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                                                                      New Mexico Compilation
                                                                    Commission, Santa Fe, NM
                                                                   '00'04- 10:02:34 2018.05.17

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-026

Filing Date: March 9, 2018

Docket No. S-1-SC-36000

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

OSCAR ARVIZO,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Briana H. Zamora, District Judge

Hector H. Balderas, Attorney General
Laura Erin Horton, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender
Steven James Forsberg, Assistant Appellate Defender
Santa Fe, NM

for Respondent

                                        OPINION

MAES, Justice.

{1}     In this case we consider whether a child victim’s opposition to sexual contact by a
relative, after the contact already occurred, negates the element of coercion. Defendant
Oscar Arvizo was found guilty of two counts of criminal sexual contact of a minor (CSCM)
by a person in a position of authority—one in the second degree and one in the third degree.
See NMSA 1978, § 30-9-13(B)(2)(a), (C)(2)(a) (2004). The Court of Appeals reversed the
two convictions, holding that the evidence failed to prove that Defendant “used his position
of authority to coerce A.B. to submit to criminal sexual contact[s]” because “when both

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sexual contacts took place without warning, A.B. immediately pushed Defendant away.”
State v. Arvizo, No. 33,697, mem. op. ¶¶ 24-25 (N.M. Ct. App. June 28, 2016) (non-
precedential).

{2}     The State sought further review of a single issue: whether “the Court of Appeals
erroneously [held] that a child’s physical resistance after the fact negates other evidence for
the element of coercion by a person in a position of authority in a conviction for CSCM.”
We granted certiorari under Rule 12-502 NMRA. We reverse the Court of Appeals and
reinstate the convictions. We remand the case back to the Court of Appeals to consider any
remaining appellate issues presented by Defendant.

I.     BACKGROUND

{3}    In December 2009, Valerie Barreras and her husband Anthony Barreras had two
daughters—A.B., then thirteen years old, and her younger sister S.B., then six years old.
Defendant was married to Valerie’s sister Darlene, making him A.B.’s uncle. Defendant and
Darlene had four young children of their own. Valerie and Darlene were very close, and the
two families often spent time together at the Barreras house, at social events, and at Valerie’s
and Darlene’s parents’ house.

{4}     Defendant’s family went to dinner with the Barreras family on a Friday evening that
December to celebrate a bonus Anthony had received earlier that day. The families returned
to the Barreras home for a sleepover as they had often done in the past.

{5}    Shortly after the families returned home from dinner, A.B. accompanied S.B. to the
bathroom. In the hallway leading to the bathroom, they encountered Defendant, who
grabbed A.B.’s buttock as they passed. A.B. was surprised and pushed his hand away but
said nothing as she and S.B. continued on to the bathroom. Defendant laughed afterward.
A.B. gathered herself in the bathroom, came out, and said nothing about what had happened.

{6}     Later that evening, the four adults went to bed and four of the children eventually fell
asleep on a pull-out couch in the living room as they had many times before. At some point
that night, A.B. awoke and discovered Defendant hovering over her with his hand directly
on the “outer lip” of her “private area.” Her pajama pants, she found, had been lowered to
her mid-thigh. Reacting, she exclaimed, “What are you doing?” and “Get off me.”
Defendant responded by whispering in her ear, “I’m looking for your pussy, so I can stick
my finger in it.” A.B. pushed Defendant off, and Defendant returned to the bedroom he and
Darlene were sharing that night. A.B. ran to her own bedroom. She locked the door, went
to her closet, ripped up her pajama pants, cried for a time, and eventually fell asleep with the
lights on.

{7}    Early the next morning, Defendant walked into A.B.’s bedroom and asked A.B., “Are
you going to tell anybody?” A.B.’s father, Anthony, passing through the hallway at the time,
overheard Defendant broaching the question. Anthony asked, “Tell anybody about what?”

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Defendant quickly fabricated a story, explaining he had accidentally tripped A.B. that night,
she had hurt her knee, and he had been hoping to ensure nobody thought he had intended to
cause the injury. Anthony observed A.B. to see if Defendant’s story and explanation were
true, and A.B. lowered her head and nodded in agreement.

