                                                                     I attest to the accuracy and
                                                                      integrity of this document
                                                                        New Mexico Compilation
                                                                      Commission, Santa Fe, NM
                                                                     '00'04- 11:09:58 2017.05.23


         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMSC-017

Filing Date: April 27, 2017

Docket No. S-1-SC-34830

STATE OF NEW MEXICO,

       Plaintiff-Respondent,

v.

ASHLEY LE MIER,

       Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Donna J. Mowrer, District Judge

Bennett J. Baur, Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Petitioner

Hector H. Balderas, Attorney General
Jacqueline Rose Medina, Assistant Attorney General
Albuquerque, NM
for Respondent

                                          OPINION

NAKAMURA, Justice.

{1}     In this case, we clarify the circumstances under which a court may permissibly
exclude a witness as a discovery sanction. The district court issued clear, unambiguous, and
reasonable discovery orders to ensure that the parties would be prepared to try Defendant
Ashley Le Mier’s case in a timely fashion. The State failed to comply with these orders, and
the district court excluded one of the State’s essential witnesses as a sanction. The State
could not proceed to trial without the witness and appealed. The Court of Appeals held that
State v. Harper, 2011-NMSC-044, 150 N.M. 745, 266 P.3d 25, precluded imposition of the
sanction imposed and, thus, that the district court abused its discretion. State v. Le Mier, No.
33,493, mem. op. ¶¶ 1, 8-9 (N.M. Ct. App. July 22, 2014) (non-precedential). We disagree.

                                               1
Harper poses no obstacle to the sanction imposed. The district court’s order was an
appropriate exercise of its discretionary authority. The Court of Appeals is reversed.

                                               I.

{2}    Le Mier unsuccessfully attempted to smuggle illegal substances into the Roosevelt
County Detention Center (RCDC) by concealing them within a body cavity. The contraband
was discovered during a strip search, Le Mier was charged with three minor criminal
offenses, she was arraigned on June 18, 2012, and pled not guilty. Trial was initially set for
mid-January 2013 but was postponed and rescheduled three times: once early in the
proceedings to allow Le Mier’s initial counsel time to prepare, once midway through the
proceedings to allow Le Mier’s substitute counsel time to prepare, and once near the end of
the proceedings because the State could not locate all of its witnesses.

{3}      The discovery phase of the proceedings lasted eighteen months. During this time,
the State filed five different witness lists. Initially, eleven witnesses were enumerated, then
twelve, and finally nine. Sergeant Divine Alcanzo—the corrections officer who supervised
the strip search during which the contraband was discovered—appeared on all five witness
lists.

{4}     Le Mier’s substitute counsel, Margaret Strickland, entered her appearance in June
2013, a year after Le Mier’s arraignment. At that time, the State had filed its second witness
list, and Strickland made good faith efforts to contact the witnesses enumerated on that
witness list. Strickland could not, however, reach several of the witnesses at the addresses
provided—including Alcanzo, whose address was listed as the RCDC. Strickland alerted
the court to her difficulties at the hearing on her motion to continue trial in August 2013.

{5}     At that hearing, the State assured the court that it would provide Strickland correct
addresses for all witnesses. And as to Alcanzo, the State acknowledged that she no longer
worked at the RCDC, no longer resided in New Mexico, and promised to provide Strickland
her correct address. The record is silent as to when, precisely, the State learned these facts
about Alcanzo. Three times prior to the motion hearing, the State represented that Alcanzo
could be reached at the RCDC. In any case, the court granted Strickland’s motion to
continue and reset trial for October 2013.

{6}     Shortly after the hearing, the court entered a written order directing the State to file
an updated witness list with correct addresses for all witnesses and provided a date by which
this was to be accomplished. The State filed a third witness list by the date specified by the
court. The third witness list gave an Amarillo, Texas address for Alcanzo. But as before,
Strickland could not reach Alcanzo at that address despite her good faith efforts and
similarly could not reach several other witnesses enumerated in the third witness list at the
addresses provided by the State.

{7}    Strickland again alerted the court to the difficulties she was having locating and

                                               2
communicating with the State’s witnesses by filing a motion to exclude witnesses and by
alerting the court to the problem at a September 2013 pretrial conference. The court
remained optimistic that the parties could settle the witness address issues and instructed
them to meet and work towards some resolution.

