                                                           I attest to the accuracy and
                                                            integrity of this document
                                                              New Mexico Compilation
                                                            Commission, Santa Fe, NM
                                                           '00'05- 11:33:34 2017.11.08

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-077

Filing Date: June 30, 2017

Docket No. A-1-CA-35411

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

MARK WEBB,

       Defendant-Appellant.

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY
Benjamin Chavez, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Walter Hart, Assistant Attorney General
Albuquerque, NM

for Appellee

Blackburn Law Office
Billy R. Blackburn
Albuquerque, NM

Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu
Paul M. Linnenburger
Santa Fe, NM

for Appellant

                                      OPINION

SUTIN, Judge.

{1}    Defendant Mark Webb was charged in two separate cases after he allegedly

                                          1
surreptitiously videotaped the minor daughter (Victim) of his former girlfriend unclothed in
her bathroom. The first case, State v. Webb, Second Judicial District Court Case No. D-202-
CR-2014-02997 (Webb I), was filed in 2014 and charged Defendant with voyeurism (child
under eighteen), in violation of NMSA 1978, Section 30-9-20(A)(1) (2007), attempted
voyeurism (child under eighteen), in violation of Section 30-9-20(A)(1) and NMSA 1978,
Section 30-28-1(A) (1963), tampering with evidence, in violation of NMSA 1978, Section
30-22-5(B) (2003), and battery on a household member, in violation of NMSA 1978, Section
30-3-15(A) (2008). These charges were based on videos dated February 19, 2013 and
February 24, 2013 that were discovered on a hidden camera located in Victim’s bathroom.
The second case, State v. Webb, Second Judicial District Court Case No. D-202-CR-2015-
01400 (Webb II), which is the subject of this appeal, was filed in 2015 and charged
Defendant with two counts of sexual exploitation of a child (manufacture), in violation of
NMSA 1978, Section 30-6A-3(D) (2007, amended 2016), and one count of attempted sexual
exploitation of a child (manufacture), in violation of Sections 30-6A-3(D) and 30-28-1(B).
These charges were based on videos dated between January 1, 2013 and January 30, 2013
that were discovered on a computer to which Defendant had access. After the State
unsuccessfully sought to join the two cases, Defendant filed a motion to dismiss Webb II.
The district court denied Defendant’s motion, Defendant filed an application for
interlocutory appeal, and this Court granted the application.

{2}     On appeal, Defendant argues that Webb II should be dismissed because the
mandatory joinder provisions of Rule 5-203(A) NMRA were violated, the State chose not
to timely pursue the Webb II charges and forfeited any discretion to pursue them, and the
State’s unjustifiable delay in seeking the Webb II charges created judicial inefficiency and
prejudiced Defendant. For the reasons set forth in this opinion, we hold that Webb I and
Webb II should have been mandatorily joined under Rule 5-203(A) as initially requested by
the State. Because the district court should have granted the pretrial motion to join, dismissal
of Webb II is not appropriate, and therefore, we affirm the district court’s denial of
Defendant’s motion to dismiss.

BACKGROUND

{3}     On February 24, 2013, Victim, then age seventeen, discovered a USB camera hidden
in her bathroom in the home that she shared with her mother and brother, as well as with
mother’s boyfriend (Defendant). Detective Steve Walsh, the on-call child exploitation
detective, was called to the home. Detective Walsh obtained a search warrant for the USB
camera on February 26, 2013, viewed the contents of the camera, and discovered two videos
dated February 19, 2013 and February 22, 2013. According to Detective Walsh, in the
February 19 video, Defendant could be seen placing and adjusting the camera, and
thereafter, Victim could be seen entering the bathroom and undressing. In the February 22
video, Defendant again could be seen placing and manipulating the camera, and thereafter,
Victim could be seen entering the bathroom, preparing to take a shower, and noticing the
camera, which she subsequently removed from its location.


