7/23 - State Bar

Transcription

7/23 - State Bar

July 23, 2014 • Volume 53, No. 30
Inside This Issue
Table of Contents .................................................... 3
Judicial Vacancies.................................................... 4
Fifth Judicial District Court
Seventh Judicial District Court
Investiture Ceremony for 13th Judicial District
Court Judge Pedro G. Rael .................................... 5
Solo and Small Firm Section Announces
Upcoming Speakers................................................. 6
Thank You, Veterans Civil Legal Clinic
Volunteers................................................................. 9
Thank You, NMHBA Law Camp Sponsors....... 10
From the New Mexico Court of Appeals
2014-NMCA-059, No. 32,512:
State v. Earp....................................................... 15
2014-NMCA-060, No. 31,646:
State v. Muraida................................................. 17
2014-NMCA-061, No. 32,680:
Valenzuela v. Snyder......................................... 21
2014-NMCA-062, No. 32,203:
State v. Melendrez............................................. 25
Window Series-Finestra by Helen Gwinn (see page 3)
Weems Art Gallery
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2
Bar Bulletin - July 23, 2014 - Volume 53, No. 30
Table of Contents
Officers, Board of Bar Commissioners
Erika Anderson, President
Martha Chicoski, President-Elect
J. Brent Moore, Vice President
Scotty A. Holloman, Secretary-Treasurer
Andrew J. Cloutier, Immediate Past President
Board of Editors
Ian Bezpalko, Chair Kristin J. Dalton
Jocelyn C. Drennan
Jennifer C. Esquibel
Bruce Herr
George C. Kraehe
Maureen S. Moore
Tiffany L. Sanchez
Mark Standridge
Joseph Patrick Turk
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • [email protected]
Communications Coordinator
Evann Kleinschmidt
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2014, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: [email protected]. • www.nmbar.org
July 23, 2014, Vol. 53, No. 30
Notices .................................................................................................................................................................4
Legal Education Calendar..............................................................................................................................7
Thank You, Veterans Civil Legal Clinic Volunteers..................................................................................9
Thank You, NMHBA Law Camp Sponsors.............................................................................................. 10
Writs of Certiorari .......................................................................................................................................... 11
List of Court of Appeals’ Opinions............................................................................................................ 13
Recent Rule-Making Activity...................................................................................................................... 14
Opinions
2014-NMCA-059, No. 32,512: State v. Earp.................................................................................. 15
2014-NMCA-060, No. 31,646: State v. Muraida.......................................................................... 17
2014-NMCA-061, No. 32,680: Valenzuela v. Snyder.................................................................. 21
2014-NMCA-062, No. 32,203: State v. Melendrez...................................................................... 25
Advertising....................................................................................................................................................... 31
State Bar Workshops
Meetings
July
July
24
Real Property, Trust and Estate Section BOD,
Noon, State Bar Center
23
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
25
Immigration Law Section BOD,
Noon, via teleconference
26
Consumer Debt/Bankruptcy Workshop,
9 a.m., The Law Office of Kenneth Egan,
Las Cruces
August
August
5
Appellate Practice Section BOD,
Noon, via teleconference
6
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
5
Bankruptcy Law Section BOD,
Noon, U.S. Bankruptcy Court
6
Employment and Labor Law Section BOD,
7
Health Law Section BOD,
9 a.m., via teleconference
8
Prosecutors Section BOD,
13
Children’s Law Section BOD,
Noon, Juvenile Justice Center
13
Taxation Section BOD,
11 a.m., via teleconfernece
6
Divorce Options Workshop
12
Civil Legal Clinic for Veterans
9 a.m.–noon, Raymond G. Murphy VA
Medical Center, SCI Meeting Room,
Albuquerque
27
Consumer Debt/Bankruptcy Workshop
28
Consumer Debt/Bankruptcy Workshop,
5:30 p.m., The Law Office of Kenneth Egan,
Las Cruces
Cover Artist: Helen Gwinn’s expressive images are acrylics on wooden panels and watermedia on paper with collage.
She often embellishes her works with handmade paper packets stuffed, folded, tied, painted and incorporated into each
composition. www.hgwinn.com.
Bar Bulletin - July 23, 2014 - Volume 53, No. 30 3
Notices
Professionalism Tip
Court News
New Mexico Supreme Court
With respect to parties, lawyers, jurors, and witnesses:
Updates to ‘One Source’
On July 15 the New Mexico Compilation Commission released an enhancement to “One Source.” Case history alerts
provide pinpoint links to paragraphs in
subsequent cases that overrule or reverse
a case. Lawyer editors for the New Mexico
Compilation Commission reviewed more
than 11,300 New Mexico appellate court
opinions since 1852 to develop the custom
feature that would alert the reader as to
whether an opinion was still “good law.” It
will be released first at www.nmonesource.
com and updated daily with new content.
The August quarterly release of New
Mexico One Source of Law® on DVD will
follow and will include case history alerts
through the case cut-off date for publication of the disc.
Second Judicial District Court
Judicial Finalists Named
The Second Judicial District Judicial
Nominating Commission met on July
21 to evaluate the five applicants for the
vacancy on the Second Judicial District
Court that exists with the retirement of
the Hon. Ted L. Baca, effective July 1. The
names of the applicants in alphabetical
order are:
Erika E. Anderson
David M. Berlin
I will be courteous, respectful and civil to parties, lawyers, jurors
and witnesses. I will maintain control in the courtroom to ensure
that all proceedings are conducted in a civil manner.
Nancy J. Franchini
Steven L. Gonzales
Frank A. Sedillo
Fifth Judicial District Court
Announcement of Vacancy
A vacancy on the Fifth Judicial District Court exists in Chaves County as
of Aug. 2 due to the retirement of Hon.
Charles C. Currier. The opening will be
for a general jurisdiction judge. Inquiries
regarding details or assignment of this
judicial vacancy should be directed to
the chief judge or the administrator of
the court. David Herring, chair of the
Judicial Nominating Commission, solicits applications for this position from
lawyers who meet the statutory qualifications in Article VI, Section 14 of the New
Mexico Constitution. Applications may
be obtained from the Judicial Selection
website: http://lawschool.unm.edu/
judsel/application.php. The deadline for
applications is 5 p.m., July 29. Applicants
seeking information regarding election
or retention, if appointed, should contact
the Bureau of Elections in the office
of the Secretary of State. The Judicial
Nominating Committee will meet on
Aug. 7 at the Chaves County Courthouse,
400 N. Virginia, Roswell, to evaluate the
applicants. The Committee meeting is
open to the public.
Seventh Judicial District Court
Announcement of Vacancy
A vacancy on the Seventh Judicial District Court exists as of July 19 due to the
retirement of Hon. Edmund H. Kase III.
This opening will be a Division I, general jurisdiction judge, including travel within the
four counties of the Seventh Judicial District
(Catron, Sierra, Socorro and Torrance). This
assignment will also include after-hours
applications by law enforcement officials
that may be made on an unscheduled basis.
Further inquiries regarding additional details or assignment of this judicial vacancy
should be directed to the chief judge or the
administrator of the court. David Herring,
chair of the Judicial Nominating Commission, solicits applications for this position
Judicial Records Retention and Disposition Schedules
Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits with the courts for the years and courts shown below, including but
not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are advised that exhibits can
be retrieved by the dates shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be
released to counsel of record for defendant(s). All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered
abandoned and will be destroyed by Order of the Court.
Court
Exhibits/Tapes
5th Judicial District Court
Domestic Relations: DM-1995-119,
County of Eddy
DM-1998-277, DM-2006-307, DM-2007-161,
575-885-4740
DM-2010-154, DM-2010-336.
Civil Cases: CV-1994-55, CV-1994-392, CV-1995-233,
CV-1997-3, CV-1997-127, CV-1997-324, CV-1997-450,
CV-1998-189, CV-1998-367, CV-1999-60, CV-1999-181,
CV-2000-13, CV-2000-58, CV-2000-123, CV-2000-509,
CV-2000-544, CV-2001-62, CV-2001-366, CV-2002-88,
CV-2002-186, CV-2002-274, CV-2002-306, CV-2003-67,
CV-2003-237, CV-2004-56, CV-2004-112, CV-2004-116,
CV-2004-265, CV-2004-269, CV-2004-557, CV-2005-381,
CV-2005-620, CV-2006-139, CV-2006-609, CV-2007-114,
CV-2009-315, CV-2009-793, CV-2009-926, CV-2010-321,
CV-2010-647, CV-2010-783, CV-2011-75, CV-2011-385.
4
May Be
Retrieved Through
Aug. 15
www.nmbar.org
from lawyers who meet the statutory
qualifications in Article VI, Section 14 of
the New Mexico Constitution. Applications
may be obtained from the Judicial Selection
website: http://lawschool.unm.edu/judsel/
application.php. The deadline for applications is 5 p.m., July 31. Applicants seeking
information regarding election or retention
if appointed should contact the Bureau of
Elections in the Office of the Secretary of
State. The Judicial Nominating Committee
will meet on Aug. 8 at the Socorro County
Courthouse to evaluate the applicants. The
Committee meeting is open to the public.
13th Judicial District Court
Investiture Ceremony for
Judge Pedro G. Rael
The judges and employees of the 13th
Judicial District Court invite all to attend
the investiture ceremony of Hon. Pedro
G. Rael, Division VI, Valencia County.
The ceremony will take place at 3 p.m. on
Aug. 1 at the Valencia District Courthouse,
3rd floor ceremonial courtroom. Refreshments will follow the ceremony. For more
information, contact Terecina Marquez at
505-865-4291, ext. 2104.
U.S. District Court:
District of New Mexico
Investiture of Judge Yarbrough
Hon. Steven C. Yarbrough will be sworn
in as U.S. Magistrate Judge for the U.S. District Court for the District of New Mexico
at 4 p.m., Aug. 1, in the Rio Grande Courtroom, third floor, of the Pete V. Domenici
U.S. Courthouse, 333 Lomas Blvd. NW,
Albuquerque. A reception hosted by the federal bench and bar of the U.S. District Court
for the District of New Mexico will follow
from 6–9 p.m. at the Albuquerque Country
Club, 601 Laguna Blvd. SW. All members
of the bench and bar are invited to attend.
Reservations are requested at 505-348-2001
or [email protected].
Memorial Service in Honor of
Judge John Edwards Conway
The federal judges of the District of
New Mexico and the Federal Bar Association invite members of the State Bar of
New Mexico to attend a special memorial
honoring the late U.S. District Judge John
Edwards Conway at 2:30 p.m., July 25, in
the Rio Grande Courtroom, third floor,
Pete V. Domenici U.S. Courthouse, 333
Lomas Blvd. NW. A reception will immediately follow at the Albuquerque Country
Club, 601 Laguna Blvd. SW.
stAte BAr neWs
Attorney Support Groups
• Aug. 4, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
• Aug. 11, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, Room 1119 (The group
meets the second Monday of the month.)
• Aug. 18, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
• For more information, contact Bill
Stratvert, 505-242-6845.
Alternative Dispute
Resolution Committee
Institute in San Antonio
The State Bar Alternative Dispute
Resolution Committee is co-sponsoring
the ABA Section of Dispute Resolution’s
Advanced Mediation and Advocacy Skills
Institute on Oct. 16–17 in San Antonio.
Registration is now open at http://shop.
americanbar.org/eBus/Default.aspx?Tab
ID=1444&productId=212819 for ADR
Committee members at a discounted rate.
Survey Seeks Member Input
The ADR Committee is seeking input
on re-engineering itself for the future. On
July 23, all members of the State Bar with
email addresses will receive the eightquestion survey. Because the Committee
is seeking as many responses as possible,
you can forward the survey to interested
parties. The Committee will review the
survey results at its noon meeting on Aug.
28 at the State Bar Center. If you have
questions, please contact David Levin at
[email protected].
Children’s Law Section
Support the Annual Art Contest
The Children’s Law Section is now accepting monetary donations for supplies
and prizes for its Annual Art Contest
for children 10 and older who have had
contact with the juvenile justice system
or Children’s Court. This year’s theme
is “Making the Most of What I Have.”
Gift cards, ranging from $15 to $100, are
awarded to the top three artists and 10-plus
honorable mention winners. For more
information, contact Children’s Law Section Chair Alison Pauk at 505-369-3628
FEE ARBITRATION PROGRAM
This program helps to resolve fee disputes
between attorneys and their clients or
between attorneys. Call 505-797-6004 or
1-800-876-6227.
Submit
announcements
for publication in
the Bar Bulletin to
[email protected]
g
by noon Monday
the week prior
to publication.
Committee on Women and
the Legal Profession
‘Get Golf Ready’ Program
The Committee on Women and the
Legal Profession’s 2014 Get Golf Ready
Program at the Sandia Golf Club in
Albuquerque is under way. Students will
learn basic techniques including chipping and putting, full swing and bunker
play, and fundamental guidelines for
the use and maintenance of golf equipment, keeping score, and navigating the
course. Clinics will be from 4–5 p.m. on
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org/JLAP/JLAP.html
www.nmbar.org
July 23 and 30. The cost includes club
rental. Register online at https://www.
cgmarketingsystems.com/onlineshop/
index.asp?id=10324&courseid=1083. For
more information, contact Jocelyn Castillo
[email protected].
Tee Times at Sandia Golf Club
The Committee on Women and the Legal
Profession has reserved tee times at Sandia
Golf Club. Play nine holes at 4 p.m. on July
23, Aug. 6 and Aug. 20. This invitation is
not limited to attorneys and is open to all
women golfers. The price is $30 per person
(includes cart, greens fee and practice balls).
To reserve a spot on a particular day, email
Jocelyn Castillo, [email protected].
Immigration Law Section
Opposes Expedited Deportation
After receiving input from its section
members per State Bar Bylaws, the Immigration Law Section Board of Directors voted
7-0, with one abstention, in favor of endorsing a statement opposing the federal government’s expedited removal of unaccompanied
minors from Central America who are in the
U.S. illegally. Section board members voting
“aye” were Pamela Muñoz, chair; Carolina
Martin Ramos, chair-elect; Joel Hagaman,
secretary; Kristin Kimmelman, budget officer; Horatio Moreno-Campos, Olsi Vrapi,
and Abby Sullivan Engen. There were no
“no” votes. Christina Rosado abstained. To
view the statement, visit http://www.nmbar.
org/AboutSBNM/sections/Immigration/
Immdocs/expediteddeportations.pdf.
Solo and Small Firm Section
Save the Date: Upcoming Speakers
Mark your calendars now for the Solo
and Small Firm Section’s exciting line up of
speakers for the fall and winter. All members
of the bench and bar are welcome to the free
noontime lunch presentations, the third
Tuesday of the month, at the State Bar Center.
• Sept. 16: UNM School of Law Dean
David Herring will talk about the law
school’s view of the future.
• Oct. 21: U.S. Attorney Damon Martinez will speak.
• Nov. 18: John Boyd, top litigator in
New Mexico on voter ID, will talk.
• Jan. 20, 2015: Nancy Hollander will
address national security vs. privacy.
• Feb. 17, 2015: Judge Harris Hartz of
the 10th Circuit Court of Appeals
will speak.
• March 17, 2015: Former U.S. Attorney Greg Fouratt, head of the N.M.
Department of Public Safety, will talk.
6
UNM
the guest speaker. For more information,
contact Eric Sedillo Jeffries, 505-842-0400.
Hours Through Aug. 17
Building & Circulation
Monday–Thursday Friday
Saturday
Sunday
Reference
Monday–Friday
Saturday–Sunday
New Mexico Workers’
Compensation Administration
Law Library
8 a.m.–8 p.m.
8 a.m.–6 p.m.
8 a.m.–5 p.m.
Noon–8 p.m.
9 a.m.–6 p.m.
Closed
Other Bars
New Mexico Criminal Defense
Lawyers Association
CLE Opportunity
The New Mexico Criminal Defense
Lawyers Association presents “Overcoming Myth: Defending Sexual Offenses with
Truth and Fact” (6.0 G) on Aug. 20 in Las
Cruces. Visit www.nmcdla.org or call 505992-0050 to register.
New Mexico Defense Lawyers
Association
Annual Awards Nominations
The New Mexico Defense Lawyers Association is now accepting nominations
for the 2014 NMDLA Outstanding Civil
Defense Lawyer and the 2014 NMDLA
Young Lawyer of the Year awards. Nomination forms are available at www.nmdla.
org, [email protected], or 505-7976021. The deadline is Aug. 1. The awards
will be presented at the NMDLA Annual
Meeting Luncheon on Oct. 3 at the Hotel
Andaluz in Albuquerque.
Save the Date: Women in the
Courtroom Seminar
The New Mexico Defense Lawyers
Association will present “Women in the
Courtroom V: This is Your Life! Authenticity in the Age of Appearances” on Aug.
15 at the Jewish Community Center in
Albuquerque. This day-long seminar to
enhance the skills of all female attorneys
will conclude with a wine tasting reception.
Register at www.nmdla.org. For more information, call NMDLA at 505-797-6021.
Other News
Historical Committee
Meeting Notice
The Historical Committee will meet at
noon, Aug. 14, on the patio of the Church
Street Cafe in Old Town Albuquerque.
UNM Professor Richard Melzer will be
Notice of Public Hearing
The New Mexico Workers’ Compensation Administration will conduct a public
hearing at 1:30 p.m., Aug. 7, at 2410 Centre
Avenue SE, Albuquerque. The hearing will
focus on the changes to the WCA Rules,
including part 1, general provisions; part
4, claims resolution; and part 5, enforcement and administrative investigations.
Copies of the proposed rule amendments
are available at http://www.workerscomp.
state.nm.us/. Comments made in writing
before Aug. 18 and at the public hearing
will be taken into consideration. Individuals who need assistance to participate in
the hearing or meetings should call 505841-6083.
New Mexico Public Defender
Commission
Meeting Notice
The New Mexico Public Defender
Commission will meet at 9:30 a.m., July
25, at the New Mexico Educators Federal
Credit Union Training Center, 4100 Pan
American Freeway NE, Albuquerque. The
agenda will be posted at www.pdd.state.
nm.us.
United South Broadway
Corporation
Monthly Pro Se Foreclosure
Workshops
United South Broadway Corporation
offers free workshops for homeowners
facing foreclosure at 3 p.m. on the third
Thursday of each month, at 1500 Walter
SE, Suite 202, two blocks west of I-25; half
a block south of Cesar Chavez Blvd. The
workshop will help participants file answers to summons and complaints, cover
law and court process for foreclosures and
address how to apply for a loan modification. The next workshop will be Aug. 21.
Spanish-speaking interpreters are available
to those who call two days ahead. For more
information, call USBC at 505-764-8867.
