June 09, 2011 – State of New Mexico v. Jeffrey Moore, No. 29,248

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: June 9, 2011

NO. 29,248

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

V.

JEFFERY MOORE,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Kenneth H. Martinez, District Judge

Gary K. King, Attomey General

Margaret E. McLean, Assistant Attomey General

Joel Jacobsen, Assistant Attomey General
Santa Fe, NM

for Appellant

Liane E. Kerr
Albuquerque, NM

for Appellee

OPINION
GARCIA, Judge.
{1} 	The State appeals the district court’s pretrial dismissal of three counts of
criminal sexual penetration (CSP) that were each charged under two alternative
theories: (1) CSP in the second degree (CSP II) based upon CSP perpetrated during
the commission of a felony, contrary to NMSA 1978, Section 30-9-11(E)(5) (2007)
(amended 2009); or (2) CSP in the fourth degree (CSP IV) based upon CSP
“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[,]” contrary to Section 30-9-11(G)(1). This appeal requires us to consider
whether the district court erred by concluding that the State improperly instructed the
grand jury on the definition of the unlawfulness element for CSP II and CSP IV when
it omitted language that the act must have been done “without consent” of the
fourteen-year-old alleged victim. We conclude that the State properly instructed the
grand jury regarding the definition of unlawfulness because the consent of a statutorily
defined child is legally irrelevant to the unlawfulness element for both CSP II and
CSP IV. As a result, we reverse the district court’s order dismissing Counts I, V, and
VI of the indictment, and we remand for further proceedings consistent with this
Opinion.

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BACKGROUND
{2} 	During the grand jury proceedings on June 2, 2008, the grand jury considered
eight criminal counts in the proposed indictment, including three counts of CSP. The
State instructed the grand jury that unlawfulness was an essential element of both CSP
II and the alternative counts of CSP IV, as charged in Counts I, V, and VI. The State
further defined “unlawfulness” as follows:
In addition to the other elements of [CSP II], . . . or [CSP IV], for you to
return a True Bill on these charges[,] you must find probable cause as
to each of the following elements: For the act to have been unlawful it
must have been done with the intent to arouse or gratify sexual desire[,]
or to intrude on the bodily integrity or personal safety of the [V]ictim[,]
or for some other unlawful purpose. [CSP II], . . . and [CSP IV] do not
include a penetration for purposes of reasonable medical treatment, non-
abusive parental or custodial care, lawful arrest or confinement[,] or for
some other unlawful [sic] purpose.
See UJI 14-132 NMRA.
{3} 	Detective Lavilla then testified that V.M. (Victim) and Jeffery Moore
(Defendant) were unrelated, that Victim was fourteen years old, and that Defendant
was forty-six years old. 	Detective Lavilla further testified that during a recorded
interview, Victim stated that Defendant was her father’s friend and that Defendant and
Victim were “with each other” every Friday night for two and a half months before
law enforcement officers discovered their activity on May 16, 2008. Additionally,
Victim told Detective Lavilla that she voluntarily agreed to have sexual intercourse
with Defendant and that Defendant and Victim smoked marijuana and engaged in

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sexual intercourse on multiple occasions. The grand jury subsequently returned a true
bill on all counts, and the State filed a grand jury indictment charging Defendant with
eight criminal counts, including three counts of CSP that were each charged as CSP
II, or in the alternative, CSP IV. The underlying felony supporting the CSP II charge
was contributing to the delinquency of a minor, contrary to NMSA 1978, Section 30-
6-3 (1990), based upon Defendant allegedly providing marijuana or smoking
marijuana with Victim.
{4} 	On September 16, 2008, Defendant filed a motion to dismiss Counts I, V, and
VI, charging Defendant with CSP II or alternatively CSP IV. Defendant asserted that
the State omitted the “without consent” language in UJI 14-132 in its instructions to
the grand jury, which was “critical to this case since the unequivocal and undisputed
evidence is that the sexual intercourse was consensual.” Defendant further contended
that “[b]ecause the prosecutor failed to properly instruct grand jurors on the essential
element of ‘unlawfulness,’ the grand jury was not instructed on all the essential
elements of [CSP].” As a result, Defendant argued that dismissal of the charges was
required pursuant to State v. Ulibarri, 1999-NMCA-142, 128 N.M. 546, 994 P.2d
1164, aff’d, 2000-NMSC-007, 128 N.M. 686, 997 P.2d 818. In a subsequent reply
and argument before the district court, Defendant additionally argued that this Court
recognized the New Mexico Supreme Court’s approval of “jury instructions for the
defense of consent in CSP cases” filed after January 20, 2005. See State v. Jensen,

