Judge Baca gives the jury instructions
Judge Baca's instructions to the jury - By Judge Gerald Baca, instructing the jury on the law.
December 11, 2008 End of Day 4 - This followed the Defense resting.
Judge Baca: Does the Defense have other witnesses?
Ms. Montoya: No, your Honor. The Defense rests.
Judge Baca: Alright. Does the State have rebuttal?
Emilio Chavez: No, your Honor.
Judge Baca: Alright. Ladies and gentlemen that concludes the presentation of evidence in this case. Even at this point in time, you might be tempted to start to deliberate this case and want to discuss it amongst yourselves, but you can’t, not until I have given you the law in the case and the attorneys have had a chance to argue the case to you. At that point in time, I will send you into the room to deliberate. Alright? So, it’s tempting to wanna get together and start thinking about this, but it’s not over. You still have to know what the law is. You still have to hear what the attorney’s arguments are.
So there are some things that the attorneys and myself have to take care of and so I will excuse you for the day. I will expect you all and everyone to come back to commence at nine o’clock tomorrow morning. And what I expect will happen at nine o’clock, just to sorta give you an agenda, an idea of what will happen; the Court will read to you the instructions, the jury instructions, which contain the law of this case and in this matter, then the attorneys will make their arguments and following their arguments, I’ll give you what’s called, "Excluding Instructions" and send you off to deliberate the case.
Between now and then, again, the admonition; please do not discuss this case amongst yourselves or with anyone and don’t allow anybody, anyone, even your family, to want to discuss the case with you. Ask them if they’re curious, and I’m sure there’s lots of people out there that are curious about this case. Ask them to give you the respect to let you decide this case, based on what you’ve heard here in the Court. Alright. And with that, I’ll send you off for the day. Thank you for the Court.
Jury leaves the courtroom
Judge Baca: Alright. You may be seated. Alright, it’s the Courts intention at this point to entertain
any motions that may be outstanding and then following that to meet with the attorneys. And I hope we can have
the small courtroom available to go over the jury instructions and settle those and have them ready for
reading to the jury first thing in the morning, giving the attorneys the night to prepare their closing
arguments and then come in, instruct the jury and do the closings and then let them have the case to decide it.
I am going to restrict the closing arguments. I think that you don’t need more than an hour, each of you. And
that’s probably a lot of time, but I will give you an hour each. And for the State that means an hour total
in your first closing and then your rebuttal. Alright?
Ms. Montoya: No, your Honor.
Judge Baca: Ok. For the State, are there any motions?
Emilio Chavez: No, your Honor.
Judge Baca: Ok. And I think that pursuant to law and to reconsider the evidence at this point in
time on Directed Verdict. On behalf of the Defense, and I do believe that there has been a presentation of
sufficient evidence to allow this matter to be presented to the jury for their consideration. And so the
Motion for Directed Verdict, even if made at this point in time would be denied. Alright then, let’s meet in
the small court room if it’s available in about ten minutes. Thank you.
December 12, 2008 Instructions to the Jury
Judge Baca: We are on the record on December twelfth, two thousand eight at nine twenty A.M. We are in
the fifth day of the trial of State of New Mexico versus Wayne Bent. Counsel for State are present. Counsel for
the Defendant is present and the Defendant is present. The jury is in their jury room and we’re out of
presence of the jury. We met last night and settled instructions. I have a final version of the instructions
the Court intends to give and I made copies for each party. So give one to the State and one to the Defense.
There were some instructions that needed to be modified. Those instructions have been modified and I have
instructions numbered one, and I believe, through twenty, through twenty, that the Court intends to give. I’ll
give the parties a minute to look, especially at those instructions that we talked about getting modified, and
allow the parties to make additional records that they may see that they need to make. Ok? So let me turn to
the State with respect to instructions one through twenty. Are there any further objections that the State
needs to make?
Emilio Chavez: The State has no further objections to the instructions.
Judge Baca: Alright. Alright with respect to the Defense, with the instructions one through twenty?
