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                                                                '00'05- 15:22:43 2017.02.02

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-014

Filing Date: November 3, 2016

Docket No. 34,759

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

JOHN C. PACHECO,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Jerry H. Ritter, Jr., District Judge

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 information charging Defendant
with fraud in violation of NMSA 1978, Section 30-16-6(A), (F) (2006). We reverse.

{2}     Rule 5-601(B) NMRA provides that “[a]ny defense, objection or request which is
capable of determination without a trial on the merits may be raised before trial by motion.”
In State v. Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329, we held that a

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district court may dismiss a criminal information or indictment when guilt turns on a “purely
legal issue” and any relevant “factual predicate underlying the charges” is undisputed by the
state. Id. ¶ 6. In Foulenfont, the purely legal issue was whether a fence is a “structure” under
our burglary statute, and the state conceded that the only basis for finding the defendant
guilty turned on this legal question. Id. ¶ 7. Accordingly, we held that the district court
properly resolved the legal question without holding a trial. Id. ¶ 10.

{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.” Section 30-16-6(A),
(F). The probable cause affidavit attached to the criminal complaint alleges that Defendant
contracted with Richard Aguilar to purchase a coffee business in Ruidoso, New Mexico for
$43,000 to be paid for with a down payment and in subsequent installments. Defendant paid
the down payment, but a few months later stopped making installment payments to Aguilar,
thereby breaching the sale contract. Defendant offered to give Aguilar a trailer and any
equipment attached to it in exchange for a release of his remaining obligation under the
purchase agreement, which Aguilar accepted based on invoices Defendant showed to
Aguilar that represented the value of the trailer and the attached equipment to be $43,096.
The affidavit states that Defendant admitted altering the invoices to inflate the value of the
trailer and the equipment, but maintained that he had done so with Aguilar’s consent. A
magistrate judge found that this information constituted probable cause that Defendant had
committed fraud and issued a warrant for Defendant’s arrest.

{4}      Relying on Rule 5-601(B) and Foulenfont, Defendant filed a motion to dismiss the
information. He argued that Aguilar’s “prior sworn statements and verified pleadings” in
ancillary civil proceedings between Aguilar and Defendant “establish, as a matter of law,
[that] Defendant obtained no property as a result of a fraudulent act or inducement . . . and
[Aguilar] did not rely on any false representation made by Defendant[.]” After the State’s
opening statement on the morning of Defendant’s bench trial, but before the State presented
any evidence, counsel for Defendant renewed his motion to dismiss, once again arguing that
the State would not be able to prove the elements of fraud beyond a reasonable doubt. The
district court granted the motion, finding that “Defendant, through counsel, asserted sworn
or otherwise admissible evidence from a related civil proceeding establish[ing that Aguilar]
did not rely on any representations by Defendant and did not suffer pecuniary harm as a
matter of law.” The district court further reasoned that because the State “could offer no
evidence which would create a disputed fact” and “did not dispute the facts put forth by
Defendant[,]” dismissal under Rule 5-601(B) was appropriate.

{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 Fifth Amendment to the United States Constitution provides that no
“person [shall] be subject for the same offense to be twice put in jeopardy of life or limb[.]”
This means that “[t]he [s]tate is barred from appealing when a defendant is acquitted”
because any further proceedings in the district court after appeal would violate the Double

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Jeopardy Clause. State v. Baca, 2015-NMSC-021, ¶ 21, 352 P.3d 1151 (internal quotation
marks and citation omitted). So the question here is whether the district court’s decision
below amounted to an acquittal.

{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 the 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 innocence . . . 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 a 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 characterization of his procedural dismissal as an acquittal on the merits cannot
control a reviewing court’s assessment of the true nature of the action.” Id. ¶ 42. Here, the
district court characterized its order as a finding that the State had presented insufficient
evidence to obtain a conviction. But the State had yet to present any evidence whatsoever.
So under Serfass and Gutierrez, jeopardy had not attached.

{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
“statements 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

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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 characterized 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 district 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
stipulated 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 Rule
5-601(B), which looks to whether a motion is “capable of determination without a trial.”

{11} Applying this analysis, we begin by setting out the elements of the fraud charge the
State was required to prove beyond a reasonable doubt at trial: Defendant (1) by any words
or conduct, made a promise he had no intention of keeping or misrepresented a fact to
Aguilar; (2) intended to deceive or cheat Aguilar; (3) because of the promise or
representation and Aguilar’s reliance on it, Defendant obtained property or money valued

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in excess of $20,000; (4) the property or money belonged to someone other than Defendant;
and (5) the fraud took place in New Mexico. See UJI 14-1640 NMRA; see also § 30-16-6.
Here, the district court found that “[Aguilar had asserted] in civil judicial pleadings and a
UCC-1 filed in the property records of Lincoln County [that] he had not relinquished all
right, title[,] and interest in the property allegedly obtained by fraud.” We understand the
district court to have concluded, based on this evidence, that the State could not prove that
Aguilar had relied on Defendant’s misrepresentations in releasing him from the original
purchase agreement.

{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
prosecution.”). 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




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