N.M. Stat. § 30-9-11 (2026)

A. Criminal sexual penetration is the unlawful and intentional causing of a person to
engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of
penetration, to any extent and with any object, of the genital or anal openings of
another, whether or not there is any emission.

   B. Criminal sexual penetration does not include medically indicated procedures.

   C. Aggravated criminal sexual penetration consists of all criminal sexual penetration
perpetrated on a child under thirteen years of age with an intent to kill or with a
depraved mind regardless of human life. Whoever commits aggravated criminal sexual
penetration is guilty of a first degree felony for aggravated criminal sexual penetration.

   D. Criminal sexual penetration in the first degree consists of all criminal sexual
penetration perpetrated:

       (1)    on a child under thirteen years of age; or

      (2)    by the use of force or coercion that results in great bodily harm or great
mental anguish to the victim.

   Whoever commits criminal sexual penetration in the first degree is guilty of a first
degree felony.

   E. Criminal sexual penetration in the second degree consists of all criminal sexual
penetration perpetrated:

       (1)    by the use of force or coercion on a child thirteen to eighteen years of age;

        (2)    on an inmate confined in a correctional facility or jail when the perpetrator
is in a position of authority over the inmate;

       (3)    by the use of force or coercion that results in personal injury to the victim;
       (4)   by the use of force or coercion when the perpetrator is aided or abetted by
one or more persons;

       (5)    in the commission of any other felony; or

       (6)    when the perpetrator is armed with a deadly weapon.

    Whoever commits criminal sexual penetration in the second degree is guilty of a
second degree felony. Whoever commits criminal sexual penetration in the second
degree when the victim is a child who is thirteen to eighteen years of age is guilty of a
second degree felony for a sexual offense against a child and, notwithstanding the
provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a minimum term of
imprisonment of three years, which shall not be suspended or deferred. The imposition
of a minimum, mandatory term of imprisonment pursuant to the provisions of this
subsection shall not be interpreted to preclude the imposition of sentencing
enhancements pursuant to the provisions of the Criminal Sentencing Act [Chapter 31,
Article 18 NMSA 1978].

    F. Criminal sexual penetration in the third degree consists of all criminal sexual
penetration perpetrated through the use of force or coercion not otherwise specified in
this section.

   Whoever commits criminal sexual penetration in the third degree is guilty of a third
degree felony.

   G. Criminal sexual penetration in the fourth degree consists of all criminal sexual
penetration:

        (1)    not defined in Subsections D through F of this section perpetrated on a
child thirteen to sixteen years of age when the perpetrator is at least eighteen years of
age and is at least four years older than the child and not the spouse of that child; or

        (2)    perpetrated on a child thirteen to eighteen years of age when the
perpetrator, who is a licensed school employee, an unlicensed school employee, a
school contract employee, a school health service provider or a school volunteer, and
who is at least eighteen years of age and is at least four years older than the child and
not the spouse of that child, learns while performing services in or for a school that the
child is a student in a school.

   Whoever commits criminal sexual penetration in the fourth degree is guilty of a
fourth degree felony.

History: 1953 Comp., § 40A-9-21, enacted by Laws 1975, ch. 109, § 2; 1987, ch. 203,
§ 1; 1991, ch. 26, § 1; 1993, ch. 177, § 2; 1995, ch. 159, § 1; 2001, ch. 161, § 2; 2003
(1st S.S.), ch. 1, § 3; 2007, ch. 69, § 1; 2009, ch. 56, § 1.
                                    ANNOTATIONS

Cross references. — For assault with intent to commit a violent felony, see 30-3-3
NMSA 1978.

For sexual exploitation of children, see 30-6A-3 NMSA 1978.

For provision that testimony of a victim hereunder need not be corroborated, see 30-9-
15 NMSA 1978.

For limitations on testimony regarding victim's past sexual conduct, see 30-9-16 NMSA
1978.

For the Sex Offender Registration and Notification Act, see Chapter 29, Article 11A
NMSA 1978.

For Uniform Jury Instructions, see UJI 14-941 to 14-963 NMRA.

Compiler's notes. — For Laws 2003, ch. 257 enactment concerning time limit for
prosecution under this section, see 30-1-9.2 NMSA 1978 and notes thereto.

The 2009 amendment, effective July 1, 2009, in Subsection C, increased the age of the
child victim from nine to thirteen years.

The 2007 amendment, effective July 1, 2007, added a new Subsection C to provide a
penalty for aggravated criminal sexual penetration in the first degree; defined criminal
sexual penetration in the second degree to consist of criminal sexual penetration by the
use of force or coercion on a child thirteen to eighteen years of age; and eliminated the
penalty for criminal sexual penetration in the third degree when the victim is thirteen to
eighteen years of age.

The 2003 (1st S.S.) amendment, effective February 3, 2004, added the last two
sentences of Subsection D and the last sentence of Subsection E.

The 2001 amendment, effective July 1, 2001, substituted "eighteen" for "sixteen" in
Paragraph D(1); and in Subsection F, added the Paragraph (1) designation, inserted
"the child" following "older than" in Paragraph (1), and added Paragraph (2).

The 1995 amendment, effective July 1, 1995, in Subsection D, added Paragraph (2)
and redesignated the remaining paragraphs accordingly.

The 1993 amendment, effective July 1, 1993, designated the formerly undesignated
provisions as Subsection A; added present Subsection B; redesignated former
Subsections A through D as Subsections C through F; and substituted "Subsections C
through E" for "Subsection A, B, or C" in the first paragraph of Subsection F.
The 1991 amendment, effective June 14, 1991, deleted "other than one's spouse"
following "person" in the first paragraph and substituted "and not the spouse of that
child" for "the child" at the end of the first sentence in Subsection D.

The 1987 amendment, effective June 19, 1987, added Subsection D.

                         I.     GENERAL CONSIDERATION.

                                  A.     IN GENERAL.

Constitutionality. — "Unlawful" is defined as "without excuse of justification" and the
use of that term by the statute does not render the statute void for vagueness. State v.
Larson, 1980-NMSC-106, 94 N.M. 795, 617 P.2d 1310.

Identical counts and jury instructions. — Where multiple counts of criminal sexual
penetration of a minor in the indictment and the counts in the jury instructions were
carbon-copy counts of each other and where the child’s testimony distinguished facts
for each count and the defendant admitted to having sexual intercourse with the child on
several occasions, there was sufficient evidence from which a jury could find separate
incidents of criminal sexual penetration and there was no violation of double jeopardy.
State v. Martinez, 2007-NMCA-160, 143 N.M. 96, 173 P.3d 18, cert. denied, 2007-
NMCERT-011.

Double jeopardy. — The crime of attempted CSP III is subsumed within assault with
intent to commit CSP. Proof of an overt act done with the intent of forcing CSP required
by attempted CSP III is satisfied by the same proof required for the attempted restraint
by force in the assault (attempted battery) charge. State v. Schackow, 2006-NMCA-123,
140 N.M. 506, 143 P.3d 745, cert. denied, 2006-NMCERT-008, 140 N.M. 422, 143 P.3d
184.

Multiple counts of criminal sexual penetration. — Section 30-9-11 NMSA 1878
cannot be said as a matter of law to evince a legislative intent to punish separately each
penetration occurring during a continuous attack absent proof that each act of
penetration is in some sense distinct from the others. In determining whether an act is
distinct our analysis is informed by the following factors culled from decisions of other
jurisdictions that have considered the issue of multiple punishment in cases of rape: (1)
temporal proximity of penetrations (the greater the interval between acts the greater the
likelihood of separate offenses); (2) location of the victim during each penetration
(movement or repositioning of the victim between penetrations tends to show separate
offenses); (3) existence of an intervening event; (4) sequencing of penetrations (serial
penetrations of different orifices, as opposed to repeated penetrations of the same
orifice, tend to establish separate offenses); (5) defendant's intent as evidenced by his
conduct and utterances; and (6) number of victims (although not relevant here, multiple
victims will likely give rise to multiple offenses). Herron v. State, 1991-NMSC-012, 111
N.M. 357, 805 P.2d 624.
The term "sexual intercourse" includes penetration of the vulva even when the
vaginal canal is not penetrated. State v. Tafoya, 2010-NMCA-010, 147 N.M. 602, 227
P.3d 92, cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90.

Applicable statute of limitations. — Where the state alleges that defendant
committed criminal sexual penetration of a minor under the age of 13 between
September and December of 1988 and in January of 1989, the applicable statute of
limitations at the time defendant allegedly committed the crime is 15 years. State v. Hill,
2005-NMCA-143, 138 N.M. 693, 125 P.3d 1175, cert. denied, 2005-NMCERT-012, 138
N.M. 772, 126 P.3d 1136.

Exclusion of defendant from courtroom. — Defendant's exclusion from the
courtroom while child testified created a substantial risk that the jury would assume that
the trial court believed that the defendant had engaged in misconduct necessitating his
absence from the courtroom. State v. Rodriguez, 1992-NMCA-088, 114 N.M. 265, 837
P.2d 459.

Defendant absent from trial voluntarily. — Factors articulated in State v. Clements,
1988-NMCA-094, 108 N.M. 13, 765 P.2d 1195, cert. denied, 107 N.M. 785, 765 P.2d
758, as to waiver of right to be present being occasioned by the voluntary absence of an
accused, were to be applied only when the defendant was absent from trial voluntarily.
State v. Rodriguez, 1992-NMCA-088, 114 N.M. 265, 837 P.2d 459.

Trial of co-defendants. — Whether separate trials are to be held for defendants jointly
indicted for attempted forcible rape was a matter to be addressed to and resolved by the
sound discretion of the trial court. State v. Pope, 1967-NMCA-010, 78 N.M. 282, 430
P.2d 779.

Defense of mistake of fact. — Twenty year-old defendant's conviction of fourth degree
criminal sexual penetration was reversed, where the trial court did not consider his
defense of mistake of fact, which was based on evidence that he had asked the fifteen
year-old victim her age and was told by her and another person that she was
seventeen. Perez v. State, 1990-NMSC-115, 111 N.M. 160, 803 P.2d 249.

Prosecutor's remarks held prejudicial. — The prosecutor made a legally incorrect
statement of the law when he told the jury the crime for which the defendant was
charged (criminal sexual penetration) was less serious than committing the crime with a
weapon, thus invading the province of the court to give instructions on the law. Because
the evidence of defendant's guilt was less than overwhelming, it is fair to assume that
the prosecutor's remarks had some prejudicial impact, substantial enough to require a
new trial at the trial court's discretion. State v. Gonzales, 1986-NMCA-050, 105 N.M.
238, 731 P.2d 381, cert. quashed, 105 N.M. 211, 730 P.2d 1193 (1987).

Adoption of child conceived as result of rape. — Man convicted of criminal sexual
penetration of a child had no constitutional right under the due process clauses of the
United States or New Mexico Constitutions to withhold consent to adoption of the child
conceived and born as a result of that act. Christian Child Placement Serv. of the N.M.
Christian Children's Home v. Vestal, 1998-NMCA-098, 125 N.M. 426, 962 P.2d 1261.

Spouses living apart. — The phrase "living apart" as the phrase is used in the
definition of the term "spouse" in Section 30-9-10 NMSA 1978 suggests that Section 30-
9-11 NMSA 1978 was designed to prohibit nonconsensual sexual activity among
married persons during interruption of the relationship and there is no indication that the
legislature intended either a durational requirement or the existence of measures to
terminate the marriage to impose criminal liability on one spouse for the rape of another.
Brescheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011,
108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

                             B.     CONSTITUTIONALITY.

Speedy trial. — The right to a speedy trial based on a 1989 original complaint, which
was dismissed, did not run from 1989 to 2002 when charges were re-filed because
defendant was not an "accused" and knew he was not an "accused" during the
approximately 13-year interval when no criminal sexual penetration of a minor under the
age of 13 charges were pending against him. Therefore, defendant's speedy trial right
did not attach until 2002. State v. Hill, 2005-NMCA-143, 138 N.M. 693, 125 P.3d 1175,
cert. denied, 2005-NMCERT-012, 138 N.M. 772, 126 P.3d 1136.

Phrase "perpetrated by the use of force or coercion" not vague. — Phrase
"perpetrated by the use of force or coercion" in this section is not unconstitutionally
vague since the crime is defined in terms of a result that defendant causes, and if a
defendant causes such a result by the use of force or coercion, force or coercion was
the method which caused the result, that is, the crime. State v. Jiminez, 1976-NMCA-
096, 89 N.M. 652, 556 P.2d 60.

Distinctions between degrees on basis of harm constitutional. — Determining the
degree of a crime by the amount of the harm done to the victim does not make the
statute unconstitutionally vague. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556
P.2d 60.

Section not void for vagueness. — Criminal sexual penetration could be committed
by the use of force or coercion without the victim suffering personal injury as a result
thereof and the distinction between second and third degree criminal sexual penetration
based on personal injury to the victim is not void for vagueness as a matter of law. State
v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

This section is not unconstitutionally vague or overbroad, nor does the statute
encourage arbitrary or discriminatory prosecution. State v. Pierce, 1990-NMSC-049,
110 N.M. 76, 792 P.2d 408.

Statute is not unconstitutionally vague. — Where defendant was convicted of two
counts of criminal sexual penetration (CSP) in the second degree (child age 13-18)
(force or coercion), and where defendant claimed that 30-9-11(E)(1) NMSA 1978 is
unconstitutionally vague, in violation of the Due Process Clauses of both the United
States and New Mexico constitutions, arguing that the CSP statutes does not define the
degree of physical force proscribed by 30-9-11(E)(1) NMSA 1978 with sufficient clarity
to put a person of ordinary intelligence on notice that "physical force or physical
violence" does not require violent or powerful physical force, the statute was not void for
vagueness, because the ordinary person, using common sense, would understand from
both the statute and New Mexico precedent that the distinction between CSP and
ordinary noncriminal sexual intercourse is not the amount of force used, but whether the
sex act is consensual. Defendant failed in his burden of demonstrating that the statute
is so vague and unclear that a person of ordinary intelligence would not understand that
forcing a nonconsenting seventeen-year-old child to engage in a sexual act against her
will is a felony, even if violence is not used to perpetrate the penetration. State v.
Calderon, 2026-NMCA-026.

Former sodomy statute constitutional. — Former 40A-9-6, 1953 Comp., which
embraced and proscribed sodomitic conduct even on the part of consenting adults was
constitutionally valid. State v. Elliott, 1976-NMSC-030, 89 N.M. 305, 551 P.2d 1352
(decided under prior law, statute repealed).

And not violative of right of privacy. — On attack by an inmate of penal institution
against constitutionality of former sodomy statute on grounds that it violated right of
privacy, nothing in the language of the act could reasonably be considered as violative
of any constitutionally protected area, nor did the record disclose an unconstitutional
application of the law in the particular instance. Washington v. Rodriguez, 1971-NMCA-
021, 82 N.M. 428, 483 P.2d 309 (decided under prior law, statute repealed).

