2019 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 9 - Sexual Offenses
Section 30-9-11 - Criminal sexual penetration.

Universal Citation: NM Stat § 30-9-11 (2019)

A. Criminal sexual penetration is the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.

B. Criminal sexual penetration does not include medically indicated procedures.

C. Aggravated criminal sexual penetration consists of all criminal sexual penetration perpetrated on a child under thirteen years of age with an intent to kill or with a depraved mind regardless of human life. Whoever commits aggravated criminal sexual penetration is guilty of a first degree felony for aggravated criminal sexual penetration.

D. Criminal sexual penetration in the first degree consists of all criminal sexual penetration perpetrated:

(1) on a child under thirteen years of age; or

(2) by the use of force or coercion that results in great bodily harm or great mental anguish to the victim.

Whoever commits criminal sexual penetration in the first degree is guilty of a first degree felony.

E. Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated:

(1) by the use of force or coercion on a child thirteen to eighteen years of age;

(2) on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate;

(3) by the use of force or coercion that results in personal injury to the victim;

(4) by the use of force or coercion when the perpetrator is aided or abetted by one or more persons;

(5) in the commission of any other felony; or

(6) when the perpetrator is armed with a deadly weapon.

Whoever commits criminal sexual penetration in the second degree is guilty of a second degree felony. Whoever commits criminal sexual penetration in the second degree when the victim is a child who is thirteen to eighteen years of age is guilty of a second degree felony for a sexual offense against a child and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a minimum term of imprisonment of three years, which shall not be suspended or deferred. The imposition of a minimum, mandatory term of imprisonment pursuant to the provisions of this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the provisions of the Criminal Sentencing Act [Chapter 31, Article 18 NMSA 1978].

F. Criminal sexual penetration in the third degree consists of all criminal sexual penetration perpetrated through the use of force or coercion not otherwise specified in this section.

Whoever commits criminal sexual penetration in the third degree is guilty of a third degree felony.

G. Criminal sexual penetration in the fourth degree consists of all criminal sexual penetration:

(1) not defined in Subsections D through F of this section perpetrated on a child thirteen to sixteen years of age when the perpetrator is at least eighteen years of age and is at least four years older than the child and not the spouse of that child; or

(2) perpetrated on a child thirteen to eighteen years of age when the perpetrator, who is a licensed school employee, an unlicensed school employee, a school contract employee, a school health service provider or a school volunteer, and who is at least eighteen years of age and is at least four years older than the child and not the spouse of that child, learns while performing services in or for a school that the child is a student in a school.

Whoever commits criminal sexual penetration in the fourth degree is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-9-21, enacted by Laws 1975, ch. 109, § 2; 1987, ch. 203, § 1; 1991, ch. 26, § 1; 1993, ch. 177, § 2; 1995, ch. 159, § 1; 2001, ch. 161, § 2; 2003 (1st S.S.), ch. 1, § 3; 2007, ch. 69, § 1; 2009, ch. 56, § 1.

ANNOTATIONS

Cross references. — For assault with intent to commit a violent felony, see 30-3-3 NMSA 1978.

For sexual exploitation of children, see 30-6A-3 NMSA 1978.

For provision that testimony of a victim hereunder need not be corroborated, see 30-9-15 NMSA 1978.

For limitations on testimony regarding victim's past sexual conduct, see 30-9-16 NMSA 1978.

For the Sex Offender Registration and Notification Act, see Chapter 29, Article 11A NMSA 1978.

For Uniform Jury Instructions, see UJI 14-941 to 14-963 NMRA.

Compiler's notes. — For Laws 2003, ch. 257 enactment concerning time limit for prosecution under this section, see 30-1-9.2 NMSA 1978 and notes thereto.

The 2009 amendment, effective July 1, 2009, in Subsection C, increased the age of the child victim from nine to thirteen years.

The 2007 amendment, effective July 1, 2007, added a new Subsection C to provide a penalty for aggravated criminal sexual penetration in the first degree; defined criminal sexual penetration in the second degree to consist of criminal sexual penetration by the use of force or coercion on a child thirteen to eighteen years of age; and eliminated the penalty for criminal sexual penetration in the third degree when the victim is thirteen to eighteen years of age.

The 2003 (1st S.S.) amendment, effective February 3, 2004, added the last two sentences of Subsection D and the last sentence of Subsection E.

The 2001 amendment, effective July 1, 2001, substituted "eighteen" for "sixteen" in Paragraph D(1); and in Subsection F, added the Paragraph (1) designation, inserted "the child" following "older than" in Paragraph (1), and added Paragraph (2).

The 1995 amendment, effective July 1, 1995, in Subsection D, added Paragraph (2) and redesignated the remaining paragraphs accordingly.

The 1993 amendment, effective July 1, 1993, designated the formerly undesignated provisions as Subsection A; added present Subsection B; redesignated former Subsections A through D as Subsections C through F; and substituted "Subsections C through E" for "Subsection A, B, or C" in the first paragraph of Subsection F.

The 1991 amendment, effective June 14, 1991, deleted "other than one's spouse" following "person" in the first paragraph and substituted "and not the spouse of that child" for "the child" at the end of the first sentence in Subsection D.

The 1987 amendment, effective June 19, 1987, added Subsection D.

I. GENERAL CONSIDERATION.

A. IN GENERAL.

Constitutionality. — "Unlawful" is defined as "without excuse of justification" and the use of that term by the statute does not render the statute void for vagueness. State v. Larson, 1980-NMSC-106, 94 N.M. 795, 617 P.2d 1310.

Identical counts and jury instructions. — Where multiple counts of criminal sexual penetration of a minor in the indictment and the counts in the jury instructions were carbon-copy counts of each other and where the child's testimony distinguished facts for each count and the defendant admitted to having sexual intercourse with the child on several occasions, there was sufficient evidence from which a jury could find separate incidents of criminal sexual penetration and there was no violation of double jeopardy. State v. Martinez, 2007-NMCA-160, 143 N.M. 96, 173 P.3d 18, cert. denied, 2007-NMCERT-011.

Double jeopardy. — The crime of attempted CSP III is subsumed within assault with intent to commit CSP. Proof of an overt act done with the intent of forcing CSP required by attempted CSP III is satisfied by the same proof required for the attempted restraint by force in the assault (attempted battery) charge. State v. Schackow, 2006-NMCA-123, 140 N.M. 506, 143 P.3d 745, cert. denied, 2006-NMCERT-008, 140 N.M. 422, 143 P.3d 184.

Multiple counts of criminal sexual penetration. — Section 30-9-11 NMSA 1878 cannot be said as a matter of law to evince a legislative intent to punish separately each penetration occurring during a continuous attack absent proof that each act of penetration is in some sense distinct from the others. In determining whether an act is distinct our analysis is informed by the following factors culled from decisions of other jurisdictions that have considered the issue of multiple punishment in cases of rape: (1) temporal proximity of penetrations (the greater the interval between acts the greater the likelihood of separate offenses); (2) location of the victim during each penetration (movement or repositioning of the victim between penetrations tends to show separate offenses); (3) existence of an intervening event; (4) sequencing of penetrations (serial penetrations of different orifices, as opposed to repeated penetrations of the same orifice, tend to establish separate offenses); (5) defendant's intent as evidenced by his conduct and utterances; and (6) number of victims (although not relevant here, multiple victims will likely give rise to multiple offenses). Herron v. State, 1991-NMSC-012, 111 N.M. 357, 805 P.2d 624.

The term "sexual intercourse" includes penetration of the vulva even when the vaginal canal is not penetrated. State v. Tafoya, 2010-NMCA-010, 147 N.M. 602, 227 P.3d 92, cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90.

Applicable statute of limitations. — Where the state alleges that defendant committed criminal sexual penetration of a minor under the age of 13 between September and December of 1988 and in January of 1989, the applicable statute of limitations at the time defendant allegedly committed the crime is 15 years. State v. Hill, 2005-NMCA-143, 138 N.M. 693, 125 P.3d 1175, cert. denied, 2005-NMCERT-012, 138 N.M. 772, 126 P.3d 1136.

Exclusion of defendant from courtroom. — Defendant's exclusion from the courtroom while child testified created a substantial risk that the jury would assume that the trial court believed that the defendant had engaged in misconduct necessitating his absence from the courtroom. State v. Rodriguez, 1992-NMCA-088, 114 N.M. 265, 837 P.2d 459.

Defendant absent from trial voluntarily. — Factors articulated in State v. Clements, 1988-NMCA-094, 108 N.M. 13, 765 P.2d 1195, cert. denied, 107 N.M. 785, 765 P.2d 758, as to waiver of right to be present being occasioned by the voluntary absence of an accused, were to be applied only when the defendant was absent from trial voluntarily. State v. Rodriguez, 1992-NMCA-088, 114 N.M. 265, 837 P.2d 459.

Trial of co-defendants. — Whether separate trials are to be held for defendants jointly indicted for attempted forcible rape was a matter to be addressed to and resolved by the sound discretion of the trial court. State v. Pope, 1967-NMCA-010, 78 N.M. 282, 430 P.2d 779.

Defense of mistake of fact. — Twenty year-old defendant's conviction of fourth degree criminal sexual penetration was reversed, where the trial court did not consider his defense of mistake of fact, which was based on evidence that he had asked the fifteen year-old victim her age and was told by her and another person that she was seventeen. Perez v. State, 1990-NMSC-115, 111 N.M. 160, 803 P.2d 249.

Prosecutor's remarks held prejudicial. — The prosecutor made a legally incorrect statement of the law when he told the jury the crime for which the defendant was charged (criminal sexual penetration) was less serious than committing the crime with a weapon, thus invading the province of the court to give instructions on the law. Because the evidence of defendant's guilt was less than overwhelming, it is fair to assume that the prosecutor's remarks had some prejudicial impact, substantial enough to require a new trial at the trial court's discretion. State v. Gonzales, 1986-NMCA-050, 105 N.M. 238, 731 P.2d 381, cert. quashed, 105 N.M. 211, 730 P.2d 1193 (1987).

Adoption of child conceived as result of rape. — Man convicted of criminal sexual penetration of a child had no constitutional right under the due process clauses of the United States or New Mexico Constitutions to withhold consent to adoption of the child conceived and born as a result of that act. Christian Child Placement Serv. of the N.M. Christian Children's Home v. Vestal, 1998-NMCA-098, 125 N.M. 426, 962 P.2d 1261.

Spouses living apart. — The phrase "living apart" as the phrase is used in the definition of the term "spouse" in Section 30-9-10 NMSA 1978 suggests that Section 30-9-11 NMSA 1978 was designed to prohibit nonconsensual sexual activity among married persons during interruption of the relationship and there is no indication that the legislature intended either a durational requirement or the existence of measures to terminate the marriage to impose criminal liability on one spouse for the rape of another. Brescheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

B. CONSTITUTIONALITY.

Speedy trial. — The right to a speedy trial based on a 1989 original complaint, which was dismissed, did not run from 1989 to 2002 when charges were re-filed because defendant was not an "accused" and knew he was not an "accused" during the approximately 13-year interval when no criminal sexual penetration of a minor under the age of 13 charges were pending against him. Therefore, defendant's speedy trial right did not attach until 2002. State v. Hill, 2005-NMCA-143, 138 N.M. 693, 125 P.3d 1175, cert. denied, 2005-NMCERT-012, 138 N.M. 772, 126 P.3d 1136.

