{1} Defendant, Leslie Kerby, was charged with thirteen counts of criminal sexual contact of a minor (“CSCM”) in violation of
{2} In a separate appeal, the State raised issues regarding Defendant’s court-ordered treatment after serving his sentence. When Defendant neared the end of his sentence, he moved the trial judge to alter the terms of his treatment. Defendant sought to attend outpatient treatment, rather than an inpatient treatment facility as originally ordered, since attending an inpatient facility was an impossibility given the long waiting list. The trial judge entered a new order that substituted an outpatient treatment provider; however, the State appealed, arguing inter alia that the victim has a right to participate in this decision. The Court of Appeals agreed with the State, reversing the district court’s order and ordering reinstatement of the original sentence. State v. Kerby, No. 25,891, memorandum op. at 4 (Ct.App. Oct. 19, 2005). Defendant appealed to this Court. After granting Defendant’s Petition for a Writ of Certiorari, we consolidated the two cases.
{3} We hold that the statute of limitations is a substantive right that may only be waived by a defendant after consultation with counsel, and only if the waiver is knowing, intelligent, and voluntary. The testimony at trial established that the four counts which the jury considered involved only events which were barred by the statute of limitations. See NMSA 1978, § 30-1-9.1 applicability note (1987). Defendant’s attorney admitted that he did not consult with Defendant about the statute of limitations because he failed to recognize the issue. For these reasons, Defendant would not have been convicted had the statute of limitations defense been raised before trial. Thus, we vacate Defendant’s convictions.
{4} .Because we find the statute of limitations ‘issue dispositive in vacating Defendant’s convictions, we decline to address the issues Defendant raises regarding the speediness of his trial. Nor do we address the merits of the second appeal addressing the trial judge’s actions in substituting an outpatient treatment provider or the victim’s participation in that decision. We do, however, note that the Court of Appeals erred in holding that the peephole evidence was inadmissible propensity evidence under Rule 11-404(B) NMRA. Kerby,
I. FACTS
{5} Inasmuch as we find the statute of limitations issue dispositive, we review only the facts relevant to that issue. Defendant lived with Victim and Victim’s mother from 1986 to 1988. During this time, Victim was six and seven years old. When Victim became an adult, she alleged that Defendant sexually abused her. On March 28, 2002, Defendant was charged by criminal information with thirteen counts of criminal sexual contact of a minor, a third degree felony. See § 30-9-13(A)(l).
{6} At trial, Victim testified that she could recall four specific instances of touching. Victim also recalled four “clips,” as she called them, in which she could recall Defendant leaving her room, but in which she did not actually recall Defendant touching her, and approximately five more instances in which Victim “knew” Defendant touched her, but for which she had no specific memory.
{8} Because Victim testified consistently that she could recall only four specific instances of Defendant touching her, the trial court dismissed nine of the thirteen counts at the close of the State’s case. At the same time, the criminal information was amended to allege incidents occurring between June 1, 1986, and December 31, 1987. Nevertheless, the trial court made very clear that it was sending to the jury only those four counts that were tied to Victim’s specific recollections, which occurred between summer 1986 and the beginning of 1987. The jury convicted Defendant on three of those four counts.
{9} On appeal, Defendant challenged his convictions on the basis that the statute of limitations barred the State from prosecuting him; that the trial judge improperly admitted evidence of a peephole between Defendant’s bedroom and Victim’s bathroom; and that Defendant’s right to a speedy trial was violated. The Court of Appeals concluded that the trial judge erred in admitting the peephole evidence under Rule 11^104(B). Kerby,
{10} Defendant raised the statute of limitations defense for the first time on appeal. Id. ¶ 39. Defendant’s attorney admitted that he did not consult with Defendant about the statute of limitations because he failed to recognize the issue. Indeed, the Court of Appeals acknowledged that “[n]either defense counsel, the prosecutor, nor the district court appears to have recognized that the State was prohibited by Section 30-1-8 from prosecuting Defendant for touchings that occurred prior to June 19, 1987.” Id. The Court of Appeals did not analyze the statute of limitations defense but concluded that Defendant could raise it on remand. Id. ¶41.
