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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                            NO. 33,552

 5 JOSEPH NEAL,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 8 James Waylon Counts, District Judge

 9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender
14 Allison H. Jaramillo, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 ZAMORA, Judge.

19   {1}    Defendant, Joseph Neal, appeals from his convictions for trafficking

20 methamphetamine, contrary to NMSA 1978, Section 30-31-20(A)(1) (2006), and
 1 possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A)

 2 (2001). Defendant argues that (1) he received ineffective assistance of counsel, (2)

 3 the State presented insufficient evidence to sustain his convictions, (3) his

 4 convictions violate the prohibition against double jeopardy, and (4) the district court

 5 erred in denying his motion for a mistrial after it read an incorrect charge to the jury.

 6 We affirm.

 7 I.      BACKGROUND

 8   {2}   In the early morning hours of September 24, 2011, Jerry Wheeler, the owner

 9 of a storage facility in Alamogordo, New Mexico, drove by the facility and noticed

10 a white vehicle parked outside one of the storage units. Mr. Wheeler saw Defendant

11 exit the storage unit. As Mr. Wheeler approached, he also saw an unidentified woman

12 and noticed that there were mattresses on the floor of the unit. It appeared to Mr.

13 Wheeler that someone may have stayed in the unit overnight. Mr. Wheeler told

14 Defendant and the unidentified woman that he had called the police. Defendant drove

15 away from the storage facility, leaving the woman behind.

16   {3}   The woman eventually identified herself to Mr. Wheeler as Ameera Itani and

17 told him that she had permission to access the storage unit, which was rented by her

18 mother, Janet Styger. When the police arrived, Ms. Itani was still present at the




                                               2
 1 storage facility. Mr. Wheeler could not reach Mrs. Styger, so a police officer took Ms.

 2 Itani home.

 3   {4}   Mr. Wheeler’s wife, Naomi, called Mrs. Styger. Mrs. Styger met the Wheelers

 4 at the storage facility and gave them permission to enter the storage unit. Inside the

 5 unit, the Wheeler’s discovered several items that concerned them including: a bottle

 6 of acetone, drain cleaner, muriatic acid, and a backpack, which contained several

 7 packages of matches and packages of pills. Mrs. Wheeler and Mrs. Styger placed

 8 those items outside the storage unit.

 9   {5}   Police returned to the storage unit and ultimately seized a number of items that

10 appeared to be components of a mobile methamphetamine lab. At least one item, a

11 black scale, seized from the storage unit had methamphetamine residue on it.

12 Defendant was charged with trafficking methamphetamine by manufacturing and

13 possession of drug paraphernalia. Defendant was also charged with abandonment or

14 abuse of a child because his and Ms. Itani’s infant was present with them at the

15 storage unit on the morning of September 24, 2011.

16   {6}   At Defendant’s first trial, the district court entered a directed verdict on the

17 child abuse charge. After the case was submitted to the jury, one juror suffered an

18 injury that prevented her from participating in deliberations. Because there were no

19 alternate jurors, the district court declared a mistrial. Defendant was tried a second


                                               3
 1 time and convicted of trafficking methamphetamine and possession of drug

 2 paraphernalia.

 3 II.     DISCUSSION

 4 A.      Ineffective Assistance of Counsel

 5   {7}   Defendant claims that he received ineffective assistance of counsel because (1)

 6 his attorney concurrently represented one of the State’s witnesses; and (2) his attorney

 7 did not move to disqualify the prosecutor, based on the prosecutor’s previous

 8 representation of Defendant. “We review claims of ineffective assistance of counsel

 9 de novo.” State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44.

10   {8}   “The Sixth Amendment to the United States Constitution, applicable to the

11 states through the Fourteenth Amendment, guarantees . . . the right to the effective

12 assistance of counsel.” Patterson v. LeMaster, 2001-NMSC-013, ¶ 16, 130 N.M. 179,

13 21 P.3d 1032 (internal quotation marks and citation omitted). “When an ineffective

14 assistance claim is first raised on direct appeal, we evaluate the facts that are part of

15 the record.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. “[A]n

16 appellate court may remand a case for an evidentiary hearing if the defendant makes

17 a prima facie case of ineffective assistance.” State v. Paredez, 2004-NMSC-036, ¶ 22,

18 136 N.M. 533, 101 P.3d 799 (internal quotation marks and citation omitted).




