STATE V. WILSON, 2005-NMCA-130, 138 N.M.
551, 123 P.3d 784
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ROBERT WILSON,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2005-NMCA-130, 138 N.M. 551, 123 P.3d 784
September 21, 2005, Filed
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Richard J. Knowles, District Judge
Certiorari Granted, 2005-NMCERT-011,
No. 29,484, November 14, 2005. Released for publication November 29, 2005.
Patricia A. Madrid, Attorney General,
Santa Fe, NM, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for
Appellee
John Bigelow, Chief Public Defender,
Santa Fe, NM, Linda Yen, Assistant Appellate Defender, Albuquerque, NM, for
Appellant
CELIA FOY CASTILLO, Judge. WE CONCUR: A.
JOSEPH ALARID, Judge, IRA ROBINSON, Judge
AUTHOR: CELIA FOY CASTILLO
{1} In the metropolitan
court, Defendant Robert Wilson was convicted of criminal trespass and
harassment; neither crime is listed in the Crimes Against Household Members
Act, NMSA 1978, '' 30-3-10 to -16 (1995, as amended through 2001). Accordingly,
convictions for criminal trespass and harassment do not require proof that the
victim was a household member. But the status of the victim as a household member
becomes relevant when Defendant appeals. If the victim of these two crimes is a
household member, the incident is considered domestic abuse under the Family
Violence Protection Act, NMSA 1978, '' 40-13-1 to -8 (1987, as amended through
2002), and Defendant's appeal is limited to review of the record. NMSA 1978, '
34-8A-6(C) (1993); Rule
7-706 NMRA. If the victim is not a household member,
the incident is not considered domestic abuse, and Defendant has the right to a
trial de novo in the district court. Section 34-8A-6(D). Because Defendant
considered his convictions as not involving domestic abuse, he moved for a
trial de novo in district court. The motion was denied, based on the district
court's conclusion that the victim was a household member and that the
conviction therefore did involve domestic violence. Defendant's convictions
were affirmed after an on-record appeal. It is the metropolitan court (metro
court), not the district court, that must make a finding that the victim is a
household member. Based on our determination that there is no finding in the
judgment that indicates the crimes were perpetrated by one household member on
another, we reverse the district court and remand for a de novo trial on the
two convictions.
{2} Based on
events that occurred with the victim on June 20, 2003, Defendant was charged
with criminal trespass, telephone harassment, and harassment, contrary to NMSA
1978, §
30-14-1 (1995); NMSA 1978, §
30-20-12 (1967); and NMSA 1978, §
30-3A-2
(1997). Under the Family Violence Protection Act, these three crimes are
considered domestic abuse if they are the result of an incident by one
household member against another. Section 40-13-2(C). Metro court is a court of
record for criminal actions within its jurisdiction that involve domestic
violence; acts of domestic abuse under the Family Violence Protection Act are
considered domestic violence.
State
ex rel. Schwartz v. Sanchez,
1997-NMSC-021, ¶¶ 6-7,
123 N.M. 165,
936 P.2d 334. Hence, the docketing number assigned to this
case is preceded by "DV," indicating that this is a domestic violence
case and that the trial must be on record.
{3} Defendant waived
his right to a jury trial. During trial, metro court dismissed the telephone
harassment charge by directed verdict and, after hearing all of the evidence,
convicted Defendant of harassment and criminal trespass. Although the routing
slips describe the charges and convictions as crimes against a household
member, the actual judgment entered by metro court does not designate the
status of Defendant or the victim. It states that Defendant was found guilty of
harassment and criminal trespass with no indication that the crimes were
committed against a household member.
{4} Defendant appealed
his two convictions to district court and requested a trial de novo. The
district court denied Defendant's motion for a trial de novo and, after an
on-record review, upheld the convictions. This appeal followed.
{5}We first consider
Defendant's argument that he is entitled to a de novo trial. Then we address
the State's contention that we need not hear this case because it is moot.
A. Right to a Trial de Novo
{6} Whether or not a
defendant is entitled to an appeal de novo in district court is a question of
law, which we review de novo.