                                               2
{4}     Defendant was arrested on February 26, 2013, and charged in Bernalillo County
Metropolitan Court with sexual exploitation of a child (manufacture) and attempted sexual
exploitation of a child. After his arrest, Defendant was interviewed. During the interview,
Defendant apparently admitted to recording Victim “[a]bout half a dozen times” and
indicated to police that he would download the recorded videos to the “community laptop”
(the laptop), of which Victim’s mother was the administrator.1 Sometime in March 2013,
Victim’s mother provided the police with the laptop so that they could search the computer.
Detective Walsh returned the laptop in June 2013 and indicated to Victim’s mother that he
found nothing on the computer. A few days later, Victim’s mother, as the administrator for
the laptop, changed the login information for Defendant’s accounts and discovered
additional videos of Victim. She attempted to call Detective Walsh directly and again
through the Albuquerque Police Department. She then contacted a victim’s advocate at the
Office of the New Mexico Attorney General and told her that she had found more videos on
the laptop. The victim’s advocate told Victim’s mother she would contact Detective Walsh
and have him call Victim’s mother. Detective Walsh followed up with Victim’s mother, and
after she showed him how to access the additional videos, the laptop was taken back into
evidence by the detective.

{5}     After Defendant’s arrest, three target notices were issued to Defendant. The first,
dated March 4, 2013, was from the Second Judicial District Attorney and indicated that the
State intended to present charges of sexual exploitation of a child, tampering with evidence,
and voyeurism, which occurred on or about February 24, 2013. The second, dated August
9, 2013, was from the Office of the Attorney General and indicated that the State intended
to present charges of sexual exploitation of a child (three counts) and attempt to commit the
same (two counts), which were alleged to have occurred on or between February 19, 2013
and February 24, 2013. The third, dated June 9, 2014, was also from the Office of the
Attorney General and restated its intent to present the charges listed in the August 9, 2013
notice.

{6}      Although the first and second notices listed specific dates on which the State
intended to present the listed charges to the grand jury, the grand jury only convened on the
date listed in the third notice—June 25, 2014. Defendant was subsequently indicted, on June
25, 2014, in district court with voyeurism (child under eighteen), attempted voyeurism (child
under eighteen), tampering with evidence, and battery on a household member (Webb I).
Those charges arose from the videos found on the camera, which were both dated in
February 2013.


       1
        We mention these admissions with hesitation because the district court ultimately
suppressed Defendant’s statements on the ground that there was a Miranda violation.
However, because Defendant relies on the fact that he told the police about the additional
recordings on February 26, 2013, in an attempt to bolster his argument on appeal, we are
compelled to mention the incriminating statements even though they cannot later be used as
evidence in the State’s case.

                                             3
{7}     On August 28, 2014, Detective Don Roberts with the Albuquerque Police
Department requested a forensic examination of the laptop, which had been in police custody
for approximately fourteen months. A September 18, 2014 forensic report documented three
additional videos of Victim naked in her bathroom that had been saved on the laptop. These
videos were dated between January 1, 2013 and January 30, 2013.

{8}      On May 26, 2015, the State procured a second indictment charging Defendant with
two counts of sexual exploitation of a child (manufacture) and one count of attempted sexual
exploitation of a child (Webb II). Those charges arose from the videos found on the laptop
that were dated in January 2013. On June 8, 2015, the State moved for joinder of Webb I and
Webb II. In its motion, the State argued that the charges in each proceeding involved
different videos—the former related to the videos on the camera, the latter related to videos
on the laptop—but were of similar character, involved the same Victim, and were “based on
the same conduct or on a series of acts connected together and constituting parts of a single
scheme or plan” under Rule 5-203(A)(2). Defendant agreed that joinder was mandatory
under Rule 5-203(A) but argued against joinder because the State did not join the offenses
in one indictment. According to Defendant, the State was required to “join offenses at the
outset[,]” and because it failed to do so, it was barred from adding additional charges at such
a “late juncture.”