{8}     A short time after the pretrial conference, the State filed a fourth witness list, which
gave yet another Amarillo, Texas address for Alcanzo. Once again, Strickland was unable
to reach Alcanzo at that address despite her good faith efforts and was also unable to reach
several other witnesses enumerated in the State’s fourth witness list at the addresses
provided.

{9}        In early October 2013, only a few days after the State filed its fourth witness list, the
court held a hearing on Strickland’s motion to exclude. At that hearing, the State
acknowledged that it too had not been able to contact or communicate with most of the
witnesses whom Strickland had been unable to contact. With this concession, the district
court became aware that the State had made insufficient efforts to confirm the accuracy of
the addresses provided, and had done this despite the fact that the court had ordered the State
to provide Strickland correct addresses for all witnesses. The court informed the State that
it was unfair to require Strickland to track down and communicate with witnesses the State
had not itself located and who might not even testify at trial. Hoping to finally put the
witness address issues to rest, the court once again ordered the State to provide Strickland
correct addresses for all witnesses and again specified a date by which this was to be
completed. The court took the additional step of requiring the State to facilitate a telephone
conversation between Strickland and Alcanzo. The court gave clear and explicit
instructions: “if you find [Alcanzo], provide a telephonic interview with Ms. Strickland for
her . . . . In other words, if you get her on the phone, you contact Ms. Strickland so that Ms.
Strickland can have a telephone conference at the same time, okay?” The State confirmed
that it understood the court’s instructions and its obligations. The court concluded the
hearing by informing the parties that it would reserve ruling on Strickland’s motion to
exclude witnesses up to the morning of trial. These rulings were memorialized in a written
order filed shortly after the hearing.

{10} Less than a week after the hearing on the motion to exclude, the State filed its fifth
witness list. And roughly two weeks later, at docket call in mid-October 2013, the State
claimed that it still had difficulty locating witnesses, including Alcanzo, and requested a trial
continuance. The State also had not yet facilitated the phone conversation between
Strickland and Alcanzo and explained to the district court that it understood that it was
required to facilitate the phone conversation only if it could locate Alcanzo. The court
informed the State that its understanding was mistaken and bluntly instructed the State that
it had to locate any witnesses it intended to call at trial and proceed with its case.
Nevertheless, the court granted the State’s continuance request, but did so only because it
was the first continuance the State requested and because Le Mier had already been granted
two continuances. Trial was reset for December 30, 2013, but the court made clear that trial
would not be postponed further.

                                                 3
{11} A status conference was held in early December 2013, and at the outset of the
conference the court emphasized that the December 30, 2013, trial setting was “firm.” The
State informed the court that it had finally confirmed Alcanzo’s address and promised that
it would facilitate the phone conversation between Strickland and Alcanzo right away. The
State did not follow through on its promise. Rather, it e-mailed Alcanzo’s phone number to
Strickland several days after the status conference. Strickland’s office staff called that
number several times, left messages, but received no response. At some point, an unknown
female caller telephoned Strickland’s office but refused to identify herself, uttered
expletives, and promptly terminated the phone call.

{12} Ten days before the final trial setting, Strickland filed an amended motion to exclude
witnesses. In that motion, she protested that the State still had neither facilitated the phone
conversation between her and Alcanzo nor provided accurate addresses for all witnesses.
Accordingly, she requested that Alcanzo and the two other witnesses with whom she had not
had any contact be excluded from testifying at trial.

{13} A final hearing on Strickland’s motion and amended motion to exclude witnesses was
conducted on December 23, 2013, one week before what both parties knew was the final trial
setting. The court asked the State why it still had not facilitated the phone conversation
between Strickland and Alcanzo, and this time the State replied that it believed it had
complied with the court’s order to facilitate the communication by providing Strickland with
Alcanzo’s phone number. With respect to the two other witnesses, the State informed the
court that it too had not been in touch with one of those witnesses and agreed not to call that
individual at trial. And as to the other witness, the State indicated that it had a phone
number where he could be reached.