State v. Krause,
1998-NMCA-013, ¶ 3,
124 N.M. 415,
951 P.2d 1076. The conviction, rather than
the charge, controls the type of appeal to which a defendant is entitled.
Id. ¶ 8. The New Mexico Constitution entitles a
defendant to a trial de novo in district court, unless provided otherwise by
statute.
N.M. Const. art. VI, § 27. There are two statutory exceptions: DWI and
domestic violence trials are recorded in metro court, and the district court
reviews the records of these convictions, instead of conducting a new trial.
Section 34-8A-6(C); Rule 7-706. Offenses listed in the Family Violence
Protection Act, Section 40-13-2(C), when perpetrated by one household member
against another, are considered domestic violence offenses.
See Schwartz,
1997-NMSC-021, ¶¶ 6-7. A "`household member'" is a "person with
whom the [other party] has had a continuing personal relationship."
Section 40-13-2(D). If Defendant and the victim had a "continuing personal
relationship," they would be considered household members, and Defendant's
convictions would be considered domestic violence actions. Defendant contends
that the district court erred in its review of the evidence because metro court
determined that his victim was not a household member and Defendant's convictions
were therefore not domestic violence actions. Thus, Defendant also contends
that he is entitled to a trial de novo, as provided in Section 34-8A-6(D).
{7} The State disagrees
with Defendant's analysis and argues that metro court's determination regarding
the status of the victim was done in the context of the denial of the State's
motion to amend the complaint and not in the context of a finding for purposes
of a judgment. The State relies on the district court's determination as a
matter of law that the "boyfriend and girlfriend" relationship
between Defendant and the victim constituted a personal relationship, as
defined by the Family Violence Protection Act; that such determination should
be given deference on appeal; and that metro court's erroneous legal conclusion
is not binding on the district court, as a superior court. The State further
contends that the district court's interpretation of the statute is correct and
that public policy strongly supports a broad reading of "continuing personal
relationship." Section 40-13-2(D).
{8} The State's
position is similar to the position we rejected in
State v. Trujillo,
1999-NMCA-003, ¶ 15,
126 N.M.
603,
973 P.2d 855. In
Trujillo, the
defendant was charged with and convicted of simple battery.
Id. ¶ 13. This Court was asked to construe the
conviction as battery against a household member because the record indicated
that the victim was the defendant's sister-in-law.
Id. ¶¶ 3, 6. In denying that request, we
explained that an appellate court has "no power to find a missing element
of a criminal offense, no matter how compelling the evidence [is]."
Id. ¶ 15. Here, we recognize that the status of
Defendant and the victim is not an element of the crimes for which Defendant
was convicted. However, the parties' status as household members is a necessary
element in proving that the crimes are domestic violence under the Family
Violence Protection Act. As such, we do not look to the district court's legal
analysis of the evidence at trial, but rather to the judgment entered by metro
court.
{9} As we have
indicated, metro court made no indication on the judgment that Defendant's
convictions involved domestic abuse. The judgment is silent regarding the
status of Defendant and the victim as household members. There is no finding
regarding the relationship between Defendant and the victim. This supports the
conclusion that metro court did not consider Defendant's actions domestic
abuse. Absent a finding on this critical issue, Defendant's convictions cannot
be considered domestic violence, and he is entitled to a trial de novo on his
two convictions.
{10} While we need go no
further in this analysis, we will review metro court's comments during entry of
the convictions because these comments mirror the judgment. After closing
arguments, metro court addressed Defendant and explained the evidence on which
the court found Defendant guilty of criminal trespass and harassment. Metro
court found that all of the elements of criminal trespass and harassment were
proven beyond a reasonable doubt. Metro court made no mention of the
relationship between Defendant and the victim; nor did the State ask for a
finding on that issue. The burden is on the State to prove its case. The
State's contention was that Defendant's crimes were domestic violence; yet, the
State failed to have any finding made on the status of Defendant and the
victim. Metro court's failure to address the relationship between the parties
bolsters the conclusion that the court did not consider Defendant's actions
domestic violence.
