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                                                                   New Mexico Compilation
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                                                                '00'05- 16:06:21 2016.01.14

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-003

Filing Date: September 2, 2015

Docket No. 33,473

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

JUAN CARLOS ACOSTA,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM

for Appellant

Jorge A. Alvarado, Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM

for Appellee

                                          OPINION

GARCIA, Judge.

{1}      The State appeals the district court’s order granting Defendant’s motion for a new
trial. This case presents the following issues: (1) the State’s ability to appeal the grant of a
new trial based upon an evidentiary ruling, (2) the district court’s jurisdiction to grant a
motion for a new trial on grounds that were raised sua sponte more than ten days after the
verdict, and (3) whether the grant of a new trial was an abuse of discretion under the
circumstances of this case. We affirm.

                                               1
BACKGROUND

{2}     Defendant was indicted by a grand jury on June 2, 2011, for trafficking a controlled
substance (cocaine) by possession with intent to distribute, child abuse, conspiracy to
commit trafficking a controlled substance by possession with intent to distribute, and
possession of drug paraphernalia. The indictment stated that the crimes occurred on or about
October 19, 2010, the date that the search warrant was executed. As part of the State’s
investigation, three uncharged controlled buys were executed by officers, with the assistance
of a confidential informant (CI), in the weeks prior to the execution of the search warrant.

{3}      On August 19, 2013, the day before trial commenced, Defendant filed a motion in
limine to exclude “[a]ny information provided by the [CI] to the police officers regarding
. . . Defendant” on the grounds that it would be “inadmissible hearsay.” A hearing was held
on the same day, during which defense counsel argued that if the officers testified at trial that
a CI told them that Defendant was selling drugs, and the CI was not going to testify at trial,
that testimony would present confrontation clause and hearsay problems. Defense counsel
noted that he was not concerned with the officers “mentioning that based on their
investigation they decided to get a search warrant[.]” The State argued that “the officer has
a right to testify that [he] gave a [CI] money,[the CI] met with . . . Defendant[,] [m]oney that
was provided to the [CI] was gone, and there were drugs in [the CI’s] possession, which he
observed [as having occurred] hand-to-hand.” The district court replied that if the officers
personally observed the hand-to-hand exchange during the controlled buys, they could testify
as to those observations; however, because the CI was unavailable, the officers could not
testify as to what the CI told them. Ultimately, the district court agreed to reserve ruling on
the matter.

{4}     During the same motion hearing, defense counsel moved to exclude as inadmissible
character evidence “any testimony from any detective that [he or she] had previous
knowledge of my client[, such as] saying we knew [Defendant], we knew him well and he
was up to no good[.]” See Rule 11-404(A) NMRA (providing that evidence of a person’s
character or character trait is inadmissible to prove conformity therewith on a particular
occasion). In response, the prosecutor indicated that “[he did not] anticipate the officers
testifying to anything outside of this current investigation[,]” specifically stating that the
officers would not testify about Defendant’s 1997 arrest for trafficking. The morning of trial,
the State again asked the district court whether the officers could testify as to their
observations of the CI, and the district court agreed.

{5}     Jury trial began on August 20, 2013. The State argued in its opening statement that
Sergeant Carpenter of the Albuquerque Police Department would testify that with the
assistance of a CI, he observed Defendant take part in three controlled buys. The State
explained that after the three controlled buys, a search warrant was obtained for an apartment
thought to be Defendant’s residence. Sergeant Carpenter subsequently testified about the
controlled buys and the events that transpired the day that the search warrant was executed,
and the defense did not object to the testimony about the controlled buys. The theory of the

                                               2
defense was that Defendant was not a resident of the apartment, that he happened to be in
the area “by chance,” and that there was no evidence against him at all.

