1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 29,076
5 EFRAIN GONZALES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Douglas R. Driggers, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Hugh W. Dangler, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 KENNEDY, Judge.
18 Defendant appeals from a judgment and sentence entered September 22, 2008
19 following a jury trial where he was convicted of one count of first-degree kidnapping
20 and one count of second degree criminal sexual penetration (commission of a felony).
21 [RP 165-68] We issued a proposed notice of summary disposition, proposing to
1 affirm. Pursuant to an extension, Defendant filed a timely memorandum in opposition
2 on May 13, 2009. We have considered Defendant’s arguments on appeal but are not
3 persuaded. We affirm.
4 Defendant argues that the district court erred by denying his motion for a
5 directed verdict at trial based upon insufficient evidence as a matter of law. [MIO 2]
6 “In reviewing the sufficiency of the evidence, we must view the evidence in the light
7 most favorable to the guilty verdict, indulging all reasonable inferences and resolving
8 all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-
9 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (citations omitted). “Substantial
10 evidence review requires analysis of whether direct or circumstantial substantial
11 evidence exists and supports a verdict of guilt beyond a reasonable doubt with respect
12 to every element essential for conviction. We determine whether a rational factfinder
13 could have found that each element of the crime was established beyond a reasonable
14 doubt.” State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations
15 omitted).
16 Defendant asserts that the verdict was unsupported because victim’s testimony
17 was uncorroborated by any physical evidence and there were no other witnesses.
18 [MIO 2] Defendant argues victim’s testimony that he restrained her by force, intended
19 to hold her against her will, and committed criminal sexual penetration against her
2
1 during the commission of the kidnapping is insufficient because victim previously
2 stated to police that she entered Defendant’s home of her own free will, and only
3 protested the sexual act because of the ten-year age difference between them. [MIO
4 5]
5 Defendant’s argument that his conviction must be supported by more than
6 victim’s testimony is misplaced. “In prosecutions for criminal sexual penetration, the
7 testimony of the victim need not be corroborated and lack of corroboration has no
8 bearing on weight to be given to the testimony.” State v. Nichols, 2006-NMCA-017,
9 ¶ 10, 139 N.M. 72, 128 P.3d 500 (internal quotation marks and citations omitted); see
10 NMSA 1978, § 30-9-15 (1975). The appropriate formulation of the sufficiency of the
11 evidence test in criminal sexual penetration cases has been stated as follows:
12 The jury, as the trier of fact, was entitled to weigh th[e] evidence. The
13 jury simply believed the victims' testimony and the evidence supporting
14 it over [d]efendant's assertions that the incidents had not occurred. This
15 [c]ourt will not substitute its determination for that of the jury.
16 State v. Hunter, 101 N.M. 5, 7, 677 P.2d 618, 620 (1984) (citations omitted). Here,
17 Defendant did not testify in his own defense so there is no conflicting testimony for
18 the jury to have weighed. The jury, by returning a verdict of guilty, indicated that it
19 found victim’s testimony credible.
20 Defendant does not argue that victim failed to testify as to any of the essential
21 elements of kidnapping or criminal sexual penetration. So long as victim testified at
3
1 trial that each element of the offenses of kidnapping and criminal sexual penetration
2 occurred, no further evidence is necessary to corroborate victim’s statements. It is
3 enough that the jury believed victim’s testimony. “The reviewing court does not
4 weigh the evidence or substitute its judgment for that of the fact finder as long as there
5 is sufficient evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27,
6 124 N.M. 346, 950 P.2d 789 (citations omitted).
7 For the foregoing reasons, and those set forth in the proposed notice of
8 disposition, we affirm.
9 IT IS SO ORDERED.
10 ___________________________________
11 RODERICK T. KENNEDY, Judge
12 WE CONCUR:
13 ___________________________
14 MICHAEL D. BUSTAMANTE, Judge
15 ___________________________
16 JONATHAN B. SUTIN, Judge
17
4
State v. E Gonzales
Combined Opinion