October 10, 2019- State of New Mexico v. John Jaramillo, No. A-1-CA-36134

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-36134	4
JOHN JARAMILLO,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Christina P. Argyres, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Law Offices of Adrianne R. Turner	13
Adrianne R. Turner	14
Albuquerque, NM	15
for Appellant	16
MEMORANDUM OPINION	17
ATTREP, Judge.	18
{1} 	Defendant John Jaramillo was convicted of three counts of criminal sexual	19
contact of a minor in the second degree (CSCM II), contrary to NMSA 1978, Section	20
30-9-13(B) (2003), one count of criminal sexual contact of a minor in the third	21
degree (CSCM III), contrary to Section 30-9-13(C), and two counts of intimidation	22
Court of Appeals of New Mexico
Filed 10/10/2019 8:59 AM

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of a witness, contrary to NMSA 1978, Section 30-24-3(A)(3) (1997). On appeal,	1
Defendant challenges the sufficiency of the evidence for all counts and argues that	2
his convictions for two counts of CSCM II and two counts of intimidation of a	3
witness violated his right to be free from double jeopardy. We hold that insufficient	4
evidence exists to sustain Defendant’s conviction for one count of CSCM II (Count	5
2) and that Defendant’s convictions for two counts of CSCM II (Counts 1 and 3) and	6
two counts of intimidation of a witness (Counts 5 and 6) violate double jeopardy.	7
We affirm Defendant’s remaining convictions.	8
BACKGROUND	9
{2} 	Defendant was accused of inappropriately touching his minor niece (B.V.).	10
B.V. grew up in a home where her mother used drugs daily and frequently was	11
absent. During her mother’s absences, B.V. was left in the care of her step-father or,	12
occasionally, Defendant. Defendant, too, was a regular drug user and often at the	13
house. At the time of Defendant’s trial, B.V. was twelve years old. B.V. testified that	14
Defendant touched her inappropriately on three occasions when she was five or six	15
years old. B.V. also testified that Defendant twice told her that if she told anyone	16
that he touched her, he would kill her. B.V. lastly recounted an occasion when	17
Defendant asked her to pull her pants down. Defendant testified in his own defense	18
and denied that any of this occurred. The jury convicted Defendant of all counts	19

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submitted to it, and Defendant appealed. We reserve further discussion of the	1
pertinent facts for our analysis.	2
DISCUSSION	3
I. 	Sufficiency of the Evidence	4
{3} 	Defendant challenges the sufficiency of the evidence for his convictions. “In	5
reviewing the sufficiency of evidence used to support a conviction, we resolve all	6
disputed facts in favor of the [s]tate, indulge all reasonable inferences in support of	7
the verdict, and disregard all evidence and inferences to the contrary.” State v. Rojo,	8
1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. The test for sufficiency of	9
evidence is “whether substantial evidence of either a direct or circumstantial nature	10
exists to support a verdict of guilt beyond a reasonable doubt with respect to every	11
element essential to a conviction. Substantial evidence is relevant evidence that a	12
reasonable mind might accept as adequate to support a conclusion.” State v.	13
Montoya, 2015-NMSC-010, ¶ 53, 345 P.3d 1056 (alteration, internal quotation	14
marks, and citations omitted). We test the sufficiency of the evidence against the	15
jury instructions given. State v. Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d 517	16
(“[J]ury instructions become the law of the case against which the sufficiency of the	17
evidence is to be measured.” (internal quotation marks and citation omitted)).	18

4
A. 	Count 4 (CSCM III)	1
{4} 	Defendant challenges the sufficiency of the evidence to support his conviction	2
for Count 4 (CSCM III). In order to convict Defendant of Count 4, the jury had to	3
find, in relevant part, beyond a reasonable doubt that “[D]efendant caused [B.V.] to	4
touch the penis of [D]efendant,” and “[D]efendant’s act was unlawful.” UJI 14-925	5
NMRA; see also § 30-9-13(A), (C). “Unlawful” in turn was defined as an act that	6
was “done with the intent to arouse or gratify sexual desire or to intrude upon the	7
bodily integrity or personal safety of [B.V.]” UJI 14-132 NMRA. The jury also was	8
instructed that it must find Defendant acted intentionally. UJI 14-141 NMRA. The	9
State’s proof for this charge consisted of B.V.’s testimony, in which she recounted	10
an occasion when Defendant invited her to sit on his lap on the living room couch	11
and upon doing so she could “feel his private part move around.” B.V. stated they	12
were both fully clothed, but Defendant caused his penis to move on her legs. B.V.	13
did not know how long this went on. B.V. testified that there were other times she	14
would sit on Defendant’s lap, but she only felt his penis this one time. B.V. also	15
testified that she never had to touch Defendant or do anything to his body.	16
{5} 	In challenging his conviction for this count, Defendant first argues that he did	17
not “cause” B.V. to touch his penis within the meaning of the statute since B.V. did	18
not testify that Defendant placed or maneuvered her hand or body on his penis but,	19
instead, testified that Defendant simply invited B.V. onto her lap. Defendant cites	20