{8}     At first, A.B. resolved to keep the events of that evening to herself. The two families
were very close. A.B. testified that she was reluctant to upset the dynamic, and she was
afraid nobody would believe her if she said anything. Eventually, however, she began
cutting herself, and the cutting soon became evident to her parents.

{9}    After a Father’s Day barbecue in June 2010, more than six months after the
December sleepover, Anthony, alarmed about the cutting, took A.B. to a hospital. As they
sat in the parking lot before entering the hospital, they had a long and emotional
conversation as Anthony attempted to identify the source, or sources, of A.B.’s behavior.
After much initial reluctance, A.B. eventually revealed the abuse to her father.

{10} Defendant was charged in an amended grand jury indictment with four counts: In
Count 1, CSCM of a child thirteen to eighteen years old in the second degree by a person of
authority, for the unclothed contact with the vagina; and in Count 3, CSCM in the third
degree by a person of authority for the clothed contact with the buttock. Both the CSCM
counts further alleged that “[D]efendant was a person who by reason of his relationship to
A.B. was able to exercise undue influence over A.B. and used this authority to coerce A.B.
to submit to sexual contact,” and cited Section 30-9-13(A). In Count 2, Defendant was
charged with attempted criminal sexual penetration in the second degree of a child thirteen
to eighteen years old; and in Count 4, with bribery or intimidation of a witness. See NMSA
1978, §§ 30-28-1 (1963), 30-9-11 (2009), 30-24-3(A)(3) (1997).

{11} After a six-day trial, a jury convicted Defendant of all four charges. The district
judge who had presided over the trial recused himself from the case two days after the trial.
After post-trial motions, a new district judge vacated the conviction for attempted criminal
sexual penetration on double jeopardy grounds but left the remaining convictions intact. The
district court sentenced Defendant to twenty-four years imprisonment, fourteen years of
which were suspended, for an actual sentence of ten years.

{12} Defendant appealed, advancing ten claims, but the Court of Appeals only addressed
three: that his right to a speedy trial was violated, that the evidence was insufficient to
support the conviction on either count of CSCM, and that the evidence was insufficient to
support the conviction for bribery or intimidation of a witness. Arvizo, No. 33,697, mem.
op. ¶ 2. The Court of Appeals held that defendant failed to establish that the nearly thirty-six
month delay caused him prejudice, affirmed the conviction for witness intimidation, but
vacated both CSCM convictions upon insufficient evidence and remanded the case for entry
of judgment and sentence on two counts of simple battery as proven lesser included offenses.
Id. ¶¶ 12-13, 17, 24-25, 34.


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II.    STANDARD OF REVIEW

{13} When examining a sufficiency-of-the-evidence claim, we consider “whether, after
reviewing 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. Treadway, 2006-NMSC-008, ¶ 7, 139 N.M. 167, 130 P.3d 746 (internal quotation marks
and citation omitted). The Court views the evidence in the light most favorable to the guilty
verdict and indulges all reasonable inferences and resolves all conflicts in the evidence in
favor of the verdict. Id. The Court will not reweigh the evidence or substitute its judgment
for the judgment of the fact-finder. Id. To the extent the challenge here implicates proper
construction of the CSCM statute, however, the Court’s review is de novo. See, e.g., State
v. Myers, 2009-NMSC-016, ¶ 13, 146 N.M. 128, 207 P.3d 1105 (setting forth standards of
review for a case involving both a sufficiency claim and an issue of statutory construction).

III.   DISCUSSION

{14} Section 30-9-13(A) defines CSCM as “the unlawful and intentional touching of or
applying force to the intimate parts of a minor” including “the primary genital area, groin,
buttocks, anus or breast.” Second-degree CSCM occurs when the perpetrator touches the
unclothed intimate parts of a child thirteen to eighteen years of age and is “in a position of
authority over the child and uses that authority to coerce the child to submit.” Section 30-9-
13(B)(2)(a). Third-degree CSCM is identical to second-degree CSCM except that the child
victim is clothed. See § 30-9-13(C). The term “position of authority” is defined as “that
position occupied by a parent, relative, household member, teacher, employer or other
person who, by reason of that position, is able to exercise undue influence over a child.”
NMSA 1978, § 30-9-10(E) (2005).