{6}     The jury found Defendant guilty of trafficking a controlled substance by possession
with intent to distribute, conspiracy to commit trafficking a controlled substance by
possession with intent to distribute, abuse of a child, and possession of drug paraphernalia.
Defendant filed a timely motion for a new trial, see Rule 5-614(C) NMRA (providing that
a motion for a new trial based upon any grounds other than newly discovered evidence must
be made within ten days of the verdict or within the grant of a motion for extension of time
by the court within that ten-day period), citing inconsistent witness testimony and improper
prosecutorial comment during closing argument.

{7}      At the motion hearing, the district court granted Defendant’s motion for a new trial,
but it did so on new grounds that the court raised sua sponte. First, the indictment stated that
the charges stemmed from the execution of a search warrant on October 19, 2010, but the
State introduced evidence of previous controlled buys involving Defendant that were
conducted in the weeks prior. Second, the defense did not have reasonable notice of the
State’s intent to introduce this prior bad acts evidence, as required by Rule 11-404(B). Third,
this failure to give notice prejudiced Defendant because it was the only evidence tying
Defendant to the apartment, to the co-defendant, and to the drugs found on the co-defendant.
The instant appeal ensued, with the State challenging the district court’s grant of a new trial.

DISCUSSION

A.      The State’s Ability to Appeal the Order Granting a New Trial

{8}     Because it implicates our authority to hear this appeal, we turn first to Defendant’s
contention that the State may not appeal the district court’s order granting a new trial. In
support of his contention, Defendant relies upon State v. Griffin, 1994-NMSC-061, ¶ 11, 117
N.M. 745, 877 P.2d 551, for the proposition that the grant of a new trial is appealable by the
State only when the district court’s ruling is based on a determination of prejudicial legal
error. Defendant asserts that the district court’s grant of a new trial was premised on the fact-
based admission of evidence under Rule 11-404(B)(2), and because an evidentiary ruling is
discretionary, the ruling does not present a legal question. We disagree.

{9}      In State v. Chavez, our Supreme Court explained that Article VI, Section 2 of the
New Mexico Constitution permits the State to appeal an order granting a new trial because
the State has a “strong interest in enforcing a lawful jury verdict.” 1982-NMSC-108, ¶ 6, 98
N.M. 682, 652 P.2d 232. This holding was later limited by Griffin, which provided that in
a criminal case, the State may only appeal “an order in which it is claimed the grant of a new
trial was based on an erroneous conclusion that prejudicial legal error occurred during the
trial or that newly-discovered evidence warrants a new trial.” 1994-NMSC-061, ¶ 11.

{10}    At the hearing on Defendant’s motion for a new trial, the district court noted that

                                               3
even though the indictment charged only conduct that was discovered during the execution
of the search warrant, the State introduced evidence at trial of prior uncharged controlled
buys involving Defendant that were made in the weeks leading up to the execution of the
search warrant. Because uncharged misconduct falls within the ambit of Rule 11-404(B),
which requires reasonable notice prior to introduction at trial, the district court found that
the State did not provide reasonable notice to Defendant of its intent to use these prior
controlled buys. See Rule 11-404(B)(2)(a), (b) (providing that, in a criminal case, evidence
of other crimes may be admissible for certain purposes, but the prosecution must give
reasonable notice of the general nature of any such evidence before trial, or during trial if
the district court excuses the lack of pretrial notice for good cause). The district court further
suggested that in any second trial, the State could either amend the indictment to include the
prior controlled buys, or file a notice of intent to use Rule 11-404(B) evidence.

{11} Importantly, the district court’s ruling was not that the evidence of uncharged
controlled buys would or would not have been admissible under Rule 11-404(B). If the
prosecution had provided reasonable notice, and if the defense had then objected to the
evidence, the district court would have been presented with an opportunity to rule on the
admissibility of this evidence. Instead, the district court concluded that under the facts of this
case, because the prior controlled buys were uncharged misconduct, the prosecution failed
to reasonably notify the defense of its intent to introduce such evidence, which was contrary
to Rule 11-404(B) and prejudicial to the defense. Because the district court’s ruling hinged
upon the interpretation and application of the notice requirement of Rule 11-404(B)(2) to the
facts of this case, we hold that the district court’s grant of a new trial was based on the
conclusion that prejudicial legal error occurred, which the State was permitted to
immediately appeal. See Griffin, 1994-NMSC-061, ¶ 14 (holding, in a case where the only
basis for the grant of a new trial was newly-discovered evidence, that such an order was
appealable “because it presents a question of law easily reviewed by an appellate court and
not a question of fact as to the correctness of a discretionary ruling”); see also Fed. R. Evid.
404 advisory committee’s note (1991 amendments) (“Because the notice requirement serves
as condition precedent to admissibility of [Rule 11-404(B)] evidence, the offered evidence
is inadmissible if the court decides that the notice requirement has not been met.”).

