6/11 - State Bar
Transcription
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 mak@ 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 Amanda.Andrasko@state. nm.us Joni Arends PO Box 31147 Santa Fe, NM 87594-1147 505-986-1973 [email protected] Judith Elizabeth Caruso Law Offices of the Public Defender 505 Marquette Avenue NW, Suite 120 Albuquerque, NM 87102-2159 505-369-3567 505-841-5006 (fax) [email protected] Erin S. Ferreira Sanchez, Mowrer & Desiderio, PC PO Box 1966 115 Eighth Street SW Albuquerque, NM 87102 505-247-4371 505-247-4441 (fax) [email protected] John A. Ford 3471 Cerrillos Road, #63 Santa Fe, NM 87507 David Joseph Jaramillo Jaramillo Touchet LLC 505 Roma Avenue NW Albuquerque, NM 87102 505-200-9454 505-717-1502 (fax) [email protected] Rachel Sarah King 2121 Euclid Avenue, AC 327 Cleveland, OH 44115 Chris G. Lackmann Office of the Second Judicial District Attorney 520 Lomas Blvd. NW Albuquerque, NM 87102-2118 505-222-1121 505-241-1121(fax) [email protected]. nm.us Andrew J. LeMieux Beatty & Wozniak, PC 7440 Creek Road, Suite 250 Sandy, UT 84093 801-676-2313 [email protected] Josephine Lue Thomas J. Henry Injury Attorneys 521 Starr Street Corpus Christi, TX 78401 361-985-0600 361-985-0601 (fax) [email protected] Allison R. Marks N.M. Aging and Long-Term Services Department 2550 Cerrillos Road, 2nd Floor Santa Fe, NM 87505 505-476-4708 505-476-4750 (fax) [email protected] Vincent E. Martinez 911 Second Street NW Albuquerque, NM 87102 505-242-8187 505-842-5939 (fax) [email protected] W. Will Masters III Sprouse Shrader Smith PLLC 703 W. Avenue A Seminole, TX 79360 432-955-0766 866-838-5449 (fax) [email protected] Hon. Stephen D. Pfeffer (ret.) 1922 Fort Union Drive Santa Fe, NM 87505 505-983-7252 [email protected] Peter A. Robertson N.M. Game & Fish Department PO Box 25112 One Wildlife Way (87507) Santa Fe, NM 87504-5112 505-476-8026 505-476-8123 (fax) [email protected] Robert Michael Rohr Kewa Pueblo Health Corporation PO Box 559 85 West Highway 22 Santo Domingo, NM 87052-0559 505-465-3060 505-465-1191 (fax) [email protected] Timothy Lee Rose Office of the Tenth Judicial District Attorney PO Box 1141 300 S. Third Street Tucumcari, NM 88401-1141 575-461-2075 575-461-3966 (fax) [email protected] Richard Shapiro 333 Montezuma Avenue, Suite 10 Santa Fe, NM 87501 505-989-8869 505-982-6122 (fax) [email protected] McKenzie St. Denis Law & Resource Planning Associates, PC 201 Third Street NW, Suite 1750 Albuquerque, NM 87102-3353 505-346-0998 505-346-0997 (fax) [email protected] Maria E. Touchet Jaramillo Touchet LLC 505 Roma Avenue NW Albuquerque, NM 87102 505-200-9454 505-717-1502 (fax) [email protected] Joanna Braswell Zimmerman N.M. Children, Youth & Families Department 2800 Farmington Avenue Farmington, NM 87499 505-327-5316 Joanna.Zimmerman@state. nm.us Robin Dreisigacker 2501 San Pedro NE, Suite 202 Albuquerque, NM 87110 505-886-1806 [email protected] Bar Bulletin - July 11, 2014 - Volume 53, No. 24 17 Clerk’s Certificates Clerk’s Certificate of Withdrawal Effective March 28, 2014: David F. Andres 9201 N. Lake Drive Bayside, WI 53217 Effective April 15, 2014: Ruben S. Cortez 1203 W. Avenue I Lovington, NM 88260 Effective May 2, 2014: Kenneth Henrie 320 Vista Del Ray Vado, NM 88072 Effective March 28, 2014: Paul E. Szurek 4 Fen Way Asheville, NC 28803-3046 Effective May 13, 2014: Robert C. Thompson PO Box 1665 Brockton, MA 02303-1665 Clerk’s Certificate of Change to Inactive Status Effective April 25, 2014: Aygul Charles 701 W. 189th Street, Apt. 1C New York, NY 10040-4040 Effective April 15, 2014: Christopher C. Ritter Lubbock County Courthouse 904 Broadway, Floor 2 Lubbock, TX 79401-3420 In Memoriam As of March 31, 2014: William H. Darden PO Box 399 Raton, NM 87740-0399 18 http://nmsupremecourt.nmcourts.gov. As of April 13, 2014: Thomas E. Jones 2701 San Pedro Drive NE, Rm. 5 Albuquerque, NM 87110 As of April 7, 2014: George Franklin Stevens 8010 Menaul NE Albuquerque, NM 87110-4608 Clerk’s Certificate