Standing to challenge constitutionality. — Defendant's claims that definitional
distinctions which go to difference between first and second degree criminal sexual
penetration are unconstitutionally vague would not be considered by the appeals court
when defendant was convicted of second degree criminal sexual penetration. State v.
Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Since defendant did not claim nor argue that he was a member of the class
discriminated against by the former sodomy statute or that his rights had been impaired
by application of the statute to him, he lacked standing to challenge the constitutionality
of the act. State v. Armstrong, 1973-NMCA-081, 85 N.M. 234, 511 P.2d 560, cert.
denied, 85 N.M. 228, 511 P.2d 554, overruled by State v. Elliott, 1975-NMCA-087, 88
N.M. 187, 539 P.2d 207; State v. Kasakoff, 1972-NMCA-151, 84 N.M. 404, 503 P.2d
1182.

In prosecution for sodomy, where the state's evidence was that the act was committed
by force and the defendant denied committing the act, defendant could not then argue
that the incident was a consensual act between two adult persons and that the statute
was unconstitutional as overbroad for prohibiting private consensual acts of adults.
State v. Kasakoff, 1972-NMCA-151, 84 N.M. 404, 503 P.2d 1182.
Spouses living apart. — Where, at the time defendant broke into the house in which
defendant’s spouse lived and forcibly had sexual contact with the spouse, defendant
and the spouse were living apart, defendant did not have standing to challenge Section
30-9-11 NMSA 1978 on the ground that the statute was unconstitutionally overbroad,
because it infringed on privacy in marriage which is a protected right of association
under the First Amendment. Brescheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987),
cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

Section 30-9-11 NMSA 1978 is not unconstitutionally vague even though the phrase
"living apart" is not defined as that phrase is used in the definition of the term "spouse"
in Section 30-9-10 NMSA 1978. Brescheisen v. Mondragon, 833 F.2d 238 (10th Cir.
1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

                            C.     ELEMENTS OF OFFENSE.

Criminal sexual penetration based on the commission of a felony. — When
criminal sexual penetration in the second degree is based on the commission of a
felony, it must be a felony that is committed against the victim of, and that assists in the
accomplishment of, sexual penetration by force or coercion or against a victim who, by
age or other statutory factor, gave no lawful consent. Simply causing another person to
engage in otherwise lawful sexual intercourse at the same time a felony is being
committed does not constitute the crime of criminal sexual penetration during the
commission of a felony. The jury should be instructed that the crime of criminal sexual
penetration during the commission of a felony requires the commission of unlawful
sexual activity with the victim of the felony. State v. Stevens, 2014-NMSC-011,
overruling in part State v. Maestas, 2005-NMCA-062, 137 N.M. 477.

Where defendant directed the victim to perform oral sex on defendant’s friend after the
three injected methamphetamine together; defendant did not force the victim to perform
oral sex; the victim complied with defendant’s direction because the victim was high and
did not care; defendant was charged with causing criminal sexual penetration during the
commission of the felony of distribution of a controlled substance to a minor; and the
jury was not instructed that the state was required to prove that the sexual penetration
was unlawful and that the penetration was caused by the commission of a felony
against the victim, the deficiency in the jury instructions did not result in fundamental
error, because the sexual relation between the victim, who was thirteen years of age,
and defendant’s friend, who was as least ten years older, was unlawful and the fact that
it was after the victim had been injected with methamphetamine that the victim
acquiesced to defendant’s direction to perform oral sex established the nexus of
causation between the commission of the felony against the victim and the resulting
unlawful sexual act committed on the victim. State v. Stevens, 2014-NMSC-011,
overruling in part State v. Maestas, 2005-NMCA-062, 137 N.M. 477.

Use of force. — Where the defendant ensured the physical isolation of the location
where the incident occurred; locked the doors of the car; unbuttoned and took off the
thirteen-year old victim’s pants; told the victim that she was ready for intercourse
despite her disagreement; reclined the victim’s car seat and then climbed on top of her,
initiating sex by forcing the victim’s legs open; and persisted in having intercourse with
the victim after she told the defendant that it hurt and asked him to stop, the evidence
was sufficient to support the defendant’s conviction of sexual penetration through the
use of force or coercion. State v. Perea, 2008-NMCA-147, 145 N.M. 123, 194 P.3d 738,
cert. denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488.

Criminal sexual penetration is not continuing offense. — Once the penetration is
perpetrated, that criminal sexual penetration is a completed offense. State v. Ramirez,
1978-NMCA-102, 92 N.M. 206, 585 P.2d 651; State v. Corneau, 1989-NMCA-040, 109
N.M. 81, 781 P.2d 1159, cert. denied, 108 N.M. 668, 777 P.2d 907.

Penetration not essential. — Despite the heading "Criminal sexual penetration" for
this section, the offense does not require penetration. State v. Delgado, 1991-NMCA-
064, 112 N.M. 335, 815 P.2d 631, cert. denied, 112 N.M. 220, 813 P.2d 1018.

Force or coercion not an element. — Force or coercion is not an essential element of
second degree criminal sexual penetration when defendant is in a position of authority
over an inmate. State v. Maestas, 2005-NMCA-062, 137 N.M. 477, 112 P.3d 1134, rev'd
on other grounds, 2007-NMSC-001, 140 N.M. 836, 149 P.3d 933.

"Anguish" as personal injury. — "Anguish" means "distress," and mental anguish is
distress of the mind; if such results from the use of force or coercion it is personal injury
under this statute. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Specific intent to rape was not element of the crime. State v. Ramirez, 1972-NMCA-
108, 84 N.M. 166, 500 P.2d 451, cert. denied, 84 N.M. 180, 500 P.2d 1303.

Intent. — The wording of this section was not meant to impose the additional
requirement of showing specific intent. The intent which must be present to perform the
act satisfies the "intentional causing" provision in this section. State v. Keyonnie, 1977-
NMSC-097, 91 N.M. 146, 571 P.2d 413.

Voluntary drunkenness no defense. — Instruction that rape requires no specific intent
and that voluntary drunkenness is neither excuse nor justification for crime of rape was
correct. State v. Ramirez, 1972-NMCA-108, 84 N.M. 166, 500 P.2d 451, cert. denied,
84 N.M. 180, 500 P.2d 1303.

Specific sexual intent not an element. — The legislature did not intend to adopt a
requirement of specific sexual intent as an element of this section. State v. Pierce,
1990-NMSC-049, 110 N.M. 76, 792 P.2d 408.

Proof of intent. — State was not required to prove motive or intent. State v. Alva, 1913-
NMSC-056, 18 N.M. 143, 134 P. 209.
"Perpetrated," in Subsection D, means accomplished, performed, committed. State v.
Ramirez, 1978-NMCA-102, 92 N.M. 206, 585 P.2d 651.

Penetration must be intentional. — To prove criminal sexual penetration in the third
degree, the state must establish that the penetration was intentional. State v. Lucero,
1994-NMCA-129, 118 N.M. 696, 884 P.2d 1175, cert. denied, 118 N.M. 731, 885 P.2d
1325.

Child under age of 13. — Causing a child under the age of 13 to engage in
cunnilingus, even where there is no penetration, is sufficient to establish violation of this
section. State v. Orona, 1982-NMSC-002, 97 N.M. 232, 638 P.2d 1077.

Penetration and felony must be continuous transaction under Subsection D(4)
(now E(5)). — If a criminal sexual penetration occurs within the res gestae of a felony,
Subsection D(4) (now E(5)) is applicable, and for the sexual penetration to come within
the res gestae, the felony and the sexual penetration must be part of one continuous
transaction and closely connected in point of time, place and causal connection. State v.
Martinez, 1982-NMCA-053, 98 N.M. 27, 644 P.2d 541, cert. denied, 98 N.M. 336, 648
P.2d 794.

Means of committing offense. — Former law defining rape did not embrace several
distinct offenses, but merely defined the various means by which the same offense
might be committed. Territory v. Edie, 1892-NMSC-019, 6 N.M. 555, 30 P. 851, aff'd on
rehearing, 1893-NMSC-016, 7 N.M. 183, 34 P. 46.

Force or coercion. — Unless there is force or coercion beyond that inherent in almost
every criminal sexual penetration, the proper charge is third degree criminal sexual
penetration. State v. Pisio, 1994-NMCA-152, 119 N.M. 252, 889 P.2d 860, cert. denied,
119 N.M. 20, 888 P.2d 466.

Intercourse with underage girl. — Rape could be perpetrated in any of the ways set
out in the statutes and sexual intercourse with a girl with her consent constituted rape if
she was less than 16 (now 13) years of age. State v. Richardson, 1944-NMSC-059, 48
N.M. 544, 154 P.2d 224.

Submission to request of authority figure is coercion if it is achieved through undue
influence or affected by external forces. State v. Gillette, 1985-NMCA-037, 102 N.M.
695, 699 P.2d 626.

Consensual sex between therapist and adult patient. — A defendant's conduct did
not constitute the crimes of second or third degree criminal sexual penetration because
consensual sex between a therapist and his adult patient is not a crime. State v.
Leiding, 1991-NMCA-043, 112 N.M. 143, 812 P.2d 797, cert. denied, 112 N.M. 77, 811
P.2d 575.
Spouses living apart. — Where defendant’s spouse asked defendant to move out of
their house several days before defendant broke into the house and forcibly had sexual
contact with the spouse; the separation was to last a month to give the spouse time to
decide whether to seek a divorce; defendant believed defendant had no choice but to
move out; and defendant moved some of defendant’s belongings out of the house and
visited the spouse only to get work clothes and toiletries, there was a suspension of the
marital relationship at the time defendant forcibly had sexual contact with the spouse.
Brescheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011,
108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

Guilt of each participant. — A person engages in sexual intercourse, cunnilingus,
fellatio, or anal intercourse if that person is one of the two persons required for the
performance of the act. State v. Delgado, 1991-NMCA-064, 112 N.M. 335, 815 P.2d
631, cert. denied, 112 N.M. 220, 813 P.2d 1018.

Statutory language genderless. — The genderless language used in the statute
makes clear that the defendant can be either male or female. State v. Delgado, 1991-
NMCA-064, 112 N.M. 335, 815 P.2d 631, cert. denied, 112 N.M. 220, 813 P.2d 1018.

Child not conceived "as a result of rape". — Child conceived as a result of fourth
degree criminal sexual penetration of a 16-year-old was not conceived "as a result of
rape" authorizing dismissal of the father from adoption proceedings under Subsection C
of 32A-5-19 NMSA 1978. State ex rel. Children, Youth & Families Dep't v. Paul P.,
1999-NMCA-077, 127 N.M. 492, 983 P.2d 1011.

Defendant entitled to discovery of information relevant to element of mental anguish
which the state has to prove. State v. Garcia, 1980-NMCA-061, 94 N.M. 583, 613 P.2d
725, cert. denied, 94 N.M. 675, 615 P.2d 992.

Defendant may require complaining witness to undergo psychological
examination. — When the mental condition of the victim is relevant because the state
alleges the force or coercion resulted in mental anguish to the victim, defendant may
require complaining witness to undergo a psychological examination, in order to
adequately prepare his defense. State v. Garcia, 1980-NMCA-061, 94 N.M. 583, 613
P.2d 725, cert. denied, 94 N.M. 675, 615 P.2d 992.

                D.     MULTIPLE CONVICTIONS OR PUNISHMENTS.

Criminal sexual penetration and assault with intent to commit criminal sexual
penetration on household member. — Criminal sexual penetration and assault with
intent to commit criminal sexual penetration on a household member are separate
offenses. State v. Jensen, 2005-NMCA-113, 138 N.M. 254, 118 P.3d 762, cert.
quashed, 2005-NMCERT-011, 138 N.M. 587, 124 P.3d 565.
Third degree criminal sexual penetration becomes second degree criminal sexual
penetration when it is committed during the commission of any other felony. Florez v.
Williams, 281 F.3d 1136 (10th Cir. 2002).

Offense of enticement of child is not lesser included offense of criminal sexual
penetration. State v. Garcia, 1983-NMCA-069, 100 N.M. 120, 666 P.2d 1267, cert.
denied, 100 N.M. 192, 668 P.2d 308.

Aggravated sodomy and murder not merged. — Homicide resulting from great bodily
harm provided sufficient evidence for the jury to find aggravated sodomy and first
degree kidnapping, and there was no merger with the charge of murder of which
defendant was acquitted. State v. Melton, 1977-NMSC-014, 90 N.M. 188, 561 P.2d 461.

Merger of attempted criminal sexual penetration and criminal sexual contact of
minor from unitary conduct. — Despite the state’s contention that the conduct
underlying the offenses charged against the defendant was not unitary, in that the
defendant’s action of lying on the victim constituted criminal sexual contact of a minor
and his action of preparing to "hump" her constituted attempted criminal sexual
penetration of a minor, the actions can only reasonably be deemed to constitute unitary
conduct; the contact and attempted penetration all took place within the same short
space of time, with no physical separation between the illegal acts. State v. Mora, 2003-
NMCA-072, 133 N.M. 746, 69 P.3d 256, cert. denied, 133 N.M. 727, 69 P.3d 237.

Criminal sexual contact of minor is not lesser included offense of attempted
criminal sexual penetration. — For purposes of double jeopardy, the offenses of
criminal sexual contact of a minor and attempted criminal sexual penetration of a minor
cannot be characterized as lesser included and greater inclusive crimes because they
each contain different elements and stand independently in relation to one another.
State v. Mora, 2003-NMCA-072, 133 N.M. 746, 69 P.3d 256, cert. denied, 133 N.M.
727, 69 P.3d 237.

Charges of kidnapping and second degree criminal sexual penetration do not
merge since the elements of the offense of second degree criminal sexual penetration
do not involve all of the elements of kidnapping. State v. Singleton, 1984-NMCA-110,
102 N.M. 66, 691 P.2d 67.

The fact that a kidnapping charge was used to raise a charge of criminal sexual
penetration to a second degree felony does not pose a double jeopardy problem.
Convictions normally are allowed for both predicate and compound offenses, and
criminal sexual penetration statutes and kidnapping statutes protect different social
norms. State v. McGuire, 1990-NMSC-067, 110 N.M. 304, 795 P.2d 996.

Under the facts of this case, the jury could have inferred from facts other than the rape
itself that defendant intended to hold the victim against her will from the moment of the
abduction. Since the conduct underlying the offenses is not the same, the double
jeopardy clause does not prohibit multiple punishments in this case. State v. Ramos,
1993-NMCA-072, 115 N.M. 718, 858 P.2d 94, cert. denied, 115 N.M. 602, 856 P.2d
250.

Merger of criminal sexual penetration and kidnapping based on same act. —
Defendant's convictions for second degree criminal sexual penetration (commission of a
felony) and kidnapping (no great bodily harm) under Section 30-4-1 NMSA 1978,
stemming from the same act of sexual intercourse, potentially violated double jeopardy
rights and were required to be set aside. State v. Crain, 1997-NMCA-101, 124 N.M. 84,
946 P.2d 1095.