Legal Education
July
25Ethics and Lateral Transfers of
Lawyers Among Law Firms
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
25
The Basics of Kinship/
Guardianship
2.0 G
Live Seminar
Volunteer Attorney Program
505-797-6040
www.nmbar.org/attorneys/VAP/VAP.
html
29Structuring For-Profit/Non-Profit
Joint Ventures
1.0 G
505-797-6020
www.nmbarcle.org
5
Skeptically Determining the Limits
of Scientific Evidence V
5.0 G, 1.5 EP
Video Replay
505-797-6020
www.nmbarcle.org
12–13 Defending Business Audits,
Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
19
2014 Ethicspalooza: Charging a
Reasonable Fee
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
5
Accounting for Lawyers
6.0 G
Video Replay
505-797-6020
www.nmbarcle.org
14
Alternatives to Trusts
1.0 G
505-797-6020
www.nmbarcle.org
5
19
19–20 Planning in Charitable Giving,
Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
August
11th Annual Spring Elder Law
Institute: Current Medical
Developments Every Elder Law
Attorney Should Know
2.5 G
Video Replay
505-797-6020
www.nmbarcle.org
5
2014 Ethicspalooza: The Ethics of
Social Media Use
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
5–6
Selling to Consumers: Sales,
Finance, Warranty & Collection,
Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
24th Annual Appellate Practice
Institute
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
19
The 29th Annual Bankruptcy Year
in Review Seminar
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
19
Practical Tips and Advice from
Judge Alan Torgerson
1.5 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
22
Ethics in Employment Law
Practice
1.0 EP
505-797-6020
www.nmbarcle.org
22
Overcoming Myth: Defending
Sexual Offenses with Truth and
Fact
6.0 G
Live Seminar
New Mexico Criminal Defense
Lawyers Association
505-992-0050
www.nmcdla.org
26–27 Early Stage Capital for Growing
Businesses: Venture Capital and
Angel Investing, Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
Legal Education
www.nmbar.org
September
9
From Workers’ Compensation to
Social Security: Complementary
Areas to Build Your Practice
5.5 G
Video Replay
505-797-6020
www.nmbarcle.org
94th Annual ADR Institute
How Neuroscience Helps Mediators
Resolve Conflict
6.0 G
Video Replay
505-797-6020
www.nmbarcle.org
9
2014 Ethicspalooza: Proper Trust
Accounting
1.5 EP
Video Replay
505-797-6020
www.nmbarcle.org
9
2014 Ethicspalooza: Ethically
Managing Your Practice
1.5 EP
Video Replay
505-797-6020
www.nmbarcle.org
9
UCC Toolkit: Promissory Notes
1.0 G
505-797-6020
www.nmbarcle.org
10
UCC Toolkit: Letters of Credit
1.0 G
505-797-6020
www.nmbarcle.org
8
11
UCC Toolkit: Equipment Leases
1.0 G
505-797-6020
www.nmbarcle.org
12
The Law and Horses in New Mexico
6.7 G
Live Seminar and Webcast
505-797-6020
www.nmbarcle.org
16–17 Restructuring Failed Real Estate
Deals, Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
18
2014 Probate Institute
6.0 G, 1.0 EP
Live Seminar and Webcast
505-797-6020
www.nmbarcle.org
19
Attorney Ethics When Starting a
New Law Firm
1.0 EP
Center for Legal Education of
NMSBF
505-797-6020
www.nmbarcle.org
23
The Brain-Smart Negotiator: Skills
and Practices for the Effective
Litigator
6.0 G
Video Replay
505-797-6020
www.nmbarcle.org
23
Solo and Small Firm Annual
Institute What You Don’t Know
Can Hurt You!
3.2 G, 2.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
23
Navigating the Privileges Minefield
5.5 G
Video Replay
505-797-6020
www.nmbarcle.org
23
2014 Ethicspalooza: Conflicts of
Interest
1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
23
Understanding and Modifying
Fiduciary Duties in LLCs
1.0 G
505-797-6020
www.nmbarcle.org
24
Drafting Escrow Agreements in
Business and Real Estate
1.0 G
505-797-6020
www.nmbarcle.org
Thank you to the volunteers of the
Veterans Civil Justice Initiative.
The VCJI would not be possible without your selfless commitment to our veterans.
April
Twila Larkin
Paul Splett
Kate Rubi
Amanda Pagan
Niva Lind
Martin Martinez
Dane Lauritzen
Marshall Martin
Chris Garcia
Calvin Hyer
Matt Beck
Jim Martin
Tom Dawe
Geoff Nims
Mary Ann Joca
Annette Dubois
Vic Carlin
Peter Rechkemmer, United States
Citizenship and Immigration Services
Tania Silva
Renee Valdez
Felipe Quintana
Spencer Edelman
Jennifer Coston
Krista Gianes-Chavez
Linda Murphy
Andrew Polnett
Jan Thompson
Rob Mead
Aja Brooks
Paul Haidle
Debbie Norman
Holly Ponder, Goodwill Industries
Lori Hansen, Goodwill Industries
Carol Hinote, NMVAHCS
Carolyn MacArthur, NMVAHCS
Larrea Lavoiscia, NMVAHCS
Camila Lopez, NMVAHCS
Earl Roybal, NMVAHCS
David Maestas, NMVAHCS
May
Marsha Shasteen
Sharon Pomerantz
Donna Lynch
Martin Martinez
Kate Rubi
Twila Larkin
Alex Beattie
Chris Pierce
Jim Martin
Calvin Hyer
Vicki Hunt
Susan Page
Vic Carlin
Geoff Nims
Mary Ann Joca
Scott Pistone
Jennifer Coston
Peter Rechkemmer
Jan Downs
Andy Salas
Ashley MacKenzie
Jay McCray
Hannah Bell
Ian Bearden
Cydney Beadles
Tony Garcia
Francis Gomez
Linda Murphy
Andrew Polnett
June
Niva Lind
Donna Lynch
Anne Gibson
Martin Martinez
Kate Rubi
Anne Gibson
Marshall Martin
Calvin Hyer
Jim Martin
Scott Pistone
Vicki Hunt
Mary Ann Joca
Susan Page
Geoff Nims
Leigh Anne Chavez
Vic Carlin
Andy Salas
Ian Bearden
Ben Gibson
Linda Murphy
Chris Pierce
Aja Brooks
Rob Mead
Susan Cross
Chris Garcia
Ken Anaya, VA Regional Office
Jeff George, New Mexico Department of
Veterans Services
Debbie Norman
Denise Deiterman
Mike Prinz
Paula Vasquez
Secret Wimberly, Goodwill Industries
July
Twila Larkin
Keith Mier
Chris Holland
Kathryn Hardy
Julia Broggi
JoHanna Cox
Jim Wood
Ian Bearden
Kate Rubi
Scott Pistone
Fred Martinez
Calvin Hyer
Vic Carlin
Niva Lind
Leigh Anne Chavez
Debbie Norman
Mark Pustay
Chris Pierce
Chris Garcia
Jim Martin
Linda Murphy
Paul Haidle
Aja Brooks
Andy Salas
Jan Downs
Geoff Nims
Mary Ann Joca
Marshall Martin
Jeff George, New Mexico Department of
Veterans Services
Secret Wimberly, Goodwill Industries
Jason Riggs, Road Runner Food Bank
Lisa Anderson, NMVAHCS
Barbara Nolan, NMVAHCS
Carolyn MacArthur, NMVAHCS
A very special and heartfelt thanks and enormous amount of gratitude to Greg Gambill, a co-founder of the clinic and dedicated
volunteer, who is moving to Denver to pursue an opportunity to practice healthcare law. Without Greg’s time, energy, and passion for
public service, the VA clinic would not be what it is today. We wish him all the best in his future endeavors. He will certainly be missed.
For any attorneys, paralegals, law students, and do-gooders interested in volunteering, VCJI clinics are held on the second Tuesday of
each month, from 9 a.m. to noon at the Raymond G. Murphy VA Medical Center in Albuquerque. The next clinic is Tuesday, Aug. 12.
Volunteers show up between 8 and 8:30 a.m. for orientation, introductions, and announcements. No special training or certification is
required. Contact Keya Koul at [email protected] to sign up. See you at a clinic soon!
YOUNG LAWYERS DIVISION
Thanks to all our sponsors and volunteers
for making the Summer Law Camp a success!
Sponsors:
New Mexico Hispanic Bar Association
UNM College Enrichment and
Outreach Programs
ENLACE
State Bar of New Mexico
Young Lawyers Division
Heritage Hotels & Resorts, Inc.
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Robles Rael & Anaya, P.C.
Montgomery & Andrews, P.A.
Colon Family Fundraiser
New Mexico Women’s Bar Association
12th Judicial District Bar Association
Farmington Attorneys and the Office
of the 11th Judicial District Attorney
State Bar of New Mexico Practice Sections:
• Appellate Practice Section
• Bankruptcy Section
• Employment and Labor Law Section
• Immigration Law Section
• Indian Law Section
• Prosecutors Section
• Trial Practice Section
Special Thanks To:
Law Offices of the Public Defender: Jorge Alvarado, Jason Rael
and Cydni Sanchez
Second Judicial District Attorney’s Office: Kari Brandenburg
U.S. District Court Chief Judge M. Christina Armijo
U.S. District Court Judge Steven C. Yarbrough
New Mexico Court of Appeals Judge M. Monica Zamora
Second Judicial District Court Chief Judge Nan Nash
Second Judicial District Court Judge Beatrice Brickhouse
Metropolitan Court Chief Judge Julie Altwies
Metropolitan Court Judge Frank Sedillo
U.S. Marshal Conrad Candelaria
UNM El Centro de la Raza and Rosa Isela Cervantes
Fred Perez, Law Camp Visionary
Brian, Aleli and Rafael Colon
David Mendes
Ernestina Cruz
Michael Tafoya, Old Town Pizza Parlor
Adrian Perez, Heritage Hotels & Resorts
Mark Gundlach, Hyatt Regency Albuquerque
Volunteers:
Brian Colon
Lisa Ortega
Robert Sanchez
Robert Lucero
Jessica Terrazas
Denise M. Chanez
Jacqueline Medina
Monnica Garcia
Carlos Pacheco
Mary Valencia
Orlando Torres
Aja Brooks
Matt Beck
Martina Kitzmueller
Alicia Santos
Justin Goodman
Ali Pauk
Sarah Gallegos
Krista Garcia
Jenessa Reyes
Christopher Jaramillo
Ashlee Wright
Elizabeth Reitzel
Eddie Lovato
Elvis Rescinos
Julia Zarate
Law Camp Planning Committee:
NMHBA: Brian Colon, Denise M. Chanez, Sarah Gallegos, Carlos Pacheco,
Darren Cordova, Antonia Roybal-Mack, Iris Calderon
UNM: Stacy Daniels, Jennifer Gomez-Chavez
COLLEGE ENRICHMENT &
OUTREACH PROGRAMS
10
College Prep Programs (CPP)
Law Offices of the Public Defender: Jason Rael
State Bar of New Mexico YLD: Keya Koul
ENLACE: Lawrence Roybal
YOUNG LAWYERS DIVISION
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective July 11, 2014
Petitions for Writ of Certiorari Filed and Pending:
No. 34,809
No. 34,805
No. 34,763
No. 34,804
No. 34,807
No. 34,803
No. 34,802
No. 34,801
No. 34,799
No. 34,798
No. 34,797
No. 34,795
No. 34,777
No. 34,790
No. 34,729
No. 34,789
No. 34,788
No. 34,787
No. 34,784
No. 34,786
No. 34,765
No. 34,780
No. 34,778
No. 34,726
No. 34,775
No. 34,773
No. 34,772
No. 34,774
No. 34,771
No. 34,776
No. 34,769
No. 34,767
No. 34,766
No. 34,764
No. 34,762
No. 34,761
No. 34,758
No. 34,756
No. 34,755
State v. Sosa
King v.
Behavioral Home Care
Ogle v. Barncastle
State v. Munoz
Hernandez v. Ortiz
State v. Carlos C.
State v. Tutar
Beserra v. N.M. Taxation
& Revenue Dept.
State v. Araujo
State v. Maestas
Weiss v.
Board of Education
State v. James
State v. Dorais
Venie v. Velasquz
State v. Gonzales
Tran v. Bennett
State v. Nahle
State v. Gutierrez
Silva v. Lovelace
State v. Baca
Helfferich v. Frawner
State v. Mungia
Tecolote Land v.
Montoya
Response filed 7/8/14
Deutsche Bank v.
Johnson
State v. Merhege
State v. Bryan S.
Eunice v. State
State v. Flores
Synder v. Lea Regional
Medical Center
Serna v. Franco
State v. Baca
State v. Madrid
Vialpando v.
Ben’s Automotive
State v. Slade
Torres v. Bravo
Buke v.
Cross Country Auto
Responses filed 6/26/14
State v. Nahle
State v. Gomez
State v. Masterson
Date Petition Filed
COA 32,577 07/11/14
COA 31,682
COA 33,278
COA 30,837
12-501
COA 33,099
COA 33,583
07/09/14
07/09/14
07/08/14
07/07/14
07/07/14
07/07/14
COA 33,641 07/07/14
COA 33,206 07/03/14
COA 31,666 07/03/14
COA 32,844
COA 33,204
COA 32,235
COA 33,427
COA 31,997
COA 32,677
COA 31,759
COA 32,949
COA 31,723
COA 32,523
12-501
COA 33,400
07/03/14
07/02/14
07/02/14
06/27/14
06/27/14
06/26/14
06/26/14
06/25/14
06/25/14
06/24/14
06/24/14
06/23/14
COA 32,275 06/23/14
COA 31,503
COA 32,461
COA 33,315
COA 32,955
06/23/14
06/19/14
06/19/14
06/19/14
COA 33,449 06/18/14
COA 32,303
12-501
COA 32,553
COA 32,064
06/16/14
06/13/14
06/13/14
06/13/14
COA 32,920 06/13/14
COA 32,681 06/13/14
12-501 06/12/14
COA 32,559 06/12/14
COA 31,759 06/10/14
COA 33,486 06/10/14
COA 33,080 06/10/14
No. 34,754
No. 34,752
No. 34,696
No. 34,685
No. 34,748
No. 34,741
No. 34,658
No. 34,731
No. 34,728
No. 34,723
No. 34,705
No. 34,706
No. 34,615
No. 34,691
No. 34,668
No. 34,633
No. 34,589
No. 34,574
No. 34,571
No. 34,611
No. 34,604
No. 34,563
No. 34,560
No. 34,289
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
State v. Kelsey
COA 33,082
State v. Rudy B.
COA 27,589
Coleman v. Hartford Ins. COA 31,724
Romero v. Garcia
12-501
Smith v. State
12-501
State v. Cordova COA 32,722/32,654
Response ordered; due 7/15/14
Aduz Healthcare v. OjiakuCOA 32,555
Helfferich v. Frawner
12-501
Martinez v. Bravo
12-501
Guerra v. Janecka
12-501
State v. Carlos C.
COA 33,233
Camacho v. Sanchez
12-501
Dominguez v. Bravo
12-501
Wetson v. Nance
12-501
State v. Vigil
COA 32,166
Vespender v. Janecka
12-501
Seager v. State
12-501
Montano v. Hatch
12-501
Fresquez v. State
12-501
Musacco v. Franco
12-501
Lopez v. State
12-501
Benavidez v. State
12-501
Response ordered; filed 5/28/14
Hartzell v. State
12-501
Tafoya v. Stewart
12-501
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Response ordered; filed 1/22/13
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Utley v. State
12-501
06/101/4
06/09/14
06/09/14
06/09/14
06/06/14
06/03/14
06/02/14
05/29/14
05/29/14
05/22/14
05/14/14
05/13/14
05/12/14
05/07/14
04/29/14
04/29/14
04/23/14
04/21/14
04/07/14
03/28/14
03/21/14
02/25/14
02/11/14
08/23/13
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Certiorari Granted but not yet Submitted to the Court:
(Parties preparing briefs) Date Writ Issued
No. 33,725 State v. Pasillas
COA 31,513 09/14/12
No. 33,837 State v. Trujillo
COA 30,563 11/02/12
No. 33,877 State v. Alvarez
COA 31,987 12/06/12
No. 33,930 State v. Rodriguez
COA 30,938 01/18/13
No. 34,124 State v. Cortina
COA 30,317 05/24/13
No. 34,122 State v. Steven B. consol. w/
State v. Begaye
COA 31,265/32,136 07/12/13
Bar Bulletin - July 23 2014 - Volume 53, No. 30
11
Writs of Certiorari
No. 33,994
No. 33,863
No. 33,810
No. 34,271
No. 34,300
No. 34,286
No. 34,311
No. 34,295
No. 34,365
No. 34,363
No. 34,274
No. 34,398
No. 34,387
No. 34,400
No. 34,455
No. 34,435
No. 34,499
No. 34,498
No. 34,488
No. 34,487
No. 34,447
No. 34,443
No. 34,516
No. 34,473
No. 34,548
No. 34,546
No. 34,558
No. 34,549
No. 34,526
No. 34,522
No. 34,582
No. 34,644
No. 34,637
No. 34,613
No. 34,607
No. 34,554
No. 34,501
No. 34,476
No. 34,694
No. 34,669
No. 34,650
No. 34,630
12
Gonzales v. Williams
COA 32,274
Murillo v. State
12-501
Gonzales v. Marcantel
12-501
State v. Silvas
COA 30,917
Behrens v. Gateway
COA 31,439
Yedidag v.
Roswell Clinic Corp.
COA 31,653
State v. Favela
COA 32,044
Dominguez v. State
12-501
Potter v. Pierce
COA 31,595
Pielhau v. State Farm
COA 31,899
State v. Nolen
12-501
State v. Garcia
COA 31,429
Perea v. City of
Albuquerque
COA 31,605/32,050
State v. Armijo
COA 32,139
City of Santa Fe v.
Tomada
COA 32,407
State v. Strauch
COA 32,425
Perez v. N.M. Workforce
Solutions Dept. COA 32,321/32,330
Hightower v. State
12-501
State v. Norberto
COA 32,353
State v. Charlie
COA 32,504
Loya v. Gutierrez
COA 32,405
Aragon v. State
12-501
State v. Sanchez
COA 32,994
Mandeville v.
Presbyterian Healthcare COA 32,999
State v. Davis
COA 28,219
N.M. Dept. Workforce Solutions v.
Garduno
COA 32,026
State v. Ho
COA 32,482
State v. Nichols
COA 30,783
State v. Paananen
COA 31,982
Hobson v. Hatch
12-501
State v. Sanchez
COA 32,862
Valenzuela v. Snyder
COA 32,680
State v. Serros
COA 31,975
Ramirez v. State
COA 31,820
Lucero v.
Northland Insurance
COA 32,426
Miller v.
Bank of America
COA 31,463
Snow v. Warren Power
COA 32,335
State v. Pfauntsch
COA 31,674
State v. Salazar
COA 33,232
Hart v. Otero County Prison 12-501
Scott v. Morales
COA 32,475
State v. Ochoa
COA 31,243
08/30/13
08/30/13
08/30/13
09/20/13
09/27/13
09/27/13
10/18/13
10/18/13
11/15/13
11/15/13
11/20/13
12/04/13
12/04/13
12/20/13
01/10/14
01/10/14
02/07/14
02/07/14
02/07/14
02/07/14
02/07/14
02/14/14
02/14/14
03/07/14
03/14/14
03/14/14
03/21/14
03/28/14
03/28/14
03/28/14
04/11/14
05/01/14
05/01/14
05/01/14
05/01/14
05/01/14
05/01/14
05/01/14
06/06/14
06/06/14
06/06/14
06/06/14
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral argument
or briefs-only submission)
Submission Date
No. 33,296 State v. Gutierrez
COA 29,997 09/12/12
No. 33,483 State v. Consaul
COA 29,559 12/17/12
No. 33,382 N.M. Human Services v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,383 Presbyterian Health Plan v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,384 Cimarron Health Plan v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,632 First Baptist Church of Roswell v.
