                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JUN 20 1997
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 ERICK DOYLE JORDAN,

          Petitioner-Appellant,
 v.
                                                            No. 96-2037
 ATTORNEY GENERAL OF THE                             (D.C. No. CIV-94-193-HB)
 STATE OF NEW MEXICO, DONALD                               (New Mexico)
 A. DORSEY,

          Respondents-Appellees.




                                  ORDER AND JUDGMENT*


Before KELLY, Circuit Judge, BRISCOE, Circuit Judge, and MCWILLIAMS,
Senior Circuit Judge.


Submitted on the Briefs**

      On February 23, 1994, Erick Doyle Jordan, an inmate of the Southern New Mexico




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
      **
        This case was originally set for oral argument on January 17, 1997. Prior thereto,
this panel, after examining the briefs and appellate record, determined that oral argument
would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1.9. The cause therefore was ordered submitted without oral argument.
Correctional Facility in Las Cruces, New Mexico, filed a pro se petition under 28 U.S.C.

§ 2254 for writ of habeas corpus in the United States District Court for the District of

New Mexico. In the petition, Jordan alleged that his convictions in the Third Judicial

District Court, County of Dona Ana, State of New Mexico, violated his rights under the

United States Constitution. By order of court, the federal public defender was appointed

to represent Jordan.

       On January 17, 1996, a United States Magistrate Judge filed proposed findings and

recommended disposition in which he found no violation of Jordan’s constitutional rights

and recommended that the petition be denied and dismissed with prejudice. Jordan filed

objections to the magistrate judge’s proposed findings and recommended disposition. On

February 1, 1996, a federal district judge adopted the magistrate judge’s proposed

findings and recommended disposition, denied Jordan’s petition and dismissed the action

with prejudice. A certificate of probable cause was issued by the district court on

February 21, 1996. Jordan appeals the order and judgment thus entered.

       By grand jury indictment returned on September 6, 1991, Jordan was charged in

the state district court in Dona Ana County, New Mexico, as follows:

              COUNT I: Criminal Sexual Penetration in the Second
              Degree in that he unlawfully and intentionally caused Nicole
              McCutcheon to engage in sexual intercourse by the use of
              force or coercion while aided or abetted by one or more
              persons, (a second-degree felony), contrary to Section Nos.
              30-9-11 (B)(3), N.M.S.A., 1978 Comp., as amended;

              COUNT II: Accessory to Criminal Sexual Penetration in

                                            -2-
              the Second Degree in that he aided and abetted Wayne
              Ramzy in intentionally causing Nicole McCutcheon to engage
              in sexual intercourse by the use of force or coercion, (a
              second-degree felony), contrary to Section Nos. 30-9-11(B)
              and 30-1-13, N.M.S.A., 1978 Comp., as amended; and

              COUNT III: False Imprisonment in that he intentionally
              confined or restrained Nicole McCutcheon without her
              consent and with the knowledge he had no lawful authority to
              do so, (a fourth-degree felony), contrary to Section No. 30-4-
              3, N.M.S.A., 1978 Comp.

       At the close of evidence, the state district judge granted Jordan’s motion for

judgment of acquittal on Count II. In so doing, the judge held that there was insufficient

evidence to show that Wayne Ramzy was the second person involved in these assaults,

and that Jordan therefore could not have aided and abetted Ramzy, as he was charged in

Count II, though he conceivably aided and abetted somebody else.1 The jury thereafter




       In this regard, on appeal the New Mexico Court of Appeals spoke as follows:
       1



              Count II charged Defendant with aiding a specific person,
              Wayne Ramzy, in the commission of CSP [Criminal Sexual
              Penetration] under NMSA 1978, Section 30-1-13 (Repl.
              Pamp. 1984). The dismissal of this Count [II] meant only
              that there was no proof that Ramzy was the other man
              involved in the assault. It did not mean that there was no
              other person involved, or that Defendant was not aided by
              another person in forcing the victim to have sexual intercourse.
              The victim testified there were two attackers, and that each took
              turns holding her while the other raped her. This evidence is
              sufficient to support the jury’s finding that Defendant [Jordan]
              was helped and encouraged by another person when he attacked
              the victim.


                                            -3-
convicted Jordan on Counts I and III.

       At a sentencing hearing held on May 19, 1992, the state district judge sentenced

Jordan to nine years imprisonment enhanced by eight additional years pursuant to the

state’s habitual criminal act on Count I and sentenced him to eighteen months, also

enhanced by eight years, on Count III. All sentences were ordered to be served

concurrently, which meant that Jordan’s total prison term was seventeen years, to be

followed by two years of supervised parole. As indicated, the New Mexico Court of

Appeals affirmed Jordan’s convictions. Jordan’s petition for certiorari review by the New

Mexico Supreme Court was summarily denied. State v. Jordan, 867 P.2d 1183 (N.M.

