FROM THE DISTRICT COURT OF BERNALILLO COUNTY Brett R.
Loveless, District Judge
H. Balderas, Attorney General Maha Khoury, Assistant Attorney
General Santa Fe, NM for Appellee
Bennett J. Baur, Chief Public Defender Santa Fe, NM Vicki W.
Zelle, Assistant Appellate Defender Albuquerque, NM for
STEPHEN G. FRENCH, Judge
Defendant Victor Gonzales was convicted of criminal sexual
contact, a misdemeanor, contrary to NMSA 1978, Section
30-9-12 (1993), in the Bernalillo County Metropolitan Court.
He appealed to the Second Judicial District Court, which
affirmed his conviction after reviewing his case on-record.
Defendant now appeals to this Court, arguing (1) the district
court erred in affirming the metropolitan court's denial
of defense counsel's motion for continuance, and (2) he
was entitled to a de novo appeal, not an on-record review, in
the district court. We address the issue concerning de novo
appeals from the metropolitan court first because it is
dispositive of the continuance issue if answered
affirmatively. We conclude Defendant was not entitled to a de
novo appeal and that the metropolitan court did not abuse its
discretion by denying defense counsel's motion for
Around 2:30 a.m. on September 24, 2011, a woman (Victim)
called the police to report that a man attacked her in the
parking lot of the apartment complex where she resided.
Victim reported that the man approached her while she was
getting laundry from the trunk of her car. Victim said the
man grabbed her, exposed her buttocks by pulling her shorts
down, and briefly squeezed them. Victim allegedly screamed
for help, and the man "eventually" began walking
away from her, pushing a red dolly that carried a white
Five days after the incident, a detective presented Victim
with a photo array. She was unable to identify her assailant
in the array. She told the detective that it was dark, her
assailant was wearing a baseball cap, and his face was
shadowed. The next day, six days after the incident, Victim
believed a man she saw standing on a street corner,
Defendant, was her assailant. Victim and her husband followed
Defendant in their car, and Victim's husband got out of
the car to confront Defendant. Defendant called 911 for
assistance. On October 6, six days after Victim and her
husband confronted Defendant, a detective presented Victim
with a second photo array that included a photograph of
Defendant, and she identified Defendant as her assailant.
Defendant's case was first scheduled for trial in
metropolitan court on June 5, 2012. Victim failed to appear
at trial on this date. The State could not proceed with the
trial without Victim present and requested the trial date be
reset. The metropolitan court reset the trial for July 23,
2012, yet victim again failed to appear. The State contacted
Victim, who said she could be present within one hour.
Defense counsel interjected, stating that it was not
necessary for Victim to come that day and stipulated to a
continuance. Defense counsel also noted that she had not yet
interviewed Victim due to scheduling problems. The
metropolitan court reset trial for September 5, 2012.
At trial on September 5, defense counsel requested a
continuance. Defense counsel argued that the State failed to
account for evidence relevant to the investigation of the
State's initial suspect, who was not Defendant-namely, a
lapel video recording from a camera worn by an investigating
officer that was only twenty seconds long, and an incident
number logged by an investigating officer that did not have
an accompanying police report. Defense counsel also
repeatedly argued she needed time to subpoena each officer on
the State's witness list. Ultimately, the metropolitan
court denied the motion for continuance.
The jury convicted Defendant of criminal sexual contact.
Defendant appealed to the district court, which reviewed his
case on-record and affirmed the conviction.
Appeal in the District Court
Initially, this appeal requires us to clarify the analysis to
be employed by a district court acting in its appellate
capacity when reviewing a conviction from the metropolitan
court that potentially arises from domestic abuse under the
Family Violence Protection Act (FVPA), NMSA 1978,
§§ 40-13-1 through 40-13-12 (1987, as amended
through 2016). Generally, the district court reviews appeals
from the metropolitan court de novo, but cases involving
domestic violence are heard on-record. See NMSA
1978, § 34-8A-6 (C), (D) (1993). First, we conclude that
a judgment and sentence convicting a defendant of criminal
sexual contact, regardless of whether the victim and the
defendant are household members, is a criminal action
involving domestic abuse as defined in the FVPA. Second,
determining the procedure for Defendant's appeal in the
district court requires us to interpret Section 34-8A-6, and
this leads us to conclude that Defendant was entitled to an
"The proper procedure to be followed by a district court
when reviewing a [m]etropolitan [c]ourt's conviction is a
question of statutory interpretation which we review de
novo." State v. Wilson, 2006-NMSC-037, ¶
6, 140 N.M. 218, 141 P.3d 1272; see State v. Krause,
1998-NMCA-013, ¶ 3, 124 N.M. 415, 951 P.2d 1076
(describing the issue of whether a defendant was entitled to
a de novo appeal in district court as a legal question, which
is reviewed de novo).
The New Mexico Constitution vests district courts with
"appellate jurisdiction of all cases originating in
inferior courts." N.M. Const. art. VI, § 13. These
trials "shall be had de novo unless otherwise provided
by law." N.M. Const. art. VI, § 27. Article 8A of
Chapter 34 provides such an exception. Section 34-8A-6 sets
forth the criminal actions for which the metropolitan court
is a court of record, as well as those criminal actions for
which the metropolitan court is not.
Subsection (C) states, "The metropolitan court is a
court of record for criminal actions involving . . . domestic
violence. A criminal action involving domestic violence means
an assault or battery . . . in which the alleged victim is a
household member as defined in the [FVPA]." Section
34-8A-6(C). The FVPA defines a "household member"
as "a spouse, former spouse, parent, present or former
stepparent, present or former parent-in-law, grandparent,
grandparent-in-law, child, stepchild, grandchild, co-parent
of a child or a person with whom the petitioner has had a
continuing personal relationship." Section 40-13-2(E). A
"continuing personal relationship" means "a
dating or intimate relationship[.]" Section 40-13-2(A).
Section 34-8A-6(D) states, "The metropolitan court is
not a court of record for criminal actions other than . . .
domestic violence actions." Appeals of these criminal
actions shall be reviewed de novo. Id.
In short, when construed alongside one another, Section
34-8A-6(C) and Section 40-13-2(E) of the FVPA combine to
provide that a defendant receives an on-record review on
appeal only when the conviction involves domestic violence
and the victim and the defendant are related by blood or by
marriage, or have been in an intimate relationship. The
defendant receives an appeal de novo if the conviction is
anything other than such instances of domestic violence or
driving while under the influence. See §
Here, Victim and Defendant are strangers. Victim purportedly
had only two encounters with Defendant: the night of the
incident and six days after the incident. She had not met
Defendant before the night of the incident. Her only way of
identifying Defendant was by the item that he carried when
the incident occurred. Furthermore, the record shows Victim
is in an intimate relationship with someone else, her
husband. Victim and Defendant in this case are not related by
blood or by marriage, nor is there any indication they were
in an intimate relationship with one another. These facts
preclude application of Section ...