Consecutive sentences for kidnapping and criminal sexual penetration. —
Consecutive sentences for the compound crime of criminal sexual penetration during
commission of kidnapping and the predicate felony of kidnapping with intent to hold for
service is, in general, permissible because the two crimes address different social
norms. State v. Tsethlikai, 1989-NMCA-107, 109 N.M. 371, 785 P.2d 282, cert. denied,
109 N.M. 262, 784 P.2d 1005 (1990).

Consective sentences. — Consecutive sentences for kidnapping and criminal sexual
penetration did not violate the double jeopardy prohibition against multiple punishments
for the same offense, where the evidence supported an inference that defendant
intended to commit criminal sexual penetration from the moment of the abduction. State
v. McGuire, 1990-NMSC-067, 110 N.M. 304, 795 P.2d 996.

Where the defendant took control of the car at gunpoint and then drove the victims to a
remote location before raping them, the crime of kidnapping was complete before the
act of criminal sexual penetration began; because the two crimes did not constitute a
"unitary act," imposition of consecutive sentences was not double jeopardy. State v.
Andazola, 2003-NMCA-146, 134 N.M. 710, 82 P.3d 77.

Force or coercion for kidnapping or false imprisonment. — A person is entitled to
withdraw his or her consent or express a lack of consent to an act of criminal sexual
penetration at any point prior to the act itself, but force or coercion exerted prior to the
act itself will support a conviction for kidnapping or false imprisonment. State v. Pisio,
1994-NMCA-152, 119 N.M. 252, 889 P.2d 860, cert. denied, 119 N.M. 20, 888 P.2d
466.

False imprisonment and criminal sexual penetration II. — Defendant’s convictions
of false imprisonment and criminal sexual penetration in the second degree which arose
out of the same conduct violated the double jeopardy clause. State v. Armendariz,
2006-NMCA-152, 140 N.M. 712, 148 P.3d 798, cert. quashed, 2008-NMCERT-002, 143
N.M. 667, 180 P.3d 674.

False imprisonment and criminal sexual penetration III. — Defendant’s convictions
for false imprisonment and criminal sexual penetration without the use of a deadly
weapon which arose out of the same conduct did not violate the double jeopardy
clause. State v. Fielder, 2005-NMCA-108, 138 N.M. 244, 118 P.3d 752, cert. quashed,
2006-NMCERT-004, 139 N.M. 430, 134 P.3d 123.

No merger of false imprisonment and criminal sexual penetration. — There was
sufficient evidence to support separate charges for false imprisonment and criminal
sexual penetration where the victim testified that defendant would not let her out of the
bedroom for a period of time after the penetration occurred. State v. Traeger, 2000-
NMCA-015, 128 N.M. 668, 997 P.2d 142, aff'd in part, rev'd in part on other grounds,
2001-NMSC-022, 130 N.M. 618, 29 P.3d 518.

No merger of aggravated burglary and criminal sexual penetration. — Since
aggravated burglary (Section 30-16-4 NMSA 1978) and criminal sexual penetration in
the third degree each require proof of facts which the other does not and since neither
offense necessarily involves the other, there is no double jeopardy violation and no
merger of the offenses despite the fact that the same evidence may go toward proving
both. State v. Young, 1978-NMCA-040, 91 N.M. 647, 579 P.2d 179, cert. denied, 91
N.M. 751, 580 P.2d 972, and cert. denied, 439 U.S. 957, 99 S. Ct. 357, 58 L. Ed. 2d 348
(1978).

No merger of offenses. — Where there was evidence that the victim awoke and found
the defendant on top of her and that the defendant told her not to move or make a noise
or he would blow her head off, that was evidence of a battery. When the battery
preceded sexual activity, there was evidence of an aggravated burglary apart from a
sex offense, and the two offenses did not merge, nor was the "same transaction" test
applied. State v. Archunde, 1978-NMCA-050, 91 N.M. 682, 579 P.2d 808.

Where defendant's acts constituting battery for purposes of aggravated burglary
charges and acts constituting criminal sexual penetration (CSP) were separate and
distinct, convictions and consecutive sentences for both CSP and aggravated burglary
did not violate double jeopardy. Lucero v. Kerby, 133 F.3d 1299 (10th Cir.), cert. denied,
523 U.S. 1110, 118 S. Ct. 1684, 140 L. Ed. 2d 821 (1998).

Aggravated burglary and attempted criminal sexual penetration merged. —
Defendant's conduct consisting of his entry into a dwelling with intent to commit a felony
and attempted criminal sexual penetration (CSP II) was unitary; thus, his convictions for
both aggravated burglary and attempted CSP II violated double jeopardy. Lucero v.
Kerby, 133 F.3d 1299 (10th Cir.), cert. denied, 523 U.S. 1110, 118 S. Ct. 1684, 140 L.
Ed. 2d 821 (1998).

Contributing to delinquency is separate offense. — Criminal sexual penetration of a
minor requires proof of sexual penetration and contributing to delinquency of a minor
requires proof that the defendant's act or omission contributed to the delinquency of a
minor, and neither of those facts is required to prove the other. The legislature intended
separate punishments for criminal sexual penetration of a minor and contributing to
delinquency of a minor when the same conduct violates both statutes. State v. Walker,
1993-NMSC-069, 116 N.M. 546, 865 P.2d 1190.
Felony-murder doctrine applied. — Applying the strict-elements test, first degree
criminal sexual penetration (CSP) is not a lesser included offense of second degree
murder and, accordingly, first degree CSP could properly serve as a predicate for
applying the felony-murder doctrine. State v. Campos, 1996-NMSC-043, 122 N.M. 148,
921 P.2d 1266.

Sentence and prison discipline for same offense. — Contention by inmates
convicted of sodomy that sentence imposed by court amounted to double jeopardy
because they had already been punished by prison officials for same offense was
without merit. Washington v. Rodriguez, 1971-NMCA-021, 82 N.M. 428, 483 P.2d 309.

Multiple sentences improper. — Consecutive sentences of 45 to 50 years and 80 to
99 years imposed on defendant for convictions of assault with intent to commit rape and
rape, respectively, were improper, since where charges arose out of the same
transaction, were committed at the same time as part of a continuous act and were
inspired by the same criminal intent which was an essential element of each offense,
they were susceptible of only one punishment. State v. Blackwell, 1966-NMSC-088, 76
N.M. 445, 415 P.2d 563.

Increasing sentence based on consideration of element of offense. — Where
defendant noted that physical injury is an element of the crime of second degree
criminal sexual penetration under Subsection D(3) (now E(3)), and he contended that
the trial court's consideration of the physical injury suffered by the victim in increasing
the basic sentence pursuant to § 31-18-15.1 exposed him to double jeopardy, it was
held that the court's consideration of circumstances surrounding an element of the
offense did not expose defendant to double jeopardy. State v. Bernal, 1987-NMCA-075,
106 N.M. 117, 739 P.2d 986, cert. denied, 106 N.M. 81, 738 P.2d 1326.

Aggravating factor improperly considered in sentencing. — While the victim's blood
relationship to defendant arguably was a circumstance surrounding the offense of
criminal sexual penetration, it was error for the court to consider such relationship as an
aggravating factor at sentencing on a criminal sexual penetration count after defendant
had also been convicted of incest. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810
P.2d 1223.

Multiple penetrations. — Penetrations of separate orifices with the same object
constitute separate offenses. Therefore, the acts of anal intercourse, sexual intercourse,
and at least one instance of fellatio constitute separate offenses. State v. Wilson, 1993-
NMCA-074, 117 N.M. 11, 868 P.2d 656, cert. quashed, 119 N.M. 311, 889 P.2d 1233
(1995).

Number of contacts. — The number of contacts is not dispositive of the existence of a
separate violation of this section. State v. Pisio, 1994-NMCA-152, 119 N.M. 252, 889
P.2d 860, cert. denied, 119 N.M. 20, 888 P.2d 466.
Single criminal intent of several acts. — Defendant's contention that "single criminal
intent" doctrine should have been applied to four acts of sodomy which he was
convicted of having performed on victim over period of one and one half to two hours
was neither supported by sufficient evidence nor properly preserved for review. State v.
Elliott, 1977-NMSC-002, 89 N.M. 756, 557 P.2d 1105.

Multiple penetrations. — This section cannot be said, as a matter of law, to evince a
legislative intent to punish separately each penetration occurring during a continuous
attack absent proof that each act of penetration is in some sense distinct from the
others. Herron v. State, 1991-NMSC-012, 111 N.M. 357, 805 P.2d 624.

A case involving a single defendant tried on an indictment alleging multiple penetrations
was remanded to the trial court with instructions to vacate 14 convictions and sentences
for second degree criminal sexual penetration and to resentence accordingly, where the
evidence supported, at most, five convictions and sentences. Herron v. State, 1991-
NMSC-012, 111 N.M. 357, 805 P.2d 624.

Defense must raise "single criminal intent" doctrine at trial. State v. Elliott, 1977-
NMSC-002, 89 N.M. 756, 557 P.2d 1105.

Double jeopardy. — Where the evidence established that defendant committed three
separate and distinct battery offenses, double jeopardy did not preclude the first two
batteries supporting a conviction for battery, even though the third battery satisfied
elements of a charge of criminal sexual penetration. Brecheisen v. Mondragon, 833
F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d
707 (1988).

There is no double jeopardy impediment to convicting and sentencing a defendant to
consecutive terms for both incest and criminal sexual penetration arising out of the
same act. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

There was no double jeopardy bar to punishment for the offenses of assault with intent
to commit rape and criminal sexual penetration, where the victim testified at trial that
defendant bound her to a bed, struck her several times, and threatened her verbally for
a period of time before commencing the sexual assault. Swafford v. State, 1991-NMSC-
043, 112 N.M. 3, 810 P.2d 1223.

When the defendant received consecutive sentences upon his plea of guilty to second
degree criminal sexual penetration, aggravated burglary, kidnapping, and aggravated
battery, in order to support a double jeopardy challenge he had the burden to provide a
sufficient record for the court to determine unitary conduct for purposes of the double
jeopardy analysis. State v. Sanchez, 1996-NMCA-089, 122 N.M. 280, 923 P.2d 1165.

Because the crimes of kidnapping and attempted criminal sexual penetration contain
elements not contained in the Order Prohibiting Domestic Violence (OPDV) obtained by
victim against defendant, defendant's double jeopardy rights were not violated by his
conviction for those crimes following his conviction for contempt for violating the OPDV.
State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454, cert. quashed, 127
N.M. 392, 981 P.2d 1210 (1999).

Defendant's right to freedom from double jeopardy was not violated by punishment for
attempted first degree murder, aggravated battery with a deadly weapon, and criminal
sexual penetration. State v. Traeger, 2000-NMCA-015, 128 N.M. 668, 997 P.2d 142,
aff'd in part, rev'd in part on other grounds, 2001-NMSC-022, 130 N.M. 618, 29 P.3d
518.

Where an assault was with an intent to commit criminal sexual penetration, followed
then by criminal sexual penetration, the fear, and the acts of penetration with resulting
personal injury, are reasonably separable in terms of harm and social evil, and are
sufficient to reflect a legislative intent to punish the conduct separately such that the
defendant was not placed in double jeopardy. State v. Jensen, 2005-NMCA-113, 138
N.M. 254, 118 P.3d 762, cert. quashed, 2005-NMCERT-011, 138 N.M. 587, 124 P.3d
565.

                       II.    INDICTMENT AND INFORMATION.

Information not unconstitutionally vague. — Where information expressly stated age
of minor rape victim, and that age was under 10 years, argument that the information
was so vague and indefinite as to violate due process in that it stated an offense both
under statute covering rape of female under or over 16 when resistance is overcome by
force, and also under statute relating to rape of female child under 10, was without
merit. Gallegos v. Cox, 358 F.2d 703 (10th Cir.), cert. denied, 385 U.S. 869, 87 S. Ct.
138, 17 L. Ed. 2d 97 (1966).

Notice sufficient. — The trial court did not deprive defendant of opportunity to be
informed of charges against him by failing to require the state to specify precisely which
of several acts of sodomy defendant was accused of having been accessory to, where
the indictment and bill of particulars which were a part of the record identified the date,
the approximate time and nature of the crimes alleged, the prosecutrix and the
associates with whom defendant was alleged to have committed the crimes. State v.
Barnett, 1973-NMCA-098, 85 N.M. 404, 512 P.2d 977.

Lack of specificity not violative of double jeopardy. — The trial court's refusal to
require that the state specify which act of sodomy the defendant was accessory to did
not subject him to double jeopardy, on the basis of the argument that if he were indicted
or informed against as accessory to a particular act of sodomy based on the same
incident he could not point to his present conviction as precluding his trial on any
particular act of sodomy, where he had not been indicted or informed against for
another crime growing out of the same set of facts. State v. Barnett, 1973-NMCA-098,
85 N.M. 404, 512 P.2d 977.
Separate counts of incest and criminal sexual penetration. — There was no error in
charging defendant on separate counts of criminal sexual penetration and incest under
a theory that he had sexual intercourse with a child under 13 years of age and a child
between 13 and 16 years of age, and he knew each was his biological daughter. State
v. Hargrove, 1989-NMSC-012, 108 N.M. 233, 771 P.2d 166.

Language of statute sufficient. — It was unnecessary to charge crime pursuant to the
common law; an indictment in language of statute which in effect charged sexual
intercourse with a female under the age of fourteen was sufficient, use of the word
"ravish" being unnecessary. State v. Alva, 1913-NMSC-056, 18 N.M. 143, 134 P. 209.

Use of words "carnally know and abuse" in indictment was surplusage. State v. Alva,
1913-NMSC-056, 18 N.M. 143, 134 P. 209.

Charge of rape adequate. — An information "did, with force and arms in and upon the
body of Agnes Vigil . . . unlawfully and feloniously make an assault, and did then and
there wickedly and feloniously against her will . . . ravish and unlawfully know, contrary
to the form of the statute . . ." was sufficient to charge rape and not merely an assault,
notwithstanding the omission of any such words as "her the said Agnes Vigil" between
the words "know" and "contrary." State v. Alarid, 1936-NMSC-047, 40 N.M. 450, 62
P.2d 817.

Information failing to name statutory rape victim not fatally defective. State v.
Roessler, 1954-NMSC-017, 58 N.M. 102, 266 P.2d 351; Ex parte Kelley, 1953-NMSC-
011, 57 N.M. 161, 256 P.2d 211.

Assault with intent to rape. — An indictment charging that defendant unlawfully,
violently and forcibly assaulted prosecutrix with intent to ravish was sufficient charge of
assault with intent to rape. State v. Raulie, 1930-NMSC-074, 35 N.M. 135, 290 P. 789.

Allegation of defendant's virility unnecessary. — It was unnecessary that indictment
allege that defendant was over the age of fourteen or, being under that age, had the
physical ability to commit the offense. State v. Ancheta, 1915-NMSC-003, 20 N.M. 19,
145 P. 1086.

Information and bill construed together. — In determining whether acts alleged
constituted offense of sodomy, the information and the bill of particulars are to be read
together as a single instrument. State v. Putman, 1967-NMCA-020, 78 N.M. 552, 434
P.2d 77.