{11} As we have noted
above, we need not look further than the judgment in this case. Both parties,
however, direct us to the comments made by metro court during trial. We look to
the record in order to address the parties' arguments, and in doing so, we find
additional support for the absence of a finding of domestic violence.
{12} During trial, the
State objected on relevance grounds when Defendant questioned the victim about
the type of relationship she had with Defendant. In overruling the objection,
metro court stated, "I see the relevance; it comes into whether or not
it's a domestic violence issue and whether or not it[ ] -- the relationship
between the two -- is probative. I'll allow that." This clearly indicates
metro court was aware that the issue of domestic violence was before the court.
{13} Before the close of
its case, the State requested that the criminal complaint be amended to add a
charge of battery against a household member, "based upon the facts
alleged in the complaint and testimony that was elicited from [the
victim]." In denying the motion to amend, metro court said,
I would not be able to allow that --
battery on a household member. In fact, opposing counsel was trying very
strenuously to establish some form of domestic relationship, which she [the
victim] denied occurred. For the State to stand up and bootstrap that in there
-- I have not seen the ability to amend it, based on that.
Defendant urges us to consider this as a finding that the
victim was not a household member. The State argues that this language cannot
be used as a finding because the statement was made in the context of denying a
motion to amend the complaint. We agree that this language cannot be used as a
finding. It can be used, however, to explain the absence of a finding that the
crimes were committed against a household member. Again, it was the State's
burden to prove that the victim was a household member. The State failed to do
so. Because Defendant was not convicted of a domestic violence offense, he is
entitled to de novo appeal. See Krause, 1998-NMCA-013, ¶ 10.
{14} Normally, we address
a mootness issue first. In this case, however, we address this issue last
because the analysis above provides a background for our conclusion. Pointing
to
State v. Sergio B.,
2002-NMCA-070, ¶¶
9-10,
132 N.M. 375,
48 P.3d 764, the State contends that Defendant's appeal is
moot because he has completed serving his full sentence and cannot prove the
existence of collateral consequences. We agree that this appeal is moot.
Generally, we do not hear moot issues.
Gunaji v.
Macias,
2001-NMSC-028, ¶ 9,
130 N.M. 734,
31 P.3d 1008. An appeal is
moot when there is no actual controversy and when no actual relief can be
granted to the appellant.
Sergio B.,
2002-NMCA-070, ¶ 9. Defendant argues that this case is capable of repetition
yet may evade review if we do not hear the appeal and therefore may be
addressed, even if moot.
Id. ¶ 10. We
agree with Defendant.
{15} In this case, we
discuss the two types of appeal from metro court convictions: de novo and on
record. As we have explained above, unless a defendant is convicted of DWI or
domestic violence in metro court, he is entitled to de novo appeal.
See Krause,
1998-NMCA-013, ¶ 10. However, upon being charged with DWI or domestic violence,
a defendant is presumptively on track for on-record, rather than de novo,
appeal.
Id. ¶ 4-5. Thus, when a defendant
is acquitted of all DWI and domestic violence charges brought against him but
has remaining charges he wishes to appeal, he must file a motion to transfer
the case to the de novo calendar. If the motion is erroneously denied, as it
was here, the defendant must wait through the district court review process and
the appeal certification process before his claim reaches this Court. In the
case that the conviction is for a misdemeanor offense, punishable by a maximum
term of 364 days, as it was here, the defendant will likely have served his
entire sentence by the time he is heard in this Court. Thus, by the time the
defendant's right to a trial de novo is heard on appeal, his case could be
moot. If we allowed this, those defendants charged with DWI or domestic
violence but who contend they are entitled to appeal by a de novo trial will be
exposed to the danger of losing the right to a trial de novo, without appellate
relief. Based on the foregoing, we conclude that Defendant's case is capable of
repetition yet evades review. Accordingly, we agree with Defendant and have
decided his appeal.
{16} The denial of
Defendant's motion to transfer to the de novo calender is reversed. We remand
to the district court to conduct a trial de novo.
CELIA FOY CASTILLO, Judge