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2005-NMCA-113, ¶ 21, 138 N.M. 254, 118 P.3d 762 (recognizing that “effective for
cases filed after January 20, 2005, the Supreme Court has approved instructions for
the defense of consent in CSP cases that are analogous to the defense of self-defense,”
pursuant to UJI 14-132 and UJI 14-946 NMRA). Defendant relied upon Jensen to
argue that because Defendant’s case was filed after January 20, 2005, and the
undisputed evidence of consent raised a genuine issue of unlawfulness, the State was
required to include language regarding the absence of consent in its definition of
unlawfulness.
{5} 	In response, the State argued that although unlawfulness is an element of CSP,
UJI 14-132 provides that the optional “without consent” language is to be used only
in applicable cases. The State further contended that since this Court has repeatedly
held that absence of consent is not an element of CSP, the State properly excluded
language regarding the absence of consent from the grand jury instructions. 	See
Jensen, 2005-NMCA-113, ¶ 19 (stating that “our cases have long held that absence
of consent is not an element of the crime of CSP”). Additionally, the State argued that
the definition of “unlawfulness” in UJI 14-132 indicates that the “without consent”
language is not applicable to all charges that use the unlawfulness definition because
absence of consent is not a question of law essential for a CSP conviction. Finally,
the State argued that even if consent were a defense to CSP in some cases, consent is
not a defense where the alleged victim is under sixteen years of age. As a result, the

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State argued that the grand jury instructions were proper and that Defendant’s motion
to dismiss should be denied.
{6} 	On December 18, 2008, the district court entered an order dismissing without
prejudice the CSP charges in Counts I, V, and VI. 	The court found that it was
undisputed that the sexual intercourse providing the basis for the CSP charges was
consensual. 	The court further found that the State omitted the “without consent”
language when it read the “unlawfulness” instruction to the grand jury. Finally, the
court noted that in Jensen, 2005-NMCA-113, ¶ 21, this Court recognized the Supreme
Court’s approval of jury instructions regarding the defense of consent in CSP cases
filed after January 20, 2005. As a result, the district court concluded that “[g]iven the
evidence of alleged consensual intercourse in this case, a genuine issue of the
unlawfulness of [Defendant’s] actions was raised[,]” and the State was required to
include the “without consent” language in grand jury instructions regarding the
“unlawfulness” element. Based on its conclusion that the grand jury instructions were
legally insufficient, the court dismissed without prejudice the CSP charges against
Defendant. The State now appeals the district court’s order of dismissal.
DISCUSSION
{7} 	The State presents four arguments on appeal: 	(1) language regarding the
absence of consent was properly excluded from the unlawfulness instruction because
absence of consent is not an element of CSP involving a fourteen-year-old victim; (2)

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even if consent were considered a defense to CSP, the State is not required to disprove
trial defenses during grand jury proceedings; (3) the Uniform Jury Instructions are a
secondary source of law that cannot overrule primary sources; and (4) to the extent
that UJI 14-132 may require the State to prove lack of consent in CSP cases, it is an
erroneous statement of law. 	In response, Defendant asserts that an instruction
regarding unlawfulness was required since unlawfulness is an element of CSP II and
CSP IV and that the “without consent” language was required since it is included in
the jury instruction defining unlawfulness. 	We conclude that the State properly
instructed the grand jury regarding the definition of unlawfulness because the consent
of a fourteen-year-old child is legally irrelevant to the unlawfulness element for both
CSP II and CSP IV. As a result, we reverse the district court’s dismissal of Counts
I, V, and VI, and we need not consider the State’s remaining arguments on appeal.
Standard of Review
{8} 	“[A] prosecutor has a duty to advise the grand jury of the essential elements of
the charges presented.” State v. Gallegos, 2009-NMSC-017, ¶ 12, 146 N.M. 88, 206
P.3d 993. 	Furthermore, the remedy for a failure to advise the grand jury of the
essential elements is a dismissal of the charges without prejudice. 	Ulibarri, 1999-
NMCA-142, ¶¶ 15, 24. 	Here, it is undisputed that unlawfulness is an essential
element of CSP II and CSP IV, but the parties disagree regarding whether language
regarding the absence of consent was required to be included in the definition of

