{ "id": 4003596, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Ray WHITTINGTON, Defendant-Appellee", "name_abbreviation": "State v. Whittington", "decision_date": "2008-03-26", "docket_number": "No. 27,131", "first_page": "85", "last_page": "90", "citations": [ { "type": "official", "cite": "144 N.M. 85" }, { "type": "parallel", "cite": "183 P.3d 970" }, { "type": "parallel", "cite": "2008-NMCA-063" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2006-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2543188 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0354-01" ] }, { "cite": "2007-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692732 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0083-01" ] }, { "cite": "2005-NMCA-061", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929237 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0420-01" ] }, { "cite": "1999-NMCA-057", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257735 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0222-01" ] }, { "cite": "318 N.W.2d 240", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10676553 ], "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/nw2d/318/0240-01" ] }, { "cite": "1999-NMCA-011", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827395 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0460-01" ] }, { "cite": "2007-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671666 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0836-01" ] }, { "cite": "2005-NMCA-143", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2550023 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0693-01" ] }, { "cite": "1998-NMCA-033", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17868 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0683-01" ] }, { "cite": "1999-NMSC-019", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257619 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0272-01" ] }, { "cite": "176 Or.App. 363", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 348366 ], "weight": 5, "year": 2001, "pin_cites": [ { "page": "1125" }, { "page": "1124" } ], "opinion_index": 0, "case_paths": [ "/or-app/176/0363-01" ] }, { "cite": "105 N.M. 715", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599012 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "716", "parenthetical": "\"[W]ords are presumed to have been used in their ordinary sense, that is, that words are given their ordinary and usual meaning unless the context indicates otherwise.\" (internal citations omitted)" }, { "page": "75", "parenthetical": "\"[W]ords are presumed to have been used in their ordinary sense, that is, that words are given their ordinary and usual meaning unless the context indicates otherwise.\" (internal citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0715-01" ] }, { "cite": "115 N.M. 551", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725428 ], "weight": 2, "pin_cites": [ { "page": "552" }, { "page": "879" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0551-01" ] }, { "cite": "119 N.M. 634", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561354 ], "weight": 2, "pin_cites": [ { "page": "636" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0634-01" ] }, { "cite": "118 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563429 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "242", "parenthetical": "\"The words of a statute, including terms not statutorily defined, should be given their ordinary meaning absent clear and express legislative intention to the contrary.\"" }, { "page": "853", "parenthetical": "\"The words of a statute, including terms not statutorily defined, should be given their ordinary meaning absent clear and express legislative intention to the contrary.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0234-01" ] }, { "cite": "1998-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827451 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "\u00b6 8", "parenthetical": "\"The words of a statute, including terms not statutorily defined, should be given their ordinary meaning absent clear and express legislative intention to the contrary.\"" }, { "parenthetical": "\"The words of a statute, including terms not statutorily defined, should be given their ordinary meaning absent clear and express legislative intention to the contrary.\"" }, { "parenthetical": "\"The words of a statute, including terms not statutorily defined, should be given their ordinary meaning absent clear and express legislative intention to the contrary.