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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

umber: Court of Appeals of New Mexico

Filed 4/1/2020 10:55 AM

Filing Date: April 1, 2020

NO. A-1-CA-36469

STATE OF NEW MEXICO,

Plaintiff-Appellee,

JOSEPH APODACA,

Defendant-Appellant

M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM

for Appellee

The Law Office of Ryan J. Villa

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Ryan J. Villa
Richelle Anderson
Albuquerque, NM

for Appellant

OPINION

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3 Defendant Joseph Apodaca appeals his conviction of two counts of first-

degree criminal sexual penetration resulting in great bodily harm or great mental

count of tampering with evidence, contrary to NMSA 1978, Section 30-22-5(B)(1)

(2003). For the reasons that follow, we conclude that the district court erred by

refusing to instruct the jury on Defendant’s mistake of fact defense. Accordingly,

we reverse Defendant’s convictions and remand for a new trial. Additionally,

because it is likely to reoccur on remand, we also address Defendant’s bifurcation

argument and conclude that bifurcation is not required by the Criminal Sentencing

Act or the United States Constitution.

BACKGROUND

23 Defendant and Victim were middle school acquaintances who reconnected via

Facebook in March 2014. On May 28, 2014, Victim drove from her home in

Phoenix, Arizona, to Belen, New Mexico, to visit her family. Victim agreed to meet

Defendant and his cousin, Dustin Leake, the next evening in Albuquerque, New

Mexico. Defendant and Leake drove from Grants, New Mexico, to Albuquerque to

meet Victim.

33 Atapproximately 9:48 p.m., Defendant and Leake arrived in Albuquerque and

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parked in a parking lot behind the Lotus Nightclub (Lotus). Defendant and Leake

beers while driving to Albuquerque and waiting for Victim to arrive. Victim arrived

shortly thereafter and, according to disputed testimony, either drank an entire

miniature bottle of alcohol or half of a miniature bottle of alcohol, with Defendant

drinking the other half. The three went into Lotus at approximately 10:00 p.m. and

went upstairs where alcohol was served.

{4} Once inside, each consumed approximately three to five rounds of drinks

consisting of shots, beers, and mixed drinks. At some point, Defendant offered to

hold Victim’s car keys for her because she had left her purse in her car. Victim

recalled drinking the first three shots and giving her keys to Defendant but had no

memory of any subsequent events that evening.

{5} Defendant and Leake testified that after the first four drinks, Victim and

Defendant were kissing and holding hands. About an hour and a half after arriving

at Lotus, Leake told Defendant and Victim to “go outside” and gave Defendant the

keys to his truck. According to Leake, Defendant and Victim did not linger after he

gave Defendant his keys, instead they got up and left. Defendant admitted that he

was drunk when they left Lotus. Defendant testified that Victim “must have been

feeling good, too[.]” However, Defendant further testified that Victim “was talking

alright” and was able to walk out of Lotus unassisted, which Defendant said required

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Victim to cross two dance floors and navigate twenty-five to thirty stairs. Defendant

stated that he was not concerned about Victim

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bouncer at Lotus testified that that he did not recall any member of the staff escorting

anyone out for being overly intoxicated on the night in question.

{6} _ Defendant testified to the following: Once outside, Defendant and Victim had

sex in the back seat of Leake’s truck. Defendant “pulled [Victim’s] shorts off” and

they started to engage in penile-vaginal intercourse and oral sex. Victim then began

inserting her own fingers into her anus, and Defendant “helped her” by penetrating

Victim vaginally and anally with his fingers. Defendant penetrated Victim vaginally

with all five fingers just past his knuckles in the shape of a “duckbill.” After doing

this, he anally penetrated Victim with four fingers. Defendant believed Victim was

participating and enjoying herself because, throughout the sexual activity, Victim

repeatedly stated “more” and “harder” and “she never expressed that she wanted

[Defendant] to stop or anything like that.” Defendant stopped after Victim defecated.

He cleaned up using Victim’s shorts and then “threw [the shorts] in [the] dumpster.”

Victim “seemed like she was kind of embarrassed,” but she did not indicate or appear

as if she was in pain, suffered an injury, or needed medical attention. Although

Defendant did see some blood on the backseat of the truck and Victim’s legs, he

thought the source of the blood was from her menstrual cycle. Because Victim did

not have any shorts on, Defendant called Leake and told him to come outside.

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{3} Leake testified that when he got to his truck, he saw Defendant standing

aw OE

sitting in the rear

passenger seat. According to Leake, Victim was awake, conscious, talking without

slurred speech, and not exhibiting signs of pain. Leake testified there was blood

smeared on the rear seats as well as on Victim’s shirt and legs. Leake further testified

that Victim got out of the truck on her own and into the rear passenger seat of her

car.’ Defendant testified that Victim was wearing “[j]ust her shirt and whatever she

had on” at that time.

33 | According to both Defendant and Leake, Victim “was too drunk” to drive, so

they decided that Defendant would drive Victim back to Belen while Leake followed

in his truck. Defendant admitted he and Leake “were kind of racing, [they] were

going really fast, probably over a hundred[,|” and that they got to Belen in about

twenty minutes. Defendant testified that Victim was giving him oral sex and

attempted to climb onto his lap while he was driving on the freeway. Defendant then

testified that Victim was unable to give directions to her home after giving him

instructions on what exit to take from the freeway, and Defendant became lost in

Belen. At that point, Defendant testified he was “[k]ind of” concerned about

"At trial, various portions of Leake’s pretrial statements—sworn and

unsworn—were read into the record, including that Leake had previously told
officers that Defendant “loaded” the Victim into her car, he saw “a lot of blood,” he
said “this girl is bleeding a lot,” and that he told officers “it looks like [Victim] got

raped in the back of my truck.”

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Victim’s state of intoxication though he claimed he “wasn’t aware of her medical

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state.’ According to their testimony

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ing lo
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Belen to determine what to do. Because Victim was too drunk to place a call,

Defendant and Leake used her phone to call her father “so that he could come and

get her[.]”

49} Victim’s father testified that he received a call at 1:50 am. from Defendant

on Victim’s phone. During that phone call, Defendant indicated that he had Victim

but she did not know where she lived. Victim’s father agreed to meet them at a dirt

parking lot at the intersection of Main Street and Didier. Victim’s father asked them

to remain with Victim until he arrived, but they refused. Victim’s father testified that

he heard one of them say, “Dump her here, man. Let’s go. Let’s go.”

410} When Defendant and Leake believed Victim’s father was approximately five

minutes away,” they left in Leake’s truck, leaving Victim alone. Victim was found

by her father in an empty parking lot alone and bleeding in the passenger seat of her

car with only a top on. Blood was all over her legs, running down her legs, under her

shoes, and on the floor mat. There was also blood on the console, the passenger-side

headrest, and all over the passenger seat. Victim was unconscious, her eyes were

-Through the ongoing communication regarding their respective locations in
Belen, Defendant and Leake left when they believed Victim’s father was
approximately five minutes away.

