 1   This decision was not selected for publication in the New Mexico Reports. Please see Rule 12-
 2   405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this
 3   electronic decision may contain computer-generated errors or other deviations from the official
 4   paper version filed by the Supreme Court and does not include the filing date.

 5        IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 6 STATE OF NEW MEXICO,

 7          Plaintiff-Respondent,

 8 v.                                                                   NO. 32,444

 9 OLIVER STANLEY,

10          Defendant-Petitioner.


11 ORIGINAL PROCEEDING ON CERTIORARI
12 Ross C. Sanchez, District Judge

13 William A. O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Petitioner

16   Gary K. King, Attorney General
17   Anita Carlson, Assistant Attorney General
18   Margaret E. McLean, Assistant Attorney General
19   Santa Fe, NM

20 for Respondent

21                                           DECISION

22 Daniels, Chief Justice.

23          This Court granted certiorari to review one of the issues addressed in the
 1 Court of Appeals memorandum opinion, affirming the district court’s refusal to give

 2 a lesser included offense instruction on statutory rape in a case in which Defendant

 3 had been charged with the greater offense of coercive rape of a minor by a person

 4 in a position of authority. The State has subsequently acknowledged error on that

 5 issue, conceding that the district court committed reversible error in refusing the

 6 requested instruction. We agree that the State’s concession was correct. We

 7 therefore reverse the Court of Appeals, on the lesser included offense instruction

 8 issue alone, and remand to the district court for a new trial.

 9         Having considered the record, briefing, and applicable law in this case, we

10 conclude that there is no reasonable likelihood that a formal opinion would advance

11 New Mexico law. Acting within this Court’s discretion under Rule 12-405(B)(1)

12 NMRA to dispose of a case by decision rather than formal opinion where the “issues

13 presented have been previously decided,” we enter this Decision.

14 I.      FACTUAL AND PROCEDURAL BACKGROUND

15         Defendant Oliver Stanley was indicted for, among other offenses, second-

16 degree criminal sexual penetration (CSP II), as then defined in NMSA 1978, Section

17 30-9-11(D) (2003):

18         D. Criminal sexual penetration in the second degree consists of all
19         criminal sexual penetration perpetrated:
20               (1) on a child thirteen to eighteen years of age when the

                                             2
 1         perpetrator is in a position of authority over the child and uses this
 2         authority to coerce the child to submit.1

 3         At the time of the offense, the statutory element “position of authority” was

 4 defined as “that position occupied by a parent, relative, household member, teacher,

 5 employer or other person who, by reason of that position, is able to exercise undue

 6 influence over a child.” NMSA 1978, § 30-9-10(E) (2005). The State’s evidence

 7 at trial for “position of authority” and “uses this authority to coerce the child to

 8 submit”—both essential elements of CSP II theory—was that, although Defendant

 9 was unrelated to thirteen-year old Victim, he acted as head of the household. Victim

10 lived with Defendant, who was in his forties, and Victim’s older sister Esther, who

11 was Victim’s legal guardian and Defendant’s fiancée. The State had removed

12 Victim from her parents’ home, and Esther had received guardianship over her as

13 a result.

14         The State introduced evidence that Defendant set house rules and controlled

15 household finances. He gave Victim an allowance and assigned her house-cleaning



           1
16          The 2007 amendment removed the “position of authority” element and
17   reworded Subsection D(1) to provide in its entirety: “by the use of force or coercion
18   on a child thirteen to eighteen years of age.” See NMSA 1978, § 30-9-11(E)(1)
19   (2007). Because Defendant was indicted for acts that occurred in 2003, this
20   Decision references the applicable 2003 provisions of the CSP statute, Section 30-9-
21   11.