{9}     On July 1, 2015, the district court denied the motion for joinder on the ground that
Defendant had timely filed a peremptory challenge of the district judge and thus the judge
“lack[ed] jurisdiction to entertain the motion before the court.” On December 17, 2015,
Defendant filed a number of pleadings, including a motion to dismiss for failure to properly
join the charges in Webb II with the charges in Webb I. The district court denied Defendant’s
motion to dismiss on February 24, 2016, concluding that although “[t]he charges in Webb
I and Webb II are subject to joinder pursuant to Rule 5-203” and “the separate incidents
charged in Webb I and Webb II are of the exact same type and were committed by the same
individual against the same [V]ictim in the same location, because they are not identical, it
is permissible to charge and try them separately.” This interlocutory appeal followed.

DISCUSSION

{10} In New Mexico, our rule concerning joinder in criminal cases “as originally
promulgated was discretionary and reflected the common law.” State v. Gallegos, 2007-
NMSC-007, ¶ 10, 141 N.M. 185, 152 P.3d 828. However, in 1979, consistent with other
courts at the time, our Supreme Court issued an order stating that “ ‘[w]hen a person is
charged with more than one crime and the crimes can be incorporated in one information or
indictment in separate counts, this practice shall be followed.’ ” Id. ¶¶ 11, 14 (emphasis
omitted) (quoting Rule 5-203 comm. cmt.). The change reflected the Court’s “distaste for
piecemeal prosecutions” and mandated joinder in certain cases “in order to avoid disorderly
criminal procedures that threaten the existence of our judicial system and risk . . . prejudice
to the accused[.]” Id. ¶ 14 (omission in original) (alteration, internal quotation marks, and
citations omitted).

                                              4
{11} New Mexico’s current approach to joinder in criminal cases is articulated in Rule 5-
203(A), which states that “[t]wo or more offenses shall be joined in one complaint,
indictment or information with each offense stated in a separate count, if the offenses . . . are
of the same or similar character, even if not part of a single scheme or plan; or . . . are based
on the same conduct or on a series of acts either connected together or constituting parts of
a single scheme or plan.” The question of whether offenses must be joined under Rule 5-
203(A) is a question of law that we review de novo. See State v. Paiz, 2011-NMSC-008,
¶ 10, 149 N.M. 412, 249 P.3d 1235 (stating that Rule 5-203(A) is a mandatory rule and
improper joinder under the rule is a question of law, which we review de novo); State v.
Foster, 2003-NMCA-099, ¶ 6, 134 N.M. 224, 75 P.3d 824 (“We review de novo questions
of law concerning the interpretation of Supreme Court rules and the district court’s
application of the law to the facts of [the] case.”).

{12} The most relevant case regarding Rule 5-203(A) and the ramifications for failing to
join offenses is State v. Gonzales, 2013-NMSC-016, 301 P.3d 380, a case upon which both
parties rely. In Gonzales, the defendant was charged with child abuse resulting in death,
child abuse not resulting in death, aggravated driving while under the influence, and leaving
the scene of an accident after she drove drunk and crashed into another vehicle, killing one
child and injuring another. Id. ¶¶ 1-2. After the defendant’s conviction for negligent child
abuse was reversed on appeal for lack of substantial evidence, the defendant was prosecuted
for vehicular homicide. Id. ¶ 3. In evaluating the lawfulness of the vehicular homicide charge
after the defendant had already been through a trial in Gonzales, our Supreme Court sua
sponte turned to Rule 5-203(A). Gonzales, 2013-NMSC-016, ¶¶ 25-26. According to the
Court, “[t]he purpose of a compulsory joinder [rule], viewed as a whole, is twofold: (1) to
protect a defendant from the governmental harassment of being subjected to successive trials
for offenses stemming from the same criminal episode; and (2) to ensure finality without
unduly burdening the judicial process by repetitious litigation.” Id. ¶ 26 (alteration, internal
quotation marks, and citation omitted). The Court held that the vehicular homicide offense
was “based on the same conduct against the same victim” as the offenses pursued in the
earlier trial and thus must have been joined under Rule 5-203(A). Gonzales, 2013-NMSC-
016, ¶¶ 25, 27 (emphasis and internal quotation marks omitted). Because the facts of the case
mandated joinder under the rule and because the prosecution failed to join the offenses in
the first trial, our Supreme Court also held that “a failure to join offenses under Rule 5-
203(A) bars piecemeal prosecution in a subsequent trial.”Gonzales, 2013-NMSC-016, ¶¶ 30-
31. In deciding that the prosecution was barred from pursuing a vehicular homicide in
Gonzales, our Supreme Court noted that:

        This is not a case in which the charge the [prosecution] now seeks to bring,
        vehicular homicide, was unknown at the time [the d]efendant was indicted.
        The [prosecution] had at least three different opportunities to join these
        offenses. The first was in the original indictment, but it chose to ask the
        grand jury to indict only on charges of child abuse. The second was at the
        hearing on the motion to dismiss. The [prosecution] was made fully aware
        that the charge was available and admitted at that hearing that it knew it was

                                               5
       taking a risk when it decided on this particular trial strategy. Finally, . . . the
       [prosecution] could have asked for a vehicular homicide instruction
       notwithstanding its omission from the indictment, but again the [prosecution]
       elected not to do so.

Id. ¶ 32. Thus, our Supreme Court affirmed that the subsequent prosecution of the defendant
for vehicular homicide was barred. Id. ¶ 34.

{13} Defendant’s position on appeal is that the State was required under Rule 5-203 to
bring all charges related to Defendant’s alleged videotaping of Victim in a single indictment
and that because the State chose not to pursue the charges in a single indictment, dismissal
of Webb II is appropriate as stated in Gonzales, 2013-NMSC-016. Defendant asserts that the
State and its prosecutors knew about the videos on the laptop prior to the indictment in Webb
I as evidenced by: the statement from Victim’s mother that she informed the police and a
victim’s advocate from the Office of the Attorney General about the laptop videos;
Defendant’s admission to police that he saved videos of Victim to the laptop; and the target
letters from the Office of the Attorney General that alluded to five counts, which, as a matter
of logic and math, appear to be related to the two videos found on the camera and the three
videos found on the laptop. Defendant argues that because the State chose not to join the
charges at the time of the indictment in Webb I, the State abandoned the charges that were
ultimately pursued in Webb II. Defendant asserts that dismissal is the only appropriate
remedy for the failure to join because there was a long delay between the filing of Webb I
and Webb II, the State had no justification for the delay, the failure resulted in inefficiency
and harmed judicial resources, the failure prejudiced and harmed Defendant, and Rule 5-203
is mandatory.

{14} We begin our analysis by noting that there is no real dispute that the offenses should
have been joined under Rule 5-203. The State argued that joinder was mandatory in its
motion for joinder, and Defendant admitted that joinder was mandatory in his response to
the motion for joinder and in his motion to dismiss. Although the district court ultimately
concluded that Webb I and Webb II could proceed separately in its order denying
Defendant’s motion to dismiss, it noted that “[t]he charges in Webb I and Webb II are subject
to joinder pursuant to Rule 5-203[,]” and “the separate incidents charged in Webb I and
Webb II are of the exact same type and were committed by the same individual against the
same [V]ictim in the same location[.]”

{15} We agree that the offenses in Webb I and Webb II, all of which were related to
Defendant’s alleged videotaping of Victim in her bathroom, were of the same or similar
character or based on the same conduct or on a series of acts either connected together or
constituting parts of a single scheme or plan. See Gallegos, 2007-NMSC-007, ¶ 15 (stating
that the defendant “engaged in inappropriate sexual activities with minors in his care[,]” and
at the very least, his acts toward the two victims “were of the same or similar character
regardless of whether they were part of a single scheme or plan” (internal quotation marks
and citation omitted)); State v. Riordan, 1974-NMCA-013, ¶¶ 4-5, 86 N.M. 92, 519 P.2d

                                               6
1029 (recognizing that “[i]t would be difficult to conceive of three separate offenses, more
the same or similar in character” where the defendant sold controlled substances to a single
officer on three occasions in the same community over the course of approximately three
weeks). The rule does not require that the cases be “identical” as suggested by the district
court. We hold that the district court erred in not joining all the offenses into one proceeding.