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rolled back in her head, and her father was unable to wake her. Approximately ten

Officers responded quickly because a concerned citizen had already called to report

suspicious activity in the parking lot.

ai Officer Amanda Torres testified that upon seeing Victim _in_ the car

unconscious and breathing, she called for medical assistance. Officer Torres noted

Victim had blood on her arms and hands and “from her vaginal area all the way

down to her legs towards her feet.” Officer Torres attempted to wake Victim by

calling her name and shaking her shoulder, but Victim did not respond at first.

Officer Torres testified that, eventually, Victim opened her eyes, which “were kind

of rolling back in her head[,] and her head was bobbing back and forth.” Officer

Torres’s lapel camera was operating at the time and was later played for the jury.

412}, Paramedics then arrived, and with the assistance of Officer Torres, lifted

Victim out of the car, placed her onto a gurney, and into the ambulance. During the

ambulance ride, Victim was intermittently conscious but never really understood

what was happening. Paramedics were concerned that Victim might be in shock and

believed this was a life-threatening situation. When asked, Victim told the

paramedics that she was not in any pain; however, when the paramedic palpated

Victim’s abdomen, Victim said that it hurt. Victim was transported to the University

of New Mexico Hospital (UNMH) in Albuquerque for immediate care.

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413} Atthe hospital, doctors determined that, among other injuries, Victim suffered

opening of the vagina, nearly to the top”; two smaller tears to the vaginal wall; a

rupture of the anal sphincter; and a ten-centimeter, full-thickness* tear to the rectal

wall beginning at the anal sphincter. The two large tears were considered life-

threatening due to blood loss and risk of infection. During an initial emergency

operation, and because visualization of Victim’s vagina was so difficult due to it

being dilated and swollen, doctors sutured only the ten-centimeter tear to the vaginal

wall, performed vaginal packing,* and placed a colostomy bag to prevent infection

in the anal cavity. After the emergency operation, a sexual assault nurse examiner

(SANE) performed an examination and documented bruising to Victim’s lips and

back as well as abrasions to her nipples. The SANE examination also noted bruising,

swelling, and scraping to her left knee and shin. The initial blood collection,’ which

occurred at approximately 3:25 a.m., was tested for alcohol and revealed a Blood

Alcohol Content (BAC) of 0.18. At 11:45 a.m. the same day, the hospital drew blood

and found the BAC level to be 0.03. Victim spent fifteen days in the hospital and

3A full-thickness tear penetrates all the layers of the rectal wall to the
abdominal cavity. We recognize that there is a discrepancy in the record regarding
the extent of the rectal tear.

‘Vaginal packing entails placing cotton into the vaginal canal to keep the
wound open to allow drainage and assist healing.
>The blood sample was collected from one of the wound sites during treatment

in the emergency room.

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underwent various follow-up procedures, including treatment for infection caused

by_the—anal tear or inability to urinate (caused by extreme

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inflammation® to the bladder). Victim testified that she would never have consented

to the sexual activity Defendant described nor would she have consented to any

activity that resulted in the injuries she suffered

4; After leaving Victim, Defendant and Leake then drove back to Albuquerque

where they stopped at a restaurant to eat. At the restaurant, Leake saw blood on

Defendant’s hands, and Defendant told Leake that he had “fisted”’ Victim. Leake

became worried at that point that Victim was injured. After eating, Defendant and

Leake drove back to Grants. During the return drive, Leake told Defendant that he

“needs to save those text messages and everything because something is going to

come up.” The following afternoon Defendant texted Victim, “You okay??” and “I

hope so.” On the same day that he sent those text messages, Defendant also cleaned

the backseat of Leake’s truck with Windex and paper towels or a rag.

5} Defendant was charged with two counts of CSP, two counts of tampering with

evidence, one count of false imprisonment, and one count of larceny. The State also

alleged aggravating circumstances and requested enhanced sentencing pursuant to

°Described as “ruptured blood vessels, almost consistent with bruising

localized to that area.”
"Defendant clarified at trial that his use of the term “fisted” generally referred
to the use of his hand for penetration, not a specific positioning of the hand during

penetration.

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NMSA 1978, Section 31-18-15.1 (2009). In addition to Victim’s trial testimony, the

State presented testimony fro

nurse, a SANE, and three expert medical witnesses. All of the medical experts

testified to the rarity of Victim’s injuries and that the injuries were consistent with

nonconsensual sex. One of the medical experts, Dr. Daniel Sheridan, a forensic

examination and forensic wound expert, testified that the injuries to Victim’s vagina

could have resulted from penetration with Defendant’s hand in either a “fist”

position or a “duckbill” position. Dr. Sheridan further testified that the injuries to

Victim’s anus could have resulted from penetration with Defendant’s fingers only,

but that in his opinion the severity of the injuries were more consistent with the

penetration of Defendant’s hand, in either position.®

416} The State also presented testimony from two expert forensic toxicologists.

The first, Dr. Rong-Jen Hwang, estimated through a retrograde extrapolation that

Victim’s BAC at 1:00 a.m. could have been approximately 0.23. Dr. Hwang testified

that Victim’s BAC would have been higher at 1:00 a.m. than 2:00 a.m., if Victim

had stopped consuming alcohol at approximately 11:00 p.m. or midnight. The

second expert forensic toxicologist, Dr. Cynthia Morris-Kukoski, agreed.

73} Dr. Morris-Kukoski explained that according to the Dubowski Stages of

8Dr. Sheridan’s testimony was based upon his opinion that the anal tear began

deeper into the anus than the treating physicians testified.

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Acute Alcoholic Influence and Intoxication chart, a BAC of 0.23 could either place

Victim in the excited state-of intoxication

0.25, or the confused stage, where the BAC can range from 0.18 to 0.3. An individual

in the excited stage can exhibit symptoms of “loss of critical judgment, impaired

perception, memory, comprehension, decreased sensory response, impaired balance

and drowsiness.” Additionally, an individual can be blacked-out, yet lucid and

capable of complex tasks including “driving vehicles, going out and emptying out

their bank account.” During the confused stage, an individual can exhibit symptoms

of “disorient[ation], hav[ing] mental confusion, dizziness, hav[ing] an increased pain

threshold, increased muscle incoordination, slurred speech, apathy and lethargy.”

Dr. Morris-Kukoski saw indications in the lapel video that Victim was in the

confused stage at 2:00 a.m., including that “she was slumped over, . . . difficult to

‘arouse’ [sic] [, and w]Jhen she was talking, her speech was slurred.” Although no

expert was certain what phase she was in at the time of the sexual activity, all experts

agreed that Victim was in either the excited or the confused stage of intoxication.

4183 Victim testified that since her release from the hospital, she has undergone

two additional surgeries for removal of the colostomy bag and repair to her anal

sphincter. At the time of the trial, previous attempts to repair the anal sphincter had

been unsuccessful, and Victim did not possess complete control over her anal

sphincter, which affected her mental health and ability to work.

