{ "id": 4249821, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Jeffery MOORE, Defendant-Appellee", "name_abbreviation": "State v. Moore", "decision_date": "2011-06-09", "docket_number": "No. 29,248; Docket No. 33,111", "first_page": "512", "last_page": "519", "citations": [ { "type": "official", "cite": "150 N.M. 512" }, { "type": "parallel", "cite": "263 P.3d 289" }, { "type": "parallel", "cite": "2011-NMCA-089" } ], "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": "115 N.M. 622", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725416 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "627", "parenthetical": "\"[C]ases are not authority for propositions not considered.\" (internal quotation marks and citation omitted)" }, { "page": "27", "parenthetical": "\"[C]ases are not authority for propositions not considered.\" (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0622-01" ] }, { "cite": "2003-NMCA-065", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15919 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 16, 19" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0636-01" ] }, { "cite": "102 N.M. 695", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580236 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "697-98, 700", "parenthetical": "recognizing that lack of consent is not an element of CSP II in a case involving a twelve-year-old victim" }, { "page": "628-29, 631", "parenthetical": "recognizing that lack of consent is not an element of CSP II in a case involving a twelve-year-old victim" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0695-01" ] }, { "cite": "2007-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671666 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/140/0836-01" ] }, { "cite": "2005-NMCA-062", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929188 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 24" }, { "page": "\u00b626" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0477-01" ] }, { "cite": "2008-NMCA-147", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243207 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 1" }, { "page": "\u00b6\u00b6 9-11" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0123-01" ] }, { "cite": "2010-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247544 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0359-01" ] }, { "cite": "2009-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243229 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0088-01" ] }, { "cite": "2005-NMCA-113", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2549649 ], "weight": 18, "pin_cites": [ { "page": "\u00b6 21" }, { "page": "\u00b6 19" }, { "page": "\u00b621" }, { "page": "\u00b6 19" }, { "page": "\u00b6 21" }, { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0254-01" ] }, { "cite": "2000-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106498 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/128/0686-01" ] }, { "cite": "1999-NMCA-142", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106585 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 15, 24" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0546-01" ] } ], "analysis": { "cardinality": 765, "char_count": 23567, "ocr_confidence": 0.663, "pagerank": { "raw": 8.456915249799047e-08, "percentile": 0.48504449487209483 }, "sha256": "e679de7fb0ff5cbdbb35927565275c6954c26d2a649efd21c8e50c33bbe319f8", "simhash": "1:fae65e379ac7afa2", "word_count": 3837 }, "last_updated": "2023-07-14T21:53:59.243869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: JONATHAN B. SUTIN and CYNTHIA A. FRY, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Jeffery MOORE, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nGARCIA, Judge.\n{1} The State appeals the district court\u2019s pretrial dismissal of three counts of criminal sexual penetration (CSP) that were each charged under two alternative theories: (1) CSP in the second degree (CSP II) based upon CSP perpetrated during the commission of a felony, contrary to NMSA 1978, Section 30 \u2014 9\u201411 (E)(5) (2007) (amended 2009); or (2) CSP in the fourth degree (CSP IV) based upon CSP \u201cperpetrated 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[,]\u201d contrary to Section 30-9-ll(G)(l). This appeal requires us to consider whether the district court erred by concluding that the State improperly instructed the grand jury on the definition of the unlawfulness element for CSP II and CSP IV when it omitted language that the act must have been done \u201cwithout consent\u201d of the fourteen-year-old alleged victim. We conclude that the State properly instructed the grand jury regarding the definition of unlawfulness because the consent of a statutorily defined child is legally irrelevant to the unlawfulness element for both CSP II and CSP IV. As a result, we reverse the district court\u2019s order dismissing Counts I, V, and VI of the indictment, and we remand for further proceedings consistent with this Opinion.