of Name Change As of May 9, 2014: Genia Lindsey Gonzales f/k/a Genia Lindsey Social Security Administration 201 Third Street NW, Suite 400 Albuquerque, NM 87102 866-964-1298 Ext. 12001 866-580-1211 (fax) [email protected] As of April 9, 2014: Kimberly Ann Norvell f/k/a Kimberly A. Norvell Hicks & Llamas, PC 124 W. Castellano Drive, Suite 100 El Paso, TX 79912 915-834-8400 915-587-8401 (fax) [email protected] As of April 24, 2014: Ashley Roux Trujillo f/k/a Ashley R. Brott PO Box 127 Chimayo, NM 87522-0127 [email protected] As of March 27, 2014: Rosanna C. Vazquez f/k/a Rosanna C. Vazquez de Gonzales PO Box 2435 Santa Fe, NM 87504-2435 505-670-8484 877-879-2434 (fax) [email protected] Bar Bulletin - June 11, 2014 - Volume 53, No. 24 Clerk’s Certificate of Admission On May 8, 2014: Matthew Heape Fadduol, Cluff & Hardy 1115 Broadway Lubbock, TX 79401 806-763-9377 806-763-9378 (fax) [email protected] On May 2, 2014: Siobhan Kathleen Karger Burleson, LLP 112 E. Pecan Street, Suite 700 San Antonio, TX 78205 210-870-2658 210-870-2626 (fax) [email protected] On May 8, 2014: Myron May Office of the Third Judicial District Attorney 845 N. Motel Blvd., 2nd Floor, Suite D Las Cruces, NM 88007 575-524-6370 575-524-6379 (fax) [email protected] On May 8, 2014: Linda M. Melendres Melendres & Melendres, PC 1017 Fifth Street NW Albuquerque, NM 87102 505-243-8310 505-243-9271 [email protected] On May 2, 2014: Haley Winn Murphy 404 Aliso Drive NE Albuquerque, NM 87108 505-373-4089 [email protected] On May 5, 2014: Judith E. Paquin N.M. Children, Youth & Families Department 901 DeBaca Street Carlsbad, NM 88220 575-628-6133 575-887-6437 (fax) [email protected] On May 2, 2014: Micheal Nichole Starks Burleson, LLP 112 E. Pecan Street, Suite 700 San Antonio, TX 78205 210-870-2607 210-870-2626 (fax) [email protected] On May 14, 2014: Verily Stevenson 5116 Dillon Street Denver, CO 80239 801-361-1933 [email protected] Clerk’s Certificate of Reinstatement to Active Status As of May 20, 2014: Dion Killsback PO Box 1682 Dulce, NM 87528-1682 Recent Rule-Making Activity As Updated by the Clerk of the New Mexico Supreme Court Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860 Effective June 11, 2014 Pending Proposed Rule Changes Open for Comment: Comment Deadline Recently Approved Rule Changes Since Release of 2014 NMRA: Effective Date Rules Governing Admission to the Bar 15 102 15 103 15 105 15 107 Admission requirements. Qualifications. Application fees Admission by motion. 06/1/15 06/1/15 06/1/15 06/1/15 To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov. To view recently approved rule changes, visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us. Bar Bulletin - June 11, 2014 - Volume 53, No. 24 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, http://www.nmcompcomm.us/ 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 Bar Bulletin - June 11, 2014 - Volume 53, No. 24 23 Advance Opinions 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 http://www.nmcompcomm.us/ 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- Bar Bulletin - June 11, 2014 - Volume 53, No. 24 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 Advance Opinions 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 http://www.nmcompcomm.us/ 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 Bar Bulletin - June 11, 2014 - Volume 53, No. 24 25 Advance Opinions 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 26 http://www.nmcompcomm.us/ 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 Bar Bulletin - June 11, 2014 - Volume 53, No. 24 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 Advance Opinions 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- http://www.nmcompcomm.us/ 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 http://www.nmcompcomm.us/ 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, Bar Bulletin - June 11, 2014 - Volume 53, No. 24 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 http://www.nmcompcomm.us/ 