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t1i93 After presentation of the State’s evidence, the district court dismissed the false

imprisonment and larceny charges

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the case was that he did have sex with Victim, including the use of his hand to

penetrate Victim vaginally and anally; however, he believed she was capable of and

did consent to the sexual activity because she encouraged and participated in the

acts. Further, Defendant contended that he was unaware of Victim’s injuries or her

need for medical attention.

0} The jury found Defendant guilty of two counts of CSP and one count of

tampering with evidence. Additionally, the jury found the presence of seven

ageravating factors, which were set forth in separate special verdict forms. The

district court, however, did not apply an enhanced sentence and sentenced Defendant

to eighteen years for each count of CSP and three years for tampering with the

evidence. The CSP sentences are to be served consecutively, but concurrently with

the tampering with evidence sentence, for a total of thirty-six years of incarceration.

This appeal followed.

DISCUSSION

21; Defendant presents four arguments in this appeal: (1) the district court

violated statutory procedure and Defendant’s right to a fair trial when it refused to

bifurcate the guilt-innocence phase from the sentencing phase of trial; (2) the district

court erred as a matter of law in refusing to instruct the jury on Defendant’s mistake

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of fact defense as to both the CSP counts and the tampering with evidence count; (3)

the—district—court’s—admissio

testimony that Victim’s injuries were caused by nonconsensual sex invaded the

province of the jury and was reversible error; and (4) cumulative error deprived

Defendant of a fair trial

22}, Because we agree that the district court erred in refusing to instruct the jury

on Defendant’s mistake of fact defense, we address his instructional argument first.

While our conclusions on Defendant’s claimed instructional errors are dispositive of

this appeal, we also address whether bifurcation was required by the Criminal

Sentencing Act or the United States Constitution because this issue is likely to

reoccur on remand. We do not address Defendant’s remaining arguments.

I. Defendant’s Request for a Mistake of Fact Instruction

23} At trial, the State proceeded under two theories as to the CSP counts: (1)

Defendant had either used physical force or physical violence without the consent

of Victim; or (2) Victim did not have the capacity to consent, and Defendant knew

or had reason to know of her incapacity. Defendant proceeded on the theory that he

was mistaken regarding whether Victim could and did consent to the use of physical

force or physical violence. As such, Defendant tendered a mistake of fact instruction,

modeled after UJI 14-5120 NMRA.

o4; A confusing and muddled discussion followed Defendant’s tender of his

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proposed jury instruction. Ultimately, the district court declined to give the

instruction on mistake of fact because such an instruction would be duplicative of

the unlawfulness and elements instructions. The district court also found the

instruction was not applicable to the facts at hand with respect to the tampering with

evidence charge.

25} Defendant argues that the district court erred by refusing to instruct the jury

on Defendant’s mistake of fact defense as to both the CSP and tampering with

evidence counts. We begin by setting forth our standard of review. Next, we address

the State’s argument that Defendant abandoned or waived his request for a mistake

of fact instruction as to the use of physical force or physical violence as our

conclusion on this issue affects our scope of review. Finally, we analyze whether the

district court improperly denied Defendant’s mistake of fact instruction, first as to

the CSP counts and then as to the tampering with evidence counts.

A. Standard of Review

26} “The propriety of jury instructions is a mixed question of law and fact.” State

v. Romero, 2005-NMCA-060, § 8, 137 N.M. 456, 112 P.3d 1113. “When considering

a defendant’s requested instructions, we view the evidence in the light most

favorable to the giving of the requested instruction.” /d. “Viewing the facts in that

manner, we review the issue de novo.” State v. Contreras, 2007-NMCA-119, 4 8,

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142 N.M. 518, 167 P.3d 966. “When evidence at trial supports the giving of an

error.” State v. Brown, 1996-NMSC-073, § 34, 122 N.M. 724, 931 P.2d 69.

Furthermore, even when a defendant has “offered an inadequate instruction on

mistake of fact,” this Court must reverse the defendant’s conviction under the

doctrine of fundamental error when the defendant “introduced evidence that would

allow the jury to acquit under a correct statement of the law.” State v. Bunce, 1993-

NMSC-057, 415, 116 N.M. 284, 861 P.2d 965.

27 “Mistake of fact is a defense when it negates the existence of the mental state

essential to the crime charged.” Contreras, 2007-NMCA-119, § 15 (internal

quotation marks and citation omitted). “The [district] court need not give a mistake

of fact instruction where the intent element of the crime is adequately defined by the

other instructions given by the [district] court.” /d. (alteration, internal quotation

marks, and citation omitted); see Bunce, 1993-NMSC-057, § 10 (“The critical

inquiry is whether the instructions as given adequately define the intent necessary to

convict[.|”). While “[t]he defense of mistake of fact also requires the defendant’s

mistake to be honest and reasonable[,]” such a determination “should, generally, be

a question for the jury.” Contreras, 2007-NMCA-119, 4 12.

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B. Defendant Did Not Abandon or Waive His Request for a Mistake of Fact
Instruction as to the Use of Physical Force or Physical Violence

28} Following the district court’s denial of his request for mistake of fact

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instruction, counsel for Defendant objected and, as to the CSP charge, stated, “I think

irmative defense as to the forced sexual encounter, I agree

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with the [district cJourt’s analysis with regard to mistake of fact[.]” The State

contends this statement amounted to a waiver of the issue regarding CSP based on

the use of physical force. While this statement alone could be interpreted as a waiver

of the issue, the context of the statement and overall discussion of the issue do not

support that conclusion.

9: When the statement is reviewed in context, it appears that Defendant was

clarifying and agreeing with the district court that a mistake defense is an affirmative

defense. Additionally, Defendant used the mistake theory during closing, which the

State objected to and the district court allowed because it had ruled that the

unlawfulness and elements instruction included mistake. For these reasons, we

decline the State’s invitation to conclude that a single, out-of-context statement that

was made in the middle of a discussion amounts to an express or implied waiver or

abandonment of the issue.