Phrase "perpetrated by the use of force or coercion" not vague. — Phrase "perpetrated by the use of force or coercion" in this section is not unconstitutionally vague since the crime is defined in terms of a result that defendant causes, and if a defendant causes such a result by the use of force or coercion, force or coercion was the method which caused the result, that is, the crime. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Distinctions between degrees on basis of harm constitutional. — Determining the degree of a crime by the amount of the harm done to the victim does not make the statute unconstitutionally vague. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Section not void for vagueness. — Criminal sexual penetration could be committed by the use of force or coercion without the victim suffering personal injury as a result thereof and the distinction between second and third degree criminal sexual penetration based on personal injury to the victim is not void for vagueness as a matter of law. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

This section is not unconstitutionally vague or overbroad, nor does the statute encourage arbitrary or discriminatory prosecution. State v. Pierce, 1990-NMSC-049, 110 N.M. 76, 792 P.2d 408.

Former sodomy statute constitutional. — Former 40A-9-6, 1953 Comp., which embraced and proscribed sodomitic conduct even on the part of consenting adults was constitutionally valid. State v. Elliott, 1976-NMSC-030, 89 N.M. 305, 551 P.2d 1352 (decided under prior law, statute repealed).

And not violative of right of privacy. — On attack by an inmate of penal institution against constitutionality of former sodomy statute on grounds that it violated right of privacy, nothing in the language of the act could reasonably be considered as violative of any constitutionally protected area, nor did the record disclose an unconstitutional application of the law in the particular instance. Washington v. Rodriguez, 1971-NMCA-021, 82 N.M. 428, 483 P.2d 309 (decided under prior law, statute repealed).

Standing to challenge constitutionality. — Defendant's claims that definitional distinctions which go to difference between first and second degree criminal sexual penetration are unconstitutionally vague would not be considered by the appeals court when defendant was convicted of second degree criminal sexual penetration. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Since defendant did not claim nor argue that he was a member of the class discriminated against by the former sodomy statute or that his rights had been impaired by application of the statute to him, he lacked standing to challenge the constitutionality of the act. State v. Armstrong, 1973-NMCA-081, 85 N.M. 234, 511 P.2d 560, cert. denied, 85 N.M. 228, 511 P.2d 554, overruled by State v. Elliott, 1975-NMCA-087, 88 N.M. 187, 539 P.2d 207; State v. Kasakoff, 1972-NMCA-151, 84 N.M. 404, 503 P.2d 1182.

In prosecution for sodomy, where the state's evidence was that the act was committed by force and the defendant denied committing the act, defendant could not then argue that the incident was a consensual act between two adult persons and that the statute was unconstitutional as overbroad for prohibiting private consensual acts of adults. State v. Kasakoff, 1972-NMCA-151, 84 N.M. 404, 503 P.2d 1182.

Spouses living apart. — Where, at the time defendant broke into the house in which defendant's spouse lived and forcibly had sexual contact with the spouse, defendant and the spouse were living apart, defendant did not have standing to challenge Section 30-9-11 NMSA 1978 on the ground that the statute was unconstitutionally overbroad, because it infringed on privacy in marriage which is a protected right of association under the First Amendment. Brescheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

Section 30-9-11 NMSA 1978 is not unconstitutionally vague even though the phrase "living apart" is not defined as that phrase is used in the definition of the term "spouse" in Section 30-9-10 NMSA 1978. Brescheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

C. ELEMENTS OF OFFENSE.

Criminal sexual penetration based on the commission of a felony. — When criminal sexual penetration in the second degree is based on the commission of a felony, it must be a felony that is committed against the victim of, and that assists in the accomplishment of, sexual penetration by force or coercion or against a victim who, by age or other statutory factor, gave no lawful consent. Simply causing another person to engage in otherwise lawful sexual intercourse at the same time a felony is being committed does not constitute the crime of criminal sexual penetration during the commission of a felony. The jury should be instructed that the crime of criminal sexual penetration during the commission of a felony requires the commission of unlawful sexual activity with the victim of the felony. State v. Stevens, 2014-NMSC-011, overruling in part State v. Maestas, 2005-NMCA-062, 137 N.M. 477.

Where defendant directed the victim to perform oral sex on defendant's friend after the three injected methamphetamine together; defendant did not force the victim to perform oral sex; the victim complied with defendant's direction because the victim was high and did not care; defendant was charged with causing criminal sexual penetration during the commission of the felony of distribution of a controlled substance to a minor; and the jury was not instructed that the state was required to prove that the sexual penetration was unlawful and that the penetration was caused by the commission of a felony against the victim, the deficiency in the jury instructions did not result in fundamental error, because the sexual relation between the victim, who was thirteen years of age, and defendant's friend, who was as least ten years older, was unlawful and the fact that it was after the victim had been injected with methamphetamine that the victim acquiesced to defendant's direction to perform oral sex established the nexus of causation between the commission of the felony against the victim and the resulting unlawful sexual act committed on the victim. State v. Stevens, 2014-NMSC-011, overruling in part State v. Maestas, 2005-NMCA-062, 137 N.M. 477.

Use of force. — Where the defendant ensured the physical isolation of the location where the incident occurred; locked the doors of the car; unbuttoned and took off the thirteen-year old victim's pants; told the victim that she was ready for intercourse despite her disagreement; reclined the victim's car seat and then climbed on top of her, initiating sex by forcing the victim's legs open; and persisted in having intercourse with the victim after she told the defendant that it hurt and asked him to stop, the evidence was sufficient to support the defendant's conviction of sexual penetration through the use of force or coercion. State v. Perea, 2008-NMCA-147, 145 N.M. 123, 194 P.3d 738, cert. denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488.

Criminal sexual penetration is not continuing offense. — Once the penetration is perpetrated, that criminal sexual penetration is a completed offense. State v. Ramirez, 1978-NMCA-102, 92 N.M. 206, 585 P.2d 651; State v. Corneau, 1989-NMCA-040, 109 N.M. 81, 781 P.2d 1159, cert. denied, 108 N.M. 668, 777 P.2d 907.

Penetration not essential. — Despite the heading "Criminal sexual penetration" for this section, the offense does not require penetration. State v. Delgado, 1991-NMCA-064, 112 N.M. 335, 815 P.2d 631, cert. denied, 112 N.M. 220, 813 P.2d 1018.

Force or coercion not an element. — Force or coercion is not an essential element of second degree criminal sexual penetration when defendant is in a position of authority over an inmate. State v. Maestas, 2005-NMCA-062, 137 N.M. 477, 112 P.3d 1134, rev'd on other grounds, 2007-NMSC-001, 140 N.M. 836, 149 P.3d 933.

"Anguish" as personal injury. — "Anguish" means "distress," and mental anguish is distress of the mind; if such results from the use of force or coercion it is personal injury under this statute. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Specific intent to rape was not element of the crime. State v. Ramirez, 1972-NMCA-108, 84 N.M. 166, 500 P.2d 451, cert. denied, 84 N.M. 180, 500 P.2d 1303.

Intent. — The wording of this section was not meant to impose the additional requirement of showing specific intent. The intent which must be present to perform the act satisfies the "intentional causing" provision in this section. State v. Keyonnie, 1977-NMSC-097, 91 N.M. 146, 571 P.2d 413.

Voluntary drunkenness no defense. — Instruction that rape requires no specific intent and that voluntary drunkenness is neither excuse nor justification for crime of rape was correct. State v. Ramirez, 1972-NMCA-108, 84 N.M. 166, 500 P.2d 451, cert. denied, 84 N.M. 180, 500 P.2d 1303.

Specific sexual intent not an element. — The legislature did not intend to adopt a requirement of specific sexual intent as an element of this section. State v. Pierce, 1990-NMSC-049, 110 N.M. 76, 792 P.2d 408.

Proof of intent. — State was not required to prove motive or intent. State v. Alva, 1913-NMSC-056, 18 N.M. 143, 134 P. 209.

"Perpetrated," in Subsection D, means accomplished, performed, committed. State v. Ramirez, 1978-NMCA-102, 92 N.M. 206, 585 P.2d 651.

Penetration must be intentional. — To prove criminal sexual penetration in the third degree, the state must establish that the penetration was intentional. State v. Lucero, 1994-NMCA-129, 118 N.M. 696, 884 P.2d 1175, cert. denied, 118 N.M. 731, 885 P.2d 1325.

Child under age of 13. — Causing a child under the age of 13 to engage in cunnilingus, even where there is no penetration, is sufficient to establish violation of this section. State v. Orona, 1982-NMSC-002, 97 N.M. 232, 638 P.2d 1077.

Penetration and felony must be continuous transaction under Subsection D(4) (now E(5)). — If a criminal sexual penetration occurs within the res gestae of a felony, Subsection D(4) (now E(5)) is applicable, and for the sexual penetration to come within the res gestae, the felony and the sexual penetration must be part of one continuous transaction and closely connected in point of time, place and causal connection. State v. Martinez, 1982-NMCA-053, 98 N.M. 27, 644 P.2d 541, cert. denied, 98 N.M. 336, 648 P.2d 794.

Means of committing offense. — Former law defining rape did not embrace several distinct offenses, but merely defined the various means by which the same offense might be committed. Territory v. Edie, 1892-NMSC-019, 6 N.M. 555, 30 P. 851, aff'd on rehearing, 1893-NMSC-016, 7 N.M. 183, 34 P. 46.

Force or coercion. — Unless there is force or coercion beyond that inherent in almost every criminal sexual penetration, the proper charge is third degree criminal sexual penetration. State v. Pisio, 1994-NMCA-152, 119 N.M. 252, 889 P.2d 860, cert. denied, 119 N.M. 20, 888 P.2d 466.

Intercourse with underage girl. — Rape could be perpetrated in any of the ways set out in the statutes and sexual intercourse with a girl with her consent constituted rape if she was less than 16 (now 13) years of age. State v. Richardson, 1944-NMSC-059, 48 N.M. 544, 154 P.2d 224.

Submission to request of authority figure is coercion if it is achieved through undue influence or affected by external forces. State v. Gillette, 1985-NMCA-037, 102 N.M. 695, 699 P.2d 626.

Consensual sex between therapist and adult patient. — A defendant's conduct did not constitute the crimes of second or third degree criminal sexual penetration because consensual sex between a therapist and his adult patient is not a crime. State v. Leiding, 1991-NMCA-043, 112 N.M. 143, 812 P.2d 797, cert. denied, 112 N.M. 77, 811 P.2d 575.

Spouses living apart. — Where defendant's spouse asked defendant to move out of their house several days before defendant broke into the house and forcibly had sexual contact with the spouse; the separation was to last a month to give the spouse time to decide whether to seek a divorce; defendant believed defendant had no choice but to move out; and defendant moved some of defendant's belongings out of the house and visited the spouse only to get work clothes and toiletries, there was a suspension of the marital relationship at the time defendant forcibly had sexual contact with the spouse. Brescheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

Guilt of each participant. — A person engages in sexual intercourse, cunnilingus, fellatio, or anal intercourse if that person is one of the two persons required for the performance of the act. State v. Delgado, 1991-NMCA-064, 112 N.M. 335, 815 P.2d 631, cert. denied, 112 N.M. 220, 813 P.2d 1018.

Statutory language genderless. — The genderless language used in the statute makes clear that the defendant can be either male or female. State v. Delgado, 1991-NMCA-064, 112 N.M. 335, 815 P.2d 631, cert. denied, 112 N.M. 220, 813 P.2d 1018.

Child not conceived "as a result of rape". — Child conceived as a result of fourth degree criminal sexual penetration of a 16-year-old was not conceived "as a result of rape" authorizing dismissal of the father from adoption proceedings under Subsection C of 32A-5-19 NMSA 1978. State ex rel. Children, Youth & Families Dep't v. Paul P., 1999-NMCA-077, 127 N.M. 492, 983 P.2d 1011.

