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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                            NO. 32,704

 5 AMBER SHAW,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
 8 Teddy L. Hartley, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   M. Victoria Wilson, Assistant Attorney General
12   Albuquerque, NM

13 for Appellant

14   Paul Kennedy & Associates, P.C.
15   Paul J. Kennedy
16   Arne R. Leonard
17   Albuquerque, NM

18 for Appellee

19                                 MEMORANDUM OPINION

20 WECHSLER, Judge.
 1   {1}   The State appeals the order of the district court dismissing all charges against

 2 Defendant, Amber Shaw. The district court found that the State failed to produce a

 3 potentially exculpatory videotape, did not respond to Defendant’s motion to compel,

 4 and then did not respond to Defendant’s motion to dismiss. Because Defendant was

 5 unable to receive a fair trial without the potentially exculpatory evidence, the district

 6 court dismissed her charges. We affirm.

 7 BACKGROUND

 8   {2}   Defendant was charged with criminal sexual penetration in the fourth degree

 9 and criminal sexual contact of a minor in the fourth degree. The alleged victim, T.V.,

10 accused Defendant of engaging in a sexual relationship with her in 2006, during the

11 time Defendant coached T.V.’s junior high school basketball team. The allegations

12 were reported to law enforcement in the summer of 2010 after T.V. communicated

13 with her mother, who reported the allegations to the school superintendent, who, in

14 turn, informed the police.

15   {3}   From a pre-trial interview with T.V. in May 2012, Defendant learned of a

16 safehouse interview given to police on January 24, 2006. The interview resulted from

17 a conversation between T.V. and a friend in which T.V. stated that she was sexually

18 abused by her stepbrother. The interview was recorded on videotape. Defendant

19 requested and, on October 22, 2012, was given, a copy of the police report relating to

                                               2
 1 this incident but did not receive the requested recording. On November 6, 2012,

 2 Defendant filed a motion to compel production of exculpatory evidence, seeking to

 3 obtain the safehouse video recording, among other evidence. The State did not file

 4 a response to Defendant’s motion to compel. On December 6, 2012, Defendant filed

 5 a motion to dismiss the indictment. The State did not respond to the motion to

 6 dismiss. On January 11, 2013, the district court granted Defendant’s motion to

 7 dismiss. The district court found that “the State failed to properly produce and

 8 destroyed potentially exculpatory information[,]” and, as a result, Defendant was

 9 prejudiced and could not receive a fair trial. The district court pointed out that sixty-

10 five days had passed without any responsive pleading by the State, that thirty-five

11 days had passed without any response to the motion to dismiss, and that Defendant’s

12 motion to dismiss was dispositive. The district court also noted that, by the date of the

13 dismissal order, the indictment had been filed nearly two years prior and the trial was

14 three weeks away.

15   {4}   On appeal, the State contends that the district court erred in dismissing with

16 prejudice the case against Defendant. The State makes three arguments in support of

17 its contention that the dismissal of Defendant’s case should be overturned: (1) the

18 district court erred in accepting Defendant’s factual assertions and legal arguments as

19 true as sanction for the State’s failure to respond to Defendant’s motions, (2) the


                                               3
 1 remedy of dismissal for the loss or destruction of the recording of the safehouse

 2 interview was error, and (3) the district court did not conduct a speedy trial analysis

 3 and therefore the district court’s reliance on speedy trial concerns was error.

 4 STANDARD OF REVIEW

 5   {5}   As noted by the parties, the correct standard of review of the district court’s

 6 decision to dismiss the charges against Defendant as the remedy for lost or destroyed

 7 evidence is abuse of discretion. See State v. Redd, 2013-NMCA-089, ¶ 18, 308 P.3d

 8 1000 (stating that we review a district court’s remedy for lost or destroyed evidence

 9 and sanctions for discovery violations for an abuse of discretion), cert. denied,

10 2013-NMCERT-008, 309 P.3d 100. “An abuse of discretion occurs when the ruling

11 is clearly against the logic and effect of the facts and circumstances of the case.” State

12 v. Duarte, 2007-NMCA-012, ¶ 3, 140 N.M. 930, 149 P.3d 1027 (internal quotation

13 marks and citation omitted). We view the evidence and the inferences to be drawn

14 from the evidence in the light most favorable to the decision of the court. Mathis v.

15 State, 1991-NMSC-091, ¶ 13, 112 N.M. 744, 819 P.2d 1302.

16 ACCEPTANCE BY THE DISTRICT COURT OF MATTERS AS PLEADED
17 BY DEFENDANT

18   {6}   The State argues that the district court abused its discretion because the court

19 accepted as true the facts and legal conclusions stated in Defendant’s motions as

20 sanction for the State’s failure to respond to both motions. The State further argues

                                               4
 1 that the district court’s acceptance of Defendant’s incorrect characterization of the

 2 safehouse interview made by T.V. in 2006 erroneously established that the loss of the

 3 interview prejudiced Defendant. The State points out that, under Rule 5-112 NMRA,

 4 attorneys who fail to observe the rules of criminal procedure for the district courts

 5 “may be held in contempt of court and subject to disciplinary action.” Citing other

 6 rules that provide for acceptance of pleaded facts and matters as true, the State argues

 7 that our Supreme Court did not intend for acceptance of pleaded matters to be a

 8 potential sanction for failure to file a written response to a motion.

