6/11 - State Bar

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6/11 - State Bar
June 11, 2014 • Volume 53, No. 24
Inside This Issue
Table of Contents .................................................... 3
Judicial Vacancies
First Judicial District Court....................................4
Second Judicial District Court............................... 4
Committee on Women and the Legal Profession:
Tee Times at Sandia Golf Club.............................. 5
‘Get Golf Ready’ Program...................................... 5
2014 Annual Meeting—
Bench and Bar Conference:
Annual Award Recipients ...................................... 7
Women’s Bar Awards Pettijohn Honor to
Congresswoman Michelle Lujan Grisham.......... 8
Thank You, San Juan County and Navajo Nation
Veterans Civil Legal Clinic Volunteers............... 11
Clerk’s Certificates................................................. 17
From the New Mexico Supreme Court
2014-NMSC-011, No. 32,860:
State v. Stevens .................................................. 20
From the New Mexico Court of Appeals
2014-NMCA-046, Nos. 31,690/31,668:
International Chiropractors
Association v. New Mexico Board of
Chiropractic Examiners.................................. 28
2014-NMCA-047, No. 32,066:
State v. Allen...................................................... 35
Earth Spirits No. 8 by Margaret Letzkus (see page 3)
Weems Art Gallery
CLE Planner
June 20
4th Annual ADR Institute
How Neuroscience Helps Mediators
Resolve Conflict
also available via
LIVE WEBCAST
at the standard fee
6.0 G
An Advanced Training for Lawyers, Negotiators, Facilitators, Collaborators, Mediators, and Clinicians
(Rescheduled from Nov. 8, 2013)
Friday, June 20, 2014 • State Bar Center, Albuquerque
Standard Fee: $209
ADR Committee members, government, legal services attorneys, and Paralegal Division members: $179
Co-sponsor: ADR Committee
Presenters: Martha K. McClintock, Ph.D., Jill S. Tanz, Esq., and Anne Lightsey, Corporate Trainer and Mediator
Moderator: David P. Levin, Esq.
8:30 a.m.
9 a.m.
Registration
Understanding the Physiologic Stress Response
and Its Effects on the Mediation Process
10:30 a.m. Break
10:45 a.m. Applying the Neuroscience of Emotions, Trust,
Cooperation, and Creativity to Mediation
12:15 p.m. Lunch (provided at the State Bar Center)
1 p.m.
Applying Theory to Practice, Part 1
2 p.m.
2:15 p.m.
3:45 p.m.
4 p.m.
4:30 p.m.
Break
Applying Theory to Practice, Part 2
Break
General Discussion: Using Tomorrow What
We Learned Today
Adjourn
PROGRAM FACULTY
Martha K. McClintock, Ph.D., University of Chicago: David Lee Shillinglaw Distinguished Professor, Departments of Psychology
and Comparative Human Development, The College; Committees on Neurobiology and Evolutionary Biology.
Jill S. Tanz, Esq., is a full-time neutral in Chicago. Tanz founded Chicago Mediation LLC (www.chicagomediation.com) to offer
alternative dispute resolution services to the Chicago area business community.
Anne Lightsey is faculty at UNM’s Anderson School of Management’s Executive and Professional Education Center where she
teaches mediation, communication and negotiation skills, as well as other leadership classes to professionals.
David P. Levin, Esq., Mediation Coordinator, Magistrate Division, Administrative Office of the Courts, New Mexico Supreme
Court, Co-Chair, Statewide ADR Commission, and Chair State Bar of New Mexico ADR Committee.
Not approved for Texas CLE credit.
All live seminars are held at the State Bar Center, 5121 Masthead NE, Albuquerque. They include
continental breakfast, breaks, buffet lunch, course materials, and CLE credit filing and fees for New Mexico.
Register online at www.nmbarcle.org
or call 505-797-6020.
CENTER FOR LEGAL EDUCATION
2
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
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
505-797-6087 • [email protected]
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
505-797-6058 • [email protected]
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
June 11, 2014, Vol. 53, No. 24
Notices .................................................................................................................................................................4
2014 Annual Meeting—Bench and Bar Conference Annual Award Recipients.........................7
Women’s Bar Awards Pettijohn Honor to Congresswoman Michelle Lujan Grisham...............8
Thank You, San Juan County and Navajo Nation Veterans Civil Legal Clinic Volunteers...... 11
Legal Education Calendar........................................................................................................................... 12
Writs of Certiorari .......................................................................................................................................... 14
List of Court of Appeals’ Opinions............................................................................................................ 16
Clerk’s Certificates.......................................................................................................................................... 17
Recent Rule-Making Activity...................................................................................................................... 19
Opinions
From the New Mexico Supreme Court
2014-NMSC-011, No. 32,860: State v. Stevens ........................................................................... 20
From the New Mexico Court of Appeals
2014-NMCA-046, Nos. 31,690/31,668: International Chiropractors Association v.
New Mexico Board of Chiropractic Examiners........................................................................... 28
2014-NMCA-047, No. 32,066: State v. Allen................................................................................. 35
Advertising....................................................................................................................................................... 39
State Bar Workshops
Meetings
June
June
11
Taxation Section,
11 a.m., via teleconference
18
Legal Resources for the Elderly Workshop
10–11:15 a.m., Presentation
12:30–3:30 p.m., Clinics
Ford Canyon Senior Center, Gallup
12
Business Law Section,
4 p.m., via teleconference
12
Public Law Section,
Noon, Montgomery & Andrews, Santa Fe
17
Solo and Small Firm Section,
11:30 a.m., State Bar Center
18
Children’s Law Section,
Noon, Juvenile Justice Center
20
Family Law Section,
9 a.m., via teleconference
19
Legal Resources for the Elderly Workshop
10–11:15 a.m., Presentation
12:30–3:30 p.m., Clinics
Bonnie Dallas Senior Center, Farmington
25
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
26
Consumer Debt/Bankruptcy Workshop,
5:30 p.m., The Law Office of Kenneth Egan,
Las Cruces
July
20
Trial Practice Section,
Noon, State Bar Center
2
Divorce Options Workshop
6 p.m., State Bar Center
24
Appellate Practice Section,
Noon, via teleconference
2
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
24
Intellectual Property Law Section,
Noon, Lewis Roca Rothgerber
Cover Artist: With her vibrant colors, Margaret Letzkus is known as a colorist. The energy is highly charged, tranquil,
or a combination of rhythms as each piece must vibrate and excite. Her works are represented by Weems Art Gallery. To
view her works, visit www.margaret-letzkus.com
Bar Bulletin - June 11, 2014 - Volume 53, No. 24 3
Notices
Professionalism Tip
Court News
N.M. Board of Legal
Specialization
With respect to the public and to other persons involved
in the legal system:
Comments Solicited
The following attorneys are applying
for certification as a specialist in the areas
of law identified. Application is made
under the New Mexico Board of Legal
Specialization, Rules 19-101 through 19312 NMRA, which provide that the names
of those seeking to qualify shall be released
for publication. Further, attorneys and
others are encouraged to comment upon
any of the applicant’s qualifications within
30 days after the publication of this notice.
Address comments to New Mexico Board
of Legal Specialization, PO Box 93070,
Albuquerque, NM 87199
Bankruptcy Law
George M. Moore
Family Law
Melanie J. Rhodes
Camille A. Pedrick
First Judicial District Court
Announcement of Vacancy
A vacancy on the First Judicial District
Court exists in Santa Fe as of May 21 due
to the creation of an additional judgeship
by the Legislature. The new judge will be
assigned to the general civil docket by
Chief Judge Raymond Z. Ortiz. 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, or by calling Raylene Weis at 505-277-4700. The
deadline for applications is 5 p.m., June 10.
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 Commission will meet at
9 a.m., June 19, at the Judge Steve Herrera
Judicial Complex, 224 Montezuma Ave.,
Santa Fe, to evaluate the applicants for
this position. The Commission meeting
is open to the public and anyone who
wants to voice his or her opinion about a
candidate will be heard.
4
I will keep current in my practice areas, and, when necessary, will
associate with or refer my client to other more knowledgeable or
experienced counsel.
Second Judicial District Court
Announcement of Vacancies
There are three vacancies on the Second
Judicial District Court (listed in detail
below). Applications for the vacancies may
be obtained from the Judicial Selection
website, http://lawschool.unm.edu/judsel/
application.php, or by calling Raylene Weis
at 505-277-4700. Applicants seeking information regarding election or retention
if appointed should contact the Bureau of
Elections in the Office of the Secretary of
State.
Vacancy Due to the Creation of an
Additional Judgeship
A vacancy exists in the Second Judicial
District Court in Albuquerque as of May
21, due to the creation of an additional
judgeship by the Legislature. This position
will be assigned to the Civil Division. 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
from lawyers who meet the statutory qualifications in Article VI, Section 14 of the
New Mexico Constitution. The deadline
for applications is 5 p.m., June 11. Those
applying for this position and the vacancy
below will be interviewed separately. The
Judicial Nominating Commission will
meet on June 20 at the Bernalillo County
Courthouse in Albuquerque to evaluate
the applicants. The Commission meeting
is open to the public and anyone who
wants to voice his or her opinion about a
candidate will be heard.
Vacancy Due to the Retirement of
Judge Baca
A vacancy will exist in the 2nd Judicial
District Court in Albuquerque as of July
1 due to the retirement of Hon. Ted L.
Baca. This position will be a civil position,
Division V. Further inquiries regarding
additional details or assignment of this
judicial vacancy should be directed to
the chief judge or the administrator of
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
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. The deadline for applications
is 5 p.m., July 14. The Judicial Nominating
Commission will meet on July 21, at the
Bernalillo County Courthouse in Albuquerque to evaluate the applicants for this
position. The Commission meeting is open
to the public and anyone who wants to
voice his or her opinion about a candidate
will be heard.
Vacancy Due to the Retirement of
Judge Sanchez
A vacancy will exist in the Second
Judicial District Court in Albuquerque due
to the retirement of Hon. Ross C. Sanchez,
effective June 17. This position will be assigned to the Domestic Violence Division
of the Family Court. 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 from lawyers
who meet the statutory qualifications in
Article VI, Section 14 of the New Mexico
Constitution. The deadline for applications
is 5 p.m., June 11. Those applying for this
position and the new judgeship will be
interviewed separately. The Judicial Nominating Commission will meet on June
20, at the Bernalillo County Courthouse,
Room 338, in Albuquerque, to evaluate
the applicants. The Commission meeting
is open to the public and anyone who
wants to voice his or her opinion about a
candidate will be heard.
Judicial Conclave
The judges and hearing officers of the
Second Judicial District Court will be attending the Judicial Conclave, June 11–12,
so no court proceedings will be held those
days. Criminal court arraignments will be
conducted as scheduled from 8:30 a.m.–
noon on June 13, heard by Pro Tem Judge
Michael Martinez.
www.nmbar.org
state Bar neWs
Center for Legal Education
Attorney Support Groups
• June 16, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
• July 7, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
• July 14, 5:30 p.m.
UNM School of Law, 1117 Stanford
NE, Albuquerque, Room 1119 (The
group meets the second Monday of the
month.)
• For more information, contact Bill
Stratvert, 505-242-6845.
7th Annual New Mexico Legal
Service Providers Conference
Board of Bar Commissioners
Committee on Women and
the Legal Profession
Two Appointments
Members who want to serve in either
position below should send a letter of
interest and brief résumé to Executive
Director Joe Conte, State Bar of New
Mexico, PO Box 92860, Albuquerque, NM
87199-2860; or fax to 505-828-3765. The
deadline is June 30.
Judicial Standards Commission
The Board of Bar Commissioners will
make one appointment to the Judicial
Standards Commission for a four-year
term. The responsibilities of the Judicial
Standards Commission are to receive, review, and act upon complaints against state
judges, including supporting documentation on each case as well as other issues
that may surface. The commission meets
once every eight weeks in Albuquerque
and additional hearings may be held as
many as four–six times a year. The time
commitment to serve on this commission
is significant and the workload is large.
Applicants should consider all potential
conflicts caused by service on this commission.
ABA House of Delegates
The Board of Bar Commissioners will
make one appointment to the American
Bar Association House of Delegates for
a two-year term, which will expire at
the conclusion of the 2016 ABA Annual
Meeting. The delegate must be willing to
attend meetings or otherwise complete
his/her term and responsibilities without
reimbursement or compensation from
the State Bar; however, the ABA provides
reimbursement for expenses to attend the
ABA Midyear Meetings.
Featured
The 7th Annual New Mexico Legal
Service Providers Conference will be held
June 12 and 13 at the State Bar Center. The
conference will provide 10.0 G and 2.0
EP CLE credits. From trial techniques to
limited scope representation to working
with Odyssey, the general sessions will
provide knowledge and skills necessary
for those working in the legal service field.
There also will be a number of hands-on
training sessions addressing government
benefits and family law issues. To view
the full agenda and register, visit www.
nmbarcle.org or call 505-797-6020.
Tee Times at Sandia Golf Club
The Committee on Women and the
Legal Profession has reserved five tee times
at Sandia Golf Club. Play nine holes at 4
p.m. on June 25, July 9, 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]
‘Get Golf Ready’ Program
The Committee would like to hear from
members interested in a golf instruction
program. The “Get Golf Ready” program
consists of five golf clinics for women
who are interested in improving their
skills and those who have never tried golf.
Instruction will be at Sandia Golf Club
for one hour per week for five weeks on
a weekday afternoon, 4–5 p.m. The cost
will be approximately $125 per person,
including rental clubs if needed. Those
interested in participating should email
Jocelyn Castillo, [email protected]
Correction
The two announcements above were
combined in error in the June 4 issue of the
Bar Bulletin (Vol. 53, No. 23). We apologize
for the error.
Paralegal Division
Luncheon CLE Series
The Paralegal Division invites members
of the legal community to bring a lunch
and attend “Lawyer Capacity: Succession
and Transition Planning” (1.0 G, pending
MCLE approval) presented by William
Slease. The program will be held from
Member Benefit
• Full credit union services to SBNM
members and their employees.
• Low rates and flexible terms
for auto loans and home mortgages.
• Free online and mobile banking.
USNMFCU provides products and services
to help their members attain
personal financial success.
Call 505-342-8888
or visit www.usnmfcu.org.
Submit
announcements
for publication in
the Bar Bulletin to
[email protected]
g
by noon Monday
the week prior
to publication.
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
Bar Bulletin - June 11, 2014 - Volume 53, No. 24 5
www.nmbar.org
noon–1 p.m., June 11, at the State Bar
Center (registration fee for attorneys–$16,
members of the Paralegal Division–$10,
non-members–$15). Registration begins at
the door at 11:45 a.m. For more information, contact Cheryl Passalaqua, 505-2470411, or Evonne Sanchez, 505-222-9352.
Webcast to three locations:
•Santa Fe: Montgomery & Andrews,
325 Paseo de Peralta, Santa Fe. Contact
Donna Ormerod, 505-986-2520.
• Roswell: Atwood, Malone, Turner &
Sabin, 400 N. Pennsylvania, Ste. 1100.
Contact Tomma Shumate, 575-6226221.
•Farmington: Titus & Murphy, 2021 E.
20th Street. Contact Shannon Krens,
505-326-6503.
New Mexico Defense Lawyers
Association
event, 5:30–7:30 p.m., June 13, at the Three
Rivers Brewery, 111 E. Main St., Farmington. Appetizers will be provided. For more
information, visit www.nmhba.net.
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.
Other News
UNM
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 Albuquerque Jewish Community
Center. This dynamic day-long seminar to
enhance the skills of all female attorneys
will conclude with a wine tasting reception. Registration will open in July at www.
nmdla.org. For more information, call
NMDLA at 505-797-6021.
Law Library
Hours Through Aug. 17
Building & Circulation
Monday–Thursday 8 a.m.–8 p.m.
Friday
8 a.m.–6 p.m.
Saturday
8 a.m.–5 p.m.
Sunday
Noon–8 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–Sunday
Closed
Closures
July 4: Independence Day
Other Bars
American Bar Association
Law Practice Division Fellowship
Apply to become a 2014–15 ABA Law
Practice Division Fellow. The LP Fellowship provides opportunities for leadership,
getting involved with LP activities, and
raising a professional profile. The deadline
is June 16. More information, including
application and qualification, can be found
online, http://www.americanbar.org/
groups/law_practice/awards/law_practice_fellowships.html.
New Mexico Criminal Defense
Lawyers Association
‘The Body’ CLE
The New Mexico Criminal Defense
Lawyers Association presents “The Body:
Biochemistry Basics, the Physiology of
Injury, and the Rapidly Changing Law
and Science of Child and Sex Abuse” (6.0
G) on June 13 at the UNM School of Law.
Register online at www.nmcdla.org.
6
NMDLA Annual Awards
Nominations
Save the Date: Women in the
Courtroom Seminar
Federal Bar Association New Mexico Chapter
Annual Meeting
The New Mexico Chapter of the Federal Bar Association will hold its annual
meeting at 2:15 p.m., July 18, at the Hyatt
Regency Tamaya Resort & Spa during the
State Bar Annual Meeting—Bench and
Bar Conference. The meeting will include
an election of officers, a treasurer’s report,
changes to the chapter’s bylaws, and an outline of proposed activities for the coming
year. All current Federal Bar Association
members are urged to attend. The meeting
is open to anyone interested in becoming
a member of the Federal Bar Association.
For more information, including a list of
candidates for officer positions, contact
Chapter President Daniel W. Lewis at
[email protected]
New Mexico Hispanic
Bar Association
Meet and Greet in Farmington
The New Mexico Hispanic Bar Association and the State Bar Young Lawyers
Division will present a meet-and-greet
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
Kennedy Kennedy & Ives
Celebration at Marble Brewery
With the recent addition of Laura Ives,
the Kennedy Law Firm has changed its
name to Kennedy Kennedy & Ives. Attorneys Jennifer Wernersbach and Theresa
Hacsi and recent UNM School of Law
graduate Michael Timm Jr. will be added
as associates. The firm invites the legal
community to celebrate these changes on
the back patio of Marble Brewery from
4–8 p.m. on June 19. The Maine Lobster
Truck will be there along with a live band.
R.S.V.P. to Maggie Kennedy at [email protected]
civilrightslawnewmexico.com.
National Association of State
Auditors Comptrollers and
Treasurers
2014 Conference in Santa Fe
The National Association of State Auditors Comptrollers and Treasurers will hold
its 2014 Annual Conference on Aug. 9–13 at
the Eldorado Hotel & Spa in Santa Fe. This
year’s conference rate is $189/night plus tax.
To reserve a room, call 800-955-4455 and
ask for the NASACT Annual Conference
rate. NASACT principals in good standing
(or their designees) are eligible to receive up
to $2,000 to attend the conference. Funds
will be provided as reimbursement after the
conference and can be used to cover travel or
registration costs. Special activities include a
reception at the La Fonda on the Plaza Hotel
and an evening at the New Mexico History
Museum and Palace of the Governors. For
more information, visit www.nasact.org or
call Donna Maloy, 859-276-1147.
National Hispanic Cultural
Center Foundation
Trailblazers en el Camino
Reception and Program
The National Hispanic Cultural Center
Foundation is partnering with the family
of Justice Joseph F. Baca to host Trailblazers en el Camino from 6–10 p.m. on June
20 at the NHCC in Albuquerque. Tickets
and sponsorships are available online at
www.nhccfoundation.org or by phone,
505-766-9858.
2014 Annual Meeting – Bench and Bar Conference
Hyatt Regency Tamaya Resort and Spa • July 17-19, 2014
Congratulations
2014 State Bar of New Mexico
Annual Award Recipients
Distinguished Bar Service Award
Carol Skiba
Distinguished Bar Service—Nonlawyer Award
Rear Admiral Jon Michael Barr (Ret.)