\nBACKGROUND\n{2} During the grand jury proceedings on June 2, 2008, the grand jury considered eight criminal counts in the proposed indictment, including three counts of CSP. The State instructed the grand jury that unlawfulness was an essential element of both CSP II and the alternative counts of CSP IV, as charged in Counts I, V, and VI. The State further defined \u201cunlawfulness\u201d as follows:\nIn addition to the other elements of [CSP II], ... or [CSP IV], for you to return a True Bill on these charges[,] you must find probable cause as to each of the following elements: For the act to have been unlawful it must have been done with the intent to arouse or gratify sexual desiref,] or to intrude on the bodily integrity or personal safety of the [V]ictim[,] or for some other unlawful purpose. [CSP II], ... and [CSP IV] do not include a penetration for purposes of reasonable medical treatment, non-abusive parental or custodial care, lawful arrest or confinement^] or for some other unlawful [sic] purpose.\nSee UJI 14-132 NMRA.\n{3} Detective Lavilla then testified that V.M. (Victim) and Jeffery Moore (Defendant) were unrelated, that Victim was fourteen years old, and that Defendant was forty-six years old. Detective Lavilla further testified that during a recorded interview, Victim stated that Defendant was her father\u2019s friend and that Defendant and Victim were \u201cwith each other\u201d every Friday night for two and a half months before law enforcement officers discovered their activity on May 16, 2008. Additionally, Victim told Detective Lavilla that she voluntarily agreed to have sexual intercourse with Defendant and that Defendant and Victim smoked marijuana and engaged in sexual intercourse on multiple occasions. The grand jury subsequently returned a true bill on all counts, and the State filed a grand jury indictment charging Defendant with eight criminal counts, including three counts of CSP that were each charged as CSP II, or in the alternative, CSP IV. The underlying felony supporting the CSP II charge was contributing to the delinquency of a minor, contrary to NMSA 1978, Section 30-6-3 (1990), based upon Defendant allegedly providing marijuana or smoking marijuana with Victim.\n{4} On September 16, 2008, Defendant filed a motion to dismiss Counts I, V, and VI, charging Defendant with CSP II or alternatively CSP TV. Defendant asserted that the State omitted the \u201cwithout consent\u201d language in UJI 14-132 in its instructions to the grand jury, which was \u201ccritical to this case since the unequivocal and undisputed evidence is that the sexual intercourse was consensual.\u201d Defendant further contended that \u201c[b]ecause the prosecutor failed to properly instruct grand jurors on the essential element of \u2018unlawfulness,\u2019 the grand jury was not instructed on all the essential elements of [CSP].\u201d As a result, Defendant argued that dismissal of the charges was required pursuant to State v. Ulibarri, 1999-NMCA-142, 128 N.M. 546, 994 P.2d 1164, aff'd, 2000-NMSC-007, 128 N.M. 686, 997 P.2d 818. In a subsequent reply and argument before the district court, Defendant additionally argued that this Court recognized the New Mexico Supreme Court\u2019s approval of \u201cjury instructions for the defense of consent in CSP cases\u201d filed after January 20, 2005. See State v. Jensen, 2005-NMCA-113, \u00b6 21,138 N.M. 254,118 P.3d 762 (recognizing that \u201ceffective for cases filed after January 20, 2005, the Supreme Court has approved instructions for the defense of consent in CSP cases that are analogous to the defense of self-defense,\u201d pursuant to UJI 14-132 and UJI 14-946 NMRA). Defendant relied upon Jensen to argue that because Defendant\u2019s case was filed after January 20, 2005, and the undisputed evidence of consent raised a genuine issue of unlawfulness, the State was required to include language regarding the absence of consent in its definition of unlawfulness.