                                              3
 1 duties, which he supervised. Victim testified that she felt Defendant was in charge

 2 of the household, saying “what he said goes.” Victim’s testimony about her

 3 relationship with Defendant was somewhat negative. She testified that she began

 4 to lose respect for Defendant because of his behavior towards her sister. She felt her

 5 sister was “pathetic” for continuing to have a relationship with Defendant. She said

 6 that over time she became “withdrawn . . . not open to [Defendant] anymore.”

 7         In June, 2003, Victim’s relationship with Defendant began to change,

 8 becoming “very confusing and awkward.” Victim chronicled the changes in her

 9 journal, writing “it seems like [Defendant] is hitting on me. I guess it is just nothing.

10 I like him as a father but not the other way.” Defendant began complimenting

11 Victim on her looks and at times touched her breasts. Defendant and Victim first

12 had sex on June 7, 2003. Victim was somewhat ambiguous about the reasons for her

13 participation. When asked at trial why she submitted to Defendant’s advances,

14 Victim testified that she did not know. She also testified that Defendant told Victim

15 after they had sex that if she told anyone, “he was going to hurt [her] and [her]

16 family.” She said the reason she did not tell her parents what had happened was

17 because she was scared. Defendant and Victim then had further sexual contact over

18 the next several days.

19         On June 12, 2003, Defendant, Victim, and Esther all watched TV together.

                                               4
 1 After Esther went to bed, Defendant kissed Victim’s breasts, put his finger in her

 2 vagina, and started to put his penis in her vagina. Esther returned because she was

 3 suspicious of Defendant’s and Victim’s interactions. When she returned, Esther saw

 4 Victim and Defendant together and confronted Defendant. While Victim testified

 5 at trial that she had not wanted “to engage in th[o]se sexual activities with

 6 [Defendant],” the jury also learned she had recounted the event in her journal,

 7 writing “my sister caught us” rather than “my sister caught him.” Esther reported

 8 Defendant to the police on June 13, 2003, and this prosecution ensued.

 9        After the close of evidence at trial, Defendant requested a lesser included

10 offense instruction for non-coercive statutory rape (CSP IV), as defined in NMSA

11 1978, Section 30-9-11(F)(1):

12        F. Criminal sexual penetration in the fourth degree consists of all
13        criminal sexual penetration:
14               (1) not defined in Subsections C through E of this section
15        perpetrated on a child thirteen to sixteen years of age when the
16        perpetrator is at least eighteen years of age and is at least four years
17        older than the child and not the spouse of that child.

18 The State objected, and the district court refused to give the jury the option of

19 considering the lesser included offense of CSP IV. The jury convicted Defendant

20 of four counts of CSP II, among other offenses.

21        The Court of Appeals affirmed Defendant’s convictions in a memorandum


                                             5
 1 opinion, State v. Stanley, No. 28,288 (N.M. Ct. App. May 12, 2010), and this Court

 2 granted certiorari to review the lesser included offense instruction issue. Prior to the

 3 scheduled oral argument, the State filed a written concession that the refusal of the

 4 instruction had been reversible error. Although we were not bound by the State’s

 5 concession, see State v. Foster, 1999-NMSC-007, ¶ 25, 126 N.M. 646, 974 P.2d

 6 140, we agreed with it and vacated the oral argument. In this Decision, we set out

 7 briefly the reasons Defendant’s CSP II convictions must be reversed and the case

 8 remanded for a new trial on those counts of the indictment.

 9 II.     DISCUSSION

10 A.      Standard of Review

11         “The propriety of jury instructions given or denied is a mixed question of law

12 and fact. Mixed questions of law and fact are reviewed de novo.” State v. Salazar,

13 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. “When considering a

14 defendant’s requested instructions, we view the evidence in the light most favorable

15 to the giving of the requested instruction[s].” State v. Boyett, 2008-NMSC-030, ¶

16 12, 144 N.M. 184, 185 P.3d 355 (alteration in original) (internal quotation marks and

17 citation omitted).