Overinclusive bill of particulars not binding. — Although bill of particulars alleged
two acts of sodomy, namely, requiring victim to take into her mouth the defendant's
sexual organ and the placing of defendant's sexual organ in the victim's anus, the state
was not bound by the statement in the bill of particulars to prove acts of both types of
sodomy on the part of the defendant, and failure to instruct that the state must prove
both types of sodomy before a conviction would be justified did not require reversal.
State v. Barnett, 1973-NMCA-098, 85 N.M. 404, 512 P.2d 977.

Variance between information and instructions. — Jury instructions describing crime
perpetrated by defendant as that of sexual intercourse with a female under sixteen
years impaired no fundamental rights of defendant even though the crime was charged
as "rape" in the information. State v. Richardson, 1944-NMSC-059, 48 N.M. 544, 154
P.2d 224.

                                      III.     EVIDENCE.

                                 A.          ADMISSIBILITY.

Dismissal unwarranted. — Where the state did not pursue the case of criminal sexual
penetration of a minor under the age of 13 in 1989, because, at that time, it lacked the
evidence to go forward with the case, but the young child victim who in 1989 was
apparently too traumatized to testify voluntarily came forward at a later age to testify,
and there is no evidence that the state intended the delay to work a tactical
disadvantage on defendant or that the state knew or should have known that the delay
would cause any specific tactical disadvantage to defendant and defendant does not
assert that the state improperly obtained such a tactical advantage, dismissal is not
warranted on this basis. State v. Hill, 2005-NMCA-143, 138 N.M. 693, 125 P.3d 1175,
cert. denied, 2005-NMCERT-012, 138 N.M. 772, 126 P.3d 1136.

Subsequent beating irrelevant to determination of degree of offense. —
Defendant's beating of the victim with a blunt instrument subsequent to intercourse was
not considered in determining whether or not the offense of criminal sexual penetration
was committed by force or coercion resulting in personal injury because this beating
went to the aggravated battery conviction. State v. Jiminez, 1976-NMCA-096, 89 N.M.
652, 556 P.2d 60.

Out-of-court identification. — Where victim testified that rapist was in her presence
for approximately an hour and 40 minutes and at the police station she described him
with some specificity, action of police officer in showing victim the driver's license
photograph which victim knew came from wallet she had taken from rapist's pocket and
asking "is this the man" was not so suggestive as to bar evidence of victim's out-of-court
identification, nor was in-court identification inadmissibly tainted because of it. State v.
Baldonado, 1971-NMCA-068, 82 N.M. 581, 484 P.2d 1291.

The out-of-court photographic identification procedure was not so impermissibly
suggestive as to give rise to a substantial likelihood of irreparable misidentification
where the photographs viewed by the victim were all of male caucasians of about the
same age and hirsuteness as defendant. State v. Clark, 1986-NMCA-058, 104 N.M.
434, 722 P.2d 685, cert. denied, 104 N.M. 378, 721 P.2d 1309.
Identification by child. — Testimony by witness that three-year old child said "this is
the man" a half hour after attack upon her was properly admitted over objection that it
was hearsay. State v. Godwin, 1947-NMSC-016, 51 N.M. 65, 178 P.2d 584.

Victim's identification was not tainted by the fact that the case agent and the child's
grandmother hugged the child after she indicated that she was sure of her identification
of the defendant as her assailant. State v. Clark, 1986-NMCA-058, 104 N.M. 434, 722
P.2d 685, cert. denied, 104 N.M. 378, 721 P.2d 1309.

Hypnotically enhanced testimony. — Post-hypnotic recollections, revived by the
hypnosis procedure, are only admissible in a trial where a proper foundation has also
first established the expertise of the hypnotist and that the techniques employed were
correctly performed, free from bias or suggestibility. State v. Clark, 1986-NMCA-058,
104 N.M. 434, 722 P.2d 685, cert. denied, 104 N.M. 378, 721 P.2d 1309.

If the trial court's determination that the identifications were not "post-hypnotic
recollections revived by hypnosis" is supported by substantial evidence, then the
requirements established by State v. Beachum, 1981-NMCA-137, 97 N.M. 682, 643
P.2d 246, were not triggered. State v. Clark, 1986-NMCA-058, 104 N.M. 434, 722 P.2d
685, cert. denied, 104 N.M. 378, 721 P.2d 1309.

Where no details of the incident were mentioned during the hypnotic sessions; no
information was sought from the child, nor details suggested, but the only suggestion
made was that the child should remember; and there was independent, objective
verification of the facts presented by other witnesses, the child victim's in-court
identification was not impermissibly tainted by the unproductive hypnotic session. State
v. Clark, 1986-NMCA-058, 104 N.M. 434, 722 P.2d 685, cert. denied, 104 N.M. 378,
721 P.2d 1309.

Testimony concerning post-traumatic stress disorder. — Testimony concerning
post-traumatic stress disorder is admissible for establishing whether the alleged victim
exhibits symptoms that are consistent with rape or sexual abuse. State v. Alberico,
1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, rev'g 1991-NMCA-112, 116 N.M. 178,
861 P.2d 219.

Testimony concerning rape trauma syndrome. — Record did not suggest that the
danger of unfair prejudice so outweighed the probative value of a witness's testimony
concerning rape trauma syndrome as to require reversal in the absence of an objection,
where there was little likelihood that the jury viewed the testimony as a "diagnosis" that
the victim had been raped. State v. Barraza, 1990-NMCA-026, 110 N.M. 45, 791 P.2d
799, cert. denied, 109 N.M. 704, 789 P.2d 1271.

Testimony concerning rape trauma syndrome is not admissible in a prosecution
involving rape or sexual abuse. State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861
P.2d 192, rev'g 1991-NMCA-112, 116 N.M. 178, 861 P.2d 219.
Foot tracks. — Nonexpert evidence as to identity of accused, derived from a
comparison of foot tracks with other tracks known to be those of accused, was
admissible. State v. Ancheta, 1915-NMSC-003, 20 N.M. 19, 145 P. 1086.

Confession admissible. — Where defendant, believing that prosecutrix had told of his
relations with her, put himself under the protection of a third person and admitted to
such person that he had slept with the prosecutrix, the confession was purely voluntary
and admissible. State v. Whitener, 1918-NMSC-111, 25 N.M. 20, 175 P. 870.

Suppression of evidence of rape trauma syndrome. — An order suppressing a
psychologist's testimony relating to rape trauma syndrome was affirmed, where it could
not be said that the trial court's order was clearly against the logic and effect of the facts
and circumstances, and where there was no request to limit the evidence rather than
exclude it altogether. State v. Bowman, 1986-NMCA-014, 104 N.M. 19, 715 P.2d 467.

Ordinarily previous chastity of prosecuting witness is immaterial in a statutory rape
case. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

Prior relations corroborative of statutory rape. — Evidence tending to show more
than one act of criminal intercourse between accused and prosecutrix was admissible to
show the relation and familiarity of the parties, and was corroborative of prosecutrix'
testimony concerning the particular act relied upon for a conviction of statutory rape.
State v. Whitener, 1918-NMSC-111, 25 N.M. 20, 175 P. 870.

Exclusion of evidence of prior rape and sexual conduct. — In prosecution for
second degree criminal sexual penetration where theory of defense was that of
fabrication of the rape and consensual intercourse, trial court properly excluded
evidence of prior rape of victim and victim's prior sexual conduct. State v. Fish, 1984-
NMSC-056, 101 N.M. 329, 681 P.2d 1106.

Previous intercourse admissible on issue of identity. — Exception to the rule that
previous chastity of victim is immaterial might be where her pregnancy is shown and
testimony given that defendant was father of the child, as there the testimony of prior
sexual acts might be pertinent on rebuttal as tending to show that another might have
been the cause of such condition. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329
P.2d 785.

Previous intercourse not admissible on issue of penetration. — Trial court did not
err in refusing to permit cross-examination of prosecuting witness in prosecution for
statutory rape concerning prior acts of intercourse with other men, since the sole reason
advanced by defendant's counsel for admissibility was on the issue of penetration, an
issue about which there was no genuine controversy. State v. Armijo, 1958-NMSC-108,
64 N.M. 431, 329 P.2d 785.

Evidence of defendant's vasectomy was probative of whether defendant
committed the sexual assault as the victim described. — Where defendant was
charged with criminal sexual penetration of an inmate, allegedly committed while
defendant was employed as a corrections officer, and where, at trial, the district court
admitted evidence regarding defendant's vasectomy over defendant's objection that the
evidence was not relevant, the district court did not abuse its discretion in admitting the
evidence because the serology report presented at trial identified the presence of
semen, but no sperm on the victim's underwear, and additional evidence at trial
established that a vasectomy is one reason why a semen sample might not contain
sperm. Thus, evidence of defendant's vasectomy was probative of whether it was
defendant's semen on the victim's underwear and whether he committed the sexual
assault as the victim described. State v. Arvizo, 2021-NMCA-055, cert. denied.

Defendant's occupation as police officer. — Evidence of the defendant's status as a
police officer was material and relevant to the issue of whether he committed criminal
sexual penetration in the third degree using his status as a police officer to force the
victim to engage in fellatio or perform other delinquent acts. State v. Lucero, 1994-
NMCA-129, 118 N.M. 696, 884 P.2d 1175, cert. denied, 118 N.M. 731, 885 P.2d 1325.

                          B.     INHERENT IMPROBABILITY.

Rule of inherent improbability. — Because of highly emotional and prejudicial
elements present in cases of rape, supreme court has taken the position that over and
above the substantial evidence rule applicable in appeals, it will review the evidence to
determine whether or not it is so inherently improbable that, by conviction of the crime, a
fundamental wrong has been done to defendant. State v. Shouse, 1953-NMSC-104, 57
N.M. 701, 262 P.2d 984.

Where defendant in prosecution for rape of a child contended that evidence was too
vague and insufficient to establish guilt of defendant, appellate court would only weigh
the evidence in the scales of inherent probability, and where there was substantial
evidence tending to sustain the jury's verdict, its determination would be conclusive.
State v. Till, 1967-NMSC-150, 78 N.M. 255, 430 P.2d 752, appeal dismissed and cert.
denied, 390 U.S. 713, 88 S. Ct. 1426, 20 L. Ed. 2d 254 (1968).

Where there was absolutely no evidence corroborating the prosecuting witness, and her
evidence was outside the domain of reasonable probability, and accused denied the
offense, a verdict of guilty was set aside and a new trial ordered. Mares v. Territory,
1901-NMSC-010, 10 N.M. 770, 65 P. 165.

In cases of common-law rape, where in the absence of such corroboration as outcries,
torn and disarranged clothing, wounds or bruises, or if there is long delay in making
complaint, the evidence is so inherently improbable as to be unsubstantial, unless there
is other testimony which points unerringly to the defendant's guilt, an appellate court will
not uphold a conviction. State v. Boyd, 1972-NMCA-120, 84 N.M. 290, 502 P.2d 315,
cert. denied, 84 N.M. 271, 502 P.2d 296, and cert. denied, 411 U.S. 937, 93 S. Ct.
1916, 36 L. Ed. 2d 398 (1973) and reh’g denied, 412 U.S. 924, 93 S. Ct. 2739, 37 L. Ed.
2d 151 (1973).
Reversal since evidence improbable. — District court should, and supreme court
would, examine the evidence in a rape case with great care to determine whether
testimony of prosecuting witness was inherently improbable; and if so, in absence of
some evidence of some fact unequivocally and unerringly pointing to the defendant's
guilt, a conviction would not be permitted to stand. State v. Richardson, 1944-NMSC-
059, 48 N.M. 544, 154 P.2d 224.

Directed verdict. — Court was to instruct jury to find a verdict of not guilty on
defendant's or its own motion when at the close of testimony in rape case insufficiently
supported testimony of prosecuting witness was inherently improbable and a verdict
based on it would constitute a miscarriage of justice. State v. Richardson, 1944-NMSC-
059, 48 N.M. 544, 154 P.2d 224.

Rape not inherently improbable. — Testimony of examining physician that he found
no evidence of trauma or injury to the vagina; that such lack of trauma is unusual in a
rape case; that he found no other physical indication on the prosecutrix or her clothes
that a rape had occurred; and that he found sperm in the vagina but that they were all
immotile did not render the testimony of the prosecutrix inherently improbable. State v.
Boyd, 1972-NMCA-120, 84 N.M. 290, 502 P.2d 315, cert. denied, 84 N.M. 271, 502
P.2d 296, and cert. denied, 411 U.S. 937, 93 S. Ct. 1916, 36 L. Ed. 2d 398 (1973), and
reh’g denied, 412 U.S. 924, 93 S. Ct. 2739, 37 L. Ed. 2d 151 (1973).

Time element. — Where the prosecutrix testified that she was raped twice by
defendant and forced to commit an act of sodomy within a period of approximately 30
minutes, and in addition, there was some conversation between the prosecutrix and
defendant during this time, it could not be said as a matter of law that the events
described could not in fact have occurred during the period stated. State v. Boyd, 1972-
NMCA-120, 84 N.M. 290, 502 P.2d 315, cert. denied, 84 N.M. 271, 502 P.2d 296, and
cert. denied, 411 U.S. 937, 93 S. Ct. 1916, 36 L. Ed. 2d 398 (1973), and reh’g denied,
412 U.S. 924, 93 S. Ct. 2739, 37 L. Ed. 2d 151 (1973).

Initial denial of sodomy. — Prosecutrix' denial that act of sodomy had occurred in first
written statement to police and failure to mention it in second statement to police or to
examining doctor did not render her testimony inherently improbable, where she
explained that her denial and her failure to mention the act were the result of her
embarrassment about it. State v. Boyd, 1972-NMCA-120, 84 N.M. 290, 502 P.2d 315,
cert. denied, 84 N.M. 271, 502 P.2d 296, and cert. denied, 411 U.S. 937, 93 S. Ct.
1916, 36 L. Ed. 2d 398 (1973), and reh’g denied, 412 U.S. 924, 93 S. Ct. 2739, 37 L.
Ed. 2d 151 (1973).

Unusual circumstances not inherently improbable. — The uncorroborated testimony
of a minor child competent to testify, unless there be something inherently improbable in
it, is deemed substantial evidence and sufficient to uphold a conviction, and testimony
which merely discloses unusual circumstances does not come within that category.
State v. Trujillo, 1955-NMSC-094, 60 N.M. 277, 291 P.2d 315.
Rule inapplicable to sodomy. — The "inherently improbable" rule enunciated by the
supreme court in State v. Shouse, 1953-NMSC-104, 57 N.M. 701, 262 P.2d 984, a rape
case, is not applicable in cases of sodomy. State v. Kasakoff, 1972-NMCA-151, 84 N.M.
404, 503 P.2d 1182.

