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State v. Maestas3/28/2005
{1} In this appeal we consider whether coercion is an essential element of second degree criminal sexual penetration perpetrated in the commission of another felony (CSP II (felony)), contrary to NMSA 1978, § 30-9-11(D)(5) (2003). Defendant Charles Maestas, who was an Española municipal judge at the time of the charged events, appeals his convictions of five counts of requesting or receiving sexual favors "conditioned upon or given in exchange for promised performance of an official act" (official acts prohibited), NMSA 1978, § 10-16-3(D) (1993), a fourth degree felony, and five counts of CSP II (felony). The underlying felony for each CSP II conviction was official acts prohibited. We conclude coercion is not an essential element of CSP II (felony). We also find no error in the trial court's evidentiary rulings and affirm Defendant's convictions.
BACKGROUND
{2} Defendant's convictions arose from allegations that he accepted sexual favors from Victim in exchange for leniency in the resolution of charges against Victim in municipal court. At trial, Defendant's theory was that Victim plotted to seduce Defendant and then falsely claimed that Defendant coerced her into various sex acts so that she could sue Defendant's employer, the City of Espanola, for violation of her civil rights.
{3} In support of his theory, Defendant presented evidence that Victim heard rumors that Defendant was giving preferential treatment to women in the city jail in exchange for sexual favors. Several months later, when Victim had several traffic charges pending before Defendant, Victim hid a tape recorder under her clothing and recorded two sexual encounters with Defendant. There was also evidence that Victim was gleeful when she learned about Defendant's subsequent arrest and said, "We got him."
{4} The State presented evidence supporting a different theory. Victim testified that she first appeared before Defendant in municipal court on several traffic code violations. Victim pleaded guilty, whereupon Defendant told Victim to come with him to his office. Defendant told Victim that she faced possible jail time of seventy to ninety days and about $700 in fines. Victim began crying. When she got up to leave, Defendant took her hand and said, " aybe you could do something for me to take away your fines and you won't go to jail." Victim understood that Defendant was asking her for sex. She initially declined, but she was afraid Defendant would take her children away "because I knew he has the power to take them away because he's a Judge." Victim told Defendant she would have to think about it, and Defendant told Victim to ask the court clerk to set another court date.
{5} Although it is unclear what happened between this first encounter in Defendant's office and the first sexual encounter, at some point following the initial court date, according to Victim, Defendant picked Victim up at her office and took her to his house, where they had sexual intercourse. Because Victim had complied with Defendant's request for sex, she testified, "I figured he would drop everything my kids wouldn't get taken away[.]"
{6} Sometime later, in response to a mailed notice, Victim went back to court, where Defendant talked to Victim (presumably in Defendant's office) about helping her with her fines. She told Defendant she thought her fines were cleared, and Defendant told her they were not. He then asked Victim to do him a favor, closed the door, and asked her to perform oral sex; Victim complied. Defendant then told Victim to make another court date.
{7} Victim testified about two other incidents when Defendant picked her up. On one occasion he took her to his
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