                                               6
 1 B.      The Meadors Cognate Approach

 2         In State v. Meadors, 121 N.M. 38, 44, 908 P.2d 731, 737 (1995), this Court

 3 articulated the “cognate approach” a trial court should apply in considering a request

 4 for a lesser included offense instruction. The court should first apply a definitional

 5 elements test and give the instruction “when the statutory elements of the lesser

 6 crime are a subset of the statutory elements of the charged crime.” Id. Prior to

 7 Meadors, when a defendant requested an instruction, we applied only this strict

 8 elements approach, in which the lesser offense cannot have any essential element

 9 that is not included in the definition of the greater offense. See State v. Henderson,

10 116 N.M. 537, 541, 865 P.2d 1181, 1185 (1993), overruled by Meadors, 121 N.M.

11 at 46-47, 908 P.2d at 739-40. Meadors recognized that we should go beyond

12 theoretical possibilities to consider case realities in determining when a jury should

13 be given the option of acquitting on a greater offense and convicting on a lesser.

14 Under the Meadors cognate approach, even if the traditional strict elements test has

15 not been satisfied, the lesser offense instruction should also be granted if:

16         (1) the defendant could not have committed the greater offense in the
17         manner described in the charging document without also committing
18         the lesser offense, and therefore notice of the greater offense
19         necessarily incorporates notice of the lesser offense; (2) the evidence
20         adduced at trial is sufficient to sustain a conviction on the lesser
21         offense; and (3) the elements that distinguish the lesser and greater
22         offenses are sufficiently in dispute such that a jury rationally could

                                              7
 1         acquit on the greater offense and convict on the lesser.

 2 121 N.M. at 44, 908 P.2d at 737.

 3         Although the holding in Meadors addressed a request for a lesser included

 4 offense instruction by the State and not by the defendant, this Court also reasoned

 5 that “the defendant’s right to such an instruction is at least as great as the State’s

 6 right, and that the defendant is entitled to such an instruction if, under the facts of

 7 a given case, the State would be so entitled.” Id. at 47, 908 P.2d at 740; see also

 8 State v. Campos, 1996-NMSC-043, ¶ 21 n.2, 122 N.M. 148, 921 P.2d 1266 (citing

 9 Meadors for the proposition that the cognate approach is also applicable when the

10 defendant requests a lesser included offense instruction).

11         The application of the cognate approach in Meadors itself is instructive. The

12 grand jury in Meadors returned a three-count indictment charging the defendant with

13 attempted first-degree murder, aggravated arson, and negligent use of an explosive.

14 See Meadors, 121 N.M. at 41, 908 P.2d at 734. Evidence at trial indicated the

15 defendant carried a cup of gasoline into the house of his victim, threw the gasoline

16 on the victim, struck a match, and set the victim on fire. Id. at 40-41, 908 P.2d at

17 733-34. The defendant claimed that he had spilled the gasoline on the victim by

18 accident and then lit the match in self defense. Id. At the close of the evidence, the

19 State requested and received over the defendant’s objection a jury instruction on

                                              8
 1 aggravated battery as a lesser included offense of attempted first-degree murder. Id.

 2 at 41, 908 P.2d at 734. Meadors first analyzed the statutory elements of aggravated

 3 battery: “an unlawful touching and either the use of a deadly weapon, great bodily

 4 harm, or the likelihood of great bodily harm.” Id. We acknowledged that none of

 5 those elements are statutory essential elements of attempted murder. Id.

 6         Applying the cognate approach, however, we confirmed that a court should

 7 “determine the need for lesser-included offense instructions by examining not only

 8 the offense alleged in the charging instrument but also the evidence adduced at trial,

 9 for it is that evidence which will ultimately confirm or invalidate the accuracy of the

10 accusatory pleading.” Id. at 44, 908 P.2d at 737. Even though the defendant was

11 charged with attempted murder and arson, in light of the combination of the facts

12 alleged in the charging document and the evidence introduced at trial, a jury could

13 have concluded that the defendant could have committed aggravated battery instead

14 of murder. See id. The charges in the indictment all related to the same conduct,

15 and while no single charge contained all of the necessary elements for aggravated

16 battery, the combined charges did. Id. at 46, 908 P.2d at 739. The “substantial part

17 of First Degree Murder” alleged in the attempted murder count was the defendant’s

18 throwing gasoline on the victim and lighting the match. Id. at 45, 908 P.2d at 738.