Defendant entitled to discovery of information relevant to element of mental anguish which the state has to prove. State v. Garcia, 1980-NMCA-061, 94 N.M. 583, 613 P.2d 725, cert. denied, 94 N.M. 675, 615 P.2d 992.

Defendant may require complaining witness to undergo psychological examination. — When the mental condition of the victim is relevant because the state alleges the force or coercion resulted in mental anguish to the victim, defendant may require complaining witness to undergo a psychological examination, in order to adequately prepare his defense. State v. Garcia, 1980-NMCA-061, 94 N.M. 583, 613 P.2d 725, cert. denied, 94 N.M. 675, 615 P.2d 992.

D. MULTIPLE CONVICTIONS OR PUNISHMENTS.

Criminal sexual penetration and assault with intent to commit criminal sexual penetration on household member. — Criminal sexual penetration and assault with intent to commit criminal sexual penetration on a household member are separate offenses. State v. Jensen, 2005-NMCA-113, 138 N.M. 254, 118 P.3d 762, cert. quashed, 2005-NMCERT-011, 138 N.M. 587, 124 P.3d 565.

Third degree criminal sexual penetration becomes second degree criminal sexual penetration when it is committed during the commission of any other felony. Florez v. Williams, 281 F.3d 1136 (10th Cir. 2002).

Offense of enticement of child is not lesser included offense of criminal sexual penetration. State v. Garcia, 1983-NMCA-069, 100 N.M. 120, 666 P.2d 1267, cert. denied, 100 N.M. 192, 668 P.2d 308.

Aggravated sodomy and murder not merged. — Homicide resulting from great bodily harm provided sufficient evidence for the jury to find aggravated sodomy and first degree kidnapping, and there was no merger with the charge of murder of which defendant was acquitted. State v. Melton, 1977-NMSC-014, 90 N.M. 188, 561 P.2d 461.

Merger of attempted criminal sexual penetration and criminal sexual contact of minor from unitary conduct. — Despite the state's contention that the conduct underlying the offenses charged against the defendant was not unitary, in that the defendant's action of lying on the victim constituted criminal sexual contact of a minor and his action of preparing to "hump" her constituted attempted criminal sexual penetration of a minor, the actions can only reasonably be deemed to constitute unitary conduct; the contact and attempted penetration all took place within the same short space of time, with no physical separation between the illegal acts. State v. Mora, 2003-NMCA-072, 133 N.M. 746, 69 P.3d 256, cert. denied, 133 N.M. 727, 69 P.3d 237.

Criminal sexual contact of minor is not lesser included offense of attempted criminal sexual penetration. — For purposes of double jeopardy, the offenses of criminal sexual contact of a minor and attempted criminal sexual penetration of a minor cannot be characterized as lesser included and greater inclusive crimes because they each contain different elements and stand independently in relation to one another. State v. Mora, 2003-NMCA-072, 133 N.M. 746, 69 P.3d 256, cert. denied, 133 N.M. 727, 69 P.3d 237.

Charges of kidnapping and second degree criminal sexual penetration do not merge since the elements of the offense of second degree criminal sexual penetration do not involve all of the elements of kidnapping. State v. Singleton, 1984-NMCA-110, 102 N.M. 66, 691 P.2d 67.

The fact that a kidnapping charge was used to raise a charge of criminal sexual penetration to a second degree felony does not pose a double jeopardy problem. Convictions normally are allowed for both predicate and compound offenses, and criminal sexual penetration statutes and kidnapping statutes protect different social norms. State v. McGuire, 1990-NMSC-067, 110 N.M. 304, 795 P.2d 996.

Under the facts of this case, the jury could have inferred from facts other than the rape itself that defendant intended to hold the victim against her will from the moment of the abduction. Since the conduct underlying the offenses is not the same, the double jeopardy clause does not prohibit multiple punishments in this case. State v. Ramos, 1993-NMCA-072, 115 N.M. 718, 858 P.2d 94, cert. denied, 115 N.M. 602, 856 P.2d 250.

Merger of criminal sexual penetration and kidnapping based on same act. — Defendant's convictions for second degree criminal sexual penetration (commission of a felony) and kidnapping (no great bodily harm) under Section 30-4-1 NMSA 1978, stemming from the same act of sexual intercourse, potentially violated double jeopardy rights and were required to be set aside. State v. Crain, 1997-NMCA-101, 124 N.M. 84, 946 P.2d 1095.

Consecutive sentences for kidnapping and criminal sexual penetration. — Consecutive sentences for the compound crime of criminal sexual penetration during commission of kidnapping and the predicate felony of kidnapping with intent to hold for service is, in general, permissible because the two crimes address different social norms. State v. Tsethlikai, 1989-NMCA-107, 109 N.M. 371, 785 P.2d 282, cert. denied, 109 N.M. 262, 784 P.2d 1005 (1990).

Consective sentences. — Consecutive sentences for kidnapping and criminal sexual penetration did not violate the double jeopardy prohibition against multiple punishments for the same offense, where the evidence supported an inference that defendant intended to commit criminal sexual penetration from the moment of the abduction. State v. McGuire, 1990-NMSC-067, 110 N.M. 304, 795 P.2d 996.

Where the defendant took control of the car at gunpoint and then drove the victims to a remote location before raping them, the crime of kidnapping was complete before the act of criminal sexual penetration began; because the two crimes did not constitute a "unitary act," imposition of consecutive sentences was not double jeopardy. State v. Andazola, 2003-NMCA-146, 134 N.M. 710, 82 P.3d 77.

Force or coercion for kidnapping or false imprisonment. — A person is entitled to withdraw his or her consent or express a lack of consent to an act of criminal sexual penetration at any point prior to the act itself, but force or coercion exerted prior to the act itself will support a conviction for kidnapping or false imprisonment. State v. Pisio, 1994-NMCA-152, 119 N.M. 252, 889 P.2d 860, cert. denied, 119 N.M. 20, 888 P.2d 466.

False imprisonment and criminal sexual penetration II. — Defendant's convictions of false imprisonment and criminal sexual penetration in the second degree which arose out of the same conduct violated the double jeopardy clause. State v. Armendariz, 2006-NMCA-152, 140 N.M. 712, 148 P.3d 798, cert. quashed, 2008-NMCERT-002, 143 N.M. 667, 180 P.3d 674.

False imprisonment and criminal sexual penetration III. — Defendant's convictions for false imprisonment and criminal sexual penetration without the use of a deadly weapon which arose out of the same conduct did not violate the double jeopardy clause. State v. Fielder, 2005-NMCA-108, 138 N.M. 244, 118 P.3d 752, cert. quashed, 2006-NMCERT-004, 139 N.M. 430, 134 P.3d 123.

No merger of false imprisonment and criminal sexual penetration. — There was sufficient evidence to support separate charges for false imprisonment and criminal sexual penetration where the victim testified that defendant would not let her out of the bedroom for a period of time after the penetration occurred. State v. Traeger, 2000-NMCA-015, 128 N.M. 668, 997 P.2d 142, aff'd in part, rev'd in part on other grounds, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518.

No merger of aggravated burglary and criminal sexual penetration. — Since aggravated burglary (Section 30-16-4 NMSA 1978) and criminal sexual penetration in the third degree each require proof of facts which the other does not and since neither offense necessarily involves the other, there is no double jeopardy violation and no merger of the offenses despite the fact that the same evidence may go toward proving both. State v. Young, 1978-NMCA-040, 91 N.M. 647, 579 P.2d 179, cert. denied, 91 N.M. 751, 580 P.2d 972, and cert. denied, 439 U.S. 957, 99 S. Ct. 357, 58 L. Ed. 2d 348 (1978).

No merger of offenses. — Where there was evidence that the victim awoke and found the defendant on top of her and that the defendant told her not to move or make a noise or he would blow her head off, that was evidence of a battery. When the battery preceded sexual activity, there was evidence of an aggravated burglary apart from a sex offense, and the two offenses did not merge, nor was the "same transaction" test applied. State v. Archunde, 1978-NMCA-050, 91 N.M. 682, 579 P.2d 808.

Where defendant's acts constituting battery for purposes of aggravated burglary charges and acts constituting criminal sexual penetration (CSP) were separate and distinct, convictions and consecutive sentences for both CSP and aggravated burglary did not violate double jeopardy. Lucero v. Kerby, 133 F.3d 1299 (10th Cir.), cert. denied, 523 U.S. 1110, 118 S. Ct. 1684, 140 L. Ed. 2d 821 (1998).

Aggravated burglary and attempted criminal sexual penetration merged. — Defendant's conduct consisting of his entry into a dwelling with intent to commit a felony and attempted criminal sexual penetration (CSP II) was unitary; thus, his convictions for both aggravated burglary and attempted CSP II violated double jeopardy. Lucero v. Kerby, 133 F.3d 1299 (10th Cir.), cert. denied, 523 U.S. 1110, 118 S. Ct. 1684, 140 L. Ed. 2d 821 (1998).

Contributing to delinquency is separate offense. — Criminal sexual penetration of a minor requires proof of sexual penetration and contributing to delinquency of a minor requires proof that the defendant's act or omission contributed to the delinquency of a minor, and neither of those facts is required to prove the other. The legislature intended separate punishments for criminal sexual penetration of a minor and contributing to delinquency of a minor when the same conduct violates both statutes. State v. Walker, 1993-NMSC-069, 116 N.M. 546, 865 P.2d 1190.

Felony-murder doctrine applied. — Applying the strict-elements test, first degree criminal sexual penetration (CSP) is not a lesser included offense of second degree murder and, accordingly, first degree CSP could properly serve as a predicate for applying the felony-murder doctrine. State v. Campos, 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266.

Sentence and prison discipline for same offense. — Contention by inmates convicted of sodomy that sentence imposed by court amounted to double jeopardy because they had already been punished by prison officials for same offense was without merit. Washington v. Rodriguez, 1971-NMCA-021, 82 N.M. 428, 483 P.2d 309.

Multiple sentences improper. — Consecutive sentences of 45 to 50 years and 80 to 99 years imposed on defendant for convictions of assault with intent to commit rape and rape, respectively, were improper, since where charges arose out of the same transaction, were committed at the same time as part of a continuous act and were inspired by the same criminal intent which was an essential element of each offense, they were susceptible of only one punishment. State v. Blackwell, 1966-NMSC-088, 76 N.M. 445, 415 P.2d 563.

Increasing sentence based on consideration of element of offense. — Where defendant noted that physical injury is an element of the crime of second degree criminal sexual penetration under Subsection D(3) (now E(3)), and he contended that the trial court's consideration of the physical injury suffered by the victim in increasing the basic sentence pursuant to § 31-18-15.1 exposed him to double jeopardy, it was held that the court's consideration of circumstances surrounding an element of the offense did not expose defendant to double jeopardy. State v. Bernal, 1987-NMCA-075, 106 N.M. 117, 739 P.2d 986, cert. denied, 106 N.M. 81, 738 P.2d 1326.

Aggravating factor improperly considered in sentencing. — While the victim's blood relationship to defendant arguably was a circumstance surrounding the offense of criminal sexual penetration, it was error for the court to consider such relationship as an aggravating factor at sentencing on a criminal sexual penetration count after defendant had also been convicted of incest. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

Multiple penetrations. — Penetrations of separate orifices with the same object constitute separate offenses. Therefore, the acts of anal intercourse, sexual intercourse, and at least one instance of fellatio constitute separate offenses. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, cert. quashed, 119 N.M. 311, 889 P.2d 1233 (1995).

Number of contacts. — The number of contacts is not dispositive of the existence of a separate violation of this section. State v. Pisio, 1994-NMCA-152, 119 N.M. 252, 889 P.2d 860, cert. denied, 119 N.M. 20, 888 P.2d 466.

