State v. Apodaca

                                                           Office of the Director   New Mexico
                                                            07:04:48 2021.03.08     Compilation
                                                                          '00'07-   Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: April 1, 2020

No. A-1-CA-36469

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

JOSEPH APODACA,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alisa Hart, District Judge

Certiorari Granted, November 25, 2020, No. S-1-SC-38288. Released for Publication
March 9, 2021.

Hector H. Balderas, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM

for Appellee

The Law Office of Ryan J. Villa
Ryan J. Villa
Richelle Anderson
Albuquerque, NM

for Appellant

                                       OPINION

BOGARDUS, Judge.

{1}    Defendant Joseph Apodaca appeals his conviction of two counts of first-degree
criminal sexual penetration resulting in great bodily harm or great mental anguish
(CSP), contrary to NMSA 1978, Section 30-9-11(D)(2) (2009), and one 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

{2}    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.

{3}    At approximately 9:48 p.m., Defendant and Leake arrived in Albuquerque and
parked in a parking lot behind the Lotus Nightclub (Lotus). Defendant and Leake had
purchased a six-pack of beer before leaving Grants, and each consumed three 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 Victim to cross two
dance floors and navigate twenty-five to thirty stairs. Defendant stated that he was not
concerned about Victim’s level of intoxication at the time. The 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.

{7}    Leake testified that when he got to his truck, he saw Defendant standing outside
the truck with the rear passenger door open, and Victim 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. 1 Defendant testified
that Victim was wearing “[j]ust her shirt and whatever she had on” at that time.

{8}     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 Victim’s state of intoxication though he claimed he “wasn’t
aware of her medical state.” According to their testimony, Defendant and Leake met up
at a parking lot in 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[.]”

{9}    Victim’s father testified that he received a call at 1:50 a.m. 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




1At 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.”
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.”

{10} When Defendant and Leake believed Victim’s father was approximately five
minutes away, 2 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 rolled back in
her head, and her father was unable to wake her. Approximately ten minutes after
receiving the first call from Defendant, Victim’s father called 911. Officers responded
quickly because a concerned citizen had already called to report suspicious activity in
the parking lot.

{11} 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.

{12} 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.

{13} At the hospital, doctors determined that, among other injuries, Victim suffered a
deep, ten-centimeter laceration to the vaginal wall “that extended from nearly the
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 3 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




2Through the ongoing communication regarding their respective locations in Belen, Defendant and Leake
left when they believed Victim’s father was approximately five minutes away.
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, 4 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, 5 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 underwent various follow-up procedures,
including treatment for infection caused by the anal tear and treatment for inability to
urinate (caused by extreme inflammation 6 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.

{14} 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” 7 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.

{15} 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
NMSA 1978, Section 31-18-15.1 (2009). In addition to Victim’s trial testimony, the State
presented testimony from five treating physicians, one emergency room (ER) 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. 8



4Vaginal packing entails placing cotton into the vaginal canal to keep the wound open to allow drainage
and assist healing.
5The blood sample was collected from one of the wound sites during treatment in the emergency room.
6Described as “ruptured blood vessels, almost consistent with bruising localized to that area.”
7Defendant 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.
8Dr. Sheridan’s testimony was based upon his opinion that the anal tear began deeper into the anus than
the treating physicians testified.
{16} 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.

{17} Dr. Morris-Kukoski explained that according to the Dubowski Stages of Acute
Alcoholic Influence and Intoxication chart, a BAC of 0.23 could either place Victim in the
excited state of intoxication, where the BAC can range from 0.09 to 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]hen 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.

{18} 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.

{19} After presentation of the State’s evidence, the district court dismissed the false
imprisonment and larceny charges for insufficient evidence. Defendant’s theory of 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.

{20} 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 aggravating 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 of fact defense as to
both the CSP counts and the tampering with evidence count; (3) the district court’s
admission of cumulative, scientifically unreliable expert 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.

{24} A confusing and muddled discussion followed Defendant’s tender of his
proposed jury instruction. Ultimately, the district court declined to give the instruction,
concluding that, as to the CSP charge, there was no need for a separate 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, 

, 

, 

. “When considering a
defendant’s requested instructions, we view the evidence in the light most favorable to
the giving of the requested instruction.” 

 “Viewing the facts in that manner, we review
the issue de novo.” State v. Contreras, 

, 

, 

. “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.” State v. Brown, 1996-NMSC-
073, ¶ 34, 

, 

. 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, 

, ¶ 15, 

, 

.

{27} “Mistake of fact is a defense when it negates the existence of the mental state
essential to the crime charged.” Contreras, 

 (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.” 

 (alteration, internal quotation marks, and
citation omitted); see Bunce, 

, ¶ 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, 

.

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 instruction,
counsel for Defendant objected and, as to the CSP charge, stated, “I think because
consent is an affirmative defense as to the forced sexual encounter, I agree with the
[district c]ourt’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.