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C. =‘ The District Court Erred in Denying Defendant’s Request for a Mistake
of Fact Instruction as to the CSP Counts

430} [he jury was instructed that the State must prove the following elements

beyond a reasonable doubt for the jury to find Defendant guilty of CSP:

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1. [D]efendant caused the insertion, to any extent, of his hand into the
[vagina (Count 1) or anus (Count 2)] of [Victim];

1 2. [D]efendant used physical force or physical violence; or [Victim]
2 was unconscious, asleep, physically helpless, or suffering from a
3 mental condition so_as to be incapable of understanding the nature
4 or consequences of what [D]efendant was doing; and [D]efendant
5 knew or had reason to know of the condition of | Victim];
6 3. [D]efendant’s acts resulted in great bodily harm or great mental
7 anguish to [ Victim];
8 4. [D]efendant’s act was unlawful;
9 5. This happened in New Mexico on or between May 29th through
10 May 30th, 2014.
11 See UJL 14-958 NMRA; UJI 14-960 NMRA. As to the fourth element—
12} unlawfulness—the jury was also instructed as follows:
13 In addition to the other elements of [CSP] as charged in Counts
14 1 and 2, the [S]tate must prove beyond a reasonable doubt that the act
15 was unlawful.
16 For the act to have been unlawful it must have been without
17 consent and with the intent to arouse or gratify sexual desire or to
18 intrude upon the bodily integrity or personal safety of [ Victim].
19 [CSP] causing great bodily harm or great mental anguish does
20 not include a penetration of the vagina or anus for purposes of
21 consensual activity.
22\| See UJI 14-132 NMRA. Within the framework of these instructions, it 1s clear that
23] the State presented two theories to the jury on the CSP counts: (1) Defendant used
24| physical force or physical violence without Defendant’s consent; or (2) Defendant
25] knew or had reason to know that Victim did not have the capacity to consent. We
26] understand Defendant to be arguing that a mistake of fact instruction should have

1} been given based on both theories, and we therefore address the propriety of the
2\instruction under each theory

313, Under the State’s first theory, Defendant could be convicted of CSP if the jury

concluded that Victim did not consent to the use of physical force or physical

violence. Under the facts and circumstances of this case, the jury could reach that

conclusion in two ways: (1) by concluding that Victim had the capacity to consent

but did not consent to the use of physical force or physical violence; or (2) by

concluding that Victim did not have the capacity to consent and therefore could not

consent to the use of physical force or physical violence.

32}, The unlawfulness instruction requires the jury to consider the evidence from

an objective standpoint to determine whether Victim consented to the use of physical

force or physical violence. It does not require the jury to consider whether Defendant

knew or had reason to know of any incapacity that Victim may have been suffering

from or whether Defendant reasonably believed Victim consented to the use of

physical force or physical violence. See 65 Am. Jur. 2d Rape § 84 (2020) (“The

consent defense differs from the reasonable belief in consent defense. Where the

defendant claims the victim consented, the jury must weigh the evidence and decide

which of the two witnesses is telling the truth. The defense of a reasonable belief in

consent, by contrast, permits the jury to conclude that both the victim and the

accused are telling the truth. The jury will first consider the victim’s state of mind

and decide whether she consented to the alleged acts. If she did not consent, the jury
will view the events from the defendant’s perspective to determine whether the
manner in which the victim expressed her lack of consent was so equivocal as to
cause the accused to assume that she consented where, in fact, she did not. The
foundation for the reasonable belief in consent defense is evidence from which the
jury could conclude the defendant acted under a mistake of fact[.]”). Failure to
instruct the jury to consider Defendant’s subjective knowledge would create an issue
if the jury finds that Victim did not have the capacity to consent and therefore could
not consent to the use of physical force or physical violence. We explain.

3} When only the unlawfulness instruction is given, the jury could convict
Defendant of CSP even if it found that Defendant honestly and reasonably but
mistakenly believed that Victim consented to the use of physical force or physical
violence. However, Defendant’s mistaken belief would negate the intent necessary
to convict Defendant for using physical force or physical violence to penetrate a
person who did not have the capacity to consent. See Contreras, 2007-NMCA-119,
q 15 (“Mistake of fact is a defense when it negates the existence of the mental state
essential to the crime charged.” (internal quotation marks and citation omitted)).
Accordingly, Defendant was entitled to an instruction on his mistake of fact defense
if the evidence presented at trial supported such an instruction. See Brown, 1996-

NMSC-073, 4 34 (“When evidence at trial supports the giving of an instruction on a

defendant’s theory of the case, failure to so instruct is reversible error.”). When we
view the evidence in the light most favorable to giving the instruction, as we must,
see Romero, 2005-NMCA-060, § 8, we conclude that evidence presented at trial
supported giving the instruction on Defendant’s mistake of fact defense.

4} The trial evidence suggested the following: Victim could drink a lot and not
feel the effects that somebody else might. Victim “was talking alright” and was able
to walk out of Lotus unassisted, which required her to cross two dance floors and
navigate twenty-five to thirty stairs. The bouncer at Lotus did not recall having to
escort any person for being overly intoxicated on the night in question. Once
Defendant and Victim were outside of Lotus and engaged in sexual activity in the
backseat of Leake’s truck, Victim repeatedly stated “more” and “harder” throughout
the sexual activity. Victim was putting her fingers into her own anus during the
sexual activity. Victim expressed enjoyment and did not express “that she wanted
[Defendant] to stop or anything like that.” Victim never lost consciousness nor did
she state that she was in pain.

35} Additionally, expert testimony presented at trial suggested the following:
During the sexual activity that caused her injuries, Victim may have been in the
excited stage of intoxication, in which an individual can exhibit symptoms including
“loss of critical judgment, impaired perception, memory, comprehension, decreased

sensory response, impaired balance and drowsiness.” A person can be blacked-out,

yet lucid and capable of complex tasks including “driving vehicles, going out and
emptying out their bank account.”

36; Based on that evidence, we conclude that Defendant was entitled to mistake
of fact instruction under the State’s first theory—that Defendant used physical force
or physical violence without Victim’s consent. Whether Defendant’s mistake of fact
was honest and reasonable at the time of the use of physical force or physical
violence was a question for the jury. See Contreras, 2007-NMCA-119, § 12. Because
the district court did not give a mistake of fact instruction, it committed reversible
error. See Brown, 1996-NMSC-073, { 34.

37} We reach the opposite conclusion as to the State’s second theory—that
Defendant knew or had reason to know that Victim did not have the capacity to
consent—because the instructions given as to this theory adequately define the intent
necessary to convict. To obtain a conviction under this theory, the State was required
to prove, in relevant part, that (1) Victim was incapacitated so as to be unable to
consent; and (2) Defendant knew or had reason to know of Victim’s incapacity.
Giving Defendant’s mistake of fact instruction, which asks the jury to consider
whether Defendant was honestly and reasonably mistaken that Victim had the
capacity to consent and did consent, would essentially be a restatement of what the
instruction on this theory already tells the jury: If Defendant did not know or have

reason to know of Victim’s incapacity, the jury must find him not guilty under this

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theory. Therefore, we conclude that Defendant was not entitled to a mistake of fact
instruction under the State’s second theory. See Bunce, 1993-NMSC-057, 4 10;
Contreras, 2007-NMCA-119, 4 15. Accordingly, the district court did not err by
denying the instruction.

38} For the foregoing reasons, we reverse Defendant’s two CSP convictions and
remand for a new trial on the same. As a final point on this issue, we note that our

conclusion should not be read as addressing whether the mistake of fact instruction

‘tendered by Defendant was an accurate statement of applicable law. That issue is not

before us. Further, our disposition of the issues in this appeal does not require us to.
address the propriety of the tendered instruction because, under these facts and
circumstances, a properly instructed jury could have reasonably acquitted Defendant
based on the evidence presented relevant to Defendant’s mistaken belief that Victim
had the capacity to consent. Therefore, even if Defendant’s mistake of fact
instruction is an improper statement of the law, we would still be compelled to
reverse these convictions and remand for a new trial under the doctrine of
fundamental error. See Bunce, 1993-NMSC-057, 4 15.

