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The convictions were based on two separate incidents in which she directed her thirteen-year-old daughter to perform oral sex on Defendant's twenty-four-year-old boyfriend after the three injected methamphetamine together. The description of the offense of criminal sexual penetration during the commission of a felony is deceptively simple. 654, 808 P.2d 624 (holding that “by defining [criminal sexual contact of a minor] as ‘unlawfully and intentionally’ touching a child's intimate parts the legislature properly intended that the state must establish the unlawfulness of the touching as a distinct element of the offense”); see State v. Recognizing the independent significance of the statutory modifier “unlawful” is a principle that has been honored since the earliest days of our territorial justice system. But unarticulated assumptions of legislators and unanticipated applications faced by the judicial branch often require that we search more deeply for legislative intent, to avoid the danger in the law, as in life, of not seeing the forest for the trees. We begin our analysis with a historical review of the evolution of our criminal sexual penetration statutes.
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Accordingly, we disapprove any language to the contrary in State v. Maestas (Maestas I), 2007–NMSC–001, ¶¶ 2, 27, 140 N. In the absence of any error that would justify reversal, we affirm Defendant's convictions. FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged by criminal information with two counts of causing criminal sexual penetration during the commission of the felony of distribution of a controlled substance to a minor, contrary to NMSA 1978, Section 30–9–11(E)(5) (2007, amended 2009) (CSP II-felony). Moore specifically relied on prior case law holding that “the consent of a child between the ages of thirteen and sixteen is legally irrelevant for both CSP III, where force is required, and CSP IV, where force is not required.” Id. Section 30–9–11(A) (2007) provides the only statutory definition: “Criminal sexual penetration is the unlawful and intentional causing of a person to engage in sexual [acts].” Maestas acknowledges this definition but never addresses the significance of the modifying word “unlawful,” stating simply that the basic criminal sexual penetration “definition says nothing about force or coercion; instead, it speaks in terms of ‘causing’ a person to engage in a sex act.” Maestas, 2005–NMCA–062, ¶ 18, 137 N. Otherwise, the description of CSP II would have omitted the term “criminal” and simply described the offense as “sexual penetration perpetrated ․ in the commission of any other felony.” This Court has repeatedly cautioned that the statutory term “unlawful” has significance in determining legislative intent and defining elements of offenses.