II. STANDARD OF REVIEW
{11} “When facts relevant to a statute of limitations issue are not in dispute, the standard of review is whether the district court correctly applied the law to the undisputed facts.” Haas Enters., Inc. v. Davis,
III. THE STATUTE OF LIMITATIONS IS A SUBSTANTIVE RIGHT THAT CAN BE WAIVED ONLY BY A KNOWING, INTELLIGENT, AND VOLUNTARY WAIVER, AFTER CONSULTATION WITH COUNSEL
{12} Defendant argues that the three counts for which he was convicted are barred by the statute of limitations. Defendant claims that the statute of limitations is “jurisdictional” and, thus, the district court was without jurisdiction to try and sentence him. The State, by contrast, argues that the statute
{13} In the civil litigation context, the statute of limitations defense is generally an affirmative defense that is lost if not properly pled. Rule 1-008(C) NMRA; see Wilson v. Denver,
{14} Our rules likewise recognize the distinction between civil and criminal statutes of limitations. Indeed, there is no counterpart to Rule of Civil Procedure 1-008(C) in our Rules of Criminal Procedure. While Rule 5-601(C)(1) NMRA provides that “defenses and objections based on defects in the initiation of the prosecution” must be raised before trial, our courts have never construed a statute of limitations defense as a “defect in the initiation of the prosecution.” Nor should they. Other jurisdictions recognize the difference in either their case law or rules. See, e.g., Conn.Super. Ct. R. § 41-8(1), (3) (providing that objections to a defect in the institution of the prosecution and a statute of limitations defense must be made prior to trial if capable of being determined); Maguire v. State,
{15} Courts approach criminal statutes of limitations in one of three ways. First is the view that the statute of limitations is a jurisdictional limit on the subject matter of a court that cannot be waived or forfeited; second is the view that a defendant may “waive” the defense so long as he or she does so voluntarily, intelligently, and knowingly after consulting with counsel; finally, some courts hold that the statute of limitations is a defense that is “forfeited” if not affirmatively raised in the trial court. See State v. Timoteo,
{16} The evolution of the law in California is illustrative. In People v. McGee, the California Supreme Court held that the statute of limitations limited a court’s subject matter jurisdiction and, thus, the issue could be raised at any time.
{17} Three years later, in People v. Williams, the California Supreme Court was presented with an issue similar to the one we confront in the instant ease: the defendant was charged with, and convicted of, a crime for which the statute of limitations had run.
We now conclude that when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time. If the court cannot determine from the available record whether the action is barred, it should hold a hearing or, if it is an appellate court, it should remand for a hearing.
Id. at 45; see also Pearson,
{18} Based on our review of the various approaches, we hereby adopt the waiver approach and hold that the statute of limitations is a substantive right that may only be waived by a defendant after consultation with counsel, and only if the waiver is knowing, intelligent, and voluntary.
{19} We reject the forfeiture rule for two fundamental reasons. We conclude that “the protection of the statute of limitations is too important to be unintentionally lost.” Timoteo,
Defendants would usually gain indirectly by claiming ineffective assistance of counsel what a forfeiture rule would prevent them from gaining directly. A forfeiture rule would merely add a step to the litigation. Only those who admitted their guiltright away and did not request an attorney could never gain relief.
Id. If we adopted the forfeiture rule in the instant ease, Defendant would have a compelling ineffective assistance of counsel claim because he would not have been convicted but for his attorney’s failure to raise the statute of limitations defense. In jurisdictions with a forfeiture rule, in numerous cases involving similar facts, courts have granted post-conviction relief outright on the basis of ineffective assistance of counsel or have remanded for an evidentiary hearing on the issue. See, e.g., United States v. Hansel,
IV. WE VACATE DEFENDANT’S CONVICTIONS BECAUSE DEFENDANT DID NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVE HIS STATUTE OF LIMITATIONS DEFENSE AFTER CONSULTING WITH COUNSEL
{20} Having adopted the waiver approach to the statute of limitations, we hold that Defendant did not knowingly, intelligently, and voluntarily waive this defense after consulting with his counsel. To the contrary, Defendant’s counsel candidly admitted in his briefing and oral argument that he simply did not think of the defense. We, therefore, vacate Defendant’s convictions because, as discussed below, it is clear from the record that had the defense been utilized, Defendant would not have been convicted.