Single criminal intent of several acts. — Defendant's contention that "single criminal intent" doctrine should have been applied to four acts of sodomy which he was convicted of having performed on victim over period of one and one half to two hours was neither supported by sufficient evidence nor properly preserved for review. State v. Elliott, 1977-NMSC-002, 89 N.M. 756, 557 P.2d 1105.

Multiple penetrations. — This section cannot be said, as a matter of law, to evince a legislative intent to punish separately each penetration occurring during a continuous attack absent proof that each act of penetration is in some sense distinct from the others. Herron v. State, 1991-NMSC-012, 111 N.M. 357, 805 P.2d 624.

A case involving a single defendant tried on an indictment alleging multiple penetrations was remanded to the trial court with instructions to vacate 14 convictions and sentences for second degree criminal sexual penetration and to resentence accordingly, where the evidence supported, at most, five convictions and sentences. Herron v. State, 1991-NMSC-012, 111 N.M. 357, 805 P.2d 624.

Defense must raise "single criminal intent" doctrine at trial. State v. Elliott, 1977-NMSC-002, 89 N.M. 756, 557 P.2d 1105.

Double jeopardy. — Where the evidence established that defendant committed three separate and distinct battery offenses, double jeopardy did not preclude the first two batteries supporting a conviction for battery, even though the third battery satisfied elements of a charge of criminal sexual penetration. Brecheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

There is no double jeopardy impediment to convicting and sentencing a defendant to consecutive terms for both incest and criminal sexual penetration arising out of the same act. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

There was no double jeopardy bar to punishment for the offenses of assault with intent to commit rape and criminal sexual penetration, where the victim testified at trial that defendant bound her to a bed, struck her several times, and threatened her verbally for a period of time before commencing the sexual assault. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

When the defendant received consecutive sentences upon his plea of guilty to second degree criminal sexual penetration, aggravated burglary, kidnapping, and aggravated battery, in order to support a double jeopardy challenge he had the burden to provide a sufficient record for the court to determine unitary conduct for purposes of the double jeopardy analysis. State v. Sanchez, 1996-NMCA-089, 122 N.M. 280, 923 P.2d 1165.

Because the crimes of kidnapping and attempted criminal sexual penetration contain elements not contained in the Order Prohibiting Domestic Violence (OPDV) obtained by victim against defendant, defendant's double jeopardy rights were not violated by his conviction for those crimes following his conviction for contempt for violating the OPDV. State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454, cert. quashed, 127 N.M. 392, 981 P.2d 1210 (1999).

Defendant's right to freedom from double jeopardy was not violated by punishment for attempted first degree murder, aggravated battery with a deadly weapon, and criminal sexual penetration. State v. Traeger, 2000-NMCA-015, 128 N.M. 668, 997 P.2d 142, aff'd in part, rev'd in part on other grounds, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518.

Where an assault was with an intent to commit criminal sexual penetration, followed then by criminal sexual penetration, the fear, and the acts of penetration with resulting personal injury, are reasonably separable in terms of harm and social evil, and are sufficient to reflect a legislative intent to punish the conduct separately such that the defendant was not placed in double jeopardy. State v. Jensen, 2005-NMCA-113, 138 N.M. 254, 118 P.3d 762, cert. quashed, 2005-NMCERT-011, 138 N.M. 587, 124 P.3d 565.

II. INDICTMENT AND INFORMATION.

Information not unconstitutionally vague. — Where information expressly stated age of minor rape victim, and that age was under 10 years, argument that the information was so vague and indefinite as to violate due process in that it stated an offense both under statute covering rape of female under or over 16 when resistance is overcome by force, and also under statute relating to rape of female child under 10, was without merit. Gallegos v. Cox, 358 F.2d 703 (10th Cir.), cert. denied, 385 U.S. 869, 87 S. Ct. 138, 17 L. Ed. 2d 97 (1966).

Notice sufficient. — The trial court did not deprive defendant of opportunity to be informed of charges against him by failing to require the state to specify precisely which of several acts of sodomy defendant was accused of having been accessory to, where the indictment and bill of particulars which were a part of the record identified the date, the approximate time and nature of the crimes alleged, the prosecutrix and the associates with whom defendant was alleged to have committed the crimes. State v. Barnett, 1973-NMCA-098, 85 N.M. 404, 512 P.2d 977.

Lack of specificity not violative of double jeopardy. — The trial court's refusal to require that the state specify which act of sodomy the defendant was accessory to did not subject him to double jeopardy, on the basis of the argument that if he were indicted or informed against as accessory to a particular act of sodomy based on the same incident he could not point to his present conviction as precluding his trial on any particular act of sodomy, where he had not been indicted or informed against for another crime growing out of the same set of facts. State v. Barnett, 1973-NMCA-098, 85 N.M. 404, 512 P.2d 977.

Separate counts of incest and criminal sexual penetration. — There was no error in charging defendant on separate counts of criminal sexual penetration and incest under a theory that he had sexual intercourse with a child under 13 years of age and a child between 13 and 16 years of age, and he knew each was his biological daughter. State v. Hargrove, 1989-NMSC-012, 108 N.M. 233, 771 P.2d 166.

Language of statute sufficient. — It was unnecessary to charge crime pursuant to the common law; an indictment in language of statute which in effect charged sexual intercourse with a female under the age of fourteen was sufficient, use of the word "ravish" being unnecessary. State v. Alva, 1913-NMSC-056, 18 N.M. 143, 134 P. 209.

Use of words "carnally know and abuse" in indictment was surplusage. State v. Alva, 1913-NMSC-056, 18 N.M. 143, 134 P. 209.

Charge of rape adequate. — An information "did, with force and arms in and upon the body of Agnes Vigil . . . unlawfully and feloniously make an assault, and did then and there wickedly and feloniously against her will . . . ravish and unlawfully know, contrary to the form of the statute . . ." was sufficient to charge rape and not merely an assault, notwithstanding the omission of any such words as "her the said Agnes Vigil" between the words "know" and "contrary." State v. Alarid, 1936-NMSC-047, 40 N.M. 450, 62 P.2d 817.

Information failing to name statutory rape victim not fatally defective. State v. Roessler, 1954-NMSC-017, 58 N.M. 102, 266 P.2d 351; Ex parte Kelley, 1953-NMSC-011, 57 N.M. 161, 256 P.2d 211.

Assault with intent to rape. — An indictment charging that defendant unlawfully, violently and forcibly assaulted prosecutrix with intent to ravish was sufficient charge of assault with intent to rape. State v. Raulie, 1930-NMSC-074, 35 N.M. 135, 290 P. 789.

Allegation of defendant's virility unnecessary. — It was unnecessary that indictment allege that defendant was over the age of fourteen or, being under that age, had the physical ability to commit the offense. State v. Ancheta, 1915-NMSC-003, 20 N.M. 19, 145 P. 1086.

Information and bill construed together. — In determining whether acts alleged constituted offense of sodomy, the information and the bill of particulars are to be read together as a single instrument. State v. Putman, 1967-NMCA-020, 78 N.M. 552, 434 P.2d 77.

Overinclusive bill of particulars not binding. — Although bill of particulars alleged two acts of sodomy, namely, requiring victim to take into her mouth the defendant's sexual organ and the placing of defendant's sexual organ in the victim's anus, the state was not bound by the statement in the bill of particulars to prove acts of both types of sodomy on the part of the defendant, and failure to instruct that the state must prove both types of sodomy before a conviction would be justified did not require reversal. State v. Barnett, 1973-NMCA-098, 85 N.M. 404, 512 P.2d 977.

Variance between information and instructions. — Jury instructions describing crime perpetrated by defendant as that of sexual intercourse with a female under sixteen years impaired no fundamental rights of defendant even though the crime was charged as "rape" in the information. State v. Richardson, 1944-NMSC-059, 48 N.M. 544, 154 P.2d 224.

III. EVIDENCE.

A. ADMISSIBILITY.

Dismissal unwarranted. — Where the state did not pursue the case of criminal sexual penetration of a minor under the age of 13 in 1989, because, at that time, it lacked the evidence to go forward with the case, but the young child victim who in 1989 was apparently too traumatized to testify voluntarily came forward at a later age to testify, and there is no evidence that the state intended the delay to work a tactical disadvantage on defendant or that the state knew or should have known that the delay would cause any specific tactical disadvantage to defendant and defendant does not assert that the state improperly obtained such a tactical advantage, dismissal is not warranted on this basis. State v. Hill, 2005-NMCA-143, 138 N.M. 693, 125 P.3d 1175, cert. denied, 2005-NMCERT-012, 138 N.M. 772, 126 P.3d 1136.

Subsequent beating irrelevant to determination of degree of offense. — Defendant's beating of the victim with a blunt instrument subsequent to intercourse was not considered in determining whether or not the offense of criminal sexual penetration was committed by force or coercion resulting in personal injury because this beating went to the aggravated battery conviction. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Out-of-court identification. — Where victim testified that rapist was in her presence for approximately an hour and 40 minutes and at the police station she described him with some specificity, action of police officer in showing victim the driver's license photograph which victim knew came from wallet she had taken from rapist's pocket and asking "is this the man" was not so suggestive as to bar evidence of victim's out-of-court identification, nor was in-court identification inadmissibly tainted because of it. State v. Baldonado, 1971-NMCA-068, 82 N.M. 581, 484 P.2d 1291.

The out-of-court photographic identification procedure was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification where the photographs viewed by the victim were all of male caucasians of about the same age and hirsuteness as defendant. State v. Clark, 1986-NMCA-058, 104 N.M. 434, 722 P.2d 685, cert. denied, 104 N.M. 378, 721 P.2d 1309.

Identification by child. — Testimony by witness that three-year old child said "this is the man" a half hour after attack upon her was properly admitted over objection that it was hearsay. State v. Godwin, 1947-NMSC-016, 51 N.M. 65, 178 P.2d 584.

Victim's identification was not tainted by the fact that the case agent and the child's grandmother hugged the child after she indicated that she was sure of her identification of the defendant as her assailant. State v. Clark, 1986-NMCA-058, 104 N.M. 434, 722 P.2d 685, cert. denied, 104 N.M. 378, 721 P.2d 1309.

Hypnotically enhanced testimony. — Post-hypnotic recollections, revived by the hypnosis procedure, are only admissible in a trial where a proper foundation has also first established the expertise of the hypnotist and that the techniques employed were correctly performed, free from bias or suggestibility. State v. Clark, 1986-NMCA-058, 104 N.M. 434, 722 P.2d 685, cert. denied, 104 N.M. 378, 721 P.2d 1309.

If the trial court's determination that the identifications were not "post-hypnotic recollections revived by hypnosis" is supported by substantial evidence, then the requirements established by State v. Beachum, 1981-NMCA-137, 97 N.M. 682, 643 P.2d 246, were not triggered. State v. Clark, 1986-NMCA-058, 104 N.M. 434, 722 P.2d 685, cert. denied, 104 N.M. 378, 721 P.2d 1309.

Where no details of the incident were mentioned during the hypnotic sessions; no information was sought from the child, nor details suggested, but the only suggestion made was that the child should remember; and there was independent, objective verification of the facts presented by other witnesses, the child victim's in-court identification was not impermissibly tainted by the unproductive hypnotic session. State v. Clark, 1986-NMCA-058, 104 N.M. 434, 722 P.2d 685, cert. denied, 104 N.M. 378, 721 P.2d 1309.