D. The Mistake of Fact as to Consent Was Improperly Denied as to
Tampering With Evidence

39} The jury was instructed that the State must prove the following elements
beyond a reasonable doubt to find Defendant guilty of tampering with evidence:

1. [D]efendant destroyed, changed, or hid blood evidence by cleaning

10
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12
13
14
15
16
17
18
19
20

... Leake’s vehicle;

2. By doing so, [D]efendant intended to prevent the apprehension,
prosecution, or conviction of himself for the crime of [CSP];

3. This happened in New Mexico on or between May 29th through
May 30th, 2014.

See UJI 14-2241 NMRA. Defendant argues that his belief that Victim had the
capacity to consent and did consent to the sexual activity entitles him to a mistake
of fact instruction on the tampering with evidence count as well. We agree.

{40} Under the facts and circumstances presented in this case, Defendant’s
arguments as to mistake of fact are relevant to both the CSP counts and the tampering
counts. If the jury were to conclude that Defendant, at the time that he cleaned
Leake’s truck, had an honest and reasonable belief that Victim had the capacity to
consent and did consent to his actions, the jury could also reasonably conclude
Defendant necessarily lacked the intent necessary to convict him for tampering with
evidence. For that reason, we conclude that Defendant was entitled to the mistake of
fact instruction as to the tampering with evidence count. Accordingly, it was
reversible error for the district court to not instruct on Defendant’s mistake of fact
defense as to the tampering with evidence charge, and we remand for a new trial on
that count. See Brown, 1996-NMSC-073, ¥ 34.

41} In reaching our conclusion, we note, as did the State, that there was additional

evidence presented about what occurred after Defendant and Victim’s sexual activity

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at Lotus but before he cleaned Leake’s truck. Specifically, the State directs our

attention to testimony that Leake told Defendant that Defendant “needs to save those

text messages and everything because something is going to come up.” However, to

consider evidence that undercuts giving the instruction would be inapposite to our

standard of review, which requires us to view the evidence in the light most favorable

to giving the instruction. See Romero, 2005-NMCA-060, § 8. Instead, such evidence

can be properly considered by the jury when they are making their determination of

whether Defendant’s mistake of fact was honest and reasonable at the time that he

cleaned Leake’s vehicle. See Contreras, 2007-NMCA-119, § 12. Finally, as we fully

explained in the previous section, our conclusion should not be read as addressing

whether the mistake of fact instruction tendered by Defendant was an accurate

statement of applicable law.

13
14

Il. The Criminal Sentencing Act Does Not Require Bifurcation and
Bifurcation Is Not Constitutionally Required

423}. Defendant argues the district court violated the statutory procedure of the

Criminal Sentencing Act (the Act), specifically the procedure set forth in Section

31-18-15.1, and his nght to a fair trial by denying his request to bifurcate the

determination of guilt from the determination of aggravating circumstances. Our

analysis on this point proceeds in two parts. First, we explain that the Act does not

require bifurcation. Second, we explain that bifurcation is not constitutionally

required.

INO

A. The Act Does Not Require Bifurcation

{43} Whether_or_not the Act—re

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construction. We review matters of statutory construction de novo. State v. Johnson,

2009-NMSC-049, 4.9, 147 N.M. 177, 218 P.3d 863. “The principal command of

statutory construction is that the court should determine and effectuate the intent of

the [L]legislature using the plain language of the statute as the primary indicator of

legislative intent[.]” State v. Ogden, 1994-NMSC-029, § 24, 118 N.M. 234, 880 P.2d

845 (citation omitted). When not defined by the statute, words “should be given their

ordinary meaning absent clear and express legislative intention to the contrary.” /d.

44 Additionally, “statutes in pari materia should be read together to ascertain

legislative intent.” /d. § 28. In other words, “[s|tatutes on the same general subject

should be construed by reference to each other” as a similar statute with clearer

legislative intent may illuminate an otherwise unclear statute. /d. “These rules also

promote consistency in judicial interpretation of similar statutes.” /d.

445} Defendant argues that the Act requires a determination of a defendant’s guilt

or innocence before the jury can consider whether the crime included aggravating

circumstances. Defendant cites specifically to Section 38-18-15 (A), (B), and (E) for

the proposition that the Legislature intended to require a bifurcated proceeding.

46} The Act provides:

A. The court shall hold a sentencing hearing to determine if

mitigating or aggravating circumstances exist and take whatever

1 evidence or statements it deems will aid it in reaching a decision to alter
2 a basic sentence. The judge may alter the basic sentence as prescribed
3 in [NMSA 1978,] Section 31-18-15 [(2019)] upon:

L 24 EX 74 F

4 (1) a finding by the judge of any mitigating circumstances

5 surrounding the offense or concerning the offender; or

6 (2) a finding by a jury or by the judge beyond a reasonable

7 doubt of any aggravating circumstances surrounding the offense or

8 concerning the offender.

9 B. When the determination of guilt or innocence for the
10 underlying offense is made by a jury, the original trial jury shall
11 determine whether aggravating circumstances exist.

13 E. — Presentation of evidence or statements regarding an

14 alleged aggravating circumstance shall be made as soon as practicable

15 following the determination of guilt or innocence.

16]| Section 31-18-15.1 (emphases added). We review the plain language of each of these

subsections in turn.

47; Subsection A provides that the court “shall hold a sentencing hearing to

determine if mitigating or aggravating circumstances exist.” Defendant argues that

a “sentencing hearing” is a separate and distinct proceeding from trial requiring

bifurcation. We disagree. This Court has previously determined that, while a

sentencing hearing 1s mandatory, it does not necessarily require a separate

proceeding. State v. Tomlinson, 1982-NMCA-025, Jf 11-15, 98 N.M. 337, 648 P.2d

795. Rather, “[a] hearing involves listening to facts and evidence for the sake of

adjudication” and “includes every step where the judge is called to rule for or against

—

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a party to the cause.” /d. § 13 (internal quotation marks and citation omitted). In

Tomlinson, we-concluded_that_it-was-si

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determination at the bench where the judge had heard the evidence in the case, found

mitigating and aggravating circumstances, and allowed the defendant an opportunity

to_add to the judge’s enumeration of mitigating considerations. Jd 413, 15. While

Tomlinson was determined prior to the requirement that juries find aggravating

circumstances, it 1s persuasive authority that the sentencing hearing need not be a

separate proceeding. See § 31-18-15.1 (1979) (providing the judge determines

mitigating and aggravating circumstances as well as final sentencing).

483 The Act embodies two policies: (1) that the defendant is given the opportunity

to present mitigating considerations, and (2) that the district court is given the

opportunity to hear “whatever evidence or statements it deems will aid it in reaching

a decision.” Zomlison, 1982-NMCA-025, 4 14 (internal quotation marks omitted).