Justice Pamela B. Minzner Professionalism Award
Catherine T. Goldberg
Outstanding Legal Organization or Program Award
Corinne Wolfe Children’s Law Center
Outstanding Young Lawyer of the Year Award
Marshall J. Ray
Robert H. LaFollette Pro Bono Award
Erin A. Olson
Seth D. Montgomery Distinguished Service Award
Judge Rozier E. Sanchez
The awards will be presented at a special reception at 4:45 p.m., July 18, during the 2014
Annual Meeting—Bench and Bar Conference at the Hyatt Regency Tamaya Resort and Spa.
For a detailed list of programs, events and a registration form, go to www.nmbar.org.
Bar Bulletin - June 11, 2014 - Volume 53, No. 24 7
Women’s Bar Awards Pettijohn Honor
to
Congresswoman Michelle Lujan Grisham
NMWBA Board members, back row from left, Megan Duffy, Dayan Hochman, Margaret Branch, Louren Oliveros, Monica Garcia,
Tobanna Barker and, front row from left, Amie Nelson, honoree Congresswoman Michelle Lujan Grisham, Juliet Keene,
Barbara Koenig and Lauren Keefe
T
he lobby of Hotel Andaluz in Downtown
Albuquerque was abuzz with excitement
on the evening of May 16, as the New
Mexico Women’s Bar Association honored
Congresswoman Michelle Lujan Grisham
with its Henrietta Pettijohn Award. Pettijohn
was the first female member of the State
Bar, joining on April 15, 1892. NMWBA
has been presenting this award at its annual
reception since 1991 to those who have made
outstanding contributions to advancing
women in the legal profession. Two justices
and at least 12 judges attended, as well as
about 40 NMWBA members and supporters.
Grisham, who is president of the House’s
freshman class, sits on the oversight and
government reform, budget and agriculture
committees.
Dayan Hochman, Margaret Branch, Louren Oliveros and
Congresswoman Michelle Lujan Grisham
8
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
Gail Chasey and Dave Norvell
Congresswoman Michelle Lujan Grisham with
NMWBA President Dayan Hochman
Judge J. Miles Hanisee and Yasmin Denig
Chief Justice Barbara J. Vigil, Anita Miller and Mary Torres
Continued on next page
Bar Bulletin - June 11, 2014 - Volume 53, No. 24 9
Continued from page 9
Justice Petra Jimenez Maes, Dayan Hochman and Mary Torres
Judge Christina Armijo and Barbara Koenig
Dave Norvell and Judge Elizabeth Whitefield
The Committee on Woman and the Legal
Profession collects men’s and women’s
professional clothing for paralegals, law
students and new attorneys. Contact
Jocelyn Castillo at [email protected]
to donate clothing.
Photos and text by D.D. Wolohan
10
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
VETERANS CIVIL LEGAL CLINIC OF
SAN JUAN COUNTY AND THE NAVAJO NATION
Thank you to the volunteer attorneys and supporting agencies who
came together on May 21 to make the first Veterans Civil Legal Clinic
of San Juan County and the Navajo Nation a success.
Attorney Volunteers
Daniel Abeyta
David Standridge
Mitch Sickon
Val Jolly
LaTeigra Cahill
District Judge Tom Hynes (ret.)
Johnathan Norman
Rory Flay (law student)
Calvin Lee Jr.
Supporting Agencies and Volunteers
State Bar of New Mexico Young Lawyers Division
Linda Shannon, Veterans Justice Outreach
Michelle Bates, Farmington Vet Center
David Drake, San Juan College Veterans Center
Shantel Mitchell-Cooley, HUD/VASH
Victor Valdez, Supportive Services for
Veteran Families
Lynn Love and Angie Martin,
San Juan County Partnership
Beverly Charley, New Mexico Workforce
Connections
Charlotte. Smith, New Mexico Department of
Veterans’ Services
DNA People’s Legal Services
Laverta Mason, volunteer, Navajo Translator
Cheri Floyd, volunteer
The next Veterans Civil Legal Clinic will take place on Oct. 10 at the
San Juan County Homeless “Stand Down” at San Juan College.
For more information, contact DNA Legal Services, 505-325-8886.
.
.
YOUNG LAWYERS DIVISION
Bar Bulletin - June 11, 2014 - Volume 53, No. 24 11
Legal Education
June
12–13 7th Annual New Mexico Legal
Service Providers Conference
10.0 G, 2.0 EP
Live Seminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
17
2013 Employment and Labor Law
Institute
5.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
25–26Buying and Selling Commercial
Real Estate, Part 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
13Planning for Estates Under
$10 Million
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
17–18Estate and Trust Planning
Update Part 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
26
2014 Ethicspalooza
1.0–6.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
13
19Employees, Secrets and
Competition: Non-Competes and
More
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
The Body: Biochemistry Basics,
The Physiology Of Injury, And The
Rapidly Changing Law And Science
Of Child And Sex Abuse
6.0 G
New Mexico Criminal Defense
Lawyers Association
505-992-0050
www.nmcdla.org
17
The Cybersleuth’s Guide to the
Internet: Super Search-Engine
Strategies and Investigative
Research
6.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
17
2013 Health Law Symposium:
Healthcare Compliance and
Professionalism
5.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
27Attorney Ethics and Disputes with
Clients
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
20
4th Annual ADR Institute: How
Neuroscience Helps Mediators
Resolve Conflict
6.0 G
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
24Sales Agreements: UCC Article 2
and Practical Considerations
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
July
1Picking the Right Trust: Alphabet
Soup of Alternative
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
12
8–9Asset Based Finance, Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
15Employment Taxes Across Entities
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
Legal Education
www.nmbar.org
July
17–18Estate Planning for Real Estate,
Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
22Opinion Letters in Transactions
Involving LLCs and S Corps
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
17–19 2014 Annual Meeting—
Bench and Bar Conference
12.0 CLE Credits (including a
possible 8.0 EP)
Live Seminar
Hyatt Regency Tamaya Resort and Spa
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
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
29Structuring For-Profit/Non-Profit
Joint Ventures
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
August
5
Skeptically Determining the Limits
of Scientific Evidence V
5.0 G, 1.5 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
5
Accounting for Lawyers
6.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
5
11th Annual Spring Elder Law
Institute: Current Medical
Developments Every Elder Law
Attorney Should Know
2.5 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
5
2014 Ethicspalooza: The Ethics of
Social Media Use
1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
5–6
Selling to Consumers: Sales,
Finance, Warranty & Collection,
Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
12–13 Defending Business Audits,
Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
14
Alternatives to Trusts
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
19
24th Annual Appellate Practice
Institute
6.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
19
The 29th Annual Bankruptcy Year
in Review Seminar
6.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
19
Practical Tips and Advice from
Judge Alan Torgerson
1.5 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
19
2014 Ethicspalooza: Charging a
Reasonable Fee
1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
19–20 Planning in Charitable Giving,
Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
13
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 May 30, 2014
Petitions for Writ of Certiorari Filed and Pending:
No. 34,731
No. 34,728
No. 34,730
No. 34,727
No. 34,724
No. 34,690
No. 34,720
No. 34,723
No. 34,718
No. 34,715
No. 34,716
No. 34,713
No. 34,712
No. 34,711
No. 34,590
No. 34,710
No. 34,709
No. 34,707
No. 34,705
No. 34,704
No. 34,706
No. 34,703
No. 34,701
No. 34,700
No. 34,615
No. 34,699
No. 34,698
No. 34,697
No. 34,694
No. 34,692
No. 34,691
No. 34,688
No. 34,686
No. 34,684
No. 34,683
No. 34,679
No. 34,669
No. 34,668
No. 34,633
No. 34,589
No. 34,574
No. 34,650
No. 34,630
No. 34,571
No. 34,629
14
Date Petition Filed
Helfferich v. Frawner
12-501 05/29/14
Martinez v. Bravo
12-501 05/29/14
State v. Moralez
COA 33,448 05/28/14
State v. Lopez
COA 33,081 05/28/14
Cummins v. State
COA 32,915 05/27/14
State v. Schwartz
COA 32,451 05/27/14
State v. Cortez
COA 33,487 05/23/14
Guerra v. Janecka
12-501 05/22/14
State v. Stead
COA 33,098 05/22/14
State v. Gurule
COA 33,375 05/21/14
Porras v. Bravo
12-501 05/20/14
State v. Cain
COA 33,499 05/19/14
State v. Steinmetz
COA 32,732 05/19/14
State v. Vigil-Jiron
COA 32,615 05/19/14
Nez v. Gallup
COA 31,728 05/19/14
State v. Lombardeux
COA 33,272 05/16/14
State v. Jeter
COA 33,424 05/16/14
Trammell v. Hollis
COA 33,484 05/15/14
State v. Carlos C.
COA 33,233 05/14/14
Maese v. Garret
COA 32,260 05/14/14
Camacho v. Sanchez
12-501 05/13/14
State v. Ramos
COA 33,356 05/13/14
State v. Charley
COA 31,911 05/12/14
CYFD v. Billy K.
COA 33,536 05/12/14
Dominguez v. Bravo
12-501 05/12/14
Brashar v. Regents of
University of California COA 32,246 05/09/14
Response filed 5/27/14
Astante v. Ammre Inc.
COA 31,482 05/09/14
State v. Albertson
COA 33,521 05/09/14
State v. Salazar
COA 33,232 05/09/14
State v. Carrillo
COA 33,298 05/08/14
Wetson v. Nance
12-501 05/07/14
Response ordered; due 6/16/14
State v. Melendrez
COA 32,203 05/07/14
Avallone v.
City of Las Cruces
COA 33,340 05/07/14
State v. Jim
COA 31,008 05/05/14
State v. Hodge
COA 33,200 05/05/14
Cummins v. State
12-501 05/02/14
Hart v. Otero County Prison 12-501 04/29/14
State v. Vigil
COA 32,166 04/29/14
Response ordered; due 6/17/14
Vespender v. Janecka
12-501 04/29/14
Seager v. State
12-501 04/23/14
Montano v. Hatch
12-501 04/21/14
Scott v. Morales
COA 32,475 04/16/14
State v. Ochoa
COA 31,243 04/07/14
Fresquez v. State
12-501 04/07/14
Edwards v. Sexson
COA 32,865 04/04/14
Response filed 4/23/14
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
No. 34,619
No. 34,611
No. 34,604
No. 34,563
No. 34,560
No. 34,470
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. Cannon
COA 32,127
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
MacLennan v. Michel
COA 31,026
Response ordered; filed 5/22/14
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
Response ordered; due 10/24/12
Utley v. State
12-501
03/31/14
03/28/14
03/21/14
02/25/14
02/11/14
02/03/14
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. 33,952 Melendez v.
Salls Brothers
COA 32,293 01/18/13
No. 33,930 State v. Rodriguez
COA 30,938 01/18/13
No. 34,076 State v. Martinez
COA 32,424 04/19/13
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
No. 34,204 Faber v. King
COA 31,446 07/12/13
No. 33,994 Gonzales v. Williams
COA 32,274 08/30/13
No. 33,863 Murillo v. State
12-501 08/30/13
No. 33,810 Gonzales v. Marcantel
12-501 08/30/13
No. 34,271 State v. Silvas
COA 30,917 09/20/13
No. 34,300 Behrens v. Gateway
COA 31,439 09/27/13
No. 34,286 Yedidag v.
Roswell Clinic Corp.
COA 31,653 09/27/13
No. 34,311 State v. Favela
COA 32,044 10/18/13
No. 34,295 Dominguez v. State
12-501 10/18/13
No. 34,380 Cohen v.
Continental Casualty Co. COA 32,391 11/15/13
No. 34,365 Potter v. Pierce
COA 31,595 11/15/13
No. 34,363 Pielhau v. State Farm
COA 31,899 11/15/13
No. 34,274 State v. Nolen
12-501 11/20/13
No. 34,398 State v. Garcia
COA 31,429 12/04/13
No. 34,387 Perea v. City of
Albuquerque
COA 31,605/32,050 12/04/13
No. 34,400 State v. Armijo
COA 32,139 12/20/13
No. 34,455 City of Santa Fe v.
Tomada
COA 32,407 01/10/14
No. 34,435 State v. Strauch
COA 32,425 01/10/14
Writs of Certiorari
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
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
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
No. 33,938
No. 33,898
No. 34,039
No. 33,884
No. 34,013
No. 33,970
No. 34,085
No. 34,146
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
No. 34,126
No. 34,128
05/01/14
No. 34,287
05/01/14
05/01/14
05/01/14
No. 34,120
No. 34,583
(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. 33,014 State v. Crane
COA 29,470 11/13/12
No. 33,324 State v. Evans
COA 31,331 11/26/12
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. 33,594 Fallick v. Montoya
COA 30,172 03/13/13
No. 33,589 Zhao v. Montoya
COA 30,172 03/13/13
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. 33,567 State v. Leticia T.
COA 30,664 04/30/13
No. 33,566 State v. Leticia T.
COA 30,664 04/30/13
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. 33,993 Fowler v. Vista Care and American
Home Insurance Co.
COA 31,438 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. 34,349
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. 33,604
No. 34,093
No. 34,194
No. 33,999
No. 33,997
No. 34,150
State v. Crocco
COA 31,498
Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088
Cavu Co. v.
Martinez
COA 32,021
Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502
Foy v. Austin Capital
COA 31,421
State v. Parvilus
COA 30,379
Badilla v. Walmart
COA 31,162
Madrid v.
Brinker Restaurant
COA 31,244
State v. Maurice H.
COA 31,597
Benavides v.
Eastern N.M. Medical
COA 32,450
State v. Ramirez
COA 30,205
Cordova v. Cline
COA 30,546
King v. Faber
COA 34,116
State v. Antonio T.
COA 30,827
State v. Antonio T.
COA 30,827
Kimbrell v.
Kimbrell
COA 30,447/31,491
Hamaatsa v.
Pueblo of San Felipe
COA 31,297
State v. Baca
COA 31,442
State v. Djamila B.
COA 32,333
08/28/13
09/11/13
09/30/13
10/28/13
11/14/13
11/25/13
12/04/13
12/09/13
12/16/13
12/18/13
01/14/14
01/15/14
02/24/14
02/26/14
02/26/14
03/24/14
03/26/14
03/26/14
07/29/14
Writ of Certiorari Quashed:
Certiorari Granted and Submitted to the Court:
No. 34,009
No. 34,007
No. 33,847
Date Order Filed
Harrison v. Lovelace Health
System, Inc.
COA 32,215 05/30/14
State v. Huettl
COA 31,141 05/30/14
City of Albuquerque v.
AFSCME Local 3022
COA 31,075 05/30/14
State v. Urquizo
COA 30,337 05/30/14
Petition for Writ of Certiorari Denied:
No. 34,693
No. 34,689
No. 34,687
No. 34,600
No. 34,307
No. 34,677
No. 34,678
No. 34,676
No. 34,675
No. 34,666
No. 34,660
No. 34,657
No. 34,654
No. 34,652
No. 34,606
No. 34,467
Date Order Filed
West v. N.M. Taxation and
Revenue Dept.
COA 32,037 05/30/14
State v. Ramirez
COA 33,343 05/30/14
State v. Staake
COA 33,307 05/30/14
State v.
Dominguez
COA 32,546/31,975 05/30/14
State v. Muraida
COA 31,646 05/30/14
State v. Nichols
COA 33,430 05/27/14
Bradford v. State
12-501 05/22/14
Bachechi v.
Coastal Transport
COA 33,474 05/22/14
Alejandro v. State
12-501 05/22/14
State v. Thomas
COA 33,289 05/22/14
State v. Bonney
COA 33,259 05/19/14
State v. Gallegos
COA 32,938 05/19/14
Ginko v. Cucchetti
COA 33,152 05/19/14
State v. Montoya
COA 33,168 05/19/14
French v. Hickson
12-501 05/19/14
Bertola v. State
12-501 05/19/14
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
15
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
Effective May 30, 2014
Published Opinions
No. 32698 WCA-04-57286, S JONES v HOLDIAY INN EXPRESS (reverse and remand)
5/27/2014
No. 32625 2nd Jud Dist Bernalillo CV-12-3324, M GALETTI v D REEVE (reverse and remand)
5/28/2014
Unublished Opinions
No. 33034 9th Jud Dist Curry CR-11-742, STATE v J COBARRUBIO (reverse and remand)
5/27/2014
No. 31759 3rd Jud Dist Dona Ana CR-09-981, STATE v E NAHLE (affirm in part, reverse in part)
5/27/2014
No. 32303 5th Jud Dist Lea CV-10-54, G SNYDER v J HARMSTON MD (reverse and remand)
5/27/2014
No. 32411 2nd Jud Dist Bernalillo DM-10-928, C ESQUIVEL v J ESQUIVEL (affirm)
5/27/2014
No. 32523 2nd Jud Dist Bernalillo CR-11-5111, STATE v J BACA (reverse)
5/27/2014
No. 32677 1st Jud Dist Santa Fe DM-06-893, T TRAN v R BENNETT (affirm)
5/28/2014
No. 33174 2nd Jud Dist Bernalillo LR-10-92, STATE v L TILMAN (affirm)
5/29/2014
No. 33212 1st Jud Dist Santa Fe CV-12-2392, FLAGSTAR BANK v T MAVESTRAND (reverse and remand)
5/29/2014
No. 33274 3rd Jud Dist Dona Ana CV-1996-888, S SINGH v ELEPHANT BUTTE (dismiss)
5/29/2014
No. 33406 2nd Jud Dist Bernalillo LR-10-84, STATE v W MINOLI (affirm)
5/29/2014
No. 33577 WCA-07-3667, J CONTRERAS v MILLER BONDED (affirm)
5/29/2014
No. 32433 2nd Jud Dist Bernalillo CV-12-575, R CECIL v SKILLED HEALTHCARE (affirm)
5/29/2014
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
16
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
Clerk’s Certificates
From 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
Dated May 16, 2014
Clerk’s Certificate
of Address and/or
Telephone Changes
Nathan Alrik Adams
N.M. Children, Youth &
Families Department
PO Drawer 5160
Santa Fe, NM 87502-5160
505-827-7630
505-827-4474 (fax)
[email protected]
Erin O’Brien Anderson
Second Judicial District Court
PO Box 488
400 Lomas Blvd. NW (87102)
Albuquerque, NM 87103-0488
505-841-7163
505-841-5458 (fax)
[email protected]
Amanda Rene Galbraith
Andrasko
N.M. Human Services
Department
Child Support Enforcement
Division
3316 N. Main, Suite B
Clovis, NM 88101
800-288-7207
[email protected]
nm.us
Joni Arends
PO Box 31147
Santa Fe, NM 87594-1147
505-986-1973
[email protected]
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19
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
From the New Mexico Supreme Court
Opinion Number: 2014-NMSC-011
Topic Index:
Appeal and Error: Fundamental Error; and Standard of Review
Criminal Law: Child Abuse and Neglect; Contributing to the Delinquency of
a Minor; Controlled Substances; Criminal Sexual Penetration;
and Sexual Offences
Criminal Procedure: Alibi
Statutes: Interpretation; Legislative Intent; and Rules of Construction
STATE OF NEW MEXICO,
Plaintiff-Respondent,
v.
LISA STEVENS,
Defendant-Petitioner
No. 32,860 (filed April 7, 2014)
ORIGINAL PROCEEDING ON CERTIORARI
JOHN A. DEAN, JR., District Judge
GARY K. KING
Attorney General
MARTHA ANNE KELLY
Assistant Attorney General
Santa Fe, New Mexico
for Respondent
JACQUELINE L. COOPER
Chief Public Defender
WILLIAM A. O’CONNELL
Assistant Appellate Defender
Santa Fe, New Mexico
for Petitioner
Opinion
Charles W. Daniels, Justice
I.INTRODUCTION
{1} We granted certiorari to review
Defendant Lisa Stevens’ convictions for
second-degree criminal sexual penetration during the commission of a felony,
child abuse, and contributing to the
delinquency of a minor. The convictions
were based on two separate incidents in
which she directed her thirteen-year-old
daughter to perform oral sex on Defendant’s twenty-four-year-old boyfriend
after the three injected methamphetamine
together.