                               C.     CORROBORATION.

Bald charge insufficient. — In this jurisdiction, no corroboration of a prosecutrix by
way of testimony of an independent character emanating from an outside source was
required to sustain a conviction. But the bald charge of a woman against a man in that
regard, unsupported and uncorroborated by facts and circumstances pointing to guilt of
accused, was insufficient to meet requirement that verdict be supported by substantial
evidence. State v. Boyd, 1972-NMCA-120, 84 N.M. 290, 502 P.2d 315, cert. denied, 84
N.M. 271, 502 P.2d 296, and cert. denied, 411 U.S. 937, 93 S. Ct. 1916, 36 L. Ed. 2d
398 (1973) and reh’g denied, 412 U.S. 924, 93 S. Ct. 2739, 37 L. Ed. 2d 151 (1973);
State v. Armijo, 1920-NMSC-011, 25 N.M. 666, 187 P. 553.

Surrounding facts as corroboration. — Testimony of prosecutrix required no
corroboration except that surrounding facts and circumstances must have tended to
establish truth of her testimony, but it need not have been evidence of an independent
character, disconnected from her testimony. State v. Ellison, 1914-NMSC-076, 19 N.M.
428, 144 P. 10 (decided under prior law).

Other witnesses not required. — Corroboration of prosecutrix' testimony by other
witnesses as to particular acts constituting offense of rape was not required and an
instruction to that effect would correctly state the law. State v. Richardson, 1944-NMSC-
059, 48 N.M. 544, 154 P.2d 224.

Corroboration in victim's complaint to mother. — In prosecution for rape, testimony
of prosecuting witness was corroborated by proof of complaint made to her mother of
the outrage committed upon her. Territory v. Edie, 1892-NMSC-019, 6 N.M. 555, 30 P.
851, aff'd on reh'g, 7 N.M. 183, 34 P. 46 (1893).

Defendant's own actions corroborative. — Defendant's actions both preceding and
following rape, including rather severely injuring nose and lip of prosecutrix, making of
threats on way home, and fleeing even before any report was made to the police
pointed unerringly to his guilt, and constituted corroborating circumstances of the truth
of prosecutrix' story. State v. Ramirez, 1962-NMSC-042, 70 N.M. 54, 369 P.2d 973.

Corroboration rule in rape cases was not applicable to sodomy. State v. Boyd,
1972-NMCA-120, 84 N.M. 290, 502 P.2d 315, cert. denied, 84 N.M. 271, 502 P.2d 296,
411 U.S. 937, 93 S. Ct. 1916, 36 L. Ed. 2d 398 (1973), reh’g denied, 412 U.S. 924, 93
S. Ct. 2739, 37 L. Ed. 2d 151 (1973) (decided under prior law).

Corroboration rule not applicable to statutory rape. — In prosecutions for statutory
rape, where consent was immaterial and force was not used, corroboration was not
essential to a conviction, and it had only to be determined that the testimony of the
prosecuting witness was not inherently improbable. State v. Trujillo, 1955-NMSC-094,
60 N.M. 277, 291 P.2d 315.

Corroboration was not required in cases of statutory rape because the usual
concomitant facts present in common-law rape, such as torn and disarranged clothing,
wounds or bruises, outcries, etc., neither necessarily nor ordinarily appear. State v.
Trujillo, 1955-NMSC-094, 60 N.M. 277, 291 P.2d 315.

Uncorroborated testimony of child. — The uncorroborated testimony of a minor child
competent to testify, unless there be something inherently improbable in it, is deemed
substantial evidence and sufficient to uphold a conviction. State v. Trujillo, 1955-NMSC-
094, 60 N.M. 277, 291 P.2d 315.

In statutory sex offenses against a young victim corroboration of the claim that the
defendant is the guilty party is not necessary where the evidence of guilt is substantial.
State v. Montoya, 1957-NMSC-015, 62 N.M. 173, 306 P.2d 1095.

Independent of statute, a man could be convicted of rape upon the uncorroborated
evidence of a strumpet or a girl under the age of ten years. State v. Ellison, 1914-
NMSC-076, 19 N.M. 428, 144 P. 10.

Instruction properly refused. — As no corroboration of prosecutrix was necessary to
uphold conviction, a requested instruction on subject of corroboration, contrary to the
rule, was properly refused. State v. Whitener, 1918-NMSC-111, 25 N.M. 20, 175 P. 870.

Absence of corroboration. — In rape prosecution, where prosecutrix was not
corroborated, evidence was insufficient, for want of such corroboration, to sustain
conviction. State v. Clevenger, 1921-NMSC-097, 27 N.M. 466, 202 P. 687.

In cases of common-law rape, in the absence of such corroboration as outcries, torn
and disarranged clothing, wounds or bruises, or if there is long delay in making
complaint, the evidence might be so inherently improbable as to be unsubstantial, and
would not uphold a conviction. State v. Shults, 1938-NMSC-070, 43 N.M. 71, 85 P.2d
591.

                                  D.     SUFFICIENCY.

Jury's function. — It is the jury's function in a rape case to judge the credibility of the
witnesses and the weight to be given their testimony. State v. White, 1967-NMSC-016,
77 N.M. 488, 424 P.2d 402.

The jury was to determine how much incriminating circumstances were weakened by
contrary characterizations, more or less plausible, or by other facts having an opposite
tendency in the evidence. State v. Godwin, 1947-NMSC-016, 51 N.M. 65, 178 P.2d 584.
Victim's age for jury. — Whether prosecutrix was under the age of consent was a jury
question. State v. Whitener, 1918-NMSC-111, 25 N.M. 20, 175 P. 870.

Sufficient evidence of criminal sexual penetration of a minor under thirteen where
there were inconsistencies as to the victim's age. — Where, on direct and cross-
examination, victim testified that defendant had not digitally penetrated her until after
she turned thirteen years old, but on redirect examination, after having her recollection
refreshed, testified that defendant had penetrated her when she was twelve years old,
there was sufficient evidence to support the jury's finding that defendant committed
criminal sexual penetration of a minor under thirteen. Although the victim's testimony on
redirect contradicted her testimony on direct and cross-examination, it is the exclusive
province of the jury to resolve factual inconsistencies in a witness's testimony. State v.
Little, 2020-NMCA-040.

There was insufficient evidence to support defendant's convictions for crimes
committed during a particular charging period. — Where defendant was convicted
of numerous sex crimes perpetrated against a five-year-old child over a long period of
time, and where the state used a charging structure that separated defendant's crimes
into two distinct six-month time periods: January 1, 2019 to July 1, 2019 and July 1,
2019 to January 22, 2020, there was no evidence in the record that would allow a
reasonable jury to attribute any of defendant's proscribed acts to a time before July 1,
2019, and therefore convictions for crimes committed during this particular charging
period could not be upheld. State v. Montoya, 2026-NMCA-022, cert. granted.

Proof of penetration alone was sufficient to establish the crime of statutory rape. State
v. Harbert, 1915-NMSC-023, 20 N.M. 179, 147 P. 280.

Sufficient evidence supported defendant's conviction for criminal sexual
penetration of a minor. — There was sufficient evidence to support defendant's
conviction for criminal sexual penetration of a minor where the state was required to
prove that defendant caused the insertion to any extent of his penis into the vagina
and/or vulva of the child victim, that the child was under the age of thirteen, and this
happened in New Mexico, and where the state presented evidence from the child's
sister that she saw defendant attempting to insert his penis into the child's vagina and
that, afterwards, the child complained that her vagina was hurting; the jury could
rationally have found that the child's vagina hurt because defendant had inserted his
penis into the vagina and/or vulva of the child "to any extent." State v. Bahr, 2024-
NMCA-075, cert. denied.

Prosecution for attempted CSPM was timely because defendant's absence from
the state tolled the statute of limitations. — Where defendant was convicted of one
count of criminal sexual penetration of a minor (CSPM) and two counts of attempted
CSPM, and where defendant claimed that one of his convictions for attempted CSPM
was barred by the statute of limitations because the charging period included time that
fell outside the six-year limitations period, the statute of limitations did not bar the state
from prosecuting defendant, because the state presented evidence that defendant left
New Mexico and moved to Arizona and was still living in Arizona when he was originally
charged. Consequently, the statute of limitations for prosecuting defendant for
attempted CSPM was tolled when defendant left New Mexico and while he was residing
in Arizona. State v. Bahr, 2024-NMCA-075, cert. denied.

Penetration provable from circumstances. — Proof of penetration was essential to
conviction of having carnally known and abused a minor child, but it was not necessary
that it be proved by direct evidence; it might be established by circumstantial evidence.
State v. Godwin, 1947-NMSC-016, 51 N.M. 65, 178 P.2d 584.

Opportunity and physical condition. — Proof of carnal knowledge could be
adequately shown by fact that opportunity for sexual intercourse existed and that
physical condition of the child showed abuse. State v. Godwin, 1947-NMSC-016, 51
N.M. 65, 178 P.2d 584.

A decedent constitutes a "person" for purposes of this section. — Where
defendant was convicted of first-degree murder and third-degree criminal sexual
penetration (CSP), based on defendant's admission that he killed the victim and then
had sexual intercourse with the victim after she died, but where defendant argued that
the statute requires that the victim be alive at the time of penetration, defendant was
properly convicted of CSP because the purpose of the CSP statute is to protect against
forcible, nonconsensual sexual penetration of a person's body and the legislative intent
underlying CSP is the protection of people from unlawful intrusions into enumerated
areas of the body, and it would be contrary to the spirit of the statute to exclude victims
who were unable to consent or resist solely because the perpetrator rendered the victim
permanently unconscious by killing the victim. State v. Martinez, 2021-NMSC-012.

The state sufficiently established the corpus delicti of CSP. — Where defendant
was convicted of first-degree murder and third-degree criminal sexual penetration
(CSP), based on defendant's admission that he killed the victim and then had sexual
intercourse with the victim after she died, and where defendant argued that the corpus
delicti rule requires the state to produce some evidence that a crime has been
committed in addition to extrajudicial confessions or admissions of the accused to
support a conviction, the state sufficiently established the corpus delicti of CSP because
a defendant's extrajudicial statements may be used to establish the corpus delicti when
the prosecution is able to demonstrate the trustworthiness of the confessions and
introduce some independent evidence of a criminal act, and in this case, the
postmortem condition and location of the victim's body was sufficient to corroborate the
truthfulness of defendant's statements. State v. Martinez, 2021-NMSC-012.

Evidence of penetration sufficient. — Where child’s parent discovered a bruise on
the child’s labia immediately after the child had been in defendant’s care; a linear
abrasion went deep into the child’s vagina; two photographs of the bruise were admitted
into evidence; the child told four people that defendant had pinched the child’s "cha-
cha" and illustrated the statement by pulling on the child’s labia; and the bruise was
consistent with being pinched, the evidence was sufficient to support defendant’s
conviction of criminal sexual penetration by penetration. State v. Massengill, 2003-
NMCA-024, 133 N.M. 263, 62 P.3d 354, cert. denied, 133 N.M. 126, 61 P.3d 835.

Testimony of doctor who examined victim, a minor child under the age of 13, in the
evening of the day of alleged act of sodomy, that there had been a penetration into
boy's anus, along with child's testimony as to the assault and as to the pain experienced
by him as a result thereof, was sufficient evidence of penetration for jury's consideration.
State v. Mase, 1965-NMSC-134, 75 N.M. 542, 407 P.2d 874.

Sufficient evidence of physical force. — Where defendant was convicted of two
counts of criminal sexual penetration (CSP) in the second degree (child age 13-18)
(force or coercion), and where defendant claimed that there was insufficient evidence
from which "force or coercion" could be inferred, there was sufficient evidence to
support the jury's determination that defendant perpetrated CSP by the use of "force or
coercion," because "force or coercion" is conduct of the defendant that provides
evidence of the elements of lack of consent and involuntary penetration of the victim,
and in this case, the evidence was more than sufficient to support the jury's finding that
defendant penetrated the victim against her will, and therefore by the use of "physical
force." State v. Calderon, 2026-NMCA-026.

Sufficient evidence to prove a pattern of conduct of criminal sexual penetration of
a minor. — Where defendant was charged with twelve counts of criminal sexual
penetration of a minor, and where the two children testified to a pattern of conduct
where defendant would put his penis and fingers in each child’s vagina and anus before
she went to school in the mornings, and where the children further testified that
defendant did this more than six times, with one instance tied to the first day of school,
but where no other evidence tied an incident to a certain time or place, the
undifferentiated multiple acts against a victim within a period of time is evidence
sufficient to support a conviction on one count per child for a pattern of conduct of
criminal sexual penetration of a minor. State v. Huerta-Castro, 2017-NMCA-026.

Sufficient evidence of aiding and abetting. — Evidence that defendant ordered the
victims to perform fellatio on particular individuals and threatened the victims with grave
bodily harm if they failed to do so and that defendant assisted in creating the
atmosphere of intimidation which convinced the victims that the threats would be carried
out, there was sufficient evidence to support defendant’s conviction of accessory to
criminal sexual penetration. State v. Perez, 2002-NMCA-040, 132 N.M. 84, 44 P.3d
530, cert. denied, 132 N.M. 83, 44 P.3d 529.

Evidence sufficient to sustain conviction. — Where defendant was convicted for
criminal sexual penetration in the second degree which resulted in the pregnancy of the
victim; the victim testified that defendant impregnated the victim when the victim was
fourteen years old while the victim and the victim’s family were living with defendant,
that the victim felt compelled to have sex with defendant because defendant was an
authority figure, that the sex was not consensual, and that defendant told the victim that
if the victim reported the sexual intercourse, defendant would kill the victim and the
victim’s family; and a forensic DNA analyst testified that DNA samples from defendant,
the victim, and the victim’s child showed that defendant fathered the victim’s child, there
was sufficient evidence to support defendant’s conviction. State v. Fierro, 2014-NMCA-
004, cert. denied, 2013-NMCERT-012.

Where the child, who was six years old, testified that defendant put defendant’s hand
underneath the child’s underwear, touched the child’s vagina, and performed
cunnilingus on the child; and the doctor who performed a SANE examination of the child
testified that the child told the doctor that defendant had inserted defendant’s fingers
into the child’s vagina; and the doctor’s examination of the child revealed injuries to the
child’s vagina that were consistent with penetration by a finger or other object, the
evidence was sufficient to support defendant’s conviction of criminal sexual penetration
of a minor. State v. Skinner, 2011-NMCA-070, 150 N.M. 26, 256 P.3d 969, cert. denied,
2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

The prosecutrix' testimony, which was not inherently improbable and which was
corroborated by facts and circumstances, pointed unerringly to defendant and was
sufficient evidence to sustain the conviction. State v. Boyd, 1972-NMCA-120, 84 N.M.
290, 502 P.2d 315, cert. denied, 84 N.M. 271, 502 P.2d 296, and cert. denied, 411 U.S.
937, 93 S. Ct. 1916, 36 L. Ed. 2d 398 (1973) and reh’g denied, 412 U.S. 924, 93 S. Ct.
2739, 37 L. Ed. 2d 151 (1973).

Evidence consisting of the testimony of the victim's counselor and the victim herself was
sufficient to support convictions of criminal sexual contact with a minor and criminal
sexual penetration of a minor. State v. Ortiz-Burciaga, 1999-NMCA-146, 128 N.M. 382,
993 P.2d 96, cert. denied, 128 N.M. 149, 990 P.2d 823.

