Enticement of child consists of:

A. enticing, persuading or attempting to persuade a child under the age of sixteen years to enter any vehicle, building, room or secluded place with intent to commit an act which would constitute a crime under Article 9 of the Criminal Code; or

B. having possession of a child under the age of sixteen years in any vehicle, building, room or secluded place with intent to commit an act which would constitute a crime under Article 9 of the Criminal Code.

Whoever commits enticement of child is guilty of a misdemeanor.

History: 1953 Comp., § 40A-9-10, enacted by Laws 1963, ch. 303, § 9-10.

Cross references. — For sexual exploitation of children, see 30-6A-1 NMSA 1978 et seq.

For sexually oriented material harmful to minors, see 30-37-1 NMSA 1978 et seq.

Compiler's notes. — The words "Article 9 of the Criminal Code" refer to Article 9 of Laws 1963, ch. 303, the unrepealed portions of which are compiled herein as 30-9-1 to 30-9-4 and 30-9-5 to 30-9-9 NMSA 1978.

Possession is control, not forcible abduction. State v. Perea, 2008-NMCA-147, 145 N.M. 123, 194 P.3d 738, cert. denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488.

Possession of minor girl. — Where the thirteen-year old minor victim voluntarily entered the defendants' car; the defendant and the victim drove around all day; the victim was frightened but did not feel that she could summon help; the defendant determined the route and the stops and controlled the course of events; the victim was not of legal driving age and could not take control of the car; and the defendant's purpose was to have sex with the victim, the defendant had "possession" of the victim. State v. Perea, 2008-NMCA-147, 145 N.M. 123, 194 P.3d 738, cert. denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488.

A man who had a minor girl in his possession for evil purposes was guilty, whether she had been enticed away or carried off by him. State v. Martin, 1923-NMSC-036, 28 N.M. 489, 214 P. 575; State v. Chenault, 1915-NMSC-024, 20 N.M. 181, 147 P. 283; State v. Chitwood, 1923-NMSC-034, 28 N.M. 484, 214 P. 575.

"Enticement" means to incite or instigate, to allure, attract or lead astray; it indicates an intentional act. State v. Garcia, 1983-NMCA-069, 100 N.M. 120, 666 P.2d 1267, cert. denied, 100 N.M. 192, 668 P.2d 308.

Not lesser included offense of criminal sexual penetration. — The offense of enticement of a child is not a lesser included offense of criminal sexual penetration. State v. Garcia, 1983-NMCA-069, 100 N.M. 120, 666 P.2d 1267, cert. denied, 100 N.M. 192, 668 P.2d 308.

Completion of offense in evil intent. — The gravamen of charge that defendant had a female minor in his possession for evil purposes, to wit: sexual intercourse, was the evil purpose and intent of the possession, so that the offense was complete from the instant the accused formed the evil intent and purpose of sexual intercourse, regardless of whether it ever came about. State v. Phipps, 1943-NMSC-038, 47 N.M. 316, 142 P.2d 550 (decided under prior law).

Charging offense. — Where, in charging the offense, the words "for the purpose of unlawful sexual intercourse" were used, the quoted phrase did not describe an act of fornication only, since an act of sexual intercourse was lawful or unlawful according to the relation of the parties. State v. Chenault, 1915-NMSC-024, 20 N.M. 181, 147 P. 283.

Conclusions of jury sustained. — Where jury had opportunity to see the witnesses, heard their testimony and concluded that sexual intercourse had taken place, conviction would be sustained even though it necessitated the rejection of the truth of some of the state's testimony in the case. State v. Phipps, 1943-NMSC-038, 47 N.M. 316, 142 P.2d 550.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity, construction, and application of statutes or ordinances regulating sexual performance by child, 42 A.L.R.5th 291.

Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 A.L.R.4th 395.

Validity, construction, and application of state stat-utes or ordinances regulating sexual performance by child, 42 A.L.R.5th 291.