Concerning the first policy, the Act makes clear that a jury has to determine

aggravating facts beyond a reasonable doubt; however, it does not require this be

done during the same proceeding as the final sentencing determination. See § 31-18-

15.1(A)(2). The statute also does not allow the jury to determine mitigating

circumstances or determine the final sentence; those decisions are reserved for the

judge. See § 31-18-I5.1(A). We conclude that allowing the jury to determine

ageravating circumstances prior to the judge’s determination of mitigating

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circumstances and final judgment does not deprive the defendant of the opportunity

to_presen
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opportunity before final sentencing.

{49} With regard to the second policy, denial of bifurcation does not necessarily

deny the defendant the opportunity to present evidence or statements to the district

court. See § 31-18-15.1(E). If the facts are already admissible in the trial on the

underlying offense, the defendant is free to present mitigating or exculpatory

evidence and to argue the evidence does not support the asserted aggravating facts.

Indeed, this is likely a commonly used defensive tactic. We recognize there may be

instances where bifurcation is necessary, such as where otherwise inadmissible

evidence proves the aggravating circumstances, or where the defendant wishes to

invoke his right against self-incrimination at trial but wants to address the jury

regarding aggravating circumstances.’ In these instances and possibly others,

°A review of the six statutes upon which our statute was based revealed only
two instances in which bifurcation is described as necessary under the statute: where
otherwise inadmissible facts would be necessary to prove aggravation and where it

would unfairly prejudice Defendant. See Fiscal Impact Report for H.B. 208, Proof
of Aggravating Circumstances Standards, 49th Leg., Ist Sess. (N.M. 2009), at 3,
available at https://www.nmlegis.gov/Sessions/09%20Regular/firs/HB0208 pdf

(noting that the approach adopted by “the New Mexico Sentencing Commission has
already been enacted in the following states: Kansas, Arizona, Minnesota, North
Carolina, Oregon, and Washington”); Kan. Stat. Ann. §§ 21-6815 (West 2019), 21-

6817 (West 2019); Minn. Stat. Ann. § 244.10(5)(b) (West 2009); Or. Rev. Stat. Ann.
§ 136.770(4) (West 2005); Wash. Rev. Code Ann. § 9.94A.537 (West 2007); but see
Ariz. Rev. Stat. Ann. § 13-701 (2018) (silent as to bifurcation); N.C. Gen. Stat. Ann.

§ 1SA-1340.16(al) (West 2015) (bifurcation allowed where justice requires it).

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bifurcation may be required to prevent constitutional violations or prejudice to the

to require bifurcation in all cases; rather, this section was intended to allow

bifurcation when necessary. See Ogden, 1994-NMSC-029, §] 27 (holding that strict

construction does not require the narrowest interpretation but rather a “reasonable or

common]-]sense construction consonant with the objects of the legislation, and the

evils sought to be overcome’”’).

6503} Subsection B provides that the original jury, if one was impaneled for guilt,

shall determine whether there are aggravating circumstances. This section is at best

silent regarding bifurcation because the jury could either determine aggravating facts

at the same time as guilt or be called back for a separate proceeding. We will not

read language requiring bifurcation into the statute. See State v. Chadwick-McNally,

2018-NMSC-018, § 21, 414 P.3d 326 (“We do not read language into the Act that is

not there.” (internal quotation marks and citation omitted)). We therefore hold that

this subsection neither requires nor prohibits bifurcation.

513, Subsection E provides that “[p]resentation of evidence or statements

regarding an alleged aggravating circumstance shall be made as soon as practicable

Additionally, the only states reviewed that statutorily require bifurcation for all
criminal cases are states where juries determine not only the presence of aggravating
facts, but also the final sentence. See Tex. Code Crim. Proc. Ann. art. 37.07 (West

2019); Va. R. S. Ct. Rule 3A:17.1 (West 2012).

INO

following the determination of guilt[.]’” Defendant argues that to interpret the Act to

Inv’rs Life Ins. Co., 1983-NMSC-082, 4 12, 100 N.M. 370, 671 P.2d 31 (“Statutes

must be construed so that no part of the statute is rendered surplusage or

superfluous.”). However, this subsection does not require presentation of additional

evidence or statements. Rather, it only applies where there is additional evidence or

statements regarding alleged aggravating circumstances that would not otherwise be

admissible at trial. In short, interpreting the Act as permissive, rather than

mandatory, does not render this subsection superfluous.

52}, Defendant then argues that these subsections, when read _ together,

demonstrate clear Legislative intent to require a bifurcated proceeding. Because

there is no express requirement to bifurcate, we examine whether Legislative history,

purpose, or policy supports mandatory bifurcation.

53}, The previous version of the Act did not address bifurcation at all. See § 31-

18-15.1 (1979). The Legislature then amended the Act to conform to the

constitutional requirement that a jury find aggravating factors. See H.B. 208, 49th

Leg., Ist Sess. (N.M. 2009), available at https:/‘www.nmlegis.gov/Sessions/

09%20Regular/final/HB0208 pdf; State v. Hrawley, 2007-NMSC-057, 4 23, 143

es = re

N.M. 7, 172 P.3d 144 (citing Cunningham vy. Cal., 549 U.S. 270 (2007) and holding

the Capital Felony Sentencing Act (CFSA), NMSA 1978, §§ 31-20A-1 to -6

INO

(repealed 2009), was unconstitutional because “the Sixth Amendment is violated any

time_a defendant 1s sentenced_a

alone”), superseded by statute as recognized by State vy. Oliver, 2020-NMSC-002,

4 19, 465 P.3d 1065. In the same legislative session, the Legislature amended the

CFESA, by repealing the death penalty, and in so doing, repealing a guarantee of

separate, bifurcated guilt and sentencing proceedings for death penalty

determinations. See H.B. 285, 49th Leg., Ist Sess. (N.M. 2009), available at

McNally, 2018-NMSC-018, § 9 (citing the CFSA)).!°

54} The simultaneous repeal of express bifurcation requirements from one

sentencing statute and the omission of similar language in another sentencing statute

indicates that the Legislature did not intend to make bifurcation mandatory. The

Legislature knew how to write a mandatory requirement and chose not to. See § 31-

20A-1 (1979, repealed 2009). Had the Legislature intended to require bifurcation,

'0T non a verdict by the jury or judge that the defendant is guilty of a capital
felony, or upon a plea of guilty to a capital felony, the court shall conduct a separate
sentencing proceeding to determine whether the defendant should be sentenced to

death or life imprisonment as authorized herein. In a jury trial, the sentencing
proceeding shall be conducted as soon as practicable by the original trial judge
before the original trial jury. In a nonjury trial the sentencing proceeding shall be

conducted as soon as practicable by the original trial judge. In the case of a plea of
guilty to a capital felony, the sentencing proceeding shall be conducted as soon as
practicable by the original trial judge or by a jury upon demand of a party.” NMSA

1978, § 31-20A-1(B) (1979, repealed 2009).