{2} Addressing a precedential legal issue,
we clarify that simply causing another person to engage in otherwise lawful sexual
intercourse at the same time a felony is
being committed does not constitute the
crime of criminal sexual penetration during the commission of a felony. Accordingly, we disapprove any language to the
contrary in State v. Maestas, 2005-NMCA20
062, ¶ 26, 137 N.M. 477, 112 P.3d 1134,
rev’d on other grounds, State v. Maestas
(Maestas II), 2007-NMSC-001, ¶¶ 2, 27,
140 N.M. 836, 149 P.3d 933.
{3}While we also hold that the jury
should be instructed that the crime of
criminal sexual penetration during the
commission of a felony requires the commission of unlawful sexual activity with
the victim of the felony, we conclude that
the unobjected-to deficiency in the instructions did not constitute fundamental
error in the circumstances of this case
where Defendant’s guilt was clear. In the
absence of any error that would justify reversal, we affirm Defendant’s convictions.
II.FACTUAL AND PROCEDURAL
BACKGROUND
{4}Defendant was charged by criminal
information with two counts of causing
criminal sexual penetration during the
commission of the felony of distribution
of a controlled substance to a minor, contrary to NMSA 1978, Section 30-9-11(E)
(5) (2007, amended 2009) (CSP II-felony).
The predicate felony for CSP II-felony was
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
distribution of a controlled substance to
a minor, punishable as a second-degree
felony by NMSA 1978, Section 30-3121(B)(1) (1987). The charges also included
two counts of child abuse, contrary to
NMSA 1978, Section 30-6-1(D)(1) (2005,
amended 2009); and two counts of contributing to the delinquency of a minor,
contrary to NMSA 1978, Section 30-6-3
(1990).
{5} At trial Defendant’s daughter testified
that in the fall of 2007, while her parents
were going through a divorce, she would
often skip school and join Defendant
and Defendant’s boyfriend to get high on
methamphetamine that Defendant and the
boyfriend provided. The daughter also testified that Defendant originally introduced
her to the drug.
{6}On two separate occasions a week
or two apart in the fall of 2007 when the
daughter, Defendant, and the boyfriend
were injecting methamphetamine together, Defendant told her daughter to perform
oral sex on the boyfriend. The daughter
testified that, although Defendant did not
force her to perform the oral sex on either
occasion, she complied with Defendant’s
direction because she was “high [and]
didn’t really care.” Soon after those two
incidents, Defendant and the boyfriend
moved to Phoenix, Arizona.
{7}When questioned at trial about the
dates of the two oral sex incidents, the
daughter explained that, although she
had originally estimated that they happened sometime between Halloween and
Thanksgiving of 2007, she was unsure
exactly when they occurred. After remembering that her father confronted her
about the two incidents on Halloween of
2007, after he had learned about them, she
realized the incidents must have actually
occurred before instead of after Halloween. Her father became angry about what
had happened, and the daughter ended up
not being allowed to go to Phoenix with
Defendant and the boyfriend as she had
planned to do. On cross-examination at
trial the daughter testified that it was difficult to recall the exact dates because she
had been getting high so much during
that time, but her best estimate was that it
“probably happened like a couple of weeks
before Halloween.”
{8} Neither Defendant nor the boyfriend
took the stand to challenge the substance
of the daughter’s testimony, and Defendant
relied instead on an alibi defense and
Advance Opinions
a general credibility attack against the
daughter. After the daughter testified and
the State rested its case in chief, Defendant
called the boyfriend’s sister and mother,
the only defense witnesses, to establish
that Defendant and the boyfriend were
in Phoenix from November 2, two days
after Halloween, to December 10, 2007,
eighteen days after Thanksgiving.
{9}After the defense rested, the State
asked the court to allow an amendment
to the allegations in the original criminal
information to conform to the daughter’s
trial testimony that the two incidents
probably occurred in October. Over the
objection of Defendant, the trial judge
allowed the amendment, which revised
the alleged date range of the offense from
“[o]n or about November 12, 2007” to “on,
about or between the 1st day of October,
2007, through the 22nd day of November,
2007” in the charging documents and the
resulting jury instructions.
{10} Defendant did not submit any requested jury instructions and made no
objection to the instructions offered by the
State or given by the court other than the
objection to the change in terms describing
the time frame when the offenses allegedly
occurred.
{11} The jury found Defendant guilty
on all counts. She was sentenced to fifteen years imprisonment for each of the
two convictions for CSP II-felony to run
consecutively with each other and concurrently with the remaining sentences
of three years for each of the two child
abuse convictions and eighteen months
for each of the two contributing to the
delinquency of a minor convictions. All
but the first fifteen years of imprisonment
were suspended.
{12} Defendant appealed her convictions
to the Court of Appeals on two grounds:
(1) that the convictions for CSP II-felony
resulted from fundamental error because
the jury was not instructed that the State
had to prove that the sexual activity occurring during the commission of a felony
was otherwise “criminal” and (2) that allowing the State to amend the description
of the dates of the offenses during trial
was reversible error. See State v. Stevens,
No. 29,357, mem. op. at 2, 6-7 (N.M. Ct.
App. Jan. 18, 2011) (nonprecedential). The
Court of Appeals affirmed the convictions
in an unpublished memorandum opinion,
declining to reconsider its holding in Maestas that a conviction for CSP II-felony can
be based on otherwise lawful sex occurring
during the commission of a felony. Stevens,
http://www.nmcompcomm.us/
No. 29,357, mem. op. at 10, 17. We granted
certiorari to review both of Defendant’s
issues.
III.DISCUSSION
{13} The jury was instructed that in order
to convict Defendant of the crime of CSP
II-felony, as charged in each of counts 1
and 2, the State had to prove beyond a
reasonable doubt the following elements:
1.T he defendant caused [the
daughter] to engage in fellatio
on [the boyfriend];
2.The defendant committed the
act during the commission of
distribution of a controlled
substance to a minor;
3.Distribution of a controlled
substance to a minor consist[s]
of:
(a)t ransferring methamphetamine to [the daughter];
(b)[t]he defendant knew the controlled substance was methamphetamine;
(c)[the daughter] was 17 years of
age or younger;
4.This happened in New Mexico
on, about or between the 1st
day of October, 2007, through
the 22nd day of November,
2007.
{14} We address first the propriety of
the elements portions of the instruction,
then whether the elements description
constituted fundamental error requiring
reversal on appeal in the absence of proper
preservation of the issue in the district
court, and finally whether the amendment
to the date description was reversible error.
A.The Offense of Criminal Sexual
Penetration Committed During the
Commission of a Felony Requires
Proof of Unlawful Sexual Conduct
Caused by the Commission of a
Felony Against the CSP Victim
{15} “‘In determining what is or is not
an essential element of an offense, we
begin with the language of the statute
itself, seeking of course to give effect
to the intent of the legislature.’” State v.
Swick, 2012-NMSC-018, ¶¶ 56, 58, 279
P.3d 747 (citation omitted) (reversing a
second-degree murder conviction for fundamental error because a missing element
in the jury instructions may have led to
an unjust conviction). It is “‘the high duty
and responsibility of the judicial branch
of government to facilitate and promote
the legislature’s accomplishment of its
purpose.’” State v. Smith, 2004-NMSC-032,
¶ 8, 136 N.M. 372, 98 P.3d 1022 (citation
omitted). Although we look first to the
language of the statute, we will reject “a
formalistic and mechanical statutory
construction when the results would be
absurd, unreasonable, or contrary to the
spirit of the statute.” Id. ¶ 9-10.
{16} The provisions of the criminal sexual
penetration statute relevant to the issue
before us are,
A. Criminal sexual penetration is the unlawful and
intentional causing of a person
to engage in sexual [acts]
. . . .
E. Criminal sexual penetration in the second degree consists
of all criminal sexual penetration
perpetrated:
(1) by the use of force
or coercion on a child thirteen
to eighteen years of age;
(2) on an inmate confined in a correctional facility
or jail when the perpetrator is
in a position of authority over
the inmate;
(3) by the use of force
or coercion that results in personal injury to the victim;
(4) by the use of force
or coercion when the perpetrator is aided or abetted by one
or more persons;
(5) in the commission
of any other felony; or
(6) when the perpetrator is armed with a deadly
weapon.
. . . .
F. Criminal sexual penetration in the third degree consists
of all criminal sexual penetration
perpetrated through the use of
force or coercion not otherwise
specified in this section. . . .
G. Criminal sexual penetration in the fourth degree consists
of all criminal sexual penetration:
(1) not defined in Subsections D through F of this
section perpetrated on a child
thirteen to sixteen years of age
when the perpetrator is at least
eighteen years of age and is at
least four years older than the
child and not the spouse of that
child; . . .
. . . .
Section 30-9-11 (2007).
{17}In Maestas, 2005-NMCA-062,
our appellate courts first undertook the
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
21
Advance Opinions
judicial task of determining the essential
elements of CSP II-felony, enumerated at
that time as Subsection (D)(5) of Section
30-9-11. Maestas’s convictions arose from
“allegations that he accepted sexual favors
from Victim in exchange for leniency in
the resolution of charges against Victim in
municipal court” where he was a judge. Id.
¶ 2. He was convicted both of the felony of
requesting or receiving something of value
conditioned upon or given in exchange
for promised performance of an official
act, in violation of NMSA 1978, Section
10-16-3(D) (1993, amended 2011) of
the Governmental Conduct Act, and of
criminal sexual penetration during the
commission of that felony, in violation of
Section 30-9-11(D)(5) (2003). Maestas,
2005-NMCA-062, ¶ 1.
{18} Maestas, whose theory of the case
was that the adult victim had enticed him
to engage in consensual sex acts, objected
to the failure of the jury instructions to
clarify that simply having otherwise lawful
consensual sex during the commission of
a felony was not criminal sexual penetration. Id. ¶¶ 2, 13. The Court of Appeals
concluded that the instruction given to
the jury that required the accused to have
“caused” a person to engage in sex during
the commission of an underlying felony
would establish a “causal connection between the felony and the sex act” and “insure that an accused will not be convicted
for engaging in purely consensual sex.” Id.
¶ 24. The Court held that “the legislature
intended to punish those who participate
in certain sexual activity, even without
force or coercion, when the . . . sex act is
caused by the defendant in the commission
of any other felony,” that the underlying
statutory felony need not be a felony with
any “element of force or coercion,” and that
causation between the felony and the sex
could even be unintentional or accidental.
Id. ¶¶ 25-26. Nothing in Maestas considered the significance of the basic definition
of criminal sexual penetration in Section
30-9-11(A) (2003), requiring the penetration to be both “unlawful and intentional.”
{19} Although this Court granted certiorari to consider the proper interpretation of the elements of CSP II-felony,
we reversed the defendant’s convictions
in Maestas II without reaching that issue after the Attorney General candidly
conceded that the Legislature expressly
excluded judges from application of the
Governmental Conduct Act, removing
any predicate felony that could arguably
support a conviction of CSP II-felony. See
22
http://www.nmcompcomm.us/
Maestas II, 2007-NMSC-001, ¶¶ 2, 6-7.
{20} The elements of CSP II-felony were
next considered in State v. Moore, 2011NMCA-089, 150 N.M. 512, 263 P.3d 289,
cert. denied, 2011-NMCERT-008, 268
P.3d 513. The Court of Appeals panel that
decided Moore was not the same panel that
decided Maestas. Moore was an appeal by
the state from a district court dismissal
of an indictment for failure of the state
to instruct the grand jury that lack of
consent was an element of the criminal
sexual penetration of a fourteen-year-old
child victim who had been supplied with
marijuana by an adult defendant. See
Moore, 2011-NMCA-089, ¶¶ 3, 6. Unlike
Maestas, Moore squarely addressed the
importance of the fact that “CSP II incorporates the same universal definition of
criminal sexual penetration in Section 309-11(A), including the requirement that
the act be unlawful,” but concluded that
the unlawfulness element was established
where the victim was “a statutorily defined
child” whose consent was irrelevant to
the unlawfulness of the sex. Moore, 2011NMCA-089, ¶ 13. Moore specifically relied
on prior case law holding that “the consent
of a child between the ages of thirteen and
sixteen is legally irrelevant for both CSP
III, where force is required, and CSP IV,
where force is not required.” Id. Distinguishing the situation from that involving
an adult victim where consent may be an
issue, the court reversed, holding that
there was no need to include language
referring to consent “in the definition of
unlawfulness for CSP II and CSP IV in a
case involving an alleged victim that was
a statutorily defined child.” Id. ¶¶ 19-20.
Moore did not overrule or expressly disapprove of the more expansive interpretation
in Maestas, citing it with approval as additional support for reversing the district
court. Moore, 2011-NMCA-089, ¶ 14.
{21} The Court of Appeals opinion in this
case includes a brief acknowledgment of
the unlawfulness component of the basic
statutory definition of criminal sexual
penetration: “The description of the sexual
conduct [in the elements instruction for
CSP II-felony] that Defendant caused her
daughter . . . , a thirteen-year-old girl, to
give fellatio to an adult male, was sufficient
to satisfy the unlawfulness element.”
Stevens, No. 29,357, mem. op. at 9. But,
as with Moore, the Court of Appeals in
Stevens also cited Maestas with approval:
“Since our Supreme Court [in Maestas II]
did not address these issues [of unlawfulness in its reversal of Maestas on other
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
grounds], this Court’s opinion remains the
applicable, controlling law in New Mexico
with regard to them.” Stevens, No. 29,357,
mem. op. at 9. The Court of Appeals
concluded that the requirement of the
elements instruction that the sex occurred
during the commission of a felony was, in
the language of Maestas, “‘enough to insure
that an accused will not be convicted for
engaging in purely consensual [i.e., lawful]
sex.’” Stevens, No. 29,357, mem. op. at 8-9
(alteration in original). Stevens provided
no explanation for its bracketed language
equating lawful sex with consensual sex or
for how, in the elements instruction, the
requirement of the concurrent timing of
a felony and a sex act would insure that a
person would not be convicted for engaging in purely consensual and lawful sexual
activity.
{22} We now face the statutory construction issue that we did not reach in our
Maestas II opinion vacating the conviction in Maestas. As always, we start with
an examination of the statutory text. The
description of the offense of criminal
sexual penetration during the commission
of a felony is deceptively simple. Section
30-9-11(E)(5) (2007) defines it as “criminal sexual penetration perpetrated . . . in
the commission of any other felony.” And
what is the punishable “criminal sexual
penetration” that becomes an elevated
offense if perpetrated in the commission
of another felony? Section 30-9-11(A)
(2007) provides the only statutory definition: “Criminal sexual penetration is the
unlawful and intentional causing of a
person to engage in sexual [acts].” Maestas
acknowledges this definition but never addresses the significance of the modifying
word “unlawful,” stating simply that the
basic criminal sexual penetration “definition says nothing about force or coercion;
instead, it speaks in terms of ‘causing’ a
person to engage in a sex act.” Maestas,
2005-NMCA-062, ¶ 18.
{23} Actually, the statute defines “criminal” sexual penetration as, among other
things, the “unlawful” causing of a person
to engage in a sex act. Otherwise, the description of CSP II would have omitted the
term “criminal” and simply described the
offense as “sexual penetration perpetrated
. . . in the commission of any other felony.”
This Court has repeatedly cautioned
that the statutory term “unlawful” has
significance in determining legislative
intent and defining elements of offenses.
State v. Osborne, 1991-NMSC-032, ¶ 33,
111 N.M. 654, 808 P.2d 624 (holding that
Advance Opinions
“by defining [criminal sexual contact of a
minor] as ‘unlawfully and intentionally’
touching a child’s intimate parts the legislature properly intended that the state must
establish the unlawfulness of the touching
as a distinct element of the offense”); see
State v. Parish, 1994-NMSC-073, ¶¶ 1,
12, 118 N.M. 39, 878 P.2d 988 (reversing a homicide conviction for failure to
instruct the jury on the statutory element
of unlawfulness and holding that a “jury
instruction which does not instruct the
jury upon ‘all questions of law essential
for a conviction of any crime submitted
to the jury’ is reversible error” (citation
omitted)). Recognizing the independent
significance of the statutory modifier “unlawful” is a principle that has been honored
since the earliest days of our territorial
justice system. See Territory v. Miera, 1866NMSC-004, ¶¶ 2, 5, 1 N.M. 387 (holding
an assault indictment defective for failure
to allege that a beating was administered
unlawfully, emphasizing that “[b]y using
the word ‘unlawfully’ in the statute, the legislature intended to discriminate between
acts of violence which may be lawful and
those which are not”).
{24} Like the Court of Appeals, we have
struggled with trying to determine legislative intent by simply parsing individual
words and phrases of the criminal sexual
penetration statute. But unarticulated assumptions of legislators and unanticipated
applications faced by the judicial branch
often require that we search more deeply
for legislative intent, to avoid the danger
in the law, as in life, of not seeing the forest
for the trees. Because neither the briefs of
the parties in this case nor the opinions
construing the statute have provided any
analysis of the origins or purpose of the
offense of CSP II-felony, we have found it
necessary to do so on our own. See State v.
Morales, 2010-NMSC-026, ¶ 13, 148 N.M.
305, 236 P.3d 24 (observing that to determine legislative intent, we must consider
not only statutory language and structure
but also legislative history and motivating policies). We begin our analysis with
a historical review of the evolution of our
criminal sexual penetration statutes.
{25} The common law from which
Anglo-American sexual assault crimes
originated traditionally focused on forcible
or nonconsensual intercourse, but “from
ancient times the law has afforded special
protection to those deemed too young to
understand the consequences of their actions.” United States v. Ransom, 942 F.2d
775, 777 & n.2 (10th Cir.1991), cert. denied,
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502 U.S. 1042 (1992) (quoting Blackstone’s
Commentaries for the proposition “that
by the year 1275 the law in England prohibited ‘carnally knowing and abusing any
woman child under the age of ten years;
in which case the consent or non-consent
is immaterial, as by reason of her tender
years she is incapable of judgment and
discretion’” (citation omitted)). A review
of the Model Penal Code, which contains
no suggested offense involving criminal
sexual penetration during the commission
of a felony, indicates the same approach
to criminalizing imposition of sex acts on
unwilling victims or those not deemed to
be in a position to provide a free and lawful consent. See Model Penal Code § 213,
Sexual Offenses, 10A U.L.A. 432 (2001).
{26} New Mexico’s first territorial statutes contained only one sex crime: “If
any person shall unlawfully have carnal
knowledge of any woman by force and
against her will, he shall, on conviction
thereof, be castrated or imprisoned not
exceeding ten years, or fined not exceeding
one thousand dollars.” 1846 Kearny Code
of Laws, Crimes and Punishments, art. II,
§ 2. In 1854, the Territorial Legislature
added the common law offense of statutory rape involving sex with a child below
the age of lawful consent, punishing by
“imprisonment . . . for life” anyone who
“shall unlawfully and carnally know and
abuse any female child under the age of
ten years.” 1853-54 N.M. Laws, Act 28, ch.
III, § 34.
{27} In the century and a half of New
Mexico’s existence as a territory and a state,
the Legislature has made various amendments to our sexual assault laws, but it has
never deviated from the common law approach of criminalizing only those sex acts
that are perpetrated on persons without
their consent, either as a matter of fact or,
in the case of children or other vulnerable
victims, as a matter of law. See, e.g., 1963
N.M. Laws, ch. 303, § 9 (enacting a new
criminal code and providing punishments
for sexual intercourse with children under
the age of sixteen years, Subsection 9-3,
and for intercourse with a victim “without
her consent” when her resistance is forcibly
overcome, she is unconscious or physically
unable to resist, she is incapable of giving
consent because of a mental disability, or
when she has been plied with resistanceimpairing substances, Subsection 9-2).
