State v. Pacheco, 34,759

Background

Defendant (Pacheco) was charged with felony fraud for allegedly inducing Aguilar to release installment obligations on a $43,000 coffee-business sale by presenting altered invoices inflating the value of a trailer and equipment.
Magistrate found probable cause after the affidavit said Defendant admitted altering invoices but claimed Aguilar consented.
At bench trial, after the State’s opening statement and before any witnesses were sworn, Defendant renewed a pretrial Rule 5-601(B) motion to dismiss, arguing undisputed civil filings showed Aguilar did not rely on misrepresentations and suffered no pecuniary loss.
The district court granted the motion, concluding the State could not prove an essential element (pecuniary loss/reliance) as a matter of law based on Aguilar’s civil pleadings and filings.
The State appealed; the Court of Appeals first addressed whether double jeopardy barred appellate review (i.e., whether the dismissal amounted to an acquittal).
The Court of Appeals reversed the dismissal, holding the motion could not be decided without a trial because disputed factual issues (reliance and whether the release was obtained by fraud) remained; because no witness had been sworn, jeopardy had not attached and the State’s appeal was permitted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State may appeal the dismissal (double jeopardy/jeopardy attachment)	Dismissal was procedural, not an acquittal; jeopardy had not attached because no evidence was heard	Dismissal functioned as an acquittal on the merits; appeal barred by double jeopardy	Jeopardy had not attached (no witness sworn); dismissal was procedural and appealable
Whether a district court may grant a Rule 5-601(B) dismissal prior to trial based on related civil filings	District court erred: facts were not undisputed; State could reasonably expect to present evidence (e.g., Aguilar’s trial testimony)	Civil pleadings and UCC-1 showed as a matter of law Aguilar did not rely and suffered no loss, so trial unnecessary	Dismissal was improper; the motion required trial because factual dispute about reliance/receipt of value existed
Whether statements of counsel and civil pleadings are sufficient evidence for dismissal	State: such proffers/related civil filings do not substitute for live evidence and do not resolve disputed factual predicates	Defendant: prior sworn civil statements and filings established undisputed facts defeat State’s proof	Court: statements of counsel are not evidence; related civil filings did not conclusively resolve the factual questions at issue
Whether later repayment or civil claims affect criminal fraud prosecution	State: repayment or civil claims do not negate that something of value was obtained by fraud	Defendant: civil assertions establish no pecuniary harm/reliance	Court: repayment or civil litigation positions do not bar prosecution; civil filings irrelevant to whether release was obtained by fraud

Key Cases Cited

State v. Foulenfont, 895 P.2d 1329 (N.M. Ct. App. 1995) (district court may dismiss indictment pretrial when guilt turns on a purely legal issue and factual predicate is undisputed)
Crist v. Bretz, 437 U.S. 28 (U.S. 1978) (in bench trial, jeopardy attaches when first witness is sworn)
Serfass v. United States, 420 U.S. 377 (U.S. 1975) (policy against multiple attempts to convict; protection against repeated prosecutions)
State v. Baca, 352 P.3d 1151 (N.M. 2015) (distinguishes acquittals based on insufficiency of evidence from procedural dismissals; defendant who seeks termination before resolution may forfeit double jeopardy protections)
State v. Collier, 301 P.3d 370 (N.M. 2013) (''jeopardy has attached'' is the operative inquiry for determining appealability)
State v. Angel, 51 P.3d 1155 (N.M. 2002) (jeopardy in bench trial attaches when court begins to hear evidence)
State v. Gutierrez, 333 P.3d 247 (N.M. 2014) (reiterating policy reasons protecting defendants from repeated prosecutions)
State v. LaPietra, 226 P.3d 668 (N.M. Ct. App. 2010) (pretrial attacks on sufficiency of evidence cannot substitute for trial when factual disputes exist)
State v. Gomez, 70 P.3d 753 (N.M. 2003) (assessing whether the State could reasonably assert availability of additional evidence)
State v. Higgins, 762 P.2d 904 (N.M. Ct. App. 1988) (later repayment does not bar prosecution for obtaining property by fraud)
State v. Garcia, 594 P.2d 1186 (N.M. Ct. App. 1978) (statements of counsel are not evidence)