\n{5} In response, the State argued that although unlawfulness is an element of CSP, UJI 14-132 provides that the optional \u201cwithout consent\u201d language is to be used only in applicable cases. The State further contended that since this Court has repeatedly held that absence of consent is not an element of CSP, the State properly excluded language regarding the absence of consent from the grand jury instructions. See Jensen, 2005-NMCA-113, \u00b6 19, 138 N.M. 254, 118 P.3d 762 (stating that \u201cour cases have long held that absence of consent is not an element of the crime of CSP\u201d). Additionally, the State argued that the definition of \u201cunlawfulness\u201d in UJI 14-132 indicates that the \u201cwithout consent\u201d language is not applicable to all charges that use the unlawfulness definition because absence of consent is not a question of law essential for a CSP conviction. Finally, the State argued that even if consent were a defense to CSP in some cases, consent is not a defense where the alleged victim is under sixteen years of age. As a result, the State argued that the grand jury instructions were proper and that Defendant\u2019s motion to dismiss should be denied.\n{6} On December 18, 2008, the district court entered an order dismissing without prejudice the CSP charges in Counts I, V, and VI. The court found that it was undisputed that the sexual intercourse providing the basis for the CSP charges was consensual. The court further found that the State omitted the \u201cwithout consent\u201d language when it read the \u201cunlawfulness\u201d instruction to the grand jury. Finally, the court noted that in Jensen, 2005-NMCA-113, \u00b621, 138 N.M. 254, 118 P.3d 762, this Court recognized the Supreme Court\u2019s approval of jury instructions regarding the defense of consent in CSP cases filed after January 20, 2005. As a result, the district court concluded that \u201c[gjiven the evidence of alleged consensual intercourse in this ease, a genuine issue of the unlawfulness of [Defendant\u2019s] actions was raised[,]\u201d and the State was required to include the \u201cwithout consent\u201d language in grand jury instructions regarding the \u201cunlawfulness\u201d element. Based on its conclusion that the grand jury instructions were legally insufficient, the court dismissed without prejudice the CSP charges against Defendant. The State now appeals the district court\u2019s order of dismissal.\nDISCUSSION\n{7} The State presents four arguments on appeal: (1) language regarding the absence of consent was properly excluded from the unlawfulness instruction because absence of consent is not an element of CSP involving a fourteen-year-old victim; (2) even if consent were considered a defense to CSP, the State is not required to disprove trial defenses during grand jury proceedings; (3) the Uniform Jury Instructions are a secondary source of law that cannot overrule primary sources; and (4) to the extent that UJI 14-132 may require the State to prove lack of consent in CSP cases, it is an erroneous statement of law. In response, Defendant asserts that an instruction regarding unlawfulness was required since unlawfulness is an element of CSP II and CSP IV and that the \u201cwithout consent\u201d language was required since it is included in the jury instruction defining unlawfulness. We conclude that the State properly instructed the grand jury regarding the definition of unlawfulness because the consent of a fourteen-year-old child is legally irrelevant to the unlawfulness element for both CSP II and CSP IV. As a result, we reverse the district court\u2019s dismissal of Counts I, V, and VI, and we need not consider the State\u2019s remaining arguments on appeal.\nStandard of Review\n{8} \u201c[A] prosecutor has a duty to advise the grand jury of the essential elements of the charges presented.\u201d State v. Gallegos, 2009-NMSC-017, \u00b6 12, 146 N.M. 88, 206 P.3d 993. Furthermore, the remedy for a failure to advise the grand jury of the essential elements is a dismissal of the charges without prejudice. Ulibarri, 1999-NMCA-142, \u00b6\u00b6 15, 24, 128 N.M. 546, 994 P.2d 1164. Here, it is undisputed that unlawfulness is an essential element of CSP II and CSP IV, but the parties disagree regarding whether language regarding the absence of consent was required to be included in the definition of unlawfulness. Whether the unlawfulness instruction was required to include language regarding the absence of consent is a question we review de novo. See State v. Henley, 2010-NMSC-039, \u00b6 12, 148 N.M. 359, 237 P.3d 103.\nUnlawfulness Element of CSP II and CSP IV\n{9} Section 30-9-ll(A) defines CSP as \u201cthe 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.\u201d (Emphasis added.) Section 30-9-11 then incorporates this general definition of CSP into subsections defining the various degrees of CSP. See \u00a7 30-9-11(0 to (F). CSP II may be met through multiple circumstances, including \u201call [CSP] perpetrated ... in the commission of any other felony.