                                               4
 1   {9}    “A prima facie case of ineffective assistance is made by showing that defense

 2 counsel’s performance fell below the standard of a reasonably competent attorney

 3 and, due to the deficient performance, the defense was prejudiced.” Patterson, 2001-

 4 NMSC-013, ¶ 17 (internal quotation marks and citation omitted). As to the first

 5 prong, “[d]efense counsel’s performance is deficient if it falls below an objective

 6 standard of reasonableness[,]” usually judged as an action contrary to “that of a

 7 reasonably competent attorney.” Dylan J., 2009-NMCA-027, ¶ 37. Our review of

 8 counsel’s performance is “highly deferential” in that counsel is “strongly presumed

 9 to have rendered adequate assistance and made all significant decisions in the

10 exercise of reasonable professional judgment.” Id. (internal quotation marks and

11 citation omitted). Therefore, a defendant “must overcome the presumption that, under

12 the circumstances, the challenged action might be considered sound trial strategy.”

13 State v. Hunter, 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168 (internal

14 quotation marks and citation omitted). “If there is a plausible, rational strategy or

15 tactic to explain counsel’s conduct, a prima facie case for ineffective assistance is not

16 made.” Dylan J., 2009-NMCA-027, ¶ 39.

17   {10}   As to the second prong, “[a] defense is prejudiced if, as a result of the deficient

18 performance, there was a reasonable probability that . . . the result of the trial would

19 have been different.” Id. ¶ 38 (omission in original) (internal quotation marks and


                                                 5
 1 citation omitted). “A reasonable probability is one that is sufficient to undermine

 2 confidence in the outcome.” Id. (internal quotation marks and citation omitted). The

 3 deficient performance “must represent so serious a failure of the adversarial process

 4 that it undermines judicial confidence in the accuracy and reliability of the outcome.”

 5 Id. (internal quotation marks and citation omitted). A defendant is entitled to an

 6 evidentiary hearing on his ineffective assistance claim when the record on appeal

 7 presents “a prima facie case of ineffective assistance of counsel.” State v. Herrera,

 8 2001-NMCA-073, ¶ 35, 131 N.M. 22, 33 P.3d 22.

 9 1.       Defense Counsel’s Conflict of Interest

10   {11}   Defendant alleges that an actual conflict of interest arose from defense

11 counsel’s concurrent representation of Defendant and Ms. Itani, who testified for the

12 State. An ineffective assistance of counsel claim based on defense counsel’s conflict

13 of interest is analyzed differently than the “more typical ineffective assistance of

14 counsel claim based on lack of competence and resulting prejudice.” Rael v. Blair,

15 2007-NMSC-006, ¶ 10, 141 N.M. 232, 153 P.3d 657. “A defendant must show that

16 counsel, actively represented conflicting interests and that an actual conflict of

17 interest adversely affected his or her lawyer’s performance.” Id. ¶ 11 (alteration,

18 internal quotation marks, and citation omitted). When “counsel is burdened by an

19 actual conflict of interest[,]” prejudice is presumed. Id. (internal quotation marks and


                                              6
 1 citation omitted). “In those circumstances, counsel breaches the duty of loyalty,

 2 perhaps the most basic of counsel’s duties.” Id. (internal quotation marks and citation

 3 omitted).

 4   {12}   Although the State does not dispute Defendant’s contention that his attorney

 5 represented Ms. Itani, who was also charged in connection with the facts giving rise

 6 to this case, facts regarding that representation were not made part of the district court

 7 record. To the extent that Defendant refers us to https://caselookup.nmcourts.gov/,

 8 and suggests that we take judicial notice of court records therein for facts regarding

 9 this claim, we decline to do so.

10   {13}   “When an ineffective assistance claim is first raised on direct appeal, we

11 evaluate the facts that are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19,

12 132 N.M. 657, 54 P.3d 61. In order to establish a prima facie case of ineffective

13 assistance, Defendant must establish both attorney error and prejudice by producing

14 “enough evidence to allow the fact-trier to infer the fact at issue and rule in

15 [Defendant's] favor.” State v. Crocco, 2014-NMSC-016, ¶ 24, 327 P.3d 1068

16 (alteration in original) (internal quotation marks and citation omitted). Because

17 Defendant cannot establish a prima facie case of ineffective assistance based on the

18 facts in the record, we “cannot determine that trial counsel provided constitutionally

19 ineffective assistance.” Id. ¶ 15.