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0039-01" ] }, { "cite": "2004-NMSC-015", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1427952 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0458-01" ] }, { "cite": "2006-NMCA-106", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669982 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0230-01" ] }, { "cite": "2005-NMCA-133", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2550623 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0580-01" ] } ], "analysis": { "cardinality": 797, "char_count": 16490, "ocr_confidence": 0.7, "pagerank": { "raw": 6.445245598433026e-08, "percentile": 0.39784018296047374 }, "sha256": "0d8f182f3928767d1771a0285524316fb89aa5aae88bc754826e1aa736c1f222", "simhash": "1:b82e5337716f2f51", "word_count": 2663 }, "last_updated": "2023-07-14T22:37:29.378104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: CYNTHIA A. FRY and IRA ROBINSON, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Ray WHITTINGTON, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{1} The district court dismissed one count of a criminal complaint charging Defendant with criminal sexual contact of a minor (CSCM) on grounds that the prosecution was barred by the statute of limitations. The State appeals, contending that the district court erred in its application of the tolling statute, NMSA 1978, Section 30-1-9.1 (1987), and in its resolution of the factual dispute as to when the statute of limitations began to run. We reverse and remand.\nBACKGROUND\n{2} This case originated from allegations that Defendant had criminal sexual contact with multiple minor females. In March 1994, the Children, Youth and Families Department (CYFD) was contacted by a source alleging that she had been sexually abused by Defendant. The source also expressed concern for several minor females Defendant was spending time with including Denise, the alleged victim in this case, although the source stated that she did not know if any kind of sexual abuse was actually occurring. CYFD conducted an investigation into the allegations of possible abuse and each of the females that was identified, including Denise, was interviewed. Neither Denise nor any of the other females reported any sexual contact with Defendant. The investigation was concluded in April 1994, and the allegations were determined to be unsubstantiated.\n{3} While investigating the allegations of yet another minor female, Sergeant Bill Goodson with the Artesia Police Department contacted Denise in June 2005, after having identified her as a possible victim of sexual abuse by Defendant. It is undisputed that in June 2005, Denise informed Sergeant Good-son that Defendant had touched her breast on one occasion. There is a factual dispute, however, as to whether this was the first time Denise had reported the incident.\n{4} On October 3, 2005, Sergeant Goodson filed a criminal complaint in magistrate court, charging Defendant with three counts of CSCM for conduct involving Denise and two other minor females. When the State filed its criminal information in district court, it reduced the number of charges to two counts of CSCM in violation of NMSA 1978, Section 30 \u2014 9\u201413(B)(1) (2003). Only the first count is relevant to this appeal.\n{5} Count 1 of the criminal information charged Defendant with \u201cunlawfully and intentionally touch[ing] or applying] force to the unclothed intimate parts of Denise ..., a child under thirteen years of age[.]\u201d Further, Count 1 stated that the alleged conduct occurred \u201con or about 1995 or 1996.\u201d The State then filed an amended criminal information revising the date of the alleged conduct to \u201con or between March 1994 and December 1995.\u201d In response to the amended criminal information, Defendant moved to dismiss Count 1 on statute of limitations grounds.\n{6} Defendant\u2019s motion to dismiss was premised on the 1994 CYFD investigation into concerns that Defendant may have engaged in CSCM with Denise. Section 30-1-9.1 directs that the six-year statute of limitations for commencing a prosecution alleging CSCM of a minor in violation of Section 30-9 \u2014 13(B)(1) does not commence \u201cuntil the victim attains the age of eighteen or the violation is reported to a law enforcement agency, whichever occurs first.\u201d Section 30-1-9.1. The Defendant argued that the alleged criminal sexual contact between Defendant and Denise was reported to CYFD in 1994 and that, under Section 30-1-9.1, the statute of limitations expired in 2000. In addition to the general allegations reported to CYFD in 1994, Defendant pointed to a supplemental incident report in which Sergeant Goodson wrote that Denise \u201chad told the interviewer that [Defendant] had touched her breast\u201d during the 1994 interview conducted as part of CYFD\u2019s investigation.