January 31, 2019- State of New Mexico v. Benjamin B. Lerman, No. A-1-CA-37657

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 V. 	NO. A-1-CA-37657
5 	BENJAMIN B. LERMAN,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 	Fred T. Van Soelen, District Judge
9 	Hector H. Balderas, Attorney General
10 	Santa Fe , NM
11 	Martha Anne Kelly, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 	Gary C. Mitchell, P.C.
15 	Gary C. Mitchell
16 Ruidoso, NM
17 for Appellant
18
19 	V ANZI, Judge.
MEMORANDUM OPINION
20 	{t} 	Defendant appeals his conviction of child solicitation following a jury trial.
21 	[DS 1] This Court issued a notice of proposed summary disposition, proposing to
22 	affirm. 	[CN 	10-11] 	Defendant has 	filed 	a memorandum in opposition to that
Court of Appeals of New Mexico
Filed 1/31/2019 8:46 AM
Mark Reynolds

1 disposition, which we have duly considered. As we are unpersuaded by Defendant's
2 arguments, we affirm.
3 	{2} 	With regard to various constitutional challenges to the statute under which he
4 was convicted, Defendant' s memorandum in opposition invites this Court to overrule
5 its opinion in State v. Ebert, 2011-NMCA-098, 150 N.M. 576,263 P.3d 918. [MIO
6 unnumbered page 3] For the reasons expressed in Ebert, itself, we find Defendant's
7 arguments regarding free speech, the commerce clause, and due process to be
8 unpersuasive. We decline Defendant's invitation to revisit that opinion.
9 	{3} 	Defendant also continues to assert that criminal sexual communication is a
10 	lesser included and more specific offense than child solicitation. [MIO unnumbered
11 	pages 9-1 O] In doing so, Defendant continues to assert that the elements of criminal
12 	sexual communication are a subset of the elements of child solicitation pursuant to
13 	the modified Blockburger test articulated in our case law. [Id.] As our notice of
14 proposed summary disposition pointed out, however, child solicitation-unlike
15 	criminal sexual communication-does not require that Defendant have sent a child
16 "obscene images of [his] intimate parts." [CN 3] As a result, the elements of criminal
17 	sexual communication are not a subset of the elements of child solicitation. Having
18 	failed to address this central flaw in his own reasoning despite the extended
19 	discussion of that flaw in our notice of proposed summary disposition [CN 3-5],
2

1 Defendant has failed to meet his burden on appeal. See State v. Mondragon, 1988-
2 NMCA-027, 110, 107 N.M. 421, 759 P.2d 1003 (explaining that a memorandum in
3 opposition to summary disposition "must come forward and specifically point out
4 errors of law and fact").
5 	{4} 	Defendant also continues to assert that the district court should have instructed
6 the jury with regard to the defense of entrapment, relying upon "his arguments set
7 forth in his docketing statement." [MIO unnumbered page 11] Repetition of earlier
8 arguments, however, does not satisfy a party's burden in responding to a summary
9 calendar notice. See id.
10 	{5} 	Finally, counsel complains that this Court's notice of summary disposition
11 	"berated [him] for not providing [this] Court with the [a]ffidavits" supporting a search
12 	warrant. [MIO unnumbered page 11] In fact, this Court admonished counsel for his
13 	failure to comply with Rule 12-208 NMRA, which neither requires nor permits the
14 attachment of exhibits to a docketing statement. [CN 9-1 O] Instead, that rule requires
15 	trial counsel to summarize the material facts. 	Rule 	12-208(D)(3). Defendant's
16 docketing statement did not do so, as demonstrated by the fact that his memorandum
17 	in opposition now summarizes two single-spaced pages of additional relevant facts.
18 	[MIO unnumbered page 12-13]
3

1 {6} 	Unless counsel believed both that this Court would simply overlook the facts
2 relied upon by the district court and also that the State would fail to bring those facts
3 to our attention in its own memorandum in opposition, his omission of relevant facts
4 was an exceedingly poor appellate strategy. And, as pointed out in our notice of
5 proposed summary disposition, it is also a strategy that exposes counsel to the risk of
6 sanction for contempt. [CN 1OJ
7 	{7} 	Having reviewed the additional facts contained in Defendant's memorandum,
8 we do not agree with his characterization that the police "stopped a person for no
9 other reason than walking through a public mall at a reasonable hour, having a cell
10 phone and looking nervous." [MIO unnumbered page 17] Instead, we note that
11 	Defendant' s memorandum does not assert any factual error in our notice of proposed
12 	summary disposition, which described the months-long investigation that preceded
13 	Defendant setting up a meeting at a shopping mall with a sheriff's deputy portraying
14 	herself as a 15-year-old girl before arriving "roughly on time, walk[ing] past the
15 	meeting place twice, [being] seen sending a text message to the deputy who was
16 portraying the 15-year-old girl, and then in apparent response to her sending a new
17 	meeting location proceed[ing] to that new location." [CN 6, 9; See MIO 12-13] We
18 	conclude that the facts known to the deputies on the scene were sufficient to support
19 a reasonable belief that a crime was being committed and that Defendant was the
4

1 person committing that crime. See Benavidez v. Shutiva, 20 l 5-NMCA-065, ,r 12,350
2 P.3d 1234 (defining probable cause).
3 {8} 	The judgment and sentence of the district court is affirmed.
4 	{9}
5
6
IT IS SO ORDERED.
7 WE CONCUR:
...
8~·~
9 J. MILES HANISEE, Judge
10 	~~~ 	--,
11 	JEN~ 	L.ATTREP, Judge
5