Testimony concerning post-traumatic stress disorder. — Testimony concerning post-traumatic stress disorder is admissible for establishing whether the alleged victim exhibits symptoms that are consistent with rape or sexual abuse. State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, rev'g 1991-NMCA-112, 116 N.M. 178, 861 P.2d 219.

Testimony concerning rape trauma syndrome. — Record did not suggest that the danger of unfair prejudice so outweighed the probative value of a witness's testimony concerning rape trauma syndrome as to require reversal in the absence of an objection, where there was little likelihood that the jury viewed the testimony as a "diagnosis" that the victim had been raped. State v. Barraza, 1990-NMCA-026, 110 N.M. 45, 791 P.2d 799, cert. denied, 109 N.M. 704, 789 P.2d 1271.

Testimony concerning rape trauma syndrome is not admissible in a prosecution involving rape or sexual abuse. State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, rev'g 1991-NMCA-112, 116 N.M. 178, 861 P.2d 219.

Foot tracks. — Nonexpert evidence as to identity of accused, derived from a comparison of foot tracks with other tracks known to be those of accused, was admissible. State v. Ancheta, 1915-NMSC-003, 20 N.M. 19, 145 P. 1086.

Confession admissible. — Where defendant, believing that prosecutrix had told of his relations with her, put himself under the protection of a third person and admitted to such person that he had slept with the prosecutrix, the confession was purely voluntary and admissible. State v. Whitener, 1918-NMSC-111, 25 N.M. 20, 175 P. 870.

Suppression of evidence of rape trauma syndrome. — An order suppressing a psychologist's testimony relating to rape trauma syndrome was affirmed, where it could not be said that the trial court's order was clearly against the logic and effect of the facts and circumstances, and where there was no request to limit the evidence rather than exclude it altogether. State v. Bowman, 1986-NMCA-014, 104 N.M. 19, 715 P.2d 467.

Ordinarily previous chastity of prosecuting witness is immaterial in a statutory rape case. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

Prior relations corroborative of statutory rape. — Evidence tending to show more than one act of criminal intercourse between accused and prosecutrix was admissible to show the relation and familiarity of the parties, and was corroborative of prosecutrix' testimony concerning the particular act relied upon for a conviction of statutory rape. State v. Whitener, 1918-NMSC-111, 25 N.M. 20, 175 P. 870.

Exclusion of evidence of prior rape and sexual conduct. — In prosecution for second degree criminal sexual penetration where theory of defense was that of fabrication of the rape and consensual intercourse, trial court properly excluded evidence of prior rape of victim and victim's prior sexual conduct. State v. Fish, 1984-NMSC-056, 101 N.M. 329, 681 P.2d 1106.

Previous intercourse admissible on issue of identity. — Exception to the rule that previous chastity of victim is immaterial might be where her pregnancy is shown and testimony given that defendant was father of the child, as there the testimony of prior sexual acts might be pertinent on rebuttal as tending to show that another might have been the cause of such condition. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

Previous intercourse not admissible on issue of penetration. — Trial court did not err in refusing to permit cross-examination of prosecuting witness in prosecution for statutory rape concerning prior acts of intercourse with other men, since the sole reason advanced by defendant's counsel for admissibility was on the issue of penetration, an issue about which there was no genuine controversy. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

Defendant's occupation as police officer. — Evidence of the defendant's status as a police officer was material and relevant to the issue of whether he committed criminal sexual penetration in the third degree using his status as a police officer to force the victim to engage in fellatio or perform other delinquent acts. State v. Lucero, 1994-NMCA-129, 118 N.M. 696, 884 P.2d 1175, cert. denied, 118 N.M. 731, 885 P.2d 1325.

B. INHERENT IMPROBABILITY.

Rule of inherent improbability. — Because of highly emotional and prejudicial elements present in cases of rape, supreme court has taken the position that over and above the substantial evidence rule applicable in appeals, it will review the evidence to determine whether or not it is so inherently improbable that, by conviction of the crime, a fundamental wrong has been done to defendant. State v. Shouse, 1953-NMSC-104, 57 N.M. 701, 262 P.2d 984.

Where defendant in prosecution for rape of a child contended that evidence was too vague and insufficient to establish guilt of defendant, appellate court would only weigh the evidence in the scales of inherent probability, and where there was substantial evidence tending to sustain the jury's verdict, its determination would be conclusive. State v. Till, 1967-NMSC-150, 78 N.M. 255, 430 P.2d 752, appeal dismissed and cert. denied, 390 U.S. 713, 88 S. Ct. 1426, 20 L. Ed. 2d 254 (1968).

Where there was absolutely no evidence corroborating the prosecuting witness, and her evidence was outside the domain of reasonable probability, and accused denied the offense, a verdict of guilty was set aside and a new trial ordered. Mares v. Territory, 1901-NMSC-010, 10 N.M. 770, 65 P. 165.

In cases of common-law rape, where in the absence of such corroboration as outcries, torn and disarranged clothing, wounds or bruises, or if there is long delay in making complaint, the evidence is so inherently improbable as to be unsubstantial, unless there is other testimony which points unerringly to the defendant's guilt, an appellate court will not uphold a conviction. State v. Boyd, 1972-NMCA-120, 84 N.M. 290, 502 P.2d 315, cert. denied, 84 N.M. 271, 502 P.2d 296, and cert. denied, 411 U.S. 937, 93 S. Ct. 1916, 36 L. Ed. 2d 398 (1973) and reh'g denied, 412 U.S. 924, 93 S. Ct. 2739, 37 L. Ed. 2d 151 (1973).

Reversal since evidence improbable. — District court should, and supreme court would, examine the evidence in a rape case with great care to determine whether testimony of prosecuting witness was inherently improbable; and if so, in absence of some evidence of some fact unequivocally and unerringly pointing to the defendant's guilt, a conviction would not be permitted to stand. State v. Richardson, 1944-NMSC-059, 48 N.M. 544, 154 P.2d 224.

Directed verdict. — Court was to instruct jury to find a verdict of not guilty on defendant's or its own motion when at the close of testimony in rape case insufficiently supported testimony of prosecuting witness was inherently improbable and a verdict based on it would constitute a miscarriage of justice. State v. Richardson, 1944-NMSC-059, 48 N.M. 544, 154 P.2d 224.

Rape not inherently improbable. — Testimony of examining physician that he found no evidence of trauma or injury to the vagina; that such lack of trauma is unusual in a rape case; that he found no other physical indication on the prosecutrix or her clothes that a rape had occurred; and that he found sperm in the vagina but that they were all immotile did not render the testimony of the prosecutrix inherently improbable. State v. Boyd, 1972-NMCA-120, 84 N.M. 290, 502 P.2d 315, cert. denied, 84 N.M. 271, 502 P.2d 296, and cert. denied, 411 U.S. 937, 93 S. Ct. 1916, 36 L. Ed. 2d 398 (1973), and reh'g denied, 412 U.S. 924, 93 S. Ct. 2739, 37 L. Ed. 2d 151 (1973).

Time element. — Where the prosecutrix testified that she was raped twice by defendant and forced to commit an act of sodomy within a period of approximately 30 minutes, and in addition, there was some conversation between the prosecutrix and defendant during this time, it could not be said as a matter of law that the events described could not in fact have occurred during the period stated. State v. Boyd, 1972-NMCA-120, 84 N.M. 290, 502 P.2d 315, cert. denied, 84 N.M. 271, 502 P.2d 296, and cert. denied, 411 U.S. 937, 93 S. Ct. 1916, 36 L. Ed. 2d 398 (1973), and reh'g denied, 412 U.S. 924, 93 S. Ct. 2739, 37 L. Ed. 2d 151 (1973).

Initial denial of sodomy. — Prosecutrix' denial that act of sodomy had occurred in first written statement to police and failure to mention it in second statement to police or to examining doctor did not render her testimony inherently improbable, where she explained that her denial and her failure to mention the act were the result of her embarrassment about it. State v. Boyd, 1972-NMCA-120, 84 N.M. 290, 502 P.2d 315, cert. denied, 84 N.M. 271, 502 P.2d 296, and cert. denied, 411 U.S. 937, 93 S. Ct. 1916, 36 L. Ed. 2d 398 (1973), and reh'g denied, 412 U.S. 924, 93 S. Ct. 2739, 37 L. Ed. 2d 151 (1973).

Unusual circumstances not inherently improbable. — The uncorroborated testimony of a minor child competent to testify, unless there be something inherently improbable in it, is deemed substantial evidence and sufficient to uphold a conviction, and testimony which merely discloses unusual circumstances does not come within that category. State v. Trujillo, 1955-NMSC-094, 60 N.M. 277, 291 P.2d 315.

Rule inapplicable to sodomy. — The "inherently improbable" rule enunciated by the supreme court in State v. Shouse, 1953-NMSC-104, 57 N.M. 701, 262 P.2d 984, a rape case, is not applicable in cases of sodomy. State v. Kasakoff, 1972-NMCA-151, 84 N.M. 404, 503 P.2d 1182.

C. CORROBORATION.

Bald charge insufficient. — In this jurisdiction, no corroboration of a prosecutrix by way of testimony of an independent character emanating from an outside source was required to sustain a conviction. But the bald charge of a woman against a man in that regard, unsupported and uncorroborated by facts and circumstances pointing to guilt of accused, was insufficient to meet requirement that verdict be supported by substantial evidence. State v. Boyd, 1972-NMCA-120, 84 N.M. 290, 502 P.2d 315, cert. denied, 84 N.M. 271, 502 P.2d 296, and cert. denied, 411 U.S. 937, 93 S. Ct. 1916, 36 L. Ed. 2d 398 (1973) and reh'g denied, 412 U.S. 924, 93 S. Ct. 2739, 37 L. Ed. 2d 151 (1973); State v. Armijo, 1920-NMSC-011, 25 N.M. 666, 187 P. 553.

Surrounding facts as corroboration. — Testimony of prosecutrix required no corroboration except that surrounding facts and circumstances must have tended to establish truth of her testimony, but it need not have been evidence of an independent character, disconnected from her testimony. State v. Ellison, 1914-NMSC-076, 19 N.M. 428, 144 P. 10 (decided under prior law).

Other witnesses not required. — Corroboration of prosecutrix' testimony by other witnesses as to particular acts constituting offense of rape was not required and an instruction to that effect would correctly state the law. State v. Richardson, 1944-NMSC-059, 48 N.M. 544, 154 P.2d 224.

Corroboration in victim's complaint to mother. — In prosecution for rape, testimony of prosecuting witness was corroborated by proof of complaint made to her mother of the outrage committed upon her. Territory v. Edie, 1892-NMSC-019, 6 N.M. 555, 30 P. 851, aff'd on reh'g, 7 N.M. 183, 34 P. 46 (1893).

Defendant's own actions corroborative. — Defendant's actions both preceding and following rape, including rather severely injuring nose and lip of prosecutrix, making of threats on way home, and fleeing even before any report was made to the police pointed unerringly to his guilt, and constituted corroborating circumstances of the truth of prosecutrix' story. State v. Ramirez, 1962-NMSC-042, 70 N.M. 54, 369 P.2d 973.

Corroboration rule in rape cases was not applicable to sodomy. State v. Boyd, 1972-NMCA-120, 84 N.M. 290, 502 P.2d 315, cert. denied, 84 N.M. 271, 502 P.2d 296, 411 U.S. 937, 93 S. Ct. 1916, 36 L. Ed. 2d 398 (1973), reh'g denied, 412 U.S. 924, 93 S. Ct. 2739, 37 L. Ed. 2d 151 (1973) (decided under prior law).

Corroboration rule not applicable to statutory rape. — In prosecutions for statutory rape, where consent was immaterial and force was not used, corroboration was not essential to a conviction, and it had only to be determined that the testimony of the prosecuting witness was not inherently improbable. State v. Trujillo, 1955-NMSC-094, 60 N.M. 277, 291 P.2d 315.

