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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. 35,577

 5 DONALD TEMPLETON,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Brett R. Loveless, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Ben A. Ortega
13 Albuquerque, NM

14 for Appellant

15                                 MEMORANDUM OPINION

16 VIGIL, Chief Judge.

17   {1}    Defendant has appealed from the denial of a motion to dismiss on double

18 jeopardy grounds. We previously issued a notice of proposed summary disposition in
 1 which we proposed to uphold the district court’s decision. Defendant has filed a

 2 memorandum in opposition. After due consideration, we remain unpersuaded. We

 3 therefore affirm.

 4   {2}   The pertinent background information was set forth in the notice of proposed

 5 summary disposition. We will avoid undue repetition here, and focus instead on the

 6 content of the memorandum in opposition.

 7   {3}   Defendant continues to argue that retrial should be barred as a result of the loss

 8 of portions of the record of the metro court proceedings. [MIO 2-6] As we previously

 9 observed, the district court’s decision to reverse the conviction and remand for a new

10 trial is well supported.See State v. Moore, 1975-NMCA-042, 87 N.M. 412, 534 P.2d

11 1124 (arriving at a similar conclusion under analogous circumstances); and see also

12 Manlove v. Sullivan, 1989-NMSC-029, ¶ 10 fn. 1, 108 N.M. 471, 775 P.2d 237

13 (applying the Moore factors).

14   {4}   In his memorandum in opposition Defendant argues that this case is

15 distinguishable because the record was lost as a result of a technical malfunction or

16 judicial error, rather than error on the part of the court reporter. [MIO 2-3] Defendant

17 contends that this is a material distinction, because the situation effectively precluded

18 him from investigating and pursuing any claim of deliberate misconduct. [MIO 3-6]

19 We are unpersuaded. The district court remanded for an evidentiary hearing, in the



                                               2
 1 course of which the original metro court judge recused so that he could appear as a

 2 witness. [RP 85, 90, 101-03, 105] Under the circumstances, Defendant was at liberty

 3 to investigate and pursue any theory he may have deemed appropriate. As a practical

 4 matter, we note that there appears to have been no basis for any assertion of deliberate

 5 misconduct. [RP 177] Defendant’s suggestion that less constrained inquiry into

 6 internal communications might have uncovered evidence of intentional misconduct

 7 is rank speculation. [MIO 3] Defendant offers no basis for any motivation on the part

 8 of the metro court judge to tamper with the record, and we reject Defendant’s

 9 suggestion that misconduct should be inferred. [MIO 5] We therefore decline to hold

10 that retrial should be categorically barred.

11   {5}   Defendant further argues that a different analysis and outcome is warranted in

12 this case insofar as “loss of the record precludes [him] . . . from arguing insufficiency

13 of the evidence on appeal.” [MIO 2, 4] However, the only portions of the metro court

14 record that were lost were bench conferences involving evidentiary issues; the

15 remainder of the proceedings were duly recorded. [RP 114-15] As such, the

16 sufficiency of the evidence could readily have been challenged, if Defendant wished

17 to do so. The absence of the sidebar discussions, which bore upon questions of

18 admissibility, would have no bearing on this, insofar as all evidence is taken into

19 consideration when reviewing for sufficiency. See State v. Lovato, 1994-NMCA-042,

                                               3
 1 ¶ 12, 118 N.M. 155, 879 P.2d 787 (“[W]hen determining whether retrial is barred

 2 because there was insufficient evidence of guilt at the trial from which the appeal is

 3 taken, the appellate court considers all the evidence admitted, even that evidence

 4 which it holds was admitted improperly.” (internal quotation marks and citation

 5 omitted)). We therefore remain unpersuaded.

 6   {6}   Accordingly, for the reasons stated above and in the notice of proposed

 7 summary disposition, we affirm.

 8   {7}   IT IS SO ORDERED.


 9                                         __________________________________
10                                         MICHAEL E. VIGIL, Chief Judge


11 WE CONCUR:


12 ______________________________
13 RODERICK T. KENNEDY, Judge


14 ______________________________
15 LINDA M. VANZI, Judge




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