19 The arson charge, which alleged the “defendant . . . did . . . start a fire . . . which

                                              9
 1 caused great bodily harm to [the victim],” fulfilled the “great bodily harm” element

 2 of aggravated battery. Id. at 46, 908 P.2d at 739. Viewed as a whole, the indictment

 3 would have put the defendant on notice that the State would allege at trial that he

 4 unlawfully touched the victim and that the unlawful touching resulted in great bodily

 5 harm. Id.

 6         Meadors also noted that it was reasonably possible that the lesser charge could

 7 have been the greatest charge the jury might unanimously have found established

 8 beyond a reasonable doubt. Id. at 46-47, 908 P.2d at 739-40. “[B]ased upon the

 9 allegations in the indictment and the evidence adduced at trial, a jury could

10 reasonably conclude that [the defendant] had intended to throw gasoline on [the

11 victim] and ignite him, but that he lacked the intent to take [the victim]’s life.” Id.

12 at 44, 908 P.2d at 737. Viewed in this way by a jury, the evidence would have

13 supported a conviction of aggravated battery but not of attempted murder. Id. This

14 Court accordingly upheld the district court’s decision to instruct the jury on the

15 uncharged lesser included offense of aggravated battery. Id.

16         Similar applications of the cognate approach have been employed in

17 subsequent cases. See State v. Neatherlin, 2007-NMCA-035, ¶ 1, 141 N.M. 328,

18 154 P.3d 703 (reversing for failure to instruct on the lesser misdemeanor offense of

19 aggravated battery in a case charging felony aggravated battery with a deadly

                                              10
 1 weapon); State v. Muñoz, 2004-NMCA-103, ¶ 1, 136 N.M. 235, 96 P.3d 796

 2 (reversing for failure to instruct on the lesser offense of DWI in a case charging

 3 reckless driving resulting in great bodily harm); State v. Romero, 1998-NMCA-057,

 4 ¶ 2, 125 N.M. 161, 958 P.2d 119 (reversing for failure to instruct on the lesser

 5 misdemeanor offense of criminal trespass where defendant was charged with felony

 6 aggravated burglary).

 7         The cognate approach’s emphasis on case realities instead of hypothetical

 8 theories alone means that a lesser offense instruction is not justified where the

 9 evidence is so overwhelming that no rational juror could view the evidence in such

10 a way as to acquit on the greater charge and convict on the lesser charge. The

11 defendant in State v. Lente, 2005-NMCA-111, 138 N.M. 312, 119 P.3d 737, was

12 convicted of four counts of criminal sexual penetration of a minor, among other

13 crimes, based on the victim’s testimony that the defendant had inserted his finger all

14 the way inside her vagina more than fifty times. Id. ¶¶ 15-16. The defendant

15 requested, but was denied, lesser included offense instructions for criminal sexual

16 contact of a minor. Id. ¶¶ 14-16. Applying the third prong of the Meadors test, the

17 Court of Appeals held that, because there was no ambiguity in the evidence that

18 could lead any rational juror to acquit on penetration yet convict on contact alone,

19 denial of the defendant’s requested instruction was proper. Id. ¶¶ 16, 19; see also

                                             11
 1 State v. Juan, 2010-NMSC-041, ¶ 1, 148 N.M. 747, 242 P.3d 314 (upholding the

 2 denial of a lesser instruction where the conduct underlying the greater charge and the

 3 conduct that would have supported the lesser included offense instruction were not

 4 the same).