\n{7} The State countered Defendant\u2019s argument by asserting that the incident Defendant was charged with occurred after the CYFD report and, thus, could not be the violation that was reported to CYFD. The State also asserted that the CYFD investigation did not rise to the level of being a report of \u201cthe violation\u201d because the information CYFD received was limited to general concerns the source had about several children based on her own abuse. Further, the State argued that to the extent there were facts in dispute that related to when the violation occurred or when it was reported, these were factual issues that should be decided by the jury-\n{8} The district court granted the motion to dismiss, determining that the six-year statute of limitations for the CSCM charge had expired. Specifically, the district court rejected the State\u2019s suggested construction of Section 30-1-9.1 as \u201ctoo narrow,\u201d determined that the requirements of Section 30-1-9.1 were satisfied in 1994, and concluded that the statute of limitations therefore expired in 2000. The State appeals.\nDISCUSSION\n{9} On appeal, the State argues that the district court misapprehended the meaning of Section 30-1-9.1 and resolved factual issues best left for the jury. We address each of these issues below.\nI. Interpretation of Section 30-1-9.1\n{10} Section 30-1-9.1 tolls the running of the statute of limitations for criminal sexual acts committed against minors. Section 30-1-9.1 provides:\nThe applicable time period for commencing prosecution pursuant to Section 30-1-8 NMSA 1978 shall not commence to run for an alleged violation of Section 30-6-1, 30-9-11 or 30-9-13 NMSA 1978 until the victim attains the age of eighteen or the violation is reported to a law enforcement agency, whichever occurs first.\nSection 30-1-9.1 acts to extend the time within which Defendant\u2019s prosecution was required to commence to six years from the time Denise turned eighteen or the violation was reported to a law enforcement agency. See Section 30 \u2014 9\u201413(B)(1) (providing that sexual contact with the unclothed intimate parts of a child under thirteen is a second degree felony); Section 30-l-8(A) (providing a six-year statute of limitations for second degree felonies). Defendant argues that the district court was correct in dismissing Count 1, as the 1994 report to CYFD was sufficient to trigger the running of the statute of limitations. The State responds that the report to CYFD did not trigger the statute of limitations because Section 30-1-9.1 requires that the actual incident Defendant is charged with be the one that was reported to a law enforcement agency, and that a report must be more specific than a general allegation that a violation may have occurred. We agree with the State.\n{11} \u201cThe meaning of language used in a statute is a question of law that we review de novo.\u201d State v. McWhorter, 2005-NMCA-133, \u00b6 5, 138 N.M. 580, 124 P.3d 215. When interpreting statutory language, our primary goal is to give effect to the intent of the Legislature. State v. Torres, 2006-NMCA-106, \u00b6 8, 140 N.M. 230, 141 P.3d 1284. The primary indicator of legislative intent is the plain language of the statute. State v. Young, 2004-NMSC-015, \u00b6 5, 135 N.M. 458, 90 P.3d 477. Thus, absent an express legislative intent to the contrary, \u201c[w]e look first to the words chosen by the Legislature and the plain meaning of the Legislature\u2019s language.\u201d State v. Martinez, 1998-NMSC-023, \u00b6 8, 126 N.M. 39, 966 P.2d 747; see also State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) (\u201cThe words of a statute, including terms not statutorily defined, should be given their ordinary meaning absent clear and express legislative intention to the contrary.\u201d). \u201cOnly when there exists a substantial doubt as to the meaning of the statutory language, or when the literal language of a statute leads to an absurd result, should a court depart from the plain meaning rule.\u201d State v. Muniz, 119 N.M. 634, 636, 894 P.2d 411, 413 (Ct.App.1995) (citing State v. Gutierrez, 115 N.M. 551, 552, 854 P.2d 878, 879 (Ct.App.1993)).