Defense motion for directed verdict - to dismiss

Michael Travesser / Wayne Bent at sunset

Defense motion for directed verdict to dismiss – arguments by Ms. Montoya and Emilio Chavez

Judge Baca: Alright, you may be seated. The jury is out of the courtroom and in their jury room. The State has rested. And so, is there a motion by the Defense?

Ms. Montoya: Yes, your Honor.

Judge Baca: Alright.

Ms. Montoya: Your Honor, we believe the case, the State has failed to prove the case beyond a reasonable doubt. Both of the two females, who are alleged victims, testified that Mr. Wayne Bent never touched them in their intimate private parts. Without that touching, criminal sexual contact, which is required under the statute, there is no case. And we’re asking at this point and time for your Honor to dismiss the charges against Mr. Bent.

Judge Baca: Well, the standard at this point and time is not proof beyond a reasonable doubt. The standard is whether or not a reasonable trier of fact can conclude that a crime occurred, viewing the evidence in the light most favorable to the State. So, you’ve not given me the right standard. Is it your position that even given the lower standard that they haven’t met that burden?

Ms. Montoya: That is correct, your Honor.

Judge Baca: The State had a response?

Emilio Chavez: Yes, your Honor and thank you. Concerning the evidence that the State must present to pass a directed verdict, the State must demonstrate by prima facie evidence that they’ve met that burden and that a reasonable trier of fact can interpret these in light, such that they could find the defendant guilty.

Here, what we’ve heard, the evidence that we’ve heard in this case is we’ve heard from a number of witnesses that, in particular, the ones today, being the alleged victims L.S. and A.S. Now the important component of those and a crux to the Defense’s argument is she’s interpreting the evidence in the light that she views it. And the standard here is the evidence that the jury will hear. And what we’re looking at today is the contact that is described by L.S. or Healed is contact that could be interpreted by the trier of fact and why that particular count, Count One, should go forward as criminal sexual contact.

Now there is the other component involving L.S. or Healed, as contributing to the delinquency of a minor. Now the crux of the elements of that charge are confined to the components of the fact that she got, that he encouraged her, caused her to get undressed. And the fact that she got undressed in his presence is what the State’s alleging meets those elements of the contributing to the delinquency of a minor.

Now she’s clearly met those standards. She told us that she got undressed, that he was undressed, that they `were alone in the room together. Now turning to A.S., A.S. did say that the defendant kissed her on her breast, that he touched her on the round fleshy part, during Ms. Montoya’s cross examination. So those are aspects that can go forward to the jury as far as criminal sexual contact. And in the same context, Mr. Bent actually left the room, asked her to get undressed. She got undressed and those are the components necessary to demonstrate contributing to the delinquency of a minor.

Now the other underlying components that are important here, is a lot of issues have been made as far as the components of religion and sexual gratification. Now for the State, demonstrating the prima facie evidence in this case, this case is not about religion. The case is actually about the law in New Mexico and what the law in New Mexico holds. The elements as far as unlawfulness do not require sexual gratification. They require, with an unlawful instruction, sexual gratification or the intrusion on the bodily integrity of the alleged victims and that is I believe that is fourteen one thirty-two (14132), Uniform Jury Instruction fourteen one thirty two (14132).

So, as far as concerning those elements, doesn’t have to be for sexual gratification. And that has been part of the crux of the Defendant’s case. The State has shown, through A.S. and L.S., that there was some type of intrusion onto their bodily integrity. Now the component of religion doesn’t come in, because it’s not one of those elements that is charged in the crimes. The State doesn’t have to demonstrate at this point, beyond the prima facie evidence, that we have established the elements for criminal sexual contact of L.S., criminal sexual contact of A.S., contributing to the delinquency of a minor of both those alleged victims. And I offer to the Court that the State has met its burden to show a prima facie case and ask this Court to deny the directed verdict motion.

Judge Baca: Alright. Ms. Montoya, anything you wish to add?

Ms. Montoya: Your Honor, the Uniform Jury Instruction, to which Mr. Chavez refers, fourteen one thirty two (14132), says unlawfulness is an element, requires for the act to have been unlawful, it must have been done without consent and with the intent to arouse or gratify sexual desire or to intrude upon the bodily integrity. So we do believe that the intent to arouse or gratify sexual desire is an element of that crime and we do not see it here.