 5         With those principles in mind, we now apply the analysis required by the

 6 cognate approach to the record in this case.

 7 C.      Application of the Cognate Approach

 8         In this case, the district court began its analysis by applying the pre-Meadors

 9 strict elements test, reasoning that the lesser offense of statutory rape “is not

10 necessarily included in the greater” because “the second degree offense can be

11 committed without also committing the . . . fourth degree offense.” “In the lesser

12 offense, the victim must be at least 13 but less than 16 years old.              Thus,

13 hypothetically, if the victim is over 16 years of age, 17 years old and up to 18 years

14 of age, the greater offense could be committed without also committing the lesser

15 offense.” This kind of theoretical analysis that ignores the realities of a particular

16 case was exactly what led this Court to reject the “overly technical inflexibility of

17 the strict elements approach” and adopt the more realistic cognate approach in

18 Meadors, 121 N.M. at 44, 908 P.2d at 737. It is theoretically possible that Victim

19 could have been seventeen years old instead of thirteen, but the jury knew she was

                                             12
 1 not.

 2         New Mexico precedent recognizes the nontechnical approach required by

 3 Meadors in analyzing the allegations of the charging document. As the Court of

 4 Appeals has specifically recognized, “the charging document does not take on some

 5 talismanic quality under Meadors, but merely serves as a reliable indicator of the

 6 State’s theory for purposes of determining whether Defendant was afforded proper

 7 notice of the charges against him.” State v. Darkis, 2000-NMCA-085, ¶ 17, 129

 8 N.M. 547, 10 P.3d 871. Because the fair notice function of a charging document is

 9 less important in evaluating a defendant’s request for a lesser included offense

10 instruction, “a defendant’s right to a lesser-included offense instruction [under

11 Meadors] is effectively greater than the State’s.” Id. ¶¶ 1, 16 (reversing conviction

12 for failure to instruct on misdemeanor possession of drug paraphernalia in a case

13 where the defendant was charged with felony possession of cocaine, although the

14 indictment said nothing about the cocaine being found inside an item of

15 paraphernalia). In this case, there could have been no doubt that the State was

16 relying from the beginning on its theory that Defendant used his position as an adult

17 authority figure, who in fact was at least four years older than thirteen-year-old

18 Victim, to coerce her into sexual intercourse. The notice concerns in the first

19 Meadors factor were at least as clearly satisfied here as they were in Darkis.

                                             13
 1         The district court was legally correct in its acknowledgment of the second

 2 Meadors factor, the sufficiency of the evidence to sustain a conviction on the lesser

 3 offense, but was simply mistaken about the evidence in the record in finding that

 4 “the evidence adduced at trial is not sufficient to sustain a conviction on the lesser

 5 offense. The defendant’s age was not adduced at trial. The age difference required

 6 by the lesser offense has not been accomplished in evidence.” The trial transcript

 7 demonstrates that evidence had been introduced showing Victim’s age as thirteen

 8 and Defendant’s age as over forty. The evidence clearly was sufficient to sustain a

 9 conviction of statutory rape in that it overwhelmingly would have supported findings

10 that Defendant perpetrated sexual penetration on “[1] a child thirteen to sixteen years

11 of age [2] when the perpetrator is at least eighteen years of age [3] and is at least four

12 years older than the child [4] and not the spouse of that child.” Section 30-9-

13 11(F)(1).