{16} Although there is no real dispute that the offenses in Webb I and Webb II were of the
same or similar character or continued parts of a single scheme or plan, both parties on
appeal expend much of their energy and briefing on whether the State and/or the prosecutors
knew about the laptop videos prior to the Webb I indictment. Interestingly, however,
prosecutorial knowledge, although a seemingly reasonable limiter to Rule 5-203, is not
explicitly required under Rule 5-203. See Rule 5-203; see also Ryan C. Schotter, State v.
Gonzales: Reinvigorating Criminal Joinder in New Mexico, 44 N.M. L. Rev. 467, 485-88
(2014) (noting that Rule 5-203 is “devoid of any of the important limiting principles
expressed in the model codes promulgated by the ABA, ALI, and NCCUSL[,]” including
a prosecutorial knowledge limitation). And although our Supreme Court stated in Gonzales,
2013-NMSC-016, ¶ 32, that it was “not a case in which the charge the [prosecution sought]
to bring . . . was unknown at the time [the d]efendant was indicted[,]” Gonzales does not say
that a finding of actual prosecutorial knowledge is necessary in order for there to be a
compulsory joinder violation. But, more importantly, we need not and do not address
prosecutorial knowledge head-on here because, in this case, even assuming arguendo that
the State and/or the prosecutors knew about the laptop videos prior to the Webb I indictment,
we hold that the State was not precluded from seeking to join the offenses in Webb II with
similar offenses in Webb I, as it did in this case. The relevant inquiry is whether the State
was permitted, under Rule 5-203, to move for joinder of the offenses in Webb II after the
indictment was filed in Webb I, or whether they were, as a matter of law, barred from joining
offenses once there was an indictment in Webb I.

{17} Although Rule 5-203 is admittedly broad and states that offenses shall be joined “in
one complaint, indictment or information[,]” our Supreme Court in Gonzales suggested that
additional offenses could be joined after an indictment even when a prosecutor knows of the
additional offenses at the time of the indictment. As noted earlier, in Gonzales, the Court
identified two post-indictment opportunities that the prosecution had to seek joinder of
additional charges—one at the time of the hearing on a motion to dismiss and another by
asking for “a vehicular homicide instruction notwithstanding its omission from the
indictment[.]” 2013-NMSC-016, ¶ 32. If the sanction of dismissal for New Mexico’s
compulsory joinder provision were intended automatically to be triggered upon the State’s
failure to join all charges in an original indictment, there would have been no legal or other
basis for our Supreme Court to reference additional opportunities for joinder thereafter. We
interpret the Supreme Court’s instructions in Gonzales as indicating that additional offenses
can be joined post-indictment, but prior to a case being submitted to a jury.

{18} Applying the Court’s guidance in Gonzales to the present case, we hold that the
State, having moved to join the offenses in Webb I and Webb II post-indictment but pretrial,

                                               7
did not run afoul of Rule 5-203. Because the State properly sought to join the offenses in a
manner that is acceptable under the rule and as contemplated by Gonzales, there is no merit
to Defendant’s argument that Webb II should be dismissed.

CONCLUSION

{19} For the reasons set forth in this opinion, we affirm the district court’s denial of
Defendant’s motion to dismiss and remand for proceedings consistent with this opinion.

{20}   IT IS SO ORDERED.

                                              ____________________________________
                                              JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
TIMOTHY L. GARCIA, Judge

____________________________________
JULIE J. VARGAS, Judge




                                             8