INO

surely they would have used the phrase “a separate sentencing proceeding” as they

had in the prior CFSA. Section 31-20A-1(B) (1979

= tk os OVE EL

55} Additionally, the express language was removed from the CFSA (a more

specific statute regarding more serious crimes), and omitted from the CSA (a general

statute regarding sentencing for all crimes from misdemeanors to first-degree

felonies). Since the repeal of Section 31-20A-1, our Supreme Court has held that the

CFSA is permissive regarding bifurcation for the finding of aggravating

circumstances warranting a sentence of life without parole. Chadwick-McNally,

2018-NMSC-018, 4 21. It would be inconsistent for this Court to determine that the

general statute requires bifurcation while the specific statute does not. A more

rational and common-sense interpretation of the Act would be that bifurcation is

permissive. See Ogden, 1994-NMSC-029, § 27.

56} We conclude that the decision to bifurcate proceedings is not mandatory but

must be made on a case-by-case basis and at the discretion of the district court.

B. There Is No Constitutional Requirement to Bifurcate

7 To the extent Defendant contends the Fourth and Fourteenth Amendments to

the United States Constitution require bifurcation, we reject this argument. We

review issues of constitutionality de novo. State v. Sanchez, 2015-NMSC-018, 4 9,

350 P3d 1169 (lf a constitutional provision applies, claims arising under it are...

reviewed de novo.”’). Defendant does not cite a single case supporting the notion that

INO

bifurcation is constitutionally required in every case, nor do we find any. See Jn re

Adoption of Doe, 1984-NMSC-024, 42, 100 N.M. 764,676 P.2d 1329 (holdin

Z Ta NAVAS i)

where a party cites no authority to support a proposition, we assume no such

authority exists and need not consider the proposition); State v. Duttle, 2017-

NMCA-001, 415, 387 P.3d 885 (“For this Court to rule on an inadequately briefed

constitutional issue would essentially require it to do the work on behalf of [the

djefendant.”). In fact, our Supreme Court in Chadwick-McNally declined “to require

or permit bifurcated proceedings as a matter of course absent clear directive from

the Constitution” when interpreting the CFSA. 2018-NMSC-018, 4 21 (internal

quotation marks and citation omitted); see also, McGautha v. California, 402 US.

183, 219-20 (1971) (holding that the defendant’s constitutional rights were not

infringed by jury’s determination of guilt and penalty after single trial and single

verdict), vacated on other grounds by Crampton y. Ohio, 408 U.S. 941 (1972);

United States v. Taylor, 635 F. Supp. 2d 1236, 1241 (D.N.M. 2009) (“The

Constitution permits a jury to consider both guilt and capital punishment at the same

time.”); United States v. Johnson, 362 F. Supp. 2d 1043, 1103 (N.D. Iowa 2005)

(noting that the Constitution only requires any aggravating factor, without which the

death penalty cannot be imposed, be proved to a jury beyond a reasonable doubt).

Finding no case law to the contrary, we hold that, while individual cases may

implicate constitutional concerns, there is no constitutional mandate of bifurcation

in every case.

2| CONCLUSION
3] 583 We reverse Defendant’s convictions for two counts of CSP and one count of
4] tampering with evidence and remand for a new trial on those counts. Additionally,
5] we hold that the Criminal Sentencing Act does not require bifurcation and that
6] bifurcation is not constitutionally required.
71593 ITISSO ORDERED.
9 KRISTINA aoe RDUS, Judge

10] I CONCUR:

Ta pyre nee cons

12] BRIANA H. ZA Oy A, Judge

13] LINDA M. VANZI, Judge (concurring in part and dissenting in part)

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VANZI, Judge (concurring in part and dissenting in part).

as_to Pa

However, | respectfully disagree with the majority’s conclusion in Part I that

Defendant was entitled to a mistake of fact instruction for both the CSP and

tampering with evidence counts. In my view, the district court properly denied the

instruction as to CSP because Defendant’s testimony regarding his state of mind did

not support Defendant’s belief that Victim consented. The instruction was also

properly denied as to tampering because Defendant’s belief does not negate the

intent element of tampering with evidence. Accordingly, I dissent.

10
11

Mistake of Fact Was Properly Denied as to Criminal Sexual Penetration

61} As an initial matter, | agree with the majority that under the use of physical

force or physical violence theory, the jury could convict Defendant either “(1) by

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concluding that Victim had the capacity to consent but did not consent to the use of

physical force or physical violence; or (2) by concluding that Victim did not have

the capacity to consent and therefore could not consent to the use of physical force

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theory, the jury could convict Defendant either by concluding, “(1) Victim was

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incapacitated so as to be unable to consent; and (2) Defendant knew or had reason

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stated belief at trial is not supported by the rest of his testimony regarding his state

of mind at the time and, therefore, a mistake instruction is not warranted. I recognize
that this case presents a close call and explain my analysis as follows.

{62} Mistake of fact occurs where the mistaken fact “[negates] the existence of an
intent essential to the commission of an offense[.]” State v. Rogue, 1977-NMCA-
094, 7 17, 91 N.M. 7, 569 P.2d 417 (internal quotation marks and citation omitted).
“Ignorance or mistake of fact exists when the defendant does not know what the
facts actually are or believes them to be other than as they are.” Jd. (internal quotation
marks and citation omitted). The belief element in the mistake of fact instruction
requires that Defendant had subjective or actual knowledge of consent. See
Contreras, 2007-NMCA-119, § 11 (holding that under the burglary statute, the belief
element in the mistake of fact instruction requires subjective or actual knowledge of
permission to enter). “Generally, a mental state can be proved by circumstantial
evidence.” Jd. 4 10. “Evidence supporting a defense theory can be introduced in
either the defendant’s case or the [s]tate’s case.” Jd. Additionally, mistake of fact
requires a defendant’s mistake to be honest and reasonable. UJI 14-5120. The issue
of reasonableness is generally a question for the jury. Contreras, 2007-NMCA-1 19,
q 12.

{63} The issue here is whether there was sufficient evidence that Defendant
believed Victim was capable of and did consent to the activity. See UJI 14-961

NMRA (defining, in part, that one element of CSP to be proved is that the defendant

INO

acted unlawfully); UJI 14-132 (defining unlawful, in part, as having been done

without consent). juryhad_to_ find that Victim was

Un 1er_theory, the jury_had_to find that

incapacitated, but that Defendant had a reasonable and honest belief she could

consent. To be entitled to the defense and an acquittal, the jury must then have been

able to find that Defendant had an honest and reasonable belief Victim did consent

to all the sexual activity—including the use of force.

(64 The evidence viewed in the light most favorable to giving the instruction is as

follows. Defendant admitted that he and Victim, in each other’s presence, drank at

minimum five and six shots respectively, in approximately an hour and a half.