Corroboration was not required in cases of statutory rape because the usual concomitant facts present in common-law rape, such as torn and disarranged clothing, wounds or bruises, outcries, etc., neither necessarily nor ordinarily appear. State v. Trujillo, 1955-NMSC-094, 60 N.M. 277, 291 P.2d 315.

Uncorroborated testimony of child. — The uncorroborated testimony of a minor child competent to testify, unless there be something inherently improbable in it, is deemed substantial evidence and sufficient to uphold a conviction. State v. Trujillo, 1955-NMSC-094, 60 N.M. 277, 291 P.2d 315.

In statutory sex offenses against a young victim corroboration of the claim that the defendant is the guilty party is not necessary where the evidence of guilt is substantial. State v. Montoya, 1957-NMSC-015, 62 N.M. 173, 306 P.2d 1095.

Independent of statute, a man could be convicted of rape upon the uncorroborated evidence of a strumpet or a girl under the age of ten years. State v. Ellison, 1914-NMSC-076, 19 N.M. 428, 144 P. 10.

Instruction properly refused. — As no corroboration of prosecutrix was necessary to uphold conviction, a requested instruction on subject of corroboration, contrary to the rule, was properly refused. State v. Whitener, 1918-NMSC-111, 25 N.M. 20, 175 P. 870.

Absence of corroboration. — In rape prosecution, where prosecutrix was not corroborated, evidence was insufficient, for want of such corroboration, to sustain conviction. State v. Clevenger, 1921-NMSC-097, 27 N.M. 466, 202 P. 687.

In cases of common-law rape, in the absence of such corroboration as outcries, torn and disarranged clothing, wounds or bruises, or if there is long delay in making complaint, the evidence might be so inherently improbable as to be unsubstantial, and would not uphold a conviction. State v. Shults, 1938-NMSC-070, 43 N.M. 71, 85 P.2d 591.

D. SUFFICIENCY.

Jury's function. — It is the jury's function in a rape case to judge the credibility of the witnesses and the weight to be given their testimony. State v. White, 1967-NMSC-016, 77 N.M. 488, 424 P.2d 402.

The jury was to determine how much incriminating circumstances were weakened by contrary characterizations, more or less plausible, or by other facts having an opposite tendency in the evidence. State v. Godwin, 1947-NMSC-016, 51 N.M. 65, 178 P.2d 584.

Victim's age for jury. — Whether prosecutrix was under the age of consent was a jury question. State v. Whitener, 1918-NMSC-111, 25 N.M. 20, 175 P. 870.

Proof of penetration alone was sufficient to establish the crime of statutory rape. State v. Harbert, 1915-NMSC-023, 20 N.M. 179, 147 P. 280.

Penetration provable from circumstances. — Proof of penetration was essential to conviction of having carnally known and abused a minor child, but it was not necessary that it be proved by direct evidence; it might be established by circumstantial evidence. State v. Godwin, 1947-NMSC-016, 51 N.M. 65, 178 P.2d 584.

Opportunity and physical condition. — Proof of carnal knowledge could be adequately shown by fact that opportunity for sexual intercourse existed and that physical condition of the child showed abuse. State v. Godwin, 1947-NMSC-016, 51 N.M. 65, 178 P.2d 584.

Evidence of penetration sufficient. — Where child's parent discovered a bruise on the child's labia immediately after the child had been in defendant's care; a linear abrasion went deep into the child's vagina; two photographs of the bruise were admitted into evidence; the child told four people that defendant had pinched the child's "cha-cha" and illustrated the statement by pulling on the child's labia; and the bruise was consistent with being pinched, the evidence was sufficient to support defendant's conviction of criminal sexual penetration by penetration. State v. Massengill, 2003-NMCA-024, 133 N.M. 263, 62 P.3d 354, cert. denied, 133 N.M. 126, 61 P.3d 835.

Testimony of doctor who examined victim, a minor child under the age of 13, in the evening of the day of alleged act of sodomy, that there had been a penetration into boy's anus, along with child's testimony as to the assault and as to the pain experienced by him as a result thereof, was sufficient evidence of penetration for jury's consideration. State v. Mase, 1965-NMSC-134, 75 N.M. 542, 407 P.2d 874.

Sufficient evidence to prove a pattern of conduct of criminal sexual penetration of a minor. — Where defendant was charged with twelve counts of criminal sexual penetration of a minor, and where the two children testified to a pattern of conduct where defendant would put his penis and fingers in each child's vagina and anus before she went to school in the mornings, and where the children further testified that defendant did this more than six times, with one instance tied to the first day of school, but where no other evidence tied an incident to a certain time or place, the undifferentiated multiple acts against a victim within a period of time is evidence sufficient to support a conviction on one count per child for a pattern of conduct of criminal sexual penetration of a minor. State v. Huerta-Castro, 2017-NMCA-026.

Sufficient evidence of aiding and abetting. — Evidence that defendant ordered the victims to perform fellatio on particular individuals and threatened the victims with grave bodily harm if they failed to do so and that defendant assisted in creating the atmosphere of intimidation which convinced the victims that the threats would be carried out, there was sufficient evidence to support defendant's conviction of accessory to criminal sexual penetration. State v. Perez, 2002-NMCA-040, 132 N.M. 84, 44 P.3d 530, cert. denied, 132 N.M. 83, 44 P.3d 529.

Evidence sufficient to sustain conviction. — Where defendant was convicted for criminal sexual penetration in the second degree which resulted in the pregnancy of the victim; the victim testified that defendant impregnated the victim when the victim was fourteen years old while the victim and the victim's family were living with defendant, that the victim felt compelled to have sex with defendant because defendant was an authority figure, that the sex was not consensual, and that defendant told the victim that if the victim reported the sexual intercourse, defendant would kill the victim and the victim's family; and a forensic DNA analyst testified that DNA samples from defendant, the victim, and the victim's child showed that defendant fathered the victim's child, there was sufficient evidence to support defendant's conviction. State v. Fierro, 2014-NMCA-004, cert. denied, 2013-NMCERT-012.

Where the child, who was six years old, testified that defendant put defendant's hand underneath the child's underwear, touched the child's vagina, and performed cunnilingus on the child; and the doctor who performed a SANE examination of the child testified that the child told the doctor that defendant had inserted defendant's fingers into the child's vagina; and the doctor's examination of the child revealed injuries to the child's vagina that were consistent with penetration by a finger or other object, the evidence was sufficient to support defendant's conviction of criminal sexual penetration of a minor. State v. Skinner, 2011-NMCA-070, 150 N.M. 26, 256 P.3d 969, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

The prosecutrix' testimony, which was not inherently improbable and which was corroborated by facts and circumstances, pointed unerringly to defendant and was sufficient evidence to sustain the conviction. State v. Boyd, 1972-NMCA-120, 84 N.M. 290, 502 P.2d 315, cert. denied, 84 N.M. 271, 502 P.2d 296, and cert. denied, 411 U.S. 937, 93 S. Ct. 1916, 36 L. Ed. 2d 398 (1973) and reh'g denied, 412 U.S. 924, 93 S. Ct. 2739, 37 L. Ed. 2d 151 (1973).

Evidence consisting of the testimony of the victim's counselor and the victim herself was sufficient to support convictions of criminal sexual contact with a minor and criminal sexual penetration of a minor. State v. Ortiz-Burciaga, 1999-NMCA-146, 128 N.M. 382, 993 P.2d 96, cert. denied, 128 N.M. 149, 990 P.2d 823.

When evidence as a whole left no doubt as to fact of intercourse and penetration, it was sufficient, even though if certain questions addressed to complaining witness with their answers alone were considered, there might have been some doubt as to sufficiency of proof. State v. Alva, 1913-NMSC-056, 18 N.M. 143, 134 P. 209.

Appellate court found no ground to disturb verdict of guilty where after sifting from any recitation of facts made to support claim that 11 year old prosecutrix' testimony was inherently improbable, all facts and inferences which verdict resolves against defendant, there remains testimony of a substantial character sufficient to support the conviction. State v. Trujillo, 1955-NMSC-094, 60 N.M. 277, 291 P.2d 315.

An appellate court will not disturb the verdict of the jury if the victim's testimony was sufficiently credible for a conviction. State v. Nichols, 2006-NMCA-017, 139 N.M. 72, 128 P.3d 500.

Where defendant was convicted of numerous counts of criminal sexual penetration of a minor perpetrated on his eight-year-old daughter and four-year-old stepdaughter; the child victims' testimony that the nature of defendant's acts involved physical interaction that was skin to skin, that defendant rubbed or repetitiously slid his finger upon each child's unclothed genital openings, the requirement that penetration minimally occur to any extent was met, and where eight-year-old victim testified that defendant put his penis "where I go poop" and that it "actually went in", was sufficient evidence to support defendant's conviction for criminal sexual penetration of a minor, and where eight-year-old child victim's testimony established that defendant's repeated movements of his penis against her unclothed genitalia prior to emission penetrated the labia major to the slightest extent or beyond, met the penetrative element of criminal sexual penetration of a minor; there was sufficient evidence for a jury to conclude that defendant committed the acts of criminal sexual penetration. State v. Tapia, 2015-NMCA-048, cert. denied, 2015-NMCERT-004.

Sufficient evidence of great mental anguish. — Where defendant was convicted of first-degree criminal sexual penetration (CSP), and where defendant claimed that the state failed to establish that the victim suffered great mental anguish as a result of the incident and that the evidence is therefore insufficient to support his conviction for first-degree CSP, evidence that the victim was over seventy years of age, that she moved to another state to live with her daughter because she felt unable to live alone, that she experienced constant flashbacks, and as a result had trouble concentrating and was unable to drive for a period of time, was sufficient to support a conclusion that the victim suffered great mental anguish as a result of the incident. State v. Sena, 2018-NMCA-037, cert. granted.

Sufficient evidence of second-degree criminal sexual penetration perpetrated in the commission of a felony. — Where defendant was convicted of criminal sexual penetration in the commission of a felony and first-degree kidnapping, the jury could have reasonably inferred that defendant took or transported the victim by deception based on the victim's testimony that he got into defendant's truck because defendant said that he would take the victim home, that defendant confined the victim by force based on the victim's testimony that when he tried to escape from defendant's truck, the door was locked, that defendant intended to hold the victim against his will to inflict a sexual offense against him based on the victim's testimony that defendant took him to a remote location, pulled down his pants, and then penetrated his anus, that defendant transported the victim to a remote location and confined him there for the purpose of inflicting a sexual offense on him based on defendant's statement upon completion of the sexual act, "Now I can take you home," that defendant's act against the victim was unlawful because the jury could have inferred that it was done without the victim's consent and for the purpose of gratifying defendant's sexual desire or to intrude upon the victim's bodily safety or integrity. There was sufficient evidence to support defendant's convictions. State v. Samora, 2016-NMSC-031.

Sufficient evidence of criminal sexual penetration based on the commission of a felony. — Where defendant offered a ride home to a fifteen year old boy, but instead took the boy back to defendant's apartment where defendant offered the boy beer and cocaine, which were consumed by the boy, and where defendant then proceeded to perform oral sex on the boy and prior to taking the boy home the defendant asked the boy for anal sex, which the boy complied with because he was afraid that if he did not he would be anally penetrated, and where, at trial, a forensic examiner testified that she identified saliva that contained defendant's DNA on the inside of the victim's boxer shorts, there was sufficient evidence to support defendant's convictions for distribution of a controlled substance to a minor, CSP II, and contributing to the delinquency of a minor. State v. Simmons, 2018-NMCA-015, cert. denied.

