State v. Gutierrez, 263 P.3d 282

Gutierrez was charged after an April 2005 altercation with multiple counts across two indictments, later joined for trial.
First trial: acquittal on some counts, conviction on one, and a mistrial on remaining counts.
While appealing the first-trial conviction for violating an order of protection, a second trial proceeded on the mistrial counts.
Second trial resulted in convictions on all counts submitted to that jury and a new sentence.
This appeal challenges jurisdiction to retry during an appeal, admissibility of videotaped statements under the Confrontation Clause, and admission of prior bad acts and a restraining order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the district court have jurisdiction to retry unresolved charges while an appeal was pending?	State contends pending appeal did not divest jurisdiction to retry non-final charges.	Gutierrez argues retrial was improper while the first conviction was on appeal.	Yes; district court retained jurisdiction to retry unresolved charges.
Were the videotaped statements testimonial and barred by the Confrontation Clause?	State argues statements were non-testimonial or within ongoing-emergency exception.	Gutierrez asserts videotape violated confrontation rights by admitting testimonial statements.	videotapes were non-testimonial and properly admitted.
Were the 2003 judgment, sentence, and stipulated restraining order admissible under Rule 11-404(B) NMRA?	State contends they proved motive/intent/absence of mistake relevant to aggravated stalking.	Evidence improperly admitted as propensity evidence.	Yes; admissible to prove elements of aggravated stalking and legitimate purposes outweighed prejudice.
Did the claimed cumulative error require reversing the conviction?			No; no reversible error found on individual issues.

State v. Heinsen, 2005-NMSC-035 (NMSC 2005) (jurisdictional review of issues on appeal; de novo standard)
State v. Chavarria, 2009-NMSC-020 (NMSC 2009) (jurisdiction and appeal matters; de novo review)
Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231 (1992) (filing of notice of appeal effects; court divestiture of district court jurisdiction)
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (1982) (jurisdictional significance of appeal; divestiture of district court for appealed issues)
Berman v. United States, 302 U.S. 211 (1937) (final judgment in criminal case means sentence)
Lobato, 2006-NMCA-051 (NMCA 2006) (mistrial/hung jury distinctions; finality and district court jurisdiction)
State v. Massengill, 2003-NMCA-024 (NMCA 2003) (Confrontation Clause non-testimonial evaluation; de novo review)
State v. Soliz, 2009-NMCA-079 (NMCA 2009) (911 transcript statements; de novo review of admissibility)
State v. Mendez, 2010-NMSC-044 (NMSC 2010) (Confrontation Clause rights in testimonial statements; standard)
State v. Romero, 2007-NMSC-013 (NMSC 2007) (non-testimonial vs. testimonial delineation in police questioning)