{15} As to the element of coercion, the jury was instructed that it must find Defendant was
“a relative who by reason of [his] relationship to [A.B.] was able to exercise undue influence
over [A.B.] AND used this authority to coerce [A.B.] to submit to sexual contact.” See UJI
14-926 NMRA. In State v. Gardner, the Court of Appeals held that

       [c]oercion for the purposes of CSCM occurs when a defendant occupies a
       position which enables that person to exercise undue influence over the
       victim and that influence must be the means of compelling submission to the
       contact. . . . [S]uch coercion might take many forms but is less overtly
       threatening than physical force or threats.

2003-NMCA-107, ¶ 22, 134 N.M. 294, 76 P.3d 47 (second alteration and omission in
original) (internal quotation marks and citation omitted).

{16} The State argues that under the statutory definition of “force or coercion,” a sleeping
victim is necessarily a coerced victim. Section 30-9-10(A)(4) defines “force or coercion”
as “the perpetration of . . . criminal sexual contact when the perpetrator knows or has reason

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to know that the victim is . . . asleep . . . . Physical or verbal resistance of the victim is not
an element of force or coercion.” Therefore, the State contends that the element of coercion
was met when Defendant touched A.B. as she slept and that her resistance afterward should
not have been considered.

{17} The CSCM statute enumerates alternative methods of committing the offense, with
each method having slightly different elements to be proven beyond a reasonable doubt. See
§ 30-9-13. For example, the commission of the offense when the perpetrator uses “force or
coercion that results in personal injury to the child” is one form or method of second-degree
CSCM. See § 30-9-13(B)(2)(b). In this case, Defendant was charged with committing the
“position of authority” method of CSCM in the second degree. See § 30-9-13(B)(2)(a). The
State asks this Court to apply the definition for an element of a crime Defendant was not
alleged to have committed. The committee commentary for UJI 14-926—the instruction
given to the jurors— specifically states that the statutory definition of “force or coercion”
that the State relies on “has no application” to the “position of authority” method of
committing the crime of CSCM. Because Defendant was not charged with “force or
coercion” CSCM and the commentary indicates that element has no application to “position
of authority” CSCM, the definition of “force or coercion” is not applicable here.

{18} The State next argues that the Court of Appeals incorrectly analogized this case to
State v. Segura, 2002-NMCA-044, 132 N.M. 114, 45 P.3d 54. In Segura, the defendant
made sexually explicit overtures toward his thirteen-year-old niece and grabbed the child’s
hand in an attempt to make the child touch his groin. Id. ¶ 4. The child successfully resisted
the defendant’s attempts and no sexual contact occurred. Id. The defendant was tried and
convicted of two counts of attempted criminal sexual contact of a minor (position of
authority), under NMSA 1978, Section 30-9-13(A)(2)(a) (1991) and Section 30-28-1.
Segura, 2002-NMCA-004, ¶ 5. The defendant appealed on the grounds of double jeopardy
and insufficient evidence. Id. ¶ 7, 10.

{19} The Court of Appeals noted that although the defendant was charged with attempted
CSCM, the jury was not properly instructed “in a manner [that] insure[d] all elements of the
underlying crime were properly placed within the context of the initiatory crime of attempt.”
Id. ¶ 16. “Thus . . . the jury was required to determine beyond a reasonable doubt that [the
d]efendant by reason of his position of authority was actually able to exercise undue
influence over [the c]hild and succeeded in forcing or coercing her to submit to sexual
contact through the use of that position of authority.” Id. ¶ 13. Because there was no
evidence the defendant actually coerced or caused the child to submit to sexual contact, the
Court correctly concluded that “there was insufficient evidence to convict [the d]efendant
as a person in a position of authority . . . under the law of the case as given to the jury.” Id.
¶ 17 (citation omitted). Importantly, the Segura Court stated that “[h]ad the jury been
properly instructed, the jury would have been on solid grounds to draw reasonable inferences
from the circumstances to convict [the d]efendant of attempt to commit CSCM (position of
authority).” Id. ¶ 16. The outcome of Segura hinged more upon the jury instructions than
the facts surrounding the child’s resistance against the attempted CSCM.