Yates Petroleum
COA 30,359 03/13/13
No. 33,548 State v. Marquez
COA 30,565 04/15/13
No. 33,592 State v. Montoya
COA 30,470 05/15/13
No. 33,971 State v. Newman
COA 31,333 07/24/13
No. 33,808 State v. Nanco
COA 30,788 08/14/13
No. 33,862 State v. Gerardo P.
COA 31,250 08/14/13
No. 33,770 Vaughn v.
St. Vincent Hospital
COA 30,395 08/26/13
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing
COA 30,196 08/28/13
No. 33,898 Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088 09/11/13
No. 34,039 Cavu Co. v. Martinez
COA 32,021 09/30/13
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 10/28/13
No. 34,013 Foy v. Austin Capital
COA 31,421 11/14/13
No. 33,970 State v. Parvilus
COA 30,379 11/25/13
No. 34,085 Badilla v. Walmart
COA 31,162 12/04/13
No. 34,146 Madrid v.
Brinker Restaurant
COA 31,244 12/09/13
No. 34,128 Benavides v.
Eastern N.M. Medical
COA 32,450 12/18/13
No. 34,093 Cordova v. Cline
COA 30,546 01/15/14
No. 34,194/34,204
King v. Faber
COA 34,116/31,446 02/24/14
No. 33,999 State v. Antonio T.
COA 30,827 02/26/14
No. 33,997 State v. Antonio T.
COA 30,827 02/26/14
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297 03/26/14
No. 34,120 State v. Baca
COA 31,442 03/26/14
No. 34,583 State v. Djamila B.
COA 32,333 07/29/14
Petition for Writ of Certiorari Denied:
No. 34,792
Griego v.
St. John Healthcare
Date Order Filed
COA 31,777 07/08/14
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Wendy F. Jones, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925
Published Opinions
No. 32499 AD AD AD-00-000000, IN THE MATTER OF CLASS 2 (affirm)
7/11/2014
Unublished Opinions
No. 33578 12th Jud Dist Otero CR-11-183, STATE v A PIEDRA (reverse and remand)
7/08/2014
No. 31274 2nd Jud Dist Bernalillo CR-03-1942, STATE v DYLAN J (affirm)
7/08/2014
No. 33558 13th Jud Dist Sandoval CV-05-1165, A LUCERO v M TACHIAS (dismiss)
7/09/2014
No. 33479 2nd Jud Dist Bernalillo LR-13-108, STATE v P REYES (affirm)
7/10/2014
No. 31425 5th Jud Dist Eddy CR-10-132, STATE v T MCCLINTOCK (affirm)
7/10/2014
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
13
Recent Rule-Making Activity
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Pending Proposed Rule Changes Open for
Comment:
Comment Deadline
Recently Approved Rule Changes
Since Release of 2014 NMRA:
Effective Date
Children’s Court Rules and Forms
10-315
10-343
Custody Hearing
07/01/14
Adjudicatory hearing; time limits;
continuances07/01/14
Rules of Appellate Procedure
12-206A Expedited appeals from Children’s Court
custody hearings
12-303 Appointment of counsel
07/01/14
07/01/14
Rules Governing Admission to the Bar
15 102
15 103
15 105
15 107
Admission requirements.
Qualifications.
Application fees
Admission by motion.
06/01/15
06/01/15
06/01/15
06/01/15
Supreme Court General Rules
23-109
Chief judges
04/23/14
To view all pending proposed rule changes (comment period open or closed),
visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website
at http://www.nmcompcomm.us.
14
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Opinion Number: 2014-NMCA-059
Topic Index:
Appeal and Error: Standard of Review
Criminal Law: Embezzlement; and Property Damage
Property: Real Estate Contract
Statutes: Interpretation
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
WYATT EARP,
Defendant-Appellant
Docket No. 32,512 (filed March 19, 2014)
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
WILLIAM H. BROGAN, District Judge
GARY K. KING
Attorney General
MARGARET MCLEAN
Assistant Attorney General
Santa Fe, New Mexico
for Appellee
Opinion
M. Monica Zamora, Judge
{1}Wyatt Earp (Defendant) appeals his
convictions for criminal damage to property pursuant to NMSA 1978, Section
30-15-1 (1963), and for embezzlement
pursuant to NMSA 1978, Section 30-16-8
(2007). He raises several issues relating to
the jury instructions, evidentiary matters,
sufficiency of the evidence, and damages. In this case, the dispositive issue is
whether Defendant, as an equitable owner
in a residential property, can be criminally
charged with embezzling or damaging
that property. We hold that he cannot be
charged with those property crimes and
reverse.
BACKGROUND
{2}In July 2006, Defendant purchased
a home from Robert Carter (Seller)
pursuant to a real estate contract. The
terms of the contract provided for a
down payment, monthly payments, and
payment of the remaining balance in
August 2009. When Defendant failed to
pay the balance, Seller elected to termi-
S. THOMAS OVERSTREET
OVERSTREET & ASSOCIATES, P.C.
Alamogordo, New Mexico
for Appellant
nate the contract. Prior to vacating the
property, Defendant removed a number
of appliances and fixtures from the home
and left the home in a state of disrepair.
Defendant was subsequently convicted
of embezzlement and criminal damage
to property.
DISCUSSION
{3}This case presents us with the novel
question of whether a person who is
purchasing a home under a real estate
contract, but has not completed his obligations under the contract, can be charged
with embezzlement and criminal damage
to property for removing appliances and
other fixtures from the home upon the
seller’s termination of the contract.
Standard of Review
{4}The parties’ arguments primarily
implicate questions of statutory interpretation. “Statutory interpretation is a question
of law, which we review de novo.” State v.
Smith, 2009-NMCA-028, ¶ 8, 145 N.M.
757, 204 P.3d 1267 (internal quotation
marks and citation omitted). “Our primary
goal when interpreting a statute is to give
effect to the Legislature’s intent, which is
determined by looking at the plain lan-
guage used in the statute, as well as the
purpose of the underlying statute.” State
v. Parrish, 2013-NMCA-066, ¶ 6, 304 P.3d
730, cert. denied, 2013-NMCERT-004, 301
P.3d 858.
Equitable Ownership of Property
{5}Our threshold question is whether
Defendant had an ownership interest in
the subject residential property. “Criminal
damage to property consists of intentionally damaging any real or personal property of another without the consent of the
owner of the property.” Section 30-15-1.
Likewise, the crime of embezzlement “consists of a person embezzling or converting
to the person’s own use anything of value,
with which the person has been entrusted,
with fraudulent intent to deprive the owner thereof.” Section 30-16-8(A). The State
contends that Defendant’s prosecution
under both statutes was proper because
the property he removed or damaged was
not his own. We disagree.
{6}It has long been established by New
Mexico courts that, under a real estate
contract, a purchaser acquires an equitable
interest in the property and is treated as
the owner of the land. “In New Mexico[,]
the rule is that a [purchaser], under an
executory contract for the sale of realty,
acquires an equitable interest in the property. By application of the doctrine of
equitable conversion, the [purchaser] is
treated as the owner of the land and holds
an interest in real estate.” Marks v. City
of Tucumcari, 1979-NMSC-045, ¶ 5, 93
N.M. 4, 595 P.2d 1199; see MGIC Mortg.
Corp. v. Bowen, 1977-NMSC-108, ¶¶ 4-6,
91 N.M. 200, 572 P.2d 547 (recognizing
that a purchaser, under a real estate contract, holds an equitable interest); Gregg v.
Gardner, 1963-NMSC-223, ¶ 31, 73 N.M.
347, 388 P.2d 68 (“It is equally clear from
our decisions that in equity a contract for
sale of real estate results in the purchaser
acquiring an equitable interest in the land
which he may devise by will[.]”); Mesich
v. Bd. of Cnty. Comm’rs of McKinley Cnty.,
1942-NMSC-054, ¶ 16, 46 N.M. 412, 129
P.2d 974 (“In law the effect of a contract
whereby the owner agrees to sell and another agrees to purchase a designated tract
of land, the vendor remains the owner of
the legal title to the land . . . [b]ut, in equity
the [purchaser] is held to have acquired
the property . . . [and] is looked upon and
treated as the owner of the land and the
equitable estate thereof as having vested
in him.”).
15
Advance Opinions
{7}In Marks, and within the context of
property tax, our Supreme Court examined property interests under executory
contracts for the sale of real estate or real
estate contracts. In New Mexico, the rule
is that a purchaser, under a real estate
contract, acquires an “equitable interest
in the property” and “[b]y application of
the doctrine of equitable conversion, the
[purchaser] is treated as the owner of the
land and holds an interest in [the] real
estate.” 1979-NMSC-045; see NMSA 1978,
§ 7-35-2(G) (1994) (defining an “owner”
as a “person in whom is vested any title
to property”). Because a purchaser under a real estate contract holds equitable
title and because the Property Tax Code
defines “owner” as the holder of any title,
the purchaser under a real estate contract
is an “owner” under the Code. Section
7-35-2(G)
{8}More recently, this Court has held
that a purchaser holding equitable title to
property can be characterized as owning
that property. Santa Fe Cnty. Bd. of Cnty.
Comm’rs v. Town of Edgewood, 2004NMCA-111, ¶ 5, 136 N.M. 301, 97 P.3d
633 (stating that in the context of a statute
regarding annexation, “the plain meaning
of ‘owning land’ is to have equitable or legal
fee title ownership of real estate” (emphasis
added)).
{9} In this case, Defendant held equitable
title to the property by virtue of the real
estate contract. Defendant’s ownership
interest is also evidenced by specific
provisions of the contract that (1) allow
Defendant to take and retain possession
of the property; (2) require Defendant to
keep the property insured “for the benefit
of [Defendant] and Seller”; (3) require
Defendant to pay the property tax; and (4)
grant Defendant conditional rights to sell
or assign his interest in the property. Accordingly, Defendant can be characterized
as owning the property at issue.
{10} Having established that Defendant
had an equitable ownership interest in
the property he is accused of criminally
damaging, we turn now to the question of
whether he can be charged under Section
30-15-1 and Section 30-16-8 for damaging
or removing property in which he had
such an interest.
Criminal Damage to Property
{11} Criminal damage to property consists of “intentionally damaging any real
or personal property of another without
the consent of the owner of the property.”
Section 30-15-1. “The criminal damage to
property statute . . . is founded in the com16
mon law, and at common law, the crime
could not be committed if the perpetrator
was one of the owners of the property.
We presume the [L]egislature adopted
the common law meaning in enacting the
statute.” State v. Powels, 2003-NMCA-090,
¶ 18, 134 N.M. 118, 73 P.3d 256 (Wechsler,
J., specially concurring). “It stretches the
plain, unambiguous wording of Section
30-15-1” to allow for prosecution for damage to “property which a person owns.”
Powels, 2003-NMCA-090, ¶ 12. Where
ambiguity exists in the statute, “we are
required to construe that ambiguity strictly
against the [s]tate, because it is also the
common law in New Mexico that penal
statutes must be resolved in favor of lenity.”
Id. Accordingly, we conclude that Section
30-15-1 does not apply to property in
which Defendant has an equitable ownership interest.
{12} To the extent that the State argues that
“property of another” includes property in
which Defendant shares an ownership interest with Seller, we disagree. “The meaning
of ‘property of another’ has been expanded
by statute in other states to include a
greater number of owners and possessors
than at common law[,]” however, “[t]here
has been no such statutory modification
in Section 30-15-1. On the contrary, the
statute continues to adhere to the common
law concept by requiring that the damage
to the property be ‘without the consent of
the owner of the property.’ ” Powels, 2003NMCA-090, ¶ 8 (citation omitted). It does
not include property in which Defendant
has an ownership interest.
Embezzlement
{13} The crime of embezzlement was
not recognized in common law but was
statutorily created because common law
larceny required a taking and therefore did
not allow for prosecution of a person who
was lawfully in possession of property of
another. State v. Green, 1993-NMSC-056,
¶ 6, 116 N.M. 273, 861 P.2d 954. Initially,
English embezzlement statutes allowed
“persons, such as bank employees and
store clerks, who might have lawful possession of the property of another . . . to
be convicted of embezzlement if they
fraudulently converted the property in
their lawful possession to their own use.”
Id. The early New Mexico embezzlement
statute (1882 N.M. Laws, ch. LII, § 22) was
similar to the English statutes, however, it
“added ‘agent’ to the list of persons (servants, clerks, and employees) who could be
held accountable under the statute.” Green,
1993-NMSC-056, ¶ 7.
{14} “Later versions of our embezzlement
statute . . . , replaced the list of the types
of persons who would be held accountable
under the statute with the phrase similar
to ‘a person in lawful possession of the
property of another’ or to ‘a person entrusted with the property of another.’ ” Id.
(citation omitted). The current version of
our embezzlement statute states in relevant
part: “Embezzlement consists of a person
embezzling or converting to the person’s
own use anything of value, with which the
person has been entrusted, with fraudulent
intent to deprive the owner thereof.” Section 30-16-8(A).
{15} Because embezzlement necessarily
requires the conversion of the property of
another, “[a] defendant cannot be guilty
of embezzlement with respect to property
owned jointly by him, or in which he has
an interest[.]” 3 Wharton’s Criminal Law
§ 407 (15th ed.) (footnotes omitted); see
also Wayne R. LaFave 3 Subst. Crim. L.
§ 19.6 (2d ed.) (“[I]f one co-owner in
possession of the jointly-owned property
misappropriates the whole of such property for his own bad purposes, . . . cases
generally hold that there is no embezzlement.” (footnote omitted)).
{16} In other contexts, courts have held
that a person with an equitable interest
in property cannot be convicted of embezzling such property because it is not
solely the property of another. See People
v. Person, 658 N.Y.S.2d 372, 373 (App. Div.
1997) (“Because the defendant had an equitable interest in the items he was charged
with damaging or stealing, he could not be
charged with these crimes[.] Therefore,
the defendant’s convictions of criminal
mischief in the fourth degree (two counts)
and petit larceny must be reversed, those
counts of the indictment dismissed, and
the sentences imposed thereon vacated.”
(citations omitted)). Similarly, here, we
conclude that Section 30-16-8, like Section 30-15-1, does not apply to property in
which Defendant has an equitable interest.
CONCLUSION
{17} For the foregoing reasons, we reverse Defendant’s convictions for criminal
damage to property and embezzlement.
We need not address Defendant’s remaining arguments.
{18} IT IS SO ORDERED.
M. MONICA ZAMORA, Judge
WE CONCUR:
RODERICK T. KENNEDY, Chief Judge
JONATHAN B. SUTIN, Judge
Advance Opinions
Certiorari Denied, May 30, 2014, No. 34,307
Plaintiff-Appellant,
v.
GERARD MURAIDA,
Defendant-Appellee
Docket No. 31,646 (filed August 8, 2013)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
CHARLES W. BROWN, District Judge
GARY K. KING
Attorney General
REBECCA SALWIN
for Appellant
Opinion
J. Miles Hanisee, Judge
{1}The State appeals the district court’s
dismissal of the criminal complaint charging Defendant Gerard Muraida, M.D., with
abuse and/or neglect of a nursing home
resident, who died due to blood loss from
an excessively prescribed quantity of the
anticoagulant drug Coumadin. The State
argues that the district court impermissibly decided the merits of the case by
implicitly engaging in fact finding in its
dismissal of the complaint pursuant to
Defendant’s pretrial Foulenfont motion.
See State v. Foulenfont, 1995-NMCA-028,
¶ 2, 119 N.M. 788, 895 P.2d 1329 (allowing
the dismissal of criminal charges on purely
legal grounds when the district court assumes the factual predicate underlying the
charges to be true). Because the complaint
stated facts that if proven are sufficient to
convict Defendant of abuse and/or neglect,
we reverse.
I.FACTUAL ALLEGATIONS AND
PROCEDURAL HISTORY
{2}The State’s complaint incorporates a
sworn declaration (the report) by elder
care specialist Loren G. Lipson, M.D., regarding the circumstances of the resident’s
(identified herein as D.A.) medical care
and death and alleges the facts we recite
herein, which we must assume to be true.
D.A., then eighty-four years old, suffered
LUIS G. STELZNER
SARA N. SANCHEZ
STELZNER, WINTER, WARBURTON,
FLORES, SANCHEZ & DAWES, P.A.
Albuquerque, New Mexico
for Appellee
a heart attack and subsequently received
acute care at the Heart Hospital of New
Mexico in Albuquerque from August 2 to
August 15, 2005. On August 15, D.A. was
transferred to Albuquerque Care Center
(ACC) for rehabilitation, where Defendant
became her attending physician. Defendant saw D.A. once on August 16. As part
of the treatment for D.A.’s heart attack,
Defendant prescribed Coumadin, which
D.A. had already begun to receive while
being treated at the Heart Hospital of New
Mexico. Coumadin is “an anti[]coagulant
used to thin blood so it can more easily
pass through constricted blood vessels.”
{3}Initially, Defendant utilized a blood
test called Protime to monitor the anticoagulative effects of Coumadin on D.A.
This test measures an individual’s clotting
time (called the INR) in comparison with
the standard clotting time for the average
person, for which a baseline INR value of
1.0 is assigned. In this case, the therapeutic
INR goal for D.A. was between 2.0 and
3.0. The complaint asserts that this test
was an important tool for Defendant to
evaluate and monitor D.A.’s coagulation
because “Coumadin is a potentially dangerous drug and can result in excessive
bleeding due to decreased clotting.” At
the admission examination conducted
by Defendant on August 16, Defendant
noted that D.A. had “multiple bruises[,]
‘areas related to her anti[]coagulation and
hospitalization.’ He also noted an elevated
INR of ‘3.4’ which was higher th[an her
therapeutic] ‘INR’ goal of ‘2 to 3.’ [At that
time, D.A.’s] Coumadin dose was 1.0 mg
per day.” Several days later on August 19,
D.A.’s “INR was 1.74, [and Defendant]
increased the Coumadin dose on [August
20] to 1.5 mg per day. Inexplicably, no additional INR’s were ordered for (a week)
even though a new dose of Coumadin
was started, and [D.A.’s] INR was elevated
above the desired range [at the time of her]
admission.” In his report, Dr. Lipson explained that “[w]hen the Coumadin dose
is increased or decreased[,] the INR must
be measured daily until a relative steady
state is obtained. If too much Coumadin
is given, any wound, vessel abnormality[,]
or lesion where there may be a tendency
to bleed has a greater chance of bleeding.”