When evidence as a whole left no doubt as to fact of intercourse and penetration, it was
sufficient, even though if certain questions addressed to complaining witness with their
answers alone were considered, there might have been some doubt as to sufficiency of
proof. State v. Alva, 1913-NMSC-056, 18 N.M. 143, 134 P. 209.

Appellate court found no ground to disturb verdict of guilty where after sifting from any
recitation of facts made to support claim that 11 year old prosecutrix' testimony was
inherently improbable, all facts and inferences which verdict resolves against defendant,
there remains testimony of a substantial character sufficient to support the conviction.
State v. Trujillo, 1955-NMSC-094, 60 N.M. 277, 291 P.2d 315.

An appellate court will not disturb the verdict of the jury if the victim's testimony was
sufficiently credible for a conviction. State v. Nichols, 2006-NMCA-017, 139 N.M. 72,
128 P.3d 500.

Where defendant was convicted of numerous counts of criminal sexual penetration of a
minor perpetrated on his eight-year-old daughter and four-year-old stepdaughter; the
child victims’ testimony that the nature of defendant’s acts involved physical interaction
that was skin to skin, that defendant rubbed or repetitiously slid his finger upon each
child’s unclothed genital openings, the requirement that penetration minimally occur to
any extent was met, and where eight-year-old victim testified that defendant put his
penis "where I go poop" and that it "actually went in", was sufficient evidence to support
defendant’s conviction for criminal sexual penetration of a minor, and where eight-year-
old child victim’s testimony established that defendant’s repeated movements of his
penis against her unclothed genitalia prior to emission penetrated the labia major to the
slightest extent or beyond, met the penetrative element of criminal sexual penetration of
a minor; there was sufficient evidence for a jury to conclude that defendant committed
the acts of criminal sexual penetration. State v. Tapia, 2015-NMCA-048, cert. denied,
2015-NMCERT-004.

Evidence was sufficient to prove that defendant knew that the victim was unable
to consent to sexual intercourse. — Where defendant was charged with criminal
sexual penetration in the third degree (CSP), and where, at trial, the jury was instructed
that to find defendant guilty of CSP by force or coercion, it must find, beyond a
reasonable doubt, that defendant caused the victim to engage in sexual intercourse, the
victim was unconscious, asleep or physically helpless, and defendant knew or had
reason to know of the victim's condition, and where, at trial, defendant admitted to
engaging in sexual intercourse with the victim, the victim testified that she had
consumed alcohol, was "making out" with another person, and then "blacked out" and
did not remember anything that happened from the time she started making out with the
other person until she "came to" in defendant's bedroom to find the other person and
defendant having sex with her, and a toxicologist testified that the amount of alcohol
and other substances the victim had in her body that night and the effect of those
substances on the victim at the time of the incident could cause excessive sleeping,
confusion, and difficulties with memory or speaking, there was sufficient evidence,
viewed in the light most favorable to the verdict, to permit a rational trier of fact to find
the essential elements of CSP beyond a reasonable doubt. State v. Moreno-Ortiz, 2022-
NMCA-059, cert. denied.

Retrial was not barred where there was substantial evidence of defendant's guilt
under the invalid jury instructions. — Where defendant was charged with two counts
of criminal sexual penetration of a minor in the second degree (CSPM-II) based on the
state's theory that defendant used his position of authority to coerce the victim to submit
to the sexual act, and where the district court instructed the jury using an inapplicable
uniform jury instruction that omitted the essential element of "force or coercion", retrial
was not barred where there was substantial evidence of defendant's guilt under the
given instructions where the jury could reasonably have concluded that the victim had
been coerced into lying still while defendant perpetrated fellatio, a symptom of the
undue influence that defendant's position as the victim's father enabled him to exercise.
State v. Figueroa, 2020-NMCA-007, cert. denied.

Sufficient evidence of criminal sexual penetration of a minor for purposes of
retrial. — Where defendant was convicted of one count of criminal sexual penetration
of a minor and twenty-one counts of criminal sexual contact of a minor, and where
defendant's convictions were overturned based on the state's violation of defendant's
constitutional right against self-incrimination, there was sufficient evidence to support
each of defendant's convictions for purposes of retrial where, at trial, the state
presented evidence from the child victim that defendant committed multiple instances of
criminal sexual contact and at least one instance of criminal sexual penetration over a
four-month period and defendant's admission that he had put the child's penis in his
mouth at least once and had touched the child's penis between twenty and thirty times.
State v. Atencio, 2021-NMCA-061, aff'd in part and rev'd in part by 2024-NMSC-022.

Sufficient evidence of great mental anguish. — Where defendant was convicted of
first-degree criminal sexual penetration (CSP), and where defendant claimed that the
state failed to establish that the victim suffered great mental anguish as a result of the
incident and that the evidence is therefore insufficient to support his conviction for first-
degree CSP, evidence that the victim was over seventy years of age, that she moved to
another state to live with her daughter because she felt unable to live alone, that she
experienced constant flashbacks, and as a result had trouble concentrating and was
unable to drive for a period of time, was sufficient to support a conclusion that the victim
suffered great mental anguish as a result of the incident. State v. Sena, 2018-NMCA-
037, rev'd in part by 2020-NMSC-011.

Sufficient evidence of second-degree criminal sexual penetration perpetrated in
the commission of a felony. — Where defendant was convicted of criminal sexual
penetration in the commission of a felony and first-degree kidnapping, the jury could
have reasonably inferred that defendant took or transported the victim by deception
based on the victim’s testimony that he got into defendant’s truck because defendant
said that he would take the victim home, that defendant confined the victim by force
based on the victim’s testimony that when he tried to escape from defendant’s truck, the
door was locked, that defendant intended to hold the victim against his will to inflict a
sexual offense against him based on the victim’s testimony that defendant took him to a
remote location, pulled down his pants, and then penetrated his anus, that defendant
transported the victim to a remote location and confined him there for the purpose of
inflicting a sexual offense on him based on defendant’s statement upon completion of
the sexual act, "Now I can take you home," that defendant’s act against the victim was
unlawful because the jury could have inferred that it was done without the victim’s
consent and for the purpose of gratifying defendant’s sexual desire or to intrude upon
the victim’s bodily safety or integrity. There was sufficient evidence to support
defendant’s convictions. State v. Samora, 2016-NMSC-031.

Sufficient evidence of criminal sexual penetration based on the commission of a
felony. — Where defendant offered a ride home to a fifteen year old boy, but instead
took the boy back to defendant’s apartment where defendant offered the boy beer and
cocaine, which were consumed by the boy, and where defendant then proceeded to
perform oral sex on the boy and prior to taking the boy home the defendant asked the
boy for anal sex, which the boy complied with because he was afraid that if he did not
he would be anally penetrated, and where, at trial, a forensic examiner testified that she
identified saliva that contained defendant’s DNA on the inside of the victim’s boxer
shorts, there was sufficient evidence to support defendant’s convictions for distribution
of a controlled substance to a minor, CSP II, and contributing to the delinquency of a
minor. State v. Simmons, 2018-NMCA-015, cert. denied.

Sufficient evidence of criminal sexual penetration in the commission of a felony.
— Where defendant was charged with criminal sexual penetration in the commission of
a felony, and where, at trial, the jury was instructed that it had to find by proof beyond a
reasonable doubt that defendant committed the act of sexual intercourse during the
commission of contributing to the delinquency of a minor (CDM) and the commission of
CDM assisted defendant in causing the victim to engage in sexual intercourse, the
evidence was sufficient to support the jury's finding that the commission of CDM
assisted defendant in causing the victim to engage in sexual intercourse where witness
testimony established that defendant helped the victim use drugs and supplied the
victim with alcohol to the point where she could not walk without assistance and was in
and out of consciousness due to intoxication during the events leading up to, during,
and following the sexual intercourse, and that the victim was not able to protest or stop
defendant. Defendant's actions in contributing to the victim's intoxication facilitated the
unlawful sexual intercourse, providing the nexus of causation between the CDM and the
criminal sexual penetration. State v. Elliot, 2025-NMCA-022, cert. denied.

Rape established. — Where the evidence establishes that defendant had sexual
intercourse with a female without her consent and by forcibly overcoming her
resistance, this was rape, regardless of the age of the victim. State v. Garcia, 1967-
NMSC-140, 78 N.M. 136, 429 P.2d 334.

Conviction for rape not barred by facts also establishing statutory rape. State v.
Garcia, 1967-NMSC-140, 78 N.M. 136, 429 P.2d 334.

Rape of child. — In prosecution for rape of child, statement of 9 year old prosecutrix
and testimony of examining doctor expressing opinion that child had undergone sexual
intercourse as late as the day charged constituted substantial evidence and met test of
inherent probability. State v. Till, 1967-NMSC-150, 78 N.M. 255, 430 P.2d 752, appeal
dismissed and cert. denied, 390 U.S. 713, 88 S. Ct. 1426, 20 L. Ed. 2d 254 (1968).

When testimony of prosecuting witness, a child of between twelve and thirteen, was
convincing, was not inherently improbable, was unshaken by cross-examination and
was corroborated by the mother, and, up to a certain point, by defendant, it was
sufficient to sustain a conviction of statutory rape. State v. Keener, 1938-NMSC-073, 43
N.M. 94, 85 P.2d 748.

Spouses living apart. — Evidence supported finding that defendant and his wife were
living apart at the time of the attack, where the wife testified that she felt she was living
apart from defendant at the time of the attack, and there was evidence of the couple's
physical separation and the defendant's securing other housing and paying one month's
rent. Brecheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S.
1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).
Attempted sodomy. — Acts of defendant constituted an active effort to consummate
crime of sodomy and were more than mere preparation, where in addition to his
announced intention to "screw" 16 year old victim, defendant beat victim until he passed
out and removed victim's clothes, during course of which events the fly on defendant's
pants was open. State v. Trejo, 1972-NMCA-019, 83 N.M. 511, 494 P.2d 173.

                                   IV.    DEFENSES.

                                    A.     CONSENT.

Consent is not a defense when victim is a statutorily defined child. — The consent
of a statutorily defined child is legally irrelevant to the unlawfulness element for both
criminal sexual penetration charges. State v. Moore, 2011-NMCA-089, 150 N.M. 512,
263 P.3d 289, cert. denied, 2011-NMCERT-008, 268 P.3d 513.

Where the victim was fourteen years of age; defendant was forty-six years of age; the
victim voluntarily agreed to have sex with defendant; and defendant was charged with
criminal sexual penetration in the second degree and criminal sexual penetration in the
fourth degree, the state did not improperly instruct the grand jury on the unlawfulness
element for the charges when the state omitted language that the act must have been
done "without consent" of the victim, because the consent of a statutorily defined child is
legally irrelevant to the unlawfulness element of both charges. State v. Moore, 2011-
NMCA-089, 150 N.M. 512, 263 P.3d 289, cert. denied, 2011-NMCERT-008, 268 P.3d
513.

Absence of consent not element of criminal sexual penetration. — Although
absence of consent was an element of the rape statute, which has now been repealed,
absence of consent is not an element of the crime of criminal sexual penetration as
defined by the legislature. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d
60; State v. Gillette, 1985-NMCA-037, 102 N.M. 695, 699 P.2d 626.

Absence of consent not element of statutory rape. — Under former law, where
intercourse was with a girl under age of 16 the state need have proved only that
defendant indulged in intercourse with her, regardless of question of her consent. State
v. Richardson, 1944-NMSC-059, 48 N.M. 544, 154 P.2d 224.

Absence of consent not required for rape. — Under former law, where victim was
over age of consent, it was necessary to prove intercourse against her will. State v.
Richardson, 1944-NMSC-059, 48 N.M. 544, 154 P.2d 224.

As was resistance. — To constitute the crime of rape of one over the age of consent,
there must be resistance, and it must be forcibly overcome; it was not sufficient that the
carnal act was violently accomplished, or that it was without her consent. Mares v.
Territory, 1901-NMSC-010, 10 N.M. 770, 65 P. 165 (decided under prior law).
Amount of resistance required of victim depended upon the facts of the particular
case. Resistance may be overcome by fear induced by threats as by physical violence.
State v. White, 1967-NMSC-016, 77 N.M. 488, 424 P.2d 402 (decided under prior law).

Violent injury indicative of adequate resistance. — Less than satisfactory evidence
of resistance would not warrant reversal of rape conviction where the physical violence
done to the prosecutrix and her resultant injuries therefrom tend to show that further
resistance would have been of no avail and perhaps would have resulted in more
serious injuries to her. State v. Ramirez, 1962-NMSC-042, 70 N.M. 54, 369 P.2d 973
(decided under prior law).

Threats overcoming resistance. — Fact that threats by which prosecutrix' resistance
had been overcome were made by someone other than the defendant was immaterial.
State v. Barnett, 1973-NMCA-098, 85 N.M. 404, 512 P.2d 977 (decided under prior
law).

Consent inconsistent with evidence. — Evidence that prosecutrix' clothes were torn,
that she suffered a scratch or cut on the side of her head which bled during the
preliminary hearing, that immediately after the assault various witnesses noticed red
welts or marks, on prosecutrix' throat and that her bedroom was in disarray, was
inconsistent with sexual intercourse by consent. State v. White, 1967-NMSC-016, 77
N.M. 488, 424 P.2d 402.

Consensual sex. — Accused will not be convicted for engaging in purely consensual
sex. State v. Maestas, 2005-NMCA-062, 137 N.M. 477, 112 P.3d 1134, rev'd on other
grounds, 2007-NMSC-001, 140 N.M. 836, 149 P.3d 933.

                                 B.     IMPOTENCY.

Assault with intent to rape. — Impotency could be shown but was not a complete
defense to charge of assault with intent to rape. State v. Ballamah, 1922-NMSC-057, 28
N.M. 212, 210 P. 391.

                                   V.     SODOMY.

Force was not element of crime of sodomy under former law. Washington v.
Rodriguez, 1971-NMCA-021, 82 N.M. 428, 483 P.2d 309 (decided under prior law).

Consent no defense. — Under former law, consent of both parties to the act of
sodomy did not constitute a defense to that crime. Washington v. Rodriguez, 1971-
NMCA-021, 82 N.M. 428, 483 P.2d 309 (decided under prior law).

Emission was not necessary element of crime of sodomy. State v. Massey, 1954-
NMSC-018, 58 N.M. 115, 266 P.2d 359 (decided under prior law).
Each act distinct. — Since under former 40A-9-6, 1953 Comp., "any penetration" could
complete the crime of sodomy, on its face the statute clearly allowed prosecution for
different kinds or acts of sodomy. State v. Elliott, 1977-NMSC-002, 89 N.M. 756, 557
P.2d 1105.

Cunnilingus and fellatio. — Under former 40A-9-6, 1953 Comp., sodomy included a
taking into the mouth "the sexual organ of any other person"; the statute was not limited
to the sexual organ of the male, "any other person" including both male and female.
State v. Putman, 1967-NMCA-020, 78 N.M. 552, 434 P.2d 77 (decided under prior law).