                                               7
 1 2.       Prosecutor’s Conflict of Interest

 2   {14}   Defendant claims that defense counsel provided ineffective assistance when he

 3 failed to move to disqualify the prosecuting attorney. After Defendant’s trial, the

 4 State filed a supplemental criminal information concerning Defendant’s status as a

 5 habitual offender. At the arraignment on the supplemental information, defense

 6 counsel informed the district court that Defendant believed that the prosecutor had

 7 a conflict of interest. The exchange between counsel and the court proceeded as

 8 follows:

 9          Counsel: One of the other things that my client has raised, and it came
10          up this morning, is the idea that, well, I’ll do it by motion, in regard that
11          [Defendant] feels that there’s been a conflict in regard to the prosecution
12          of this case since [the prosecutor] represented [Defendant] in three
13          previous hearings, three other charges when he worked for Mr. Mitchell.
14          But I’ll do that by motion.

15          Court: Well. You can file your motion on that.

16   {15}   Counsel never filed a motion concerning the prosecutor’s alleged conflict.

17 Defendant argues that counsel’s failure to seek disqualification of constituted

18 ineffective assistance of counsel. Specifically, Defendant argues that because the

19 prosecutor represented him previously, the prosecutor was privy to confidential

20 information about Defendant that could have been used against him. However,

21 Defendant did not raise the issue of the prosecutor’s alleged conflict until the habitual

22 offender proceeding—well after the trial and multiple hearings had concluded in this

                                                 8
 1 case. And the evidence concerning counsel’s performance is not fully developed in

 2 the record.

 3   {16}   Because the record before us is does not contain the facts necessary to review

 4 either Defendant’s ineffective assistance of counsel claims, we conclude that both

 5 claims are more appropriately brought through a habeas corpus petition. See id. ¶ 14;

 6 see also Crocco, 2014-NMSC-016, ¶ 24 (noting that “[i]f facts beyond those in the

 7 record on appeal could establish a legitimate claim of ineffective assistance of

 8 counsel, [the d]efendant may assert it in a habeas corpus proceeding where an

 9 adequate factual record can be developed for a court to make a reasoned

10 determination of the issues.”).

11 3.       Prosecutor’s Failure to Disclose Potential Conflict of Interest

12   {17}   It is important to note that while it was the Defendant who raised the

13 prosecutor’s conflict of interest in this case, we find it peculiar that the prosecutor

14 proceeded through trial and sentencing without alerting the district court to the

15 potential conflict of interest arising from his prior representation of Defendant. We

16 are troubled that the prosecutor did not disclose the potential conflict of interest to the

17 district court himself.

18   {18}   This Court has acknowledged the significant risk of a conflict of interest where

19 a prosecuting attorney represents the state in a case against that attorney’s former


                                                9
 1 client. See State v. Barnett, 1998-NMCA-105, ¶¶ 22-24, 125 N.M. 739, 965 P.2d 323.

 2 A prosecuting attorney is afforded broad discretion throughout a criminal

 3 prosecution. State v. Surratt, 2016-NMSC-004, ¶ 14, 363 P.3d 1204 (recognizing the

 4 broad charging authority of prosecuting attorneys); March v. State, 1989-NMSC-065,

 5 ¶ 4, 109 N.M. 110, 782 P.2d 82 (acknowledging that a “prosecutor has discretion to

 6 seek or not to seek enhanced sentencing”); State v. Gardea, 1999-NMCA-116, ¶ 5,

 7 128 N.M. 64, 989 P.2d 439 (“It is generally accepted that the prosecutor has wide

 8 discretion to dismiss criminal charges.”). The risk that confidential information

 9 revealed during the prior representation will be used against the defendant is

10 heightened, particularly when the prosecuting attorney is called upon to make

11 discretionary decisions in the course of the criminal prosecution. See Barnett, 1998-

12 NMCA-105, ¶ 22.

13   {19}   As with all lawyers, a prosecutor’s conduct should always be constrained by

14 his duty to avoid even an appearance of impropriety. See Leon, Ltd. v. Carver, 1986-