{4} Also pursuant to Dr. Lipson’s report, the
complaint maintains that “Dr. Muraida did
not set blood pressure notification parameters, and actually ignored her low blood
pressure when he examined her.” Notably,
“low blood pressure [can be a sign of] acute
bleeding and . . . dehydration.” Defendant
also “failed to reduce [D.A.’s] blood pressure
medication dosages or check her hydration
status or hematologic status—all placing her
at risk for further heart damage, stroke or
other vital organ ischemic damage.”
{5} Six days following the increase in
Coumadin dosage and upon discovery of
blood in D.A.’s stool on August 26, Defendant “ordered [ACC] nursing to schedule
a colonoscopy with a gastroenterologist
. . . ‘for possible hemorrhoids’ ([without
a] basis in [her] chart for that diagnosis).
[In addition, t]he appointment was not
asked for on an emergent basis.” No INR
test was administered at that time. Dr.
Lipson explained that the “[s]tandard
of care . . . demanded an immediate
evaluation of her gastrointestinal
bleeding in a hospital, discontinuation
of the Coumadin for at least two days[,]
and daily measurement of her INR. Any
gastrointestinal bleeding would place
[D.A.] at risk for further heart damage
from anemia and hypoxia.”
{6} The report also stated that Defendant
was informed that D.A. had a nose bleed,
knee swelling, and bright red blood in her
stools after she suffered falls getting out of
bed, yet Defendant did not properly address
those issues. Ultimately, on September
1, D.A. was sent to the emergency room
for acute rectal bleeding. The affidavit
states that she was “massively over anticoagulated,” possessing an INR “greater than
12.5[,] despite her anticoagulation goal
17
Advance Opinions
being [an INR of 2.0 to 3.0].” The complaint
alleges that D.A. died from blood loss
from a tumor in her colon as a result of
the anticoagulation treatment. Dr. Lipson
stated that “[h]ad [Defendant] on [August
26] immediately and aggressively followed
up on her initial reported rectal bleeding
by stopping the Coumadin and getting an
emergent colon[o]scopy [, D.A.] would
not have died on [September 1, 2005].” Dr.
Lipson concluded that Defendant’s “grossly
negligent conduct directly led to [D.A.’s]
death.”
{7} Defendant’s pretrial Foulenfont motion, filed prior to any determination of
probable cause by either a grand jury or
a judge at a preliminary hearing, asserted
that the charges against him should be
immediately dismissed because the complaint and supporting affidavit did not allege facts sufficient to support a conviction
for abuse and neglect of D.A. The State
responded that ample facts were alleged
in the complaint and supporting documents to establish Defendant’s criminal
liability. The State also maintained that to
the extent Defendant’s motion required
inquiry into the facts, such questions
should be resolved at trial. The district
court granted the motion and dismissed
all charges against Defendant, determining that “the undisputed facts cannot, as
a matter of law, sustain the elements of
the criminal offenses charged.” The State
appeals, arguing that the district court
wrongly decided the merits of the case
before trial.
II.DISCUSSION
{8} Defendant was charged in a two-count
criminal complaint with violating the
Resident Abuse and Neglect Act (the Act).
See NMSA 1978, §§ 30-47-1 to -10 (1990,
as amended through 2010). Both counts
alternatively alleged abuse and neglect
under the Act. Count one was premised
on injuries suffered by D.A.; count two
was premised on her death.
{9}The Act provides criminal penalties
for medical care administered in a residential setting that falls beneath legislated
standards of acceptability. See § 30-47-4
(setting forth the criminal penalties for
resident abuse); § 30-47-5 (setting forth
the criminal penalties for resident neglect).
Under Section 30-47-3(A)(4), “ ‘abuse’
means any act or failure to act performed
intentionally, knowingly[,] or recklessly
that causes or is likely to cause harm to
a resident, including: . . . medically inappropriate conduct[.]” Under Section 3047-3(F),
18
“neglect” means, subject to the
resident’s right to refuse treatment and subject to the caregiver’s right to exercise sound
medical discretion, the grossly
negligent:
(1) failure to provide any
treatment, service, care, medication or item that is necessary to
maintain the health or safety of a
resident;
(2) failure to take any reasonable precaution that is necessary
to prevent damage to the health
or safety of a resident; or
(3) failure to carry out a duty
to supervise properly or control
the provision of any treatment,
care, good, service or medication
necessary to maintain the health
or safety of a resident[.]
Thus, at minimum, the complaint must
allege facts that demonstrate Defendant
acted in an abusive manner or was “grossly
negligent” when he neglected to take
reasonable precautions or to provide or
supervise the provision of appropriate
care, treatment, service, or medication
necessary to the maintenance of D.A.’s
health. Id.
{10} As Section 30-47-3(F) does not
specify what it means by “grossly negligent” conduct, we must clarify whether the
type of negligence at issue is criminal or
civil. “What distinguishes civil negligence
from criminal negligence is not whether
the person is subjectively aware of a risk of
harm; rather, it is the magnitude of the risk
itself.” State v. Schoonmaker, 2008-NMSC010, ¶ 43, 143 N.M. 373, 176 P.3d 1105.
In order to be criminally negligent, a defendant need not be
subjectively aware of a risk, but
the risk must be one of which he
should be aware. The risk must be
of such a nature and degree that
the actor’s failure to perceive it
involves a gross deviation from
the standard of care that a reasonable person would observe in the
actor’s situation.
State v. Webb, 2013-NMCA-027, ¶ 22, 296
P.3d 1247 (alterations, internal quotation
marks, and citation omitted), cert. denied,
2013-NMCERT-002, 300 P.3d 132; see
UJI 14-133 NMRA (defining criminal
negligence). Thus, to commit criminal
negligence, “there must be an actual or
imputed foreseeability of danger directed
toward the [victim] who might be injured
as a result of [the d]efendant’s acts.” Webb,
2013-NMCA-027, ¶ 23 (internal quotation
marks and citation omitted). Moreover,
that risk of harm must be “substantial
and unjustifiable.” State v. Chavez, 2009NMSC-035, ¶ 45, 146 N.M. 434, 211 P.3d
891 (internal quotation marks and citation
omitted).
{11} Since the Legislature did not specify
either the civil or criminal category of
negligence, we take heed that “statute[s]
defining criminal conduct must be strictly
construed.” Santillanes v. State, 1993NMCA-012, ¶ 25, 115 N.M. 215, 849 P.2d
358. “Doubts about the construction of a
criminal statute are resolved in favor of
the rule of lenity.” State v. Bybee, 1989NMCA-071, ¶ 12, 109 N.M. 44, 781 P.2d
316. “A criminal statute may not be made
applicable beyond its intended scope, and
it is a fundamental rule that crimes must
be defined with appropriate definiteness.
Similarly, a statute will not be read to apply
to a criminal offense unless the legislative
proscription is plain.” Id. (citation omitted). Furthermore, it is “well-established in
New Mexico, that only criminal negligence
may be a predicate for a felony unless another intention is clearly expressed by the
[L]egislature.” State v. Yarborough, 1996NMSC-068, ¶18, 122 N.M. 596, 602, 930
P.2d 131 (emphasis added). In accordance
with these tenets of construction and New
Mexico precedent, we conclude that the
narrower standard of criminal negligence
is applicable to Section 30-47-3(F) of the
Act, which markedly punishes the neglect
of a resident resulting in any harm as a
felony. See § 30-47-5(B)-(D) (stating that
whoever commits neglect of a resident
resulting in physical harm, great psychological harm, great physical harm, or death
is guilty of a felony).
{12} Having clarified the nature of neglect required to be proven by the State
in order to convict Defendant of the
crimes at issue on that basis, we review
de novo whether the district court erred
in granting Defendant’s Foulenfont motion. State v. LaPietra, 2010-NMCA-009,
¶ 5, 147 N.M. 569, 226 P.3d 668 (“The
contours of the district court’s power to
conduct a pretrial hearing on a motion to
dismiss charges brought under Rule 5-601
[NMRA] is a legal question reviewed
under a de novo standard.”). Specifically
at issue is the propriety of the district
court’s finding that the State failed to
allege sufficient facts to support a conviction under either Section 30-47-4 (abuse
of a resident) or Section 30-47-5 (neglect
of a resident) in either or both of the
Advance Opinions
two counts that comprised the criminal
complaint. The district court’s authority to
rule on pretrial motions in criminal matters is dictated by Rule 5-601(B), which
states that “[a]ny defense, objection or
request which is capable of determination
without a trial on the merits may be raised
before trial by motion.” As explained in
Foulenfont, dismissal of charges can only
be granted if such charges can be disposed
of solely by deciding a question of law.
1995-NMCA-028, ¶ 5. “Questions of fact,
however, are the unique purview of the
jury and, as such, should be decided by
the jury alone.” LaPietra, 2010-NMCA009, ¶ 7.
{13} In LaPietra, this Court was presented with circumstances similar to the
case at bar and by our ruling declined to
expand the breadth of the district court’s
Foulenfont authority beyond its power
to dismiss charges based on dispositive questions of law. 2010-NMCA-009,
¶¶ 10-16. Although LaPietra involved
allegations of child abuse, and not residential care patients, the defendants in
that case likewise successfully brought a
Foulenfont motion arguing that the State
lacked evidence to prove that the defendants caused the children to be placed in
a situation that endangered their life or
health. LaPietra, 2010-NMCA-009, ¶ 8.
In reversing, we explained that it was the
province of the jury to decide the issue
of who committed the abuse. Id. ¶ 9. We
stated that
the argument that [the d]efendants make is essentially advocating how to characterize the
pretrial transcripts of witness
interviews that were given to the
district court. . . . [The d]efendants’ argument, while stipulating
to what is known at the pretrial
juncture, amounts to a disagreement with the [s]tate as to what a
reasonable jury could conclude.
. . . . The evidence contained in
the transcripts can be viewed in
a variety of ways, one of which
would allow a jury to conclude
that either [the d]efendant or
both [the d]efendants committed
the abuse, allowed the abuse to
happen, or knew, or should have
known, that the abuse was occurring. . . . While the district court
may have thought the [s]tate had
a weak case, the district court
did not have the opportunity to
observe testimony of witnesses
under oath, judge their credibility, weigh the evidence, and
hear opposing arguments after
the close of evidence.
Id. ¶¶ 9, 11. Our decision thus recognized
that it would be impossible to determine
what a jury might conclude and that it
was the jury’s job “to judge the credibility
of witnesses and determine the weight
of evidence.” Id. ¶ 11 (internal quotation
marks and citation omitted).
{14} Similarly, at issue here is whether
the district court exceeded its authority under Rule 5-601(B) and Foulenfont
when it concluded that there were insufficient facts alleged to convict Defendant of the charged crimes. Defendant’s
Foulenfont motion asserted that “the
alleged facts as a matter of law could
not support a conviction of [Defendant]
for [a]buse or [n]eglect of a [r]esident”
because “neither the [c]omplaint nor the
affidavit supporting it reflects that [Defendant] acted or failed to act intentionally, knowingly, recklessly, or criminally
negligently.” Defendant contended that
“the State . . . seeks to convict [Defendant]
based on conduct that, at most, could
amount to civil negligence, or to hold
him vicariously criminally liable for
collective actions of his alleged ‘physician
extenders.’ ” Defendant also contends on
appeal that the State alleged insufficient
facts to show that Defendant had a “legal
duty to further inform himself, examine
D.A. again, or inquire further about her
condition prior to her death.” See State v.
Greenwood, 2012-NMCA-017, ¶ 35, 271
P.3d 753 (stating that an omission can
only constitute a crime where the defendant had a legal duty to act), cert. denied,
2012-NMCERT-001, 291 P.3d 598.
{15} We hold that the complaint and
accompanying affidavit alleged sufficient
facts, if proven, to convict Defendant for
abuse and/or neglect of D.A. under the
Act. The complaint states that Defendant
increased D.A.’s dosage of Coumadin, a
dangerous and potentially lethal anticoagulant, and subsequently failed to take
the reasonable precaution associated with
monitoring the effect of the prescribed
dosage of that medication: testing her INR
daily. A jury could reasonably conclude
that this omission amounted to a failure
to act performed intentionally, knowingly,
or recklessly (abuse), or amounted to a
gross deviation from the applicable standard of care rising to the level of criminal
negligence (neglect). The complaint also
indicates that Defendant failed to consider
and modify D.A.’s blood pressure medication, which under the Act’s definition of
abuse or neglect could likewise suffice, if
proven at trial, to establish guilt. It further
states that Defendant failed to properly supervise the implementation of D.A.’s care,
treatment, and medication while under his
care, because after he increased her Coumadin dosage, he failed to act in response
to her worsening symptoms. Significantly
in this regard, the Act establishes as neglect
the criminally negligent failure to carry out
a duty to supervise the medical care and
treatment of a resident.
{16} Also significantly, the complaint
states that Defendant failed to order the
proper care for D.A. upon discovery of
blood in her stool on August 26th. Rather
than determine whether the symptom was
a product of over-anticoagulated blood
due to Coumadin, Defendant ordered a
colonoscopy. Moreover, the complaint
alleges that he did so on a non-emergent
basis, despite the apparent fact that D.A.
then required much more drastic and
urgent treatment. The affidavit expressly
states that, had Defendant given D.A. the
appropriate care at this juncture, she would
not have bled to death internally from her
colon. Again, under the definitions of the
Act, Defendant’s own actions and inactions
as alleged satisfy the threshold standard
required to survive a Foulenfont motion. A
jury could conclude that the events alleged
posed a substantial and unjustifiable risk to
D.A.’s life. These facts provide a sufficient
basis to conclude that Defendant was personally grossly negligent in his treatment
and care of D.A. and that he had a duty
under the Act to provide proper care as
the attending physician who prescribed
increased dosages of the fatal anticoagulant to D.A.
{17} We conclude that the district court
erred in determining that the State alleged
insufficient facts to support convictions
for abuse and/or neglect. As in LaPietra,
Defendant’s argument both below and on
appeal amounts to a disagreement as to
how the factfinder should interpret the
facts alleged. Such interpretations benefit
from the opportunity to observe the testimony of witnesses, judge their credibility,
weigh the evidence, and hear the parties’
arguments after the close of evidence, as a
jury would have. Such contested questions
of fact in criminal cases rest within the
exclusive province of jurors.
{18} To the extent Defendant argues
that the complaint alleged insufficient
19
Advance Opinions
facts to prove Defendant’s intent and that
“[a]t no time did the State suggest that it
could reasonably present evidence at trial
to show what [Defendant] did or did not
do, or what he knew or did not know[,]”
we conclude that Defendant’s awareness
of the substantial and unjustifiable risk
of harm to D.A. caused by his actions
can be inferred from the facts stated in
the complaint and affidavit. See Schoonmaker, 2008-NMSC-010, ¶ 43 (stating
that the defendant is deemed to have acted
negligently “when he should be aware of
a substantial and unjustifiable risk that
the material element exists or will result
from his conduct” and explaining that
“[t]he risk must be of such a nature and
degree that the actor’s failure to perceive
it, considering the nature and purpose of
his conduct and the circumstances known
to him, involves a gross deviation from the
standard of care that a reasonable person
would observe in the actor’s situation.”
(emphasis, internal quotation marks, and
citation omitted)). It is well established
that the fact finder may infer from circumstantial evidence that the defendant acted
with the requisite intent; direct evidence
of the defendant’s state of mind is not
required. See State v. Largo, 2012-NMSC015, ¶ 31, 278 P.3d 532. Furthermore, “[a]
defendant’s knowledge or intent generally
presents a question of fact for a jury to
decide.” State v. Wasson, 1998-NMCA-087,
¶ 12, 125 N.M. 656, 964 P.2d 820. As such,
it was improper for the district court to
preemptively resolve this question of fact
in the context of a Foulenfont motion.
Moreover, the State need not present evidence to prove its case at the preliminary
stage of the proceedings that existed at the
time of the district court’s ruling. Under
Rule 5-601, the district court’s decision
must be based solely in law, and it must
not consider the merits of the case.
{19} Defendant also asserts that “the State
already conceded below that it cannot and
will not be able to prove who took what
action and who knew what information
with respect to D.A.’s care.” We believe
this assertion is based on an inaccurate
understanding of the proceedings below.
In the transcript from the Foulenfont
motion hearing quoted in part by Defen-
20
dant, the State specifically discussed falls
suffered by D.A. between August 26 and
29. The State explained that “the difficulty
with this particular fact situation is that
preceding August 29, on [August] 26 . . .,
D.A. fell twice. On [August] 28, she fell a
third time, and what happened or to whom
it might have been reported or whatever
is somewhat of a mystery. You can’t really
tell.”
{20} Whatever transpired with regard
to D.A.’s falls does not diminish the significance of the State’s factual statements
that it was Defendant who prescribed an
increased amount of Coumadin and failed
to take precautions to monitor D.A. thereafter and that it was Defendant who failed
to order the proper care for D.A. upon
discovery of blood in her stool on August
26. The State did not concede that it cannot
prove facts related to these failures. The
State only appears to have conceded that
it cannot identify how the falls occurred
between August 26 and 29 and who was informed of them. Sufficient facts were thus
alleged to convict Defendant of abuse and/
or neglect, not based on unknown events,
but rather on Defendant’s actions and allegedly gross deviation from the standard
of care as D.A.’s attending physician.
{21} Lastly, to the extent Defendant
contends that the complaint attempts to
make Defendant “ ‘responsible’ for the
actions of other people—such that he
could be held criminally liable for the[ir
actions],” we disagree. Defendant argues
that there is no law stating he can be held
“criminally responsible for the actions of
other, non-employee providers who treat
the physician’s patient.” Defendant is mistaken as to the nature of what is required
to convict him of neglect under the Act.
Specifically, the Act establishes criminal
liability, not for the actions of others, but
for Defendant’s own criminally negligent
failure to supervise them in their capacity
as medical caregivers acting to maintain
the health of a resident under Defendant’s
direction.
{22} Defendant nonetheless asserts that
the State has failed to allege any evidence
sufficient to prove supervision. Yet the
complaint states that Defendant’s team of
“physician extenders” included a certified
physician assistant and a certified nurse
practitioner who had a collaborative
practice agreement with Defendant. The
complaint charges Defendant with medically inappropriate and life-threatening
conduct, failures to provide treatment and
care as D.A.’s attending physician, failures
to take precautions with her care, and
failures to supervise or control her treatment, in accordance with the definitions
of abuse and neglect in Section 30-47-3. As
explained above, the complaint provides
several instances where Defendant personally acted or failed to act, jeopardizing
D.A.’s life. As such, the complaint sufficiently charges Defendant with liability for
his own criminally negligent conduct and
supervision, not for the conduct of others.
Based on what was alleged by the State in
the criminal complaint, there are sufficient
facts for this case to proceed to trial, or at
the very least, to a preliminary hearing to
provide the State with an opportunity to
make its case.