Where former statute (Laws 1876, ch. 34, § 1) provided a penalty for crime of sodomy,
but did not define the term, the common-law definition would apply; hence, sexual
copulation per os or fellatio, was not included in the offense of sodomy. Bennett v.
Abram, 1953-NMSC-013, 57 N.M. 28, 253 P.2d 316 (discharging petitioners in habeas
corpus proceeding where they pleaded guilty to charge of sodomy without proper advice
as to nature of the crime) (decided under prior law).

Aiding and abetting shown. — It was not necessary that the state prove that
defendant aided and abetted a particular act of sodomy, as his presence at the scene
and active participation in the criminal conduct being undertaken, in such a way as to
encourage the commission of the charged offenses, was enough to constitute aiding
and abetting. State v. Barnett, 1973-NMCA-098, 85 N.M. 404, 512 P.2d 977.

                                 VI.    INSTRUCTIONS.

Use of wrong alternative in uniform instruction. — Where defendant was charged
with first degree criminal sexual penetration of a minor for vaginal penetration and first
degree criminal sexual penetration of a minor for anal penetration; the court instructed
the jury that the state had to prove beyond a reasonable doubt that defendant "caused
the insertion to any extent, of a penis into the vagina and/or vulva" of the victim and that
the state had to prove beyond a reasonable doubt that defendant "caused the insertion
to any extent, of a penis into the anus" of the victim; and although the court erred in
using the second alternative of the uniform instruction as the form of the instructions
given to the jury, the instructions as given accurately reflected the statutory law and did
not constitute reversible error. State v. Tafoya, 2010-NMCA-010, 147 N.M. 602, 227
P.3d 92, cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90.

Essential elements of crime. — A jury must be instructed on the essential elements of
the crime charged, and failure so to do is fundamental error because the error is
jurisdictional and thus not harmless. State v. Kendall, 1977-NMCA-002, 90 N.M. 236,
561 P.2d 935, rev'd in part, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464, (holding that
under the circumstances an instruction that victim must not be defendant's spouse, was
not necessary) (decided under prior law).

Essential elements of second-degree criminal sexual penetration in the
commission of a felony. — If unlawfulness is at issue, then lack of consent is an
essential element of criminal sexual penetration perpetrated in the commission of a
felony. State v. Samora, 2016-NMSC-031.

In defendant’s trial for second-degree criminal sexual penetration perpetrated in the
commission of a felony (CSP-felony), where the jury instruction at issue reflected UJI
14-132 NMRA, except that it failed to include the bracketed phrase "without consent,"
which would have clarified that any sexual contact between the victim and defendant
had to be non-consensual for the jury to determine that defendant’s act was unlawful, it
was fundamental error to omit the element of consent from the jury instructions that
were relevant to CSP-felony, because unlawfulness was at issue and the jurors may
have been confused or misdirected as to whether defendant could have still acted
unlawfully if the victim had consented to sex. State v. Samora, 2016-NMSC-031.

Criminal sexual penetration based on the commission of a felony. — When
criminal sexual penetration is based on the commission of a felony, it must be a felony
that is committed against the victim of, and that assists in the accomplishment of, sexual
penetration perpetrated by force or coercion or against a victim who, by age or other
statutory factor, gave no lawful consent. State v. Simmons, 2018-NMCA-015, cert.
denied.

No fundamental error where instruction on CSP-II felony failed to instruct on
causal link between the felony committed and the CSP. — In defendant’s trial for
criminal sexual penetration (CSP II) based on the commission of a felony, where the
jury was instructed that the state must prove defendant caused the victim to engage in
fellatio and anal intercourse, and defendant committed the acts during the commission
of kidnapping or distribution of a controlled substance to a minor or contributing to the
delinquency of a minor, but was not instructed to find that the associated felony must be
committed against the victim of and assist in the accomplishment of the CSP, the jury
instruction was deficient but did not rise to the level of fundamental error, because a
reasonable jury would not be confused by the instruction, and the connection between
the associated felonies and the acts of CSP II was so apparent that the CSP II-felony
convictions did not shock the judicial conscience. State v. Simmons, 2018-NMCA-015,
cert. denied.

Intent instruction for felony underlying second-degree CSP was proper. — Where
defendant was convicted of fourth-degree criminal sexual penetration of a minor and
second-degree criminal sexual penetration of a minor, perpetrated during the
commission of a felony, and where defendant claimed that the jury instruction on giving
alcohol to a minor, the felony underlying his second-degree criminal sexual penetration
conviction, was defective because it omitted the mens rea of the offense, whether he
knew giving alcohol to a minor was unlawful, fundamental error did not occur with the
given instruction, which set forth the proper mens rea for giving alcohol to a minor,
whether defendant knew or had reason to know that the recipient of the alcohol was a
minor. State v. Muller, 2022-NMCA-024, cert. denied.
Fundamental error occurred where jury convicted defendant on an invalid legal
theory. — Where defendant was charged with two counts of criminal sexual penetration
of a minor in the second degree (CSPM-II) based on the state's theory that defendant
used his position of authority to coerce the victim to submit to the sexual act, and where
the district court instructed the jury using an inapplicable uniform jury instruction that
omitted the essential element of "force or coercion", fundamental error occurred
because the given instructions would have confused or misled a reasonable juror and it
was a miscarriage of justice to convict defendant of "position of authority" CSPM-II
because that crime did not exist at the time the CSPM at issue was alleged to have
occurred. State v. Figueroa, 2020-NMCA-007, cert. denied.

Instruction in language of statute. — An instruction which set forth the elements of
the crime of second degree criminal sexual penetration in the language of the statute
was sufficient, and there was no error in failing to instruct on absence of the victim's
consent. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Reading of statute permissible. — In prosecution for rape though there was no
evidence tending to show that the prosecuting witness, through idiocy, imbecility or
unsoundness of mind, either temporary or permanent, was incapable of giving consent,
it was not error for the court, in its instructions, to read the entire section to the jury.
Territory v. Edie, 1892-NMSC-019, 6 N.M. 555, 30 P. 851, aff'd on reh’g, 1893-NMSC-
016, 7 N.M. 183, 34 P. 46.

Instruction constituting constructive amendment of information. — Jury instruction
which allowed for conviction based on digital penetration occurring prior to the
enactment of this section constituted a constructive amendment of the information
which required reversal. Hunter v. New Mexico, 916 F.2d 595 (10th Cir. 1990), cert.
denied, 500 U.S. 909, 111 S. Ct. 1693, 114 L. Ed. 2d 87 (1991).

Instruction on personal injury. — In a prosecution for criminal sexual penetration,
where the trial court gave the statutory definition of personal injury appearing at 30-9-
10C NMSA 1978, and also gave the statutory definition of great bodily harm at 30-1-12A
NMSA 1978 in the instruction on first degree criminal sexual penetration, the lack of
additional definition of personal injury was not error; if defendant desired that personal
injury be further defined, he should have submitted a requested instruction to that effect,
and since he did not do so, he could not complain of the lack of additional definition of
the term. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Failure to give charge of offense in third degree. — Failure to give defendant's
tendered charge on criminal sexual penetration in the third degree was reversible error
at his trial for false imprisonment and criminal sexual penetration in the second degree,
where the jury could find from the evidence that the sexual intercourse occurred by
coercion or force, but without the requisite elements of false imprisonment as an
independent felony. State v. Corneau, 1989-NMCA-040, 109 N.M. 81, 781 P.2d 1159,
cert. denied, 108 N.M. 668, 777 P.2d 907.
Victim other than spouse. — Where there was no evidence whatsoever that the victim
raped, sodomized and killed was the spouse of the defendant, failure to instruct the jury
that it must find that the victim was not defendant's wife in the rape conviction was not a
jurisdictional error. State v. Melton, 1977-NMSC-014, 90 N.M. 188, 561 P.2d 461
(decided under prior law).

Reversal of defendant's conviction of criminal sexual penetration because of trial court's
failure to instruct that jury must find that victim was other than defendant's spouse was
improper under facts of the case, and defendant was properly convicted of criminal
sexual penetration. Kendall v. State, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464
(decided under prior law).

Identical instructions on multiple counts. — Where the jury was given identical
instructions on two counts of attempted criminal sexual penetration that were alleged to
have occurred over a three week period and the victim testified that defendant
attempted to force the victim to perform fellatio four times on different evenings; and the
victim described intervening events between the attempted acts of fellatio, defendant’s
acts were not unitary and the instructions did not violate the double jeopardy clause.
State v. Dombos, 2008-NMCA-035, 143 N.M. 668, 180 P.3d 675, cert. denied, 2008-
NMCERT-002, 143 N.M. 666, 180 P.3d 673.

Instructions on aiding and abetting. — Circumstantial evidence that defendant knew
that throughout defendant’s companion forced the victim to commit various sexual acts;
that on several occasions during the night at the companion’s request, defendant
brought coffee and cigarettes to the companion in the bedroom; and that defendant had
a knife in defendant’s belt was sufficient to support an instruction that the jury could
convict defendant if defendant aided and abetted the companion in the commission of
criminal sexual penetration. State v. Duncan, 1990-NMCA-063, 113 N.M. 637, 830 P.2d
554, aff’d, 1991-NMSC-010, 111 N.M. 354, 805 P.2d 621.

Lesser included offenses. — In trial of Indian for rape under the federal Major Crimes
Act (18 U.S.C. §§ 1153, 3242, conferring federal jurisdiction over certain enumerated
major crimes committed by Indians on Indian reservations), it was reversible error for
trial court to refuse to instruct on the non-enumerated offenses of attempted rape,
simple assault and battery, all of which were lesser included offenses under New
Mexico law. Joe v. United States, 510 F.2d 1038 (10th Cir. 1974).

Lesser included offense instruction. — Any variance between the victim's testimony
at trial and her testimony before the grand jury was insufficient to require an instruction
on a lesser included offense, where defendant's own testimony that he had no contact
of any sort with the victim negated the possibility that such an instruction might have
been warranted. Chavez v. Kerby, 848 F.2d 1101 (10th Cir. 1988).

Lesser included offenses and alibi. — Because the defendant offered the defense of
an alibi, he was not entitled to a lesser included offense instruction on the ground that
the jury might have rejected the part of the complainant's testimony regarding the use of
a gun. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, cert. quashed,
119 N.M. 311, 889 P.2d 1233 (1995).

Charge on third degree not warranted. — Where there was no evidence tending to
establish that the criminal sexual penetration was committed by force or coercion
without resultant personal injury, since the only evidence was that defendant used force
which resulted in personal injury, beating the victim with his fists, twisting her breasts
and pulling her hair immediately prior to sexual intercourse, there was no evidence
supporting an instruction on third degree criminal sexual penetration. State v. Jiminez,
1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Instruction on consent properly refused. — Where a review of the record and a
thorough examination of the prosecutrix' testimony does not ever raise a slight inference
of consent on part of victim, it was not error for trial court to deny defendant's requested
instruction on consent as a defense. State v. Armstrong, 1973-NMCA-081, 85 N.M. 234,
511 P.2d 560, cert. denied, 85 N.M. 228, 511 P.2d 554, overruled on other grounds by
State v. Elliott, 1975-NMCA-087, 88 N.M. 187, 539 P.2d 207.

The district court did not err in denying proposed jury instruction on the age of
consent. — Where defendant was charged with criminal sexual penetration of a minor
(CSPM) for digitally penetrating the vagina of a sixteen-year-old female by force or
coercion, and where, at trial, the jury was instructed that to convict defendant of CSPM,
it must conclude that the charged act was unlawful, and the jury was also erroneously
instructed that for the act to have been unlawful it must have been done without
consent, and where defendant, arguing that because consent was put in issue, the jury
should have been instructed on the age of consent in New Mexico, the district court did
not err in denying defendant's requested instruction, because defendant's theory of the
case was not that the victim consented, but that he never penetrated her, and no
evidence of consent to digital penetration was presented during the trial. Moreover, if
the prosecution has proved that force or coercion was used by the perpetrator, it has
also necessarily proved that the act was non-consensual, and a separate finding of a
lack of consent is not required; providing an instruction on the matter would have served
only to suggest that the jury had to determine a fact not in issue. State v. Cebada,
2024-NMCA-023, cert. denied.

The district court did not coerce the jury into rendering a verdict by refusing to
answer the jury's question regarding the age of consent. — Where defendant was
charged with criminal sexual penetration of a minor (CSPM) for digitally penetrating the
vagina of a sixteen-year-old female by force or coercion, and where, at trial, the jury
was instructed that to convict defendant of CSPM, it must conclude that the charged act
was unlawful, and the jury was also erroneously instructed that for the act to have been
unlawful it must have been done without consent, and where, during deliberations, the
jury indicated that it was confused about the age of consent in New Mexico, the district
court did not abuse its discretion in refusing to answer the jury's question regarding the
age of consent, because there were no statements from the jury indicating that it would
not be able to reach a verdict, and defendant conceded that the jury knew it was an
option to issue a verdict of not guilty, and therefore the district court did not coerce the
jury into rendering a verdict. State v. Cebada, 2024-NMCA-023, cert. denied.

Requested instruction defining CSP of an inmate as an act committed without the
inmate's consent properly denied. — Where defendant was charged with criminal
sexual penetration (CSP) of an inmate, allegedly committed while defendant was
employed as a corrections officer, and where, at trial, defendant proposed a jury
instruction defining CSP of an inmate as an act committed without the inmate's consent,
and where the district court determined that the phrase "without consent" was not
necessary in the jury instruction defining unlawfulness for CSP of an inmate because,
as a matter of law, an inmate cannot consent to sexual intercourse with a corrections
officer, the district court did not err in denying defendant's proposed jury instruction
defining unlawfulness for CSP of an inmate in terms of an absence of consent, because
as a matter of law, an inmate confined in a correctional facility or jail cannot consent to
sexual intercourse with a perpetrator in a position of authority over the inmate. State v.
Arvizo, 2021-NMCA-055, cert. denied.

Defense of consent. — Effective for cases filed after January 20, 2005, instructions
have been approved for the defense of consent in criminal sexual penetration cases
that are analogous to the defense of self-defense. State v. Jensen, 2005-NMCA-113,
138 N.M. 254, 118 P.3d 762, cert. quashed, 2005-NMCERT-011, 138 N.M. 587, 124
P.3d 565.

Defendant was not entitled to his requested mistake of fact instruction under the
state's incapacity theory of criminal sexual penetration. — Where defendant was
charged with two counts of criminal sexual penetration based on two alternative theories
of force or coercion, that defendant knew or had reason to know, based on the victim's
severe intoxication, that the victim was unconscious, asleep or otherwise physically
helpless or suffered from a mental condition that rendered the victim incapable of
understanding the nature or consequences of the sexual penetration or that defendant
used physical force or physical violence to penetrate the victim without consent,
defendant was not entitled to his requested mistake-of-fact instruction under the state's
incapacity theory because the state's incapacity instruction encapsulated defendant's
argued mistake of fact, that he did not know, and could not have known, that the victim
was too intoxicated to consent. The jury was therefore adequately instructed on
defendant's identified mistake of fact – whether defendant knew or should have known
of the victim's incapacity to consent. State v. Apodaca, 2025-NMSC-015, rev'g 2021-
NMCA-001, 482 P.3d 1224.