{14} Plainly frustrated, the court considered requiring the State to procure Alcanzo that
very afternoon so that Strickland could interview her, but discussion with Strickland proved
that this was not a viable option. Accordingly, the court granted Le Mier’s request to
exclude Alcanzo. The court also excluded one of the other two witnesses whom Strickland
had been unable to reach. In a subsequently filed written order, the court concluded that the
State had been culpable in failing to comply with the court’s discovery orders, the State’s
failure to comply with the court’s orders prejudiced Le Mier, and no lesser sanctions were
available.

                                              II.

{15} In Harper, we embraced a pragmatic approach to guide courts in assessing whether
the sanction of witness exclusion is appropriate. 2011-NMSC-044, ¶ 15. Harper instructs
our courts to assess (1) the culpability of the offending party, (2) the prejudice to the
adversely affected party, and (3) the availability of lesser sanctions. Id. The present case
and others like it persuade us that our intentions in Harper have not been understood. See
State v. Ramos, No. 33,969, mem. op. ¶ 7 (N.M. Ct. App. Feb. 11, 2015) (non-precedential)
(agreeing that the state’s refusal to file a mandatory response to a dispositive pleading was

                                              4
both “troubling” and “inappropriate,” but nevertheless reversing the district court’s decision
to dismiss the charges against the defendant on grounds that Harper permits such a sanction
only where the state’s conduct is tantamount to a willful refusal to participate in discovery
such that the defendant is deprived of her ability to present a defense); State v. Maldonado,
No. 33,403, mem. op. ¶¶ 1-4 (N.M. Ct. App. Nov. 18, 2014) (non-precedential) (reversing
the district court’s decision to exclude three state witnesses who failed to appear at their
designated witness interviews and, thus, were not interviewed within the time frame required
by the district court’s scheduling order on grounds that Harper permits exclusion of
witnesses only where the defendant’s access to all evidence is precluded by the state’s
“intransigence”).

{16} Harper did not establish a rigid and mechanical analytic framework. Nor did Harper
embrace standards so rigorous that courts may impose witness exclusion only in response
to discovery violations that are egregious, blatant, and an affront to their authority. Such a
framework and such limitations would be unworkable in light of the fact that our courts’
authority to exclude witnesses is discretionary, Mathis v. State, 1991-NMSC-091, ¶ 13, 112
N.M. 744, 819 P.2d 1302, and courts must be able to avail themselves of, and impose,
meaningful sanctions where discovery orders are not obeyed and a party’s conduct injects
needless delay into the proceedings. See State ex rel. N.M. State Highway & Transp. Dep’t
v. Baca, 1995-NMSC-033, ¶ 11, 120 N.M. 1, 896 P.2d 1148.

{17} As a reviewing court, we cannot attempt to precisely delineate how trial courts are
to exercise their discretionary authority in the varied cases over which they must preside.
See Taylor v. Illinois, 484 U.S. 400, 414 (1988) (“[A] comprehensive set of standards to
guide the exercise of discretion in every possible case” is “neither necessary nor
appropriate.”). Similarly, we cannot second-guess our courts’ determinations as to how their
discretionary authority is best exercised. See United States v. Frasch, 818 F.2d 631, 633-34
(7th Cir. 1987) (observing that the task of a reviewing court considering a trial court’s
discretionary determination “is not to second-guess the decision, but only to ensure that the
trial court made a principled exercise of its discretion.”). As an appellate court, we
necessarily operate with imperfect information about the proceedings we review, and our
assessment of the propriety of the decision to impose or not to impose witness exclusion
must reflect this reality. See United States v. Harrington, 490 F.2d 487, 497 (2d Cir. 1973)
(Friendly, J., dissenting) (“[T]he majority has yielded to the temptation of second-guessing,
in the peace and quiet of appellate chambers, the reasoned action of an experienced [trial]
judge . . . .”).

{18} More critically, trial courts shoulder the significant and important responsibility of
ensuring the efficient administration of justice in the matters over which they preside, and
it is our obligation to support them in fulfilling this responsibility. The judiciary, like the
other co-equal branches of our state government, ultimately serves the people of New
Mexico. No one is well-served—not defendants, not victims, not prosecutors, not courts,
and certainly not the citizens of New Mexico—by a system of justice where cases needlessly
languish in some obscure netherworld because one or both of the parties lack the will or

                                              5
capacity to comply with basic discovery deadlines, and courts are either reluctant to impose
meaningful sanctions because they fear the prospect of reversal on appeal or have not taken
sufficient responsibility for ensuring the swift and efficient administration of justice. The
truth of this assertion is borne out quite plainly by the failed record of those jurisdictions
where a culture of delay has been permitted to flourish. See, e.g., William Glaberson,
Faltering Courts, Mired in Delays, N.Y. Times, Apr. 13, 2013,
http://www.nytimes.com/2013/04/14/nyregion/justice-denied-bronx-court-system-mired-i
n-delays.html (last visited March 10, 2017). The old adage “justice delayed is justice
denied” is well-worn because it is true.