15 NMSC-015, ¶ 10, 104 N.M. 29, 715 P.2d 1080. A prosecutor’s responsibility,

16 however, exceeds that of an advocate. See Rule 16-308 NMRA Committee

17 Commentary (stating that a prosecutor, “has responsibility of a minister of justice and

18 not simply that of an advocate. This responsibility carries with it specific obligations

19 to see that the defendant is accorded procedural justice”). And our Supreme Court has


                                              10
 1 recognized that prosecutors generally have a duty to timely disclose potential

 2 conflicts of interest. Rael, 2007-NMSC-006, ¶ 27 (noting that when prosecutors fulfill

 3 their duty to timely disclose potential conflicts of interest, they enable the trial judge

 4 to evaluate potential conflicts, decide motions to disqualify, and rule appropriately

 5 on waivers and thus avoid problems arising later in trial or retrials).

 6   {20}   Moreover, the Rules of Professional Conduct mandate that “[a] lawyer who has

 7 formerly represented a client in a matter shall not thereafter represent another person

 8 in the same or a substantially related matter in which that person’s interests are

 9 materially adverse to the interests of the former client unless the former client gives

10 informed consent, confirmed in writing.” Rule 16-109(A) NMRA. This protects the

11 former client “the risk that a lawyer may inadvertently use the confidences or secrets

12 of a former client against him.” Leon, Ltd., 1986-NMSC-015, ¶ 10.

13   {21}   For purposes of the integrity of the profession and in the interest of justice, the

14 prosecutor had an affirmative duty to alert the court that he had previously

15 represented Defendant and the context in which he represented Defendant. The duty

16 to timely disclose potential conflicts of interest is not fulfilled by sitting idle.

17 B.       Sufficiency of the Evidence

18   {22}   Defendant claims that the State presented insufficient evidence to sustain his

19 convictions. When we review Defendant’s claim of insufficiency of the evidence, “we


                                                11
 1 [must] determine whether substantial evidence, either direct or circumstantial, exists

 2 to support a verdict of guilty beyond a reasonable doubt for every essential element

 3 of the crime.” State v. Brenn, 2005-NMCA-121, ¶ 4, 138 N.M. 451, 121 P.3d 1050.

 4 We must also “view the evidence in the light most favorable to the guilty verdict,

 5 indulging all reasonable inferences and resolving all conflicts in the evidence in favor

 6 of the verdict. In that light, the Court determines whether any rational trier of fact

 7 could have found the essential elements of the crime beyond a reasonable doubt.”

 8 State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (internal quotation marks and

 9 citations omitted). Defendant asserts no challenge to the propriety of the jury

10 instructions at his trial. Thus, if the evidence received at trial included “such relevant

11 evidence as a reasonable mind might accept as adequate to support” the facts required

12 by these instructions, Defendant’s challenge to the sufficiency of that evidence must

13 fail. State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal

14 quotation marks and citation omitted).

15 1.       Trafficking Methamphetamine by Manufacturing

16   {23}   In relevant part, the jury instruction on trafficking by manufacturing provided

17 that in order to find Defendant guilty of trafficking methamphetamine by

18 manufacturing, the State had to prove beyond a reasonable doubt, that on or about

19 September 24, 2011, Defendant manufactured methamphetamine, knowing that it was


                                               12
 1 methamphetamine. The jury was also instructed on accomplice liability. Thus,

 2 according to the given instruction, Defendant could be found guilty of trafficking

 3 methamphetamine by manufacturing if the State proved that the crime was in fact

 4 committed; “[D]efendant intended that the crime be committed; [and D]efendant

 5 helped, encouraged[,] or caused the crime to be committed.”

 6   {24}   The evidence at trial included Ms. Itani’s testimony that on multiple occasions

 7 she and Defendant purchased pseudoephedrine, and Defendant used it to make

 8 methamphetamine. Ms. Itani further testified that on September 22, 2011, she and

 9 Defendant went to Walgreens to purchase pseudoephedrine, as they had done before.

10 On the evening of September 23, 2011, Ms. Itani drove Defendant to the apartment

11 he shared with his brother. According to Ms. Itani, neither she nor Defendant had

12 methamphetamine at the time she dropped Defendant off, but Defendant took the

13 pseudoephedrine they purchased the day before and was planning to use it to make

14 methamphetamine while he was at the apartment. When Ms. Itani picked Defendant

15 up several hours later, he had methamphetamine and was carrying a backpack she

16 believed to contain materials used in the manufacture of methamphetamine.