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{20} Nevertheless, the Court of Appeals found Segura most instructive to this case. See
Arvizo, No. 33,697, mem. op. ¶ 23. The Court of Appeals correctly identified that the critical
fact in Segura was “the child . . . successfully resisted the defendant’s attempts to force
sexual contact” but then concluded that the outcome in Segura was premised on the child’s
resistance rather than the particularities of the jury instructions. Id. This mischaracterization
of the holding of Segura leads the Court of Appeals to conclude that A.B. was not coerced
because, like the child in Segura, she immediately resisted. Arvizo, No. 33,697, mem. op.
¶ 24.

{21} A person in a position of authority does not have to use threats or physical force to
coerce a child to submit to sexual contact. See Gardner, 2003-NMCA-107, ¶ 22. A child
can be coerced through subtle social or domestic pressure on the part of the perpetrator, but
a perpetrator does not have to ultimately influence the child’s state of mind such that the
child passively acquiesces and does not resist. Id. The exercise of undue influence resulting
in the submission to sexual contact can be inferred by a child’s reluctance or fear to report
the sexual contact.

{22} The Court of Appeals’ emphasis on A.B.’s resistance to the exclusion of other
evidence is misplaced. Though a child’s resistance may have some relevance to the element
of coercion, the primary focus of the analysis should be on the perpetrator’s actions, not the
victim’s. See UJI 14-926 Comm. cmt. (“The meaning of ‘coerce’ in this offense is uniquely
related to the status of the defendant.”).

{23} In this case, there was sufficient evidence presented at trial for the jury to find that
Defendant exercised undue influence over A.B. such that she submitted to sexual contact on
both occasions. The evidence established that Defendant was A.B.’s relative and that
Defendant’s family slept over approximately once a month at A.B.’s house. A.B. testified
she felt pressure not to interfere with the family dynamics given the close relationship
between her mother and Darlene, Defendant’s wife. There was evidence that Defendant had
some degree of authority over A.B. and that she felt she had to show Defendant proper
respect. A.B. testified Defendant could tell her “to be quiet,” and that he, as “an elder,”
could tell her not to misbehave. Valerie indicated to an investigator that Defendant was “a
parent figure” when he was in the Barreras home, that the children knew they had to listen
to him, and that they knew they had to respect him.

{24} The nature of the relationship between Defendant and A.B and A.B.’s testimony that
she was afraid of what would happen if she disclosed the abuse is sufficient for a jury to
infer Defendant was in a position of authority over the child and used that authority to coerce
the child to submit to sexual contact. Gardner, 2003-NMCA-107, ¶ 38 (holding “the jury
[may] infer a connection between [the d]efendant’s position of authority and his sexual
contact with the victims, which is sufficient to infer the existence of coercion”). We hold
that coercion by a person in a position of authority does not require an affirmative forceful
act or a warning that the sexual contact is about to happen. Defendant had committed CSCM
in the second degree when he touched A.B.’s unclothed genital area and had committed

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CSCM in the third degree when he touched her clothed buttock. Accordingly, there was
sufficient evidence that Defendant coerced A.B. and this was not negated because she
pushed Defendant’s hand away after each sexual contact.

IV.    CONCLUSION

{25} We reverse the Court of Appeals and reinstate Defendant’s convictions for second-
and third-degree CSCM. We remand the case to the Court of Appeals to decide any
remaining unaddressed appellate issues raised by Defendant.

{26}   IT IS SO ORDERED.

                                          ____________________________________
                                          PETRA JIMENEZ MAES, Justice

WE CONCUR:

___________________________________
JUDITH K. NAKAMURA, Chief Justice

___________________________________
EDWARD L. CHÁVEZ, Justice

___________________________________
CHARLES W. DANIELS, Justice

___________________________________
BARBARA J. VIGIL, Justice




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