New Mexico v. LewisAnnotate this Case
New Mexico prosecuted Defendant Kelson Lewis under a five-count indictment. The only count at issue in this appeal was Count 1, under which Defendant was charged with criminal sexual contact of a minor (CSCM). At the close of the State’s case at trial, the district court granted the State’s motion to amend the CSCM charge from second to third degree and granted Defendant’s motion to include battery as a lesser included offense under Count 1. The issue this case presented for the New Mexico Supreme Court's review in this appeal centered on two issues which arise when a jury is asked to render a verdict on a count that includes both greater and lesser offenses and it deadlocks in its deliberations on the greater offense. The Court held that a district court satisfies the requirements under Rule 5-611(D) when it has established a clear record as to which offense the jury is deadlocked. Strict compliance with the provisions of Rule 5-611(D) is not necessary to fulfill its purpose. Further, the Court recognized an ambiguity in the existing jury instructions regarding the order in which a jury must deliberate on counts which include both greater and lesser included offenses. The Court resolved this ambiguity and provided guidance to courts and litigants, and adopted approach to jury instructions that enables the jury to consider both the greater and lesser offenses under a count in any order it deems appropriate provided it return a verdict of not guilty on the greater offense before the court may accept a verdict on the lesser included offense.