 9   {7}   After reviewing the district court’s order and its acceptance of the matters

10 pleaded by Defendant, the district court did not specifically identify its ruling as a

11 sanction against the State for its failure to respond in violation of Rule 5-112. From

12 the State’s point of view, it might appear that the court’s explicit acceptance of

13 Defendant’s version of the pleadings was a sanction. Another plausible alternative

14 also exists. When only one version of the facts was presented for consideration, the

15 district court was entitled to simply rule on the basis of the facts before it. Such a

16 ruling would be based upon the merits of the matters presented, as opposed to a

17 sanction for the State’s failure to respond. Thus, we disagree with the underlying

18 premise of a sanction offered by the State regarding the only plausible basis for the




                                              5
 1 district court’s ruling on Defendant’s two motions that were never responded to by the

 2 State.



 3   {8}    The State further argues that the district court’s reliance on Defendant’s account

 4 of the information on the missing or destroyed videotape was an abuse of discretion.

 5 The State argues that the police report of the interview belies Defendant’s assertion

 6 that T.V. identified her stepbrother as her abuser. On appeal, the State challenges the

 7 version of facts asserted in Defendant’s motion to dismiss. Defendant argues that, by

 8 not disputing the facts to the district court, the State has not preserved this factual

 9 dispute. Defendant alternatively argues, and, accordingly, filed a motion requesting,

10 that if we consider the factual assertions raised on appeal by the State, Defendant

11 should be allowed to supplement the record in order to, in effect, respond to the

12 State’s new assertions.

13   {9}    The crux of the issue is the State’s failure to respond to Defendant’s motions,

14 one of which was aimed at disposing of the case. The time and mechanism to

15 challenge Defendant’s presentation of the facts was in responsive briefing to the

16 district court. See Rule 5-120 NMRA (delineating the procedure for filing motions,

17 including the general requirement of a response in writing). The State explains in its

18 docketing statement to this Court that it was awaiting the scheduled motion hearing


                                                6
 1 to present its opposition to Defendant’s motions. It did so contrary to the rules and

 2 thereby at its own peril. See Rule 5-120(E) (stating that “a written response [to a

 3 motion] shall be filed within fifteen (15) days after service of the motion” unless

 4 otherwise specifically provided in the rules). The State cites no rule or case indicating

 5 that the court was required to hold a hearing, and we therefore assume no such

 6 authority exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676

 7 P.2d 1329 (stating that when a party cites no authority to support an argument, we

 8 may assume no such authority exists). During the sixty-five days that the motion to

 9 compel was pending and the thirty-five days that the motion to dismiss was pending,

10 the State never filed a response. Nor did the State move for an extension of time to

11 file a response, move for a continuance or, after the order was filed, move for

12 reconsideration or request that it be allowed to supplement the factual record. By not

13 offering the court any response to Defendant’s motions, the State left the court with

14 just one version of the matters at issue. With regard to the State’s contention that the

15 district court erroneously accepted Defendant’s “legal conclusions[,]” we note that,

16 in its dismissal order, the district court only incorporated by reference Defendant’s

17 legal arguments, but did not explicitly adopt Defendant’s legal conclusions. The

18 district court was not required to accept matters as presented by Defendant. However,




                                               7
 1 in the absence of any alternative version offered to the district court by the State, the

 2 court did not abuse its discretion by doing so.




 3 DISMISSAL AS REMEDY

 4   {10}   The State also argues that dismissal was an inappropriate remedy for the loss

 5 or destruction of the recording of T.V.’s interview. Defendant’s motion to dismiss

 6 argued that the loss or destruction of the recording violated her due process rights and

 7 met the test for a sanction of dismissal under New Mexico case law. New Mexico has

 8 adopted a three-part test to determine whether the loss or destruction of evidence

 9 violates the due process rights of a criminal defendant. State v. Chouinard, 1981-

10 NMSC-096, ¶ 16, 96 N.M. 658, 634 P.2d 680. “[W]e look to whether (1) the state

11 breached a duty or intentionally deprived the defendant of evidence, (2) the lost or

12 destroyed evidence is material, and (3) the defendant suffered prejudice.” Redd, 2013-

13 NMCA-089, ¶ 19. Dismissal is an appropriate remedy for a due process violation

14 resulting from the loss or destruction of evidence only when the defendant will be

15 denied a fair trial if tried without the missing evidence. State v. Hill, 2005-NMCA-

16 143, ¶ 23, 138 N.M. 693, 125 P.3d 1175.