{28} The sexual penetration during
commission of a felony offense was first
enacted as part of a complete restructuring of the New Mexico sexual assault
laws in 1975, prompted by widespread
concerns locally and nationally about the
discriminatory aspects of many features
of our traditional rape laws. See R. Bruce
Washburn, Rape Law: The Need for Reform,
5 N.M. L. Rev. 279, 279 & nn.1-4 (1975)
(describing the 1975 enactment in historic
perspective); Charles W. Daniels, The Impact of the Equal Rights Amendment on the
New Mexico Criminal Code, 3 N.M. L. Rev.
106, 112-14 (1973) (arguing for statutory
reform to protect male as well as female
victims and punish female as well as male
criminal acts). Although there is no written New Mexico legislative history, the
new statutes were clearly part of a national
trend, influenced in part by the groundbreaking Michigan Sexual Conduct Act,
the result of several years of drafting and
lobbying efforts by the Michigan Women’s
Task Force on Rape. See W. Patrick Dreisig,
Note, Criminal Law—Sexual Offenses—A
Critical Analysis of Michigan’s Sexual Conduct Act, 23 Wayne L. Rev. 203, 204 n.8
(1976) (indicating that 28 states, including
New Mexico, revised their rape laws).
{29} One of the authors of the 1975 Michigan Criminal Sexual Conduct Act was
prosecutor Patricia Boyle, who later went
on to serve as a justice of the Michigan Supreme Court. See Ann Zaniewski, Patricia
Boyle: Former Michigan Supreme Court
justice dedicated to public service, Detroit
Free Press, Jan. 15, 2014, at A5 (citing, in
Justice Boyle’s obituary, her role in helping
to draft the landmark legislation). In an
article contemporaneous with the Michigan legislation, Justice Boyle discussed
the statute she said had been “specifically
designed to comprehensively codify and
define sexual crimes, rationally relate
penalties to the harmfulness of the conduct
and encourage reporting and prosecution
of sexual offenses by victims.” Patricia
Boyle, The Criminal Sexual Conduct Act,
43 Detroit Lawyer at 6 (October 1975). The
1975 Michigan act created a new offense of
sexual penetration that “occurs during the
commission of another felony.” Boyle, 43
Detroit Lawyer at 8; see also Mich. Comp.
Laws Ann. § 750.520b(1)(c) (West 2014)
(“A person is guilty of criminal sexual conduct in the first degree if he or she engages
in sexual penetration with another person
and . . . [s]exual penetration occurs under
circumstances involving the commission
of any other felony.”). Despite the fact that
the Michigan Legislature, unlike the New
Mexico Legislature, did not insert the
modifiers “criminal” or “unlawful” before
the term “sexual penetration,” it was clear
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that the intent of the drafters was to punish criminal sexual conduct “achieved by
‘force or coercion’: broadly defined to include not only actual force but submission
due to the presence of a weapon, threats
to use force, or . . . threats to retaliate in
the future.” Boyle, 43 Detroit Lawyer at
9. The goals of the Michigan act were “to
alter the attitudes of the public and the
criminal justice system toward the offense,
the offender, and the victim.” Id. at 11.
The conduct prohibited is assaultive conduct against the sexual
privacy of another person, as opposed to the prior prohibition
against unauthorized eroticism.
The offense is the invasion of
that privacy by force, coercion,
or other undue advantage. . . .
The[] goals . . . will be accomplished only to the extent that
those charged with responsibility
for enforcing and interpreting
the Act, that is, police, prosecutor, trial and appellate benches,
understand and apply the Act in
light of the legislative purpose.
Id.
{30} Despite the lack of textual specificity in the Michigan act, Michigan courts
have recognized their “duty to give a
reasonable statutory construction to the
statute to prevent the entire statute from
being rendered unconstitutional” and to
avoid applying a serious criminal statute
in “‘ridiculous’ circumstances.” People v.
Lockett, 814 N.W.2d 295, 301-02 (Mich.
Ct. App. 2012) (summarizing precedents
and upholding conviction where there
was a direct relationship between the
sexual penetration and the felony of
providing sexually explicit material to a
minor and where the victim of the felony
was also the victim of the sexual penetration).
{31} Our review of the statutes of all
50 states shows that the vast majority of
other states, even those that have patterned
their statutes after the Michigan Criminal
Sexual Conduct Act, never followed Michigan’s lead in creating a separate offense of
sexual penetration during the commission
of a felony. Of the very few states that
adopted any sexual offenses enhanced by
commission of a separate felony, all have
statutory language or court interpretations
that clarify that the victim must be forcibly
or otherwise nonconsensually the subject
of the defendant’s sexual conduct.
{32} Definitional elements of the Delaware statute include that “[t]he sexual
24
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intercourse occurs without the victim’s
consent and it was facilitated by or occurred during the course of the commission or attempted commission of . . . [a]ny
felony.” Del. Code Ann. tit. 11, § 773(a)(2)
a (West 2010).
{33} The Illinois statute defining aggravated criminal sexual assault requires that
the defendant commit both the predicate
felony and a criminal sexual assault. See
720 Il. Comp. Stat. Ann. 5/11-1.30(a)(4)
(West 2011) (enhancing the penalties for
criminal sexual assault perpetrated during the commission of a felony); 720 Il.
Comp. Stat. Ann 5/11-1.20(a) (West 2011)
(defining the base crime of criminal sexual
assault as sexual penetration by force or
threat of force, when the victim is unable to
give knowing consent, or when the victim
is a minor); People v. Cox, 557 N.E.2d 288,
295 (Ill. App. Ct. 1990) (observing that a
conviction for aggravated criminal sexual
assault of an adult victim required both
commission of the predicate felony and
“an act of sexual penetration by the use of
force or threatening the use of force”).
{34} The New Jersey statutes involving
sexual assaults during commission of a
felony require both an act of sexual penetration using “physical force or coercion”
and a predicate felony limited to “robbery,
kidnapping, homicide, aggravated assault
on another, burglary, arson or criminal
escape.” See N.J. Stat. Ann. § 2C:14-2c(1)
(West 2012) (requiring the use of force
or coercion for the sexual assault crime);
N.J. Stat. Ann. § 2C:14-2a(3) (enhancing
the penalties for sexual assaults committed during commission of the specified
felonies); State v. Drury, 919 A.2d 813,
824 (N.J. 2007) (holding that the felony of
carjacking does not qualify as a statutory
predicate offense).
{35} South Carolina law provides enhanced penalties if a “sexual battery” is
inflicted on a “victim of forcible confinement, kidnapping, trafficking in persons,
robbery, extortion, burglary, housebreaking, or any other similar offense or act.” See
S.C. Code Ann. § 16-3-652(1)(b) (2010).
{36} The Washington statute defining
rape during commission of a felony requires penetration by “forcible compulsion” with severe limitations on the nature
of the predicate felony, which may be either
kidnapping of the rape victim or felonious
entry into the building or vehicle where
the rape victim is located. See Wash. Rev.
Code Ann. § 9A.44.040(1) (West 1998).
{37} “While looking to similar state statutes cannot conclusively answer the ques-
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tion of what actions our own Legislature
meant to proscribe,” we have recognized
that comparisons can be “instructive” in
understanding legislative intent. State v.
Tafoya, 2012-NMSC-030, ¶ 23, 285 P.3d
604 (analyzing statutes of other states in
construing the legislative purpose of the
New Mexico drive-by shooting statute). It
is significant that no other American jurisdiction has been willing to impose sexual
assault convictions on adults with the capacity to consent who engage in otherwise
lawful sexual activity simply because the
sex occurs at the same time as or can be
said to have been facilitated or caused by
the commission of a felony offense. In the
case before us, for example, such a broad
interpretation would have supported
convicting both Defendant and her adult
boyfriend of CSP II-felony for having consensual relations with each other after they
became euphoric from using illegal drugs.
Because marital status is now irrelevant
to culpability for modern criminal sexual
penetration, a conviction for CSP II-felony
could be imposed against a married or
single couple, each adult causing the other
to have mutually consensual intercourse
while either participant is operating an
unlawful gambling enterprise, see NMSA
1978, § 30-19-3 (1963); or neglecting a
nursing home resident, see NMSA 1978,
§ 30-47-5(B) (1990); or retaining stolen
property, see NMSA 1978, § 30-16-11(F)
(2006); or practicing dentistry without a
license, see NMSA 1978, § 61-5A-18(A)
(2003); or any of the multitude of felonies
that the New Mexico Statutes punish as
felonies, most having nothing to do with
coercive sexual behavior.
{38} Like the Michigan court in Lockett,
we recognize our judicial responsibility to
avoid ridiculous applications of the law by
construing ambiguous statutes in a way
that will “harmonize all relevant statutory
provisions and avoid absurd results.” State
ex rel. Children, Youth & Families Dep’t v.
Marlene C., 2011-NMSC-005, ¶ 15, 149
N.M. 315, 248 P.3d 863. Section 30-9-11(G)
criminalizes sexual conduct perpetrated
on children under the age of lawful consent, and Section 30-9-11(F) criminalizes
criminal sexual penetration accomplished
“through the use of force and coercion.”
NMSA 1978, Section 30-9-10(A) (2005)
defines “force and coercion” as including
not only physical force but also threats of
future force or retaliation, intercourse with
mentally or physically vulnerable victims,
and consensual or nonconsensual penetration of a patient by a psychotherapist. There
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is an obvious and consistent thread in the
New Mexico criminal sexual penetration
statutes that is consistent with both New
Mexico sexual offense history and with
the law of all other American jurisdictions,
punishing imposition of sexual activity on
those who are not willing participants in
fact or in law, and there is nothing in our
statutes or their history that articulates or
even implies any legislative intent to deviate from that fundamental concept.
{39} We conclude that more than a
simple temporal or causal relationship is
necessary to honor the legislative intent
underlying the criminal sexual penetration
statutes, criminalizing sexual acts perpetrated on persons without their consent,
either as a matter of fact or, in the case of
children or other vulnerable victims, as a
matter of law. Our interpretation is guided
not only by the kinds of offenses described
in the statute but also by the history of
criminal sexual assault laws and by the
recognition that sexual intercourse involving consenting adults is not only a normal,
desirable, and biologically essential human
activity but is also a fundamental constitutional liberty. See Lawrence v. Texas,
539 U.S. 558, 578 (2003) (holding that the
choice of consenting adults to engage in
intimate physical relationships is a form
of liberty protected by the Due Process
Clause of the Fourteenth Amendment to
the United States Constitution, regardless
of the marital status or sexual preference
of the participants). We therefore hold
that when a CSP II charge is based on the
commission of a felony, it must be a felony
that is committed against the victim of,
and that assists in the accomplishment of,
sexual penetration perpetrated by force or
coercion or against a victim who, by age
or other statutory factor, gave no lawful
consent.
{40} Maestas suggested that our jury
instruction on the elements of CSP II-felony—requiring the jury to find in element
number one that the defendant caused a
person to engage in a sex act and in element number two that the defendant committed that act “during the commission
of ” a felony—“constitute[s] a requirement
that there be a causal connection between
the felony and the sex act.” Maestas, 2005NMCA-062, ¶ 24; see UJI 14-954 NMRA
(including as elements number one and
two the identical two elements applicable
to Maestas before an amendment adding
the unlawfulness element to the instruction became effective in 2005). Moore followed the reasoning of Maestas in holding
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that the jury need not be instructed that
the sex act must be unlawful in a case
where the victim supplied with drugs by
a defendant is in fact a child below the
age of consent. Moore, 2011-NMCA-089,
¶ 13. While a properly instructed jury in
both Maestas and Moore might well have
been justified in finding both unlawfulness
in the sexual activity and a causal link
between felonies committed against the
victim and the resulting unlawful sex acts,
the fact is that the juries were not called on
to make any of those findings. And the law
is clear that the Sixth Amendment right
to trial by jury guarantees that all facts
essential to a defendant’s sentence must
be determined by a jury, whether or not a
judge or panel of judges might think those
facts were proved in a particular case. See
State v. Frawley, 2007-NMSC-057, ¶¶ 3-5,
12-13, 143 N.M. 7, 172 P.3d 144 (relying
on Apprendi v. New Jersey, 530 U.S. 466
(2000), and holding unconstitutional a
provision of the Criminal Sentencing Act
which allowed a trial judge to increase a
defendant’s basic sentence by up to onethird upon a finding of certain aggravating
circumstances). Accordingly, we request
that our Uniform Jury Instructions Committee for Criminal Cases recommend
amendments to our jury instructions to
clarify the elements juries must consider
before returning verdicts for CSP-felony.
{41} We now turn to the issue whether
the deficiency in the elements instructions
in this case constituted fundamental error
that requires reversal despite Defendant’s
failure to object or otherwise preserve the
error at trial.
B.There Was No Fundamental Error
in the Circumstances of This Case
{42} We review an unpreserved challenge
to a jury instruction for fundamental error.
See State v. Benally, 2001-NMSC-033, ¶
12, 131 N.M. 258, 34 P.3d 1134 (distinguishing the reversible error standard of
review for a preserved challenge to a jury
instruction from the fundamental error
standard of review for an unpreserved
challenge). “‘Fundamental error only applies in exceptional circumstances when
guilt is so doubtful that it would shock
the judicial conscience to allow the conviction to stand.’” State v. Cunningham,
2000-NMSC-009, ¶ 13, 128 N.M. 711, 998
P.2d 176 (citation omitted). A “trial court’s
error in failing to instruct on an essential
element of a crime for which defendant
has been convicted, where there can be no
dispute that the element was established,
therefore does not require reversal of the
conviction.” State v. Orosco, 1992-NMSC006, ¶ 12, 113 N.M. 780, 833 P.2d 1146.
{43} In convicting the Defendant of CSP
II-felony in this case based on the instructions actually given, a unanimous jury necessarily rejected Defendant’s alibi defense
and found beyond a reasonable doubt that
Defendant on two occasions had caused
her adult boyfriend to sexually penetrate
her daughter during the commission of
the felony of distribution of a controlled
substance to a minor.
{44} There could also have been no
doubt about the elements missing from
the instruction, the unlawfulness of the
sexual penetration, and the fact that the
penetration was a result of the commission
of a felony. The sexual penetration was
unlawful by the explicit terms of Section
30-9-11(G)(1) (2007), which criminalizes
sexual relations between a child thirteen
to sixteen years of age and a person who
is at least four years older. In her brief in
chief before this court, Defendant candidly
acknowledged that Defendant’s daughter
was thirteen years old at the time of the
events in this case and Defendant’s boyfriend was at least ten years older. The
daughter’s equivalent testimony at trial
went unchallenged by the defense.
{45} Also unchallenged was the daughter’s testimony that it was after she had
been injected with methamphetamine that
she acquiesced to her mother’s direction to
perform oral sex on the adult boyfriend
because, in her words, she “was, like, high”
and “didn’t really care,” establishing the
nexus of causation between the commission of the felony against the daughter and
the resulting unlawful sex act committed
on the daughter. This case therefore exemplifies the kind of situation in which
a preserved challenge to an instruction
might have resulted in reversal but in
which the reviewing court, in the absence
of a preserved challenge, does not consider
guilt to be so doubtful that a conviction
would shock the judicial conscience. See
Orosco, 1992-NMSC-006, ¶ 12, (reviewing
cases in which convictions were affirmed
despite omission of an essential element
from the jury instructions). In Orosco, we
rejected claims of fundamental error and
affirmed convictions for sex offenses committed on children, despite the erroneous
failure of the jury instructions to require
findings that criminal sexual contact must
be unlawful as well as intentional. Id. ¶¶ 3,
5, 20. We observed that the jury necessarily
found that the defendants had fondled the
genitals of the children in the restroom of
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25
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a bar and in a defendant’s truck, and there
was no issue as to whether the disputed
“touchings, if they occurred, were other
than unlawful.” Id. ¶¶ 9, 11.
{46} We similarly conclude that the
deficiencies of the jury instructions
in this case did not rise to the level of
fundamental error. There is simply no
issue as to whether the acts of injecting
a thirteen-year-old child with methamphetamine and then causing her to
participate in fellatio with an adult, both
found by the jury to have occurred, were,
in the words of Orosco, “other than unlawful.”
C.The Amended Date Description
Did Not Prejudice Defendant
{47} We also address Defendant’s argument that she was unfairly prejudiced
in her defense against all of the charges
because the district court allowed the State
to change the description of the dates of
the alleged offenses after Defendant had
prepared and presented an alibi defense.
{48} Rule 5-204(C) NMRA of the Rules of
Criminal Procedure for the District Courts
provides that
[n]o variance between those
allegations of a complaint, indictment, information or any
supplemental pleading which
state the particulars of the offense,
whether amended or not, and
the evidence offered in support
thereof shall be grounds for the
acquittal of the defendant unless
such variance prejudices substantial rights of the defendant.
The court may at any time allow
the indictment or information
to be amended in respect to any
variance to conform to the evidence. If the court finds that the
defendant has been prejudiced
by an amendment, the court may
postpone the trial or grant such
other relief as may be proper
under the circumstances.
{49} “We review a district court’s interpretation and application of Rule 5-204 de
novo.” State v. Branch, 2010-NMSC-042, ¶
19, 148 N.M. 601, 241 P.3d 602, overruled
on other grounds by State v. Tollardo, 2012NMSC-008, ¶ 37 & n.6, 275 P.3d 110.
{50} A criminal indictment or information need not contain exacting detail as
long as the defendant is given sufficient
notice of the charges. See State v. Cawley,
1990-NMSC-088, ¶ 13, 110 N.M. 705,
799 P.2d 574 (recognizing the right of
the accused to be apprised of the charge
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against him and also recognizing that not
all charging documents need to establish
the time or date of the offense); see also
State v. Baldonado, 1998-NMCA-040, ¶¶
18-21, 124 N.M. 745, 955 P.2d 214 (recognizing the need to reconcile a defendant’s
“due process right to reasonable notice of
the charges” and the difficulty faced by
the state in prosecuting criminal sexual
charges committed against children who
often have a difficult time remembering
precise dates of crimes that may have
been committed against them); accord
Rule 5-205(A)(1) NMRA (“It shall be
unnecessary for a complaint, indictment
or an information to contain the [time
of the commission of the offense] unless
such allegations are necessary to give the
defendant notice of the crime charged.”).
{51}In Branch, this Court affirmed a
district court decision to allow the state
to amend the indictment in a murder trial
after the state had presented its evidence.
2010-NMSC-042, ¶¶ 18, 26. The amendment added two predicate felonies to the
charge of felony murder in a case involving multiple charges for crimes against
multiple victims that arose from the
defendant’s running over his girlfriend
with his truck and also running down
several people who had stopped to give
her assistance, ultimately killing one. Id.
¶¶ 2-4, 21-22. The defendant argued that
he was prejudiced by the change because
his preparation and cross-examination
might have progressed differently based on
the additional predicate felonies. Id. ¶ 21.
Branch rejected the defendant’s argument,
stating that the defendant’s “mere speculation of how he would have conducted his
defense differently does not rise to the level
of prejudice that is required for an acquittal.” Id. The Branch Court also explained
that the variance allowing two of the
original charges to be used as additional
predicate felonies in felony murder did
not prejudice the defendant’s substantial
rights because the conduct underlying
these additional predicate felonies was the
same as the conduct underlying one of the
predicate felonies in the original felony
murder charge, providing the defendant
with adequate notice by which he “could
‘reasonably anticipate from the indictment what the nature of proof against
him [would] be.’” Id. ¶ 22 (alteration in
original) (citation omitted).
{52}In State v. Dombos, the Court of
Appeals affirmed the district court’s decision to allow an amendment expanding
the time frame of the charges in order to
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conform with evidence presented at trial.
See 2008-NMCA-035, ¶¶ 24-25, 143 N.M.
668, 180 P.3d 675. The original indictment
charged the defendant with numerous
crimes stemming from several sexual
offenses against his wife that occurred in
February 2004 after the two married and
moved to Alamogordo. See id. ¶¶ 1-2, 6.
