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State v. Webb

Court of Appeals of New Mexico

June 30, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
MARK WEBB, Defendant-Appellant.

         INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Benjamin Chavez, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Walter Hart, Assistant Attorney General Albuquerque, NM for Appellee

          Blackburn Law Office Billy R. Blackburn Albuquerque, NM Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu Paul M. Linnenburger Santa Fe, NM for Appellant

          OPINION

          JONATHAN B. SUTIN, Judge

         {1} Defendant Mark Webb was charged in two separate cases after he allegedly surreptitiously videotaped the minor daughter (Victim) of his former girlfriend unclothed in her bathroom. The first case, State v. Webb, Second Judicial District Court Case No. D-202-CR-2014-02997 (Webb I), was filed in 2014 and charged Defendant with voyeurism (child under eighteen), in violation of NMSA 1978, Section 30-9-20(A)(1) (2007), attempted voyeurism (child under eighteen), in violation of Section 30-9-20(A)(1) and NMSA 1978, Section 30-28-1(A) (1963), tampering with evidence, in violation of NMSA 1978, Section 30-22-5(B) (2003), and battery on a household member, in violation of NMSA 1978, Section 30-3-15(A) (2008). These charges were based on videos dated February 19, 2013 and February 24, 2013 that were discovered on a hidden camera located in Victim's bathroom. The second case, State v. Webb, Second Judicial District Court Case No. D-202-CR-2015-01400 (Webb II), which is the subject of this appeal, was filed in 2015 and charged Defendant with two counts of sexual exploitation of a child (manufacture), in violation of NMSA 1978, Section 30-6A-3(D) (2007, amended 2016), and one count of attempted sexual exploitation of a child (manufacture), in violation of Sections 30-6A-3(D) and 30-28-1(B). These charges were based on videos dated between January 1, 2013 and January 30, 2013 that were discovered on a computer to which Defendant had access. After the State unsuccessfully sought to join the two cases, Defendant filed a motion to dismiss Webb II. The district court denied Defendant's motion, Defendant filed an application for interlocutory appeal, and this Court granted the application.

         {2} On appeal, Defendant argues that Webb II should be dismissed because the mandatory joinder provisions of Rule 5-203(A) NMRA were violated, the State chose not to timely pursue the Webb II charges and forfeited any discretion to pursue them, and the State's unjustifiable delay in seeking the Webb II charges created judicial inefficiency and prejudiced Defendant. For the reasons set forth in this opinion, we hold that Webb I and Webb II should have been mandatorily joined under Rule 5-203(A) as initially requested by the State. Because the district court should have granted the pretrial motion to join, dismissal of Webb II is not appropriate, and therefore, we affirm the district court's denial of Defendant's motion to dismiss.

         BACKGROUND

         {3} On February 24, 2013, Victim, then age seventeen, discovered a USB camera hidden in her bathroom in the home that she shared with her mother and brother, as well as with mother's boyfriend (Defendant). Detective Steve Walsh, the on-call child exploitation detective, was called to the home. Detective Walsh obtained a search warrant for the USB camera on February 26, 2013, viewed the contents of the camera, and discovered two videos dated February 19, 2013 and February 22, 2013. According to Detective Walsh, in the February 19 video, Defendant could be seen placing and adjusting the camera, and thereafter, Victim could be seen entering the bathroom and undressing. In the February 22 video, Defendant again could be seen placing and manipulating the camera, and thereafter, Victim could be seen entering the bathroom, preparing to take a shower, and noticing the camera, which she subsequently removed from its location.

         {4} Defendant was arrested on February 26, 2013, and charged in Bernalillo County Metropolitan Court with sexual exploitation of a child (manufacture) and attempted sexual exploitation of a child. After his arrest, Defendant was interviewed. During the interview, Defendant apparently admitted to recording Victim "[a]bout half a dozen times" and indicated to police that he would download the recorded videos to the "community laptop" (the laptop), of which Victim's mother was the administrator.[1]Sometime in March 2013, Victim's mother provided the police with the laptop so that they could search the computer. Detective Walsh returned the laptop in June 2013 and indicated to Victim's mother that he found nothing on the computer. A few days later, Victim's mother, as the administrator for the laptop, changed the login information for Defendant's accounts and discovered additional videos of Victim. She attempted to call Detective Walsh directly and again through the Albuquerque Police Department. She then contacted a victim's advocate at the Office of the New Mexico Attorney General and told her that she had found more videos on the laptop. The victim's advocate told Victim's mother she would contact Detective Walsh and have him call Victim's mother. Detective Walsh followed up with Victim's mother, and after she showed him how to access the additional videos, the laptop was taken back into evidence by the detective.

         {5} After Defendant's arrest, three target notices were issued to Defendant. The first, dated March 4, 2013, was from the Second Judicial District Attorney and indicated that the State intended to present charges of sexual exploitation of a child, tampering with evidence, and voyeurism, which occurred on or about February 24, 2013. The second, dated August 9, 2013, was from the Office of the Attorney General and indicated that the State intended to present charges of sexual exploitation of a child (three counts) and attempt to commit the same (two counts), which were alleged to have occurred on or between February 19, 2013 and February 24, 2013. The third, dated June 9, 2014, was also from the Office of the Attorney General and restated its intent to present the charges listed in the August 9, 2013 notice.

         {6} Although the first and second notices listed specific dates on which the State intended to present the listed charges to the grand jury, the grand jury only convened on the date listed in the third notice-June 25, 2014. Defendant was subsequently indicted, on June 25, 2014, in district court with voyeurism (child under eighteen), attempted voyeurism (child under eighteen), tampering with evidence, and battery on a household member (Webb I). Those charges arose from the videos found on the camera, which were both dated in February 2013.

         {7} On August 28, 2014, Detective Don Roberts with the Albuquerque Police Department requested a forensic examination of the laptop, which had been in police custody for approximately fourteen months. A September 18, 2014 forensic report documented three additional videos of Victim naked in her bathroom that had been saved on the laptop. These videos were dated between January 1, 2013 and January 30, 2013.

         {8} On May 26, 2015, the State procured a second indictment charging Defendant with two counts of sexual exploitation of a child (manufacture) and one count of attempted sexual exploitation of a child (Webb II). Those charges arose from the videos found on the laptop that were dated in January 2013. On June 8, 2015, the State moved for joinder of Webb I and Webb II. In its motion, the State argued that the charges in each proceeding involved different videos-the former related to the videos on the camera, the latter related to videos on the laptop-but were of similar character, involved the same Victim, and were "based on the same conduct or on a series of acts connected together and constituting parts of a single scheme or plan" under Rule 5-203(A)(2). Defendant agreed that joinder was mandatory under Rule 5-203(A) but argued against joinder because the State did not join the offenses in one indictment. According to Defendant, the State was required to "join offenses at the outset[, ]" and because it failed to do so, it was barred from adding additional charges at such a "late juncture."

         {9} On July 1, 2015, the district court denied the motion for joinder on the ground that Defendant had timely filed a peremptory challenge of the district judge and thus the judge "lack[ed] jurisdiction to entertain the motion before the court." On December 17, 2015, Defendant filed a number of pleadings, including a motion to dismiss for failure to properly join the charges in Webb II with the charges in Webb I. The district court denied Defendant's motion to dismiss on February 24, 2016, concluding that although "[t]he charges in Webb I and Webb II are subject to joinder pursuant to Rule 5-203" and "the separate incidents charged in Webb I and Webb II are of the exact same type and were committed by the same individual ...


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