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unlawfulness. Whether the unlawfulness instruction was required to include language
regarding the absence of consent is a question we review de novo. 	See State v.
Henley, 2010-NMSC-039, ¶ 12, 148 N.M. 359, 237 P.3d 103.
Unlawfulness Element of CSP II and CSP IV
{9} 	Section 30-9-11(A) defines CSP as “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.” (Emphasis added.) Section
30-9-11 then incorporates this general definition of CSP into subsections defining the
various degrees of CSP. 	See § 30-9-11(C) to (F). 	CSP II may be met through
multiple circumstances, including “all [CSP] perpetrated . . . in the commission of any
other felony.” Section 30-9-11(E)(5). CSP in the third degree (CSP III) “consists of
all [CSP] perpetrated through the use of force or coercion not otherwise specified in
this section.” 	Section 30-9-11(F). 	Finally, CSP IV “consists of all [CSP] . . . not
[otherwise] defined in Subsections D through F . . . 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.” Section 30-9-
11(G)(1).
{10} 	In State v. Perea, the defendant appealed his conviction of CSP III, arguing that
the evidence only supported a conviction for CSP IV (involving a child between

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thirteen and sixteen years of age). 2008-NMCA-147, ¶ 1, 145 N.M. 123, 194 P.3d
738. Specifically, the defendant contended that there was no evidence of the required
element of force for CSP III because the victim consented to the sexual encounters.
Id. ¶¶ 8-9. This Court held that “consent is not a viable legal defense to conviction for
CSP III” and that the “[c]onsent of a child between the ages of thirteen and sixteen to
engage in sexual intercourse is irrelevant where force or coercion is involved.” Id. ¶
9. In considering the defendant’s argument that he should have been convicted of the
lesser CSP IV charge, this Court similarly concluded that:
Under the CSP IV statute, the law does not recognize the
willingness of a child between the ages of thirteen and sixteen to engage
in sexual intercourse with a twenty-nine-year-old man as vitiating his
causing the intercourse to occur. 	Such a child’s consent is legally
irrelevant.
Id. ¶¶ 10-11 (citations omitted).
{11} 	We first consider whether the State properly excluded language requiring the
absence of Victim’s consent in instructing the grand jury regarding the unlawfulness
element for the three alternative counts of CSP IV. As stated in Perea, the law does
not recognize the willingness of a fourteen-year-old child to consent to sexual
intercourse with a forty-six-year-old man as vitiating the act of CSP, and as a result,
Victim’s consent or lack thereof is legally irrelevant under the CSP IV statute. See id.
Defendant provides no basis to distinguish the present case from Perea in relation to
the CSP IV charges, but instead concedes that Victim’s consent is irrelevant to the

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element of unlawfulness for CSP IV. Consequently, we conclude that the grand jury
instructions regarding the unlawfulness element for the three alternative counts of
CSP IV properly excluded language regarding the absence of Victim’s consent.
{12} 	We next turn to whether the State properly excluded the “without consent”
language when instructing the grand jury regarding the unlawfulness element for the
three counts of CSP II. Defendant argues that pursuant to the definition of CSP II in
UJI 14-954 NMRA, the State was mandated to instruct the grand jury that Defendant’s
act was required to be unlawful since there was a genuine issue regarding the
unlawfulness of Defendant’s actions. See UJI 14-954 n.7 (“Use the bracketed element
[that the defendant’s act was unlawful] if the evidence raises a genuine issue of the
unlawfulness of the defendant’s actions.”). Defendant further contends that the issue
of whether Victim could consent due to her young age applies only to the CSP IV
charge under Perea, and the “without consent” language must be included in the
instruction regarding the unlawfulness element of CSP II.
{13} 	We conclude that the consent of a statutorily defined child is irrelevant to the
unlawfulness element of CSP II. In Perea, we reasoned that the consent of a child
between the ages of thirteen and sixteen is legally irrelevant for both CSP III, where
force is required, and CSP IV, where force is not required. 2008-NMCA-147, ¶¶ 9-
11. Similarly, CSP II incorporates the same universal definition of CSP in Section 30-
9-11(A), including the requirement that the act be unlawful. 	See § 30-9-11(E)(5).

