FOR IMMEDIATE RELEASE:
April 1, 2020
Contact: Matt Baca — (505) 270-7148
Santa Fe, NM—Today, Attorney General announced that he will immediately appeal a Court of
Appeals ruling that allowed a new trial to Joseph Apodaca, who was convicted of two counts of
first-degree criminal sexual penetration and one count of tampering with evidence for a brutal
sexual assault, which left the woman who survived with serious medical issues requiring
multiple surgeries and causing lasting damage. On appeal, Apodaca argued that he was entitled
to argue at trial that he mistook the survivor for having consented to his assault, despite New
Mexico law not affording this defense. A two judge majority of the Court of Appeals decided
today that Apodaca is entitled to a new trial because the jury was not instructed on his “mistake
of fact” defense to establish that he believed the survivor consented to his actions.
“The jury was right to convict for a violent rape,” said Attorney General Balderas. “I am
extremely disappointed with this ruling, and I will ask the New Mexico Supreme Court to reverse
this opinion.”
The Criminal Appeals Division of the Attorney General’s Office argued to the Court of Appeals –
in briefs and at oral argument – that mistake of fact is not a legal defense to criminal sexual
penetration and that the New Mexico statutory scheme does not contemplate such a
defense. The Division further argued that even if such a defense did exist, it was not
established because New Mexico law requires a defendant’s mistake to be “reasonable” and it
was clearly not reasonable in a situation where, as the dissenting judge articulated, the survivor
was so clearly intoxicated and where she suffered such grievous injuries. The dissenting judge
in the Court of Appeals agreed with this latter argument.
The OAG will be asking the New Mexico Supreme Court to review this opinion and reverse
it. The OAG believes the opinion is incorrect on the law and the facts and erects an impediment
to lawful prosecutions for rape.