State v. Whelchel, A-1-CA-36249

Background

Defendant Kevin Whelchel was convicted by a jury of violating an order of protection and sentenced to one year of probation. The Court of Appeals issued a proposed summary disposition to affirm and received Defendant’s memorandum in opposition and motion to amend the docketing statement.
Incident occurred in a Walmart pharmacy area: victim and Defendant encountered each other; victim testified Defendant looked at her, smiled from about 3–4 feet, left, then returned within five to six minutes and again came within the protected distance while she was at the counter.
There was no dispute Defendant knew of the protective order. The jury was instructed that a violation must be knowing (knowledge of the order and of the protected party’s presence within the protected zone).
Defendant relied on store video footage and argued he did not see the victim on return and therefore lacked the requisite knowing violation.
Defendant moved to amend the docketing statement to raise claims that the unredacted protective order (1) prejudicially revealed a prior domestic violence incident, (2) contained a “NO EXCEPTIONS” clause that negated the knowing requirement, (3) prosecutor emphasized those contents improperly, and (4) trial counsel was ineffective for stipulating to admission without redaction.
The Court denied the motion to amend and affirmed conviction, finding sufficient evidence of a knowing violation and no plain error, prejudice, or viable ineffective-assistance claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the evidence that violation was knowing	State: Victim testimony and conduct showed Defendant saw victim, lingered, smiled, left, then returned within protected zone—jury could infer knowledge	Whelchel: Video shows he looked at phone, did not see victim on return, therefore lacked knowledge of her presence	Affirmed: Viewing evidence favorably to verdict, jury could reasonably find Defendant knew he violated the order
Admission of unredacted protective order revealing prior domestic violence	State: Order was necessary to prove elements; reason for order not inflammatory or detailed	Whelchel: Reference to prior domestic violence was propensity and unfairly prejudicial; should have been redacted	Denied: No plain error; mention was not so inflammatory as to create grave doubt about verdict
“NO EXCEPTIONS” language in order undermining knowing requirement	State: Language is relevant to notice that no exceptions existed and supports knowledge element	Whelchel: Clause negates requirement that violation be knowing	Denied: Language is probative of notice; jury instructions properly required knowledge, so no error
Prosecutorial misconduct and ineffective assistance for stipulation to admission	State: Parties stipulated; prosecutor’s use did not inflame jury; counsel may have had strategic reasons	Whelchel: Prosecutor emphasized prejudicial language; counsel ineffective for agreeing to unredacted order	Denied: No prejudice shown; counsel’s strategic choice plausible; ineffective-assistance claim not made out on record

Key Cases Cited

State v. Ramos, 305 P.3d 921 (N.M. 2013) (knowing violation requires knowledge of the protective order and protected party’s presence)
State v. Garcia, 384 P.3d 1076 (N.M. 2016) (appellate court defers to jury credibility and inferences)
State v. Samora, 387 P.3d 230 (N.M. 2016) (sufficiency review views evidence most favorably to verdict)
State v. Rojo, 971 P.2d 829 (N.M. 1999) (disregard evidence supporting acquittal on appeal)
State v. Montoya, 345 P.3d 1056 (N.M. 2015) (contrary evidence supporting acquittal does not require reversal)
State v. Carrillo, 399 P.3d 367 (N.M. 2017) (plain-error standard for unpreserved evidentiary claims)
State v. Stanley, 37 P.3d 85 (N.M. 2001) (standard for excluding evidence as unfairly prejudicial)
State v. Crocco, 327 P.3d 1068 (N.M. 2014) (ineffective-assistance claims often require habeas if record is insufficient)
State v. Hunter, 143 P.3d 168 (N.M. 2006) (strong presumption counsel’s conduct is reasonable trial strategy)
State v. Roybal, 54 P.3d 61 (N.M. 2002) (appellate court will not find ineffective assistance if a reasonable trial tactic explains counsel’s performance)