(dissenting).
In State v. Davis, 97 N.M. 130, 637 P.2d 561 (1981), quoting from In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), this Court said: “[The] Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Davis, 97 N.M. at 132, 637 P.2d at 563 (quoting Winship, 397 U.S. at 364, 90 S.Ct. at 1073) (emphasis added). In the present ease, the Court, applying Swafford v. State (cited in the majority opinion) and seeking to avoid the strictures of the Double Jeopardy Clauses of our state and federal constitutions, says: “CDM requires proof of a fact not required to prove CSCM” (italics omitted) and “CDM requires proof that the act of defendant contributed to the ‘delinquency* of a minor” and “Contributing to delinquency, therefore, is a fact separate from an unlawful sexual touching____”
The question thus arises: Where is the evidence to prove a fact not required to prove CSCM — to prove that defendant’s acts contributed to either boy’s delinquency? The answer: There is none.
The majority concedes as much. The majority acknowledges that “the State did not present any separate evidence ... that Trevino’s acts of sexual contact caused or tended to cause or encourage delinquency on the part of either of the two minors involved.” The majority is on sound ground in making this concession. It correctly appraises the State’s position because, among other things, the prosecutor told the jury in his opening statement that criminal sexual contact was the basis for the CDM charge.1 In fact, as the evidence at trial revealed, the boys were not induced to consent willingly to defendant’s sexual advances, did not enjoy or participate in the conduct, were not persuaded to regard it as appropriate, and were in fact frightened by defendant’s acts. J.J. testified that he did not like being touched and was afraid to say anything because defendant might “do something” to him. J.C. testified that he was scared when defendant touched him and did not know how to handle the situation.
Thus, even though the majority professes to hold (again, to avoid the double jeopardy problem) that contributing to the delinquency of a minor requires proof of a fact not required to prove criminal sexual contact of a minor, in the end the majority states that the different facts to establish the different offenses may be proved by the same evidence. To the question, what evidence was adduced in this case to prove a fact different from the fact that defendant committed CSCM?, the majority answers: evidence that defendant committed CSCM. I cannot accept this self-contradictory analysis.
In lieu of evidence, the Court offers the jury’s “common sense” and “the sense of decency, propriety, and morality which most people entertain.” Now, I fully agree that in deciding whether the State in a criminal case has carried its burden to prove, beyond a reasonable doubt, every element of the crime with which the defendant is charged, see State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 317-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)), the jury should apply its common sense — and perhaps even its sense of decency, propriety, and morality — to the evidence before it. However, these qualities are not substitutes for evidence; they are attributes that every jury brings to a case and that we expect the jury to use in deciding whether the evidence does or does not establish the defendant’s guilt.
The majority turns this requirement for evidence on its head, saying “While it may be helpful for the jury to hear evidence on whether a particular act tends to cause or encourage delinquent behavior either generally or with respect to the particular victim, such evidence is not required in the jury’s exercise of common sense.” In other words, to enable a jury applying its common sense to determine that the defendant’s act did not contribute to delinquency, it is incumbent on the defendant to adduce evidence that his or her act did not contribute to the minor’s delinquency. This effectively shifts the burden of proof to the defendant and is unconstitutional, as established by, among other cases, Jackson v. Virginia.
The majority states, “While unlawful sexual touching of a minor factually may evince a tendency to cause or encourage delinquency, ... it does not do so as a matter of law.” As a practical matter, however, the majority’s holding in this case makes the commission of CSCM ipso facto the commission of CDM. An accused who is charged with CSCM automatically is guilty, under the majority’s holding, of CDM (at least if the jury, without the benefit of any evidence on the subject, so declares). I find no such per se equivalence between the two offenses in our statutes, and I disagree that commission of the former may be tantamount (depending on what the jury may find when it consults its common sense) to commission of the latter.
The majority says that “[i]f the jury finds that the defendant’s conduct violated the community sense of decency, propriety, and morality, the jury may infer an adverse impact on the minor.” Similarly, the majority relies on the State’s position that sexual abuse and exploitation of minors have “many serious consequences to their future well-being.” But there was no need for the jury to draw inferences along these lines; there was direct testimony from each boy’s mother that her son’s experiences with defendant caused him to suffer adverse effects. J.C.’s mother testified that he was crying, shaking, and babbling incoherently following his last encounter with defendant; J.J.’s mother testified that he began throwing temper tantrums and bed-wetting following revelation of defendant’s sexual activities.