B.      The District Court’s Jurisdiction to Grant a New Trial

{12} We turn next to the State’s contention that the district court lacked jurisdiction to
grant Defendant’s motion for a new trial on other grounds that were raised sua sponte by the
court more than ten days after the entry of the jury’s verdict. The State argues that the district
court effectively raised and granted a new trial on its own motion outside of the ten-day
window set forth in Rule 5-614(C). The State also argues that the district court needed to
have enlarged the time for the filing of a motion for new trial within the ten-day window
before it could consider other additional grounds to grant a new trial. We disagree.

{13} On appeal, we address whether the district court had jurisdiction to grant a motion
for a new trial de novo. State v. Moreland, 2007-NMCA-047, ¶ 9, 141 N.M. 549, 157 P.3d

                                                4
728, aff’d on other grounds, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363. It is undisputed
that Defendant invoked the district court’s jurisdiction by timely filing a motion for a new
trial. See State v. Lucero, 2001-NMSC-024, ¶ 9, 130 N.M. 676, 30 P.3d 365 (holding that
the ten-day filing requirement in Rule 5-614(C) is jurisdictional). The district court then
exercised its independent discretion when ruling upon Defendant’s timely-filed motion. The
fact that the district court based its ruling on different grounds does not alter the
jurisdictional analysis. Insofar as the State argues that the district court is prohibited from
relying on different grounds from those raised by the moving party when it does go beyond
ten days of the entry of the verdict, the State points us to no authority in support of this
contention, and we are unaware of any. See generally In re Adoption of Doe, 1984-NMSC-
024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“We assume where arguments in briefs are
unsupported by cited authority, counsel after diligent search, was unable to find any
supporting authority.”). To the extent that the State invites us to adopt such a position, we
believe it would be contrary to the wording and intent of Rule 5-614, and therefore decline.
Cf. Moreland, 2007-NMCA-047, ¶ 22, (“Rule 5-614(A) could also be construed as reserving
to the district court a ‘reservoir of equitable power’ to assure that justice is done, and order
a new trial sua sponte beyond the thirty days specified in Rule 5-614(C).” (citation omitted)).
Accordingly, we conclude that the district court had jurisdiction to grant Defendant’s motion
for a new trial and proceed to address the merits of the district court’s ruling.

C.      The District Court’s Discretion to Grant a New Trial

{14} The State raises two general arguments challenging the district court’s grant of a new
trial: (1) the district court erred by finding that the State failed to provide notice of its intent
to use the prior controlled buys as evidence of prior bad acts and surprised Defendant as a
result; and (2) the evidence of the prior controlled buys was admissible under Rule 11-
404(B) because defense counsel’s opening statement placed Defendant’s intent, knowledge,
and possession of the drugs inside of the apartment at issue. In response, Defendant argues
that the State did not specifically designate its intent to introduce the controlled buys as prior
bad acts evidence with a permitted purpose, as required by Rule 11-404(B)(2). Apart from
lack of proper notice, Defendant further argues that the evidence of controlled buys
nonetheless was not admissible Rule 11-404(B) evidence because it had no purpose other
than to prove a prior propensity to act in a particular manner. For the reasons discussed
below, we affirm the district court’s finding that the State failed to provide adequate notice
of its intent to use the evidence of prior controlled buys under Rule 11-404(B) and conclude
that there was no abuse of discretion when the district court determined that this error was
sufficiently prejudicial to warrant a new trial.