5
State v. Felix, No. 34,878, memo. op. (N.M. Ct. App. Apr. 4, 2017) (non-	1
precedential), an unpublished case, to argue his actions were insufficient. Aside from	2
lacking precedential value, Felix is otherwise inapposite since the version of CSCM	3
at issue in that case required the use of physical force or violence, which was not	4
required for Count 4. Compare Felix, No. 34,878, ¶¶ 5, 8 (requiring use of “physical	5
force or physical violence”), and UJI 14-921 (same), with UJI 14-925 (setting out	6
no 	such 	requirement). 	Moreover, 	Defendant 	has 	offered 	no 	citation 	for 	the	7
constrained definition of causation he proposes, and we thus assume no such	8
authority exists. State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129	9
(“[A]ppellate courts will not consider an issue if no authority is cited in support of	10
the issue and that, given no cited authority, we assume no such authority exists.”).	11
From B.V.’s testimony that Defendant invited her to his lap and that once she was	12
there he moved his penis around on her legs, the jury reasonably could find that	13
Defendant intentionally caused B.V. to touch his penis.	14
{6} 	Defendant also argues the evidence was insufficient to establish that his	15
actions were unlawful—i.e., that they were “done with the intent to arouse or gratify	16
sexual desire.” UJI 14-132. “Intent is subjective and is almost always inferred from	17
other facts in the case, as it is rarely established by direct evidence.” State v. Sosa,	18
2000-NMSC-036, ¶ 9, 129 N.M. 767, 14 P.3d 32 (internal quotation marks and	19
citation omitted). Under the CSCM statute, “[p]roof of the wrongful manner in	20

6
which the act was perpetrated, regardless of the actor’s specific intent, will be	1
sufficient 	to 	establish 	that 	the 	act 	was 	performed 	‘unlawfully,’ 	or 	‘without	2
justification or excuse,’ as an element of the offense.” State v. Osborne, 1991-	3
NMSC-032, ¶ 30, 111 N.M. 654, 808 P.2d 624. Defendant asserts that “[t]here was	4
no evidence here indicating that [he invited B.V. on his lap] in a manner inconsistent	5
with the lawful, familial care of a child.” We disagree.	6
{7} 	While B.V. testified to other instances in which she sat on Defendant’s lap	7
and did not feel his penis, this occasion was different. Upon being invited onto his	8
lap, B.V. testified she felt Defendant’s penis moving around on her legs and it was	9
Defendant who caused this movement. When viewed in isolation, we have concerns	10
about the sufficiency of this evidence to prove unlawfulness. There could be an	11
innocent explanation for Defendant’s actions; but in light of other facts in evidence,	12
the jury was free to draw the opposite inference in this case. See State v. Estrada,	13
2001-NMCA-034, ¶ 41, 130 N.M. 358, 24 P.3d 793 (“[A]s a reviewing court, we do	14
not reweigh the evidence or attempt to draw alternative inferences from the	15
evidence.”). In this case, B.V. testified to two other occasions in which Defendant	16
touched B.V. in a sexual manner and a third incident in which Defendant asked B.V.	17
to take off her pants. It was permissible for the jury to draw upon these other acts in	18
determining whether Defendant’s intent with respect to Count 4 was unlawful. Cf.,	19
e.g., State v. Kerby, 2007-NMSC-014, ¶ 26, 141 N.M. 413, 156 P.3d 704 (concluding	20