While Mr. Chavez argues that it is not about religion, I asked each of the girls, "Was it a religious experience?" Each of them said, "Yes." So, it does become about religion, because, whether or not it’s about religion and religious freedom, goes to the lawfulness or unlawfulness and we, of course, are not going to agree upon the different elements of each crime that should be included. But we believe that the instruction regarding criminal sexual contact should include the unlawfulness instruction. Along with that, Mr. Bent knew it was unlawful.

We had submitted jury instructions and maybe we’re at a point, your Honor, we need to argue those, but we do believe that the State falls short and we are asking for a discharge, if not of all of the counts, your Honor, surely the ones that the Court believes that the State has not met its burden.

Judge Baca: Well, talk to me about the contributing to the delinquency of a minor

Ms. Montoya: That’s, the crux of that, your Honor, is that they’re saying he instructed them, or encouraged them somehow to disrobe. The testimony of the girls were that they went to him. L.S. herself said she went at eleven o’clock at night, which was earlier than I thought, but it was still night time and Mr. Bent was in bed sleeping and she appeared at his home. She asked him if she could come in. She asked him if she could take her clothes off. He didn’t encourage her. And I don’t see where the State is gathering this idea that he somehow encouraged this behavior. There was no encouragement on the part of Mr. Bent as to the contributing to the delinquency of a minor.

And your Honor, if ever there were children who were not delinquent, it’s the children who lived or were raised on the land. These are people, these are children who are highly religious. Even A.S. herself, who has doubts and who is now angry said, I asked her, "Was this a religious experience?" and she said, "Yes." So, in what way was she being encouraged to become delinquent? With what delinquent act? Simply disrobing? It’s not illegal to be naked in front of anyone unless something untoward occurs. It’s not illegal to be naked. If that’s the case, we’d all be showering with bathing suits on.

Judge Baca: Alright. Mr. Chavez, talk to me about the contributing charges. And specifically, I want to know what facts are you relying upon to establish that there was contributing in this case?

Emilio Chavez: Yes, your Honor and referencing that the State would reference State v. Trevino.

Transcriber's note: These are the particulars of the State versus Trevino for students of this case who would like to look it up, State v. Trevino, 1993 NMSC 67, 865 P.2d 1172, 116 N.M. 528, Case Number: 19997, Decided: 11/10/1993 SUPREME COURT OF THE STATE OF NEW MEXICO

This ruling held that the common sense of the jury "is sufficient to apply the [contributing to the delinquency of a minor] statute to each particular case, and point out what particular conduct is rendered criminal by it."

Judge Baca: I’m looking at it, right now.

Emilio Chavez: Which is one sixteen N.M. five twenty eight (16 NM 528), the paragraph that the State would reference, it’d be the middle of page five thirty one (531), where CDM requires proof of fact not required to prove CSC of a minor. The common sense of the community, as well as the sense of decency, the propriety and the morality, which most people entertain, is sufficient to apply the statute to each particular case and point out what particular conduct is rendered criminal by it. So again, the reason that the State is presented the contributing to the delinquency of a minor and those acts is element two (2) of contributing to the delinquency of a minor. This caused or encouraged L.S. and A.S. to conduct herself in a manner injurious to her morals, health or welfare of L.S. So ,the important aspect in what Trevino reads is the morality which most people entertain. And that’s a fundamental aspect that the jury can make that determination in the presentation that the State will give to the jury concerning contributing to the delinquency of a minor.