17 According to Agent Albert Mora of the New Mexico State Police, who had fourteen

18 years experience as a narcotics officer and was on the methamphetamine lab team for




                                              13
 1 more than ten years, two or three hours is a sufficient time frame in which to produce

 2 methamphetamine once all the necessary materials are obtained.

 3   {25}   In sum, the State presented evidence Defendant and Ms. Itani regularly

 4 purchased pseudoephedrine for him to use in the manufacture of methamphetamine,

 5 Defendant did not have methamphetamine with him when Ms. Itani dropped him off

 6 at his apartment, Defendant took pseudoephedrine with him to his apartment to use

 7 to manufacture methamphetamine, Defendant had methamphetamine with him several

 8 hours later when Ms. Itani picked him up, and several hours is enough time to

 9 manufacture methamphetamine. Viewing this evidence in the light most favorable to

10 the verdict and drawing all reasonable inferences therefrom, there was sufficient

11 evidence from which the jury could have reasonably concluded that Defendant

12 manufactured methamphetamine. See State v. Cunningham, 2000-NMSC-009, ¶ 26,

13 128 N.M. 711, 998 P.2d 176 (“In reviewing the sufficiency of the evidence, we must

14 view the evidence in the light most favorable to the guilty verdict, indulging all

15 reasonable inferences and resolving all conflicts in the evidence in favor of the

16 verdict.”). Thus, we conclude that Defendant’s conviction for trafficking

17 methamphetamine by manufacture is supported by sufficient evidence.

18 2.       Possession of Drug Paraphernalia




                                             14
 1   {26}   In order to convict Defendant of possession of drug paraphernalia, the jury was

 2 instructed that it must find, in relevant part, that on or about September 24, 2011,

 3 Defendant knowingly had drug paraphernalia, specifically: “mixing containers,

 4 muriatic acid, drain cleaner, acetone, matches, a coffee filter[,] and/or a black

 5 scale[,]” in his possession, and intended to use such items to “plant, propagate,

 6 cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare,

 7 test, analyze, pack, repack, ingest, [or] inhale” methamphetamine.

 8   {27}   At trial, Ms. Itani identified the backpack police seized from her mother’s

 9 storage unit as the same backpack Defendant had when she picked him up on

10 September 23, 2011; the same backpack that Defendant left behind when he left the

11 storage unit on September 24, 2011. Agent Mora testified that the black scale, which

12 contained pseudoephedrine and methamphetamine residue was taken from

13 Defendant’s backpack on September 24, 2011, prior to being photographed and

14 seized. Based on the testimony, we conclude that there was sufficient evidence to

15 support Defendant’s conviction for possession of drug paraphernalia. See id.

16 C.       Double Jeopardy

17 1.       Defendant’s Convictions Do Not Violate Double Jeopardy

18   {28}   Defendant argues that his convictions for trafficking by manufacturing and

19 possession of paraphernalia violate the prohibition against double jeopardy because


                                              15
 1 the same evidence formed the basis of both convictions. Defendant took particular

 2 issue with the language of the two jury instructions in that “the items that formed the

 3 basis for the paraphernalia conviction are the items used to manufacture

 4 methamphetamine.”

 5   {29}   “A double jeopardy challenge is a constitutional question of law which we

 6 review de novo.” State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. The Fifth

 7 Amendment of the United States Constitution, made applicable to New Mexico by

 8 the Fourteenth Amendment, prohibits double jeopardy and “functions in part to

 9 protect a criminal defendant against multiple punishments for the same offense.” Id.

10 (internal quotation marks and citation omitted). Double jeopardy cases involving

11 multiple punishments are classified as either double-description cases, “where the

12 same conduct results in multiple convictions under different statutes,” or unit-of-

13 prosecution cases, “where a defendant challenges multiple convictions under the same

14 statute.” Id. The present case is a double-description case because Defendant

15 challenges two convictions under different statutes for what he claims is the same

16 conduct.

