NMCA: Fundamental error to instruct jury on element of crime that has been repealed

In this case, the defendant, Marcos Figueroa, was charged with criminal sexual penetration of a minor for abusing his son and stepson. At trial, the district court granted the State’s request that the jury be instructed that the defendant had used his “position of authority” over the victims to coerce them to submit to the acts. The instruction was taken from Uniform Jury Instruction 14-945, although the Use Note for that UJI states that it is only to be used for crimes that occurred before the amendment. The defendant’s trial counsel did not object.

But as the Court of Appeals held in State v. Figueroa (opinion by Judge Zachary Ives), the Legislature deleted the “position of authority” language from the relevant statute before the dates on which the defendant committed the offenses. Therefore, it was fundamental error to allow the convictions to stand, and a new trial was ordered.

This case serves as a good reminder that in New Mexico state-court cases, it is not sufficient to look for a Uniform Jury Instruction with language that fits your case. Nor should you simply agree to an opponent’s proposed jury instruction just because it is taken from the UJI. Instead, one should carefully read the Use Notes and commentary for guidance on whether the instruction is actually proper.

It’s also a good idea to read the case law on the topic of the instruction. Despite the best efforts of the committees that work on the UJIs, sometimes appellate decisions or legislative action will change the law, but those changes may not be reflected at all, or reflected accurately, in the UJIs. In those situations, of course, the case law or statutes control.

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