State v. PachecoState v. Pacheco
Hector H. Balderas, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM for Appellant
Fuqua Law & Policy, P.C. Scott Fuqua Santa Fe, NM for Appellee
OPINION
HANISEE, Judge.
{1} The State appeals from the dismissal of its criminal informatiоn charging Defendant with fraud in violation of
{2}
{3} Here, the offense with which Defendant was charged consists of “intentional misappropriation or taking of anything of value [greater than $20,000] that belongs to another by means of fraudulent conduct, practices or representations.”
{4} Relying on
{5} We disagree, but before we can explain our disagreement we must determine whether the State is permitted to appeal the district court‘s decision. This is because the double jeopardy clause of the
{6} This question involves a term of art: whether “jeopardy has attached[.]” State v. Collier, 2013-NMSC-015, ¶ 13, 301 P.3d 370. The United States Supreme Court has held that jeopardy attaches in a bench trial when the first witness is sworn. Crist v. Bretz, 437 U.S. 28, 37 n.15 (1978). New Mexico courts have been a bit less specific, holding that jeopardy attaches in a bench trial “when thе court begins to hear evidence.” State v. Angel, 2002-NMSC-025, ¶ 8, 132 N.M. 501, 51 P.3d 1155. In any event, the animating purpose behind the two standards is the same:
[T]he [s]tate with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Serfass v. United States, 420 U.S. 377, 388 (1975) (internal quotation marks and citation omitted); see State v. Gutierrez, 2014-NMSC-031, ¶ 19, 333 P.3d 247 (same (internal quotation marks and citation omitted)). Our Supreme Court has recently noted that a defendant who “deliberately choos[es] to seek termination of the proceedings against him before a determination of his guilt or innocеnce . . . voluntarily reject[s] the Fifth Amendment protection against being twice placed in jeopardy for the same offense.” Baca, 2015-NMSC-021, ¶ 41 (internal quotation marks and citation omitted). Hence our Supreme Court distinguishes between “termination [of а trial] based on finding the [s]tate‘s evidence insufficient[,]” which counts as an acquittal, and “procedural dismissal[s] unrelated to the evidence of [the defendant‘s] guilt[,]” which do not. Id. ¶¶ 36, 42.
{7} Here, the district court characterized its order dismissing the information as a finding that “[t]here are no material factual issues in dispute and the [S]tate cannot prove the prima facie element of pecuniary loss beyond a reasonable doubt as a matter of law.” But “a judge‘s own charactеrization of his procedural dismissal as an acquittal
{8} Defendant suggests that “[even] though no witness had yet been sworn, the [d]istrict [c]ourt nevertheless considered uncontested evidence, discussed without objection from the State, in connection with its dismissal.” But the district court did not consider evidence; it considered a proffer by defense counsel as to what the evidence at trial would show, and “stаtements of counsel are not evidence.” State v. Garcia, 1978-NMCA-109, ¶ 4, 92 N.M. 730, 594 P.2d 1186. The district court would have only been in a position to acquit Defendant after the State had put forward its own evidence; because the district court terminated the case after the State‘s opening statement and before any witness was sworn, jeopardy had yet to attach. Accordingly, we view the district court‘s dismissal of the information as a procedural dismissal and not an acquittal. Thus, because double jeopardy had not attached, we will entertain the State‘s appeal of that dismissal.
{9} The State‘s argument on appeal is that the district court resolved questions of fact as to the meaning of the release agreement between Defendant and Aguilar, which would be an improper “pretrial attack on the sufficiency of evidence under the guise of a [Rule 5-601] motion.” State v. LaPietra, 2010-NMCA-009, ¶ 6, 147 N.M. 569, 226 P.3d 668. Defendant, in turn, argues that the “nature of the [trial c]ourt‘s determination” was a resolution of a purely legal question based on undisputed facts: Aguilar‘s testimony in a related civil proceeding that the release did not relieve Defendant of his debt under the underlying sale contract and his assertion of a continued security interest in property that was the subject of Defendant and Aguilar‘s original agreement. But framing the issue as a sufficiency of the evidence problem or a pure question of law does not change the analysis meaningfully either way. What the Court in Foulenfont charаcterized as a “purely legal issue” raised prior to trial—whether a fence is an “other structure” under the burglary statute—can be just as easily characterized as an argument that the state‘s evidence was insufficient to prove all of the elements of burglary beyond a reasonable doubt. 1995-NMCA-028, ¶¶ 6-7.
{10} Adding to the confusion is Foulenfont‘s characterization of the issue on appeal from the district court‘s grant of a Rule 5-601 motion as “whether the district court had authority to dismiss the charges prior to a trial on the merits.” Foulenfont, 1995-NMCA-028, ¶ 1. But Rule 5-601 itself provides the district court with authority to decide a motion to dismiss when a trial is unnecessary, and a trial is unnecessary when the undisputed facts do not make out the elements of the charged crime. Foulenfont, 1995-NMCA-028, ¶ 6. So the question of the distriсt court‘s authority is the same as the merits of its decision. Focusing on whether the nature of the decision involves a pure question of law, or instead turns on disputed questions of fact begs the underlying question: whether the undisputed facts—whether stipulatеd to by the State or alleged in the indictment or information—show that the State cannot prove the elements of the charged offense at trial, thereby making a trial on the merits unnecessary. More often than not, the question is whether “the [s]tate could reasonably assert the availability of additional evidence.” State v. Gomez, 2003-NMSC-012, ¶ 7, 133 N.M. 763, 70 P.3d 753. Framing the analysis this way avoids confusing questions about the district court‘s “authority” to decide a motion or whether the motion involves a question of fact or a pure question of law. It has the added benefit of tying the inquiry to the text of
{11} Applying this analysis, we begin by setting out the elements of the fraud charge the State was requirеd to prove beyond a reasonable doubt at trial: Defendant (1) by any words or conduct, made a promise he
{12} But the criminal complaint alleged that Aguilar‘s decision to sign the release was based on Defendant‘s misrepresentations as to the value of a trailer and attached fixtures. Indeed, the State argued in response to Defendant‘s motion that it expected Aguilar to testify to that effect at trial. The fact that Aguilar continued to maintain his right to payments under the original purchase agreement in a related civil proceeding is irrelevant to the question of whether Defendant obtained the release itself through his alleged misrepresentation. See State v. Higgins, 1988-NMCA-072, ¶ 8, 107 N.M. 617, 762 P.2d 904 (“If a defendant obtains something of value by fraudulent misrepresentations, the fact it is later repaid does not bar prosecutiоn.“). All of which is to say that Defendant‘s motion to dismiss could not be decided without a trial, and the district court‘s contrary conclusion was in error. Accordingly, the district court‘s grant of Defendant‘s motion to dismiss is reversed. The case is remanded for further proceedings.
{13} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
LINDA M. VANZI, Judge