17   {30}   Double-description cases involve a two-part analysis. Swafford v. State, 1991-

18 NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. First, we consider “whether the

19 conduct underlying the offenses [was] unitary.” Id.; see Swick, 2012-NMSC-018,


                                              16
 1 ¶ 11; State v. Melendrez, 2014-NMCA-062, ¶ 7, 326 P.3d 1126. “[R]eviewing

 2 whether conduct is unitary in the double jeopardy context, we indulge in all

 3 presumptions in favor of the verdict.” State v. Herrera, 2015-NMCA-116, ¶ 12, 362

 4 P.3d 167 (internal quotation marks and citation omitted), cert. denied, 2015-

 5 NMCERT-010, 369 P.3d 372. If the conduct is not unitary, there is no double

 6 jeopardy violation. See State v. Contreras, 2007-NMCA-045, ¶ 20, 141 N.M. 434,

 7 156 P.3d 725. If the conduct is unitary, we must determine “whether the [L]egislature

 8 intended to create separately punishable offenses.” Swafford, 1991-NMSC-043, ¶ 25.

 9   {31}   Turning to the first prong of our analysis, whether the conduct was unitary we

10 review the elements of the charged offenses. State v. Vance, 2009-NMCA-024, ¶ 13,

11 145 N.M. 706, 204 P.3d 31. Then we consider whether the facts presented at trial are

12 sufficient to support the elements of both crimes. Id. “The proper analytical

13 framework is whether the facts presented at trial establish that the jury reasonably

14 could have inferred independent factual bases for the charged offenses.” Id. (internal

15 quotation marks and citation omitted); see State v. Olsson, 2014-NMSC-012, ¶ 37,

16 324 P.3d 1230 (“In a double[-]description case the primary inquiry is whether the

17 facts presented at trial establish that the jury reasonably could have inferred

18 independent factual bases for the charged offenses.” (internal quotation marks and

19 citation omitted)).


                                              17
 1   {32}   Here, Ms. Itani testified that she accompanied Defendant to Walgreens, where

 2 they purchased pseudoephedrine for Defendant to use in making methamphetamine,

 3 on September 23, 2011, she dropped Defendant off with the pseudoephedrine so

 4 Defendant could make methamphetamine, and when she returned to pick Defendant

 5 up three or four hours later he had methamphetamine. Itani’s testimony, together with

 6 Agent Mora’s testimony that methamphetamine can be produced in two or three

 7 hours, provides a factual basis to support the trafficking by manufacturing conviction.

 8   {33}   Evidence was also presented that Defendant’s backpack that was retrieved from

 9 the storage unit contained pseudoephedrine pills and matches, which can be used to

10 manufacture methamphetamine, and a scale that had methamphetamine residue on it.

11 This evidence supports the State’s theory that Defendant had drug paraphernalia,

12 specifically, “matches . . . and . . . a black scale,” in his possession, that he intended

13 to use to “manufacture, compound, convert, produce, process, prepare, test, [or]

14 analyze” methamphetamine. In other words, Defendant had the ingredients necessary

15 for him to actually make methamphetamine if he so intended, as opposed to the actual

16 manufacturing of the methamphetamine.

17   {34}   From this evidence the jury could have reasonably inferred an independent

18 factual bases for both trafficking by manufacturing and possession of paraphernalia.

19 Thus, we conclude that Defendant’s conduct was not unitary and that “the jury


                                               18
 1 reasonably could have inferred independent factual bases for the charged offenses.”

 2 Vance, 2009-NMCA-024, ¶ 13 (internal quotation marks and citation omitted).

 3 Because Defendant’s conduct was not unitary, we conclude under the first Swafford

 4 inquiry that double jeopardy principles were not violated. See State v. Saiz, 2008-

 5 NMSC-048, ¶ 35, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State

 6 v. Belanger, 2009-NMSC-025, ¶ 36, 146 N.M. 357, 210 P.3d 783.

 7 2.       Defendant’s Second Trial Did Not Violate Double Jeopardy

 8   {35}   Defendant also claims that his second trial violated double jeopardy.

 9 Specifically, Defendant argues that a juror’s unexpected unavailability was not

10 manifestly necessary and, therefore, did not justify a mistrial in his first trial. See

11 State v. Newman, 1989-NMCA-086, ¶ 19, 109 N.M. 263, 784 P.2d 1006 (noting that

12 “when a mistrial is declared over the defendant’s objection, the defendant cannot be

13 retried unless the mistrial was ‘manifestly necessary’ ”).

14   {36}   “We review the grant or denial of a motion for mistrial for an abuse of

15 discretion.” State v. Caudillo, 2003-NMCA-042, ¶ 12, 133 N.M. 468, 64 P.3d 495.