\n{12} This dispute centers on the meaning of the phrase \u201cthe violation is reported to a law enforcement agency\u201d contained in Section 30-1-9.1. To determine the meaning of this phrase, we begin by looking at the ordinary and common usage of these words. See Madrid v. Univ. of Cal., 105 N.M. 715, 716, 737 P.2d 74, 75 (1987) (\u201c[W]ords are presumed to have been used in their ordinary sense, that is, that words are given their ordinary and usual meaning unless the context indicates otherwise.\u201d (internal citations omitted)). A \u201cviolation\u201d is commonly understood to mean \u201c[a]n infraction or breach of the law; a transgression\u201d or \u201c[t]he act of breaking or dishonoring the law; the contravention of a right or duty.\u201d Black\u2019s Law Dictionary 1564 (7th ed.1999). Immediately before \u201cviolation\u201d the statute uses \u201cthe\u201d with the result that the statute uses the phrase \u201cthe violation.\u201d The term \u201cthe\u201d is \u201cused as a function word to indicate that a following noun or noun equivalent refers to someone or something previously mentioned or clearly understood from the context or the situation.\u201d Webster\u2019s Third New International Dictionary (unabridged) 2368 (1993). The use of the definite article \u201cthe\u201d therefore limits the meaning of \u201cviolation\u201d to a \u201cviolation\u201d previously mentioned in the statute. The only \u201cviolation\u201d that the statute previously mentions is a prosecution for \u201can alleged violation of Section 30-6-1, 30-9-11 or 30-9-13.\u201d Section 30-1-9.1. It is evident that the Legislature intended the phrase \u201cthe violation\u201d to refer solely to violations of Section 30-6-1, 30-9-11 or 30-9-13. Thus, we conclude that under Section 30-1-9.1, the statute of limitations to commence a prosecution for \u201ca violation\u201d of Section 30-6-1, 30-9-11 or 30-9-13 does not commence until the facts that form the basis for \u201cthe violation\u201d of Section 30-6-1, 30-9-11 or 30-9-13 that is being prosecuted, were reported to a law enforcement agency.\n{13} We find support for our reading of Section 30-1-9.1 in the Oregon Court of Appeals decision in State v. Hutchison, 176 Or.App. 363, 31 P.3d 1123 (2001). In Hutchison, the Oregon court addressed the necessary reporting requirements under a tolling statute similar to New Mexico\u2019s. The pertinent Oregon statute at that time, provided that the prosecution for specified felonies may commence within six years of commission of the offense or, \u201cif the victim at the time of the crime was under [eighteen] years of age, anytime before the victim attains [twenty-four] years of age or within six years after the offense is reported to a law enforcement agency or other governmental agency, whichever occurs first.\u201d Id. at 1124-25 (emphasis added) (quoting ORS Section 131.125(2) (2001)). The Oregon court held that \u201c[t]he language plainly requires actual communication of the facts that form the basis for the particular offense reported[,]\u201d and that \u201cthe statute of limitations as to each of the listed felonies begins to run only when specific factual information about conduct constituting \u2018the offense\u2019 is reported.\u201d Hutchison, 31 P.3d at 1125. Due to the similarities between our statute and the Oregon statute, we find Hutchison persuasive and adopt its holding. See State ex rel. Sandel v. N.M. Pub. Util. Comm\u2019n, 1999-NMSC-019, \u00b6 14, 127 N.M. 272, 980 P.2d 55 (\u201c[T]he Court may view cases from other jurisdictions interpreting practically identical statutory language as persuasive authority.\u201d) (citing State v. Warsop, 1998-NMCA-033, \u00b6 10, 124 N.M. 683, 954 P.2d 748).\n{14} Returning to the plain language of the statute, Section 30-1-9.1 states, in simplified form, that the statute of limitations for \u201can alleged violation\u201d is not triggered until \u201cthe violation is reported.\u201d Once again, the use of the definite article \u201cthe\u201d refers back to \u201can alleged violation of Section 30-6-1, 30-9-11 or 30-9-13.\u201d Section 30-1-9.1. Based on the plain language of the statute, it is clear that \u201cthe violation\u201d that was being reported is the same as the \u201calleged violation\u201d that is being tolled. Thus, the reporting provision of Section 30-1-9.1 only triggers the statute of limitations for a specific violation that was reported to a law enforcement agency.\n{15} The Oregon court adopted a similar interpretation of the tolling provision in its statute. In Hutchison, the victim reported in 1991 that her stepfather had \u201ctouched her through her clothing \u2018on the breast area and then on another time in the buttocks area.