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State v. Wilson6/10/1993
MINZNER, Chief Judge.
Defendant appeals his convictions for kidnapping and four counts of criminal sexual penetration in the second degree (CSP II). Defendant and Complainant were friends and former co-workers at the time of the incident from which this case arose.
According to Complainant's testimony, in the early morning hours of January 10, 1990, Defendant appeared at her door claiming to
be drunk and experiencing car trouble. After she let him into her house, he verbally threatened her, grabbed her arms, and forced her into a bedroom and to undress. In the bedroom he secured her hands with handcuffs, displayed a gun, knife, and rope, and threatened to use the gun if she did not do what he wanted. He then compelled her to engage in fellatio and, after repositioning her with the handcuffs and rope, in sexual as well as anal intercourse. He subsequently moved her into the bathroom, requested a wash cloth, wiped himself, and again compelled her to perform fellatio. Afterward, he became remorseful; apparently in sympathy, she said that she would not report the incident if he sought professional help for his problems, and he left the gun with her when he left her house. She reported the incident five days later when she came to the Conclusion that he had lied about seeking professional help.
Defendant's defense theory was alibi: his wife testified that he was in bed asleep with her at the time of the alleged incident. They also presented evidence to show that the gun was not Defendant's, but rather belonged to Complainant. Defendant suggested that Complainant fabricated the charges because she was angry with him for breaking off an affair with her and also for not repaying a loan she had made to him.
The jury returned verdicts of guilty on one count of kidnapping and four counts of CSP II. At sentencing, the trial court imposed nine-year sentences for each conviction and added three years to each sentence due to aggravating circumstances, which included harm to Complainant, harm to Defendant's family, and Defendant's lack of remorse. See NMSA 1978, § 31-18-15.1 (Repl. Pamp. 1990) (alteration of basic sentence for mitigating or aggravating circumstances). The trial court added one year on the basis of a prior Colorado felony conviction and one year for use of a firearm. See NMSA 1978, § 31-18-17(B) (Repl. Pamp. 1990) (alteration of basic sentence; habitual offender); NMSA 1978, § 31-18-16(A) (Repl. Pamp. 1990) (alteration of basic sentence; use of firearm).
Defendant raises twelve issues on appeal, seven of which deal with matters at trial and the rest of which challenge the validity of Defendant's sentence. The trial issues include Defendant's right to have the jury instructed on the lesser-included offense of criminal sexual penetration in the third degree (CSP III), the timeliness of his objection to the prosecution's use of peremptory challenges, and whether he received effective assistance of counsel. Three of the trial issues concern evidentiary rulings excluding evidence Defendant wished to introduce. We address those issues under one heading. Defendant also challenges the sufficiency of the evidence to support his convictions. The sentencing issues include the propriety of the factors on which the trial court relied in aggravating and enhancing Defendant's sentences and the sufficiency of the evidence to support multiple counts of CSP II.
We affirm Defendant's convictions; we vacate Defendant's sentence and remand for resentencing in accordance with this opinion. W
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