16 “An abuse of discretion occurs when the ruling is clearly against the logic and effect

17 of the facts and circumstances of the case. We cannot say the trial court abused its

18 discretion by its ruling unless we can characterize it as clearly untenable or not

19 justified by reason.” State v. Woodward, 1995-NMSC-074, ¶ 6, 121 N.M. 1, 908 P.2d


                                             19
 1 231 (internal quotation marks and citation omitted), abrogated on other grounds as

 2 recognized by State v. Montoya, 2014-NMSC-032, 333 P.3d 935.

 3   {37}   In State v. Salazar, this Court explained that the illness of a juror may be

 4 considered manifest necessity for the declaration of a mistrial. 1997-NMCA-088, ¶ 6,

 5 124 N.M. 23, 946 P.2d 227. In analyzing the propriety of the district court’s decision

 6 to declare a mistrial we consider the extent to which the district court gave

 7 appropriate consideration to potential alternatives to doing so. State v. Messier,

 8 1984-NMCA-085, ¶ 14, 101 N.M. 582, 686 P.2d 272. In particular, we have held that

 9 “[w]here a reasonable continuance may resolve the problem, it should be undertaken

10 in lieu of granting a mistrial.” Id. ¶ 14. We have also acknowledged that manifest

11 necessity for a mistrial may arise from “circumstances where a judge, juror or witness

12 has become ill or unavailable.” Id. ¶ 12.

13   {38}   In this case, the need for a mistrial arose as a result of an injury to a juror. That

14 juror sent a message to the district court on the morning of what would have been the

15 jury’s second day of deliberation, informing the court that she had broken her arm,

16 rendering her unavailable that day. The district court went on the record to inform the

17 parties of the situation to seek their input. All agreed that a continuance was

18 preferable to a mistrial; however, the court cautioned that if the injured juror was to

19 be “out of pocket for a series of days,” then a mistrial would become necessary. The


                                                 20
 1 following day, the court informed the parties that the injured juror was still

 2 unavailable and that she had an appointment with a doctor for the following day. It

 3 appeared that the juror would be unavailable for an extended period, and the court

 4 proposed to declare a mistrial. Defense counsel suggested the possibility of

 5 proceeding with an eleven-person jury, but when the district court pointed out that all

 6 parties would need to stipulate to that course of action, counsel informed the court

 7 that Defendant—who was in the courtroom—did not agree to that stipulation.

 8 Ultimately, the district court declared a mistrial.

 9   {39}   Based on the record before us, we conclude that the district court in this case

10 properly considered options short of declaring a mistrial and “reasonably delayed its

11 ruling until other reasonable alternatives had been considered and eliminated.” State

12 v. Gutierrez, 2012-NMCA-013, ¶ 23, 269 P.3d 905, rev’d on other grounds, 2014-

13 NMSC-031, 333 P.3d 247. Absent Defendant’s consent, there was no way to proceed

14 without the injured juror. Since it was not possible to proceed and, more generally,

15 because the prolonged unavailability of a juror results in the necessity for a mistrial,

16 we conclude that the district court did not err in finding manifest necessity in this

17 case, thus, Defendant’s retrial did not violate the prohibition against double jeopardy.

18 See Salazar, 1997-NMCA-088, ¶ 23,




                                              21
 1   {40}   To the extent that Defendant argues that the district court could have avoided

 2 finding manifest necessity to declare a mistrial if it had designated alternate jurors

 3 prior to trial that would have been able to replace the injured juror in deliberations,

 4 we disagree. Because alternate jurors cannot be substituted once the case has been

 5 submitted to a jury, the lack of alternate jurors is not determinative in this case since

 6 deliberations were underway prior to the juror’s injury. See Rule 5-605(B) NMRA

 7 (“Alternate jurors, in the order in which they are called, shall replace jurors who, prior

 8 to the time the jury retires to consider its verdict, become or are found to be unable

 9 or disqualified to perform their duties.”); State v. Sanchez, 2000-NMSC-021, ¶ 23,

10 129 N.M. 284, 6 P.3d 486 (holding that the substitution of an alternate juror for an

11 unavailable or disqualified juror after submission of the case to the jury, is error

12 creating a presumption of prejudice).