14         The district court briefly mentioned the third Meadors factor, that “the

15 elements that distinguish the lesser and greater offenses are sufficiently in dispute

16 such that a jury rationally could acquit on the greater offense and convict on the

17 lesser,” but dismissed the factor with a brief conclusory statement that it had not

18 been met in this case. Meadors, 121 N.M. at 44, 908 P.2d at 737. The application

19 of this factor does not depend on the relative weight of evidence supporting the

                                               14
 1 greater and lesser offenses. The result in Meadors itself might well have been

 2 different if this Court had weighed the relative plausibility of the State’s primary

 3 theory, that the defendant had intentionally thrown gasoline and a lighted match on

 4 the victim with an intent to kill or do great bodily harm, against the defendant’s

 5 theory on which the State requested a lesser offense instruction, that he had

 6 accidentally poured the gasoline on the victim and only threw the match on him in

 7 self defense. Instead, we held that the State had a right to give the jury the option

 8 of convicting of a lesser offense in the event the State’s theory failed to persuade all

 9 twelve jurors beyond a reasonable doubt. The accused has at least as much right as

10 the State to have a jury exercise its constitutional role of deciding these issues of

11 guilt and innocence. See Darkis, 2000-NMCA-085, ¶ 20 (holding that it is the right

12 of a Defendant “to allow the jury the ability to make a choice, that is, as between a

13 lesser and a greater charge”).

14         The evidence in this case would have supported a conviction for either CSP

15 II or CSP IV. The only question remaining is whether a jury rationally could have

16 harbored reasonable doubt about either of the two elements distinguishing

17 Defendant’s culpability under the CSP II statute: his position of authority and his

18 use of coercion. While the evidence was certainly sufficient to support findings on

19 those two elements beyond a reasonable doubt, it is also possible that the jury might

                                              15
 1 not have been persuaded that Victim was coerced into having sex, given her

 2 testimony that she did not know why she consented to sex with Defendant, her

 3 testimony about her confusion, her keeping the activity secret, and her diary entry

 4 that her sister “caught us.” Even viewing Defendant as de facto head of the

 5 household, it is within the realm of reasonable possibilities that the jury could have

 6 had a doubt as to whether the proof established that the sexual acts occurred as a

 7 result of coercion by Defendant as an authority figure and would not have occurred

 8 if Defendant had been merely a neighbor or visitor or other adult whom Victim

 9 knew. We must take into account that the State had the burden of proof on both

10 those elements and that the jury was required by law to resolve all reasonable doubts

11 in favor of Defendant. UJI 14-5060 NMRA (“Presumption of innocence; reasonable

12 doubt; burden of proof”). Under either view of the evidence, Defendant’s conduct

13 was reprehensible and felonious, but one reason a Defendant may want a lesser

14 included offense instruction is because of a concern that a jury might otherwise be

15 inclined to resolve doubts in favor of guilt on the greater offense if the only

16 alternative for the jury is to acquit a culpable defendant completely. As this Court

17 recognized in State v. Reynolds,

18         [t]o argue that a finding by the jury that the defendant [was guilty of
19         the greater offense] precludes any possibility that they [would have
20         convicted of the lesser] begs the question. The jury was simply not

                                             16
 1        given the choice. We do not consider this to be harmless and
 2        non-prejudicial where the evidence would support such a choice by the
 3        jury.

 4 98 N.M. 527, 528-29, 650 P.2d 811, 812-13 (1982) (reversing a first-degree murder

 5 conviction for failure to give a lesser included instruction on voluntary

 6 manslaughter).

 7 III.   CONCLUSION

 8        The district court erred when it refused to instruct the jury on CSP IV.

 9 Accordingly, we reverse Defendant’s convictions of CSP II and remand this matter

10 to the district court for appropriate action. The State may retry Defendant on the

11 CSP II counts, for which there is substantial evidence. In all other respects, the

12 memorandum opinion of the Court of Appeals shall constitute the law of the case.

13        IT IS SO ORDERED.



14                                       ___________________________________
15                                       CHARLES W. DANIELS, Chief Justice




                                           17
1 WE CONCUR:



2 ___________________________________
3 PATRICIO M. SERNA, Justice



4 ___________________________________
5 PETRA JIMENEZ MAES, Justice



6 ___________________________________
7 RICHARD C. BOSSON, Justice



8 ___________________________________
9 EDWARD L. CHÁVEZ, Justice




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