{ "id": 2762758, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Dion Ross KASAKOFF, Defendant-Appellant", "name_abbreviation": "State v. Kasakoff", "decision_date": "1972-11-03", "docket_number": "No. 962", "first_page": "404", "last_page": "405", "citations": [ { "type": "official", "cite": "84 N.M. 404" }, { "type": "parallel", "cite": "503 P.2d 1182" } ], "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": "78 N. M. 573", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326438 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0573-01" ] }, { "cite": "57 N.M. 701", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8843281 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0701-01" ] }, { "cite": "82 N.M. 287", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333873, 5334938 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0287-01", "/nm/82/0287-02" ] }, { "cite": "81 N.M. 631", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358645 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0631-01" ] }, { "cite": "82 N. M. 428", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5330722 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0428-01" ] }, { "cite": "78 N.M. 471", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321896 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0471-01" ] }, { "cite": "381 U.S. 479", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172057 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/381/0479-01" ] } ], "analysis": { "cardinality": 278, "char_count": 3233, "ocr_confidence": 0.68, "pagerank": { "raw": 1.262700374753061e-07, "percentile": 0.6128046461396012 }, "sha256": "1853152f4058b02498893248e88fe590a50df7a8db70bc16abff213edfb37757", "simhash": "1:10496f21a4af3be6", "word_count": 536 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and HERNANDEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Dion Ross KASAKOFF, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nCOWAN, Judge.\nDefendant appeals from the judgment and sentence following his conviction of the crime of sodomy, contrary to \u00a7 40A\u2014 9-6, N.M.S.A.1953 (2nd Repl.Vol. 6).\nWe affirm.\nThe complaining witness, a female guest in defendant\u2019s motel, testified that she had a date with the defendant and was driven to an outlying area near Carlsbad where she was forced, through fear, to engage in an act of sodomy with the defendant. The defendant denied committing the act.\nDefendant\u2019s principal ground for reversal is that the sodomy statute, supra, \u201cis void on its face for an unconstitutional overbreadth\u201d in that it prohibits private, consensual acts of adult persons in violation of the United States Constitution\u2019s \u201cunspecified\u201d right of privacy as enunciated in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).\nSince the state\u2019s evidence was that the act was committed by force and the defendant denied committing the act, he cannot now argue that the incident was a consensual act between two adult persons.\nThe New Mexico Supreme Court held, in State v. Hines, 78 N.M. 471, 432 P.2d 827 (1967), that the constitutionality of a legislative act is open to attack only by a person whose rights are affected thereby; that the complainant must allege in what manner his constitutional rights are adversely affected; and that an appellate court does not sit to decide abstract constitutional questions.\nSince the defendant does not claim nor argue that he is a member of the class discriminated against by the sodomy statute or that his rights have been impaired by the application of the statute to him, he lacks standing to challenge the constitutionality of the act. State v. Hines, supra. See also Washington v. Rodriguez, 82 N. M. 428, 483 P.2d 309 (Ct.App.1971).\nThe defendant also argues that there was insufficient evidence to support the jury\u2019s verdict of guilty. There was a conflict in the evidence but this conflict was for the jury to resolve. State v. Mora, 81 N.M. 631, 471 P.2d 201 (Ct.App.1970). Viewing the evidence and all reasonable inferences in the light most favorable to the verdict, as we must, we cannot say that the verdict was not supported by substantial evidence as a matter of law. State v. Sedillo, 82 N.M. 287, 480 P.2d 401 (Ct.App.1971). Defendant urges that we review the evidence in light of the \u201cinherently improbable\u201d rule enunciated by the Supreme Court in State v. Shouse, 57 N.M. 701, 262 P.2d 984 (1953), a rape case. We do not deem the rule applicable here.\nDefendant finally argues that the court erred in failing to follow the jury\u2019s recommendation of clemency. This point is without merit, the recommendation of clemency being advisory only and not binding upon the court. State v. Henry, 78 N. M. 573, 434 P.2d 692 (1967).\nThe judgment and sentence is affirmed.\nIt is so ordered.\nHENDLEY and HERNANDEZ, JJ., concur.", "type": "majority", "author": "COWAN, Judge." } ], "attorneys": [ "Dick A. Blenden, Carlsbad, for defendant-appellant.", "David L. Nor veil, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "503 P.2d 1182\nSTATE of New Mexico, Plaintiff-Appellee, v. Dion Ross KASAKOFF, Defendant-Appellant.\nNo. 962.\nCourt of Appeals of New Mexico.\nNov. 3, 1972.\nRehearing Denied Nov. 15, 1972.\nDick A. Blenden, Carlsbad, for defendant-appellant.\nDavid L. Nor veil, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0404-01", "first_page_order": 560, "last_page_order": 561 }