{23} Because the district court erred in
granting Defendant’s Foulenfont motion,
we reverse and remand this case to the
district court. Upon remand, if the State
chooses to proceed, Defendant will have
an opportunity for a preliminary examination, after which the district court can
weigh evidence and assess the existence
of probable cause from a developed factual record. See State v. Archuleta, 1970NMCA-131, ¶ 25, 82 N.M. 378, 482 P.2d
242 (stating that where the “defendant
was charged by an information, he ha[s]
a constitutional right to a preliminary
examination”); UJI 14-8001 (instructing
grand jurors that a decision on probable
cause must be based “solely upon the evidence received” which may be determined
to be “true or false” and given “whatever
weight . . . it deserves”).
IV.CONCLUSION
{24} For the reasons stated above, we
reverse.
J. MILES HANISEE, Judge
WE CONCUR:
CYNTHIA A. FRY, Judge
MICHAEL E. VIGIL, Judge
Advance Opinions
Certiorari Granted, May 1, 2014, No. 34,644
FRANCISCO VALENZUELA and RACHEL VALENZUELA,
Plaintiffs-Appellees,
v.
ALLAN D. SNYDER and SHERRY L. SNYDER,
Defendants-Appellants,
and
STATE OF NEW MEXICO, TAXATION AND REVENUE DEPARTMENT,
PROPERTY TAX DIVISION,
Defendant
Docket No. 32,680 (filed March 31, 2014)
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
DREW D. TATUM, District Judge
ERIC D. DIXON
Portales, New Mexico
for Appellees
Opinion
Cyntha A. Fry, Judge
{1} Plaintiffs Francisco and Rachel Valenzuela owed delinquent taxes on property
in Portales, New Mexico, which the New
Mexico Taxation and Revenue Department (the Department) sold at auction to
Defendants Allan and Sherry Snyder. It is
undisputed that the minimum bid at the
sale was established by the Department as
$215, and the Snyders, who were the only
bidders at the auction, paid that amount.
The Department’s Property Tax Division
(the Division) issued deeds on the property
to the Snyders, which the Snyders recorded.
{2}The Valenzuelas filed suit seeking
an order setting aside the tax sale. They
alleged that because the purchase price
was so grossly disproportionate to the
property’s fair market value—alleged to be
at least $25,000—it would be inequitable
and unconscionable to let the tax sale
stand. The district court granted them
summary judgment on the ground that
the Snyders failed to respond to the motion
for summary judgment and were deemed
to have admitted the facts alleged by the
Valenzuelas. Because our statutes and case
law establish that an inadequate purchase
price at a tax sale is not a basis for voiding
the sale, we reverse.
ALLAN AND SHERRY SNYDER
Greeley, Colorado
Pro Se Appellants
BACKGROUND
{3} The Valenzuelas initially sued only the
Department seeking an order setting aside
the tax sale. They later amended their complaint to add the Snyders as Defendants,
and the case proceeded against only the
Snyders.
{4}The Valenzuelas filed a motion for
summary judgment in which they alleged
several material facts regarding the value
of the property and the disproportionality
of the purchase price. They also alleged, as
material facts, the legal conclusion that it
would be unconscionable and inequitable
to let the tax sale stand under the circumstances.
{5} The Snyders, acting pro se, did not directly respond to the motion for summary
judgment. Instead, they filed a motion to
stay the proceedings against them until the
case against the Department was resolved.
In this motion, the Snyders stated that they
“den[ied] the whole” of the Valenzuelas’
motion for summary judgment. They did
not comply with the provisions of Rule
1-056 NMRA that require a memorandum
opposing a motion for summary judgment
to specifically note all disputed facts with
supporting citations to the record. See Rule
1-056(D)(2).
{6} Due to the Snyders’ failure to properly
respond to the motion for summary judgment, the district court deemed admitted
all of the material facts alleged in the
Valenzuelas’ motion, including:
• The property’s fair market value was
at least $25,000.
• The Snyders purchased the property
at a tax sale for $215.
• The price the Snyders paid was “grossly disproportionate to [the property’s]
fair market value.”
• “It is unconscionable to allow the tax
sale in which [the Snyders] purchased
the property to stand.”
The court concluded that “[t]he tax sale in
which [the Snyders] purchased the property is hereby deemed null and void.” This
appeal followed.
DISCUSSION
{7}When this Court calendared this
case, we instructed the parties to brief,
in addition to any other issues they were
inclined to raise, the following questions:
(1) whether a claim seeking to invalidate
a tax sale due to inadequacy of price must
be directed at the governmental entity
that sold the property, or whether it may
be directed solely at the third-party purchasers of the property; and (2) whether
New Mexico law supports the invalidation
of a tax sale due to inadequacy of price.
Because these questions were briefed at
our direction, we decline to address the
Valenzuelas’ arguments that the Snyders
failed to preserve these questions in the
district court. Indeed, the second question is the legal issue on which the district
court’s summary judgment stands or falls.
We address each question in turn.
The Valenzuelas Could Properly Sue
the Snyders for the Relief Requested
{8}We readily dispose of the first question. The Valenzuelas correctly note that
NMSA 1978, Section 44-6-4 (1975) of
our Declaratory Judgment Act (the Act),
NMSA 1978, §§ 44-6-1 to -15 (1975), provides that “[a]ny person interested under
a deed . . . or whose rights . . . are affected
by a statute . . . may have determined any
question of construction or validity arising
under the instrument [or] statute . . . and
obtain a declaration of rights, status[,] or
other legal relations thereunder.” Section
44-6-4. The Valenzuelas seek in this case
to have their rights under the Property
Tax Code declared, so they appropriately
asserted their claim under Section 44-6-4.
As for the proper defendant(s) in their suit,
Section 44-6-12 of the Act provides that
“[w]hen declaratory relief is sought, all
persons shall be made parties who have or
claim any interest which would be affected
by the declaration.” As purchasers of the
21
Advance Opinions
property previously owned by the Valenzuelas, the Snyders clearly fall within this
category and, therefore, the suit against
them was permissible.
Inadequacy of the Purchase Price is
Not a Valid Basis for Voiding a Tax Sale
{9} With respect to the second question—
whether New Mexico law permits setting
aside a tax sale due to the inadequacy of the
purchase price—we review an order granting summary judgment de novo. Self v.
United Parcel Serv., Inc., 1998-NMSC-046,
¶ 6, 126 N.M. 396, 970 P.2d 582. “Summary
judgment is appropriate where there are
no genuine issues of material fact and the
movant is entitled to judgment as a matter
of law.” Id.
{10} While the Snyders’ response to
the Valenzuelas’ motion for summary
judgment did not comply with the requirements of Rule 1-056, this did not
automatically entitle the Valenzuelas to
summary judgment. See Junge v. John D.
Morgan Constr. Co., 1994-NMCA-106, ¶
12, 118 N.M. 457, 882 P.2d 48 (explaining that a movant is “not automatically
entitled to summary judgment on the basis
of an allegedly improper response”). The
Valenzuelas had the burden “to show an
absence of a genuine issue of fact, and that
[they were] entitled as a matter of law to
judgment in [their] favor.” Brown v. Taylor,
1995-NMSC-050, ¶ 8, 120 N.M. 302, 901
P.2d 720.
{11} Given the Snyders’ non-compliant
response to the Valenzuelas’ motion for
summary judgment, it was appropriate
under Rule 1-056(E) for the district court
to deem admitted the allegations of fact
stated in the motion. See id. (“[A]n adverse
party may not rest upon the mere allegations or denials of his [or her] pleading,
but his [or her] response, by affidavits or
as otherwise provided in this rule, must
set forth specific facts showing that there
is a genuine issue for trial. If he [or she]
does not so respond, summary judgment,
if appropriate, shall be entered against him
[or her].”). However, the same does not
hold true for conclusions of law that are
presented as allegations of fact. See Vives v.
Verzino, 2009-NMCA-083, ¶ 10, 146 N.M.
673, 213 P.3d 823 (explaining that conclusions of law are not deemed admitted by
the opponent’s failure to respond). Of the
material “facts” alleged in the Valenzuelas’
motion and adopted by the district court,
one is clearly a conclusion of law—the
statement that “[i]t is unconscionable to
allow the tax sale in which [the Snyders]
purchased the property to stand.” This is
the legal question we must answer in light
of the facts that were deemed admitted:
that the Snyders purchased property worth
at least $25,000 for $215 at the tax sale
and that this purchase price was “grossly
disproportionate” to the property’s fair
market value.1
{12} We conclude that inadequacy of the
purchase price or gross disproportionality between the purchase price and the
property’s value are not grounds for setting
aside a tax sale. New Mexico’s Property Tax
Code (the Code) and our case law make
this clear.
{13} We begin with the Code. NMSA
1978, Section 7-38-48 (2003) provides that,
with certain exceptions not applicable to
this case, “taxes on real property are a lien
against the real property from January 1 of
the tax year for which the taxes are imposed.
. . . The lien continues until the taxes and any
penalty and interest are paid.” In this case, it
appears that at the time of the tax sale, the
Valenzuelas owed delinquent taxes for the
years 2008, 2009, 2010, and possibly 2011.
They do not claim in this appeal that they
did not receive notice that these taxes were
due and delinquent or that they were not
provided notice of the tax sale.
{14} The Code states, “If a lien exists . . . ,
the [D]epartment may collect delinquent
taxes on real property by selling the real
property on which the taxes have become
delinquent.” NMSA 1978, § 7-38-65(A)
(2003, amended 2013). The Code requires
the sale to be at public auction, with a minimum purchase price determined by the
Department. NMSA 1978, § 7-38-67(C),
(E) (2005). “In determining the minimum
price, the [D]epartment shall consider the
value of the property owner’s interest in the
real property, the amount of all delinquent
taxes, penalties and interest for which it is
being sold and the costs. The minimum
price shall not be less than the total of
all delinquent taxes, penalties, interest[,]
and costs.” Section 7-38-67(E). Of note
here is the direction to the Department to
“consider the value of the property owner’s
interest in the real property,” a phrase that
has been interpreted by our case law, as we
discuss below. Id.
{15} Once a tax sale has taken place, if the
sale was “substantially in accordance with
the . . . Code . . . , the deed conveys all of the
former property owner’s interest in the real
property as of the date the state’s lien for
real property taxes arose . . . , subject only
to perfected interests in the real property
existing before the date the property tax
lien arose.” NMSA 1978, § 7-38-70(B)
(1982). Here, the Division issued two such
deeds to the Snyders. These deeds were, in
effect, quitclaim deeds.
{16} “In interpreting statutes, we seek
to give effect to the Legislature’s intent,
and in determining intent we look to the
language used and consider the statute’s
history and background.” Key v. Chrysler
Motors Corp., 1996-NMSC-038, ¶ 13, 121
N.M. 764, 918 P.2d 350. In addition, “we
should read the entire statute as a whole
so that each provision may be considered
in relation to every other part.” Baker v.
Hedstrom, 2013-NMSC-043, ¶ 15, 309
P.3d 1047 (internal quotation marks and
citation omitted).
{17} We first note that there is nothing
in the Code expressly requiring that the
price paid at a tax sale approximate the
fair market value of the property. As far
as price is concerned, the Code requires
only that “[t]he minimum price shall not
be less than the total of all delinquent
taxes, penalties, interest[,] and costs.” Section 7-38-67(E). While the Code requires
the Department to “consider the value
of the property owner’s interest,” id., in
determining the minimum sale price, this
Court has said that this consideration can
be established “by interesting as many
buyers as possible in the sale by setting a
low minimum sale price on the property.”
Cochrell v. Mitchell, 2003-NMCA-094, ¶
28, 134 N.M. 180, 75 P.3d 396. In Cochrell,
the minimum bid was set at $4000 on
property worth between $100,000 and
$144,000, where the total taxes, penalties,
and interest totaled $3914.72. Id. ¶¶ 3, 5,
6. In the present case, the minimum sale
price was low—$215 on property worth
$25,000.
{18} Cochrell also established that all that
is required of a tax sale is substantial compliance with the Code. Id. ¶ 16. This is in keeping with the Code’s purpose to permit the
collection of delinquent taxes by selling the
property at issue. Id. ¶ 30. “[T]he [L]egislature does not appear to have required any
definite amount representing the owner’s
interest as part of the minimum sale price.”
Id. Had the Legislature “wanted to mandate
1 The “fact” of gross disproportionality is arguably a conclusion of law, given the case law from Missouri that we discuss below.
However, for purposes of this appeal only, we treat it as an undisputed fact.
22
Advance Opinions
an element of the sale price to be a certain
level, whether the full appraised value or the
taxable value or some percentage of either,
it could have easily so provided.” Id. ¶ 29.
{19} Earlier New Mexico cases, interpreting a former version of the Code, have
held that “[t]ax sale deeds will not be invalidated because it might appear that the
property so sold for delinquent taxes was
not adequately valued for assessment purposes.” Taylor v. Shaw, 1944-NMSC-046, ¶
10, 48 N.M. 395, 151 P.2d 743; see Lawson
v. McKinney, 1950-NMSC-022, ¶¶ 2-3, 12,
54 N.M. 179, 217 P.2d 258 (reversing judgment in favor of former owner of land sold
at tax sale where judgment was based on
the trial court’s adoption of the principle
that “where the consideration in a tax sale
is grossly inadequate as compared with
the actual value of the property the deed
should be held invalid”).
{20}In Taylor, the former owner of the
property sought to invalidate the tax sale in
part because improvements he made to the
property were not included in the assessment of its value. 1944-NMSC-046, ¶ 10.
In rejecting this argument, our Supreme
Court stated that permitting a property
owner to attack a tax sale on this basis
would defeat the purpose of the law of tax
sales, which is “to render these tax sales
efficient to collect delinquent taxes and
confer upon the purchaser a substance and
not a shadow.” Id. ¶ 16 (internal quotation
marks and citation omitted). Because the
former owner failed to pay his property
taxes and failed to complain about the
inadequacy of the assessment, the Court
would not permit him to complain about
an inadequate valuation. Id. ¶ 18.
{21} Justice Bickley wrote a special concurring opinion in Taylor, in which he
commended a principle adopted in Missouri “that in tax sales the consideration
paid may be so grossly inadequate as of itself to amount to ‘fraud,’ requiring that sale
and tax deed be set aside.” Id. ¶ 20 (Bickley,
J., specially concurring). This is the same
principle that the Valenzuelas urge us to
adopt in the present case. We decline to
establish a similar rule in New Mexico
for two reasons. First, our Supreme Court
expressly rejected the Missouri rule in
Lawson, 1950-NMSC-022, ¶¶ 3, 7 (declining to follow Justice Bickley’s recommendation of the Missouri rule). Second, the
applicable statute in Missouri expressly
requires tax sales to be confirmed by a
court and that the court receive evidence
of the property’s value and “determine
whether an adequate consideration has
been paid” for the property sold. Mo. Ann.
Stat. § 141.580(1) (West 2012). The Code
in New Mexico has no such requirement.
{22} The Valenzuelas also rely on Armstrong v. Csurilla, which applied a rule
similar to the “shock the conscience”
principle established in Missouri. 1991NMSC-081, ¶¶ 39-40, 112 N.M. 579, 817
P.2d 1221. Armstrong is distinguishable,
however, because it involved foreclosure
on a judgment lien, not a tax sale. Id. ¶¶
2, 6. Judgment liens and mortgages may
be foreclosed upon by way of a judicial
proceeding. See NMSA 1978, § 39-4-13
(1933) (stating that anyone holding a
judgment lien on real estate “may subject
said real estate to the payment of his [or
her] judgment by a foreclosure suit in
any court of competent jurisdiction, such
suit to be instituted and prosecuted in the
same manner as ordinary suits for the
foreclosure of mortgages”). Such foreclosure proceedings are subject to their own
requirements and exemptions, including
the property owner’s right of redemption.
Id. (stating that a foreclosure of a judgment lien is “subject to the same rights of
redemption as in sales held under mortgage foreclosure decrees”). In contrast,
tax sales are not accomplished through
foreclosure in a court proceeding but may
be conducted by the Department itself,
without court participation, and there is
no right of redemption for the taxpayer in
a tax sale. See Cochrell, 2003-NMCA-094,
¶ 15 (explaining that the 1973 amendments to the Code “eliminated the right
of redemption”). Thus, a judicial sale and
a tax sale are two different creatures, and
the principles applicable to one do not
apply to the other.
{23} While it may seem harsh to disregard a large discrepancy between the
purchase price in a tax sale and the
property’s value, there are at least three
sensible reasons for doing so. First, it
seems less important to protect a property owner’s interest in fair market value
where the owner has not bothered to
pay taxes on the property, despite having had at least three years in which to
contemplate doing so before the tax sale.
See § 7-38-65(A) (stating that a tax sale
may not occur until “after the expiration
of three years from the first date shown
on the tax delinquency list on which
the taxes became delinquent”); see also
Hickey v. Peck, 23 A.2d 711, 714-15 (Md.
App. 1942) (explaining that “where the
owner of the property has not thought
it worth while to pay taxes on the prop-
erty, courts will not look too closely at
the amount of the purchase price in the
absence of any other circumstances”).
Second, “the purchaser [at the tax sale]
buys, knowing the uncertainty of [the]
title which is reflected in [the purchaser’s]
offer.” Id. at 714. In this case, the Snyders,
like all purchasers at a tax sale, received
quitclaim deeds, and this circumstance
may compel the purchaser to undertake
the cost and time expenditures of a quiet
title suit. Allowing property to be sold for
the amount of delinquent taxes, penalties,
interest, and costs encourages purchasers
and resolves a delinquency owed the Department. Third, precluding an after-sale
challenge on the basis of an inadequate
price “clothe[s] tax titles with a measure
of certainty and security.” Cochrell, 2003NMCA-094, ¶ 18 (internal quotation
marks and citation omitted); see Wine v.
Neal, 1983-NMSC-087, ¶ 17, 100 N.M.
431, 671 P.2d 1142 (stating that “[t]he
very purpose of the curative statute is to
stabilize and render tax sales efficient, to
collect delinquent taxes and confer on
the purchasers something of substance”
(internal quotation marks and citation
omitted)).
{24} We are not persuaded by the outof-state cases relied on by the Valenzuelas.
Those cases involved the taxpayer’s right
of redemption following a tax sale. C.F.P.
Prop., Inc. v. Roleh, Inc., 2009-CA-00391COA (¶¶ 9, 11-12) (Miss. 56 So. 3d 575,
576-77, Ct. App. 2010) (affirming summary judgment in favor of taxpayer and
against purchaser at a tax sale because
there was no affidavit of diligent search and
inquiry as to the taxpayer’s whereabouts,
which was a prerequisite for giving the
taxpayer notice of the right of redemption); Priest v. Mareane, 846 N.Y.S.2d 518,
519-20 (N.Y. App. Div. 2007) (mem.) (affirming dismissal of petition for delivery
of a tax sale deed because the taxpayer had
redeemed the property by paying the back
taxes and other charges). In New Mexico,
there is no right of redemption.
{25} In summary, the district court erroneously granted summary judgment to
the Valenzuelas. As a matter of law, the
purchase price paid by the Snyders, while
disproportionate to the market value of the
property, cannot be deemed unconscionable and cannot serve as a basis for setting
aside the deeds issued to the Snyders by the
Division.