The original charges alleged that one count
each of kidnapping, battery, and criminal
sexual penetration occurred on or between
February 9, 2004, and February 18, 2004;
and another set of counts in the amended
indictment alleged that each of those
crimes again occurred on or about February 19, 2004. Id. ¶ 24. Partway through the
trial, the state moved to enlarge the time
period to allow that the two sets of events
occurred at some time between February 1
and February 20. See id. ¶¶ 3, 24. Although
the defendant argued that the change was
unfairly prejudicial, the Dombos Court
held that the defendant did not assert any
specific claim of prejudice. See id. ¶ 26.
Rather, the Dombos Court explained that
the defendant did not rely on the specific time frame in his defense and that he
“knew the nature of the charges and knew
the identity of the victim. He also knew
that all the charges were alleged to have
occurred during the period of time [the
defendant and his wife] lived together.” Id.
{53} In this case, Defendant argues that
she was prejudiced by the amended date
description because of her reliance on an
alibi defense at trial. There are several flaws
in this argument.
{54} Most fundamentally, the information never alleged precise dates of the
multiple crimes charged. To the contrary,
it generally alleged that all of the offenses
occurred “on or about November 12,
2007.” From the outset, Defendant and her
counsel were on notice that the daughter
could not say precisely when the events
occurred. In the affidavit for Defendant’s
arrest warrant, the investigating officer
stated, “I asked [the daughter] if she knew
an approximate date of the incident and
she said no but that it was after Halloween but before Thanksgiving.” The State’s
pretrial alibi notice demand referred to
the offenses as allegedly occurring, in the
general terms of the criminal information,
“on or about . . . November 12, 2007,” and
Defendant’s responsive alibi notice recited
that her anticipated alibi defense would
cover “the time the alleged offenses were
committed as charged in the Criminal
Information.” Neither the daughter’s trial
testimony that the incidents must have
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occurred shortly before Halloween, which
was October 31, nor the amendment to
the date description in the information to
conform to the daughter’s testimony went
beyond the time frame fairly described in
the original charges.
{55} In addition, like the defendant in
Dombos who was on notice that the alleged
crimes occurred during the time he was
living with his new wife in Alamogordo,
Defendant was on notice that the events at
issue in this case were alleged to have occurred sometime in the fall of 2007 when
Defendant was going through a divorce
and when Defendant, her daughter, and
the boyfriend all lived in the Aztec area.
{56} Finally, the defense specifically knew
of the daughter’s revised date estimates as
soon as the daughter testified in the State’s
case in chief, before the defense made its
reserved opening statement and before it
began presenting its incomplete alibi evidence. The State’s later request to amend
the charges to conform to the evidence, as
permitted by Rule 5-204, could not have
been a surprise to the defense. The de-
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fense made no objection to the daughter’s
testimony, no claim of prejudice from her
corrected recollection before the beginning of the defense case, and no request
for a continuance or such other relief as
would be appropriate when a defendant is
actually prejudiced by an amendment. See
State v. Marquez, 1998-NMCA-010, ¶ 21,
124 N.M. 409, 951 P.2d 1070 (“The remedy
afforded for prejudice by an amendment
is to ‘postpone the trial or grant such
other relief as may be proper under the
circumstances.’” (quoting Rule 5-204(C))).
Instead, the defense affirmatively used the
daughter’s uncertainty about the precise
dates to attack her credibility, both on
cross-examination and in closing argument.
{57} Accordingly, we conclude both
that Defendant was not prejudiced by
the amended date description and that
Defendant waived any claim of prejudice
when she failed to request an opportunity
to respond further to the daughter’s testimony or seek other relief from the district
court and instead attempted to exploit the
daughter’s uncertainty about the dates. We
affirm the Court of Appeals and hold that
the State’s variance between the charging
information and jury instructions was
proper under Rule 5-204(C).
IV.CONCLUSION
{58} Although we conclude that the jury
instructions on the elements of CSP IIfelony were inadequate, we hold that the
deficiency did not result in fundamental
error in the circumstances of this case,
where the sexual activity with Defendant’s
thirteen-year-old child was undeniably
criminal sexual penetration during and
resulting from the commission of a felony.
Finding no other error, we affirm all of
Defendant’s convictions.
{59} IT IS SO ORDERED.
CHARLES W. DANIELS, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
27
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Court of Appeals
Opinion Number: 2014-NMCA-046
Topic Index:
Administrative Law and Procedure: Administrative Law, General;
and Legislative Intent
Appeal and Error: Standard of Review
Government: Licensing
Statutes: Interpretation; and Legislative Intent
INTERNATIONAL CHIROPRACTORS ASSOCIATION,
Plaintiff-Appellant,
v.
NEW MEXICO BOARD OF CHIROPRACTIC EXAMINERS,
Defendant-Appellee,
and
NEW MEXICO BOARD OF PHARMACY and NEW MEXICO MEDICAL BOARD,
Plaintiffs-Appellants,
v.
NEW MEXICO BOARD OF CHIROPRACTIC EXAMINERS,
Defendant-Appellee
Docket No. 31,690 (consolidated with No. 31,668) (filed July 31, 2013)
Direct Appeal from Rulemaking by the New Mexico Board of
Chiropractic Examiners
CHARLES V. GARCIA
Albuquerque, NM
PATRICK ORTIZ
Santa Fe, New Mexico
CUDDY & MCCARTHY LLP
JAMES S. TURNER, ESQ.
SWANKIN & TURNER
Washington, D.C.
for Appellant International
Chiropractors Association
GARY K. KING
Attorney General
ZACHARY A. SHANDLER
Assistant Attorney General
Santa Fe, New Mexico
for Appellee New Mexico Board of
Chiropractic Examiners
28
THOMAS R. DALY
ODIN, FELDMAN & PITTLEMAN, P.C.
Reston, Virginia
SUSAN M. HAPKA
SUTIN, THAYER & BROWNE
Albuquerque, New Mexico
for Amicus Curiae, American
Chiropractic Association
GARY K. KING
Attorney General
DANIEL R. RUBIN
Special Assistant Attorney General
Santa Fe, New Mexico
MARY H. SMITH
Assistant Attorney General
Albuquerque, New Mexico
for Appellants New Mexico Board of
Pharmacy and New Mexico Medical
Board
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
Opinion
James J. Wechsler, Judge
{1} This appeal is taken under the Uniform
Licensing Act, NMSA 1978, §§ 61-1-1 to
-34 (1957, as amended through 2013),
to challenge rules adopted by Appellee,
the New Mexico Board of Chiropractic
Examiners (the Chiropractic Board). The
rules in question approve an amended advanced practice chiropractic formulary that
includes minerals and additional drugs to
be administered by injection (2011 formulary) and a new rule establishing additional
educational requirements for advanced
practice chiropractic physicians (training
rule). Appellants, the New Mexico Board
of Pharmacy (the Pharmacy Board), the
New Mexico Medical Board (the Medical
Board), and the International Chiropractors Association (the ICA), challenge the
2011 formulary, asserting that it violates the
requirement of NMSA 1978, Section 61-49.2(B) (2009) of the Chiropractic Physician
Practice Act, NMSA 1978, §§ 61-4-1 to -17
(1968, as amended through 2009), that
prior approval of the Pharmacy Board and
the Medical Board be obtained. The ICA
also challenges the training rule, arguing
that it lacked the necessary prior approval
of the Medical Board. We hold that the 2011
formulary that includes minerals and additional drugs to be administered by injection
violates Section 61-4-9.2(B)’s requirement
that the formula receive approval from the
Pharmacy Board and the Medical Board.
We find no fault with the training rule. Accordingly, we set aside the 2011 formulary.
BACKGROUND
{2}A certified “advanced practice chiropractic” physician has “prescriptive
authority for therapeutic and diagnostic
purposes.” Section 61-4-9.1; 16.4.15.7(B)
NMAC (7/23/2010). The Chiropractic
Board has the statutory obligation to
approve formularies for substances to
be administered by certified advanced
practice chiropractic physicians. Section
61-4-9.2(B). A formulary is a listing of
the approved substances and includes the
manner in which they may be administered. 16.4.15.11 NMAC (11/13/2011).
Formularies are embodied under a rule
of the Chiropractic Board. Id. A formulary that includes “[d]angerous drugs or
controlled substances, drugs for administration by injection and substances not
listed in Subsection A of ” Section 61-4-9.2
requires prior submission to the Pharmacy
Board and the Medical Board for approval.
Section 61-4-9.2(B).
Advance Opinions
{3} Effective September 11, 2009, the Chiropractic Board adopted an administrative
rule establishing an advanced practice chiropractic formulary. This 2009 formulary
was the subject of prior litigation between
the parties. After the voluntary dismissal
of its appeal to this Court, the Pharmacy
Board gave its approval for certain substances, and the manner for their administration, to be included in the formulary.
The Chiropractic Board decided to amend
the formulary proposed in 2009 with the
2010 formulary that was effective July 23,
2010. On July 29, 2011, the Chiropractic
Board issued notice that it would hold a
hearing and regular meeting to consider
various items, including changes to the
2010 formulary. The proposed formulary
(2011 formulary) included an amendment to the 2010 formulary, 16.4.15.11
NMAC (07/23/2010), to include minerals
and additional drugs to be administered
by injection and a new rule, 16.4.15.12
NMAC (11/13/2011), establishing additional educational requirements for
certified advanced practice chiropractic
physicians that was not approved by the
Medical Board.
{4} The Chiropractic Board did not submit its proposed 2011 formulary to the
Pharmacy Board or the Medical Board
prior to the August 30, 2011 hearing.
In connection with the hearing, both
boards advised the Chiropractic Board
that they did not approve the 2011 formulary. The ICA also objected to the
2011 formulary as well as the training
rule. The Chiropractic Board approved
the 2011 formulary that amended
16.4.15.11 NMAC and the new language
of 16.4.15.12 NMAC. The Pharmacy
Board and the Medical Board filed a
single appeal from the Chiropractic
Board’s action, and the ICA filed a separate appeal. This Court consolidated the
appeals and granted a stay of the two
administrative rules pending the resolution of this appeal.
ARGUMENTS OF THE PARTIES
{5}In this appeal, the Pharmacy and
Medical Boards and the ICA contend that
the 2011 formulary, 16.4.15.11 NMAC, is
contrary to law because the Chiropractic
Board adopted it without approval of the
Pharmacy and Medical Boards, as required
by Section 61-4-9.2(B). The ICA additionally argues that the Chiropractic Board’s
own regulations required it to obtain the
approval of the Pharmacy and Medical
Boards before approving the 2011 formulary. It further contends that the training
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rule, 16.4.15.12 NMAC, violates Section
61-4-9.1(D) and 16.4.15.10(C) NMAC
(3/31/2009) because the Medical Board
did not approve the new training requirements.
{6} The Chiropractic Board counters
that its 2011 formulary does not require
approval of the Pharmacy and Medical
Boards based on its interpretation of
Section 61-4-9.2(B) that construes the
plain meaning of the statutory language,
avoids surplusage, and complies with
proper re-punctuation. It argues that its
interpretation of Section 61-4-9.2 does
not result in any conflict with its regulations. It further contends that the Medical Board was not required to approve
the training rule.
STANDARD OF REVIEW
{7} In an appeal of the adoption of a regulation under the Uniform Licensing Act,
this Court may set aside the regulation
only if it finds the regulation to be: “(1)
arbitrary, capricious or an abuse of discretion; (2) contrary to law; or (3) against
the clear weight of substantial evidence
of the record.” Section 61-1-31(C). The
arguments in this appeal raise the question of whether the 2011 formulary and
the training rule are contrary to law. Our
interpretation of the relevant statutes and
administrative rules and regulations is
also a question of law. See PC Carter Co. v.
Miller, 2011-NMCA-052, ¶ 11, 149 N.M.
660, 253 P.3d 950. We review the Chiropractic Board’s application of the law de
novo. See id.
THE 2011 FORMULARY
{8}“An administrative agency has no
power to create a rule or regulation that
is not in harmony with its statutory authority.” Rivas v. Bd. of Cosmetologists,
1984-NMSC-076, ¶ 3, 101 N.M. 592, 686
P.2d 934. The statutory authority at issue is
contained in Section 61-4-9.2, which states
that:
A.
A certified advanced
practice chiropractic physician
may prescribe, administer and
dispense herbal medicines, homeopathic medicines, over-thecounter drugs, vitamins, minerals, enzymes, glandular products, protomorphogens, live cell
products, gerovital, amino acids,
dietary supplements, foods for
special dietary use, bioidentical
hormones, sterile water, sterile
saline, sarapin or its generic,
caffeine, procaine, oxygen, epinephrine and vapocoolants.
B.
A formulary that includes
all substances listed in Subsection
A of this section, including compounded preparations for topical
and oral administration, shall be
developed and approved by the
board. A formulary for injection
that includes the substances in
Subsection A of this section that
are within the scope of practice
of the certified advanced practice chiropractic physician shall
be developed and approved by
the board. Dangerous drugs or
controlled substances, drugs for
administration by injection and
substances not listed in Subsection A of this section shall be
submitted to the [Pharmacy
Board] and the [Medical Board]
for approval.
{9}The central issue before us concerns
the meaning of the third sentence of Section 61-4-9.2(B) as to the circumstances
under which approval of the Pharmacy
and Medical Boards is required. We thus
seek to interpret Section 61-4-9.2 to establish the Legislature’s intent in enacting
the statute. See Bd. of Educ. for Carlsbad
Mun. Sch. v. N.M. State Dep’t of Pub. Educ.,
1999-NMCA-156, ¶ 16, 128 N.M. 398, 993
P.2d 112 (“The primary purpose of statutory interpretation is to ascertain and give
effect to legislative intent.” (internal quotation marks and citation omitted)). As the
Chiropractic Board points out, this Court
refers to the canons of statutory construction to interpret statutory meaning. Janet v.
Marshall, 2013-NMCA-037, ¶ 9, 296 P.3d
1253. The Chiropractic Board specifically
requests that we interpret Section 61-4-9.2
based on three such canons: that a statute
should be interpreted in accordance with
its plain meaning, see Janet, 2013-NMCA037, ¶ 9; that a statute should be interpreted to give effect to its entire language
such that no language is surplusage, see
Benny v. Moberg Welding, 2007-NMCA124, ¶ 8, 142 N.M. 501, 167 P.3d 949; and
that a court may re-punctuate a sentence
to fulfill the legislative intent. See City of
Roswell v. Hall, 1941-NMSC-011, ¶ 4, 45
N.M. 116, 112 P.2d 505.
{10} We address each of the Chiropractic
Board’s arguments. However, we believe
that the Legislature’s intent is best resolved
by looking to the language of Section 614-9.2 in the context of “its history and
background” and the manner in which it
“fits within the broader statutory scheme.”
Chatterjee v. King, 2012-NMSC-019, ¶ 12,
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29
Advance Opinions
280 P.3d 283. In this regard, we examine
Section 61-4-9.2 in conjunction with
statutes that address the same subject
matter in order to ensure “a harmonious,
common-sense reading.” Chatterjee, 2012NMSC-019, ¶ 12.
History and Background of
Section 61-4-9.2
{11} In 2008, the Legislature amended
the Chiropractic Physician Practice Act.
Among the amendments, the Legislature
for the first time authorized the Chiropractic Board to establish by rule an
advanced chiropractic practice physician
certification registry. Section 61-4-9.1.
The Legislature distinguished an advanced
chiropractic practice physician from other
chiropractors. It permitted an advanced
chiropractic practice physician to “have
prescriptive authority for therapeutic and
diagnostic purposes as authorized by statute” and included within this authority the
ability to administer “a drug by injection.”
Id.; Section 61-4-2(C). With this distinctive authority, the Legislature required that
an advanced chiropractic practice physician be licensed and certified by a nationally-recognized credentialing agency, have
completed three years of post-graduate
clinical practice or equivalent clinical
experience and annual continuing education, and have “completed a minimum of
ninety clinical and didactic contact course
hours in pharmacology, pharmacognosy,
medication administration and toxicology
certified by an examination from an institution of higher education approved by
the [Chiropractic Board] and the [Medical
Board].” Section 61-4-9.1(D).
{12} With the creation of the advanced
chiropractic practice physician status in
2008, the Legislature also required the
Chiropractic Board to develop a formulary
to address advanced practice chiropractic
physicians’ prescribing, administering,
and dispensing and further required that
the formulary be approved by the Pharmacy and Medical Boards. Section 61-49.2 (2008). The Legislature additionally
required coordination between regulatory
boards by mandating joint approval of
the Chiropractic and Medical Boards of
higher education requirements. Section
61-4-9.1(D).
{13} The Legislature’s authority to enact
the Chiropractic Physician Practice Act
stems from its exercise of the state’s power
to regulate for the protection of the health,
safety, and welfare of its citizens. See State
ex rel. Dep’t of Pub. Safety, State Police
Div. v. One 1986 Peterbilt Tractor, Black in
30
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Color, with an Altered VIN, 1997-NMCA050, ¶ 15, 123 N.M. 387, 940 P.2d 1182
(“The [L]egislature is the proper branch
of government to determine what should
be proscribed under the police power,
and a determination of what is reasonably necessary for the preservation of the
health, safety and welfare of the general
public is a legislative function.” (alteration,
internal quotation marks, and citation
omitted)). Although the Legislature did
not include a specific purpose provision in
the Chiropractic Physician Practice Act, it
did mandate that the Chiropractic Board
establish educational requirements “for
the purpose of protecting the health and
well-being of the citizens of this state.” Section 61-4-3(G). The statutes forming the
Pharmacy and Medical Boards specifically
state the purpose of the statutes as within
the state’s police power. See NMSA 1978,
§ 61-11-1.1(B) (1997) (“The purpose of
the Pharmacy Act is to promote, preserve
and protect the public health, safety and
welfare[.]”); NMSA 1978, § 61-6-1(B)
(2003) (stating the purpose of the Medical
Practice Act to be “[i]n the interest of the
public health, safety and welfare”).
Plain Meaning of Section 61-4-9.2
{14} The Chiropractic Board makes two
arguments concerning the plain meaning
of Section 61-4-9.2. In its answer brief, it
raises an argument that draws upon the
original language of Section 61-4-9.2 as
enacted by the Legislature in 2008. That
language read:
A certified advanced practice
chiropractic physician may prescribe, administer and dispense
herbal medicines, homeopathic
medicines, vitamins, minerals,
enzymes, glandular products,
naturally derived substances, protomorphogens, live cell products,
gerovital, amino acids, dietary
supplements, foods for special dietary use, bioidentical hormones,
sterile water, sterile saline, sarapin
or its generic, caffeine, procaine,
oxygen, epinephrine and vapocoolants. A formulary shall be
developed by the board and approved by the [Medical Board]
and the [Pharmacy Board].
Section 61-4-9.2 (2008).
{15} The Chiropractic Board’s plain
meaning interpretation of Section 61-4-9.2
raised in its brief focuses on the first two
sentences of Subsection B. According to
the Chiropractic Board, the first sentence
plainly authorizes it to adopt a formulary
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
allowing an advanced practice chiropractic
physician to prescribe and administer a
substance listed in Subsection A. With its
amendment to Section 61-4-9.2 in 2009,
the Legislature removed from Subsection A the language requiring Pharmacy
and Medical Board approval. Thus, to
the Chiropractic Board, under the plain
meaning of the first sentence of Subsection
B, the Pharmacy and Medical Boards do
not need to approve the formulary. See
N.M. Cattle Growers’ Ass’n v. N.M. Water
Quality Control Comm’n, 2013-NMCA046, ¶ 8, 299 P.3d 436 (“The law of statutory construction presumes that when the
Legislature amends a statute, it intends to
change the existing law.”), cert. granted,
2013-NMCERT-003, 300 P.3d 1181.