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Furthermore, the only additional element required for CSP II is that the defendant
must have perpetrated the act of CSP “in the commission of any other felony.” 	Id.
Just as Perea concluded that the consent of a child between thirteen and sixteen years
of age to engage in sexual intercourse with a twenty-nine-year-old man does not
vitiate the act of CSP required for CSP III (use of force or coercion) or CSP IV, we
conclude that the consent of a fourteen-year-old child to engage in sexual intercourse
with a forty-six-year-old man does not vitiate the act of CSP required for CSP II. Id.
¶¶ 9, 11. Furthermore, just as Perea concluded that the additional question for CSP
III is “whether [the d]efendant used force in accomplishing his ends irrespective of the
[under-aged] victim’s role[,]” we determine that a similar question applies for CSP II
regarding whether Defendant perpetrated the act of CSP during the commission of
another felony irrespective of the under-aged Victim’s role. 	Id. ¶ 11; see State v.
Maestas, 2005-NMCA-062, ¶ 24, 137 N.M. 477, 112 P.3d 1134, (determining that
CSP II based on commission of a felony “requir[es] the jury to find that [the
d]efendant caused [the v]ictim to engage in the various sex acts and that the acts
occurred during the commission of the underlying felony”), rev’d on other grounds,
2007-NMSC-001, 140 N.M. 836, 149 P.3d 933.
{14} 	Additionally, we recognize that force or coercion is not always an essential
element of CSP II. Maestas, 2005-NMCA-062, ¶ 26. “Through its definitions of CSP
II, the [L]egislature intended to punish those who participate in certain sexual activity,

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even without exerting force or coercion, when the participant is in a position of
authority over an inmate, when the participant is armed with a deadly weapon, or
when the sex act is caused by the defendant in the commission of any other felony.”
Id. Furthermore, the Legislature did not limit CSP II (commission of a felony) to only
those underlying felonies involving force or coercion, but instead, “simply required
that the CSP be caused by the defendant in the commission of any other felony.” Id.
(internal quotation marks and citation omitted). As a result, we decline to extend the
definition of the unlawfulness element of CSP II to include an additional requirement
that Victim did not consent to the sexual intercourse during Defendant’s commission
of a felony. See id. ¶¶ 4, 24 (recognizing in a CSP II case where the alleged victim
was an adult, the required “causal connection” between the requested sexual act and
the underlying felony was sufficient to ensure that an accused will not be convicted
for engaging in an act of purely consensual sex).
{15} 	Finally, we recognize that our statutory authority and cases similarly indicate
that absence of consent is not an element of the crime of CSP. See NMSA 1978, § 30-
9-10(A) (2005) (stating that “[p]hysical or verbal resistance of the victim is not an
element of force or coercion” under the sex crimes statutes); see also Jensen, 2005-
NMCA-113, ¶ 19 (recognizing that “our cases have long held that absence of consent
is not an element of the crime of CSP”); State v. Gillette, 102 N.M. 695, 697-98, 700,
699 P.2d 626, 628-29, 631 (Ct. App. 1985) (recognizing that lack of consent is not an

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element of CSP II in a case involving a twelve-year-old victim). Having recognized
that absence of consent is not an essential element of CSP, we similarly decline to
expand the definition of unlawfulness related to charges of CSP to include absence of
consent as an essential element. As a result, the State properly excluded the “without
consent” language from the definition of unlawfulness in this case, as set forth in the
CSP IV and CSP II instructions to the grand jury. 	See State v. Augustin M., 2003-
NMCA-065, ¶¶ 16, 19, 133 N.M. 636, 68 P.3d 182 (recognizing that the prosecution
is required to instruct the grand jury regarding the elements of the offense, but not
possible defenses that a defendant may raise).
{16} 	Consequently, we hold that the State properly excluded the “without consent”
language from the grand jury instruction defining “unlawfulness” because Victim’s
consent or lack thereof is legally irrelevant to the unlawfulness element of both CSP
II and CSP IV.
Uniform Jury Instruction Defining “Unlawfulness”
{17} 	We briefly address Defendant’s argument that the “without consent” language
was required because it “is clearly part of the jury instruction setting forth the meaning
of unlawfulness.” UJI 14-132 provides a definition of “unlawfulness” for offenses
that include the term “unlawful” in defining the offense, including certain assault and
battery offenses, sex offenses, and false imprisonment or kidnapping offenses. See
UJI 14-132 n.1. UJI 14-132 defines “unlawfulness” as follows:

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For the act to have been unlawful it must have been done [without
consent and]:
[with the intent to arouse or gratify sexual desire]
[or]
[to intrude upon the bodily integrity or personal safety of _________
(name of victim)]
[or]
[________ (other unlawful purpose)].
_____________ (name of offense) does not include a [touching]
[penetration] [confinement] [________ (relevant act)] for purposes of
[reasonable 	medical 	treatment] 	[nonabusive 	(parental 	care) 	(or)
(custodial care)] [lawful arrest, search or confinement] [________ (other
lawful purpose)].
(Alterations in original).
{18} 	We conclude that nothing in UJI 14-132 requires the bracketed “without
consent” language to be included in defining the unlawfulness of CSP II or CSP IV
where the alleged victim is a statutorily defined child. The use notes clearly indicate
that the bracketed alternatives are not applicable to every case. See UJI 14-132 n.1
(“The examples suggested in the bracketed language have been taken from controlling
cases addressing particular offenses and are not applicable to every case.”). The use
notes further clarify that “[o]ne or more of the three [bracketed] alternatives may be
given without the bracketed ‘without consent and’.” UJI 14-132 n.3. Here, the State
defined unlawfulness using the three bracketed alternatives in UJI 14-132, specifying

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that for the act to be unlawful, “it must have been done with the intent to arouse or
gratify sexual desire[,] or to intrude on the bodily integrity or personal safety of the
[v]ictim[,] or for some other unlawful purpose.” Additionally, the State instructed the
grand jury that lawful purposes such as “a penetration for purposes of reasonable
medical treatment, non-abusive parental or custodial care, [or] lawful arrest or
confinement” were not included in the definition of the CSP offenses. However, as
previously discussed, the State properly excluded the “without consent” language
since it is legally irrelevant to both CSP II and CSP IV involving a statutorily defined
child victim. As a result, we conclude that the State properly instructed the grand jury
regarding 	the 	definition 	of 	unlawfulness 	by 	using 	the 	appropriate 	bracketed
alternatives set forth in UJI 14-132.
The District Court’s Reliance on Jensen
{19} 	Finally, we briefly address the district court’s reliance on Jensen, 2005-NMCA-
113, ¶ 21, to conclude that our Supreme Court had approved the defense of consent
for CSP cases filed after January 20, 2005. We first note that the issue in Jensen was
whether the defendant received ineffective assistance of counsel, not whether the
defendant was entitled to a jury instruction regarding consent. 	Id. 	¶¶ 17-18; see
Fernandez v. Farmers Ins. Co. of Ariz., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993)
(“[C]ases are not authority for propositions not considered.” (internal quotation marks
and citation omitted)). We further note that Jensen recognized that pursuant to our

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case law and statute, “absence of consent is not an element of the crime of CSP.”
2005-NMCA-113, ¶ 19. Finally, we recognize that Jensen is distinguishable because
it addressed whether consent was a defense in a CSP case where the alleged victim
was the adult wife of the defendant, rather than whether absence of consent was
required to be included in defining the essential elements of CSP involving a child
victim as in the present case. Id. ¶¶ 1, 22. As a result, we conclude that the district
court erred in determining that the “without consent” language was required to be
included in the definition of unlawfulness for CSP II and CSP IV in a case involving
an alleged victim that was a statutorily defined child.
CONCLUSION
{20} 	For the foregoing reasons, we reverse the district court’s order dismissing
Counts I, V, and VI of Defendant’s indictment, and we remand for further proceedings
consistent with this Opinion.
{21} 	IT IS SO ORDERED.
__________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
_____________________________
JONATHAN B. SUTIN, Judge

CYNTHIA A. FRY, Judge
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