Ms. Montoya: Your Honor, I would like clarification on instruction thirteen and fourteen. I believe
some language was added that I do not recall having spoke about as to paragraph one on each page. If the Judge
would please review those.
Judge Baca: I do have what was the original thirteen that we talked about. It read, "Defendant permitted
L.S. to take her clothes off and lay naked in his presence." In addition to that, they’ve now added, "And
touched her unclothed intimate parts, to wit, breasts, with a part or parts of his body."
Ms. Montoya: I don’t recall the Court approving the additional language.
Judge Baca: Well, remember, they were going to add language and we were going to wait to see what the
language was.
Ms. Montoya: We object to the additional language.
Judge Baca: Alright. Now the other change that has occurred in both instructions in thirteen and
fourteen is that paragraph two originally stated, "This caused or encouraged." Now it only reads, "This caused."
Alright, any objections to that?
Ms. Montoya: No, your Honor. Our objection is to paragraph one on each page.
Judge Baca: And I note your objection. And the instruction will be given as presented at this point in
time.
Emilio Chavez: Your Honor, I apologize. Concerning instruction number two, there is an alternative, that
is to be included and I thought we had, "encouraged," in that language.
Judge Baca: In both instruction, thirteen and fourteen, the language has been modified to just,
"caused."
Emilio Chavez: "Caused and encouraged," your Honor. Does the Court intend to just give it as, "caused?"
Judge Baca: Well, it’s interesting how this, the evidence has developed, the statute reads in terms of
caused or encouraged. I thought that overnight, maybe the State felt that they were made the decision one way or
the other. I don’t have a preference either way. I don’t know if the Defense objects to having the alternative.
What is the State’s preference at this point?
Emilio Chavez: Your Honor, because of what the UGI states, the fact that the applicable alternatives,
also based on the evidence... based on the presentation of all the testimony, the role that Mr. Bent has played
over Strong City, we’d ask that the Court includes this, "caused or encouraged L.S. to conduct herself in a
manner injurious to the morals or welfare of L.S.," and the same on instruction fourteen, "this caused or
encouraged A.S.," your Honor. I believe that that is appropriate is ah... it is called for in the UJI’s and
ask that it be given in that manner, your Honor.
Judge Baca: Alright. Defense?
Ms. Montoya: Your Honor, we would prefer that as your Honor presented these today with the word,
"caused," that we believe the word, "caused," is appropriate and the word, "encouraged," is not. We do not
believe that the evidence supports, "encouraged."
Judge Baca: I tend to agree with that. I think that there really was no evidence that, that suggested
that Mr. Bent was encouraging the child to engage in delinquent, ah... delinquent offenses or in delinquent
actions. I think that the act of the CSC and permitting the child to be naked in his presence was the act that
caused her to commit a delinquent act or be subject to delinquency. So I think the language as presented now is
actually more appropriate than as originally tendered. So the instruction as it reads right now, "this caused
L.S. to conduct herself in a manner injurious to the morals or welfare of L.S." will be given in both in
thirteen and fourteen. Alright, did the parties look at, what was the other change that we had?
(Emilio Chavez and Ms. Montoya speak, but out of hearing range)
Judge Baca: Did the parties look at instruction ten and eleven? I know we made a record with respect to
ten and eleven. Those are the unlawfulness instructions. Are there any additional record that the State wishes to
make with respect to ten and eleven?
Emilio Chavez: No, your Honor. The State belives that ten and eleven are appropriate as given.
Judge Baca: Alright. Defense?
Ms. Montoya: And, of course, we continue to object to the last paragraph being removed from the
unlawfulness instruction.
Judge Baca: And I understand that. It is a continuing objection to ten and eleven by the Defense, with
respect to the admission of the language in the third paragraph. I’ve stricken the third paragraph, because I
don’t believe that there are facts to support that the touching was permitted under any of the theories proposed
by the Defense and so ten and eleven, as presented, will be given in those forms. Alright. Any additional
arguments by the State?