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. http://www.nmcompcomm.us/ {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 Bar Bulletin - June 11, 2014 - Volume 53, No. 24 31 Advance Opinions 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 http://www.nmcompcomm.us/ 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 Bar Bulletin - June 11, 2014 - Volume 53, No. 24 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 http://www.nmcompcomm.us/ 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 Bar Bulletin - June 11, 2014 - Volume 53, No. 24 33 Advance Opinions 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 http://www.nmcompcomm.us/ 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 http://www.nmcompcomm.us/ 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 Bar Bulletin - June 11, 2014 - Volume 53, No. 24 35 Advance Opinions 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 http://www.nmcompcomm.us/ 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. Bar Bulletin - June 11, 2014 - Volume 53, No. 24 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 credit card processing Recommended by over 60 bar associations! Call 866.376.0950 or visit www.affiniscape.com/nmbar “AffiniPay” is a registered ISO/MSP of Harris, N.A., Chicago, IL. Bar Bulletin - June 11, 2014 - Volume 53, No. 24 41 REMEMBER Patricia A. Bradley Attorney at Law PATENT LEATHER SHOES? They shine! And so does our patent, trademark and copyright work. Our IP legal team is here to help you with… Kameron W. Kramer ✓ Patents, trademarks and copyrights ✓ Trade secrets Diane Albert of Counsel ✓ IP Litigation 505.246.2878 • www.AlbuquerqueBusinessLaw.com SETTLE YOUR FAMILY LAW CASE! Martha Kaser, JD, LISW • A highly trained, results oriented settlement facilitator • Handling simple to highly complex financial and custody matters • Over 30 years experience litigating and facilitating family law cases • Accepting cases statewide in New Mexico Call today to reserve your settlement date NEW MEXICO LEGAL GROUP, PC 505-843-7303 • www.newmexicolegalgroup.com MEDIATION AND SETTLEMENT FACILITATION SERVICES Traci J. Wolf • Bryan T. Fox • Melanie J. Rhodes • Christen E. Hagemann Amy B. Bailey • Kimberly L. Padilla • Randy W. Powers, Jr. • Camille A. Pedrick 88 years of combined experience in successfully resolving disputes in a broad range of legal areas. Reasonable flat fee rates. (505) 268-7000 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] www.sfainc.com … providing the right solutions through outstanding Structured Settlement Services The only Structured Settlement Broker who calls Albuquerque home. • In the heart of Downtown Business District • Next to Federal Court Houses • Recently remodeled • Garage parking • 100 SF-8,157 SF 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 inspec)ons, code compliance, cost to repair, standard of care (505) 982-‐9797 [email protected] 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: rflores@ 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 Sandra@ 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 Kay@ 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 sandra@ 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. civilparanm@ 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 “Build Out” Yourself 1469SF professional office space. Northeast views. Can develop to Tenant’s requirements. Prime Uptown location, high visibility, convenient access to I-40; Bank of America, companion restaurants on-site: Shopping, extensive landscaping, ample parking, fullservice lease. 6% commission to leasing office. Comcast Business Class available at Uptown Square (includes High-Speed Internet, Telephone and Television). Call for more information. Call John Whisenant or Ron Nelson 883-9662 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 NEW MEXICO LAWYERS and JUDGES ASSISTANCE PROGRAM Santa Fe Office Space DWI Prevention 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].