Defendant admitted that prior to leaving Lotus, he was drunk and “feeling pretty

good,” and Victim “must have been feeling good, too[.]” Defendant at that time was

not concerned about her level of intoxication, apparently because she was alert,

capable of walking downstairs, dancing with and kissing him, and willingly went to

Leake’s truck with him. Leake’s testimony corroborated Defendant’s testimony,

and, inferentially, so did the bouncer’s testimony. Defendant admitted to using his

hand “just past the knuckles” to penetrate Victim vaginally. Defendant testified that

Victim was participating in the activity, verbally encouraging him, and enjoying the

activity, so he used his other hand to penetrate her anus with four fingers. Defendant

did not admit to using physical force to insert his hands into Victim’s vagina and

anus. Yet the sexual activity included two separate penetrations, each of which

INO

caused an independent and severe injury. At trial, Defendant claimed to have been

unaware of these inj

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seat. After the sexual activity, Defendant testified that Victim was awake,

embarrassed, and not showing signs of being in any pain. Leake also testified that

when he came outside, either _at_11:38 p.m. or 12:24 a.m.,!' Victim was awake

conscious, speaking with no slurring, and not showing any signs of pain.

Nevertheless, Defendant admits he put Victim in her car and drove her vehicle to

Belen because she “was too drunk” to drive. The experts estimated Victim’s BAC at

1:00 a.m., about a half-hour to an hour and a half after the sexual activity, was

approximately 0.23, or almost three times the legal limit. Therefore, she could have

been in either the excited stage of intoxication and capable of complex tasks, or the

confused stage whereby she would be exhibiting symptoms of “disorient[ation], . . .

mental confusion, dizziness, ... an increased pain threshold, increased muscle

incoordination, slurred speech, apathy and lethargy.” Finally, the State’s experts

testified that it was unlikely the injuries were caused by consensual sex, especially

due to the pain Victim would have been in after one of the injuries.

{65} From this evidence, I conclude that a jury could not have found that Defendant

reasonably and honestly believed that Victim was capable of consenting and did

"There were two documented phone calls from Defendant to Leake; neither

could identify which one was the call in which Defendant asked Leake to join them.

INO

consent to the sexual activity, including the use of force, particularly when

Defendant did not admit to using force or violence. Experts estimated that at 1-00

CANEEELE ao Ce

a.m., Victim’s BAC was 0.23 and, at best, Victim experienced a “black-out.”

Defendant admitted that he observed Victim ingest six shots in one and a half hours;

that she was drunk and unable to drive herself home; and that he penetrated her with

such force he caused two separate life-threatening injuries. Defendant may not have

been concerned about Victim’s level of intoxication, but that does not mean that he

was unaware of it. In fact, Defendant does not claim Victim was not intoxicated, but

rather that he reasonably believed she could consent after drinking six shots in an

hour and a half.'* Under these circumstances, no reasonable person would have

believed that Victim could have consented to the alleged sexual activity that resulted

in the injuries suffered by Victim. Whether Defendant possessed an honest and

reasonable belief that Victim did consent is therefore irrelevant. Accordingly, I

would hold that the district court properly denied Defendant’s mistake of fact

instruction as to whether Victim consented to sexual penetration by the use of

physical force or physical violence.

"7 do not intend to express an opinion on whether there is a magic number of

drinks over a certain period that would render a person incapable of consenting to
forceful sexual activity and limit my analysis to the fact of this case. In sum, based
on the testimony at trial, this circumstance is clearly beyond what a rational person

would believe another person could consume and still be able to give consent.

Mistake of Fact Was Properly Denied as to Tampering With Evidence

{66} The majority opinion concludes Defendant is entitled to the instruction

because “if the jury were to conclude that Defendant, at the time that he cleaned

Leake’s truck, had an honest and reasonable belief that Victim has the capacity to

consent and did consent to his actions, the jury could also reasonably conclude

Defendant necessarily lacked the intent necessary to convict him for tampering with

evidence.” I respectfully disagree that Defendant’s belief necessarily would negate

the required intent. The majority’s conclusion fails to address the key inquiry of a

mistake of fact defense. A mistake of fact occurs where the mistaken fact “[negates]

the existence of an intent essential to the commission of an offense|.|” Roque, 1977-

NMCA-094, 4 17 (internal quotation marks and citation omitted). In other words, if

the mistaken belief is found to be reasonable and honest, the jury has no option other

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than to acquit Defendant. Here, to convict Defendant of tampering with evidence,

the jury had to find (1) “[D]efendant destroyed, changed, or hid blood evidence by

cleaning... Leake’s vehicle”; and (2) “by doing so, [D]efendant intended to prevent

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1 1 . . oe CL: 1 1 . c ee
the dp plCOnuecnusron, prosecution, or conviction of himself for the crime of criminal

sexual penetration[.]|”’

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67; Defendant testified that when he cleaned Leake’s truck, he did not think he

and it wasn’t—|Leake] would have had to clean it, because, I mean... we made the

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mess[.]” The evidence presented in support of Defendant’s belief was his own

well as other witness’ testimony regarding Victim’s appearance and actions shortly

before and immediately after the sexual activity. Defendant testified that he was

unaware Victim was injured and believed the blood in Leake’s truck to have been

from Victim’s menstrual cycle, despite Leake’s statement that it was a lot of blood.

Leake also testified that he told Defendant on the return trip to save his text

messages, because something would come up. Then, the following day, Defendant

texted Victim asking if she was okay, and cleaned blood from the seat of Leake’s

truck.!3 Defendant’s tendered instruction provided that Defendant “believed that

[ Victim] consented to the sexual activity that occurred, her injuries were accidental

and she was not seriously injured.”

63} If the jury credited Defendant’s belief that Victim was able to and did consent,

a reasonable jury could have found either that Defendant’s only intent was to clean

the truck, as he stated, or that—despite his believed innocence—he intended to

SThe majority opinion determines that Leake’s testimony and Defendant’s

other acts are only relevant as to the determination of whether Defendant’s mistake
of fact was honest and reasonable at the time. However, facts in evidence can serve
multiple purposes. These facts serve as evidence of both the reasonableness of

Defendant’s belief and circumstantial evidence of Defendant’s state of mind.
Therefore, we consider them on review of the application of the mistake defense.
See Contreras, 2007-NMCA-119, ¢ 10 (Generally, a mental state can be proved by

circumstantial evidence.”’).

INO

prevent apprehension, prosecution, or conviction as Leake had warned him that, in

the second, the jury must convict. As his belief could have led to either an acquittal

or conviction, it did not negate the intent element, and he was not entitled to the

instruction. I would hold that the instruction was properly denied

{69} | For the reasons set forth above, I would affirm Defendant’s convictions and,

ee)

therefore, respectfully dissent.

OT A aan

CPt. Sou,

LINDA-M. VANZI, Judge
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April 1, 2020- State of New Mexico v. Joseph Apodaca, No. A-1-CA-36469

Gesamter Gesetzestext

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