State v. Webb, 2017 NMCA 77

In February 2013 a hidden USB camera in the victim’s bathroom yielded videos (dated Feb 19 & 22); Defendant was arrested and later charged in Webb I (indictment June 25, 2014) with voyeurism, attempted voyeurism, tampering with evidence, and battery based on those camera videos.
After police custody of a laptop, a September 2014 forensic exam revealed three additional videos (dated Jan 1–30, 2013) saved to a computer Defendant could access; the State indicted anew in May 2015 (Webb II) for two counts of sexual exploitation (manufacture) and one attempted sexual exploitation based on the laptop videos.
The State moved in June 2015 to join Webb I and Webb II; the district court denied joinder (initially for a jurisdictional/peremptory challenge reason) and later denied Defendant’s pretrial motion to dismiss Webb II, finding separate prosecutions permissible.
Defendant sought interlocutory appellate review, arguing mandatory joinder under Rule 5-203(A), prosecutorial forfeiture/abandonment of the laptop-based counts, prejudicial delay, and inefficiency; the Court of Appeals granted the petition.
The Court of Appeals held the offenses in Webb I and Webb II were subject to mandatory joinder (same victim, same location, similar character/part of a single scheme), but concluded the State could move to join post-indictment and pretrial; thus dismissal of Webb II was not required and the district court’s denial of dismissal was affirmed.

Issue	State's Argument	Webb's Argument	Held
Whether offenses in Webb I and Webb II had to be joined under Rule 5-203(A)	Offenses are of similar character/same scheme and thus must be joined	Agreed joinder mandatory but argued State forfeited by not joining at indictment	Joinder was mandatory (cases should have been joined)
Whether the State was barred from prosecuting Webb II because it failed to include those offenses in the original indictment	State may seek joinder post-indictment but pretrial; Gonzales contemplates post-indictment opportunities to join	State’s failure to indict laptop offenses at the outset constituted abandonment, requiring dismissal	Failure to join at indictment does not automatically bar later joinder; State may move to join post-indictment/pretrial
Whether dismissal of Webb II is required as remedy for failure to join earlier	Dismissal unnecessary where State moved for joinder pretrial	Dismissal necessary under Gonzales when prosecution had prior opportunities to join	Dismissal not appropriate; denial of motion to dismiss affirmed
Whether prosecutorial knowledge or unjustified delay mandates dismissal	Rule 5-203 does not require explicit prosecutorial-knowledge element; delay alone insufficient here	Knowledge of laptop videos before Webb I plus delay prejudiced defendant and wasted resources	Prosecutorial knowledge is not a prerequisite under Rule 5-203; here delay did not bar joinder or require dismissal

State v. Gallegos, 152 P.3d 828 (N.M. 2007) (discusses mandatory joinder policy and avoidance of piecemeal prosecutions)
State v. Gonzales, 301 P.3d 380 (N.M. 2013) (compulsory joinder protects against successive trials; failure to join can bar subsequent prosecution in some circumstances)
State v. Paiz, 249 P.3d 1235 (N.M. 2011) (Rule 5-203(A) is mandatory; joinder issues reviewed de novo)
State v. Foster, 75 P.3d 824 (N.M. Ct. App. 2003) (interpretation of Supreme Court rules and application reviewed de novo)
State v. Riordan, 519 P.2d 1029 (N.M. Ct. App. 1974) (examples of offenses being of same or similar character warranting joinder)