Emilio Chavez: Your Honor, concerning the Verdict Forms, there was some changes that I believe defense
counsel said that they were going to submit. The Verdict Forms read, "Guilty of criminal sexual contact,"
needs to be, "of a minor," same with the non guilty Verdict Form. And that applies to both Count One and Count
Two, your Honor. So we do need to have those changes made on the Verdict Forms before they’re submitted to the
jury.
Judge Baca: Ok. Are you able to make those changes?
Ms. Montoya: Your Honor, we can probably get it done before it goes to the jury. I’ll have to have my
assistant take care of that.
Judge Baca: Ok. So you want the Verdict Forms to read, "Criminal Sexual Contact of a Minor." Ok, the
other forms of verdict are appropriate?
Emilio Chavez: That’s correct, your Honor.
Judge Baca: Ok. Alright, anything else on behalf of the Defense?
Ms. Montoya: No, your Honor.
Judge Baca: We’re ready for the jury then?
Ms. Montoya: Yes sir.
Judge Baca: Alright. What we'll do, we'll bring the jury in. I will instruct them. The parties will be
given a one hour to argue and then the parties, the jury will be sent off to deliberate the case. Alright. Let’s
have the jury. Please rise.
Jury enters the Courtroom
Judge Baca: Alright. Thank you ladies and gentlemen. Please be seated. Welcome. We’re prepared to
instruct you on the case and to have the parties make their closing arguments.
You have heard all of the evidence. It is now my duty to tell you the law that you must follow in this case. The
law governing this case is contained in instructions that I’m about to give you. It is your duty to follow the
law, as contained in these instructions. You must consider these instructions as a whole. You must not pick out
one instruction, or parts of an instruction, and disregard others. A copy of these instructions will be given to
you when you begin your deliberation.
You are the sole judges of the facts in this case. It is your duty to
determine the facts from the evidence produced here in Court. Your verdict should not be based upon speculation,
a guess or conjecture. Neither sympathy nor prejudice should influence your verdict. You are to apply the law as
stated in these instructions to the facts as you find them. And in this way decide the case. The law presumes
the Defendant to be innocent, unless, and until, you are satisfied beyond a reasonable doubt of his guilt.
The burden is always on the State to prove guilt beyond a reasonable doubt. It is not required that the State
prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based
upon reason and common sense. A kind of doubt that would make a reasonable person hesitate to act in the
graver and more important affairs in life.
Evidence has been admitted concerning statements allegedly made by the Defendant. Before you consider such
statements for any purpose, you must determine that the statements were given voluntarily. In determining
whether the statement was voluntarily given, you should consider if it was freely made and not induced by
promise or threat.
An expert witness is a witness, who by knowledge, skill, experience, training, or education have become expert in
any subject. An expert witness may be permitted to state an opinion as to that subject. You should consider each
expert’s opinion and the reasons stated for the opinion, giving them such weight as you think they deserve. You
may reject an opinion entirely, if you conclude that it is unsound. You should consider each opinion received in
evidence in this case and give it such weight as you think it deserves. If you should conclude that the reasons
given in support of the opinion are not sound, or that for any other reason, an opinion is not correct, you may
disregard the opinion entirely.
You alone are the judges of the credibility of the witnesses and the weight to be given to the testimony of each
of them. In determining the credit to be given any witness, you should take into account the witness’s
truthfulness or untruthfulness. Ability and opportunity to observe memory, manner while testifying, any interest,
bias or prejudice the witness may have, and the reasonableness of the witnesses' testimony, considered in the light
of all the evidence in the case.
For you to find the Defendant guilty of Criminal Sexual Contact of a Minor, by use of coercion by a person in
position of authority, as charged in Count One, the State must prove to your satisfaction, beyond a reasonable doubt,
each of the following elements of the crime:
1. The Defendant touched or applied force to the unclothed breast of L.S.
2. The Defendant was a person, who by reason of the Defendant’s relationship to L.S., was able to exercise
undue influence over L.S. and used this authority to coerce L.S. to submit to sexual contact.