{15} On appeal, we review the district court’s grant of a new trial for “clear and
unmistakable abuse of discretion.” Griffin, 1994-NMSC-061, ¶ 9. We apply a two-prong test
to determine whether the district court abused its discretion. Id. First, we determine whether
the grant of the new trial was premised upon legal error, and second, we evaluate “whether
the error is substantial enough to warrant the exercise of the [district] court’s discretion.” Id.
(internal quotation marks and citation omitted). No abuse of discretion occurs when there

                                                 5
are reasons to both support and detract from the district court’s ruling. Moreland, 2008-
NMSC-031, ¶ 9. “Because the trial judge has observed the demeanor of the witnesses and
has heard all the evidence, the function of passing on motions for new trial belongs naturally
and peculiarly to the trial court.” Id. (alteration, internal quotation marks, and citation
omitted).

1.      Legal error

{16} We turn first to the question of whether the district court correctly determined the
prosecution failed to provide adequate notice of its intent to offer Rule 11-404(B) evidence.
In granting a new trial, the district court orally concluded that Defendant was surprised by
the erroneous admission of the prior controlled buys. The State disputes this, arguing that
because the defense moved to exclude the statements of the CI on hearsay and confrontation
grounds in a pretrial motion, this indicated that the defense had sufficient actual notice of the
State’s intent to introduce evidence of the controlled buys. The State further argues that
during the hearing on Defendant’s motion, the prosecutor’s statement that the detective
should be allowed to testify about his observations as to the controlled buys sufficiently
alerted the defense to the issue.

{17} Inherent in the district court’s finding that the defense was surprised by this evidence
was a determination that any actual notice stemming from the discussion about defense
counsel’s motion in limine to exclude statements of the CI on other grounds was insufficient
under Rule 11-404(B)(2) to put the defense on notice of the nature of the prior bad acts
evidence to be presented at trial. Rule 11-404(B) states:

        (1) Prohibited [U]ses. Evidence of a crime, wrong, or other act is not
        admissible to prove a person’s character in order to show that on a particular
        occasion the person acted in accordance with the character.

        (2) Permitted [U]ses; [N]otice in a [C]riminal [C]ase. This evidence may
        be admissible for another purpose, such as proving motive, opportunity,
        intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
        accident. In a criminal case, the prosecution must

                (a) provide reasonable notice of the general nature of any such
                evidence that the prosecutor intends to offer at trial, and

                (b) do so before trial—or during trial if the court, for good cause,
                excuses lack of pretrial notice.

{18} Our case law states that it is incumbent upon the party seeking to offer Rule
11-404(B) evidence “to identify the consequential fact to which the proffered evidence of
other acts is directed.” State v. Lucero, 1992-NMCA-107, ¶ 10, 114 N.M. 489, 840 P.2d
1255. “The proponent of the evidence must demonstrate its relevancy to the consequential

                                               6
facts, and the material issue, such as intent, must in fact be in dispute.” State v. Elinski, 1997-
NMCA-117, ¶ 13, 124 N.M. 261, 948 P.2d 1209, overruled on other grounds by State v.
Tollardo, 2012-NMSC-008, 275 P.3d 110.