{21} Defendant was initially charged by information with thirteen counts of criminal sexual contact of a minor, a third degree felony, on March 28, 2002. See § 30-9-13(A)(1). The charges were based on Victim’s recollection of: (1) four instances of touching that she could specifically recall; (2) four “clips” she could recall of Defendant leaving her room but in which she did not actually recall Defendant touching her; and (3) five more instances in which Victim “knew” Defendant touched her but for which she had no specific memory. A third degree felony typically has a statute of limitations of five years. NMSA 1978, § 30-l-8(B) (1997, prior to 2005 amendment). In 1987, however, the Legislature enacted a tolling provision which provides that the statute of limitations for certain crimes, including CSCM, is tolled until the alleged victim reaches the age of eighteen or the crime is reported to law enforcement, whichever occurs first. NMSA 1978, § 30-1-9.1 (1987). Victim turned eighteen on June 22, 1998. At first blush, it would seem that Defendant should have no statute of limitations defense since five years had not elapsed between Victim’s eighteenth birthday and the date the information was filed, March 28, 2002. This tolling provision, however, is only applicable to crimes committed on or after June 19, 1987. Section 30-1-9.1 applicability note; see Kerby,
{22} Victim testified consistently that she could only recall four specific instances of touching; Because of this, the trial court dismissed nine of the thirteen counts at the close of the State’s case. While the criminal information was amended at that time to allege incidents occurring between June 1, 1986, and December 31, 1987, the trial court was very clear that the only counts going to the jury were the ones tied to Victim’s specific recollection.
{23} We note that Victim also testified with respect to four “clips” and five instances in which she “knew” Defendant had touched her, but of which she had no specific recollection, continuing into late 1987. However, the judge appropriately dismissed the related
{24} For clarity, we describe those four specific instances again here. Victim testified that the first instance of touching, when Defendant allegedly rubbed her vulva, occurred a couple of months after Victim and her mother moved into Defendant’s trailer (summer 1986), but before they moved to a house with Defendant (fall 1986). Victim testified that the second time Defendant touched her was when he rubbed her buttocks, while she was sleeping on the couch inside the trailer, thus in the summer of 1986. Regarding the third instance, Victim stated that Defendant again rubbed her buttocks at the end of 1986, shortly after they moved to the house. Finally, the last specific recollection Victim had of Defendant inappropriately touching her was “[a]bout a month or so later,” in the beginning of 1987. It is, therefore, clear from the record that, according to Victim’s testimony, the last time Defendant touched her was before the critical date of June 19, 1987. Defendant was acquitted of the charge related to the touching of Victim’s vulva, but was convicted of the three charges related to the touching of Victim’s buttocks. Since these three instances happened before the critical statute of limitations date of June 19, 1987, the statute of limitations ran five years after they occurred, and Defendant would not have been convicted had the statute of.limitations defense been raised. Because Defendant did not waive the statute of limitations defense and because Defendant would not have been convicted had the issue been raised, we hereby vacate Defendant’s convictions.
V. THE PEEPHOLE EVIDENCE WAS ADMISSIBLE TO SHOW INTENT UNDER RULE 11-404(B)
{25} Although we find the statute of limitations issue dispositive in vacating Defendant’s convictions, we are compelled to address briefly the admissibility of the peephole evidence under Rule 11-404(B). Rule 11^404(B) provides: “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” We recently analyzed this rule in Otto and held that evidence of other acts is admissible under Rule 11-404(B) if relevant to a material issue other than the Defendant’s character or propensity to commit a crime.
{26} In the instant case, the trial court allowed evidence that Defendant constructed a peephole which allowed him to peer into Victim’s bathroom while Defendant hid in a cubbyhole adjacent to the master bedroom, to rebut evidence that Defendant innocently touched Victim’s buttocks. Kerby,
VI. CONCLUSION
{27} We hold that the statute of limitations is a substantive right that may only be waived by a defendant, after consultation with counsel, and only if the waiver is knowing, intelligent, and voluntary. Defendant did not knowingly, intelligently, and voluntarily waive his statute of limitations defense after consulting with counsel. Because it is clear that he would not have been convicted had the statute of limitations defense been raised, we hereby vacate Defendant’s convictions.
{28} IT IS SO ORDERED.
Notes
. The court limited its ruling to the exact situation presented, i.e., that a court does not lack subject matter jurisdiction over a time-barred lesser offense when the statute of limitations has not run on the greater offense. Id. at 442.