                                               8
 1   {11}   The State concedes that the first two factors of the Chouinard test weigh in

 2 Defendant’s favor, if “only slightly.” However, the State contends that Defendant was

 3 not prejudiced by the loss or destruction of the videotape, much less prejudiced such

 4 that “Defendant cannot have a fair trial” and that the district court abused its discretion

 5 in so finding. The State first argues that the district court abused its discretion in

 6 finding prejudice to Defendant because T.V. did not, in fact, make a false accusation

 7 of abuse during the safehouse interview and, in any case, Defendant could have

 8 impeached T.V. with the police report of the interview. The finding of prejudice is

 9 therefore undermined, according to the State, because the videotape was unhelpful or

10 unnecessary to Defendant’s defense. But the State’s factual contentions about the

11 content of the videotape were not raised below and were not before the district court

12 when it decided on the importance of the videotape to Defendant. The district court

13 did not abuse its discretion by failing to rely on a version of the facts that was not

14 presented to it. See Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153

15 (“An abuse of discretion occurs when a ruling is clearly contrary to the logical

16 conclusions demanded by the facts and circumstances of the case.”).

17   {12}   The State further argues that this case is similar to Redd, in which this Court

18 reversed a dismissal because the loss of an audio recording of an interview with the

19 victim did not prejudice the defendant. 2013-NMCA-089, ¶ 37. The defendant in


                                                9
 1 Redd faced multiple charges arising out of alleged sexual abuse of a minor. Id. ¶ 2.

 2 At issue was a lost or destroyed interview recording in which the victim failed to

 3 mention a type of abuse that she later accused the defendant of committing. Id. ¶ 6.

 4 In Redd, we held that the district court should have considered alternative remedies

 5 presented by the state in lieu of dismissal that would have ameliorated the prejudice

 6 to the defendant. Id. ¶ 34. The officer who conducted the interview at issue in Redd

 7 testified as to the contents of the initial interview and stated that he would be available

 8 to testify as to the information that was helpful to the defendant. Id. But here the

 9 State did not suggest alternatives to the district court and did not assert that the officer

10 who took the interview would be available to testify. Redd is also distinguishable

11 because the unavailable evidence in this case, unlike the missing audiotape in Redd,

12 involves allegations against a different perpetrator. The content of the interview with

13 T.V., which resulted from her accusation of her stepbrother for the same or similar

14 allegations as those later made against Defendant, bears on T.V.’s credibility and was

15 potentially exculpatory.

16   {13}   We emphasize that dismissal is an extreme sanction reserved for exceptional

17 cases. Hill, 2005-NMCA-143, ¶ 23; State v. Bartlett, 1990-NMCA-024, ¶ 5, 109

18 N.M. 679, 789 P.2d 627. Ordinarily, consideration of lesser remedies would be

19 appropriate. See Redd, 2013-NMCA-089, ¶ 34 (“[T]he district court should have


                                                10
 1 considered other alternatives to dismissal that would have ameliorated any prejudice

 2 suffered by [the defendant.]”). But, because the State did not respond either to the

 3 motion to compel or the motion to dismiss, or otherwise offer an alternative remedy,

 4 the district court did not have before it other remedies that might have cured the

 5 prejudice caused by the State’s loss or destruction of potentially exculpatory evidence.

 6 The State’s failure to present a position to the district court in response to Defendant’s

 7 motions made this an exceptional case. The court did not abuse its discretion in

 8 granting an unanswered motion to dismiss because the lost or destroyed evidence

 9 denied Defendant a fair trial.

10 SPEEDY TRIAL ANALYSIS

11   {14}   The State contends that the district court did not conduct a speedy trial analysis.

12 A speedy trial analysis entails an examination of the length of delay, the reason for

13 delay, the defendant’s assertion of the right, and the prejudice to the defendant. State

14 v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 P.3d 387; Barker v. Wingo, 407

15 U.S. 514, 530 (1972). We agree that the court did not conduct such an inquiry, but

16 we do not believe the court relied on a speedy trial violation to dismiss the charges

17 against Defendant. The district court noted that Defendant was indicted nearly two

18 years prior to the order dismissing the charges and also that the trial was set for three

19 weeks from the date of the order dismissing the charges, “leaving little time to attempt


                                                11
 1 to remedy the prejudice experienced by . . . Defendant.” The court pointed out that,

 2 although the issue was not raised in Defendant’s motions, “there would likely be

 3 speedy trial issues in this matter.” To us, it appears that the court considered the fact

 4 that the case was set for trial and any potential remedy for the State’s unexplained

 5 actions would cause further delay. Such consideration does not constitute an abuse

 6 of the court’s discretion.

 7 CONCLUSION

 8   {15}   For the foregoing reasons, we affirm the order of the district court dismissing

 9 the charges with prejudice. Defendant’s motion to supplement the record, filed

10 September 10, 2013, is hereby denied.

11   {16}   IT IS SO ORDERED.


12                                                 ________________________________
13                                                 JAMES J. WECHSLER, Judge


14 WE CONCUR:


15 ________________________________
16 TIMOTHY L. GARCIA, Judge


17 ________________________________
18 M. MONICA ZAMORA, Judge



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