The other important aspect of the cause to encourage is, Ms. Montoya believes that it has to be specifically that Michael Travesser had to say, you have to come over now and you have to take your clothes off. And that’s not what we’re saying. That’s why Dr. Melton and Dr. Dinsmore have testified, why some of the testimony concerning the acts and daily life of L.S. and A.S. have been destruct. Because in that leadership role in the presentation of the seven virgins, the aspect of the way he’s presented it as a leader of this group, has encouraged and caused those women, those children to come to his house. Again that aspect, L.S. coming to his house at night, because what she felt in her heart because of the influence that Mr. Travesser or Mr. Bent exercised over her. And so based on those aspects, based on Trevino, the question that this really hinges on is, in a manner injurious to her morals, health or welfare of L.S. And under Trevino the State has met that burden and this is a question for the jury to determine whether this is the propriety morality, which most people would entertain or if they think that’s contrary to their own beliefs and then that’s where the delinquency comes in. The delinquency act doesn’t have to be something, as Ms. Montoya pointed out, with getting undressed is not a delinquent act, but it’s how that delinquent act happened. And what the State has presented is that delinquent act happened alone in the bedroom with Michael Travesser. And that’s why it meets those elements, your Honor. And just one second, while I confer with my colleague.

Judge Baca: Certainly.

Emilio Chavez: And your Honor, and just so I finish and so at that exact point and that’s what Trevino holds why this type of situation has been upheld and Trevino in particular with criminal sexual contact of a minor and they looked because of that the associated charge of contributing to the delinquency of a minor as we’re looking at the common sense. Common sense aspect, common sense of what a reasonable person would do. That’s why that instruction’s drafted the way it is. That’s the fundamental aspect that we’re asking the jury to determine and that’s the presentation, or that’s the prima facie evidence that the State has demonstrated in this case your Honor.

Judge Baca: Alright. Do you have anything more to add Ms. Montoya?

Ms. Montoya: Yes, your Honor. He’s talking about the construction of the jury instruction and he and I don’t agree about the construction of the jury instruction itself. Again, it’s not unlawful to be naked. And in one sense he said the delinquent act, in being naked is not the delinquent act, but he caused the delinquent act of being naked.

It’s not both ways. Being naked is not a delinquent act. Being naked is not illegal. That’s like saying a grandchild can’t run naked in the room in front of her grandfather. There is nothing immoral about a grandchild running naked in front of her grandfather. And this is analogous to that. And I have a different construction of that jury instruction and that’s one of the things we didn’t agree on when we were discussing jury instructions yesterday. The defendant would have had to commit an act or omit the performance of a duty and cause the child to commit an act of delinquency and I’m saying it’s not an act of delinquency to take off your clothes.

Judge Baca: Well, it seems like Trevino, and I don’t know if you’ve seen Trevino that one sixteen New Mexico five twenty-eight (16 NM 528), but, I’m reading here, seems to say that the State doesn’t have to prove a separate act apart from the accusation of the touching, the unlawful touching. And that by itself based on the common sense and the sense of decency, propriety and morality that most people entertain is sufficient to let this matter go to the jury.

Ms. Montoya: So the State would then be suggesting that each of these counts does not stand separately, but one count is dependent upon another?

Judge Baca: That was the whole issue in Trevino, whether there was a merger or not or whether you could charge both and be convicted of both, but it appears under the case file that that’s possible.

Ms. Montoya: Therefore, your Honor that changes the jury instructions again, because each of these acts would normally have to stand on their own merit. And what Mr. Chavez is arguing is that they don’t have to stand on their own merit, that one is dependent upon the other. And I do not believe that contributing to the delinquency of a minor merges with criminal sexual contact. There in two completely different grounds under the law.

Judge Baca: Well, that’s true. And that’s what Trevino says, that although one act can cause both violations of law, that they have separate offenses and elements and that they can go to the jury separately. And that the act of the unlawful touching is sufficient to qualify as contributing to the delinquency of a minor.

Ms. Montoya: But, if Mr. Bent didn’t touch them in those areas...

Judge Baca: That’s the question the juries being asked to resolve. Alright. Having heard the arguments of the Defense and the State and having read State versus Trevino at one sixteen New Mexico five twenty-eight (16 NM 528), in particular those sections quoted in paragraphs five thirty one (531) to the end of the opinion, it appears that there is sufficient evidence to justify an actual trial of fact to find guilt beyond a reasonable doubt, after viewing the evidence in the light most favorable to the State. And for that reason, the Motion for Directed Verdict as to counts one, two, three and four will be denied at this point in time and we will proceed with the presentation of the Defense case, if they so desire.

Alright. Is the Defense ready to go forward with its case?

Ms. Montoya: We are, your Honor.

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