Rape established. — Where the evidence establishes that defendant had sexual intercourse with a female without her consent and by forcibly overcoming her resistance, this was rape, regardless of the age of the victim. State v. Garcia, 1967-NMSC-140, 78 N.M. 136, 429 P.2d 334.

Conviction for rape not barred by facts also establishing statutory rape. State v. Garcia, 1967-NMSC-140, 78 N.M. 136, 429 P.2d 334.

Rape of child. — In prosecution for rape of child, statement of 9 year old prosecutrix and testimony of examining doctor expressing opinion that child had undergone sexual intercourse as late as the day charged constituted substantial evidence and met test of inherent probability. State v. Till, 1967-NMSC-150, 78 N.M. 255, 430 P.2d 752, appeal dismissed and cert. denied, 390 U.S. 713, 88 S. Ct. 1426, 20 L. Ed. 2d 254 (1968).

When testimony of prosecuting witness, a child of between twelve and thirteen, was convincing, was not inherently improbable, was unshaken by cross-examination and was corroborated by the mother, and, up to a certain point, by defendant, it was sufficient to sustain a conviction of statutory rape. State v. Keener, 1938-NMSC-073, 43 N.M. 94, 85 P.2d 748.

Spouses living apart. — Evidence supported finding that defendant and his wife were living apart at the time of the attack, where the wife testified that she felt she was living apart from defendant at the time of the attack, and there was evidence of the couple's physical separation and the defendant's securing other housing and paying one month's rent. Brecheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

Attempted sodomy. — Acts of defendant constituted an active effort to consummate crime of sodomy and were more than mere preparation, where in addition to his announced intention to "screw" 16 year old victim, defendant beat victim until he passed out and removed victim's clothes, during course of which events the fly on defendant's pants was open. State v. Trejo, 1972-NMCA-019, 83 N.M. 511, 494 P.2d 173.

IV. DEFENSES.

A. CONSENT.

Consent is not a defense when victim is a statutorily defined child. — The consent of a statutorily defined child is legally irrelevant to the unlawfulness element for both criminal sexual penetration charges. State v. Moore, 2011-NMCA-089, 150 N.M. 512, 263 P.3d 289, cert. denied, 2011-NMCERT-008, 268 P.3d 513.

Where the victim was fourteen years of age; defendant was forty-six years of age; the victim voluntarily agreed to have sex with defendant; and defendant was charged with criminal sexual penetration in the second degree and criminal sexual penetration in the fourth degree, the state did not improperly instruct the grand jury on the unlawfulness element for the charges when the state omitted language that the act must have been done "without consent" of the victim, because the consent of a statutorily defined child is legally irrelevant to the unlawfulness element of both charges. State v. Moore, 2011-NMCA-089, 150 N.M. 512, 263 P.3d 289, cert. denied, 2011-NMCERT-008, 268 P.3d 513.

Absence of consent not element of criminal sexual penetration. — Although absence of consent was an element of the rape statute, which has now been repealed, absence of consent is not an element of the crime of criminal sexual penetration as defined by the legislature. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60; State v. Gillette, 1985-NMCA-037, 102 N.M. 695, 699 P.2d 626.

Absence of consent not element of statutory rape. — Under former law, where intercourse was with a girl under age of 16 the state need have proved only that defendant indulged in intercourse with her, regardless of question of her consent. State v. Richardson, 1944-NMSC-059, 48 N.M. 544, 154 P.2d 224.

Absence of consent not required for rape. — Under former law, where victim was over age of consent, it was necessary to prove intercourse against her will. State v. Richardson, 1944-NMSC-059, 48 N.M. 544, 154 P.2d 224.

As was resistance. — To constitute the crime of rape of one over the age of consent, there must be resistance, and it must be forcibly overcome; it was not sufficient that the carnal act was violently accomplished, or that it was without her consent. Mares v. Territory, 1901-NMSC-010, 10 N.M. 770, 65 P. 165 (decided under prior law).

Amount of resistance required of victim depended upon the facts of the particular case. Resistance may be overcome by fear induced by threats as by physical violence. State v. White, 1967-NMSC-016, 77 N.M. 488, 424 P.2d 402 (decided under prior law).

Violent injury indicative of adequate resistance. — Less than satisfactory evidence of resistance would not warrant reversal of rape conviction where the physical violence done to the prosecutrix and her resultant injuries therefrom tend to show that further resistance would have been of no avail and perhaps would have resulted in more serious injuries to her. State v. Ramirez, 1962-NMSC-042, 70 N.M. 54, 369 P.2d 973 (decided under prior law).

Threats overcoming resistance. — Fact that threats by which prosecutrix' resistance had been overcome were made by someone other than the defendant was immaterial. State v. Barnett, 1973-NMCA-098, 85 N.M. 404, 512 P.2d 977 (decided under prior law).

Consent inconsistent with evidence. — Evidence that prosecutrix' clothes were torn, that she suffered a scratch or cut on the side of her head which bled during the preliminary hearing, that immediately after the assault various witnesses noticed red welts or marks, on prosecutrix' throat and that her bedroom was in disarray, was inconsistent with sexual intercourse by consent. State v. White, 1967-NMSC-016, 77 N.M. 488, 424 P.2d 402.

Consensual sex. — Accused will not be convicted for engaging in purely consensual sex. State v. Maestas, 2005-NMCA-062, 137 N.M. 477, 112 P.3d 1134, rev'd on other grounds, 2007-NMSC-001, 140 N.M. 836, 149 P.3d 933.

B. IMPOTENCY.

Assault with intent to rape. — Impotency could be shown but was not a complete defense to charge of assault with intent to rape. State v. Ballamah, 1922-NMSC-057, 28 N.M. 212, 210 P. 391.

V. SODOMY.

Force was not element of crime of sodomy under former law. Washington v. Rodriguez, 1971-NMCA-021, 82 N.M. 428, 483 P.2d 309 (decided under prior law).

Consent no defense. — Under former law, consent of both parties to the act of sodomy did not constitute a defense to that crime. Washington v. Rodriguez, 1971-NMCA-021, 82 N.M. 428, 483 P.2d 309 (decided under prior law).

Emission was not necessary element of crime of sodomy. State v. Massey, 1954-NMSC-018, 58 N.M. 115, 266 P.2d 359 (decided under prior law).

Each act distinct. — Since under former 40A-9-6, 1953 Comp., "any penetration" could complete the crime of sodomy, on its face the statute clearly allowed prosecution for different kinds or acts of sodomy. State v. Elliott, 1977-NMSC-002, 89 N.M. 756, 557 P.2d 1105.

Cunnilingus and fellatio. — Under former 40A-9-6, 1953 Comp., sodomy included a taking into the mouth "the sexual organ of any other person"; the statute was not limited to the sexual organ of the male, "any other person" including both male and female. State v. Putman, 1967-NMCA-020, 78 N.M. 552, 434 P.2d 77 (decided under prior law).

Where former statute (Laws 1876, ch. 34, § 1) provided a penalty for crime of sodomy, but did not define the term, the common-law definition would apply; hence, sexual copulation per os or fellatio, was not included in the offense of sodomy. Bennett v. Abram, 1953-NMSC-013, 57 N.M. 28, 253 P.2d 316 (discharging petitioners in habeas corpus proceeding where they pleaded guilty to charge of sodomy without proper advice as to nature of the crime) (decided under prior law).

Aiding and abetting shown. — It was not necessary that the state prove that defendant aided and abetted a particular act of sodomy, as his presence at the scene and active participation in the criminal conduct being undertaken, in such a way as to encourage the commission of the charged offenses, was enough to constitute aiding and abetting. State v. Barnett, 1973-NMCA-098, 85 N.M. 404, 512 P.2d 977.

VI. INSTRUCTIONS.

Use of wrong alternative in uniform instruction. — Where defendant was charged with first degree criminal sexual penetration of a minor for vaginal penetration and first degree criminal sexual penetration of a minor for anal penetration; the court instructed the jury that the state had to prove beyond a reasonable doubt that defendant "caused the insertion to any extent, of a penis into the vagina and/or vulva" of the victim and that the state had to prove beyond a reasonable doubt that defendant "caused the insertion to any extent, of a penis into the anus" of the victim; and although the court erred in using the second alternative of the uniform instruction as the form of the instructions given to the jury, the instructions as given accurately reflected the statutory law and did not constitute reversible error. State v. Tafoya, 2010-NMCA-010, 147 N.M. 602, 227 P.3d 92, cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90.

Essential elements of crime. — A jury must be instructed on the essential elements of the crime charged, and failure so to do is fundamental error because the error is jurisdictional and thus not harmless. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, rev'd in part, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464, (holding that under the circumstances an instruction that victim must not be defendant's spouse, was not necessary) (decided under prior law).

Essential elements of second-degree criminal sexual penetration in the commission of a felony. — If unlawfulness is at issue, then lack of consent is an essential element of criminal sexual penetration perpetrated in the commission of a felony. State v. Samora, 2016-NMSC-031.

In defendant's trial for second-degree criminal sexual penetration perpetrated in the commission of a felony (CSP-felony), where the jury instruction at issue reflected UJI 14-132 NMRA, except that it failed to include the bracketed phrase "without consent," which would have clarified that any sexual contact between the victim and defendant had to be non-consensual for the jury to determine that defendant's act was unlawful, it was fundamental error to omit the element of consent from the jury instructions that were relevant to CSP-felony, because unlawfulness was at issue and the jurors may have been confused or misdirected as to whether defendant could have still acted unlawfully if the victim had consented to sex. State v. Samora, 2016-NMSC-031.

Criminal sexual penetration based on the commission of a felony. — When criminal sexual penetration is based on the commission of a felony, it must be a felony that is committed against the victim of, and that assists in the accomplishment of, sexual penetration perpetrated by force or coercion or against a victim who, by age or other statutory factor, gave no lawful consent. State v. Simmons, 2018-NMCA-015, cert. denied.

No fundamental error where instruction on CSP-II felony failed to instruct on causal link between the felony committed and the CSP. — In defendant's trial for criminal sexual penetration (CSP II) based on the commission of a felony, where the jury was instructed that the state must prove defendant caused the victim to engage in fellatio and anal intercourse, and defendant committed the acts during the commission of kidnapping or distribution of a controlled substance to a minor or contributing to the delinquency of a minor, but was not instructed to find that the associated felony must be committed against the victim of and assist in the accomplishment of the CSP, the jury instruction was deficient but did not rise to the level of fundamental error, because a reasonable jury would not be confused by the instruction, and the connection between the associated felonies and the acts of CSP II was so apparent that the CSP II-felony convictions did not shock the judicial conscience. State v. Simmons, 2018-NMCA-015, cert. denied.

Instruction in language of statute. — An instruction which set forth the elements of the crime of second degree criminal sexual penetration in the language of the statute was sufficient, and there was no error in failing to instruct on absence of the victim's consent. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Reading of statute permissible. — In prosecution for rape though there was no evidence tending to show that the prosecuting witness, through idiocy, imbecility or unsoundness of mind, either temporary or permanent, was incapable of giving consent, it was not error for the court, in its instructions, to read the entire section to the jury. Territory v. Edie, 1892-NMSC-019, 6 N.M. 555, 30 P. 851, aff'd on reh'g, 1893-NMSC-016, 7 N.M. 183, 34 P. 46.

Instruction constituting constructive amendment of information. — Jury instruction which allowed for conviction based on digital penetration occurring prior to the enactment of this section constituted a constructive amendment of the information which required reversal. Hunter v. New Mexico, 916 F.2d 595 (10th Cir. 1990), cert. denied, 500 U.S. 909, 111 S. Ct. 1693, 114 L. Ed. 2d 87 (1991).