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other bad act evidence that the defendant constructed a peephole to peer into the	1
victim’s bathroom was permissible to prove the defendant had a sexual intent when	2
he touched the victim’s buttocks); State v. Bailey, 2015-NMCA-102, ¶¶ 2, 4, 17, 357	3
P.3d 423 (concluding uncharged evidence of other non-parental touching, occurring	4
between two instances giving rise to the charges, was relevant to whether the	5
defendant touched the child with unlawful intent), aff’d, 2017-NMSC-001, 386 P.3d	6
1007. Under the circumstances of this case, the jury reasonably could infer that	7
Defendant invited B.V. onto his lap and caused B.V. to touch his penis with the	8
requisite intent. We therefore conclude that sufficient evidence supports Count 4	9
(CSCM III).	10
B. 	Count 2 (CSCM II)	11
{8} 	Defendant also challenges the sufficiency of the evidence to support his	12
conviction for Count 2 (CSCM II). In order to convict Defendant of Count 2, the	13
jury had to find, in relevant part, beyond a reasonable doubt that Defendant “touched	14
or applied force to the unclothed genitals of [B.V.]” UJI 14-925; see also § 30-9-	15
13(A), (B). In support of this charge, the State introduced testimony from B.V. that,	16
“I was in my room and he took off most of my clothes and he, like, tied my hands	17
so I wouldn’t move and he like went on top of me.” B.V. testified that Defendant	18
was naked and she was able to see his body, including his penis. B.V., however, did	19
not elaborate further on the touching. When asked what happened after Defendant	20

8
removed her clothes and tied her up, she again stated, “He went on top of me.” And	1
although B.V. testified that she thought she could feel Defendant’s private parts, she	2
did not elaborate where on her body she felt his genitals. B.V. instead said that	3
Defendant did not do anything else, that she could not remember where Defendant’s	4
hands were during the interaction, and that he did not make her do anything with her	5
hands.	6
{9} 	Defendant argues that “there are no facts from which a reasonable juror could	7
infer that he touched [B.V.’s] genitals during this incident.” We agree. While we	8
must, as noted, apply a highly deferential standard to our review of a jury’s verdict,	9
it is “the independent responsibility of the courts to ensure that the jury’s decisions	10
are supportable by evidence in the record, rather than mere guess or conjecture.”	11
State v. Flores, 2010-NMSC-002, ¶ 2, 147 N.M. 542, 226 P.3d 641; see UJI 14-6006	12
NMRA (“Your verdict should not be based on speculation, guess or conjecture.”).	13
“This principle necessarily requires a reviewing court to distinguish between	14
conclusions based on speculation and those based on inferences, a task that is not	15
always straightforward.” State v. Slade, 2014-NMCA-088, ¶ 14, 331 P.3d 930. “A	16
reasonable inference is a conclusion arrived at by a process of reasoning which is a	17
rational and logical deduction from facts admitted or established by the evidence.”	18
Id. (alterations, internal quotation marks, and citation omitted). “Where, however,	19
the evidence must be buttressed by surmise and conjecture, rather than logical	20

9
inference in order to support a conviction,” such conviction cannot stand. State v.	1
Vigil, 1975-NMSC-013, ¶ 12, 87 N.M. 345, 533 P.2d 578 (internal quotation marks	2
and citation omitted).	3
{10} 	Applying these principles here, B.V. provided no testimony about what part	4
or parts of her body Defendant touched when he “went on top of [her].” She did not	5
describe what position her body was in, what position Defendant’s body was in, how	6
long the touching lasted, or what Defendant did when he went on top of her. Indeed,	7
B.V. testified that, “He didn’t do anything. He just went on top of me.” She could	8
not remember where Defendant’s hands were during the encounter. And although	9
B.V. said that she thought she felt Defendant’s genitals on her, she did not identify	10
where on her body this touching occurred.1 While we have rightly observed that	11
“young children cannot be held to an adult’s ability to comprehend and recall dates	12
and other specifics,” State v. Baldonado, 1998-NMCA-040, ¶ 20, 124 N.M. 745, 955	13
P.2d 214 (alteration, internal quotation marks, and citation omitted), in this case,	14
there simply is no testimony from which to draw a reasonable inference that	15
Defendant touched B.V.’s unclothed genitals.2 A contrary conclusion would require	16
1 While this conduct may be sufficient to support a conviction for CSCM III
on the theory that Defendant caused B.V. to touch his genitals, the jury was not
instructed on this alternative theory. See UJI 14-925.
2 Although the jury instructions in this case included only the touching of
B.V.’s “unclothed genitals,” the State refers in its briefing to both the genital area
and the groin as a basis for finding sufficient evidence, citing the statutory definition
of intimate parts. See § 30-9-13(A) (defining “intimate parts” as “primary genital

