{ "id": 1568702, "name": "STATE of New Mexico, Plaintiff-Appellee, v. John DOE, Defendant-Appellant", "name_abbreviation": "State v. Doe", "decision_date": "1979-02-13", "docket_number": "No. 3701", "first_page": "206", "last_page": "210", "citations": [ { "type": "official", "cite": "93 N.M. 206" }, { "type": "parallel", "cite": "598 P.2d 1166" } ], "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": "92 N.M. 100", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557263 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0100-01" ] }, { "cite": "92 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557033 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0109-01" ] }, { "cite": "90 N.M. 404", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874808 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0404-01" ] }, { "cite": "90 N.M. 249", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874228 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0249-01" ] }, { "cite": "92 N.M. 74", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557264 ], "weight": 4, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0074-01" ] }, { "cite": "91 N.M. 700", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571107 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0700-01" ] }, { "cite": "91 N.M. 560", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571149 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0560-01" ] }, { "cite": "78 N.M. 777", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320768 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0777-01" ] } ], "analysis": { "cardinality": 519, "char_count": 10578, "ocr_confidence": 0.776, "pagerank": { "raw": 1.0053610587762866e-07, "percentile": 0.5405921349082514 }, "sha256": "eff2feb740db7bd8871c71a5f87da8f67f22f66a2be5bf90ad06079170ca7961", "simhash": "1:e718d02f7fe61033", "word_count": 1778 }, "last_updated": "2023-07-14T15:53:36.909287+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ and WALTERS, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. John DOE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe appeal in this Children\u2019s Court case involves: (1) criminal sexual contact of the groin; (2) seizure of marijuana; (3) need of care or rehabilitation; and (4) disposition of the child.\nCriminal Sexual Contact of the Groin\nThe court found that the child committed criminal sexual contact. Section 30-9-12, N.M.S.A.1978 defines the offense to include the unconsented intentional touching of the unclothed intimate parts of another. \u201cFor purposes of this section \u2018intimate parts\u2019 means the primary genital area, groin or anus.\u201d\nThere is no evidence going to a touching of the primary genital area or anus. The child asserts there is no evidence of a touching of the groin, and contends that groin is so indefinable that one cannot determine where the groin is located.\nNot having defined \u201cgroin\u201d in the statute, and nothing to the contrary appearing, the Legislature is presumed to have used the common meaning of \u201cgroin\u201d. State v. Garcia, 78 N.M. 777, 438 P.2d 521 (Ct.App.1968). The common meaning, in Webster\u2019s Third New International Dictionary (1966) is \u201cthe fold or depression marking the line between the lower part of the abdomen and the thigh; also: the region of this line\u201d.\nThe victim, awakened, felt something on her legs. Asked to describe the part of the leg, she replied: \u201cRight here. (Indicating). Right on my thigh, right here. (Indicating).\u201d The court saw the area to which the victim was pointing. At trial, the child conceded that the evidence showed a touching of \u201cher [the victim\u2019s] upper thighs and the inner portion of her thighs.\u201d The court stated: \u201cShe did testify that she did feel someone, John Doe, touching her on her upper thigh, inner thigh, or upper inner thigh\u201d. It must be remembered that the court observed the gesture of the victim when the victim testified. We hold there was evidence of a touching of the victim\u2019s upper, inner thigh.\nA 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 was a touching of the groin.\nSeizure of the Marijuana\nA week after the sexual incident discussed above, the child was observed driving in excess of 40 miles per hour in a residential area. He was followed five or six blocks by a police officer. The child turned into the driveway of the residence of his brother-in-law, got out of the car leaving the car door open, and headed to the house. The officer called the child over to the police car and ascertained the child had no driver\u2019s license. The child was arrested for no driver\u2019s license and attempting to elude a police officer. The child was placed in the police car.\nThe officer, standing by the open door, approximately two feet from the child\u2019s car, observed a baggie of marijuana on the floorboard of the car on the driver\u2019s side. He also observed roaches (marijuana cigarette butts) and rolling paper on top of the console of the car. These were in plain view and were not discovered as a result of a search. See State v. Luna, 91 N.M. 560, 577 P.2d 458 (Ct.App.1978).\nThe child moved to suppress the marijuana as evidence, arguing no probable cause for a search. Since there was no search, this is not argued on appeal. The child\u2019s appeal concedes there was no search, but contends seizure of the marijuana, the roaches and the rolling paper was not justified under the \u201cplain view\u201d doctrine because the officer was not justified in being in the position where he observed these items. \u201cIf, then, the officer was justified to be in that location, the marijuana was validly seized under the plain view doctrine.\u201d\nRodriguez v. State, 91 N.M. 700, 580 P.2d 126 (1978) states:\nIf an officer is lawfully in a position which exposes contraband or evidence to plain view, the evidence may be seized without benefit of a search warrant. Merely seeing those objects which are in plain view does not constitute a search.\nThe officer was lawfully on the driveway of the residence, checking the driver\u2019s license of the driver of a vehicle which had been speeding. After arresting the child and placing the child in the police car, the officer\u2019s presence did not become unlawful. Looking into the car through the door left open by the child was appropriate, and lawful, under the circumstances.\nNeed of Care or Rehabilitation\nOn a petition alleging delinquency, the adjudicatory proceedings involve two aspects: (1) whether the child committed the delinquent act, and (2) whether the child is in need of care or rehabilitation. Section 32-l-31(E), N.M.S.A.1978; Doe v. State, 92 N.M. 74, 582 P.2d 1287 (1978).