{26} Given our disposition, we need
not address the other issues raised by the
Snyders.
23
Advance Opinions
CONCLUSION
{27} For the foregoing reason, we reverse
the summary judgment in favor of the
Valenzuelas and remand to the district
court with instructions to enter judgment
in favor of the Snyders.
CYNTHIA A. FRY, Judge
I CONCUR:
M. MONICA ZAMORA, Judge
(specially concurring).
SUTIN, Judge (specially concurring).
{29} I fully concur in Judge Fry’s Opinion.
I write separately just to note a few matters.
First, I cannot fault the district court for
granting summary judgment when the
Snyders, acting pro se, intentionally, if not
flagrantly, disregarded important rules of
procedure related to summary judgment
proceedings and discovery. As indicated
in Judge Fry’s Opinion, however, in scru-
24
tinizing judgments we need not overlook
incorrect application of law, particularly
when to do so can result in bad precedent.
{30} Second, although Plaintiffs’ counsel
attempted to make a case that the Valenzuelas did not understand how the tax
delinquency system worked, it appears
that the Valenzuelas received notice of
delinquent taxes, failed to prove a valid
reason for disregarding the delinquency,
and at no time before or at the sale sought
to satisfy the delinquency that amounted
to no more than $215.
{31} Third, although I concurred in
Judge Pickard’s opinion in Cochrell, 2003NMCA-094, I think that the mandate in
Section 7-38-67(E), that the Department
“consider the value of the owner’s interest
in the real property” in determining the
minimum price for the property at the
sale, requires more than indicated in Cochrell. I tend to doubt that the Legislature
meant that the only care and caution in
the Department’s thoughts in that regard
need only go so far as to have some hope
or expectation that a competitive bidding
process will occur and might produce
an ultimate purchase price significantly
higher than the minimum price set to
cover the delinquency. I think that the
“consider the value of the owner’s interest” phrase is ambiguous and is in need
of greater clarification, hopefully through
legislation.
{32} Fourth, it may be time for the Legislature to take another look at the tax
sale provisions to explore whether some
balanced approach can exist in tax sales
that satisfies the policies of discouraging
delinquencies, encouraging competitive
bidding, and taking into consideration a
purchaser’s title risks and any commensurate costs when receiving only a quitclaim
deed, yet guarding against homeowner unconscionable loss and purchaser windfall.
Advance Opinions
Certiorari Denied, June 2, 2014, No. 34,688
Plaintiff-Appellee,
v.
GILBERT MELENDREZ,
Defendant-Appellant
Docket No. 32,203 (filed April 23, 2014)
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
FREDDIE J. ROMERO, District Judge
GARY K. KING
Attorney General
MARGARET MCLEAN
for Appellee
Opinion
James J. Wechsler, Judge
{1} Defendant Gilbert Melendrez raises
numerous claims of error in connection
with his convictions stemming from an
automobile accident. We address, in particular, whether Defendant’s convictions
of both homicide by vehicle under NMSA
1978, Section 66-8-101(A) (2004), and
knowingly leaving the scene of an accident involving great bodily harm or death
under NMSA 1978, Section 66-7-201(C)
(1989), violate Defendant’s double jeopardy
protection against multiple punishments
for the same offense. We hold that these
convictions do not violate Defendant’s
double jeopardy rights and, accordingly,
affirm the judgment of the district court.
Defendant also challenges the sufficiency
of the evidence underlying his convictions
for intentional child abuse by endangerment, tampering with evidence, vehicular
homicide, and knowingly leaving the
scene of an accident. He additionally challenges the court’s refusal to change his trial
venue, admission into evidence of a taped
interview he gave to the police, admission
into evidence of the phone calls with his
wife from jail, and determination that the
homicide by vehicle offense was a serious
violent offense. All claims of error raised
by Defendant fail. Accordingly, we affirm
the judgment of the district court.
JORGE A. ALVARADO
Chief Public Defender
ALLISON H. JARAMILLO
Assistant Appellate Defender
for Appellant
BACKGROUND
{2}Defendant was convicted in connection with an accident in which a red pickup
truck was driven toward a group of “trick
or treaters.” Their chaperone, Leora Dyess,
pushed the children out of the way but was
struck and killed by the truck. The driver
left the scene, eluding a motorist who observed the accident and then gave chase.
{3}Witnesses were able to describe the
truck in some detail. Acting on a tip, police
obtained a search warrant and impounded
Defendant’s truck. Shards found at the
scene matched damage on Defendant’s
truck. Details of Defendant’s truck were
consistent with the description offered by
the eyewitnesses to the accident. Through
inspection by an alternative light-source,
Defendant’s truck was found to have been
wiped clean on the front only.
{4}Defendant was arrested and, at trial,
maintained that he loaned his truck to
a friend on the evening of the accident.
After hearing the evidence, including
testimony of witnesses at the scene of the
accident, a jury found Defendant guilty
of homicide by vehicle, negligent child
abuse not causing death or great bodily
harm, failure to give immediate notice of
an accident, knowingly leaving the scene
of an accident involving great bodily harm
or death, driving with a suspended license,
and tampering with evidence. Defendant
raises seven issues on appeal that we address in turn.
DOUBLE JEOPARDY
{5}Defendant contends that his separate convictions of homicide by vehicle
and knowingly leaving the scene of an
accident involving great bodily harm or
death violate the double jeopardy clause
of the Fifth Amendment of the United
States Constitution. The double jeopardy
clause provides that no person can be put
in jeopardy of life or limb twice for the
same offense. U.S. Const. amend. V. As a
constitutional question of law, we review
a double jeopardy challenge de novo. State
v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d
747.
{6}The double jeopardy clause prohibits three distinct categories of multiple
punishments: “(1) a second prosecution
for the same offense after acquittal, (2)
a second prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense.” State
v. Montoya, 2013-NMSC-020, ¶ 23, 306
P.3d 426 (internal quotation marks and
citation omitted). This case implicates
the third category, which is further divisible into two sub-categories: (1) cases in
which a defendant is charged with more
than one violation of the same statute—so
called, “unit of prosecution cases”; and (2)
cases in which a defendant faces multiple
convictions under different statutes—
“double-description cases.” State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M.
211, 131 P.3d 61 (internal quotation marks
omitted). Because Defendant challenges
two convictions under different statutes
for what he contends is the same conduct,
Defendant’s double jeopardy appeal raises
a double-description issue.
{7}Double-description cases are subject
to the two-part analysis elucidated in
Swafford v. State, 1991-NMSC-043, ¶¶
8-9, 25, 112 N.M. 3, 810 P.2d 1223. See
also Swick, 2012-NMSC-018, ¶ 11 (stating that the two-part test from Swafford
governs double-description cases). The
touchstone of the double-description
analysis is legislative intent. State v. Frazier,
2007-NMSC-032, ¶ 18, 142 N.M. 120, 164
P.3d 1. When the Legislature intends multiple punishments under different statutes,
there is no double jeopardy violation. See
Swafford, 1991-NMSC-043, ¶ 25 (“[T]he
sole limitation on multiple punishments
is legislative intent[.]”). The first inquiry
is whether the conduct underlying the
convictions was, in fact, the same; that is,
whether the conduct was “unitary.” Swick,
2012-NMSC-018, ¶ 11. If the conduct was
not unitary, the inquiry stops because
25
Advance Opinions
there is no double jeopardy violation. Id.
If it was unitary, we consider whether the
Legislature intended to create separate
punishments for the crimes at issue. Montoya, 2013-NMSC-020, ¶ 29.
{8}“To determine whether a defendant’s
conduct was unitary, we consider such
factors as whether acts were close in time
and space, their similarity, the sequence in
which they occurred, whether other events
intervened, and the defendant’s goals for
and mental state during each act.” State v.
Franco, 2005-NMSC-013, ¶ 7, 137 N.M.
447, 112 P.3d 1104. Conduct is not unitary
if “the jury reasonably could have inferred
independent factual bases for the charged
offenses.” State v. Saiz, 2008-NMSC-048, ¶
30, 144 N.M. 663, 191 P.3d 521 (internal
quotation marks and citation omitted),
abrogated on other grounds by State v.
Belanger, 2009-NMSC-025, 146 N.M. 357,
210 P.3d 783.
{9} Defendant argues that, under the authority of State v. Franklin, 1993-NMCA135, 116 N.M. 565, 865 P.2d 1209, the
conduct giving rise to his convictions for
homicide by vehicle and knowingly leaving
the scene of an accident resulting in death
or bodily injury is unitary. In Franklin, the
defendant shot someone during a game of
“quick draw.” Id. ¶ 2. The state charged the
defendant with involuntary manslaughter
by negligent use of a firearm and also
sought a sentence enhancement based on
the use of a firearm in the commission of
the offense. Id. We held that the conduct
was unitary because the use of the firearm
was the basis for both the charge and the
enhancement. Id. ¶ 5. Defendant contends
that this case is like Franklin and that his
conduct is unitary because the “identical
act of causing the car accident and killing
Ms. Dyess” was the basis of the convictions for both vehicular homicide and
knowingly leaving the scene of an accident
involving great bodily harm or death. We
do not agree.
{10} The unitary conduct analysis in this
case is unlike Franklin because in that
case there was only a single, undelimited,
criminal act—the defendant’s shooting of
his quick-draw partner. The defendant in
Franklin was charged with a crime, and
the state sought a sentence enhancement
based on the use of a firearm during the
commission of the crime. In this case,
Defendant, by definition, completed one
crime—causing the accident that killed
Ms. Dyess—before beginning the other
by fleeing from the accident. Furthermore,
evidence was presented that Defendant
paused after running over Ms. Dyess
prior to driving away. With the exception
of instances in which the Legislature has
intended to make two offenses unitary by
definition,1 when there is an identifiable
point between the completion of one crime
and the beginning of the other, conduct is
not unitary and multiple punishments are
authorized. See DeGraff, 2006-NMSC-011,
¶ 27 (stating that conduct is not unitary
and multiple punishments are authorized
when there is “an identifiable point at
which one of the charged crimes ha[s]
been completed and the other not yet
committed”).
{11} Also, the two statutes at issue are
designed to protect against distinct evils,
indicating that our Legislature intended
to proscribe different units of conduct.
See Frazier, 2007-NMSC-032, ¶¶ 19, 23
(stating that the unitary conduct issue
is dependent on what the Legislature
intended as the unit of conviction and
that, ultimately, the space-time analysis
of a defendant’s criminal acts informs
the legislative intent analysis). Section
66-8-101(A) punishes reckless driving
that results in significant bodily harm or,
as in this case, death, to another. Section
66-7-201(C) addresses the harm caused by
drivers who knowingly leave the scene of
an accident involving great bodily harm or
death and fail to fulfill the duty to render
aid and provide pertinent identification
information. Under Section 66-7-201(C),
the driver’s culpability for the accident is
not relevant. Under Section 66-8-101(A),
it does not matter whether a driver renders
aid or flees. Additionally, in accordance
with the fact that the two statutes address
different harms, the goals and mental
states of drivers who violate these two
statutes are likely to be different. See State v.
Franco, 2005-NMSC-013, ¶ 7 (stating that
a defendant’s goals for and mental states
during each act are relevant to the unitary
conduct analysis). In this case, Defendant
both attempted to evade responsibility for
the accident he caused when he fled the
scene and shirked his duty to render aid to
Ms. Dyess. Although it may not be possible
to know Defendant’s mental state during
the vehicular homicide, he could not possibly have sought to evade responsibility
for an accident that had not yet occurred.
{12} Defendant also argues that, because
he was convicted for causing the death of
Ms. Dyess, his sentence for leaving the
scene of an accident cannot be “enhanced”
for the same death. This argument is
unpersuasive for two reasons. First, we
cannot agree with Defendant’s contention
that his sentence was enhanced. Franklin,
cited by Defendant, is instructive. In
Franklin, the state charged the defendant
with manslaughter by negligent use of a
firearm and also sought to enhance any
sentence imposed by one year for use of
the firearm during the commission of the
offense. 1993-NMCA-135, ¶ 2. Unlike
Franklin, in this case, Defendant received
two different sentences for his two crimes.
{13} Second, we agree with Defendant to
the extent that the death of Ms. Dyess is
a common element in the requisite findings for guilt by the jury between the two
statutes. Were we to find unitary conduct
and then continue to the second part of the
Swafford double jeopardy analysis for multiple punishment cases—which requires a
determination of whether the statutes at
issue define the same offense—the commonality would be relevant to our analysis.
See Swafford, 1991-NMSC-043, ¶¶ 10, 30
(stating that in order to determine whether
a single criminal act in violation of two
distinct statutory provisions constitutes a
single offense, a court must, by comparison
of the two statutes, determine whether
each statute requires proof of a fact that the
other does not). But, for the reasons stated
above, Defendant’s conduct giving rise to
1 Felony murder is an example of a statute rendering conduct that might otherwise fail to meet the test for unitary conduct as unitary
by definition. See Frazier, 2007-NMSC-032, ¶ 23 (stating that the felony murder statute and its paired jury instruction “renders the
conduct supporting the felony murder and the underlying predicate felony unitary by definition”); see also State v. Sotelo, 2013-NMCA028, ¶ 19, 296 P.3d 1232 (restating the analysis in Frazier and concluding that “Frazier’s holding means that a defendant can never be
convicted of both felony murder and the predicate felony because the conduct is always unitary”), cert. denied, 2013-NMCERT-001,
299 P.3d 863. Another example, taken from Ohio and noted by our Supreme Court in Frazier, is a statutory scheme in which “statutes
on auto theft and joyriding defin[ing] the theft and operation of a single car as a single offense.” Frazier, 2007-NMSC-032, ¶ 20. Such
a framework means that a defendant could not be convicted of both auto theft and joyriding of a single car even when the conduct
supporting each took place at different times and places. Id.
26
Advance Opinions
the convictions was non-unitary and this
determination ends our inquiry. See id. ¶
28 (stating that a finding that the conduct
was non-unitary ends the inquiry); see also
George C. Thomas III, A Unified Theory of
Multiple Punishment, 47 U. Pitt. L. Rev. 1,
13 (1985) (stating that “[i]f the conduct is
nonunitary . . . the definitional question
[of whether two statutes define the same
offense] is extraneous”). The convictions
for both homicide by vehicle and leaving
the scene of the accident do not create a
double jeopardy violation.
INTENTIONAL CHILD ABUSE BY
ENDANGERMENT
{14} Defendant contends that his conviction for intentional child abuse by endangerment was error because it was not supported by sufficient evidence. Defendant
argues that his reckless driving did not
endanger particular and identifiable children, as required to support the conviction
under State v. Gonzales, 2011-NMCA-081,
150 N.M. 494, 263 P.3d 271, aff ’d on other
grounds, 2013-NMSC-016, 301 P.3d 380,
but, instead, endangered the public as a
whole. Defendant further argues that he
did not act with the requisite intent to support the conviction for intentional child
abuse.
{15} Sufficient evidence to support a conviction is that which, when viewed in the
light most favorable to the guilty verdict,
“any rational trier of fact could have found
the essential elements of the crime beyond
a reasonable doubt.” State v. Gallegos, 2009NMSC-017, ¶ 30, 146 N.M. 88, 206 P.3d
omitted). Under this standard of review,
all reasonable inferences are indulged and
all conflicts in the evidence are resolved in
favor of the verdict. Id.
{16} Our child abuse by endangerment
statute, NMSA 1978, § 30-6-1(D)(1)
(2009), is “intended to address conduct
with potentially serious consequences
to the life or health of a child.” Gonzales,
2011-NMCA-081, ¶ 16 (internal quotation
marks and citation omitted). The statute
gives heightened protection to children
because they are inherently vulnerable and
also because they are at the mercy of the
adults who care for them. Id. ¶ 23. For conviction, the statute requires a “reasonable
probability or likelihood that the child’s
life or health would be endangered by the
defendant’s conduct.” Id. ¶ 18. It requires
a “substantial and foreseeable” risk of
harm to the child. Id. (internal quotation
marks and citation omitted). The standard
of criminally negligent child abuse “re-
quires that a person knew or should have
known of the danger involved and acted
with a reckless disregard for the safety or
health of the child.” Garcia v. State, 2010NMSC-023, ¶ 33, 148 N.M. 414, 237 P.3d
omitted).
{17}In Gonzales, the defendant drove
while severely intoxicated, collided with
the rear of another car and, in so doing,
injured one child and killed another who
were seated in the back seat of the other
car. 2011-NMCA-081, ¶ 4. That driver’s
convictions for negligent child abuse by
endangerment were reversed because “she
was not proven to be aware of the danger
to the particular children who were the
victims of her . . . driving.” Id. ¶ 2. Based
on Gonzales, Section 30-6-1(D) requires
that a defendant create a discernable,
particular risk or danger to a particular
or identifiable child or children. Gonzales,
2011-NMCA-081, ¶ 1. The creation of a
risk to the general public that only incidentally places a child or children in danger is
not sufficient to support a conviction. Id.
¶¶ 22-23. Defendant argues that, like the
driver in Gonzales, the danger he posed
was not directed toward the children and
was indistinct from the danger posed to
the public at large. See id. ¶ 27.
{18} Indeed, like Gonzales, this case involves a driver’s conviction for child abuse
by endangerment based upon the driver’s
creation of danger to children who were
not in the driver’s car. See id. ¶ 4. But, this
case is distinguishable from Gonzales because Defendant created a substantial and
foreseeable risk to particular children by
driving into a group that contained nine
children. Defendant does not argue that
he did not see the children. Furthermore,
there was evidence indicating that the
group was visible to motorists in that the
driver of the car who drove down the street
just prior to Defendant saw the group
of trick or treaters, slowed down, and
navigated around them. There was also
evidence that Defendant altered his course
and drove toward the group. Defendant’s
actual or constructive awareness of the
presence of the children is dispositive.
See id. ¶ 11 (noting that awareness of the
presence of a child prior to the creation
of the risk was dispositive because the
risk to the child is, therefore, foreseeable).
The jury heard sufficient evidence to
conclude that Defendant knew or should
have known that his conduct created a
substantial and foreseeable risk of injury
to the nine children that he drove toward.
{19} Defendant also contends that the
evidence fails to support the jury’s finding that he acted intentionally and that
the State failed to present any evidence to
sustain this element of the conviction. The
jury was instructed that “[a] person acts
intentionally when he purposely does an
act which the law declares to be a crime.”
Because a person’s intent is rarely established by direct proof, it may be proven
by circumstantial evidence. State v. Nozie,
2009-NMSC-018, ¶ 32, 146 N.M. 142, 207
P.3d 1119.
{20} Circumstantial evidence was presented that Defendant purposely committed a criminal act. An eyewitness testified
that Defendant steered toward the group
of children and increased his speed. There
was also testimony that a witness heard
someone say “We got them. Go go go.”
Under our sufficiency of the evidence
standard of review, the testimony supports
the jury’s finding that Defendant acted
intentionally. We affirm the conviction for
intentional child abuse by endangerment
under Section 30-6-1(D)(1).