\u201d Section 30-9-ll(E)(5). CSP in the third degree (CSP III) \u201cconsists of all [CSP] perpetrated through the use of force or coercion not otherwise specified in this section.\u201d Section 30-9-ll(F). Finally, CSP IV \u201cconsists of all [CSP] ... not [otherwise] defined in Subsections D through F ... 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.\u201d Section 30-9-ll(G)(l).\n{10} In State v. Perea, the defendant appealed his conviction of CSP III, arguing that the evidence only supported a conviction for CSP IV (involving a child between thirteen and sixteen years of age). 2008-NMCA-147, \u00b6 1, 145 N.M. 123, 194 P.3d 738. Specifically, the defendant contended that there was no evidence of the required element of force for CSP III because the victim consented to the sexual encounters. Id. \u00b6\u00b6 8-9. This Court held that \u201cconsent is not a viable legal defense to conviction for CSP III\u201d and that the \u201c[c]onsent of a child between the ages of thirteen and sixteen to engage in sexual intercourse is irrelevant where force or coercion is involved.\u201d Id. \u00b6 9. In considering the defendant\u2019s argument that he should have been convicted of the lesser CSP IV charge, this Court similarly concluded that:\nUnder the CSP IV statute, the law does not recognize the willingness of a child between the ages of thirteen and sixteen to engage in sexual intercourse with a twenty-nine-year-old man as vitiating his causing the intercourse to occur. Such a child\u2019s consent is legally irrelevant.\nId. \u00b6\u00b6 10-11 (citations omitted).\n{11} We first consider whether the State properly excluded language requiring the absence of Victim\u2019s consent in instructing the grand jury regarding the unlawfulness element for the three alternative counts of CSP IV. As stated in Perea, the law does not recognize the willingness of a fourteen-year-old child to consent to sexual intercourse with a forty-six-year-old man as vitiating the act of CSP, and as a result, Victim\u2019s consent or lack thereof is legally irrelevant under the CSP IV statute. See id. Defendant provides no basis to distinguish the present case from Perea in relation to the CSP IV charges, but instead concedes that Victim\u2019s consent is irrelevant to the element of unlawfulness for CSP IV. Consequently, we conclude that the grand jury instructions regarding the unlawfulness element for the three alternative counts of CSP IV properly excluded language regarding the absence of Victim\u2019s consent.\n{12} We next turn to whether the State properly excluded the \u201cwithout consent\u201d language when instructing the grand jury regarding the unlawfulness element for the three counts of CSP II. Defendant argues that pursuant to the definition of CSP II in UJI 14-954 NMRA, the State was mandated to instruct the grand jury that Defendant\u2019s act was required to be unlawful since there was a genuine issue regarding the unlawfulness of Defendant\u2019s actions. See UJI 14-954 n. 7 (\u201cUse the bracketed element [that the defendant\u2019s act was unlawful] if the evidence raises a genuine issue of the unlawfulness of the defendant\u2019s actions.\u201d). Defendant further contends that the issue of whether Victim could consent due to her young age applies only to the CSP IV charge under Perea, and the \u201cwithout consent\u201d language must be included in the instruction regarding the unlawfulness element of CSP II.\n{13} We conclude that the consent of a statutorily defined child is irrelevant to the unlawfulness element of CSP II. In Perea, we reasoned that the consent of a child between the ages of thirteen and sixteen is legally irrelevant for both CSP III, where force is required, and CSP IV, where force is not required. 2008-NMCA-147, \u00b6\u00b6 9-11,145 N.M. 123, 194 P.3d 738. Similarly, CSP II incorporates the same universal definition of CSP in Section 30-9-ll(A), including the requirement that the act be unlawful. See \u00a7 30-9-11(E) (5). Furthermore, the only additional element required for CSP II is that the defendant must have perpetrated the act of CSP \u201cin the commission of any other felony.