3. L.S. was at least thirteen but less than eighteen years old.
4. The Defendant’s act was unlawful.
5. This happened in New Mexico on the thirty first day of July two thousand six.
For you to find the Defendant guilty of Criminal Sexual Contact of a Minor, by the use of coercion by person
in a position of authority, as charged in Count Two, the State must prove to your satisfaction, beyond a
reasonable doubt, each of the following elements of the crime:
1. The Defendant touched or applied force to the unclothed breast of A.S.
2. The Defendant was a person who by reason of the Defendants relationship to A.S. was able to exercise undue influence over A.S. and used this authority to coerce A.S. to submit to sexual contact.
3. A.S. was at least thirteen but less than eighteen years old.
4. The Defendant’s act was unlawful.
5. This happened in New Mexico on the second day of August two thousand six.
In addition to the other elements of Criminal Sexual Contact of a Minor, as charged in Count One, the State must
prove, beyond a reasonable doubt, that the act was unlawful. For the act to have been unlawful, it must have been
done with the intent to arouse or gratify sexual desire or done to intrude upon the bodily integrity or personal
safety of L.S.
In addition to the other elements of Criminal Sexual Contact of a Minor, as charged in Count Two, the State must
prove, beyond a reasonable doubt, that the act was unlawful. For the act to have been unlawful, it must have been
done with the intent to arouse or gratify sexual desire or done to intrude upon the bodily integrity or personal
safety of A.S.
In addition to the other elements of Criminal Sexual Contact of a Minor, as charge in Counts One and Two, and
Contributing to the Delinquency of a Minor, as charged in Counts Three and Four, the State must prove to your
satisfaction, beyond a reasonable doubt, that the Defendant acted intentionally when he committed the crime. A
person acts intentionally, when he purposely does an act which the law declares to be a crime, even though he may
not know that his act is unlawful. Whether the Defendant acted intentionally, may be inferred from all the
surrounding circumstances, such as the manner in which he acts, the means used, and his conduct and any statements
made by him.
For you to find the Defendant guilty of Contributing to the Delinquency of a Minor, as charged in Count Three, the
State must prove to your satisfaction, beyond a reasonable doubt, each of the following elements of the crime:
1. The Defendant permitted L.S. to take her clothes off and lay naked with him and touched her unclothed
intimate parts, to wit, her breast, with a part of his body.
2. This caused L.S. to conduct herself in a manner injurious to the morals or welfare of L.S.
3. L.S. was under the age of eighteen.
4. This happened in New Mexico on the thirty first day of July two thousand six.
For you to find the Defendant guilty of Contributing to the Delinquency of a Minor, as charged in Count Four, the
State must prove to your satisfaction, beyond a reasonable doubt, each of the following elements of the crime:
1. The Defendant permitted A.S. to take her clothes off and lay naked with him and touched her unclothed intimate
parts, to wit, her breast, with a part or parts of his body.
2. This caused A.S. to conduct herself in a manner injurious to the morals or welfare of A.S.
3. A.S. was under the age of eighteen.
4. This happened in New Mexico on the second day of August two thousand six.
Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary
that each juror agrees. Your verdict must be unanimous. It is your duty to consult with one another and try to
reach agreement. However, you are not required to give up your individual judgment. Each of you must decide the
case for yourself. But you must do so, only after an impartial consideration of the evidence with your fellow
jurors. In the course of your deliberations, do not hesitate to reexamine your own view and to change your opinion
if you are convinced it is erroneous. But do not surrender your honest conviction as to the weight or affected
evidence, solely because of the opinion of your fellow jurors or for the purpose of reaching a verdict.
You are the judges, the judges of the facts. Your sole interest is to ascertain the truth from the evidence
in this case.
You must not concern yourself with the consequences of your verdict. Each crime charged in the indictment should
be considered separately. In this case, there are two possible verdicts as to each crime, guilty and not guilty.
Only one of the possible verdicts may be signed by you as to each charge. If you have agreed upon one verdict, as
to a particular charge, that form of verdict is the only form to be signed. The other form of verdict as to that
charge is to be left unsigned.
Now the lawyers will argue the case. What is said in arguments is not evidence. It is an opportunity for the
lawyers to discuss the evidence and the law as I have instructed you. The State has the right to argue first.
The Defense may then argue and the State may then reply.
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