{16} The Chiropractic Board similarly
analyzes the plain meaning of the second
sentence of Subsection B. It reads this
sentence to permit it to adopt a formulary
allowing an advanced practice chiropractic
physician to administer by injection a substance listed in Subsection A if it ensures
that such formulary is consistent with the
scope of practice of an advanced practice
chiropractic physician. Again, because the
second sentence of Subsection B does not
contain language requiring that the Pharmacy and Medical Boards approve such
formulary, the Chiropractic Board does
not consider such approval to be within
the plain meaning of Subsection B.
{17} By its own account, the Chiropractic
Board’s plain meaning interpretation of
Section 61-4-9.2 raised in its brief does
not address the third sentence of Subsection B. And it is the meaning of the third
sentence that is the crux of the issue before
us. Indeed, the language of this sentence
indicates a legislative intent to require
Pharmacy and Medical Board approval
for the use of certain drugs and substances
by an advanced practice chiropractic
physician. The question is which drugs
or substances are subject to the required
approvals.
{18} The Chiropractic Board raised an alternative argument at oral argument to this
Court. It argued that the plain meaning of
the third sentence of Section 61-4-9.2(B)
is reflected in the Legislature’s reference
to “substances in Subsection A” in the
first and second sentences. According to
the Chiropractic Board, the Legislature’s
use of the language “substances listed
in Subsection A” in connection with its
requirement that the Chiropractic Board
develop formularies in the first two sentences indicates that when the Legislature
Advance Opinions
required Pharmacy and Medical Board approval in the third sentence of Subsection
B for “substances not listed in Subsection
A,” it plainly meant to exclude substances
listed in Subsection A from the required
approval.
{19} In addressing these arguments, we
note the interchangeable use of “drug”
and “substance” in the Chiropractic
Physician Practice Act. Section 61-49.2(B) refers to the “substances” listed in
Subsection A. But Subsection A includes
“over-the-counter drugs.” The third sentence of Subsection B uses the terms “[d]
angerous drugs,” “controlled substances,”
“drugs for administration by injection,”
and “substances not listed in Subsection
A.” Section 61-4-9.2(B). The definitions
section of the Chiropractic Physician
Practice Act defines “chiropractic” in part
by including “the administering of a drug
by injection by a certified advanced practice chiropractic physician[.]” Section
61-4-2(C). It does not, however, define
“drug” or “substance” for the purposes
of the Chiropractic Physician Practice
Act. At oral argument, the Chiropractic
Board and the Pharmacy Board both
indicated that the Chiropractic Physician
Practice Act uses the terms “drug” and
“substance” interchangeably. By virtue
of this interchangeable use, we do not
make any distinction between “drug”
and “substance” in the language of the
Chiropractic Physician Practice Act. Cf.
Hanson v. Turney, 2004-NMCA-069, ¶ 12,
136 N.M. 1, 94 P.3d 1 (stating that, when
the Legislature was aware of a distinction
used in other statutes and did not adopt
it, it intended otherwise).
{20} When we then turn to the language of the third sentence of Section
61-4-9.2(B), and focus only on “drugs for
administration by injection,” we observe
no lack of clarity in the requirement that
a formulary that includes “drugs for administration by injection” or “substances
not found in Subsection A” be approved
by the Pharmacy and Medical Boards. The
Chiropractic Board, however, contends in
its brief that, in context, the second and
third sentences are confusing and do not
permit such an isolating focus. In particular, it argues that a reading of Section
61-4-9.2(B) that addresses the first two
sentences as establishing the Chiropractic
Board’s authority to develop and approve
formularies and the third sentence as limiting that authority does not make sense
and renders statutory language duplicative
or surplusage.
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{21} In order to address these arguments, we must consider the other types
of drugs the Legislature listed in the third
sentence. Because the Chiropractic Physician Practice Act does not define these
terms, we look elsewhere for guidance.
See Janet, 2013-NMCA-037, ¶ 11 (“The
statute itself does not define [the term],
so we look to case law and other statutes
for guidance.”). “Dangerous drugs” and
“controlled substances” are defined in
the context of laws that similarly address
regulated drugs. “Controlled substances”
are defined in the schedules of the Controlled Substances Act, NMSA 1978, §§
30-31-1 to -41 (1972, as amended through
2011), and are subject to regulation by the
Pharmacy Board. Controlled substances
are also defined in the New Mexico Drug,
Device and Cosmetic Act by reference to
the Controlled Substances Act. NMSA
1978, § 26-1-2(D) (2011). As defined in the
New Mexico Drug, Device and Cosmetic
Act, a “drug” is an article “recognized in
an official compendium” that is “intended
for use in the diagnosis, cure, mitigation,
treatment or prevention of disease.” Section 26-1-2(E)(1), (2). Also as defined in
the New Mexico Drug, Device and Cosmetic Act, a “dangerous drug” is
a drug, other than a controlled
substance enumerated in Schedule I of the Controlled Substances
Act, that because of a potentiality
for harmful effect or the method
of its use or the collateral measures necessary to its use is not
safe except under the supervision
of a practitioner licensed by law
to direct the use of such drug.
Section 26-1-2(F).
{22} These definitions were in place when
the Legislature amended Section 61-4-9.2
in 2009. Although the Legislature did not
specifically refer to the New Mexico Drug,
Device and Cosmetic Act or the Controlled Substances Act for definitions, as it
could have, it had already linked the New
Mexico Drug, Device and Cosmetic Act to
the Chiropractic Physician Practice Act by
mandating coordination between the Chiropractic Board and the Pharmacy Board,
which oversees the operation of the New
Mexico Drug, Device and Cosmetic Act.
See NMSA 1978, § 61-11-6(1), (9) (2005).
Moreover, we believe that the Legislature
intended the use of the New Mexico Drug,
Device and Cosmetic Act and Controlled
Substances Act definitions to apply because it used the terms “dangerous drugs”
and “controlled substances” that are clearly
defined in those acts. “Controlled substance” does not have meaning without
reference to the Controlled Substances
Act that defines it. See Gutierrez v. J &
B Mobile Homes, 1999-NMCA-007, ¶ 8,
126 N.M. 494, 971 P.2d 1284 (applying “a
common sense interpretation to the plain
language of the statute”). In addition, when
interpreting a statute, we seek to harmonize statutes involving the same or similar
subject matter. See Sinclaire v. Elderhostel,
Inc., 2012-NMCA-100, ¶ 14, 287 P.3d 978
(stating that “[w]hen two statutes cover
the same subject matter, we attempt to
harmonize and construe them together in
a way that facilitates their operation and
the achievement of their goals” (alteration
in original) (internal quotation marks and
citation omitted)). Under the definition
of “dangerous drugs” in the New Mexico
Drug, Device and Cosmetic Act, we agree
with the Pharmacy and Medical Boards
that a drug that is administered by injection falls within the definition because it is
not safe unless it is administered under the
supervision of an appropriately licensed
practitioner.
{23} Returning to the Chiropractic
Board’s arguments, it first contends that
if the Legislature had intended the third
sentence to be a limitation of the second
sentence, “it would have been clearer if
the [L]egislature had expressly added the
phrase ‘shall be submitted to the [Pharmacy Board] and Board of Medicine’ to
the end of the second sentence.” The Legislature had used this approach in 2008 and
removed this language in 2009. While this
approach may have more directly stated
the legislative intent, we do not second
guess the approach the Legislature utilized.
See Marckstadt v. Lockheed Martin Corp.,
2010-NMSC-001, ¶ 31, 147 N.M. 678,
228 P.3d 462 (stating that this Court “will
not second-guess” the method chosen by
the Legislature). Although the adopted
approach may be more indirect because
of the need to reference the New Mexico
Drug, Device and Cosmetic Act, we do
not consider it to be ambiguous. See Bd.
of Educ. for Carlsbad Mun. Sch., 1999NMCA-156, ¶ 18 (“A statute is ambiguous
if reasonably informed persons can understand the statute as having two or more
meanings.”). We also do not consider this
approach to render the second sentence of
Section 61-4-9.2(B) surplusage. As we have
expressed, the second sentence granted
the authority to the Chiropractic Board
to adopt a formulary for drugs administered by injection, and the third sentence
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required the Chiropractic Board to submit
such a formulary to the Pharmacy and
Medical Boards for approval.
{24} The Chiropractic Board’s second
argument asserts that, under a construction in which the third sentence of
Section 61-4-9.2(B) limits the second
sentence, the legislative use of the phrase
“drugs for administration by injection”
in the third sentence of Section 61-49.2(B) duplicates the use of the term
“[d]angerous drugs” earlier in the same
sentence. We agree that there is overlap
in the language because, as we have
discussed, the term “dangerous drugs”
includes drugs for administration by
injection. Nevertheless, we do not consider this overlap to confuse the legislative intent. See Bd. of Educ. for Carlsbad
Mun. Sch., 1999-NMCA-156, ¶ 16 (“The
primary purpose of statutory interpretation is to ascertain and give effect to
legislative intent.” (internal quotation
marks and citation omitted)). Drugs
administered by injection are a subset of
“dangerous drugs.” While the Legislature
could have excluded drugs administered
by injection, or used other language such
as “dangerous drugs, including drugs
for administration by injection,” we do
not believe that separately listing such
drugs alters the legislative intent. We
could not construe the separate listing as
surplusage unless we attached a different
meaning either to “drugs for administration by injection” or to “dangerous
drugs.” However, we do not perceive
a meaning that is different from those
we have discussed for either term, and
the Chiropractic Board has not asserted
that there is a different meaning for the
terms.
{25} The Chiropractic Board’s oral
argument position does not affect our
analysis because we read the third sentence of Subsection B as an overarching
requirement with respect to the formularies required by the first two sentences.
“[S]ubstances not listed in Subsection
A” is but a single category requiring approval. The language used distinguishes
the category from the substances listed
in Subsection A. But, particularly in
view of the interchangeability of the
terms “drugs” and substances” in the
Chiropractic Physician Practice Act, we
do not consider the use of the language
to have greater meaning. To the extent
that “substances in Subsection A” are
also “dangerous drugs” or “drugs administered by injection,” they fit within the
32
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specific categories identified in the third
sentence of Subsection B.
{26} When we thus read Section 61-4-9.2
both in connection with the history and
other provisions of the Chiropractic Physician Practice Act and the definitions of the
New Mexico Drug, Device and Cosmetic
Act, which is a similar exercise of the Legislature’s police power to protect the health
and safety of its citizens, the meaning of
the third sentence of Section 61-4-9.2(B)
is clear. In creating the advanced practice
chiropractic physician, the Legislature’s
primary purpose was to protect the public
health and safety. Seemingly because of
the existing authority and purpose of the
Pharmacy and Medical Boards to protect
the public health and safety concerning the
prescribing and administering of drugs,
the Legislature mandated a coordinated
effort among the Chiropractic, Pharmacy,
and Medical Boards to fulfill its purpose.
It linked the Chiropractic Board to the
Medical Board in developing a special
educational requirement for advanced
practice chiropractic physicians. It further
required, in Section 61-4-9.2(B), that the
Pharmacy and Medical Boards approve
the use of dangerous drugs and drugs for
administration by injection, among others. The Legislature has adopted similar
coordinated efforts for other health professionals. See NMSA 1978, Section 61-917.2(B) (2002) (requiring the State Board
of Psychologist Examiners and the Board
of Medical Examiners to jointly develop
guidelines concerning a psychologist’s
prescribing of psychotropic medication);
NMSA 1978, Section 61-3-23.3(E) (2001)
(requiring the Board of Nursing to develop
a formulary for prescriptive authority of
certified registered nurse anesthetists in
collaboration with the Board of Medical
Examiners).
{27} In 2008, the legislative language
left no room to question the need for the
Pharmacy and Medical Boards to approve
the Chiropractic Board’s formularies.
Although the 2009 amendment modified
the language of Section 61-4-9.2, we do not
believe that it modified the Legislature’s
mandate that the Pharmacy and Medical
Boards approve the Chiropractic Board’s
formularies that it considered necessary
for the protection of the public health and
safety. In 2009, the Legislature relaxed its
requirement that the Chiropractic Board
submit all formularies to the Pharmacy
and Medical Boards for approval. However, using terms with which it was familiar
because of their use in the New Mexico
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Drug, Device and Cosmetic Act and the
Controlled Substances Act, the Legislature
required approval for, among other drugs
and substances, dangerous drugs. By using
this term, the Legislature intended to follow the established definition in the New
Mexico Drug, Device and Cosmetic Act.
Otherwise, the Legislature would have
created an ambiguity, or worse, a new,
conflicting definition, a result that we do
not believe that it intended. See Bd. of Educ.
for Carlsbad Mun. Sch., 1999-NMCA-156,
¶ 18 (“A statute is ambiguous if reasonably
informed persons can understand the
statute as having two or more meanings.”).
{28} In summary, we read Section 61-49.2(B) to authorize the Chiropractic Board
to develop and approve formularies to
permit an advanced practice chiropractic
physician to prescribe and administer the
substances listed in Subsection A. The
formularies may include both topical and
oral administration and administration
by injection. However, the Chiropractic
Board must submit its formularies to the
Pharmacy and Medical Boards for approval to the extent that the formularies
include dangerous drugs, as defined in the
New Mexico Drug, Device and Cosmetic
Act. As defined in the New Mexico Drug,
Device and Cosmetic Act, dangerous
drugs include drugs for administration by
injection.
Re-Punctuation
{29} The Chiropractic Board differs with
this interpretation and would have us repunctuate the third sentence of Section
61-4-9.2(B) to adopt what it argues is the
legislative purpose. According to the Chiropractic Board, Dr. Stephen Perlstein and
Dr. Robert Jones, proponents of the 2009
amendment, testified at the rulemaking
hearing that the intent of the 2009 amendment was to distinguish natural substances
from all others and that there was no debate as to whether the Chiropractic Board
had oversight over the natural substances.
These natural substances are the ones listed
in Subsection A. The proponents intended
the amendment to enable the Chiropractic
Board to oversee the dispensing of the
Subsection A substances without approval
of the Pharmacy Board and the Medical
Board. They believed that they had worked
out the third sentence to read: “Dangerous
drugs or controlled substances and drugs
for administration by injection not listed
in [Subsection] A shall be submitted to
the [Pharmacy Board] and the [Medical
Board] for approval.” The Chiropractic
Board contends in this appeal that this
Advance Opinions
interpretation is consistent with the second sentence that allows it to develop a
formulary for the substances of Subsection A to be administered by injection
without approval by the Pharmacy and
Medical Boards. Dr. Perlstein testified at
the rulemaking hearing that a drafter at the
Legislative Council Service modified this
language by placing a comma after “dangerous drugs or controlled substances”
that set off “dangerous drugs or controlled
substances” and changed the meaning of
the intended language.
{30} The Chiropractic Board suggests
two ways in which this Court could alter
the third sentence of Section 61-4-9.2(B)
to achieve the substance that it contends
was intended. First, it suggests that the
emphasis of the third sentence should be
on the language “not listed in Subsection
A” such that “not listed in Subsection A”
modifies all three items covered in the
sentence, “[d]angerous drugs or controlled
substances,” “drugs for administration by
injection,” and “substances.” To capture
this emphasis, the Chiropractic Board
suggests that we modify the third sentence
to delete the comma after “controlled substances” and insert “and” in its place. The
suggested sentence would read:
Dangerous drugs or controlled
substances and drugs for administration by injection and substances not listed in Subsection A
of this section shall be submitted
to the [Pharmacy Board] and the
[Medical Board] for approval.
Alternatively, the Chiropractic Board
suggests that we re-punctuate the third
sentence to add a comma before and after
“not listed in Subsection A of this section”
so that “not listed in Subsection A of this
section” will modify all other items listed
in the sentence. The sentence would thus
read:
Dangerous drugs or controlled
substances, drugs for administration by injection and substances,
not listed in Subsection A of this
section, shall be submitted to
the [Pharmacy Board] and the
[Medical Board] for approval.
{31} We find the Chiropractic Board’s
suggestions to be problematic for four
reasons. First, it is not the realm of this
Court to re-write a statute to comport with
our opinion as to the manner it should
be interpreted. See Martinez v. Sedillo,
2005-NMCA-029, ¶ 7, 137 N.M. 103, 107
P.3d 543 (“We will not rewrite a statute.”).
The Chiropractic Board relies on a single
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case, Roswell, 1942-NMSC-011, ¶ 4, 45
N.M. 116, 112 P.2d 505, to support its
position. In that case, our Supreme Court
observed from the face of a city ordinance
that a word was incorrectly used. Id. ¶ 2. It
considered the error to be clerical and substituted a word and a comma that was also
used in a parallel clause in the ordinance.
Id. As the Court pointed out, “[w]hen the
ordinance is read as a whole, there can be
no question as to its intended meaning.”
Id. ¶ 3. In this case, there is no apparent
clerical error in the Section 61-4-9.2(B) as
written that frustrates the intended meaning.
{32} Second, the Chiropractic Board
rests its argument on the testimony of Drs.
Perlstein and Jones concerning the Legislature’s intent in amending Section 61-4-9.2.
New Mexico courts look primarily to the
legislation itself to ascertain legislative
intent. Regents of the Univ. of N.M. v.
N.M. Fed’n of Teachers, 1998-NMSC-020,
¶ 30, 125 N.M. 401, 962 P.2d 1236. As a
general rule, the Legislature “speaks solely
through its concerted action as shown by
its vote.” U.S. Brewers Ass’n, Inc. v. Dir. of
the N.M. Dep’t of Alcohol Beverage Control,
1983-NMSC-059, ¶ 9, 100 N.M. 216, 668
P.2d 1093 (emphasis, internal quotation
marks, and citation omitted). Although
contemporaneous documents presented to
the Legislature or statements of legislators
made while legislation is pending may be
considered to bear upon legislative intent,
our courts do not generally consider statements of legislators or others after legislation has passed. State ex rel. Helman v.
Gallegos, 1994-NMSC-023, ¶ 35, 117 N.M.
346, 871 P.2d 1352; Claridge v. N.M. State
Racing Comm’n, 1988-NMSC-056, ¶¶ 24,
28, 107 N.M. 632, 763 P.2d 66. Moreover,
Drs. Perlstein and Jones testified at the
rulemaking hearing about their intent as
proponents of the 2009 amendment, not
about the Legislature’s intent.
{33} Third, notwithstanding the testimony of Drs. Perlstein and Jones, the Chiropractic Board asks that we re-write Section
61-4-9.2(B) to adopt a meaning that was
not clearly the intent of the Legislature. As
we have earlier discussed, the history and
background of the Chiropractic Physician
Practice Act support the requirement that
the Pharmacy and Medical Boards approve
formularies that contain dangerous drugs.
{34} Last, the Chiropractic Board’s suggested alterations to the third sentence
do not persuade us that the Legislature
intended Pharmacy and Medical Board
approval to apply only to substances not
listed in Subsection A. In its first suggestion, the words “not listed in Subsection
A of this section” are not separated from
the immediately previous word “substances” so as to indicate that they refer
to any items other than “substances.” See
Hale v. Basin Motor Co., 1990-NMSC068, ¶ 9, 110 N.M. 314, 795 P.2d 1006
(stating the doctrine of the last antecedent as “[r]elative and qualifying words,
phrases, and clauses are to be applied to
the words or phrase immediately preceding, and are not to be construed as
extending to or including others more
remote” (internal quotation marks and
citation omitted)). In the alternative
suggestion, the word “substances” placed
before a comma and the words “not listed
in Subsection A of this section” do not
make sense without a further descriptor
or modifier. Each of the other references
to drugs or substances in the sentence is
more specifically described.
THE ICA’S ARGUMENTS
CONCERNING THE CHIROPRACTIC
BOARD’S REGULATIONS
{35} The ICA raises additional arguments
on appeal concerning the Chiropractic
Board’s regulations. It contends that the
Chiropractic Board’s adoption of the
2011 formulary violated its own regulations, that the regulations require Medical
Board approval for training programs for
advanced practice chiropractic physicians,
and that the Chiropractic Board’s prescribed training does not meet statutory
and regulatory requirements. We consider
the ICA’s arguments in turn.