13 D.       Defendant’s Motion For Mistrial

14   {41}   In addition to trafficking and possession of paraphernalia, Defendant was

15 initially charged with abandonment or abuse of a child. The district court entered a

16 directed verdict on the child abuse charge prior to the declaration of a mistrial at

17 Defendant’s first trial and was not at issue when Defendant was retried. Prior to voire

18 dire at the retrial; however, the district court told the potential jurors that Defendant

19 was charged with trafficking, abandonment of a child, and possession of


                                               22
 1 paraphernalia. A bench conference ensued at which Defendant objected to the

 2 reference to abandonment of a child and requested a mistrial. Defendant’s request was

 3 denied, and the jury was instructed that the district court had made a mistake and that

 4 the only charges against the Defendant were for trafficking and possession.

 5   {42}   Defendant argues that the district court’s failure to grant a mistrial after

 6 referencing the dismissed charge is reversible error. As previously stated, the denial

 7 of a motion for mistrial is reviewed for abuse of discretion. Caudillo, 2003-NMCA-

 8 042, ¶ 12. Thus, the district court’s ruling is to be affirmed unless it was “clearly

 9 against the logic and effect of the facts and circumstances of the case.” Woodward,

10 1995-NMSC-074, ¶ 6 (internal quotation marks and citation omitted). New Mexico

11 courts have recognized that the grant of a mistrial is an extreme remedy, State v.

12 Allison, 2000-NMSC-027, ¶ 23, 129 N.M. 566, 11 P.3d 141, and “[c]ourts rarely

13 grant a motion for mistrial based on mere equivocal evidence of possible juror bias

14 or prejudice, even with the potential to negatively impact a trial.” State v. Gallegos,

15 2009-NMSC-017, ¶ 28, 146 N.M. 88, 206 P.3d 993.

16   {43}   In this case, Defendant asserts that members of the venire panel expressed

17 reluctance during voir dire to serve as jurors in a case involving child abuse. Even

18 assuming that those members of the venire ultimately served as jurors in this case,

19 Defendant was not tried on any charges alleging child abuse. Rather, Defendant


                                             23
 1 asserts that prejudicial error arose from the mere fact that the district court

 2 inadvertently referred to a charge of child abandonment before promptly explaining

 3 that Defendant faced no such charge. Given these circumstances, it does not appear

 4 likely that the district court’s promptly remedied misstatement injected any serious

 5 risk of “unfair prejudice, confusion of the issues, or misleading the jury,” State v.

 6 Baca, 1976-NMSC-015, ¶ 6, 89 N.M. 204, 549 P.2d 282, since the issue of child

 7 abandonment or abuse was never placed before the jury in any way.

 8   {44}   Further, it appears from the record that the district court promptly delivered a

 9 curative instruction explaining that Defendant was not charged with child

10 abandonment or abuse. As a general principle, New Mexico courts have long

11 recognized that a prompt admonition to disregard improper material inadvertently

12 placed before the jury “sufficiently cures any prejudicial effect which might otherwise

13 result.” Newman, 1989-NMCA-086, ¶ 19; State v. Sanchez, 1974-NMCA-144, ¶ 13,

14 87 N.M. 140, 530 P.2d 404 (holding admonition “adequately cured any prejudice

15 which may have resulted”); see State v. Ferguson, 1967-NMSC-032, ¶ 8, 77 N.M.

16 441, 423 P.2d 872 (“[T]he general rule of law and the prevailing rule of law in New

17 Mexico is that, when improper evidence is introduced, objected to and withdrawn

18 from the consideration of a jury with later instruction to disregard such testimony, the




                                               24
 1 withdrawing and admonition cure any prejudicial effect the evidence might have

 2 had.”).

 3   {45}   Defendant suggests that the district court’s corrected recitation of the charges

 4 against Defendant was insufficient to correct the error since the prosecutor referenced

 5 Defendant as “father of the year” in closing arguments, and because some testimony

 6 referenced Defendant’s child. However, it does not appear that Defendant renewed

 7 his motion for a mistrial after the testimony or after the prosecutor’s remarks in

 8 closing. We conclude that the district court did not err in denying Defendant’s motion

 9 for a mistrial.

10 CONCLUSION

11   {46}   For the forgoing reasons, we affirm.

12   {47}   IT IS SO ORDERED.


13
14                                           M. MONICA ZAMORA, Judge

15 WE CONCUR:


16
17 MICHAEL D. BUSTAMANTE, Judge


18
19 LINDA M. VANZI, Judge


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