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State v. Jensen6/23/2005
In November 2002, Defendant David Jensen grabbed his wife (Wife) by the arms, sat her on a bed, ignored her telling him "no" and to stop, and, overcoming her physical resistance, while kneeling on her arms Defendant took off Wife's jeans and underwear, took off his own pants, and proceeded to force Wife to have sex with him. In August 2003, Defendant was tried on charges of criminal sexual penetration (CSP) under NMSA 1978, § 30-9-11(D)(3) (2003), and assault with intent to commit CSP on a household member (assault) under NMSA 1978, § 30-3-14(A) (1995). In addition to the element of causing Wife to engage in sexual intercourse, the jury instruction given for CSP contained the elements of physical force or physical violence resulting in abrasions of the labia minora. The jury instruction given for assault with intent to commit CSP contained the elements, among others, that Defendant "threw, pushed and/or restrained [Wife] on the bed," and that this conduct caused Wife to believe Defendant "was about to intrude on bodily integrity or personal safety by touching or applying force to in a rude, insolent or angry manner." Defendant did not testify, but argued the sex was consensual and that he did not force Wife in any way. On appeal, Defendant raises issues of (1) double jeopardy and (2) ineffective assistance of counsel. We affirm.
DISCUSSION
Double Jeopardy
Defendant contends that the assault charge is a lesser included offense of the CSP charge and that his conviction of both violated double jeopardy. More particularly, he argues that his alleged actions were unitary, having occurred in a single, continuous chain of events for the sole purpose of perpetrating CSP, and that the Legislature did not intend multiple punishments. See Swafford v. State, 112 N.M. 3, 7-15, 810 P.2d 1223, 1227-35 (1991) (setting out the analyses for a court considering a claim of double jeopardy based on multiple punishments). For his multiple punishments argument, Defendant compares the elements of assault and CSP. See id. at 14-15, 810 P.2d at 1234-35 (discussing the elements test). Defendant acknowledges that each statute contains an element the other does not, i.e., that the assault charge contained the element that the victim be a household member, and the CSP charge contained the element of personal injury to the victim. Defendant nevertheless argues that the presumption, based on this elements showing, that the statutes punish distinct offenses, is rebutted based on a review of other indicia of legislative intent. See id. at 14, 810 P.2d at 1234 (stating that the presumption that the statutes punish distinct offenses "may be overcome by other indicia of legislative intent").
In support of his argument, Defendant states that Section 30-3-14(A) (assault with intent to commit CSP against a household member) is identical to NMSA 1978, § 30-3-3 (1977) (assault with intent to commit CSP) in elements, except for the additional element in Section 30-3-14 that the victim be a household member. Defendant also states that other household member statutes, NMSA 1978, § 30-3-12 (1995) (assault against a household member), and NMSA 1978, § 30-3-13 (1995) (aggravated assault against a household member), mirror the general assault statutes, except for their requirement that the victim be a household member. Continuing, Defendant contends that assault against a household member with intent to commit CSP in Section 30-3-14, and assault with intent to commit CSP in Section 30-3-3 are both third degree felonies, and, therefore, the Legislature did not intend to punish an assault more severely because the victim was a wife rather than a stranger. According to Defendant, " ad the legislature
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