{29} 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.
C.    The District Court Erred in Denying Defendant’s Request for a Mistake of
      Fact Instruction as to the CSP Counts

{30} The jury was instructed that the State must prove the following elements beyond
a reasonable doubt for the jury to find Defendant guilty of CSP:

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

      2. [D]efendant used physical force or physical violence; or [Victim] was
         unconscious, asleep, physically helpless, or suffering from a mental
         condition so as to be incapable of understanding the nature or
         consequences of what [D]efendant was doing; and [D]efendant knew
         or had reason to know of the condition of [Victim];

      3. [D]efendant’s acts resulted in great bodily harm or great mental
         anguish to [Victim];

      4. [D]efendant’s act was unlawful;

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

See UJI 14-958 NMRA; UJI 14-960 NMRA. As to the fourth element—unlawfulness—
the jury was also instructed as follows:

             In addition to the other elements of [CSP] as charged in Counts 1
      and 2, the [S]tate must prove beyond a reasonable doubt that the act was
      unlawful.

            For the act to have been unlawful it must have been without
      consent and with the intent to arouse or gratify sexual desire or to intrude
      upon the bodily integrity or personal safety of [Victim].

              [CSP] causing great bodily harm or great mental anguish does not
      include a penetration of the vagina or anus for purposes of consensual
      activity.

See UJI 14-132 NMRA. Within the framework of these instructions, it is clear that the
State presented two theories to the jury on the CSP counts: (1) Defendant used
physical force or physical violence without Defendant’s consent; or (2) Defendant knew
or had reason to know that Victim did not have the capacity to consent. We understand
Defendant to be arguing that a mistake of fact instruction should have been given based
on both theories, and we therefore address the propriety of the instruction under each
theory.
{31} 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.

{33} 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, 

 (“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, 

 (“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, 

, we conclude
that evidence presented at trial supported giving the instruction on Defendant’s mistake
of fact defense.
{34} 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, 

. Because the district court
did not give a mistake of fact instruction, it committed reversible error. See Brown,

.

{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 theory. Therefore, we
conclude that Defendant was not entitled to a mistake of fact instruction under the
State’s second theory. See Bunce, 

, ¶ 10; Contreras, 

. 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, 

, ¶ 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 . . .
          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 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, 

. 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, 

. 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.

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

{42} 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 right 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.

A.     The Act Does Not Require Bifurcation

{43} Whether or not the Act requires bifurcation is a matter of statutory construction.
We review matters of statutory construction de novo. State v. Johnson, 2009-NMSC-
049, ¶ 9, 

, 

. “The principal command of statutory construction
is that the court should determine and effectuate the intent of the [L]egislature using the
plain language of the statute as the primary indicator of legislative intent[.]” State v.
Ogden, 

, ¶ 24, 

, 

 (citation omitted). When
not defined by the statute, words “should be given their ordinary meaning absent clear
and express legislative intention to the contrary.” 

{44} Additionally, “statutes in pari materia should be read together to ascertain
legislative intent.” Id. ¶ 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. Id. “These rules also
promote consistency in judicial interpretation of similar statutes.” Id.

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

             (1)    a finding by the judge of any mitigating circumstances
       surrounding the offense or concerning the offender; or

             (2)    a finding by a jury or by the judge beyond a reasonable
       doubt of any aggravating circumstances surrounding the offense or
       concerning the offender.

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

       ....

              E.    Presentation of evidence or statements regarding an alleged
       aggravating circumstance shall be made as soon as practicable following
       the determination of guilt or innocence.

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 is mandatory, it does not necessarily require a separate proceeding. State v.
Tomlinson, 

, ¶¶ 11-15, 

, 

. 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 a party to the cause.” Id. ¶ 13
(internal quotation marks and citation omitted). In Tomlinson, we concluded that it was
sufficient for a judge to make a sentencing 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. Id. ¶¶ 13, 15. While Tomlinson was determined prior to the
requirement that juries find aggravating circumstances, it is 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).

{48} 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.”
Tomlison, 

, ¶ 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 § 31-18-15.1(A). We
conclude that allowing the jury to determine aggravating circumstances prior to the
judge’s determination of mitigating circumstances and final judgment does not deprive
the defendant of the opportunity to present mitigating considerations so long as the
defendant is given such an 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. 9 In these instances and possibly others, bifurcation may be required to
prevent constitutional violations or prejudice to the defendant. However, this does not
mean that the Legislature intended Subsection A to require bifurcation in all cases;
rather, this section was intended to allow bifurcation when necessary. See Ogden,

, ¶ 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”).

{50} 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, 

 (“We do not read language into the Act that is not



9A 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., 1st 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”); 

 (West 2019), 21-6817 (West 2019); 

(5)(b) (West 2009); 

(4) (West 2005); 

.94A.537 (West 2007); but see 

 (2018) (silent as to bifurcation); N.C. Gen. Stat. Ann. § 15A-1340.16(a1) (West 2015)
(bifurcation allowed where justice requires it). 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).
there.” (internal quotation marks and citation omitted)). We therefore hold that this
subsection neither requires nor prohibits bifurcation.