\nThe court found that the child committed three delinquent acts: Criminal sexual contact, driving without a driver\u2019s license and possession of less than one ounce of marijuana. The court also found that the child was in need of care and rehabilitation. See State v. Doe, 90 N.M. 249, 561 P.2d 948 (Ct.App.1977).\nThe child contends the court\u2019s judgment, based on the above findings, is jurisdiction-ally defective because of a total absence of evidence as to the child\u2019s need for care and rehabilitation.\nSection 32-l-31(E), supra, states:\nE. If the court finds ... on the basis of proof beyond a reasonable doubt based upon competent, material and relevant evidence, that the child committed the acts by reason of which he is alleged to be delinquent ... it may, in the absence of objection, proceed immediately to hear evidence on whether or not the child is in need of care or rehabilitation and file its findings thereon. In the absence of evidence to the contrary, evidence of the commission of an act which constitutes a felony is sufficient to sustain a finding that the child is in need of care or rehabilitation. [Our emphasis.]\nApplying the above language, footnote 1 to Doe v. State, 92 N.M. 74, 582 P.2d 1287, supra, states that where the act committed would be a felony if committed by an adult, the evidence of the commission of the act, in the absence of evidence to the contrary, is sufficient to sustain a finding that the child is in need of care or rehabilitation.\nThe State asserts that one of the delinquent acts which the child committed was a felony. The act on which the State relies is the criminal sexual contact. This contention disregards the proceedings in the Children\u2019s Court. Criminal sexual contact may be either a felony or a misdemeanor. See \u00a7 30-9-12, supra. At the beginning of the adjudicatory hearing, the Children\u2019s Court attorney agreed that the criminal sexual contact charged was a misdemeanor.\nNone of \u201cthe acts\u201d by reason of which the child was alleged to be delinquent were felonies. This, however, does not end the matter. In quoting the statute, we emphasized statutory language which distinguishes between \u201cthe acts\u201d charged and \u201can act\u201d which amounts to a felony. If there is evidence of \u201can act\u201d which constitutes a felony, in the absence of contrary evidence, that evidence sustains a finding that the child is in need of care or rehabilitation, whether or not the felony act was charged in the petition.\nIn this case the evidence shows two felonies.\nThe evidence shows the child made an unauthorized entry of the residence of the victim, at night, with the intent to commit the offense of criminal sexual penetration. This was the third degree felony of burglary. Section 30-16-3, N.M.S.A. 1978. After entering, he attempted to commit, at the least, the crime of criminal sexual penetration in the third degree. This attempt was a fourth degree felony. Section 30-28-1, N.M.S.A.1978.\nThere being no evidence to the contrary, the evidence of either of the felonies sustains the finding that the child was in need of care and rehabilitation.\nDisposition\nThe dispositional part of the judgment reads:\nIT IS THE FURTHER ORDER OF THE COURT that John Doe be committed to the New Mexico Boy\u2019s School at Springer, New Mexico for a period of two (2) years or until released as provided by law.\nIT IS THE FURTHER ORDER OF THE COURT that said commitment be stayed and that said child be committed to the Youth Diagnostic Center at the New Mexico Girl\u2019s Welfare Home in Albuquerque, N.M., for a sixty (60) day diagnostic evaluation.\nIT IS THE FURTHER ORDER OF THE COURT that upon completion of evaluation, that said child be returned to this Court for final disposition herein.\nThe child presents two contentions concerning the disposition \u2014 absence of a hearing, and length of the commitment.\nA dispositional hearing was held. Section 32-l-31(G), N.M.S.A.1978. The transcript shows that a predisposition report had been made to the court by probation services. Section 32-l-32(A), N.M.S.A.1978. At the hearing, the child\u2019s attorney stated that he had no evidence to present. However, a diagnostic evaluation was requested and the court ordered such an evaluation. See \u00a7 32-l-32(D), N.M.S.A.1978. After the evaluation, the judgment provided for a \u201cfinal disposition\u201d.\nUpon receipt of the evaluation, the court entered the following order:\n1. JOHN DOE was heretofore committed to the New Mexico Boys\u2019 School with commitment stayed pending receipt of a diagnostic evaluation from the Youth Diagnostic Center.\n2. The Youth Diagnostic Center has recommended his commitment, in which recommendation the Court concurs.\nIT IS THEREFORE ORDERED that commitment to the New Mexico Boys\u2019 School issue, and\nThere was no hearing prior to entry of the foregoing order. This absence of hearing was contrary to \u00a7 32-1-27(J), N.M. S.A.1978, which gave the child a right to be heard concerning the diagnostic evaluation. State v. Doe, 90 N.M. 404, 564 P.2d 207 (Ct.App.1977). See also Children\u2019s Court Rule 49(a).\nThe commitment to the Boys\u2019 School for two years was improper under \u00a7 32-1-38(A), N.M.S.A.1978. State v. Doe, 92 N.M. 109, 583 P.2d 473 (Ct.App.1978); see State v. Doe, 92 N.M. 100, 583 P.2d 464 (1978).\nThat part of the judgment of the Children\u2019s Court, finding the child to be delinquent and in need of care and rehabilitation, is affirmed. The dispositional part of the judgment is reversed. The cause is remanded for a \u201cfinal disposition\u201d hearing.\nIT IS SO ORDERED.\nLOPEZ and WALTERS, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "John B. Bigelow, Chief Public Defender, Martha A. Daly, Asst. App. Defender, Santa Fe, Charles A. Wyman, Asst. Public Defender, Roswell, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Michael A. Kauffman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "598 P.2d 1166\nSTATE of New Mexico, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.\nNo. 3701.\nCourt of Appeals of New Mexico.\nFeb. 13, 1979.\nRehearing Denied Feb. 27, 1979.\nJohn B. Bigelow, Chief Public Defender, Martha A. Daly, Asst. App. Defender, Santa Fe, Charles A. Wyman, Asst. Public Defender, Roswell, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Michael A. Kauffman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0206-01", "first_page_order": 252, "last_page_order": 256 }