{36} As to the adoption of the 2011
formulary, the ICA points to 16.4.15.7(E)
NMAC, 16.4.15.8(A) NMAC (7/23/2010),
and 16.4.15.8(H) NMAC. Regulation
16.4.15.7(E) of the Administrative Code
defines “[c]hiropractic formulary” as
“those substances that have been approved
for use by the chiropractor registered in
advanced practice by the [Chiropractic
Board] and as by statute with consensus
between the [Medical Board] and [Pharmacy Board].” Regulation 16.4.15.8(A) of
the Administrative Code provides in part
that actively registered chiropractic physicians “are allowed prescription authority
that is limited to the current formulary
as agreed on by the [Chiropractic Board]
and as by statute, by the [Pharmacy Board]
and the [Medical Board].” Regulation
16.4.15.8(H) of the Administrative Code
addresses amendments to advanced
practice formularies. It permits the Chiropractic Board to review the formularies
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33
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annually for necessary amendments and
further provides that all amendments “be
made following consensus of the [Medical Board], [the Pharmacy Board] and
the [Chiropractic Board].” 16.4.15.8(H)
NMAC. The ICA argues that these regulations read together “all provide that any
expansion of the chiropractic formulary
must be made by consensus of all three
boards.”
{37} On their face, 16.4.15.7(E) NMAC
and 16.4.15.8(A) NMAC do not go as far as
the ICA argues. Both require the involvement of the Pharmacy and Medical Boards
“as by statute.” By this express language, the
regulations do not require any more than
what is required by statute.
{38} Regulation 16.4.15.8(H) of the Administrative Code requires the consensus
of the Chiropractic Board and the Pharmacy and Medical Boards for an amendment
to advanced practice formularies. The
adoption of the 2011 formulary amended
the previous formulary. 16.4.15.11 NMAC.
Although it appears that the Chiropractic
Board may be acting in a manner that is
inconsistent with this regulation, we need
not address this argument in view of our
holding that the Chiropractic Board is
statutorily required to obtain the Pharmacy and Medical Board’s approval of the
formulary to the extent it includes dangerous drugs.
{39} The ICA’s remaining arguments
concern the Chiropractic Board’s adop-
34
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tion of 16.4.15.12 NMAC, the training
rule pertaining to the educational requirements of advanced practice chiropractic
physicians. The Medical Board objected
to 16.4.15.12 NMAC, stating that because
the hours of training do not appear to be
sufficient, it would “continue to disapprove
all injectables until adequate training is
proposed and agreed to by the” Medical
Board. Section 61-4-9.1(D) requires an
advanced practice chiropractic physician
to have “completed a minimum of ninety
clinical and didactic contact course hours”
in specified subjects “from an institution of
higher education approved by the [Chiropractic Board] and the [Medical Board].”
Regulation 16.4.15.7(D) of the Administrative Code similarly requires that “[a]ny
educational institution allowed to provide
clinical and didactic programs credited
toward advanced practice certification
must have concurrent approval from the
[Medical Board] and the [Chiropractic
Board].” Regulation 16.4.15.8(B)(2) of the
Administrative Code provides that a chiropractic physician applying for advanced
chiropractic physician registry must submit documentation of the completion of
the specified ninety hours of education
“provided by an institution approved by
the [Medical Board] and the [Chiropractic
Board].” We find no fault with the training
rule.
{40} These provisions require the Medical
Board to approve the institutions of higher
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
education that provide the minimum of
ninety specified educational hours to an
advanced practice chiropractic physician. They do not give the Medical Board
authority to decline any other type of approval. The ICA’s position that the Medical
Board could object to the formulary because it did not believe that the educational
rule provided sufficient training is not
supported by the statute and regulations
it cites. As a result, the approval of higher
education requirements by the Medical
Board will not translate into a justification to reject separate “drug or substance”
formularies proposed by the Chiropractic
Board. The issues are distinct and we reject
this argument by the ICA.
CONCLUSION
{41} We hold that the 2011 formulary
that includes minerals and additional
drugs to be administered by injection
violates Section 61-4-9.2(B)’s requirement
that the formula receive approval from the
Pharmacy Board and the Medical Board.
We find no fault with the training rule. Accordingly, we set aside the 2011 formulary.
{42} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
WE CONCUR:
TIMOTHY L. GARCIA, Judge
J. MILES HANISEE, Judge
Advance Opinions
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Certiorari Denied, February 12, 2014, No. 34,508
From the New Mexico Court of Appeals
Opinion Number: 2014-NMCA-047
Topic Index:
Appeal and Error: Preservation of Issues for Appeal
Attorneys: Effective Assistance of Counsel
Criminal Law: Criminal Sexual Penetration; and Sexual Offences
Criminal Procedure: Effective Assistance of Counsel; Guilty Plea;
and Motion in Limine
Evidence: Impeachment; and Prior Convictions of Judgments
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BRAD ALLEN,
Defendant-Appellant
Docket No. 32,066 (filed December 16, 2013)
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
THOMAS J. HYNES, District Judge
GARY K. KING
Attorney General
Santa Fe, New Mexico
M. ANNE KELLY
Assistant Attorney General
Albuquerque, New Mexico
for Appellee
Opinion
Timothy L. Garcia, Judge
{1} The primary issue before us concerns
the preservation of error regarding the
admissibility of a prior conviction for impeachment purposes when that prior conviction arose after the entry of an Alford
plea in one of a related series of criminal
charges against Defendant. During pretrial motions in limine, the district court
ruled that the related prior conviction was
admissible as impeachment evidence, and
Defendant chose to preemptively address
the prior conviction head-on during direct
examination. We conclude that the district
court did not err in making the evidentiary
rulings that are challenged by Defendant.
Defendant also makes a claim for ineffective assistance of counsel that was not
sufficiently developed at trial. We affirm.
FACTS
{2} Defendant was charged with criminal
sexual contact and attempted criminal
JORGE A. ALVARADO
Chief Public Defender
ALLISON H. JARAMILLO
Assistant Appellate Defender
Santa Fe, New Mexico
for Appellant
sexual contact of several minors. The trial
with respect to each individual minor was
separated from the other related trials, but
all of Defendant’s charges remained before
the same judge. In the first prosecution
(2010-1063-6), Defendant entered into a
plea pursuant to North Carolina v. Alford,
400 U.S. 25 (1970). The district court accepted the plea but stated it would defer
any action in the first case until the resolution of the second case. The memorandum
of plea and order filed in the district court
stated that the district court accepted “Defendant’s plea and decline[d] at th[at] time
to adjudicate guilt.”
{3 Prior to trial in the second prosecution
(2011-293-6), the State filed a motion for
an adjudication of guilt in the first prosecution. The State expressly indicated its intention to inquire as to whether Defendant
was a convicted felon, should Defendant
choose to testify in the second prosecution.
During the hearing on the State’s motion,
Defendant informed the district court that
he had not yet been adjudicated guilty on
his plea and argued that it would be inappropriate for the State to impeach Defendant’s testimony with his plea at that time.
The court explained that it had accepted
Defendant’s plea after the State laid the
factual basis for its case against Defendant
and did not withhold adjudication of guilt.
Instead, the court had chosen not to take
further action in the case until the other
charges against Defendant were resolved.
The district court then entered an adjudication of guilt against Defendant and
expressly stated that, “[t]he conviction will
be available for impeachment purposes at
the trial” in the second prosecution.
{4}The morning of trial in the second
prosecution, defense counsel renewed
its objection to the use of the conviction
from the first prosecution to impeach
Defendant’s testimony. The State clarified
that it intended to ask Defendant only if
he had been convicted of a felony without
requesting that Defendant identify the precise felony for which he was convicted. The
court agreed that this limitation would be
a fair “compromise,” and defense counsel
offered no further objections.
{5} At trial, Defendant testified on his own
behalf. Defense counsel’s first question to
Defendant was, “You’re a convicted felon,
aren’t you, sir?” Defendant responded,
“Yes, sir.” At the very end of the prosecutor’s cross-examination of Defendant, the
prosecutor asked Defendant if he was a
convicted felon. Defendant repeated that
he was a convicted felon. The State again
mentioned Defendant’s prior conviction
during its discussion of credibility in closing argument.
{6}Following trial, the jury convicted
Defendant on one count of CSCM and
was deadlocked on the other count of
CSCM. Defendant then entered into another Alford plea agreement to dispose of
all of the remaining counts against him.
The plea agreement was conditioned on
Defendant’s ability to appeal the jury verdict. If Defendant’s appeal is successful,
he will be allowed to withdraw his guilty
plea. Defendant timely filed an appeal of
his conviction.
DISCUSSION
{7} Defendant appeals the district court’s
adjudication of guilt in the first prosecution, as it applies to the second prosecution, and the jury verdict in the second
prosecution. On appeal, Defendant argues
that it was error to permit impeachment
with his prior conviction and that his
counsel was ineffective in failing to engage
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35
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in a redirect examination of a witness. We
will address each argument in turn.
A.Impeachment With Defendant’s
Alford Plea
1.Preservation
{8}We first address Defendant’s assertion that the district court erred when it
allowed the State to impeach Defendant’s
credibility during the second prosecution
with evidence of his Alford plea in the first
prosecution. Before trial the prosecution
gave notice that, if Defendant chose to
testify, it intended to impeach him with
evidence of his Alford plea from the first
prosecution. The district court granted the
State’s motion regarding impeachment and
allowed the State to use Defendant’s conviction in the first prosecution if Defendant
testified in the second prosecution. After
the district court granted the State’s motion
to allow it to use Defendant’s conviction
in the first prosecution for impeachment
proposes, Defendant made a tactical decision to lessen its impact by preemptively
disclosing the prior conviction when he
testified on direct examination. See Ohler v.
United States, 529 U.S. 753, 762-63 (2000)
(Souter, J., et al., dissenting) (addressing
the strategic waiver of prior objections by
offering the evidence preemptively before
the evidence is used by the state). The State
contends that Defendant’s tactical decision
to preemptively reveal his prior conviction
would now prevent the issue from being
reviewed on appeal.
{9}“The primary purposes for the preservation rule are: (1) to specifically alert
the district court to a claim of error so that
any mistake can be corrected at that time,
(2) to allow the opposing party a fair opportunity to respond to the claim of error
and to show why the district court should
rule against that claim, and (3) to create
a record sufficient to allow this Court
to make an informed decision regarding
the contested issue.” Kilgore v. Fuji Heavy
Indus. Ltd., 2009-NMCA-078, ¶ 50, 146
N.M. 698, 213 P.3d 1127. Defendant here
did so, objecting to the State’s in limine
notice of its intent to use his plea for impeachment purposes and again, prior to
trial. See State v. Thang, 41 P.3d 1159, 1168
(Wash. 2002) (en banc). Preservation for
review requires a fair ruling or decision by
the district court in order to provide the
lower court with an opportunity to correct any mistake, give the opposing party
an opportunity to demonstrate why the
district court should rule in its favor, and
create a record that enables this Court to
make informed decisions. State v. Janzen,
36
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2007-NMCA-134, ¶ 11, 142 N.M. 638, 168
P.3d 768. The State argues that this error
was strategically waived and could not be
preserved because the district court had
no opportunity to make a ruling on the
application of Ohler or the desire by the
defense to mitigate the effect of the conviction’s introduction during the second
prosecution. We conclude that Defendant
has not waived his right to appeal by the
preemptive use of his prior conviction in
the second prosecution.
{10}In Ohler, the United States Supreme
Court concluded that a defendant waives
his appellate standing concerning admission of prior convictions when he preemptively introduces the prior convictions
after an unfavorable ruling on a motion in
limine. 529 U.S. at 760. Ohler notes that
“any possible harm flowing from a district
court’s in limine ruling permitting impeachment by a prior conviction is wholly
speculative” because such orders may be
revisited at any time during trial. Id. at
759 (alteration, internal quotation marks,
and citation omitted). A strongly worded
four-justice dissent in Ohler expressed a
concern that the decision rested not on
precedent but on a “commonsense” rule
that did not make sense when applied. 529
U.S. at 761-62 (Souter, J., et al., dissenting).
Because state courts are not bound by the
United States Supreme Court’s interpretation of federal rules of procedure, several
states have now rejected the majority ruling in Ohler. See, e.g., State v. Swanson, 707
N.W.2d 645, 654 (Minn. 2006) (“In light
of our prior decisions on these issues, we
hold that a defendant who testifies about
his convictions on direct examination after
denial of a motion in limine to exclude
those convictions has not forfeited the
opportunity to appeal the admissibility
of those prior convictions.”); State v. Gary
M.B., 2004 WI 33, ¶ 17, 676 N.W.2d 475
(“The Court’s formulation of the strategic
waiver rule in Ohler is contrary to the
approach Wisconsin courts have utilized.
Finally, as the dissent recognized in Ohler,
the majority’s holding is against the great
weight of academic authority.”); State v.
Daly, 623 N.W.2d 799, 801 (Iowa 2001)
(“Moreover, the rule of waiver is contrary
to established precedent in this state.”). In
rejecting Ohler, other courts have reasoned
that a district court is fully aware of the
proposed evidence and law when it rules
on such evidence in limine and that it is
a poor trial tactic for defense attorneys
to wait for the prosecution to introduce
such evidence on cross-examination.
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State v. Keiser, 807 A.2d 378, 387-88 (Vt.
2002); Thang, 41 P.3d at 1167-68; Daly, 623
N.W.2d at 801. Given the nature of this
tactical dilemma, a defendant is allowed
to appeal a district court’s preliminary
ruling even after preemptively admitting
prior bad acts or convictions before they
are used against him/her by the state. See
Thang, 41 P.3d at 1168 (“A defense lawyer
who introduces preemptive testimony only
after losing a battle to exclude it cannot be
said to introduce the evidence voluntarily.
Waiver is the voluntary relinquishment of
a right.”).
{11} Although the State’s position is well
reasoned and in accord with numerous
state and federal jurisdictions, New Mexico precedent permits a defendant to both
pull the string as a preemptive measure
and preserve evidentiary issues for appeal
if the district court has made a prior ruling
regarding the admissibility of the evidence.
See State v. Zamarripa, 2009-NMSC-001,
¶ 50, 145 N.M. 402, 199 P.3d 846 (“There
is no waiver where a defense attorney, his
or her original objection rejected by the
court, determines to ‘make the best of a
bad situation’ and argues the improperly
admitted evidence in the client’s favor.”
(citation omitted)); Sayner v. Sholer, 1967NMSC-063, ¶ 6, 77 N.M. 579, 425 P.2d 743
(“The court having already overruled the
proper objection . . . , counsel was placed in
the rather unenviable position of having to
make the best of a bad situation. This was
not a waiver.” (internal quotation marks
and citation omitted)); State v. Romero,
2006-NMCA-045, ¶ 16, 139 N.M. 386, 133
P.3d 842 (holding that, where “improper
evidence is admitted over objection, resort
may be had to like evidence without waiving the original error.” (internal quotation
marks and citation omitted)), aff ’d, 2007NMSC-013, 141 N.M. 403, 156 P.3d 694.
We therefore conclude that it makes no
difference who placed the prior conviction
before the jury because this Court can
review any potential error made when the
district court ruled that it would allow the
State to use the prior conviction evidence
to impeach the Defendant’s credibility.
{12} We are compelled by our New
Mexico precedent to reach a result contrary to the majority opinion in Ohler.
Consistent with other jurisdictions, we
hold that we may consider the admissibility of criminal convictions for impeachment purposes where the defendant, as
a tactical matter, elects to preemptively
introduce such evidence after having
previously objected to its admissibility
Advance Opinions
and obtained a ruling from the district
court. Zamarripa, 2009-NMSC-001, ¶ 50.
Accordingly, we conclude that Defendant
made a sufficient record to preserve for
appeal his objection to the use of his prior
conviction for impeachment purposes
during the second prosecution. We now
address the merits of Defendant’s appeal.
2.Admissibility of Defendant’s Prior
Conviction
{13} When the district court initially
accepted Defendant’s plea in the first
prosecution, it apparently intended to
postpone any formal adjudication of guilt
until the resolution of the other charges
against Defendant in the second prosecution. But when the State sought an earlier
adjudication so that the first conviction
could be used for impeachment purposes,
the district court made the express decision to adjudicate Defendant guilty in
the first prosecution and permit the State
to impeach Defendant with this specific
conviction in the second prosecution. Defendant asserts that the process used by the
district court was error.
{14} “We review the admission of evidence under an abuse of discretion standard and will not reverse in the absence
of a clear abuse.” State v. Sarracino, 1998NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d
72. “We cannot say the [district] court
abused its discretion by its ruling unless
we can characterize it as clearly untenable
or not justified by reason.” State v. Rojo,
1999-NMSC-001, ¶ 41, 126 N.M. 438, 971
P.2d 829 (internal quotation marks and
citation omitted). Although couched as a
challenge to the entry of evidence in the
second prosecution, Defendant actually
claims that error was committed based
upon the timing of the district court’s entry
of his conviction in the first prosecution.
Defendant’s challenge to the entry of the
conviction resulting from his Alford plea
thus appears to raise a question of law that
we will review de novo. See State v. Lohberger, 2008-NMSC-033, ¶ 18, 144 N.M.
297, 187 P.3d 162 (stating that questions
involving procedural rules are reviewed de
novo). Defendant, however, has provided
this Court with no authority that would
constrain the district court from adjudicating a defendant guilty prior to sentencing,
and we therefore assume that no such
authority exists. See In re Adoption of Doe,
1984-NMSC-024, ¶ 2, 100 N.M. 764, 676
P.2d 1329.
{15} The defenses raised in the second
prosecution turned on Defendant’s credibility, a factor Defendant chose to raise by
http://www.nmcompcomm.us/
testifying. Rule 11-609(A)(1) NMRA permits the impeachment of a witness with a
prior felony conviction. Defendant argues
that a guilty plea should not be viewed as a
conviction for purposes of Rule 11-609 because a defendant can withdraw his or her
guilty plea under certain circumstances.
But this Court has already held that an
adjudication of guilt constitutes a “conviction” for purposes of the rule, even if the
judgment and sentence has not yet been
filed. See State v. Keener, 1981-NMCA-139,
¶ 15, 97 N.M. 295, 639 P.2d 582 (holding
that a jury verdict of guilty constitutes
a conviction for purposes of impeachment under the rule, even though a final
judgment and sentence had not yet been
filed). Keener explained that a conviction
can still be used to impeach a defendant
where a judgment has been entered on a
verdict but it is not final because an appeal
has been taken. Id. Without supporting
authority, we see no reason to treat Defendant’s conviction pursuant to an Alford
plea differently because sentencing was
postponed. A conviction based on a plea
is just as relevant to credibility as a judgment of conviction. See id. ¶ 16. Nothing
in the record indicates that Defendant was
prevented from withdrawing his Alford
plea up until the hearing where the district
court decided to adjudicate the first conviction and use it in the second prosecution. Even after the decision to adjudicate
guilt on the first conviction, Defendant
never attempted to withdraw his Alford
plea prior to sentencing. Therefore, we
hold that the district court’s adjudication of
guilt based on Defendant’s Alford plea was
properly available to the State as impeachment evidence in the second prosecution.
Accordingly, we hold that Defendant has
failed to establish reversible error.
B. Ineffective Assistance of Counsel
{16} Defendant argues that his trial
counsel was ineffective by (1) failing to
engage in redirect examination in order to
rehabilitate Defendant’s testimony, (2) failing during direct examination to ask Defendant whether the complaining witness
had ever been in his shop in her pajamas,
and (3) failing to present evidence that the
shop where the charges originated regarding one of the alleged victims was not set
up for business until September 2009,
four months outside the charging period
in the indictment. “When an ineffective
assistance claim is first raised on direct
appeal, we evaluate the facts that are part
of the record. If facts necessary to a full
determination are not part of the record,
an ineffective assistance claim is more
properly brought through a habeas corpus
petition, although an appellate court may
remand a case for an evidentiary hearing
if the defendant makes a prima facie case
of ineffective assistance.” State v. Roybal,
2002-NMSC-027, ¶ 19, 132 N.M. 657, 54
P.3d 61. Because there is a preference for
habeas corpus proceedings over remand,
“[a] record on appeal that provides a basis
for remanding to the [district] court for
an evidentiary hearing on ineffective assistance of counsel is rare.” State v. Baca,
1997-NMSC-059, ¶ 25, 124 N.M. 333, 950
P.2d 776.
