AI Generated Opinion Summaries

This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.

Facts

• The Defendant was convicted for criminal sexual contact of a minor (CSCM), specifically a child under 13. The incident allegedly occurred on Thanksgiving Day 2016, where the Defendant is accused of texting the Victim to come to her bedroom, attempting to kiss her, and then touching her vaginal area. The Defendant's defense was that the alleged touching did not occur, presenting testimony to support this claim. The State provided evidence, including the Victim's testimony and corroborating evidence, to prove the Defendant intentionally touched the Victim's vaginal area (paras 4-5).

Procedural History

• [Not applicable or not found]

Parties' Submissions

• Appellant (Defendant): Argued that the alleged touching did not occur and presented testimony to support this claim. Filed a motion to amend the docketing statement to raise the issue of whether it was fundamental error to fail to instruct the jury on the element of lawfulness, claiming the evidence placed unlawfulness at issue (paras 4-6).
• Appellee (State of New Mexico): Presented evidence, including the Victim's testimony and corroborating evidence, to prove the Defendant intentionally touched the Victim's vaginal area. Argued that the defense strategy of denial made the situation similar to precedent cases where lawfulness was not at issue due to the defense's denial of the incident (para 5).

Legal Issues

• Whether the Defendant's motion to amend the docketing statement to include the issue of failure to instruct the jury on the element of lawfulness in a CSCM case is viable (para 3).
• Whether the defense's strategy of denial removes the element of lawfulness from the jury’s consideration in a CSCM case (para 6).

Disposition

• The motion to amend the docketing statement was denied (para 6).
• The district court’s judgment and sentence were affirmed (para 7).

Reasons

• Vargas, J., with Attrep, J., and Bogardus, J., concurring: The panel concluded that the Defendant's motion to amend was not viable because the defense strategy of denial made the situation similar to precedent cases, specifically referencing State v. Orosco. In Orosco, it was determined that if a defendant denies the incident occurred, the lawfulness of the contact is not at issue. The court found that the Defendant did not present any evidence that would allow the jury to find that he touched the Victim’s vaginal area lawfully. Additionally, the court noted that the jury was instructed on the element of intent, which was consistent with the defense strategy and the jury's need to find intent once it determined that the touching occurred. Therefore, the court denied the motion to amend and affirmed the district court’s judgment and sentence, concluding that the defense strategy had removed lawfulness from the jury’s consideration (paras 3-7).