\u2019 \u201d 31 P.3d at 1124. She did not, however, inform investigators of any other type of sexual contact until 1997, after she turned eighteen years of age, when she made a formal report that she had been raped and sodomized by her stepfather between 1986 and 1991. Id. According to the Oregon Court of Appeals: \u201cEach separate instance of criminal conduct is a separate offense and may be separately charged as such. Hence, the statute of limitations begins to run as to each separate offense only when the facts of each separate offense have been reported.\u201d Id. at 1125. Thus, the Oregon Court of Appeals held that the victim\u2019s report in 1991, that her stepfather had touched her breast and buttocks through her clothing, did not constitute a report of or bar the stepfather\u2019s prosecution for the offenses of rape and sodomy. Id. at 1124-25.\n{16} Our Legislature struck a balance between the protection of minors and persons charged with violations of Section 30-6-1, 30-9-11 or 30-9-13 by enacting Section 30-1-9.1. Absent proof of a due process violation by showing \u201cprejudice and an intentional delay by the [Sjtate to gain a tactical advantage,\u201d the State is \u201centitled to the preindictment period that the [Legislature, as a matter of public policy, has enunciated in the applicable statute of limitations[,]\u201d and related tolling provisions. See State v. Hill, 2005-NMCA-143, \u00b6 17, 138 N.M. 693, 125 P.3d 1175 (internal quotation marks and citation omitted). It is not within our province to second-guess these policy decisions. See State v. Maestas, 2007-NMSC-001, \u00b6 14, 140 N.M. 836, 149 P.3d 933 (\u201cOur role is to construe statutes as written and we should not second guess the [Legislature's policy decisions.\u201d).\nII. Factual Issues Regarding Statute of Limitations\n{17} The State contends that the disputed factual issues related to when the statute of limitations began to run on Defendant\u2019s CSCM charges are for the jury to decide. We agree.\n{18} We have previously held that \u201c \u2018[w]here there are disputed questions of material fact as to whether a plaintiff is barred by the statute of limitations, these questions are to be decided by a jury.\u2019 \u201d Medina v. Fuller, 1999-NMCA-011, \u00b6 22, 126 N.M. 460, 971 P.2d 851 (quoting Grondahl v. Bulluck, 318 N.W.2d 240, 243 (Minn.1982)); Rupp v. Hurley, 1999-NMCA-057, \u00b6 25, 127 N.M. 222, 979 P.2d 733 (\u201cOrdinarily, statute-of-limitations issues are to be. decided by the jury and cannot be decided on motion by the court if there are disputed material facts.\u201d). Furthermore, our courts have often required the jury to determine when the statute of limitations began to run in other circumstances. See, e.g., Williams v. Stewart, 2005-NMCA-061, \u00b6 16, 137 N.M. 420, 112 P.3d 281 (\u201cHistorically, the courts of this state have characterized the application of the discovery rule as a jury question, particularly when conflicting inferences may be drawn.\u201d). We see no reason for establishing a different mechanism for determining when the statute of limitations is triggered under Section 30-1-9.1. Thus, to the extent that there was conflicting evidence regarding when the violation occurred or when a report was made, these issues must be resolved by a jury. See State v. Hughey, 2007-NMSC-036, \u00b6 16, 142 N.M. 83, 163 P.3d 470 (\u201cIt is the role of the factfinder to judge the credibility of witnesses and determine the weight of evidence.\u201d) (citing State v. Ryan, 2006-NMCA-044, \u00b6 20, 139 N.M. 354, 132 P.3d 1040).\nCONCLUSION\n{19} We reverse the district court\u2019s determination that the statute of limitations barred Defendant\u2019s prosecution for CSCM with the victim, Denise, and remand for further proceedings consistent with this opinion.\n{20} IT IS SO ORDERED.\nWE CONCUR: CYNTHIA A. FRY and IRA ROBINSON, Judges.\n. NMSA 1978, Section 30-1-8 (2005)\n. NMSA 1978, Section 30-6-1 (2005)\n.NMSA 1978, Section 30-9-11 (2007)", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellant.", "The Jones Witt Law Firm, S. Doug Jones Witt, Roswell, NM, for Appellee." ], "corrections": "", "head_matter": "2008-NMCA-063\n183 P.3d 970\nSTATE of New Mexico, Plaintiff-Appellant, v. Ray WHITTINGTON, Defendant-Appellee.\nNo. 27,131.\nCourt of Appeals of New Mexico.\nMarch 26, 2008.\nGary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellant.\nThe Jones Witt Law Firm, S. Doug Jones Witt, Roswell, NM, for Appellee." }, "file_name": "0085-01", "first_page_order": 117, "last_page_order": 122 }