1993). It was in this general setting that Jordan turned to the federal courts for relief.

       Several matters argued by Jordan in the federal district court are not raised on

appeal. Jordan, through counsel, raises two issues in this court: (1) Jordan’s convictions

are not supported by sufficient evidence as required by the Fifth Amendment, and (2)

Jordan’s sentences on Counts I and III violate the double jeopardy and due process

clauses of the United States Constitution. We find no such constitutional error and

therefore affirm.

       Without going into unnecessary detail, Nicole McCutcheon, the alleged victim,

testified at trial that Jordan, whom she had first met the previous day, after hitting her in

the face when she refused to pull down her pants when ordered to do so by Jordan’s

friend, held down her arms and held her head between his knees while the other man,


                                             -4-
later identified, perhaps mistakenly, as Wayne Ramzy, raped her. McCutcheon went on

to testify that Jordan then said, “Trade me places, Crawford,” and proceeded to rape her

while the other person held her down. When the rapes were over, the men left the room

and placed a mattress against the door. McCutcheon then got dressed, pushed the

mattress out of the way and ran to a nearby police station.

       At the station, McCutcheon advised the officers that she had just been raped by

Jordan and a man named Crawford. In a photo array shown McCutcheon, she identified

Jordan as one of her attackers. In another photo array, she identified the second person

whom she said also attacked her, which was a picture of Wayne Ramzy. Jordan and

Ramzy are Afro-Americans.

       We note here, parenthetically, that at trial McCutcheon, on direct examination,

testified she was “very sure” about both identifications at the time she made them, but on

cross-examination she testified she was not sure about her identification of Ramzy. The

police then put out a “Be On the Lookout” (“BOLO”) for Jordan and Ramzy. Shortly

thereafter Jordan was taken into custody. According to the police, Jordan was most

cooperative, and denied raping McCutcheon, although he admitted seeing her on the

evening in question.

       Angela Gardner, M.D., examined McCutcheon and testified concerning the results

of her examination, stating that she found various bruises on McCutcheon’s person. The

doctor also testified that the sperm she found in McCutcheon was immotile, which she


                                            -5-
said was somewhat abnormal since healthy sperm usually remain motile for up to 72

hours.

         Another witness for the prosection was Mark Salvo, a forensic serologist at the

Department of Public Safety Crime Laboratory in Santa Fe, New Mexico. He had

examined some of the evidence seized in the case, including clothing and blankets from

the bed where the alleged assaults took place. Salvo also had examined vaginal smears

from McCutcheon and penile swabbings from Jordan. Salvo testified that he found the

presence of sperm cells on the vaginal swabs and the presence of semen on

McCutcheon’s underwear. Salvo next testified that the sperm cells found on the objects

he tested were similar to those found in Jordan’s penile swabs. Salvo was qualified and

accepted as an expert witness, and, as such, testified, over objection, that the semen he

tested was categorized in the subtype of two-minus, which, he said, is found in .2 percent

of the black population. In this regard, Salvo testified that Jordan has a subtype of two-

minus.

         Jordan’s initial position in this court is that his convictions should be reversed

because there is insufficient evidence to support either. In this regard, his argument is

that there is no evidence to corroborate McCutcheon’s testimony, and that her own

testimony is itself “inherently incredible.” The testimony of Dr. Gardner and Mark Salvo

is perhaps subject to interpretation, but, nevertheless, it could reasonably be argued that it

tends to corroborate, at least in some respects, McCutcheon’s testimony. Be that as it


                                               -6-
may, we do not believe that Ms. McCutcheon’s testimony is itself “inherently

incredible.” As stated, McCutcheon testified that Jordan was not a complete stranger, she

having met him on the day previous to the assault. A reviewing court should be slow to

find the testimony of any witness “inherently incredible,” since such tends to invade the

province of the jury. In this connection, in Tapia v. Tansy, 926 F.2d 1554, 1561 (10th

Cir.) cert. denied, 502 U.S. 835 (1991), we spoke as follows:

              We presume that the jury’s findings in evaluating the
              credibility of each witness are correct. We may disregard
              testimony on review only if we find that the witness is
              inherently incredible.

