 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6
 7        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 8 STATE OF NEW MEXICO,

 9          Plaintiff-Appellant,

10 v.                                                                    NO. 30,008

11 RUSTIN LANCASTER,

12          Defendant-Appellee.

13 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
14 Drew D. Tatum, District Judge

15 Gary K. King, Attorney General
16 Santa Fe, NM

17 for Appellant

18 Daniel R. Lindsey, P.C.
19 Daniel R. Lindsey
20 Clovis, NM

21 for Appellee

22                                 MEMORANDUM OPINION

23 BUSTAMANTE, Judge.
 1        The State appeals the district court’s order suppressing the Horizontal Gaze

 2 Nystagmus (HGN) test and the IR-8000 results as a sanction for the State’s failure to

 3 file a written response to Defendant’s motions to suppress. We proposed to reverse

 4 in a notice of proposed summary disposition, and Defendant has filed a timely

 5 memorandum in opposition. Remaining unpersuaded by Defendant’s memorandum,

 6 we reverse.

 7        “We review the trial court’s decision for an abuse of discretion.” State v.

 8 Sanchez, 1999-NMCA-004, ¶ 6, 126 N.M. 559, 972 P.2d 1150 (filed 1998). “‘[A]n

 9 abuse of discretion occurs when the ruling is clearly against the logic and effect of the

10 facts and circumstances in the case.’” State v. Jackson, 2004-NMCA-057, ¶ 10, 135

11 N.M. 689, 92 P.3d 1263 (quoting Mathis v. State, 112 N.M. 744, 747, 819 P.2d 1302,

12 1305 (1991)).

13        After appealing his magistrate court conviction, Defendant filed two motions

14 to suppress on February 9, 2009. [RP 20-25] On October 27, 2009, two days before

15 the matter was set for trial, Defendant sought to dismiss the charges because the State

16 had failed to file a written response to his motions to suppress. [DS 2-3] The district

17 court granted Defendant’s motion in part by suppressing the results of the HGN and

18 IR-8000 tests based on the State’s failure to file a written response to the motions

19 within fifteen days after being served with them. [RP 53] See Rule 5-120(E) NMRA


                                               2
 1 (requiring a written response within fifteen days of service of the motion). We

 2 proposed to reverse because Defendant made no showing that he was prejudiced by

 3 the State’s failure to file a written response to his motions, and “[o]ur case law . . .

 4 mandates a showing of prejudice to warrant sanctions.” Sanchez, 1999-NMCA-004,

 5 ¶ 8; cf. State v. Martinez, 1998-NMCA-022, ¶ 12, 124 N.M. 721, 954 P.2d 1198 (“A

 6 defendant must show prejudice before being entitled to relief stemming from the

 7 State’s discovery violation.”). [RP 42-44, 55-56]

 8        In his memorandum in opposition, Defendant contends that he was prejudiced

 9 by the State’s failure to disclose its witness list. [MIO 4-8, 14] He claims that the

10 suppression order was partially based on this failure by the State. [MIO 4] We

11 disagree.

12        The suppression order specifically states that it is based on the State’s failure

13 to respond to Defendant’s motions as required by Rule 5-120(E). [RP 53] Moreover,

14 the order specifically strikes any mention of it being based in part on the State’s

15 failure to file a witness list. [RP 53] Finally, at the hearing on Defendant’s motion,

16 the district court addressed Defendant’s contentions regarding the State’s failure to

17 provide a witness list and some discovery and ordered certain accommodations to

18 account for those failures that were separate from the suppression order. [RP 43-44]




                                              3
 1        Defendant makes additional non-specific arguments in his memorandum in

 2 opposition as to how he may have been prejudiced by the State’s failure to file a

 3 written response to his motions to suppress. [MIO 9,11] However, there is nothing in

 4 the record showing that these arguments were made to the district court. [RP 42-44]

 5 Cf. State v. Hunter, 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296 (stating that

 6 “[m]atters not of record present no issue for review”). Given that Defendant made no

 7 showing of prejudice, and the district court granted the motion to suppress merely

 8 because the State violated the provisions of Rule 5-120(E), [RP 53] we are not

 9 persuaded that the suppression order was warranted as a sanction for the State’s failure

10 to file a written response to Defendant’s motions to suppress.           See Jackson,

11 2004-NMCA-057, ¶ 10 (stating that “[a] showing of noncompliance is insufficient

12 to entitle a defendant to dismissal or other sanctions–the prejudice resulting from the

13 violation must also be established”).

14 Conclusion

15        For the foregoing reasons as well as those set forth in our notice of proposed

16 disposition, we reverse the district court’s order suppressing the HGN test and the IR-

17 8000 results as a sanction for the State’s failure to file a written response to

18 Defendant’s motions to suppress.

19        IT IS SO ORDERED.




                                              4
1
2                            MICHAEL D. BUSTAMANTE, Judge

3 WE CONCUR:


4
5 JONATHAN B. SUTIN, Judge

6
7 TIMOTHY L. GARCIA, Judge




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