Instruction on personal injury. — In a prosecution for criminal sexual penetration, where the trial court gave the statutory definition of personal injury appearing at 30-9-10C NMSA 1978, and also gave the statutory definition of great bodily harm at 30-1-12A NMSA 1978 in the instruction on first degree criminal sexual penetration, the lack of additional definition of personal injury was not error; if defendant desired that personal injury be further defined, he should have submitted a requested instruction to that effect, and since he did not do so, he could not complain of the lack of additional definition of the term. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Failure to give charge of offense in third degree. — Failure to give defendant's tendered charge on criminal sexual penetration in the third degree was reversible error at his trial for false imprisonment and criminal sexual penetration in the second degree, where the jury could find from the evidence that the sexual intercourse occurred by coercion or force, but without the requisite elements of false imprisonment as an independent felony. State v. Corneau, 1989-NMCA-040, 109 N.M. 81, 781 P.2d 1159, cert. denied, 108 N.M. 668, 777 P.2d 907.

Victim other than spouse. — Where there was no evidence whatsoever that the victim raped, sodomized and killed was the spouse of the defendant, failure to instruct the jury that it must find that the victim was not defendant's wife in the rape conviction was not a jurisdictional error. State v. Melton, 1977-NMSC-014, 90 N.M. 188, 561 P.2d 461 (decided under prior law).

Reversal of defendant's conviction of criminal sexual penetration because of trial court's failure to instruct that jury must find that victim was other than defendant's spouse was improper under facts of the case, and defendant was properly convicted of criminal sexual penetration. Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464 (decided under prior law).

Identical instructions on multiple counts. — Where the jury was given identical instructions on two counts of attempted criminal sexual penetration that were alleged to have occurred over a three week period and the victim testified that defendant attempted to force the victim to perform fellatio four times on different evenings; and the victim described intervening events between the attempted acts of fellatio, defendant's acts were not unitary and the instructions did not violate the double jeopardy clause. State v. Dombos, 2008-NMCA-035, 143 N.M. 668, 180 P.3d 675, cert. denied, 2008-NMCERT-002, 143 N.M. 666, 180 P.3d 673.

Instructions on aiding and abetting. — Circumstantial evidence that defendant knew that throughout defendant's companion forced the victim to commit various sexual acts; that on several occasions during the night at the companion's request, defendant brought coffee and cigarettes to the companion in the bedroom; and that defendant had a knife in defendant's belt was sufficient to support an instruction that the jury could convict defendant if defendant aided and abetted the companion in the commission of criminal sexual penetration. State v. Duncan, 1990-NMCA-063, 113 N.M. 637, 830 P.2d 554, aff'd, 1991-NMSC-010, 111 N.M. 354, 805 P.2d 621.

Lesser included offenses. — In trial of Indian for rape under the federal Major Crimes Act (18 U.S.C. §§ 1153, 3242, conferring federal jurisdiction over certain enumerated major crimes committed by Indians on Indian reservations), it was reversible error for trial court to refuse to instruct on the non-enumerated offenses of attempted rape, simple assault and battery, all of which were lesser included offenses under New Mexico law. Joe v. United States, 510 F.2d 1038 (10th Cir. 1974).

Lesser included offense instruction. — Any variance between the victim's testimony at trial and her testimony before the grand jury was insufficient to require an instruction on a lesser included offense, where defendant's own testimony that he had no contact of any sort with the victim negated the possibility that such an instruction might have been warranted. Chavez v. Kerby, 848 F.2d 1101 (10th Cir. 1988).

Lesser included offenses and alibi. — Because the defendant offered the defense of an alibi, he was not entitled to a lesser included offense instruction on the ground that the jury might have rejected the part of the complainant's testimony regarding the use of a gun. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, cert. quashed, 119 N.M. 311, 889 P.2d 1233 (1995).

Charge on third degree not warranted. — Where there was no evidence tending to establish that the criminal sexual penetration was committed by force or coercion without resultant personal injury, since the only evidence was that defendant used force which resulted in personal injury, beating the victim with his fists, twisting her breasts and pulling her hair immediately prior to sexual intercourse, there was no evidence supporting an instruction on third degree criminal sexual penetration. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Instruction on consent properly refused. — Where a review of the record and a thorough examination of the prosecutrix' testimony does not ever raise a slight inference of consent on part of victim, it was not error for trial court to deny defendant's requested instruction on consent as a defense. State v. Armstrong, 1973-NMCA-081, 85 N.M. 234, 511 P.2d 560, cert. denied, 85 N.M. 228, 511 P.2d 554, overruled on other grounds by State v. Elliott, 1975-NMCA-087, 88 N.M. 187, 539 P.2d 207.

Defense of consent. — Effective for cases filed after January 20, 2005, instructions have been approved for the defense of consent in criminal sexual penetration cases that are analogous to the defense of self-defense. State v. Jensen, 2005-NMCA-113, 138 N.M. 254, 118 P.3d 762, cert. quashed, 2005-NMCERT-011, 138 N.M. 587, 124 P.3d 565.

Requested instruction on lesser offense properly refused when no supporting evidence. — Where there is no view of the evidence adduced which would support the jury in finding the defendant guilty of third degree criminal sexual penetration which would not also require the jury to find him guilty of second degree criminal sexual penetration, a requested instruction on the lesser offense is properly refused. State v. Romero, 1980-NMCA-011, 94 N.M. 22, 606 P.2d 1116, overruled on other grounds by State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Charge on probability unnecessary. — It was not erroneous in rape case to refuse instructions calling for jury's consideration of reasonable probability of testimony of prosecuting witness where jury was instructed that they must find beyond a reasonable doubt that defendant committed the offense charged before they could return verdict of guilty. State v. Richardson, 1944-NMSC-059, 48 N.M. 544, 154 P.2d 224.

Intoxication instruction. — Evidence in prosecution for criminal sexual penetration was sufficient under New Mexico law to warrant an intoxication instruction. Florez v. Williams, 281 F.3d 1136 (10th Cir. 2002).

Circumstantial evidence. — There was no error in court's refusal to give the usual stock instruction relating to circumstantial evidence where the state did not rely upon circumstantial evidence to prove its case in prosecution for sodomy involving two juveniles. State v. Frederick, 1964-NMSC-045, 74 N.M. 42, 390 P.2d 281.

Impotency. — Where certain statements and testimony of defendant were only evidence of impotency, and no request for instruction on defense of impotency was tendered, it was not fundamental error on trial court's part to fail to instruct on its own motion on the defense, in view of confession and statements made by defendant admitting the act giving rise to the statutory rape prosecution. State v. Johnson, 1958-NMSC-046, 64 N.M. 83, 324 P.2d 781.

Coercion not element in fourth degree criminal sexual penetration. — Subsection D (now G) does not include an element of force or coercion, and there is no basis for construing it to require nonconsent by the child as an element of the crime. 1988 Op. Att'y Gen. No. 88-69.

Law reviews. — For symposium, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).

For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

For article, "Rape Law: The Need For Reform," see 5 N.M.L. Rev. 279 (1975).

For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).

For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev. 271 (1982).

For article, New Mexico Joins the Twentieth Century: The Repeal of the Marital Rape Exemption, see 22 N.M.L. Rev. 551 (1992).

For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713 (1992).

For note, "New Mexico Applies the Strict Elements Test to the Collateral Felony Doctrine - State v. Campos," see 28 N.M.L. Rev. 535 (1998).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 65 Am. Jur. 2d Rape §§ 1 to 30; 70A Am. Jur. 2d Sodomy §§ 1 to 24.

Liability of parent or person in loco parentis for personal tort against minor child, 19 A.L.R.2d 423, 41 A.L.R.3d 904, 6 A.L.R.4th 1066.

Blood grouping tests, 46 A.L.R.2d 1000, 43 A.L.R.4th 579.

Admissibility and propriety, in rape prosecution, of evidence that accused is married, has children and the like, 62 A.L.R.2d 1067.

Admissibility, in nonstatutory rape prosecution, of evidence of pregnancy, 62 A.L.R.2d 1083.

Assault with intent to commit unnatural sex act upon minor as affected by the latter's consent, 65 A.L.R.2d 748.

Applicability of rape statute concerning children of a specified age, with respect to a child who has passed the anniversary date of such age, 73 A.L.R.2d 874.

Incest as included within charge of rape, 76 A.L.R.2d 484.

Rape by fraud or impersonation, 91 A.L.R.2d 591.

Mistake or lack of information as to victim's age as defense to statutory rape, 8 A.L.R.3d 1100.

Impotency as defense to charge of rape, attempt to commit rape or assault with intent to commit rape, 23 A.L.R.3d 1351.

Statutory rape of female who is or has been married, 32 A.L.R.3d 1030.

Recantation by prosecuting witness in sex crime as ground for new trial, 51 A.L.R.3d 907.

Consent as defense in prosecution for sodomy, 58 A.L.R.3d 636.

What constitutes penetration in prosecution for rape or statutory rape, 76 A.L.R.3d 163.

Fact that rape victim's complaint or statement was made in response to question as affecting res gestae character, 80 A.L.R.3d 369.

Multiple instances of forcible intercourse involving same defendant and same victim as constituting multiple crimes of rape, 81 A.L.R.3d 1228.

Propriety of, or prejudicial effect of omitting or of giving, instruction to jury, in prosecution for rape or other sexual offense, as to ease of making or difficulty of defending against such a charge, 92 A.L.R.3d 866.

Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual acts, 94 A.L.R.3d 257.

Modern status of admissibility, in forcible rape prosecution, of complainant's general reputation for unchastity, 95 A.L.R.3d 1181.

Constitutionality of rape laws limited to protection of females only, 99 A.L.R.3d 129.

Venue in rape cases where crime is committed partly in one place and partly in another, 100 A.L.R.3d 1174.

Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 A.L.R.4th 1009.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Validity of statute making sodomy a criminal offense, 20 A.L.R.4th 1009.

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 24 A.L.R.4th 105.

Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 25 A.L.R.4th 1213.

Admissibility, at criminal prosecution, of expert testimony on rape trauma syndrome, 42 A.L.R.4th 879.

Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 A.L.R.4th 395.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution, 45 A.L.R.4th 310.

Sexual child abuser's civil liability to child's parent, 54 A.L.R.4th 93.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation - post-New York Times cases, 57 A.L.R.4th 404.

Intercourse accomplished under pretext of medical treatment as rape, 65 A.L.R.4th 1064.

Prosecution of female as principal for rape, 67 A.L.R.4th 1127.

Admissibility, in prosecution for sex-related offense, of results of tests on semen or seminal fluids, 75 A.L.R.4th 897.

Fact that murder-rape victim was dead at time of penetration as affecting conviction for rape, 76 A.L.R.4th 1147.

Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660.

Liability of church or religious society for sexual misconduct of clergy, 5 A.L.R.5th 530.

Statute protecting minors in a specified age range from rape or other sexual activity as applicable to defendant minor within protected age group, 18 A.L.R.5th 856.

Propriety of publishing identity of sexual assault victim, 40 A.L.R.5th 787.

Sufficiency of allegations or evidence of victim's mental injury or emotional distress to support charge of aggravated degree of rape, sodomy, or other sexual offense, 44 A.L.R.5th 651.

Mistake or lack of information as to victim's age as defense to statutory rape, 46 A.L.R.5th 499.

Defense of mistake of fact as to victim's consent in rape prosecution, 102 A.L.R.5th 447.

75 C.J.S. Rape §§ 1 to 35; 81 C.J.S. Sodomy §§ 1 to 8.

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