ADDITIONAL SUFFICIENCY OF
THE EVIDENCE CHALLENGES
{21} Defendant also challenges the sufficiency of the evidence for his convictions
for tampering with evidence, vehicular
homicide, and knowingly leaving the scene
of an accident.
{22} With respect to his conviction for
tampering with evidence, Defendant argues that, in the absence of an eyewitness
testifying that Defendant removed the
stickers on his truck and with only one
witness, an admitted drug user, who saw
Defendant wash his truck the morning
after the accident took place, the evidence
was insufficient. The test for whether there
is sufficient evidence to support a conviction “is whether substantial evidence of
either a direct or circumstantial nature
exists to support a verdict of guilty beyond
a reasonable doubt with respect to every
element essential to a conviction.” State v.
Guerra, 2012-NMSC-027, ¶ 10, 284 P.3d
1076 (internal quotation marks and citation omitted). There was circumstantial
evidence that when police took custody
of Defendant’s truck it had been recently
altered. A detective testified that, using an
alternative light-source, it was determined
that the front of the truck had been recently cleaned. Unlike most of the truck,
which was covered in light dust, the front
of the truck had recent wipe marks. There
was glue residue in an area where decals
had, perhaps, been removed. The fact that
27
Advance Opinions
the eyewitness to Defendant’s clean-up was
a drug user is not relevant to us because we
will not reweigh the evidence. See State v.
Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M.
126, 753 P.2d 1314 (stating that this Court
will not weigh the evidence on appeal).
Sufficient evidence supported the verdict
of the jury that Defendant tampered with
the evidence.
{23} Defendant next contends that his
convictions for vehicular homicide and
leaving the scene of an accident were not
supported by sufficient evidence. The only
eyewitness to identify Defendant as the
driver changed her testimony on the day of
trial. Thus, Defendant argues her identification was faulty. According to Defendant,
his friend borrowed the truck on the night
of the accident. The jury heard evidence
indicating that Defendant believed he hit
someone with his truck, heard Defendant
refer to details of the scene of the accident,
and heard Defendant fault Ms. Dyess for
being in the road. The jury also heard
testimony from the employer of the person who Defendant contended borrowed
the truck. That testimony contradicted
Defendant’s version of events. Defendant
also had the opportunity to cross-examine
the eyewitness who identified him and in
so doing explored the inconsistencies in
her identification. Sufficient evidence was
presented that a reasonable jury could
have found that Defendant was the driver
of the truck involved in the accident, the
sole element of the conviction challenged
by Defendant.
CHANGE OF VENUE
{24} Because of local media coverage of
the events that led to this case, Defendant
moved for a pre-trial change of venue. The
court heard and then denied the motion.
Defendant argues that the court’s refusal
to change the venue denied him a fair and
impartial jury and, therefore, violated his
rights under the constitutions of both New
Mexico and the United States.
{25} A trial court’s discretion is broad
in deciding whether to grant a nonmandatory change in venue. State v. House,
1999-NMSC-014, ¶ 31, 127 N.M. 151, 978
P.2d 967. Absent an abuse of discretion,
a trial court’s decision about venue will
not be disturbed. Id. A trial court abuses
its discretion when its determination of
venue is not supported by substantial
evidence in the record. State v. Gutierrez,
2011-NMSC-024, ¶ 39, 150 N.M. 232, 258
P.3d 1024. The party appealing the change
of venue has the burden of proving actual
prejudice. Id. A trial court may elect to
28
grant a change in venue based on a showing of presumed prejudice, but when a
court “determines that a movant has not
demonstrated presumed prejudice and
proceeds with voir dire, we will limit our
review to the evidence of actual prejudice.”
State v. Barrera, 2001-NMSC-014, ¶ 16,
130 N.M. 227, 22 P.3d 1177.
{26} In the case before us, the court
called two jury panels for selection and
conducted voir dire. Therefore, we review
for substantial evidence in support of the
court’s determination that there was not
actual prejudice and that an impartial
jury could be obtained within the venue.
During voir dire, the court asked pointed
questions to potential jurors who had
heard of the case, including questions that
asked those jurors to assess the impact of
the publicity on their ability to be fair and
whether they could evaluate the evidence
without reference to information external
to the court proceeding. The court asked
jurors whether they had come to any conclusions about who was responsible for the
accident. Defendant also had an opportunity to question jurors. Defendant does
not point to any actual prejudice on the
part of any juror. Because the court made
substantial inquiry into juror prejudice
and Defendant does not point to any actual
prejudice in the pool, the court did not
abuse its discretion in refusing to change
the venue. See Gutierrez, 2011-NMSC-024,
¶ 39.
ADMISSION AT TRIAL OF
DEFENDANT’S TAPED INTERVIEW
{27} After Defendant’s arrest, he requested to speak with the police and prosecutor.
He was read his Miranda rights and told
that his interview would be recorded. At
trial, Defendant made a general objection
to playing the entire, nearly two-hour,
interview. He argued that the evidence
should instead be introduced through the
live testimony of the officers. In response
to the court’s inquiry, the State explained
that the interview only discussed the day
of the accident and a few days following.
The court found that the statement was
made voluntarily after Defendant properly waived his right to remain silent and
that because the interview discussed the
incident and the aftermath, it was probative. After the tape was played, Defendant
moved for a mistrial because the interview revealed that Defendant had been to
prison and had a long driving record and
a suspended license. Defendant did not
ask for a curative instruction. The court
denied the motion for a mistrial, stating
that Defendant, who had the interview and
a transcript prior to trial, made only a general objection and did not identify these
issues to the court. On appeal, Defendant
argues that the video should not have been
played in its entirety and renews his objection to the specific parts of the interview he
finds prejudicial. Specifically, Defendant
objects that evidence of “prior alcohol use
or convictions” was not relevant to the
charge of vehicular homicide by reckless
driving and constituted impermissible
character evidence.
{28} When a claim that evidence has
been erroneously admitted is preserved by
objection, we review the evidentiary rulings of a court for an abuse of discretion.
See State v. Flores, 2010-NMSC-002, ¶ 25,
147 N.M. 542, 226 P.3d 641. But when an
evidentiary claim of error is not preserved
by timely objection, we review for plain
error. State v. Torres, 2005-NMCA-070,
¶ 9, 137 N.M. 607, 113 P.3d 877. Because
Defendant’s objection before the tape was
played was not sufficiently specific to elicit
a fair ruling as to the admission of the
portions of the interview that he claims on
appeal were error, we do not review for an
abuse of discretion, but, instead, for plain
error. See State v. Young, 1985-NMCA-079,
¶ 30, 103 N.M. 313, 706 P.2d 855 (“[I]t is
the duty of counsel to alert the court to the
specific basis for the objection, so that the
court may rule intelligently.”).
{29} The plain error rule applies only if
an alleged error affected the substantial
rights of the accused. State v. Lucero,
1993-NMSC-064, ¶ 13, 116 N.M. 450,
863 P.2d 1071. We find plain error “only
if we have grave doubts about the validity
of the verdict, due to an error that infects
the fairness or integrity of the judicial
proceeding.” Torres, 2005-NMCA-070, ¶
omitted). Moreover, improperly admitted
evidence is grounds for a new trial only if
the error was harmful. State v. Tollardo,
2012-NMSC-008, ¶ 25, 275 P.3d 110.
{30} Even if we assume that the admission of the disputed statements was error,
such admission was harmless. “[H]armless error review necessarily requires a
case-by-case analysis . . . . [It] requires an
appellate court to review the effect of an
error in the unique context of the specific
evidence presented at a given trial.” Id. ¶
omitted). A non-constitutional error is not
harmless when, under the totality of the
circumstances, there is a reasonable probability that the impermissible evidence
Advance Opinions
contributed to the defendant’s conviction.
State v. Garcia, 2013-NMCA-064, ¶ 17, 302
P.3d 111, cert. denied, 2013-NMCERT-004,
301 P.3d 858.
{31} The evidence of Defendant’s guilt
is overwhelming, and the minor error asserted by Defendant does not cause us to
doubt the validity of the verdict. See State
v. Contreras, 1995-NMSC-056, ¶¶ 22,
24, 120 N.M. 486, 903 P.2d 228 (holding
that when a defendant was asked about
previous charges that, in fact, had been
dismissed, no doubt about the “firmness
of the verdict” was created and, thus, no
plain error). Defendant stipulated that
his license was revoked, and therefore
the jury was aware of this fact. The jury
heard testimony about the accident from
numerous eyewitnesses, testimony that
Defendant was in the vicinity just before
the accident and was drinking, and statements by Defendant expressing familiarity with the scene of the accident. Shards
found at the scene matched Defendant’s
truck, and evidence was presented that
the front of his truck had been recently
wiped. Defendant’s alibi was contradicted
by the testimony of the person who, on
the day of the accident, employed the
person accused by Defendant. There is
no reasonable probability that Defendant
was convicted because the jury very briefly
heard of Defendant’s prior convictions for
driving while intoxicated.
{32} In the alternative, Defendant contends that he received ineffective assistance
of counsel. Defendant asserts two different
claims. First, that his initial attorney, who
was subsequently disbarred for apparently
unrelated matters, was ineffective when he
allowed Defendant to give the interview.
Defendant’s assertion refers to matters not
in the record before us. Without a record,
we cannot determine why or under what
circumstances Defendant chose to give
the interview. When “a plausible, rational
strategy or tactic can explain the conduct
of defense counsel[,]” there is no prima
facie case for ineffective assistance of counsel. State v. Martinez, 1996-NMCA-109,
¶ 25, 122 N.M. 476, 927 P.2d 31 (internal
quotation marks and citation omitted).
Because this claim concerns matters not
in the record, it is best brought in a habeas
corpus proceeding. See id. (expressing a
preference for habeas corpus proceeding
over remand when the record on appeal
does not establish a prima facie case of
ineffective assistance of counsel).
{33} Defendant also contends that his
attorney was ineffective when he did not
object specifically to the admission of the
portions of the interview that referred
to his revoked license and to prior incidents of driving while intoxicated. A
prima facie case of ineffective assistance
of counsel requires that, but for counsel’s
unprofessional errors, there is a reasonable probability that the result of the trial
would have been otherwise. Lytle v. Jordan,
2001-NMSC-016, ¶ 27, 130 N.M. 198, 22
P.3d 666. Our analysis of the effect of the
admission of the evidence that Defendant
claims that his attorney should have been
able to exclude is dispositive of this claim
of error. Even if Defendant’s attorney was
so deficient in the failure to exclude this
evidence that this attorney’s performance
was objectively unreasonable, there is no
reasonable probability that the outcome
would have been different.
ADMISSION OF THE RECORDED
CALLS BETWEEN DEFENDANT
AND HIS WIFE
{34} Defendant contends that the court
erred in allowing the State to play short
portions of telephone calls to his wife
that were recorded while he was in jail
awaiting trial. Defendant asserts that
these calls were recorded in violation of
his federal and state constitutional rights
to be free from unreasonable search and
seizure because they were recorded without a warrant. According to Defendant,
the admission of this improperly seized
evidence entitles him to a new trial.
However, there was testimony that all
the free phone calls from jail, which were
voluntary, begin with an explanation that
all calls would be recorded and monitored.
Under these circumstances, there could
be no reasonable expectation of privacy
and no unreasonable search or seizure or
violation of Defendant’s privacy rights. See
State v. Coyazo, 1997-NMCA-029, ¶ 18,
123 N.M. 200, 936 P.2d 882 (holding that
a defendant who had knowledge that his
telephone calls from jail were monitored
had no reasonable expectation of privacy
and, because he implicitly consented, the
monitoring did not constitute unreasonable search or seizure).
DESIGNATION OF THE
VEHICULAR HOMICIDE AS A
SERIOUS VIOLENT OFFENSE
{35} Defendant contends that the court
committed error when it determined that
his conviction for vehicular homicide was
a serious violent offense under the Earned
Meritorious Deductions Act (EMDA),
NMSA 1978, § 33-2-34 (2006). Defendant
argues that the findings of the court were
legally inadequate to establish that he
committed a serious violent act. Under
the EMDA, a person whose conviction
is designated a serious violent offense
is significantly limited in the amount of
meritorious sentence reduction that can
be earned. Section 33-2-34(A)(1). While
certain crimes are per se serious violent
offenses, other crimes are serious violent
offenses only when a court finds that the
“nature of the offense and the resulting
harm” warrants such a finding. Section
33-2-34(L)(4)(a-o). A criminal act in the
discretionary category constitutes a serious violent crime when a court finds that
the crime was “committed in a physically
violent manner either with an intent to
do serious harm or with recklessness in
the face of knowledge that one’s acts are
reasonably likely to result in serious harm.”
State v. Morales, 2002-NMCA-016, ¶ 16,
131 N.M. 530, 39 P.3d 747, abrogated on
other grounds by State v. Frawley, 2007NMSC-057, ¶ 36, 143 N.M. 7, 172 P.3d 144.
Homicide by vehicle rests within the discretionary category. See § 33-2-34(L)(4)(o)
(14). Because Defendant appeals the legal
sufficiency of the court’s findings but not
the sufficiency of the evidence to support
those findings, we review only whether
the court’s findings fulfill the statutory
requirements.2 We review de novo the legal
basis for the court’s discretionary finding
that Defendant’s commission of homicide
by vehicle was a serious violent offense.
See State v. Scurry, 2007-NMCA-064, ¶
4, 141 N.M. 591, 158 P.3d 1034 (stating
that although a court’s determination of
whether a crime is a serious violent offense is discretionary, a court abuses its
discretion when it acts contrary to law and,
therefore, we engage in de novo review
when we review the legal sufficiency of
2 Defendant makes one point challenging the sufficiency of the evidence supporting the findings. Defendant argues that the
court’s finding that he was driving at a high rate of speed was untenable because it was supported only by lay testimony and not by
an accident reconstruction expert. Defendant provides no authority for why the court could rely only on an accident reconstruction
expert for such a finding and therefore we conclude that none exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764,
676 P.2d 1329 (stating that when a party cites no authority to support an argument, we may assume no such authority exists).
29
Advance Opinions
a court’s findings in support of a serious
violent offense determination).
{36} At the sentencing hearing, the court
specifically explained the reasons that
Defendant’s conviction for homicide by
vehicle was a serious violent offense:
This was a driving offense. [Defendant] was driving on a suspended license. He left his father’s
home with evidence that there
had been drinking. He had four
previous convictions for DWI,
driving down a residential street
at a high rate of speed, Halloween
evening, with children and adults
on the street, and it was dark.
[He] stopped the vehicle and then
left the scene.
Defendant argues that the court’s findings
do not establish the requisite intent to do
serious harm or recklessness as evidenced
by knowledge that his acts were reasonably
likely to cause serious harm because the
findings impermissibly rely primarily on
the elements of the crime. We do not agree.
{37} The jury was instructed that in order
to find Defendant guilty of homicide by
vehicle, it had to find that Defendant oper-
30
ated a motor vehicle in a reckless manner
and thereby caused the death of Ms. Dyess.
The court, when it explained its conclusion that Defendant committed a serious
violent offense, connected Defendant’s
awareness of his suspended license and
previous convictions for driving offenses
with the fact that he had been drinking and
driving at a high rate of speed on a residential street on a night when an inordinate
number of children were likely to be out.
After hitting Ms. Dyess, Defendant chose
to leave the scene. The court’s findings go
well beyond the definitional elements of
homicide by vehicle. The specific circumstances outlined by the court established
the requisite recklessness in the face of
Defendant’s knowledge that his actions
might result in serious harm. See State v.
Solano, 2009-NMCA-098, ¶¶ 11, 18, 146
N.M. 831, 215 P.3d 769 (holding that a
conviction for homicide by vehicle met
the requisite intent to be a serious violent
offense when the district court found that
the defendant’s prior history involving alcohol and alcohol-related offenses and the
fact that he crossed the center line, struck
the victim, propelled her through the air
and into the bed of his truck); see also State
v. Lavone, 2011-NMCA-084, ¶¶ 2, 10, 150
N.M. 473, 261 P.3d 1105 (holding that a
homicide by vehicle demonstrated the
requisite recklessness and therefore was a
serious violent offense when the defendant
left the scene of the accident before calling
for aid, thereby exposing the victim to additional harm).
CONCLUSION
{38} For the foregoing reasons, we affirm
the judgment of the district court.
JAMES J. WECHSLER, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
J. MILES HANISEE, Judge
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CUBA
At the invitation of the Union of Cuban Jurists, the State Bar of New Mexico
is organizing a delegation to visit Cuba to research the country’s legal system.
State Bar President Erika Anderson will lead the delegation. We invite you to
join in this unique opportunity.
This delegation will convene in Miami on Oct. 5, and will return to Miami on Oct. 10. Please see www.
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A parallel program of people-to-people activities will be available for spouses and guests.
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32
Bernalillo County
Clerk’s Office
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Structured Settlement Broker
Structured Financial Associates, Inc.
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The only Structured Settlement Broker
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33
MADISON & MROZ, P.A.
Anita A. Kelly
RN, MEd, CRC, CDMS, CCM, CLCP
We are pleased to announce
Peter J. Eicker
has joined the Firm as an associate
Mr. Eicker earned his bachelor’s degree in Finance
from Santa Clara University in 2003 and his Doctor
of Jurisprudence in 2007 from the George Washington
University Law School.
We welcome him to our practice.
Life Care Planner
Medical Care Manager
New Frontiers, Inc.
201 Third Street N.W., Suite 1600
Albuquerque, NM 87102
505.242.2177 • www.madisonlaw.com
505.369.9309
www.newfrontiers-nm.org
The Basics of Kinship/Guardianship
Walter M. Drew
The Volunteer Attorney Program is hosting a CLE entitled
“The Basics of Kinship/Guardianship” on July 25, 2014 from
1 - 3 p.m. at the McKinley County District Court (Division V
Small Courtroom), 207 West Hill St., Gallup, NM 87301.
Construc)on Defects Expert
The CLE (2.0 G) will be presented by attorney
Larry B. Kronen of Pegasus Legal Services for Children.
Free for VAP volunteers.
Donations welcome from non-volunteers
($50 or more per person suggested).
If you would like to attend this CLE,
please contact Aja Brooks at 505-797-6040
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Construc)on-‐quality disputes
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architects, slip and fall, building
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No need for another associate
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Legal Research and Writing
(505) 341-9353
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34
MORNINGSTAR ENTERPRISES, LLC
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• A highly trained, results oriented settlement
facilitator
• Handling simple to highly complex financial and custody matters
• Over 30 years experience litigating and facilitating family law cases
• Accepting cases statewide in New Mexico
Call today to reserve your settlement date
NEW MEXICO LEGAL GROUP, PC
505-843-7303 • www.newmexicolegalgroup.com
“Once again the
Bar Bulletin Classified has
been instrumental in helping
me find work. It appears to be
just the job I need, too.”
Visit the State Bar of
New Mexico’s website
www.nmbar.org
Classified
Positions
Associate Attorney
Vigil Law Firm, P.A., an established AV rated
Law Firm in Albuquerque, NM, seeks an Associate Attorney with 0-5 years experience
who is enthusiastic, personable, and possesses
strong research and writing skills for work
in Medical Malpractice, Products Liability,
and General Negligence Litigation for busy
Plaintiffs’ practice. Please email resume,
references, and a writing sample to admin@
zlaws.com.