{17} We presume counsel is competent.
State v. Jacobs, 2000-NMSC-026, ¶ 48, 129
N.M. 448, 10 P.3d 127. In order to establish
a prima facie case of ineffective assistance
of counsel, a defendant must demonstrate
that “(1) counsel’s performance was deficient in that it fell below an objective
standard of reasonableness; and (2) that
[the d]efendant suffered prejudice in that
there is a reasonable probability that, but
for counsel’s unprofessional errors, the
result of the proceeding would have been
different.” State v. Aker, 2005-NMCA-063,
¶ 34, 137 N.M. 561, 113 P.3d 384 (internal
quotation marks and citation omitted).
Whether to engage in redirect examination or to ask certain questions on direct
examination are generally matters of trial
strategy. “On appeal, we will not second
guess the trial strategy and tactics of the
defense counsel.” Lytle v. Jordan, 2001NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d
666 (internal quotation marks and citation
omitted). We do not find ineffective assistance of counsel if there is a plausible,
rational trial strategy or tactic to explain
counsel’s conduct. See State v. Bernal,
2006-NMSC-050, ¶ 32, 140 N.M. 644, 146
P.3d 289; Roybal, 2002-NMSC-027, ¶ 21.
{18} As the State points out in its brief,
Defendant’s bare allegations of error
are totally undeveloped, were partially
addressed by other witnesses, or were
never made part of the record at trial.
Defendant did not elaborate or explain
these alleged deficiencies when he filed
his reply brief. As a result, the necessary facts and arguments are not sufficiently developed for review or proper
consideration by this Court. See State
v. Arrendondo, 2012-NMSC-013, ¶ 44,
278 P.3d 517 (declining to review an ineffective assistance claim on direct appeal
where the record is insufficient, without
prejudice to a defendant’s right to make
an adequate record and seek relief in
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
37
Advance Opinions
the context of a post-conviction habeas
corpus proceeding).
{19} Furthermore, even if Defendant
were able to demonstrate that his trial
counsel’s conduct was deficient, based on
the record before us, Defendant has failed
to establish that any of the claimed actions
or inactions prejudiced him. Defendant
has not demonstrated any reasonable
probability that the outcome of his trial
would have been different if trial counsel
had acted differently. See Aker, 2005NMCA-063, ¶ 34. Accordingly, we conclude that Defendant has failed to establish
38
http://www.nmcompcomm.us/
a prima facie case of ineffective assistance
of counsel that would merit remand on
direct appeal.
{20} For these reasons, we hold that Defendant must pursue the issue, if at all, in
a collateral habeas corpus proceeding. See
State v. Martinez, 1996-NMCA-109, ¶ 25,
122 N.M. 476, 927 P.2d 31 (“This Court
has expressed its preference for habeas
corpus proceedings over remand when
the record on appeal does not establish a
prima facie case of ineffective assistance of
counsel.”); see also Baca, 1997-NMSC-059,
¶ 25 (“A record on appeal that provides a
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
basis for remanding to the [district] court
for an evidentiary hearing on ineffective
assistance of counsel is rare. Ordinarily,
such claims are heard on petition for writ
of habeas corpus[.]”).
CONCLUSION
{21} For the foregoing reasons, we affirm
the judgment of the district court.
{22} IT IS SO ORDERED.
TIMOTHY L. GARCIA, Judge
WE CONCUR:
CYNTHIA A. FRY, Judge
LINDA M. VANZI, Judge
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
39
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.
professionalsabroad.org for itinerary details.
Our delegation will undertake a comprehensive study of the Cuban legal system, from the teaching of law, to the
criminal justice and judicial systems; civil and family code; business and commercial rights; and resolving domestic
and international commercial conflicts. CLE credit will not be available.
A parallel program of people-to-people activities will be available for spouses and guests.
For more information, Professionals Abroad, 1-877-298-9677 or www.professionalsabroad.org
New Mexico’s
FREE
Legal Helpline
for Seniors 55+
Legal Resources for
the Elderly Program
Ned Shepherd and Dan Lewis are gratefully
accepting mediation and arbitration referrals.
Rates are $275 per hour for time incurred only.
• Available statewide for
New Mexico residents 55 and
older, regardless of income.
• Free legal advice provided
by experienced Elder Law
attorneys.
505-797-6005
1-800-876-6657
4801 Lang Ave. Suite 200, Albuquerque, NM 87109
P: 505-341-0110 • F: 505-341-3434 • www.allenlawnm.com
40
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
Gratefully accepting referrals in the areas of:
Auto Accidents • Trucking Accidents • Wrongful Death • Slip & Fall
Accidents • Premises Liability • Uninsured Motorist Claims • Insurance
Bad Faith • GAL (minor settlements) • Criminal Defense
1000 Second Street NW
Albuquerque, New Mexico 87102
Tel (505) 242-6267
Fax (505) 242-4339
www.mattvancelaw.com
[email protected]
Member Benefit
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Call 866.376.0950 or visit
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Bar Bulletin - June 11, 2014 - Volume 53, No. 24
41
REMEMBER
Patricia A. Bradley
Attorney at Law
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Call today to reserve your settlement date
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MEDIATION AND SETTLEMENT FACILITATION SERVICES
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in a broad range of legal areas. Reasonable flat fee rates.
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42
E-mail: [email protected]
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
Accepting Specialized
Fiduciary Appointments
as Trustee, Conservator
718 Central Avenue SW
Albuquerque, NM 87102
505-842-8188
[email protected]
MURIEL McCLELLAND
Family Law
SETTLEMENT FACILITATION
SPECIAL MASTER
MEDIATION
ARBITRATION
33 YEARS EXPERIENCE
(505) 433-2081
e-mail: [email protected]
Visit the
State Bar of
New Mexico’s
website
www.nmbar.org
Office Spaces Available!
The Simms Building – 400 Gold Ave SW, Albuquerque
Executive Suites Available May 2014
Pauline A. Fay
Structured Settlement Broker
Structured Financial Associates, Inc.
Tel: 505-922-1254 • [email protected]
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… providing the right solutions through
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Call Brecken or Bo (505) 884-3578
www.petersonproperties.net
ABBREVIATED
SUBMISSION DEADLINES
Due to the 2014 Annual Meeting, July 17-19, the following
advertising submissions for the Bar Bulletin will apply:
Walter M. Drew
Construc)on Defects Expert
July 30, 2014 issue:
Advertising submissions
due July 14, 2014
For more advertising information, contact: Marcia C. Ulibarri
at 505-797-6058 or email [email protected]
40 years of experience
Construc)on-­‐quality disputes
between owners/contractors/
architects, slip and fall, building
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Bar Bulletin - June 11, 2014 - Volume 53, No. 24
43
No need for another associate
Bespoke lawyering for a new millennium
THE BEZPALKO LAW FIRM
Legal Research and Writing
(505) 341-9353
www.bezpalkolawfirm.com
(505) 988-2826 • [email protected]
Classified
Positions
Mid-Level Associate 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 a
minimum of 8-10 years’ 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. Extensive
in state travel is required. Please email letter
of interest and resume, including three professional references and salary requirements,
to [email protected]
Indian Law Attorney
Johnson Barnhouse & Keegan LLP is seeking
an associate attorney with 4+ years’ experience to work in its Albuquerque, New Mexico
office. Applicants must be licensed in a state
jurisdiction, preferably in New Mexico or
California. Position requires experience in
federal Indian law, tribal law, commercial
transactions and litigation. Applicants must
be motivated, hard-working, able to work
independently and as part of a team, and must
be passionate about serving Native American
individuals, tribes, pueblos and their business
enterprises. To apply, submit a cover letter,
resume, three references and a writing sample
to [email protected]
Entry Level Position Available
The Fourth Judicial District Attorney’s Office
in Las Vegas, New Mexico has immediate
openings for an entry level attorney. This
may be the opportunity you’ve been waiting
for. Las Vegas is a small, but historic and artinfluenced community. Please forward your
letter of interest and resume to Richard D.
Flores, District Attorney, P.O. Box 2025, Las
Vegas, New Mexico 87701; e-mail: [email protected]
da.state.nm.us.
44
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] Deadline
for submission of resumes: Open until positions are filled.
Associate Attorney
Chapman and Charlebois, P.C. is seeking an
insurance defense attorney to join our Litigation Team. Duties would include: providing
legal analysis and advice, preparing and filing
legal pleadings and documents, performing
legal research, preparing for and conducting pre-trial discovery, preparing for and
conducting administrative and judicial hearings, civil jury trials and post-trial activities.
Attorney must have 3+ years of experience.
Please submit resume and salary requirements to: [email protected]
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
Family Law Attorney-Full Time
The Law Office of Dorene A. Kuffer, P.C. is a
growing, established Albuquerque family law
firm seeking an attorney with a true passion
for practicing family law. Maybe you’ve been
a solo practitioner and want to focus more
on practicing law vs. managing the business
side? Perhaps you’re working in a firm that
has limited incentives or where you have no
voice? Or you practice family law in another
state and would like to relocate to the Land
of Enchantment? You’ll need at least 5 years’
experience specifically practicing family
law and the ability to work full-time. Visit
www.kufferlaw.com to learn more about our
practice. And please call Susan Dougherty
at 505-924-1000 to discuss the possibilities
in confidence or email [email protected]
Attorney
The Harvey & Foote Law Firm, a plaintiff’s
firm specializing in prosecuting cases involving nursing home abuse and neglect, is
hiring an attorney. The applicant needs to
have excellent research and writing abilities,
be detail-oriented and proactive, and have
excellent computer and communication
skills. Prior litigation experience is helpful,
but not required. This is a full time position,
although half- or three-quarter time may
also be considered. Please send your resume
to [email protected]
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.
Attorney
Walsh, Anderson, Gallegos, Green & Treviño,
P.C., a law firm with offices in New Mexico
and Texas, is seeking an attorney licensed
for two to four years in New Mexico for our
Albuquerque, New Mexico office. Position
involves representing public school districts
with areas of practice including special
education/disability rights and litigation. A
background in special education as well as
public speaking experience and strong interpersonal skills is a plus. Please send resume,
with writing sample, to P.O. Box 2156, Austin,
Texas 78768, or fax to 512-467-9318 or email
to [email protected]
Office of the State Engineer/
Interstate Stream Commission
(OSE/ISC) State of New Mexico
The Litigation & Adjudication Program seeks
two (2) New Mexico licensed attorneys to
work in the Administrative Litigation Unit
to represent the Water Rights Division in administrative hearings and the State Engineer
in appeals, enforcement actions, and other
water rights matters. The positions are located
in Santa Fe. The candidates must have a Juris
Doctorate from an accredited law school &
5 years experience in the practice of law. A
demonstrated interest in water law and experience in litigation, water rights or natural
resources is preferred. Lawyer – Advanced:
job id #2014-02696. Salary range - $43,526
to $77,380. Applications are being accepted
by the State Personnel Office from 5/14/2014
to 6/28/2014. The OSE/ISC is an Equal Opportunity Employer
VA# 13-14-28 Town Attorney
Town of Taos is seeking qualified applicants
for the position of Town Attorney: must possess a license to practice law in the State of
New Mexico; plus other advanced training
in business administration, or public administration; AND should have five years of
progressively responsible legal experience of
which two years’ experience in public government is preferred. Please submit a letter of
interest, a resume, a completed Town of Taos
application and at least three professional
references to 400 Camino De La Placita Taos,
New Mexico 87571. Opened until filled. For
information, visit www.taosgov.com, or call
575-751-2009.
Attorney
Conklin, Woodcock & Ziegler, P.C. is seeking
a full-time experienced attorney (our preference is 3-10 years of experience). We are a
growing nine-attorney civil defense firm that
practices in the following areas: labor and
employment, personal injury, medical malpractice, commercial litigation, civil rights,
professional liability, insurance defense and
insurance coverage. We are looking for a
team player with litigation experience, a solid
academic and work record, and a strong work
ethic. Our firm is AV-rated by MartindaleHubbell. All replies will be kept confidential.
No telephone calls please. Interested individuals should e-mail a letter of interest and
resumes to [email protected]
Attorneys
Attorneys needed for 2 openings. 1 requires
litigation exp. for trials, court hearings, mediations, discovery...2nd attorney, 0-5 yrs exp.
Must be able to multi-task in a high volume,
fast paced reputable, growing law firm rep.
numerous nationwide banking clients. Nice
office in the Journal Center area. Join our
successful and expanding firm! Good benefits
(hol, vac, sick, health, dent, retir. & more).
Submit in conf. cover letter, resume, sal hist
& req to [email protected]
Paralegal or Legal Assistant
Paralegal or legal assistant needed to replace
assistant leaving our office for law school!
Must be bright, consistent, detail-oriented
and team players, with excellent writing and
organizational skills. Full-time position, M-F
8 to 5. See our Mission Statement at www.
ParnallLaw.com. Email cover letter, resume,
references and grade transcripts to [email protected]
ParnallLaw.com.
Legal Secretary/Assistant
Well established commercial litigation firm
seeks to replace valued employee who is to
retire soon. Candidate must have minimum
of 3 years’ experience as legal secretary in
civil litigation/trial work and possess exceptional word processing and computer skills.
Must know court rules and be proficient in
e-filing in local and federal courts. Qualified applicants send your resume to [email protected]
OnSiteHiring.com
Seeking Legal Receptionist/Legal
Assistant
Seeking Legal Receptionist/Legal Assistant for
Law Firm downtown Albuquerque. We are
seeking a reliable, team-player that is quick to
learn and comfortable in a fast-paced environment. Responsibilities will include: Greeting
clients and visitors and answering visitor inquiries; Answering and routing incoming calls
on a multi-line telephone system; Maintaining
and scheduling conference rooms; Ordering
supplies; Distributing mail, faxes and other
deliveries; Performing initial client intakes and
maintain master intake list and follow up with
attorneys on actions taken; Assemble contracts
and client packets for new client; Perform legal,
medical & general research; Special Projects as
assigned. Please submit resume & cover letter
to Sandra Romero, Office Manager at [email protected]
mcginnlaw.com no later than June 13, 2014
Certified Paralegal
Mark W. Taylor & Associates, P.C. Roswell,
NM law firm seeks certified paralegal. Estate
planning, probate, transactional and/or
adoption law experience preferred. Successful
applicant will possess high character and be
always pleasant; organized; detail-oriented;
self-motivated; possessing excellent computer, interpersonal, typing, legal research
and writing skills; able to work well under
pressure in a busy team work environment;
exemplary in document and pleading drafting, client communication, research and
general attorney support; and desirous of being part of a team of dedicated professionals.
Competitive salary DOE and relocation assistance available. Submit confidential letter of
application, resume, salary requirements and
history and reference contact information to
[email protected] or P.O. Box
898, Roswell, NM 88202-0898.
Nurse Paralegal/Paralegal
with Medical Background
Small medical malpractice defense firm in
search of either an experienced nurse paralegal or paralegal with a medical background.
Candidate must have a minimum of 5 years
experience as a paralegal. Qualified applicants may fax resumes to (505) 842-5713,
attention Hiring Partner.
Legal Secretary/Assistant
New Mexico State University has an immediate opening for a full-time legal secretary.
Duties to be performed include those of
an executive administrative assistant and
paralegal work involving a high level of professional responsibility assisting university
counsel and other attorneys. Includes legal
and factual research, conducting investigations or fact-gathering, reviewing and drafting correspondence and legal and non-legal
documents, and conveying sensitive legal
information and follow-up operational advice
to University clientele under administrative
direction of an attorney, as well as routine
office management tasks such as greeting visitors, scheduling appointments, typing or data
entry and answering phones. NMSU offers
a competitive salary and generous benefits
package. To apply for this exciting opportunity and for a complete job description, visit
the NMSU website at http://jobs.nmsu.edu/
postings/18400. You may also contact Liz Ellis at (575) 646-2450 to discuss this position.
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
45
Services
Contract Paralegal
Experienced paralegal with strong background in civil litigation available for freelance
work. Excellent references. [email protected]
gmail.com
Legal Asst/Paralegal Avail for
Contract Work
By the Project From My Home or By the Week
In Your Ofc. 25+ Years Exp: Civil, Business
Lit. [email protected]
Research and Writing Services
You’ve got a pile of documents on your desk
and somewhere at the bottom is a research
and writing project you’ve been putting off.
You have bigger fish to fry, but, you can’t
drop the ball on that one either. That’s where
I come in. I’m a NM licensed attorney with
substantial experience in both criminal and
civil litigation. I provide high caliber results
that are both effective and cost effective.
Contact me by telephone at 937-750-3206 or
via email at [email protected] You
won’t be disappointed.
New Space: Best Location
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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
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fax, internet, janitorial service, copy machine, etc. All of this is
included in the rent of $550 per month. Up
to three offices are available to choose from
and you’ll also have access to five conference rooms, a large waiting area, access to
full library, receptionist to greet clients and
take calls. Call 243-3751 for appointment
to inspect.
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.
46
American Limousine
www.NewMexicoLimos.com
Call 505 242-2229
Office Furniture for Sale
One large dark wood bookcase, three large
wood executive desks with side drawers (with
option to lock), three fabric patterned desk
chairs with adjustable height. If interested
please contact Cristina Mares with Constantine & Associates, P.C. at (505) 244-0011.
Clean Your Car
CLEAN YOUR CAR wash, wax, interior,
Detail “Lite” $80 in/out. Call/text Rich 505917-3113
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620 Roma N.W.
Office Space
One office plus secy space; 500 sq ft; shared
reception area, bathroom/kitchen. 2nd floor,
w/deck/mtn views; walk to courthouse, Railyard. $900/month, incl util. Call 989-8616
or [email protected]
Miscellaneous
You don’t have to manage alone
New Mexico Lawyers and Judges
Assistance Program (NMJLAP) provides
free, confidential assistance to law
students and members of the New
Mexico bench and bar to help identify
and address problems with alcohol,
drugs, depression, and other mental
health issues. NMJLAP assists in reducing
public harm caused by impaired
members of the legal profession and helps improve the health and welfare of its
members by facilitating early intervention and treatment.
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
Help and support are only a phone call away.
Confidential assistance – 24 hours every day.
Judges call 888-502-1289
Lawyers and law students call 505-228-1948 or 800-860-4914
www.nmbar.org/JLAP/JLAP.html
2014 Annual Meeting – Bench and Bar Conference
Justice at Stake
Sponsorship Opportunities
Hyatt Regency Tamaya Resort and Spa
July 17-19, 2014
For information on sponsorship opportunities,
Annual Meeting Program Guide advertising,
or exhibit space contact Marcia Ulibarri
at 505-797-6058 or [email protected]
Bar Bulletin - June 11, 2014 - Volume 53, No. 24
47
2014 ANNUAL MEETING
Twin Warriors Golf Club at The Hyatt Regency Tamaya Resort & Spa
Give-A-Ways • Prizes • Hole-In-One Contest
$375 per team (4/per team) • $99 per individual
Team up with your firm or invite your clients!
All proceeds go to the New Mexico State Bar Foundation.
Tee time: noon, Thursday, July 17 • Shotgun start
Tournament package includes greens fees, cart, bag handling.
Prizes for closest to the pin, longest drive, and hole in one.
To register, go to www.nmbar.org.
Hole sponsorships available for your firm or organization.
For sponsorship information, contact Marcia Ulibarri,
505-797-6058 or [email protected]

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