\u201d Id. Just as Perea concluded that the consent of a child between thirteen and sixteen years of age to engage in sexual intercourse with a twenty-nine-year-old man does not vitiate the act of CSP required for CSP III (use of force or coercion) or CSP IV, we conclude that the consent of a fourteen-year-old child to engage in sexual intercourse with a forty-six-year-old man does not vitiate the act of CSP required for CSP II. Id. \u00b6\u00b6 9, 11. Furthermore, just as Perea concluded that the additional question for CSP III is \u201cwhether [the defendant used force in accomplishing his ends irrespective of the [under-aged] victim\u2019s role[,]\u201d we determine that a similar question applies for CSP II regarding whether Defendant perpetrated the act of CSP during the commission of another felony irrespective of the under-aged Victim\u2019s role. Id. \u00b6 11; see State v. Maestas, 2005-NMCA-062, \u00b6 24, 137 N.M. 477, 112 P.3d 1134, (determining that CSP II based on commission of a felony \u201crequir[es] the jury to find that [the defendant caused [the v]ictim to engage in the various sex acts and that the acts occurred during the commission of the underlying felony\u201d), rev\u2019d on other grounds, 2007-NMSC-001, 140 N.M. 836, 149 P.3d 933.\n{14} Additionally, we recognize that force or coercion is not always an essential element of CSP II. Maestas, 2005-NMCA-062, \u00b626, 137 N.M. 477, 112 P.3d 1134. \u201cThrough its definitions of CSP II, the [Ljegislature intended to punish those who participate in certain sexual activity, even without exerting force or coercion, when the participant is in a position of authority over an inmate, when the participant is armed with a deadly weapon, or when the sex act is caused by the defendant in the commission of any other felony.\u201d Id. Furthermore, the Legislature did not limit CSP II (commission of a felony) to only those underlying felonies involving force or coercion, but instead, \u201csimply required that the CSP be caused by the defendant in the commission of any other felony.\u201d Id. (internal quotation marks and citation omitted). As a result, we decline to extend the definition of the unlawfulness element of CSP II to include an additional requirement that Victim did not consent to the sexual intercourse during Defendant\u2019s commission of a felony. See id. \u00b6\u00b6 4, 24 (recognizing in a CSP II case where the alleged victim was an adult, the required \u201ccausal connection\u201d between the requested sexual act and the underlying felony was sufficient to ensure that an accused will not be convicted for engaging in an act of purely consensual sex).\n{15} Finally, we recognize that our statutory authority and cases similarly indicate that absence of consent is not an element of the crime of CSP. See NMSA 1978, \u00a7 30-9-10(A) (2005) (stating that \u201c[p]hysical or verbal resistance of the victim is not an element of force or coercion\u201d under the sex crimes statutes); see also Jensen, 2005-NMCA-113, \u00b6 19,138 N.M. 254,118 P.3d 762 (recognizing that \u201cour cases have long held that absence of consent is not an element of the crime of CSP\u201d); State v. Gillette, 102 N.M. 695, 697-98, 700, 699 P.2d 626, 628-29, 631 (Ct.App. 1985) (recognizing that lack of consent is not an element of CSP II in a case involving a twelve-year-old victim). Having recognized that absence of consent is not an essential element of CSP, we similarly decline to expand the definition of unlawfulness related to charges of CSP to include absence of consent as an essential element. As a result, the State properly excluded the \u201cwithout consent\u201d language from the definition of unlawfulness in this ease, as set forth in the CSP IV and CSP II instructions to the grand jury. See State v. Augustin M., 2003-NMCA-065, \u00b6\u00b6 16, 19, 133 N.M. 636, 68 P.3d 182 (recognizing that the prosecution is required to instruct the grand jury regarding the elements of the offense, but not possible defenses that a defendant may raise).\n{16} Consequently, we hold that the State properly excluded the \u201cwithout consent\u201d language from the grand jury instruction defining \u201cunlawfulness\u201d because Victim\u2019s consent or lack thereof is legally irrelevant to the unlawfulness element of both CSP II and CSP IV.\nUniform Jury Instruction Defining \u201cUnlawfulness\u201d\n{17} We briefly address Defendant\u2019s argument that the \u201cwithout consent\u201d language was required because it \u201cis clearly part of the jury instruction setting forth the meaning of unlawfulness.\u201d UJI 14-132 provides a definition of \u201cunlawfulness\u201d for offenses that include the term \u201cunlawful\u201d in defining the offense, including certain assault and battery offenses, sex offenses, and false imprisonment or kidnapping offenses. See UJI 14-132 n. 1. UJI 14-132 defines \u201cunlawfulness\u201d as follows:\nFor the act to have been unlawful it must have been done [without consent and]:\n[with the intent to arouse or gratify sexual desire]\n[or]\n[to intrude upon the bodily integrity or personal safety of\n_!