He appealed to the Court of Appeals, which affirmed. See State v. Henderson, 116 N.M. 541, 865 P.2d 1185 (Ct.App. 1993). We granted his petition for a writ of certiorari and now review two issues: whether the uniform jury instruction on CDM (SCRA 1986, 14-601) is deficient, and whether it was error for the trial court to refuse to instruct the jury on the offense of indecent exposure before a minor as a lesser included offense of CDM.
In the Court's review of New Mexico case law on this offense, it is noteworthy that most cases involve overt acts directed at juveniles, and these acts undoubtedly involve conduct more culpable than Plaintiff's actions in this case. See, e.g., State v. Ferguson, 423 P.2d 872 (N.M. 1967) (defendant sold alcohol to minors and allowed them to consume it on her property); State v. Post, 783 P.2d 487 (N.M. Ct. App. 1989) (defendant helped and encouraged minor son to commit arson); State v. Corbin, 809 P.2d 57 (N.M. Ct. App. 1991) (defendant showed minor employee pornographic magazine and told employee to unbutton his pants); State v. Henderson, 865 P.2d 1185 (N.M. Ct. App. 1993) (defendant exposed his penis to two young girls, showed them a condom, and told the girls a condom would keep them from getting pregnant). In the instant case, Plaintiff was aware that his twenty-year-old son was dating a minor.
However, the State did not rely on the "plain feel" doctrine below to justify intrusion into Paul's pockets, nor does the State even cite Dickerson now on appeal.See State v. Henderson, 116 N.M. 541, 545, 865 P.2d 1185, 1189 (Ct.App. 1993) (noting that parties may not change their argument on appeal), aff'd, 116 N.M. 537, 865 P.2d 1181 (1993); see also State v. Wilson, 117 N.M. 11, 19, 868 P.2d 656, 664 (Ct.App. 1993) (recognizing that arguments not supported by authority need not be addressed). Even if we were to reach the issue of "plain feel," the fact that Officer Serna merely speculated about what the object in Paul's pocket "could have been" indicates that it was not immediately apparent to him that the object was in fact contraband.
Under no view of the evidence in Henderson was indecent exposure the highest degree of the crime committed. See State v. Henderson, 116 N.M. 541, 543, 865 P.2d 1185, 1187 (Ct.App. 1987) (recounting facts before the Court). Therefore, what was a secondary issue — Henderson's entitlement to an instruction on a lesser included offense — should have ended with citation to State v. Escamilla, 107 N.M. 510, 512, 760 P.2d 1276, 1278 (1988) (holding instruction on lesser included offense appropriate when some view of the evidence would sustain a finding that the lesser offense was the highest degree of crime committed).
Additionally, parties cannot change their arguments on appeal. State v. Henderson, 116 N.M. 541, 545, 865 P.2d 1185, 1189 (Ct.App. 1993), aff'd, 116 N.M. 537, 865 P.2d 1181 (1993), overruled on other grounds, State v. Meadors, 121 N.M. 38, 908 P.2d 731 (1995). We note that many of the issues argued on appeal are not the issues that were presented to the trial court.