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a number of speculative leaps and, as such, Defendant’s conviction for Count 2	1
(CSCM II) cannot stand.	2
C. 	Remaining Counts	3
{11} 	Defendant challenges the sufficiency of the evidence to support his remaining	4
convictions on the ground that he presented contrary testimony at trial. This	5
argument is unavailing as “[c]ontrary evidence supporting acquittal does not provide	6
a basis for reversal because the jury is free to reject [the d]efendant’s version of the	7
facts.” Rojo, 1999-NMSC-001, ¶ 19. Defendant providing no other argument, we	8
decline to further review the sufficiency of the evidence supporting Defendant’s	9
remaining convictions.	10
II. 	Double Jeopardy	11
{12} 	Defendant challenges his two intimidation convictions (Counts 5 and 6) and	12
two of his CSCM II convictions (Counts 1 and 3) as violative of his right to be free	13
from double jeopardy. The double jeopardy clause of the Fifth Amendment of the	14
United States Constitution “functions in part to protect a criminal defendant against	15
multiple punishments for the same offense.” State v. Swick, 2012-NMSC-018, ¶ 10,	16
area, groin, buttocks, anus or breast”). Given the jury was not instructed to consider
whether Defendant touched B.V.’s unclothed groin, we question whether the
sufficiency of the evidence may appropriately be tested against this portion of the
statute. See Arrendondo, 2012-NMSC-013, ¶ 18. Regardless, even were we to
consider this, we come to the same conclusion—for the reasons already stated, there
was insufficient evidence that Defendant touched B.V.’s unclothed intimate parts,
whether it be her genitals or groin.

11
279 P.3d 747 (internal quotation marks and citation omitted). Defendant “challenges	1
multiple convictions under the same statute,” making this a “unit-of-prosecution”	2
case. Id. In such cases, we ask “whether the [L]egislature intended punishment for	3
the entire course of conduct or for each discrete act.” Swafford v. State, 1991-NMSC-	4
043, ¶ 8, 112 N.M. 3, 810 P.2d 1223. “To determine the Legislature’s intent with	5
respect to the unit of prosecution for a criminal offense, we apply a two-step test.	6
First, we review the statutory language for guidance on the unit of prosecution. The	7
plain language of the statute is the primary indicator of legislative intent.” State v.	8
Ramirez, 2018-NMSC-003, ¶ 47, 409 P.3d 902 (internal quotation marks and	9
citations omitted). “If the unit of prosecution is not clear from the statute at issue,	10
including its wording, history, purpose, and the quantum of punishment that is	11
prescribed,” then we move to the second step and “must determine whether a	12
defendant’s acts are separated by sufficient ‘indicia of distinctness’ to justify	13
multiple punishments.” Swick, 2012-NMSC-018, ¶ 33.	14
{13} 	To determine whether a defendant’s acts are sufficiently distinct, we look to	15
factors adopted by our Supreme Court in Herron v. State, 1991-NMSC-012, ¶ 15,	16
111 N.M. 357, 805 P.2d 624. In particular, we examine the “(1) temporal proximity	17
of the acts; (2) location of the victim during each act; (3) existence of an intervening	18
act; (4) sequencing of the acts; (5) the defendant’s intent as evidenced by his conduct	19
and utterances; and (6) the number of victims.” State v. Garcia, 2009-NMCA-107,	20