{51} Subsection E provides that “[p]resentation of evidence or statements regarding
an alleged aggravating circumstance shall be made as soon as practicable following the
determination of guilt[.]” Defendant argues that to interpret the Act to not require
bifurcation would render this subsection surplusage. See In re Rehab. of Inv’rs Life Ins.
Co., 

, ¶ 12, 

, 

 (“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., 1st Sess.
(N.M. 2009), available at https://www.nmlegis.gov/Sessions/
09%20Regular/final/HB0208.pdf; State v. Frawley, 

, ¶ 23, 

,

 (citing Cunningham v. Cal., 

 (2007) and holding the Capital
Felony Sentencing Act (CFSA), NMSA 1978, §§ 31-20A-1 to -6 (repealed 2009), was
unconstitutional because “the Sixth Amendment is violated any time a defendant is
sentenced above what is authorized solely by the jury’s verdict alone”), superseded by
statute as recognized by State v. Oliver, 

, ¶ 19, 

. In the
same legislative session, the Legislature amended the CFSA, 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., 1st
Sess. (N.M. 2009), available at
https://www.nmlegis.gov/Sessions/09%20Regular/final/HB0285.pdf; Chadwick-McNally,

 (citing the CFSA)). 10

{54} The simultaneous repeal of express bifurcation requirements from one
sentencing statute and the omission of similar language in another sentencing statute

10“Upon 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).
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, surely
they would have used the phrase “a separate sentencing proceeding” as they had in the
prior CFSA. Section 31-20A-1(B) (1979, repealed 2009).

{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, 

. 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, 

, ¶ 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

{57} 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, 

, 

 (“If a constitutional provision applies, claims arising under it are . . . reviewed de
novo.”). Defendant does not cite a single case supporting the notion that bifurcation is
constitutionally required in every case, nor do we find any. See In re Adoption of Doe,

, ¶ 2, 

, 

 (holding that 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, 

, 

 (“For
this Court to rule on an inadequately briefed constitutional issue would essentially
require it to do the work on behalf of [the d]efendant.”). 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, ¶ 21 (internal quotation marks and citation omitted); see also, McGautha v.
California, 

 (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 v. Ohio, 

 (1972);
United States v. Taylor, 

 (D.N.M. 2009) (“The Constitution
permits a jury to consider both guilt and capital punishment at the same time.”); United
States v. Johnson, 

 (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.
CONCLUSION

{58} We reverse Defendant’s convictions for two counts of CSP and one count of
tampering with evidence and remand for a new trial on those counts. Additionally, we
hold that the Criminal Sentencing Act does not require bifurcation and that bifurcation is
not constitutionally required.

{59}   IT IS SO ORDERED.

KRISTINA BOGARDUS, Judge

I CONCUR:

BRIANA H. ZAMORA, Judge

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

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

{60} I concur in the majority’s opinion as to Part II concerning bifurcation. However, I
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.

Mistake of Fact Was Properly Denied as to Criminal Sexual Penetration

{61} As an initial matter, I agree with the majority that under the use of physical force
or physical violence theory, the jury could convict Defendant either “(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.” Majority Op. ¶ 31. I also agree that under the incapacitation theory, the jury
could convict Defendant either by concluding, “(1) Victim was incapacitated so as to be
unable to consent; and (2) Defendant knew or had reason to know of Victim’s
incapacity.” Id. ¶ 37. However, in my opinion, Defendant’s 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. Roque, 

, ¶
17, 

, 

 (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.” 

 (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, 

(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.” Id. ¶ 10. “Evidence supporting
a defense theory can be introduced in either the defendant’s case or the [s]tate’s case.”
Id. 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, 

.

{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 acted unlawfully);
UJI 14-132 (defining unlawful, in part, as having been done without consent). Under
either theory, the jury had to find that Victim was 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 caused an independent and severe injury. At trial,
Defendant claimed to have been unaware of these injuries but admitted that he saw
blood on Victim’s legs and on the 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., 11 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

11There 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.
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
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 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. 12 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.

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, 

, ¶ 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 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,




12I 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.
[D]efendant intended to prevent the apprehension, prosecution, or conviction of himself
for the crime of criminal sexual penetration[.]”

{67} Defendant testified that when he cleaned Leake’s truck, he did not think he was
covering up a crime; rather he cleaned the truck because “it needed to be cleaned and it
wasn’t—[Leake] would have had to clean it, because, I mean . . . we made the mess[.]”
The evidence presented in support of Defendant’s belief was his own testimony and
actions after the sexual activity and before cleaning Leake’s truck as 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. 13 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.”

{68} 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 prevent
apprehension, prosecution, or conviction as Leake had warned him that, in effect, the
situation looked suspicious. Under the first, the jury must acquit; under 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,
therefore, respectfully dissent.

LINDA M. VANZI, Judge




13The 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.”).