{19} Where discovery violations inject needless delay into the proceedings, courts may
impose meaningful sanctions to effectuate their inherent power and promote efficient judicial
administration. See Baca, 1995-NMSC-033, ¶ 11 (recognizing that district courts “have
inherent power to impose a variety of sanctions . . . to regulate their docket, promote judicial
efficiency, and . . . command the obedience of litigants and their attorneys . . . . ” (internal
quotation marks and citations omitted)); see also State v. Stills, 1998-NMSC-009, ¶¶ 43-44,
125 N.M. 66, 957 P.2d 51 (affirming the district court’s decision to preclude witness
testimony as a sanction for defense counsel’s “delay tactics” and to ensure the “integrity of
the judicial system, and [the] efficient administration of justice”); 5 Wayne R. LaFave et al.,
Criminal Procedure § 20.6(b), at 596-97 (4th ed. 2015) (observing that some jurisdictions
allow district courts to utilize the power of exclusion to compel compliance with the rules
of discovery). Harper in no way circumscribed our courts’ authority to exercise this power,
and we now expressly authorize our courts to utilize witness exclusion to proactively
manage their dockets, achieve efficiency, and ensure that judicial resources—which are
greatly limited—are not wasted.

{20} Courts must evaluate the considerations identified in Harper—culpability, prejudice,
and lesser sanctions—when deciding whether to exclude a witness and must explain their
decision to exclude or not to exclude a witness within the framework articulated in Harper,
but it is not the case that witness exclusion is justified only if all of the Harper
considerations weigh in favor of exclusion. As one court explained, “[o]n occasion the
district court may need to suppress evidence that did not comply with discovery orders to
maintain the integrity and schedule of the court even though the defendant may not be
prejudiced.” See United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir. 1988). What is
embodied in this observation is a view we have always embraced: Whether it is proper to
exclude a witness is not a simple choice easily resolved by reference to some basic judicial
arithmetic. The question requires our courts to navigate an array of concerns and to exercise
their discretionary power with practical wisdom and due care. See State v. Guerra,
2012-NMSC-014, ¶ 33, 278 P.3d 1031 (“The decision to exclude evidence calls on judicial
discretion to weigh all the circumstances . . . .”).

{21} When exercising their discretionary power, our courts must be ever mindful of the
fact that witness exclusion is a severe sanction and one that should be utilized as a sanction
of last resort. See Harper, 2011-NMSC-044, ¶ 21. Witness exclusion may harm the

                                               6
community’s interest by detrimentally affecting the prosecution’s ability to see an offender
brought to justice and, conversely, can thwart the accused’s opportunity to demonstrate
innocence. See 5 LaFave, supra, § 20.6(b), at 594 (observing that the exclusion of the
prosecution’s evidence adversely affects “the interests of the community, the party
represented by the prosecutor”); 22A C.J.S. Criminal Procedure and Rights of the Accused
§ 465, at 210 (2016) (“[E]xclusion of exculpatory evidence implicates the defendant’s
constitutional right to defend himself or herself.”). For these reasons, our courts do not
possess unfettered discretionary authority to impose witness exclusion; but, nor is that
discretion so limited that it amounts to no discretion at all.

{22} In sum, we merely reiterate what was true well before Harper: Trial courts possess
broad discretionary authority to decide what sanction to impose when a discovery order is
violated. See, e.g., State v. Johnson, 1977-NMCA-109, ¶ 4, 91 N.M. 148, 571 P.2d 415.
The propriety of a trial court’s decision to exclude or not to exclude witnesses is reviewed
for abuse of discretion. Guerra, 2012-NMSC-014, ¶ 23. “An abuse of discretion occurs
when the ruling is clearly against the logic and effect of the facts and circumstances of the
case. We cannot say the trial court abused its discretion by its ruling unless we can
characterize it as clearly untenable or not justified by reason.” State v. Rojo, 1999-NMSC-
001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citations omitted). In
reviewing the district court’s decision, this Court views the evidence—and all inferences to
be drawn from the evidence—in the light most favorable to the district court’s decision.
Mathis, 1991-NMSC-091, ¶ 13.