_(name of victim)]\n[or]\n[_ (other unlawful purpose) ].\n_ (name of offense) does not include a [touching] [penetration] [confinement]\n[_ (:relevant act) ] for purposes of [reasonable medical treatment] [nonabusive (parental care) (or) (custodial care) ] [lawful arrest, search or confinement] [_ (other lawful purpose) ].\n(Alterations in original).\n{18} We conclude that nothing in UJI 14-132 requires the bracketed \u201cwithout consent\u201d language to be included in defining the unlawfulness of CSP II or CSP IV where the alleged victim is a statutorily defined child. The use notes clearly indicate that the bracketed alternatives are not applicable to every case. See UJI 14-132 n. 1 (\u201cThe examples suggested in the bracketed language have been taken from controlling cases addressing particular offenses and are not applicable to every case.\u201d). The use notes further clarify that \u201c[o]ne or more of the three [bracketed] alternatives may be given without the bracketed \u2018without consent and\u2019.\u201d UJI 14-132 n. 3. Here, the State defined unlawfulness using the three bracketed alternatives in UJI 14-132, specifying that for the act to be unlawful, \u201cit must have been done with the intent to arouse or gratify sexual desiref,] or to intrude on the bodily integrity or personal safety of the [v]ictim[,] or for some other unlawful purpose.\u201d Additionally, the State instructed the grand jury that lawful purposes such as \u201ca penetration for purposes of reasonable medical treatment, non-abusive parental or custodial care, [or] lawful arrest or confinement\u201d were not included in the definition of the CSP offenses. However, as previously discussed, the State properly excluded the \u201cwithout consent\u201d language since it is legally irrelevant to both CSP II and CSP IV involving a statutorily defined child victim. As a result, we conclude that the State properly instructed the grand jury regarding the definition of unlawfulness by using the appropriate bracketed alternatives set forth in UJI 14-132.\nThe District Court\u2019s Reliance on Jensen\n{19} Finally, we briefly address the district court\u2019s reliance on Jensen, 2005-NMCA-113, \u00b6 21, 138 N.M. 254, 118 P.3d 762, to conclude that our Supreme Court had approved the defense of consent for CSP cases filed after January 20, 2005. We first note that the issue in Jensen was whether the defendant received ineffective assistance of counsel, not whether the defendant was entitled to a jury instruction regarding consent. Id. \u00b6\u00b6 17-18; see Fernandez v. Farmers Ins. Co. of Ariz., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993) (\u201c[C]ases are not authority for propositions not considered.\u201d (internal quotation marks and citation omitted)). We further note that Jensen recognized that pursuant to our case law and statute, \u201cabsence of consent is not an element of the crime of CSP.\u201d 2005-NMCA-113, \u00b6 19, 138 N.M. 254, 118 P.3d 762. Finally, we recognize that Jensen is distinguishable because it addressed whether consent was a defense in a CSP case where the alleged victim was the adult wife of the defendant, rather than whether absence of consent was required to be included in defining the essential elements of CSP involving a child victim as in the present case. Id. \u00b6\u00b6 1, 22. As a result, we conclude that the district court erred in determining that the \u201cwithout consent\u201d language was required to be included in the definition of unlawfulness for CSP II and CSP IV in a case involving an alleged victim that was a statutorily defined child.\nCONCLUSION\n{20} For the foregoing reasons, we reverse the district court\u2019s order dismissing Counts I, V, and VI of Defendant\u2019s indictment, and we remand for further proceedings consistent with this Opinion.\n{21} IT IS SO ORDERED.\nWE CONCUR: JONATHAN B. SUTIN and CYNTHIA A. FRY, Judges.", "type": "majority", "author": "GARCIA, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Margaret E. McLean, Assistant Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellant.", "Liane E. Kerr, Albuquerque, NM, for Appellee." ], "corrections": "", "head_matter": "2011-NMCA-089\n263 P.3d 289\nSTATE of New Mexico, Plaintiff-Appellant, v. Jeffery MOORE, Defendant-Appellee.\nNo. 29,248.\nCourt of Appeals of New Mexico.\nJune 9, 2011.\nCertiorari Denied, Aug. 5, 2011,\nDocket No. 33,111.\nGary K. King, Attorney General, Margaret E. McLean, Assistant Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellant.\nLiane E. Kerr, Albuquerque, NM, for Appellee." }, "file_name": "0512-01", "first_page_order": 548, "last_page_order": 555 }