{19} We disagree with the State’s suggestion that the general discussion that occurred in
the course of the proceeding on Defendant’s hearsay objection, along with materials
provided in discovery, should be regarded as sufficient to provide reasonable notice of the
general nature of the evidence the State intended to present. In doing so, we acknowledge
that Rule 11-404(B)(2), while requiring a prosecutor to provide reasonable notice of prior
bad acts, does not provide specific guidance on exactly how this notice is to be
accomplished. As such, the plain language of the rule accommodates a certain amount of
flexibility. Nevertheless, at a minimum, the State must give direct notice that it specifically
intends to introduce prior bad acts evidence under Rule 11-404(B)(2) pursuant to an
articulated permissible use. See 3 Clifford S. Fishman, Jones on Evidence § 17:24, at 368
(7th ed. 1998) (“Notice should be sufficiently detailed to permit defendant to bring a motion
in limine. Disclosing the information in discovery rather than in response to the specific rule
. . . ‘misses the point’ of the rule, which is to inform the defendant of crimes the [s]tate
intends to introduce and to allow the defendant time to respond by motion in limine or
otherwise.” (footnotes omitted) (quoting State v. Houle, 642 A.2d 1178, 1181 (Vt. 1994)).
Here, although it may have become reasonably apparent that the State intended to introduce
evidence of the prior controlled buys, the State neither specifically invoked Rule 11-404(B)
nor made any attempt to identify the consequential fact or facts to which the prior bad acts
evidence in question might properly have been directed. See State v. Serna, 2013-NMSC-
033, ¶ 19, 305 P.3d 936 (holding that the State’s failure to inform the court of the relevance
of prior convictions beyond merely reciting the exceptions enumerated in Rule 11-404(B)
resulted in the erroneous admission of prior crimes evidence); State v. Gallegos, 2007-
NMSC-007, ¶ 25, 141 N.M. 185, 152 P.3d 828 (stating that a party seeking to introduce Rule
11-404(B) evidence must both “identify and articulate the consequential fact to which the
evidence is directed” and “cogently inform the court—whether the trial court or a court on
appeal—the rationale for admitting the evidence to prove something other than propensity”).

{20} We note that, had the indictment encompassed Defendant’s conduct during the
controlled buys, evidence concerning the controlled buys would not have been subject to
Rule 11-404(B)(2)’s notice requirement because such conduct would not have been an
“other act” under the rule. The fact that the conduct charged in the indictment did not include
Defendant’s conduct during the controlled buys may have been an oversight on the part of
the State, the implications of which were not specifically addressed by the defense, the State,
or the district court until the district court discovered the oversight. However, once the
district court discovered the oversight, realized that admission of the controlled buys
evidence was governed by the limitations of Rule 11-404(B), and concluded that the State
did not provide the required Rule 11-404(B)(2) notice, the district court acted well within
its discretion to address whether to order a new trial. See 3 Fishman, supra, § 17:24, at 367-
68 (“The court in its discretion may, under the facts, decide that the particular request or
notice was not reasonable, either because of the lack of timeliness or completeness.”

                                                7
(footnote omitted) (internal quotation marks and citation omitted)); see also Griffin, 1994-
NMSC-061, ¶ 9 (requiring “clear and unmistakable abuse of discretion” to reverse a district
court’s order for a new trial).

{21} Courts have long recognized the dangers of unfair surprise associated with prior bad
acts evidence. See State v. Martinez, 2008-NMSC-060, ¶ 23, 145 N.M. 220, 195 P.3d 1232.
Requiring prosecutors to provide advance notice of their intent to present such evidence at
trial serves significant purposes. See 3 Fishman, supra, § 17.19 at 360 (“Such notice permits
the defendant to move to challenge such admissibility prior to trial, avoids the risk that the
jury will be exposed to prejudicial material before the court can exclude it, and enables the
court to conduct a hearing, require briefs, etc., without disrupting the trial itself. A pretrial
ruling on admissibility also permits the parties to plan their strategy accordingly[.]”).
Enabling defense counsel to anticipate the presentation of Rule 11-404(B) evidence
facilitates intelligent objection and argument, provides greater opportunity for thoughtful
rulings that address all legitimate considerations and concerns, and tailors the evidence
presented to the specific circumstances. As a result, the State’s failure to give Defendant
articulated notice that it intended to use the prior controlled buys for some purpose allowed
under Rule 11-404(B)(2) resulted in legal error that the district court was entitled to address.