Defendant was not entitled to his requested mistake of fact instruction under the
state's express non-consent theory of criminal sexual penetration. — Where
defendant was charged with two counts of criminal sexual penetration based on two
alternative theories of force or coercion, that defendant knew or had reason to know,
based on the victim's severe intoxication, that the victim was unconscious, asleep or
otherwise physically helpless or suffered from a mental condition that rendered the
victim incapable of understanding the nature or consequences of the sexual penetration
or that defendant used physical force or physical violence to penetrate the victim without
consent, defendant was not entitled to his requested mistake-of-fact instruction under
the state's express non-consent theory, because the express non-consent theory
presumes that a victim had the legal capacity to consent and the only question
remaining is one of fact, whether the victim actually consented. Since the express non-
consent theory presumed that the victim had the legal capacity to consent, defendant's
awareness of the victim's incapacity was not material to that theory. State v. Apodaca,
2025-NMSC-015, rev'g 2021-NMCA-001, 482 P.3d 1224.

Requested instruction on lesser offense properly refused when no supporting
evidence. — Where there is no view of the evidence adduced which would support the
jury in finding the defendant guilty of third degree criminal sexual penetration which
would not also require the jury to find him guilty of second degree criminal sexual
penetration, a requested instruction on the lesser offense is properly refused. State v.
Romero, 1980-NMCA-011, 94 N.M. 22, 606 P.2d 1116, overruled on other grounds by
State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.

Charge on probability unnecessary. — It was not erroneous in rape case to refuse
instructions calling for jury's consideration of reasonable probability of testimony of
prosecuting witness where jury was instructed that they must find beyond a reasonable
doubt that defendant committed the offense charged before they could return verdict of
guilty. State v. Richardson, 1944-NMSC-059, 48 N.M. 544, 154 P.2d 224.

Intoxication instruction. — Evidence in prosecution for criminal sexual penetration
was sufficient under New Mexico law to warrant an intoxication instruction. Florez v.
Williams, 281 F.3d 1136 (10th Cir. 2002).

Circumstantial evidence. — There was no error in court's refusal to give the usual
stock instruction relating to circumstantial evidence where the state did not rely upon
circumstantial evidence to prove its case in prosecution for sodomy involving two
juveniles. State v. Frederick, 1964-NMSC-045, 74 N.M. 42, 390 P.2d 281.

Impotency. — Where certain statements and testimony of defendant were only
evidence of impotency, and no request for instruction on defense of impotency was
tendered, it was not fundamental error on trial court's part to fail to instruct on its own
motion on the defense, in view of confession and statements made by defendant
admitting the act giving rise to the statutory rape prosecution. State v. Johnson, 1958-
NMSC-046, 64 N.M. 83, 324 P.2d 781.

Coercion not element in fourth degree criminal sexual penetration. — Subsection
D (now G) does not include an element of force or coercion, and there is no basis for
construing it to require nonconsent by the child as an element of the crime. 1988 Op.
Att'y Gen. No. 88-69.

Law reviews. — For symposium, "The Impact of the Equal Rights Amendment on the
New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).
For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63
(1974).

For article, "Rape Law: The Need For Reform," see 5 N.M.L. Rev. 279 (1975).

For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229
(1982).

For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev.
271 (1982).

For article, New Mexico Joins the Twentieth Century: The Repeal of the Marital Rape
Exemption, see 22 N.M.L. Rev. 551 (1992).

For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713
(1992).

For note, "New Mexico Applies the Strict Elements Test to the Collateral Felony
Doctrine - State v. Campos," see 28 N.M.L. Rev. 535 (1998).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 65 Am. Jur. 2d Rape §§ 1 to 30; 70A
Am. Jur. 2d Sodomy §§ 1 to 24.

Liability of parent or person in loco parentis for personal tort against minor child, 19
A.L.R.2d 423, 41 A.L.R.3d 904, 6 A.L.R.4th 1066.

Blood grouping tests, 46 A.L.R.2d 1000, 43 A.L.R.4th 579.

Admissibility and propriety, in rape prosecution, of evidence that accused is married,
has children and the like, 62 A.L.R.2d 1067.

Admissibility, in nonstatutory rape prosecution, of evidence of pregnancy, 62 A.L.R.2d
1083.

Assault with intent to commit unnatural sex act upon minor as affected by the latter's
consent, 65 A.L.R.2d 748.

Applicability of rape statute concerning children of a specified age, with respect to a
child who has passed the anniversary date of such age, 73 A.L.R.2d 874.

Incest as included within charge of rape, 76 A.L.R.2d 484.

Rape by fraud or impersonation, 91 A.L.R.2d 591.

Mistake or lack of information as to victim's age as defense to statutory rape, 8 A.L.R.3d
1100.
Impotency as defense to charge of rape, attempt to commit rape or assault with intent to
commit rape, 23 A.L.R.3d 1351.

Statutory rape of female who is or has been married, 32 A.L.R.3d 1030.

Recantation by prosecuting witness in sex crime as ground for new trial, 51 A.L.R.3d
907.

Consent as defense in prosecution for sodomy, 58 A.L.R.3d 636.

What constitutes penetration in prosecution for rape or statutory rape, 76 A.L.R.3d 163.

Fact that rape victim's complaint or statement was made in response to question as
affecting res gestae character, 80 A.L.R.3d 369.

Multiple instances of forcible intercourse involving same defendant and same victim as
constituting multiple crimes of rape, 81 A.L.R.3d 1228.

Propriety of, or prejudicial effect of omitting or of giving, instruction to jury, in
prosecution for rape or other sexual offense, as to ease of making or difficulty of
defending against such a charge, 92 A.L.R.3d 866.

Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual
acts, 94 A.L.R.3d 257.

Modern status of admissibility, in forcible rape prosecution, of complainant's general
reputation for unchastity, 95 A.L.R.3d 1181.

Constitutionality of rape laws limited to protection of females only, 99 A.L.R.3d 129.

Venue in rape cases where crime is committed partly in one place and partly in another,
100 A.L.R.3d 1174.

Validity and construction of statute defining crime of rape to include activity traditionally
punishable as sodomy or the like, 3 A.L.R.4th 1009.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Validity of statute making sodomy a criminal offense, 20 A.L.R.4th 1009.

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 24
A.L.R.4th 105.

Sufficiency of allegations or evidence of serious bodily injury to support charge of
aggravated degree of rape, sodomy, or other sexual abuse, 25 A.L.R.4th 1213.
Admissibility, at criminal prosecution, of expert testimony on rape trauma syndrome, 42
A.L.R.4th 879.

Constitutionality, with respect to accused's rights to information or confrontation, of
statute according confidentiality to sex crime victim's communications to sexual
counselor, 43 A.L.R.4th 395.

Necessity or permissibility of mental examination to determine competency or credibility
of complainant in sexual offense prosecution, 45 A.L.R.4th 310.

Sexual child abuser's civil liability to child's parent, 54 A.L.R.4th 93.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as
defamation - post-New York Times cases, 57 A.L.R.4th 404.

Intercourse accomplished under pretext of medical treatment as rape, 65 A.L.R.4th
1064.

Prosecution of female as principal for rape, 67 A.L.R.4th 1127.

Admissibility, in prosecution for sex-related offense, of results of tests on semen or
seminal fluids, 75 A.L.R.4th 897.

Fact that murder-rape victim was dead at time of penetration as affecting conviction for
rape, 76 A.L.R.4th 1147.

Admissibility of expert opinion stating whether a particular knife was, or could have
been, the weapon used in a crime, 83 A.L.R.4th 660.

Liability of church or religious society for sexual misconduct of clergy, 5 A.L.R.5th 530.

Statute protecting minors in a specified age range from rape or other sexual activity as
applicable to defendant minor within protected age group, 18 A.L.R.5th 856.

Propriety of publishing identity of sexual assault victim, 40 A.L.R.5th 787.

Sufficiency of allegations or evidence of victim's mental injury or emotional distress to
support charge of aggravated degree of rape, sodomy, or other sexual offense, 44
A.L.R.5th 651.

Mistake or lack of information as to victim's age as defense to statutory rape, 46
A.L.R.5th 499.

Defense of mistake of fact as to victim's consent in rape prosecution, 102 A.L.R.5th 447.

75 C.J.S. Rape §§ 1 to 35; 81 C.J.S. Sodomy §§ 1 to 8.
30-9-12. Criminal sexual contact.
    A. Criminal sexual contact is the unlawful and intentional touching of or application
of force, without consent, to the unclothed intimate parts of another who has reached
his eighteenth birthday, or intentionally causing another who has reached his eighteenth
birthday to touch one's intimate parts.

   B. Criminal sexual contact does not include touching by a psychotherapist on his
patient that is:

      (1)    inadvertent;

      (2)    casual social contact not intended to be sexual in nature; or

     (3)     generally recognized by mental health professionals as being a legitimate
element of psychotherapy.

   C. Criminal sexual contact in the fourth degree consists of all criminal sexual contact
perpetrated:

      (1)    by the use of force or coercion that results in personal injury to the victim;

       (2)   by the use of force or coercion when the perpetrator is aided or abetted by
one or more persons; or

      (3)    when the perpetrator is armed with a deadly weapon.

   Whoever commits criminal sexual contact in the fourth degree is guilty of a fourth
degree felony.

    D. Criminal sexual contact is a misdemeanor when perpetrated with the use of force
or coercion.

   E. For the purposes of this section, "intimate parts" means the primary genital area,
groin, buttocks, anus or breast.

History: 1953 Comp., § 40A-9-22, enacted by Laws 1975, ch. 109, § 3; 1981, ch. 8, §
1; 1991, ch. 26, § 2; 1993, ch. 177, § 3.

                                    ANNOTATIONS

Cross references. — For provision that testimony of victim hereunder need not be
corroborated, see 30-9-15 NMSA 1978.

For limitations on testimony regarding victim's past sexual conduct, see 30-9-16 NMSA
1978.
For the Sex Offender Registration and Notification Act, see 29-11A-1 NMSA 1978.

The 1993 amendment, effective July 1, 1993, deleted the former second sentence of
Subsection A, which defined "intimate parts"; added present Subsections B and E,
redesignating the succeeding subsections accordingly; and made stylistic changes in
Subsections A, C, and E.

The 1991 amendment, effective June 14, 1991, designated the formerly undesignated
first paragraph as present Subsection A and redesignated former Subsections A and B
as present Subsections B and C and, in present Subsection A, substituted "unlawful and
intentional" for "intentionally" and deleted "and someone other than one's spouse"
following "birthday" in two places in the first sentence and made a minor stylistic change
in the second sentence.

Legislative intent. — The legislative intent in defining "intimate parts" with a listing of
five separate protected areas was to protect the victim from intrusions to each
enumerated part; separate punishments are sustainable where evidence shows
distinctly separate touchings of different parts. State v. Williams, 1986-NMCA-122, 105
N.M. 214, 730 P.2d 1196, cert. denied, 105 N.M. 111, 729 P.2d 1365.

Statutory enumeration of different aggravating factors, or alternative methods of
committing fourth degree criminal sexual contact, does not evince a legislative intent to
authorize multiple punishments for the same act; where alternative methods of
committing criminal sexual contact are submitted to the jury, the accused may be found
guilty of only one offense. State v. Williams, 1986-NMCA-122, 105 N.M. 214, 730 P.2d
1196, cert. denied, 105 N.M. 111, 729 P.2d 1365.

Section compared with 30-9-11 NMSA 1978. — This section is a general statute
prohibiting a touching of intimate parts, whereas 30-9-11 NMSA 1978 is a specific
statute which prohibits a touching of the penis with the lips or tongue. Section 30-9-11
NMSA rather than this section was the applicable statute in a prosecution for fellatio
because the specific statute prevails over the general statute. State v. Gabaldon, 1978-
NMCA-077, 92 N.M. 93, 582 P.2d 1306.

Instruction on lesser included offense not warranted by the facts. — Where
defendant was charged with aggravated sexual abuse; defendant broke into the victim’s
house; defendant, who was not wearing pants and who had a knife in defendant’s hand,
climbed on top of the victim, and ordered the victim to remove the victim’s underwear;
the victim felt defendant’s erection; and the victim was told to tell the victim’s friend who
had entered the room that the victim was alright; during that time, defendant was
continually using the knife to cut the victim’s throat, defendant was not entitled to a jury
instruction on the lesser included offense of sexual contact by use of a deadly weapon
resulting in personal injury. United States v. Dennison, 937 F.2d 559 (10th Cir. 1991).

Evidence of "force". — The evidence was sufficient to establish the element of force
necessary to sustain convictions for felony criminal sexual contact where the victim
testified that the defendant, in the first incident, grabbed and squeezed her breasts
causing her pain and discomfort and, in the second incident, squeezed her breasts so
tightly that she was unable to breathe, became dizzy, and was unable to extricate
herself from his grip. State v. Huff, 1998-NMCA-075, 125 N.M. 254, 960 P.2d 342, cert.
denied, 125 N.M. 146, 958 P.2d 104.

"Groin" defined. — Not having defined "groin" in this section as it read prior to 1993
amendment, and nothing to the contrary appearing, the legislature is presumed to use
the common meaning of "groin," which is the fold or depression marking the line
between the lower part of the abdomen and the thigh; also, the region of this line. State
v. Doe, 1979-NMCA-021, 93 N.M. 206, 598 P.2d 1166.

Evidence sufficient to sustain conviction. — A touching of the upper, inner thigh is a
touching in the region of the line between the lower part of the abdomen and the thigh;
the touching is a touching of the groin and, therefore, sufficient evidence to sustain a
conviction of criminal sexual contact. State v. Doe, 1979-NMCA-021, 93 N.M. 206, 598
P.2d 1166.

Law reviews. — For symposium, "The Impact of the Equal Rights Amendment on the
New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Assault and Battery §§ 24
to 30, 41, 42, 55, 67, 106, 119, 156, 229.

Indecent proposal to woman as assault, 12 A.L.R.2d 971.

Sexual nature of physical contact as aggravating offense of assault and battery, 63
A.L.R.3d 225.

Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual
acts, 94 A.L.R.3d 257.

Modern status of admissibility, in forcible rape prosecution, of complainant's general
reputation for unchastity, 95 A.L.R.3d 1181.

Validity and construction of statute defining crime of rape to include activity traditionally
punishable as sodomy or the like, 3 A.L.R.4th 1009.

Walking cane as deadly or dangerous weapon for purposes of statutes aggravating
offenses such as assault and robbery, 8 A.L.R.4th 842.

Parts of the human body, other than feet, as deadly or dangerous weapons for
purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th
1268.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.
Constitutionality, with respect to accused's rights to information or confrontation, of
statute according confidentiality to sex crime victim's communications to sexual
counselor, 43 A.L.R.4th 395.

Liability of church or religious society for sexual misconduct of clergy, 5 A.L.R.5th 530.