## Facts

- Fifteen-year-old Loretta spent a weekend out with her friend Missy.
- Loretta and Missy went to the home of Billy McGinnis, Missy’s boyfriend.
- Rudy Perez, a twenty-year-old friend of Billy, met Loretta at the house.
- Perez and Loretta had sexual intercourse that evening; there was no dispute that the sex was consensual.
- Before intercourse, Loretta told Perez she was seventeen, and another person also confirmed to Perez that Loretta was seventeen.
- In fact, Loretta was fifteen and Perez was twenty.
- The State charged Perez with fourth-degree criminal sexual penetration under NMSA 1978, § 30-9-11(D), which covers sexual penetration of a child aged 13–16 when the perpetrator is at least 18 and at least four years older than the child.
- In a bench trial, the court found as a fact that Perez “in good faith believed that Loretta was seventeen,” but it refused to treat that belief as legally relevant because it viewed knowledge of the child’s age as not required for the offense.
- Perez was convicted. The New Mexico Court of Appeals affirmed, and the New Mexico Supreme Court granted review.

## Issues

1. Whether a reasonable, good-faith mistake of fact about the victim’s age is a defense to criminal sexual penetration of a child under NMSA 1978, § 30-9-11(D).
2. Whether the trial court’s refusal to consider the mistake-of-age defense amounted to fundamental error allowing appellate review.

## Decision

- The New Mexico Supreme Court reversed Perez’s conviction and reversed the Court of Appeals.
- The Court held that, absent a clear legislative statement imposing strict liability, New Mexico’s general criminal-intent rule requires the fact-finder to consider a reasonable, good-faith mistake of fact as to the victim’s age in a prosecution under § 30-9-11(D).
- The Court held the trial court committed fundamental error by refusing to consider Perez’s mistake-of-age defense after finding he honestly believed Loretta was seventeen.
- The case was remanded for further proceedings consistent with the Supreme Court’s opinion.

## Legal Principles

- Under New Mexico law, criminal intent is generally required for crimes unless the Legislature clearly indicates an intent to impose strict liability (see NMSA 1978, § 30-2-2).
- When a statute does not clearly dispense with intent, a mistake-of-fact defense may negate the mental state required for guilt.
- A reasonable, good-faith mistake regarding a victim’s age may be a defense to § 30-9-11(D) because the statute does not clearly make the victim’s age a strict-liability element.
- Fundamental error is error that goes to the foundation of the case or takes from a defendant a right essential to the defense; appellate courts may correct such error even when preservation is imperfect.

## Conclusion

Perez’s conviction for criminal sexual penetration of a child under § 30-9-11(D) could not stand because the trial court treated the victim’s age as strict liability and refused to consider Perez’s reasonable, good-faith mistake that Loretta was seventeen, even though the court found that belief was genuine; the New Mexico Supreme Court held this refusal was fundamental error, reversed the conviction and the Court of Appeals, and remanded.


Perez v. State, 803 P.2d 249 (1990)