Assistant District Attorney
The Fifth Judicial District Attorney’s office
has an immediate position open to a new
or experienced attorney. Salary will be
based upon the District Attorney Personnel and Compensation Plan with starting
salary range of an Associate Trial Attorney
to a Senior Trial Attorney ($41,685.00 to
$72,575.00). Please send resume to Janetta
B. Hicks, District Attorney, 400 N. Virginia
Ave., Suite G-2, Roswell, NM 88201-6222 or
e-mail to [email protected].
Associate Attorney
Associate Attorney
Gorence & Oliveros, P.C. is seeking an associate attorney to join the firm. Must have
impeccable research and writing skills and
excellent credentials. This position is for
research and writing, not trial advocacy.
References are required. Competitive salary
and benefits. Please submit a cover letter,
resume, references and at least one writing
sample directed to the Hiring Partner via
email only to [email protected].
Associate Attorney
An experienced attorney needed immediately for insurance defense law firm. Top
pay and benefits for the right candidate.
Contact Richard M. Padilla at: rpadilla@
obrienlawoffice.com
Downtown insurance defense firm seeking
an associate attorney with three to five years’
of litigation experience. Excellent salary and
benefits. Will consider greater experience
especially if bringing clients. Must have excellent academic background, be able to take
depositions, be organized, and able to work
with our staff, clients, and plaintiff’s counsel
in a professional manner. Collegial working
environment in newly remodeled downtown
office, with opportunity for advancement.
Successful candidates have strong organizational and writing skills, and exceptional
communication skills, including the ability
to interact and develop collaborative relationships. Please e-mail your resume and list of
references to [email protected].
Contractor Attorney
The Administrative Office of the Courts is
soliciting proposals for a contractor attorney
for abuse/neglect cases in the Fifth Judicial
District. The Request for Proposal is posted
at nmcourts.gov under "What's New" and
nmcourts.gov/contract attorneys. Proposals
must be received at the Administrative Office
of the Courts no later than August 21, 2014 at
5:00pm. To receive the RFP packet by mail,
contact Beth Collard at (505) 827-4969 at the
Administrative Office of the Courts (AOC),
327 Don Gaspar, Room 25, Santa Fe, NM
87501. RFP packets will not be faxed. The
Procurement Code, NMSA 1978, §13-1-28
to -199, imposes civil and criminal penalties
for its violation. In addition, the New Mexico
criminal statutes impose felony penalties for
illegal bribes, gratuities and kickbacks.
Associate Attorney
Foster, Rieder & Jackson, P.C., an AV rated
commercial litigation and employment relations firm, seeks two full-time associates. The
first candidate is a lawyer with 5-10 years of
litigation experience, courtroom ready. The
second candidate has 3-5 years of litigation
experience. Strong academic credentials,
research and writing skills and work experience essential. Compensation based on
experience. All inquiries kept confidential.
Send resume to [email protected]
35
13th Judicial District Attorney
Deputy District Attorney –
Cibola County
Senior Trial Attorney/
Associate Trial Attorney
Cibola, Sandoval, Valencia Counties
Deputy District Attorney - The Thirteenth
Judicial District Attorney’s Office is accepting applications for an experienced attorney
to fill the position of Deputy District Attorney at the Cibola County Office in Grants,
NM. This is an advanced level position which
requires experience in complex litigation,
prosecution of high level criminal cases
and management of a mid-sized district
office. Requirements include admission to
NM State Bar plus a minimum of six years
as a practicing attorney in criminal law, at
least two years of supervisory/management
experience and knowledge of employment
law. Senior Trial Attorney - in the Cibola
(Grants), Sandoval (Bernalillo) or Valencia (Belen) County Offices. This position
requires substantial knowledge and experience in criminal prosecution, rules of
criminal procedure and rules of evidence,
as well as the ability to handle a full-time
complex felony caseload. Admission to the
New Mexico State Bar and a minimum of
five years as a practicing attorney are also
required. Associate Trial Attorney - an entry
level position for Cibola (Grants), Sandoval
(Bernalillo) or Valencia (Belen) County Offices. The position requires misdemeanor,
juvenile and possible felony cases. Upon
request, be prepared to provide a summary
of cases tried. Salary for each position is
commensurate with experience. Send resumes to Kathleen Colley, District Office
Manager, PO Box 1750, Bernalillo, NM
87004, or via E-Mail to: [email protected].
nm.us. Deadline for submission of resumes:
Open until positions are filled.
Attorney Needed
The skies the limit - its up to you! We have
the capacity to fulfill dreams. Please fax your
resume to 866-531-6526.
Associate Attorney
Associate Attorney with at least five years
insurance defense experience, preferably
medical malpractice experience, wanted for
fast paced, well established, litigation defense
firm. Please send your resume and references
to Human Resources, Civerolo, Gralow, Hill
and Curtis, P.A., P.O. Drawer 887, Albuquerque, N.M. 87103 or fax to 505-764-6099.
36
Associate Trial Attorney/
Assistant Trial Attorney or
Senior Trial Attorney
Colfax County
The Eighth Judicial District Attorney’s Office
is accepting applications for an entry level
Associate Trial Attorney, Assistant Trial Attorney or Senior Trial Attorney in the Raton
Office. This position will be responsible for
a felony and misdemeanor caseload plus
administrative duties. Salary will be based
upon experience and the District Attorney
Personnel and Compensation Plan. Please
send cover letter and resume to email [email protected] or by mail to Daniel L.
Romero, Chief Deputy District Attorney, 105
Albright Street, Suite L, Taos, New Mexico
87571. Position open until filled.
Attorney Position
Archibeque Law Firm, an AV rated insurance
defense/civil litigation firm, is seeking an experienced attorney for its Albuquerque office.
Applicant must be a graduate of an accredited
law school, licensed in New Mexico, with
experience specifically in the practice areas
of civil litigation and insurance defense. Ideal
candidate will have proven litigation experience including managing assigned case-load,
taking and defending depositions, attending
hearings, arbitrations and mediations and
tracking billable time. Candidate will also
possess strong analytical skills, excellent oral
and written communication skills, and be a
highly motivated professional that can take
initiative and work independently. In state
travel is required. Please email letter of interest and resume, including three professional
references and salary requirements, to info@
archibequelawfirm.com.
Request for Applications
City of Albuquerque
Assistant City Attorney Position
Assistant City Attorney: Assistant City Attorney position available with the Litigation
Division with desired experience in civil
litigation in handling pretrial discovery, motion practice, trial preparation and trial. We
are seeking attorneys who have an interest
in defending civil rights, personal injury,
and premises liability cases within a positive team environment. Salary will be based
upon experience and the City of Albuquerque
Attorney’s Personnel and Compensation
Plan with a City of Albuquerque Benefits
package. Please submit resume to attention of “Litigation Attorney Application”;
c/o Roberta Duran, Fiscal Officer; P.O. Box
2248, Albuquerque, NM 87103. Application
deadline is August 15, 2014 and will be kept
open until filled.
Deputy General Counsel
New Mexico Corrections
Department
The NMCD is hiring for the position of Deputy General Counsel (Attorney-Advanced) at
its Central Office in Santa Fe. The position
is responsible for representing the Department in defense of inmate pro se civil suits,
employee disciplinary actions, employment
law matters, arbitrations and other union
matters, and in miscellaneous civil matters.
The position is also responsible for reviewing/approving contracts and policies. Some
interaction with inmates. Applicants must
have JD degree from accredited law school;
5 years experience in the practice of law; and
be licensed and in good standing with the
NM Bar. Preference given to candidates with
employment, civil rights, tort law, and/or labor relations experience from a management
perspective, and to those with personnel/
employment law experience who are able to
give competent legal advice to management
as needed. Salary range $43,056-$76,544 per
year. Please send resume to Trish Gallegos,
Office of General Counsel, PO Box 27116,
Santa Fe, NM 87502-0116 or e-mail trish.
[email protected]. Applicants must apply with State Personnel Office at www.spo.
state.nm.us, position #15806, posting period
07/09/14–08/06/14.
New Mexico Public Regulation
Commission (PRC) Legal Division
Lawyer- Advanced (Position # 6166). Incumbent is responsible for providing legal
counsel to all PRC divisions in the regulation
of utilities (electric, gas, telecommunications,
water, and sewer), transportation (including
common motor carriers, ambulance standards), and Pipeline Safety and State Fire
Marshal’s Office. The Legal Division also
represents PRC staff in proceedings before
the Commission, and provides counsel to
the Commission in matters not involving
advice on contested proceedings, including
personnel and employment matters. Salary
ranges from: $43,529-$ 77,380. TO APPLY:
please visit www.spo.state.nm.us by August
1, 2014. The State of NM is an Equal Opportunity Employer.
Request For Proposals From Firms
or Solo Practicioners
For experienced family law contract attorneys, for work with a non-profit agency
servicing victims of domestic violence. Bilingual (Spanish/English) strongly preferred.
Please submit an e-mail detailing experience
and expertise and proposed hourly rate to:
Elizabeth Rourke, [email protected].
Request for Letters of Interest
Legal Services
City of Albuqueruqe
The City of Albuquerque Legal Department
is requesting responses to its Request for
Letters of Interest--Legal Services. If you are
interested in receiving the complete Request
for Letters of Interest--Legal Services package, please call (505) 768-3672 and/or submit
your written request via U.S. Post to attention
of “ Letter of Interest--Legal Services “; c/o
Roberta Duran, Fiscal Officer; P.O. Box 2248,
Albuquerque, NM 87103. Proposals may be
submitted pursuant to this Request on an
ongoing basis until further notice.
Job Vacancy Announcement
Chief Judge
Pueblo de San Ildefonso
The Pueblo de San Ildefonso is seeking qualified candidates to fill the position of Chief
Judge. Chief Judge: The Chief Judge presides
over the Pueblo de San Ildefonso Trial Court.
The Chief Judge is responsible for the fair and
impartial adjudication of cases and matters
that come before the court; and, the enforcement of law within the jurisdiction of the Trial Court pursuant to Pueblo de San Ildefonso
laws and customs set forth in the Governing
Document, the Civil and Criminal Code,
and all applicable pueblo and federal law.
Work performed is in compliance with the
Pueblo de San Ildefonso’s employee and fiscal
policies and procedures. The Chief Judge and
his/her staff function independently of the
Governor and the Council when presiding
over court cases. Minimum Qualifications:
Must be a licensed attorney, 30 years of age,
an enrolled member of a federally recognized
tribe, no felony convictions in any jurisdiction, and consent to a pre-employment back
ground check. Judicial administration experience is also preferred. Experience and/
or practice in the field of Indian Law with
an emphasis on federal Indian law, tribal
law, tribal sovereignty, tribal government
and jurisdiction is desirable as well. Salary
depends on experience and subject to negotiation. APPLICATION: A job description
and application are available in the Human
Resources Office. Submit your resume and
application to the Human Resources Office
via email to [email protected] or fax
to 505-455-4149. Please contact, the Pueblo’s
Human Resources Office at 505-455-4155
with questions about the position.
Eleventh Judicial District
Attorney’s Office, Div II
Legal Assistant
The McKinley County District Attorney’s Office is currently seeking immediate resumes
for one (1) Senior Trial Prosecutor. Persons
who are in good standing with another state
bar or those with New Mexico criminal law
experience in excess of 5 years are welcome
to apply. The McKinley County District Attorney’s Office provides regular courtroom
practice and a supportive and collegial work
environment. Enjoy the spectacular outdoors
in the Adventure Capital of New Mexico.
Salaries are negotiable based on experience.
Submit letter of interest and resume to Lyndy
Bennett, Chief Deputy District Attorney, 201
West Hill, Suite 100, Gallup, NM 87301, or email letter and resume to [email protected].
nm.us by 5:00 p.m. August 8, 2014.
Busy insurance and civil defense firm seeks
full-time legal assistant with minimum five
years experience in insurance defense and
civil litigation. Position requires a team player
with paralegal skills in addition to strong
word processing skills including proficiency
with Word Perfect, knowledge of court systems and superior clerical and organizational
skills. Minimum typing speed of 75 wpm.
Excellent work environment, salary and
benefits. Send resume and references to Riley,
Shane & Keller, P.A., Office Manager, 3880
Osuna Rd., NE, Albuquerque, NM 87109 or
e-mail to [email protected]
Services
Trial Technician
Paralegal
Foster, Rieder & Jackson, P.C., an AV rated
commercial litigation and employment
relations firm, seeks a full-time litigation
paralegal. The successful applicant will have
significant litigation experience, strong
organizational skills, and is detail oriented.
Compensation based on qualification and
experience. All inquiries kept confidential.
Send resume to [email protected]
Experienced, certified court technician
prepares and displays exhibits at trial. www.
legaleyenm.com, Bill Werntz (505) 264-2434
Office Space
Office Space
Estate Planning Paralegal or
Legal Assistant
Gerber & Bateman, P.A., Santa Fe has an
immediate position available for a full time
person experienced in estate planning and
probate/trust administration to replace a
valued employee who is retiring. Must have
at least three years’ experience in the field,
excellent client relations ability, and solid
computer skills. Experience with Hot Docs,
e-filing or litigation experience is a plus. Salary DOE. Please email resume with recommendations to [email protected] or
fax to 505-989-7335. Please title your e-mail
“Resume.”
Legal Secretary/Assistant
Do you have 3 or more years experience as a
legal secretary? Are you familiar with civil
litigation, court rules and filing procedures?
Are your clerical, organization, computer and
word processing skills exceptional? Then send
your resume to this well respected, highly productive law firm at [email protected]
1, 2, or 3 offices available; plus dedicated
workstation/file space; plus shared space: two
conference rooms, restrooms, break room,
waiting areas. Services include janitorial,
reception, and all utilities, including phone
and internet. Dedicated domain space available on server, copier available. Off street
parking. $550/mo. per office. Four other law
firms in building. Near UNM Law School,
quick freeway access to downtown. Call
Shelly at 265-6491.
Office Space
Full-service (or less) offices and cubicles
for your staff available in Larry Zamzok’s
magnificent office at 6001 Whiteman Drive
NW (Montano Road 3 blocks east of Unser
Blvd.). Covered parking, referrals, even more
possible. Call Phil at 898-6311 or come by.
Historic Hudson House
For lease in the downtown ABQ district,
historic Hudson House – One, Two, or Three
attractive office spaces. The downstairs has
separate kitchen and bathroom facilities.
Rent includes telephone equipment, access
to fax, copier, conference rooms, parking,
library and reference materials. Referrals and
co-counsel opportunities. For more information, call Debra at the offices of Leonard
DeLayo, Jr. PC at 505-243-3300.
37
Beautiful Santa Fe Office Building Close to Capitol and Courthouse
Impressive Santa Fe office building for
sale. Award winning, historic 1910 building remodeled in 1998. Just a block from
the Capitol and 3 blocks from new District
Courthouse. 6194 square feet with 32 parking spaces. Refrigerated air conditioning,
landscaped with drip irrigation and a charming 600 square foot private carriage house.
Private offices, fireplaces, conference rooms,
kitchenette and beautiful reception area.
Main floor is ADA compliant. Call Ginger
Clarke at Barker Realty, LLC in Santa Fe.
(505) 670-3645, or (505) 982-9836.
Downtown Offices
New Space: Best Location
“Build Out” Yourself
1469SF professional office space. Northeast
views. Can develop to Tenant’s requirements.
Prime Uptown location, high visibility,
convenient access to I-40; Bank of America,
companion restaurants on-site: Shopping,
extensive landscaping, ample parking, fullservice lease. 6% commission to leasing office.
Comcast Business Class available at Uptown
Square (includes High-Speed Internet, Telephone and Television). Call for more information. Call John Whisenant or Ron Nelson
883-9662
For Rent: Office Space
One or two offices available for rent, including secretarial areas, at 2040 4th St. NW (I-40
& 4th St.), ABQ. Rent includes receptionist,
use of conference rooms, high speed internet,
phone system, free parking for staff and clients, use of copy machine, fax machine and
employee lounge. Contact Jerry or George at
505-243-6721 or [email protected].
1 office, with or without secretarial station, at
500 Tijeras Ave. NW. Downtown, convenient
to all courts, city and county offices. Offices
are shared with 7-8 other lawyers. Office
only rent is $750/mo; Office and secretarial
station rent is $1000/mo. Includes reception,
long distance telephone, use of two conference rooms, and on-site parking for staff and
clients. Contact Reina at 505-842-1905
Furnished Office for Rent
Furnished office for rent, one block from
courthouses, all amenities: copier, fax, telephone system, conference room, internet,
phone service. Call Ramona at 243-7170.
Miscellaneous
DWI Prevention
American Limousine
www.NewMexicoLimos.com
Call 505 242-2229
Office Safe
Meilink ThermoSafe, 2.0 cu.ft interior capacity. Excellent condition, $300.00. Contact
Reina at 505-842-1905
SUBMISSION DEADLINES
All advertising must be submitted via Email by 4 p.m. Wednesday, two weeks prior to
publication (Bulletin publishes every Wednesday). Advertising will be accepted for
publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher
and subject to the availability of space. No guarantees can be given as to advertising
publication dates or placement although every effort will be made to comply with
publication request. The publisher reserves the right to review and edit ads, to request that
an ad be revised prior to publication or to reject any ad. Cancellations must be received
by 10 a.m. on Thursday, 13 days prior to publication.
For more advertising information, contact:
Marcia C. Ulibarri at 505-797-6058
or email [email protected]
38
MRC
of
New
Mexico
richard radecki MD
At the Medical Rehabilitation Center of New Mexico,
Dr. Richard Radecki, Board Certified in Physical
Medicine and Rehabilitation, provides medical/legal
services including:
• Independent Medical Evaluations
• Impairment Ratings
• Chart Reviews
• Expert Witness Testimony
• Panel Independent Medical Evaluations
Dr. Radecki is certified to perform Independent
Medical Evaluations by ABIME for the AMA Guides to
the Evaluation of Permanent Impairment for the 4th,
5th, 6th Editions.
Panel
IME
Evidence Based
Second Opinion
IME
Impairment Rating
Causation
Medicare Set-A-Side
rn
Retu
National Guidelines
rk
to Wo
Life Care Plan
Medical Rehabilitation Center of New Mexico
3874 Masthead St NE Albuquerque, NM 87109 • (505) 338-2077
www.mrcofnewmexico.com • [email protected]
39
State Bar Center
Your Meeting
Destination
Hold your conference,
seminar, training, mediation,
reception, networking social
or meeting at the
State Bar Center.
• Multi-media
auditorium
• Board room
• Classrooms
• Reception area
• Ample parking
• Free Wi-Fi
For more information,
site visits and reservations,
contact 505-797-6000,
[email protected], or
[email protected].
5121 Masthead NE
Albuquerque, NM 87109
Conveniently located in Journal Center

7/23 - State Bar

Transcription

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