              Testimony, to be considered incredible, ‘must be unbelievable
              on its face, i.e., testimony as to facts that [the witness]
              physically could not have possibly observed or events that
              could not have occurred under the laws of nature.’ Confused,
              self-contradicting testimony by a drug addict does not make
              the witness’s testimony inherently incredible. Nor does the
              fact that there are several conflicting versions regarding the
              events of the evening of September 7 affect our determination
              of credibility as a matter of law. Such inconsistencies are
              matters within the province of the jury. (citations omitted.)

       Our study of the record indicates that McCutcheon’s testimony was not “inherently

incredible,” and that there was some corroborative evidence, to the end that there is

sufficient evidence to support Jordan’s convictions on Counts I and III. Hence, we find

no constitutional error.

       As a part of his “insufficiency of the evidence” argument, counsel asserts that the

district court committed reversible error in instructing the jury, as to Counts I and III, that


                                             -7-
the defendant could be found guilty of a crime even though he, himself, did not actually

commit the crime if he, inter alia, “helped, encouraged or caused the crime to be

committed.” Under the facts of this case, we fail to see how the instruction was

appropriate. However, in any event, possible error in this regard was, in our view,

harmless and most certainly did not rise to the level of constitutional error.

       In Count I, Jordan was charged with unlawfully engaging in sexual intercourse

with Nicole McCutcheon by the use of force and coercion, while aided and abetted by one

or more persons, and the jury was so instructed. Certainly, Jordan was charged in Count I

as a principal, and not an aider and abettor. In Count III, Jordan was charged with

intentionally confining or restraining Nicole McCutcheon without her consent and with

the knowledge that he had no lawful authority to do so. Again, the jury was so instructed.

Under Count III, Jordan also was clearly charged as a principal, and an instruction on

aiding and abetting was inappropriate. However, in each instance, i.e., in Count I Jordan

was charged with criminal sexual penetration of Nicole McCutcheon and in Count III he

was charged with false imprisonment of Nicole McCutcheon, Jordan was charged as a

principal, and just how he could be aiding and abetting himself is difficult for us to

perceive. But, as said, any possible error was harmless and most certainly was not

constitutional error.2



       Ramzy was not jointly indicted with Jordan. It would appear that he was a
       2

defendant in a separate proceeding, which was later dismissed on motion of the State of
New Mexico.

                                             -8-
       Jordan’s final argument is that his convictions for Counts I and III, and the

separate sentences imposed for each, even though to be served concurrently, violate the

double jeopardy clause of the Fifth Amendment. In our view, Counts I and III charged

separate and different crimes and an essential element of each is not an essential element

of the other. Count I charged Jordan with criminal sexual penetration by force. Count III

charged Jordan with unlawfully confining or restraining McCutcheon. The latter count is

obviously directed to Jordan’s conduct where, after striking McCutcheon when she didn’t

pull down her pants, he held down McCutcheon’s arms and held her head between his

legs, thus confining and restraining her, while another person raped her. Thus, the

“confining and restraining” preceeded in time Jordan’s criminal sexual penetration of

McCutcheon. In other words, Jordan’s actions, though closely related in time,

constituted more than one offense. See Blockburger v. United States, 284 U.S. 299, 304

(1932).

       In Thomas v. Kerby, 44 F.3d 884 (10th Cir. 1995), we held that, although we are

not bound by state court rulings on ultimate constitutional questions, we should give

deference to a state court’s interpretation of state law in determining whether an incident

constitutes one or more than one offense for double jeopardy purposes. Thomas, 44 F.3d

at 887 (citing Mansfield v. Champion, 992 F.2d 1098, 1100 (10th Cir. 1993)).

       In this connection, in Brecheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987),

cert. denied, 485 U.S. 1011 (1988), we affirmed a district court’s order dismissing a New


                                            -9-
Mexico state prisoner’s § 2254 habeas corpus petition and, in so doing, we held, inter

alia, that the defendant could be convicted of both battery and criminal sexual

penetration, where the battery preceded the criminal sexual penetration by only minutes,

without violating the double jeopardy clause. Brecheisen, 833 F.2d at 240-241.

       Further, in State v. Corneau, 781 P.2d 1159 (N.M. Ct. App. 1989), the New

Mexico Court of Appeals held that a conviction for both criminal sexual penetration and

false imprisonment did not violate the double jeopardy clause. In so doing, the court

noted that there was evidence of “false imprisonment” occurring either

“before or after the forcible intercourse.” Corneau, 781 P.2d at 1164.

       Judgment affirmed.



                                          Entered for the Court,

                                          ROBERT H. McWILLIAMS
                                          Senior Circuit Judge




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