2.      Prejudice

{22} We turn next to the question of prejudice and address whether the prosecution’s
failure to notify the defense of its intent to introduce evidence of the prior controlled buys
was prejudicial and, if so, whether the prejudice was substantial enough to warrant an
exercise of the district court’s discretion. See Griffin, 1994-NMSC-061, ¶ 9 (stating that the
second prong of the two-prong test to determine whether the district court’s grant of a new
trial was an abuse of discretion involves “a determination of whether the error is substantial
enough to warrant the exercise of the [district] court’s discretion” (internal quotation marks
and citation omitted)). “[A] much stronger showing is required to overturn an order granting
the new trial than denying a new trial.” Id. ¶ 12 (internal quotation marks and citation
omitted). “A review of the action of the trial court in the exercise of its discretion does not
depend upon whether the appellate court would have reached the same conclusion.” State
v. Gonzales, 1986-NMCA-050, ¶ 14, 105 N.M. 238, 731 P.2d 381, overruled on other
grounds by State v. Tollardo, 2012-NMSC-008. We conclude that under the circumstances
presented in this case, the district court’s grant of a new trial was not an abuse of discretion.

{23} The district court determined that evidence of the prior controlled buys was
sufficiently prejudicial to warrant an exercise of its discretion to grant a new trial because,
as undisputed by the State, the prior uncharged controlled buys were: (1) the only evidence
linking Defendant to the apartment; (2) the only evidence linking Defendant to the co-
defendant; and (3) the only evidence linking Defendant to the drugs found inside the
apartment during the execution of the search warrant. The district court, having heard all
pretrial motions and the trial in its entirety, was in the best position to evaluate the
prejudicial effect of this important evidence on the trial as a whole, and our review of the

                                               8
record comports with the district court’s assessment of the importance of this evidence. See
Moreland, 2008-NMSC-031, ¶ 9 (providing that where evidence in the record both supports
and destracts from the district court’s grant of new trial, there is no abuse of discretion).

{24} Finally, the State argues that a new trial was unwarranted because the prior controlled
buys were admissible Rule 11-404(B) evidence to prove Defendant’s intent to distribute and
conspire to traffic cocaine, as well as to show Defendant’s knowledge, access, and control
over the drugs that were kept inside the apartment. In response, Defendant argues that the
evidence of prior controlled buys was unnecessary, overly prejudicial, and only offered for
the improper purpose of proving a prior propensity to act in a particular manner.

{25} At this juncture, however, we decline to resolve the question of whether evidence of
the prior controlled buys could have been admissible evidence under Rule 11-404(B)(2) to
show intent, knowledge, access, and control over the drugs at issue. Because the district
court did not rule upon the admissibility of this evidence based upon a lack of reasonable
notice and no prior opportunity to assess its admissibility for another purpose under Rule 11-
404(B)(2), that issue remains unresolved and this Court would be premature in addressing
such an evidentiary issue before the district court has made an informed ruling. It is the
district court’s responsibility to address the generally prejudicial nature of evidence of prior
drug transactions, see State v. Wrighter, 1996-NMCA-077, ¶ 11, 122 N.M. 200, 922 P.2d
582 (holding that, in a case involving a defendant charged with selling crack cocaine to a CI,
evidence of prior buys between that defendant and the same CI were not admissible to show
context, and, even assuming the evidence was admissible, it was more unfairly prejudicial
than probative and should have been excluded), and it is important that such evidence be
determined to have “real probative value, and not just possible worth on issues of intent,
motive, absence of mistake or accident, or to establish a scheme or plan.” Serna, 2013-
NMSC-033, ¶ 17 (internal quotation marks and citation omitted) (quoting State v. Mason,
1968-NMCA-072, ¶ 23, 79 N.M. 663, 448 P.2d 175). We conclude that the district court did
not abuse its discretion in determining that the prosecution’s failure to give notice of its
intent to offer evidence of Defendant’s prior bad acts under Rule 11-404(B) was sufficiently
prejudicial to warrant a new trial.

CONCLUSION

{26}   For the foregoing reasons, we affirm the district court’s grant of a new trial.

{27}   IT IS SO ORDERED.

                                               ____________________________________
                                               TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________

                                               9
JAMES J. WECHSLER, Judge

____________________________________
J. MILES HANISEE, Judge




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