                                             III.

{23} In this case, a basic discovery rule was flagrantly violated: “Unless a shorter period
of time is ordered by the court, within ten (10) days after arraignment . . . the state shall
disclose or make available to the defendant: . . . a written list of the names and addresses of
all witnesses which the prosecutor intends to call at the trial . . . .” Rule 5-501(A)(5)
NMRA. This rule would have little or no practical value if it were not true that it requires
the state to provide correct witness addresses. See State v. Orona, 1979-NMSC-011, ¶ 6,
92 N.M. 450, 589 P.2d 1041 (“[T]he purpose of [requiring the state to provide the defendant
a witness list is] to assist defense counsel in the preparation of a defense by providing the
opportunity to interview the government’s witnesses.”), holding limited on other grounds
by State v. Jojola, 2006-NMSC-048, ¶¶ 5, 12, 140 N.M. 660, 146 P.3d 305. It is
understandable that in certain circumstances locating a witness’s correct address may take
more time than the rule allows. This is precisely what happened in the present case and the
district court was appropriately lenient. Nevertheless, a threshold was crossed. Despite
repeated orders, the State failed to provide correct witness addresses—for Alcanzo and other
witnesses—throughout nearly the entirety of the eighteen-month discovery period. The State
also failed to facilitate the phone call between Strickland and Alcanzo as ordered. When
considering Strickland’s amended motion to exclude, the district court appropriately
evaluated the State’s culpability, whether the State’s conduct gave rise to prejudice, and
whether excluding Alcanzo was the least severe sanction appropriate under the facts and

                                              7
circumstances of this case.

{24} The district court did not abuse its discretion in finding the State culpable. Parties
must obey discovery orders. See State v. Layne, 2008-NMCA-103, ¶ 13, 144 N.M. 574, 189
P.3d 707 (quoting State v. Doe, 1978-NMCA-124, ¶ 8, 92 N.M. 354, 588 P.2d 555) (“[U]pon
failure to obey a discovery order, the court may enter such order as is appropriate under the
circumstances.”) (alteration in original) (internal quotation marks omitted)). Our system of
justice would be neither orderly nor efficient if this were not true. The court repeatedly
ordered the State to provide Strickland correct witness addresses and the State repeatedly
failed to comply. This is sufficiently culpable conduct to justify exclusion. While here the
violations were multiple, a single violation of a discovery order may suffice to support a
finding of culpability. Moreover, the court’s orders were clear and unambiguous, and the
violation of clear and unambiguous orders is only further proof of culpable conduct. Cf.
Harper, 2011-NMSC-044, ¶¶ 7, 27-28 (taking into consideration the fact that the district
court’s order, as well as the court’s commentary at hearings, was vague in reversing the
district court’s decision to preclude witness testimony).

{25} Similarly, we find no abuse of discretion in the district court’s conclusion that the
State’s failure to comply with the court’s discovery orders gave rise to prejudice. When a
court orders a party to provide discovery within a given time frame, failure to comply with
that order causes prejudice both to the opposing party and to the court. Le Mier was
prejudiced in two ways. The court had to reset trial as a consequence of the State’s inability
to locate its witnesses and provide Strickland correct witness addresses, and this prejudiced
Le Mier by needlessly delaying her proverbial “day in court.” In addition, the State’s
conduct forced Strickland into an unenviable position she quite understandably wished to
avoid. Trial was imminent and Strickland had not yet communicated with Alcanzo (an
essential witness) and other named State witnesses. These circumstances subjected
Strickland to the possibility of trial by surprise and, thus, prejudiced Le Mier. See McCarty
v. State, 1988-NMSC-079, ¶ 14, 107 N.M. 651, 763 P.2d 360 (“[T]he ends of justice will
best be served by a system of liberal discovery which gives both parties the maximum
possible amount of information with which to prepare their cases and thereby reduces the
possibility of surprise at trial.” (internal quotation marks and citation omitted)); see also
Scipio v. State, 928 So. 2d 1138, 1144 (Fla. 2006) (“[T]he chief purpose of our discovery
rules is to assist the truth-finding function of our justice system and to avoid trial by surprise
or ambush.”).

