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State v. Gonzales

Court of Appeals of New Mexico

June 28, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
VICTOR GONZALES, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Brett R. Loveless, District Judge

          Hector 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 Appellant

          OPINION

          STEPHEN G. FRENCH, Judge

         {1} 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 continuance.

         BACKGROUND

         (2} 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 garbage bin.

         {3} 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.

         {4} 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.

         {5} 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.

         {6} The jury convicted Defendant of criminal sexual contact. Defendant appealed to the district court, which reviewed his case on-record and affirmed the conviction.

         DISCUSSION Appeal in the District Court

         {7} 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 on-record appeal.

         {8} "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).

         {9} 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.

         {10} 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.

         (11} 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 § 34-8A-6(D).

         (12} 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 ...


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