contact of the unclothed intimate parts of a minor” as second degree CSCM. (Emphasis
added.) All other acts of CSCM on a child under thirteen years of age are considered third
degree CSCM. Although the general definition of CSCM in Section 30-9-13(A) includes
“causing of a minor to touch one’s intimate parts[,]” Section 30-9-13(B) specifically limits
second degree to CSCM to instances in which a defendant touches or applies force to the
unclothed intimate parts of a minor. See State v. Arellano, 1997-NMCA-074, ¶ 5, 123 N.M.
589, 943 P.2d 1042 (recognizing as a rule of statutory interpretation that a specific statute
controls over a more general statute). The State presented evidence that Defendant caused
C.A. to touch his unclothed penis while in bed, which is conduct that amounts to third degree
CSCM. The State did not present any evidence, and the jury instruction did not reflect that
Defendant touched the unclothed intimate parts of C.A., and, therefore, it was error for the
district court to deny Defendant’s motion to amend the charge and sentence Defendant for
second degree CSCM.

{19} The State argues that our interpretation of Section 30-9-13(B) is incorrect and that
the only differentiation between third and second degree CSCM intended by the Legislature
is that the intimate parts involved be unclothed for second degree CSCM. First, the State
argues that the phrase “of a minor” in Section 30-9-13(B) does not modify “the unclothed
intimate parts of” and instead relates to the name of the crime. Under this reading, the State
argues that the Legislature intended Section 30-9-13(B)(1) to state that “[CSCM] in the
second degree consists of all [CSCM] of the unclothed intimate parts perpetrated” on a child
under thirteen years of age. The State continues that this interpretation better reflects the
“legislative judgment, expressed in [Section 30-9-13(A)], that CSCM is both touching a
minor’s private parts and causing a minor to touch one’s private parts” and that the
Legislature, by making both touching a minor’s clothed intimate parts and causing a minor
to touch one’s clothed intimate parts a third degree felony has “already determined that both
actions . . . are equally culpable.”

{20} Although we acknowledge the State’s argument, the State’s construction of Section
30-9-13(B) would require this Court to essentially rewrite the statute, something this Court
will not do. See State v. Johnson, 2008-NMCA-106, ¶ 12, 144 N.M. 629, 190 P.3d 350,
rev’d on other grounds by 2009-NMSC-049, 147 N.M. 177, 218 P.3d 863. The plain
language reflects a legislative judgment that a defendant who commits CSCM by touching
a minor’s unclothed intimate areas is more culpable, and should be punished to a higher
degree, than a defendant who commits CSCM by other means, including causing a minor to
touch the defendant’s unclothed intimate areas. It is not the role of this Court to question
such a legislative judgment. See State v. Maestas, 2007-NMSC-001, ¶ 25, 140 N.M. 836,
149 P.3d 933 (stating that “it is not the role of this Court to question the wisdom, policy or
justness of legislation enacted by our [L]egislature”). Further, to the extent that the State
argues that Section 30-9-13(B) is ambiguous in light of the definition of CSCM in Section
30-9-13(A), the rule of lenity requires that we construe the statute in Defendant’s favor. See
Castillo, 2011-NMCA-046, ¶ 20.


                                              7
{21} The State cites State v. Martinez, 1998-NMSC-023, 126 N.M. 39, 966 P.2d 747, State
v. Davis, 2003-NMSC-022, 134 N.M. 172, 74 P.3d 1064, and State v. Rivera, 2004-NMSC-
001, 134 N.M. 768, 82 P.3d 939, for the proposition that this Court has a “policy of viewing
related statutes in light of their common legislative policies” and the legislative intent of the
2003 amendment to Section 30-9-13, which established second degree CSCM, was to
increase culpability for offenders. Therefore, the State argues that this Court should interpret
Section 30-9-13 in light of its legislative intent to increase penalties for CSCM offenders to
include circumstances when a defendant causes a minor to touch the defendant’s intimate
parts. However, the State’s argument is premised on Section 30-9-13 being ambiguous as
to whether Defendant’s conduct fit the definition in the statute. As we have determined, the
plain language of Section 30-9-13(B) indicates that the Legislature intended to increase
penalties for only one type of CSCM, touching the unclothed intimate parts of a minor. See
State v. Block, 2011-NMCA-101, ¶ 17, 150 N.M. 598, 263 P.3d 940 (“Under the plain
meaning rule, when a statute’s language is clear and unambiguous, we will give effect to the
language and refrain from further statutory interpretation.” (internal quotation marks and
citation omitted)). Further, Rivera, Davis, and Martinez are further distinguishable because
all three cases deal with sentencing issues and do not require interpreting a statute regarding
the definition of a crime. See Rivera, 2004-NMSC-001, ¶ 5 (addressing whether the statute
pertaining to a stay of execution when an appeal is pending applies to probation revocation
proceedings); Davis, 2003-NMSC-022, ¶ 4 (addressing whether a statute requires
consecutive sentences); Martinez, 1998-NMSC-023, ¶ 7 (addressing whether courts possess
authority to grant presentence confinement credit for in-patient alcohol treatment programs
for third offense driving while under the influence).

{22} Second degree CSCM as defined in Section 30-9-13(B) is limited to instances in
which a defendant touches or applies force to the unclothed intimate parts of a minor. The
State presented evidence that Defendant caused C.A. to touch his unclothed intimate parts,
which is third degree CSCM. The district court therefore erred in denying Defendant’s
motion to amend the degree of charge, and we remand for the entry of a conviction for third
degree CSCM and resentencing.

CONCLUSION

{23} The State presented sufficient evidence to support Defendant’s conviction, and the
district court did not violate Defendant’s confrontation or due process rights. However,
because Defendant’s conduct was a third degree felony under Section 30-9-13(C) and not
a second degree felony under Section 30-9-13(B), the district court erred by denying
Defendant’s motion to amend the charge. Accordingly, we reverse the CSCM conviction
under Section 30-9-13(B) (second degree felony) and remand for entry of a CSCM
conviction under Section 30-9-13(C) (third degree felony).

{24}    IT IS SO ORDERED.

                                                ____________________________________

                                               8
                                            JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
LINDA M. VANZI, Judge

Topic Index for State v. Trujillo, No. 30,281

APPEAL AND ERROR
Remand
Standard of Review
Substantial or Sufficient Evidence

CONSTITUTIONAL LAW
Confrontation
Due Process

CRIMINAL LAW
Sexual Exploitation of Children
Sexual Offenses

CRIMINAL PROCEDURE
Jury Instructions
Sentencing

JURY INSTRUCTIONS
Criminal Jury Instructions
Improper Jury Instruction

STATUTES
Interpretation
Legislative Intent




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