{26} The district court was also prejudiced in two ways. The State’s inability to provide
Strickland correct witness addresses required the court to dedicate its time and resources to
a needless and wasteful cause: ensuring compliance with basic discovery rules and orders.
Courts need not suffer nor tolerate a party’s inability to comply with rules and orders but
must instead ensure that the party’s non-compliance does not result in the waste of judicial
resources. Here, the court’s time was wasted, and this is prejudicial. Additionally, the
State’s dilatory conduct disrupted the court’s docket in that the State’s inability to locate its
witnesses necessitated continuing and resetting trial. This is no minor inconvenience. When

                                                8
courts cordon off dates for particular parties and proceedings, they necessarily commit to not
hearing other equally important matters involving other parties. When a party accepts a
setting only to later abandon it for no meritorious reason, other parties and the justice system
as a whole suffers. This is precisely what happened here, and this gave rise to prejudice.

{27} Lastly, we are persuaded that witness exclusion was the least severe sanction in light
of the circumstances of this case. We reach this conclusion for the following three reasons.
First, the district court was not obligated to consider every conceivable lesser sanction before
imposing witness exclusion. To require this would be to significantly impinge upon and
curtail the court’s broad discretionary authority to fashion appropriate sanctions for
discovery violations. See State v. Martinez, 1998-NMCA-022, ¶ 8, 124 N.M. 721, 954 P.2d
1198 (observing that the district court possesses a “breadth of discretion” to fashion
sanctions). Rather, the court was only required to fashion the least severe sanction that best
fit the situation and which accomplished the desired result. Id.

{28} Second, the court gave the State multiple and varying opportunities to cure its
discovery violations and imposed exclusion only after progressive sanctions failed to
produce the desired effect. From the time she first entered her appearance, Strickland
repeatedly asked for correct addresses for all witnesses including Alcanzo. The court
ordered the State—twice by written order and numerous times orally at hearings—to provide
correct addresses for all witnesses. Yet, the State did not comply with these orders and did
not provide Strickland with Alcanzo’s correct address until late in the proceedings. As
discovery dragged on and it became clear to the court that the State was having difficulty
identifying Alcanzo’s correct address, the court quite sensibly pursued an alternative strategy
and ordered the State to facilitate a phone conversation between Strickland and Alcanzo.
The State also did not comply with this order. Additionally, the court granted the State’s
continuance request and rescheduled trial to permit the State more time to locate Alcanzo
and other witnesses. These facts demonstrate that the court gave the State ample opportunity
to comply with reasonable and clear orders and imposed exclusion only after implementing
progressively more stringent requirements that were designed to bring the State into
compliance. Progressive sanctions may be impractical or infeasible in some cases. But
when they are imposed, evidence of their utilization most certainly bears on whether a court
imposed the least severe sanction appropriate given the circumstances presented.

{29} Third, we are persuaded that, by electing to exclude Alcanzo, the district court
responded to the specific violation at issue with a sanction tailored to fit that violation.
Moreover, the sanction imposed simultaneously ensured that the court’s authority to
efficiently administer the law and ensure compliance with its orders was vindicated. We
reiterate that our courts need not stand idly by and tolerate dilatory conduct by the parties.
Rather, our courts are encouraged to ensure the timely adjudication of cases, to proactively
manage their dockets, and to utilize appropriate sanctions to vindicate the public’s interest
in the swift administration of justice. It is clear that the district court was effectuating these
very interests when it excluded Alcanzo and we will not second-guess the court’s judgment
that exclusion was the most effective and least severe way to achieve the desired ends.

                                                9
                                            IV.

{30} The district court did not abuse its discretion in excluding Alcanzo from testifying
at Le Mier’s trial. The Court of Appeals’ opinion is reversed, and the district court’s order
excluding Alcanzo is affirmed. The matter is remanded to the district court for proceedings
consistent with this opinion.

{31}   IT IS SO ORDERED.

                                              ____________________________________
                                              JUDITH K. NAKAMURA, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
BARBARA J. VIGIL, Justice




                                             10