These, however, in my opinion, are precisely the kinds of adverse impact that the statute proscribing CSCM is intended to prevent. To the extent that the majority opinion implies that the only purpose of the CSCM statute is to protect a minor’s bodily integrity and personal safety, I respectfully disagree. I believe that the statute also protects against the kind of emotional and psychological trauma that is such a well-known result of sexual abuse and that is exhibited in the record of this case. However, the statute proscribing CDM criminalizes conduct that causes or tends to cause or encourage the delinquency of a minor. The Uniform Jury Instruction, given in this case (see supra note 1), requires an accused to refrain from conduct injurious to the morals of the minor.2 I reiterate: No evidence in this case established or tended to establish that defendant’s conduct resulted in any of the adverse effects contemplated by either the CDM statute or the Uniform Jury Instruction.
The majority draws some support for its per se equivalence between CSCM and CDM from this Court’s dictum in State v. Dodson (cited in the majority opinion) that “We can conceive of few acts which would more manifestly tend to cause delinquency than those charged here.”3 The majority also says that in none of the New Mexico cases cited in its opinion is any reference made to any evidence beyond proof of sexual conduct with a minor. This latter statement, while perhaps true in a broad sense, is clearly not accurate to the extent it implies that touching or fondling alone has been treated as sufficient to convict for CDM. Dodson does not describe in any detail the “certain illicit sex practices” that the defendant there engaged in with the minor prosecutrix, but it appears in the opinion that there was “evidence of other acts with the prosecutrix similar in nature to those charged but occurring at times not covered in the indictment____” 67 N.M. at 148, 353 P.2d at 366. From this it may be inferred that the defendant and the victim’s conduct had occurred over some period of time and had been willingly engaged in by the victim. Accordingly, there probably was sufficient evidence in the case to find that the defendant had caused the victim to engage in conduct injurious to her morals.
As for other New Mexico cases (and without dissecting them all), the majority’s own parenthetical description of State v. Corbin (cited in the opinion) shows that the extensive “sexual conduct” engaged in by the defendant was sufficient at least to “encourage” the victim to engage in conduct injurious to his morals. Here, on the other hand, the effect of defendant’s conduct was, as they testified, only to cause the boys to feel fear.
As for decisions elsewhere around the country, the cases seem to be split over the precise issue considered here, but there is certainly authority supporting the position adopted in this dissent. See, e.g., State v. Stone, 111 Or. 227, 226 P. 430, 433 (1924) (“An act which might lure one child into the paths of sin might prove repulsive and abhorrent to another, working out an exactly opposite effect.”); State v. Crary, 155 N.E.2d 262, 265 (Ohio C.P. Lucas 1959) (defendant may not be convicted “for doing something which might just possibly sometime, somewhere lead to some child’s becoming delinquent”).
The majority allows a defendant to be convicted of CDM by proof only of the defendant’s act, without reference to the effect of the act on the victim. Yet our Criminal Code defines many crimes in terms of the effect on the victim. See, e.g., NMSA 1978, § 30-2-1 (Repl.Pamp.1984) (defining murder); § 30-3-4 (defining battery); § 30-4-3 (defining false imprisonment); § 30-6-1 (Cum.Supp. 1993) (defining abandonment or abuse of a child). I doubt that it is possible to determine whether a defendant in fact contributed to the delinquency of a minor without examining the effect of the defendant’s conduct on the victim. Thus, for example, while offering liquor to one child might cause or tend to cause that child to become delinquent, another child might angrily refuse the offer and in no way be encouraged toward delinquent behavior. In the latter case (which obviously is not before us), I would be inclined to doubt that the perpetrator had contributed to the delinquency of a minor and that any conviction of that offense should be sustained.
I would not sustain Trevino’s convictions of CDM in this case. The majority having done so, I respectfully dissent.
FRANCHINI, J., concurs.. The prosecutor’s theory was carried forward ' into the trial court's instructions to the jury. The court instructed the jury that, to find defendant guilty of contributing to each boy's delinquency, the State had to prove to the jury's satisfaction beyond a reasonable doubt each of the following two critical elements of the crime: (1) that defendant "touched the penis” of J.J. and "touched the penis and buttocks” of J.C., and (2) that these acts caused or encouraged J.J. and J.C. to conduct themselves in a manner injurious to their morals. See SCRA 1986, 14-601 (Uniform Jury Instruction on elements of CDM). As described in the text, there was no evidence apart from the touchings that those touchings caused or encouraged either minor to conduct himself in a manner injurious to his morals.
. The Uniform Jury Instruction also describes other types of delinquent behavior that, depending on the facts of a particular case, may be caused or encouraged by the defendant, including commission of a crime, refusal to obey lawful commands or directions of persons in authority, and conduct injurious to the minor's health or welfare (in addition to his or her morals). See SCRA 1986, 14-601.
Perhaps the mothers' testimony concerning their sons' reactions to defendant's conduct would have been sufficient to support a jury finding that the conduct was injurious to each boy’s "health” (i.e., mental health) or "welfare,” but the jury clearly was not instructed on any such theory.
. To the extent this dictum can be read as saying that proof of touching a minor's intimate parts will alone support a conviction of CDM, I would expressly disapprove it.