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2 405 NMRA for restrictions on the citation of unpublished decisions.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
18