12
¶ 10, 147 N.M. 150, 217 P.3d 1048 (citing Herron, 1991-NMSC-012, ¶ 15). “If the	1
acts are not sufficiently distinct, then the rule of lenity mandates an interpretation	2
that the [L]egislature did not intend multiple punishments, and a defendant cannot	3
be punished for multiple crimes.” 	Ramirez, 2018-NMSC-003, ¶ 47 (internal	4
quotation marks and citation omitted). “The issue of intended unit of prosecution is	5
a question of law subject to de novo review.” State v. Olsson, 2014-NMSC-012,	6
¶ 14, 324 P.3d 1230.	7
A. 	Counts 5 and 6 (Intimidation of a Witness)	8
{14} 	Defendant challenges his two convictions for intimidating or threatening a	9
witness in Counts 5 and 6 as violating his right to be free from double jeopardy. As	10
for the first step, Defendant does not analyze the relevant statutory language but	11
instead asserts that Section 30-24-3(A)(3) “does not clearly define the unit of	12
prosecution.” The State fails entirely to respond to this portion of the unit-of-	13
prosecution analysis. Neither party thus argues that the relevant criminal statute is	14
dispositive of the unit of prosecution nor presents developed arguments on the	15
matter. We accordingly proceed to the second step of the unit-of-prosecution	16
analysis. See State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (stating that	17
appellate courts will not address arguments where parties failed to develop them	18
“with any principled analysis”); State v. Demongey, 2008-NMCA-066, ¶ 10, 144	19
N.M. 333, 187 P.3d 679 (proceeding to second step of the unit-of-prosecution	20

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analysis where “neither party argues that the unit of prosecution is clearly defined in	1
the relevant criminal statutes”).	2
{15} 	In this case, the indicia of distinctness do not justify convicting Defendant of	3
multiple acts of intimidation. The only evidence presented to support these charges	4
consisted of B.V.’s testimony that Defendant “told me that if I told anyone that he	5
touched me, he would kill me.” When asked how many times Defendant said that,	6
B.V. answered, “Twice, I think.” 	B.V., however, could not remember when	7
Defendant made the statements or even if they coincided with the incidents of sexual	8
abuse. Here, even when viewing the facts favorably in support of the verdict, there	9
simply is no indication whether Defendant’s acts happened on the same or separate	10
occasions or were otherwise separated by any indicia of distinctness to justify	11
multiple punishments. Applying the rule of lenity, as we must, one of Defendant’s	12
convictions for intimidating a witness (Count 5 or 6) must be vacated.	13
B. 	Counts 1 and 3 (CSCM II)	14
{16} 	Defendant was convicted of CSCM II in Count 1 for touching B.V.’s	15
unclothed genitals and in Count 3 for touching B.V.’s unclothed breasts. Defendant	16
challenges these convictions as violating his right to be free from double jeopardy.	17
Our case law has consistently treated the CSCM statute, Section 30-9-13, “as	18
ambiguous in criminal sexual contact cases,” so we proceed to address whether	19

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sufficient indicia of distinctness separate the convictions. State v. Ervin, 2008-	1
NMCA-016, ¶ 44, 143 N.M. 493, 177 P.3d 1067.	2
{17} 	Counts 1 and 3 are predicated on an incident that occurred in B.V.’s brother’s	3
bedroom. B.V. testified that Defendant put his hand in her pants and “he started,	4
like, rubbing” under her underwear. B.V. testified that Defendant also touched her	5
breasts under her clothes during the same encounter. B.V. did not know how long	6
the encounter lasted and provided no testimony that the touching of her genitals was	7
in any way separated from the touching of her breasts. The State concedes on appeal	8
that there are not sufficient indicia of distinctness to find separate offenses and that	9
one of the CSCM II convictions should be vacated. While we are not bound by the	10
State’s concession, see State v. Caldwell, 2008-NMCA-049, ¶ 8, 143 N.M. 792, 182	11
P.3d 775, we agree that Defendant’s acts lack sufficient indicia of distinctness to	12
justify multiple punishments, see Ervin, 2008-NMCA-016, ¶ 46 (holding that “[t]he	13
incident in which [the d]efendant massaged [the c]hild’s nude body, touching her	14
breasts, buttocks, and vagina was one continuous course of conduct, not capable of	15
being split into three charges merely because [the d]efendant touched three different	16
body parts”). Again, applying the rule of lenity, as we must, one of Defendant’s	17
convictions for CSCM II (Count 1 or 3) must be vacated.	18

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CONCLUSION	1
{18} 	We reverse Defendant’s conviction for Count 2 (CSCM II), and we remand	2
with further instructions to vacate one count of CSCM II (Count 1 or 3) and one	3
count of intimidation of a witness (Count 5 or 6) and to resentence Defendant	4
accordingly. We affirm Defendant’s remaining convictions.	5
{19} 	IT IS SO ORDERED.	6
______________________________	7
JENNIFER L. ATTREP, Judge	8
WE CONCUR:	9
_______________________________	10
J. MILES HANISEE, Chief Judge	11
_______________________________	12
MEGAN P. DUFFY, Judge	13