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State v. Bernal6/2/1987
MINZNER, Judge.
Defendant was convicted of two counts of second degree criminal sexual penetration, and one count each of kidnapping, false imprisonment, and assault with intent to commit criminal sexual penetration. Defendant appeals the increase of the basic sentence imposed pursuant to NMSA 1978, Section 31-18-15.1 (Repl. Pamp.1981), based upon a finding of aggravating circumstances.
At sentencing, the trial court ordered that defendant serve a term of imprisonment of nine years each on the three second degree felony counts. The court ordered that the sentences for each of the three counts shall run consecutive to one another, and the court imposed an additional three years as to each of those counts for aggravating circumstances. The court also ordered that defendant's remaining sentences be served concurrently with the term imposed for the three second degree felony counts.
The trial court stated its reasons for increasing defendant's basic sentences at the sentencing hearing. A taped record is preserved for our review. The court, by its statement after evidence and argument, indicated that it considered (1) testimony of a psychologist that defendant could be a "power" rapist, that defendant's drinking triggers violent and aggressive behavior, and that the court had no guarantee or expectation that his alcohol abuse can be controlled, and (2) evidence that defendant's action was "brutal" in nature. The court stated, in part, that these were "brutal" rapes and that they "permanently affected the victim, physically, emotionally and careerwise * * * *" The court emphasized it had a duty to protect society and that it could not risk defendant being unable to control alcohol abuse.
Defendant's initial docketing statement raised two issues which he did not address in his briefs. Those issues are deemed abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct. App.1985). Defendant argues two remaining issues: (1) whether Section 31-18-15.1 is unconstitutional per se and as applied in this case; and (2) whether the considerations stated by the trial court supported enhancement. We affirm.
CONSTITUTIONALITY OF SECTION 31-18-15.1.
Defendant notes that physical injury is an element of the crime of second degree criminal sexual penetration. See NMSA 1978, § 30-9-11(B)(2) (Repl. Pamp. 1984). He contends that the trial court's consideration of the physical injury suffered by the victim in this case exposed him to double jeopardy. We disagree.
First, in referring to the injuries suffered by the victim, the trial court mentioned emotional as well as physical injuries. In context, the court appears to be discussing its duty to protect society against violent behavior rather than citing a specific aggravating circumstance.
Second, the double jeopardy argument raised here was rejected by this court in State v. Wilson, 97 N.M. 534, 538, 641 P.2d 1081, 1085 (Ct. App.1982): " he elements of the offense do no more than establish the offense. The circumstances surrounding the offense, including the circumstances surrounding each of the elements of the offense, may be considered under § 31-18-15.1(C) * * * *" The factors considered by the trial court in this case parallel those listed as permissible factors for consideration in State v. Segotta, 100 N.M. 498, 501, 672 P.2d 1129, 1132 (1983): "unusual aspects of the defendant's character, past c
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