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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MARVIN RAY QUMYINTEWA,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Benjamin Chavez, District Judge
Gary K. King, Attorney General, Santa Fe,
NM, for Appellee
Jorge A. Alvarado, Chief Public Defender,
Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant
MICHAEL D. BUSTAMANTE, Judge. WE CONCUR:
RODERICK T. KENNEDY, Chief Judge, LINDA M. VANZI, Judge
AUTHOR: MICHAEL D. BUSTAMANTE
{1} Defendant Marvin
Ray Qumyintewa contends that the district court erred in refusing to permit him
to present jury instructions regarding involuntary intoxication, inability to
form specific intent as a result of voluntary intoxication, and temporary
insanity as defenses to charges of criminal sexual contact of a child under
thirteen (CSCM) and criminal sexual penetration of the same child (CSPM). [DS
8] In our notice of proposed summary disposition, we proposed to affirm.
{2} Qumyintewa has
filed a memorandum in opposition to this Court’s proposed summary disposition.
He continues to argue that the fact that his brother said that Qumyintewa would
be a “wuss” if he did not drink alcohol on the evening in question constitutes
the kind of pressure that, due to Qumyintewa’s cultural background and
psychological issues, should qualify as duress such that Qumyintewa’s
intoxication should be considered to be legally involuntary. [MIO 5-6] The
out-of-jurisdiction authorities he provides in support of this argument do not
aid him, as those cases involved situations where the person ingested a
substance without knowing that it was intoxicating. [MIO 5-6] Here, in
contrast, Qumyintewa’s memorandum indicates that he had an alcohol dependence
disorder and thus that he knew that alcohol was intoxicating. [MIO 2] We hold
that sibling pressure to take an intoxicant does not constitute the type of
duress that would render the resulting intoxication involuntary.
See State v.
Gurule,
2011-NMCA-042, ¶ 19,
149 N.M. 599,
252 P.3d 823 (stating that the
defense of duress is available only when the defendant engaged in an act in
order to “avoid a harm of greater magnitude” (alteration, internal quotation
marks, and citation omitted)).
{3} Qumyintewa argues
that, to the degree that his intoxication was voluntary, he should have been
permitted to instruct the jury on the defense of voluntary intoxication.
See
State v. Garcia,
2011-NMSC-003, ¶ 35,
149 N.M. 185,
246 P.3d 1057 (stating
that “voluntary intoxication provides a defense to specific intent crimes where
the intoxication is to such a degree as would negate the possibility of the
necessary intent” (internal quotation marks and citation omitted)). He
correctly notes that in this Court’s notice of proposed summary disposition, we
erroneously characterized CSCM and CSPM as strict liability offenses. He points
out that when the evidence raises a genuine issue regarding the unlawfulness of
the defendant’s actions, the State is required to prove the element of
unlawfulness.
See UJI
14-925 NMRA, use note 4; UJI
14-957 NMRA, use note
6. Evidence that an act is unlawful requires proof that it was done with the
intent to arouse or gratify sexual desire, to intrude upon the bodily integrity
or personal safety of the victim, or for some other unlawful purpose.
See
UJI
14-132 NMRA. In contrast, lawful contact with the intimate parts of a child
might include contact for legitimate caregiving or medical purposes.
Id.
{4} However, Qumyintewa
does not argue on appeal that there was a genuine issue as to the unlawfulness
of his conduct in this case, and does not point to where he preserved any such
argument below. [RP 58-65 (discussing the element of unlawfulness but never
arguing that there could be any view of the facts in this case under which
Qumyintewa’s conduct could have been for some lawful purpose)] Because
Qumyintewa’s argument that he was entitled to a voluntary intoxication
instruction to negate specific intent is based on his argument that the
unlawfulness element requires a specific intent, and because Qumyintewa failed
to demonstrate in the district court that he was entitled to an instruction on
unlawfulness, we hold that the district court did not err in refusing to give
an instruction on voluntary intoxication. We express no opinion on whether he
would have been entitled to such an instruction had he established that
unlawfulness was a matter at issue in the case.
{5} Finally,
Qumyintewa’s memorandum in opposition makes no specific arguments with respect
to temporary insanity, and we therefore conclude that he has abandoned this
argument.
See State v. Johnson,
1988-NMCA-029, ¶ 8,
107 N.M. 356,
758
P.2d 306 (stating that when a case is decided on the summary calendar, an issue
is deemed abandoned where a party fails to respond to the proposed disposition
of the issue).
{6} For these reasons,
we affirm the district court’s order.
MICHAEL D. BUSTAMANTE, Judge
RODERICK T. KENNEDY, Chief Judge