State v. Grubb

                                                              Office of the Director      New Mexico
                                                               09:26:12 2020.11.18        Compilation
                                                                             '00'07-      Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: April 21, 2020

No. A-1-CA-37836

STATE OF NEW MEXICO,

      Plaintiff-Appellant,

v.

JOSEPH A. GRUBB,

      Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
William G. W. Shoobridge, District Judge

Certiorari Denied, July 17, 2020, No. S-1-SC-38321. Released for Publication
November 24, 2020.

Hector H. Balderas, Attorney General
Emily C. Tyson-Jorgenson, Assistant Attorney General
Santa Fe, NM

for Appellant

Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Steven J. Forsberg, Assistant Appellate Defender
Albuquerque, NM

for Appellee

                                        OPINION

VARGAS, Judge.

{1}    The State appeals the district court’s dismissal of one count of identity theft,
contrary to NMSA 1978, Section 30-16-24.1(A) (2009), and seventeen counts of
forgery, contrary to NMSA 1978, Section 30-16-10(A)(1) (2006), committed in Lea
County, for the State’s failure to join those charges under Rule 5-203(A) NMRA with
Defendant’s escape from jail charge, NMSA 1978, § 30-22-8 (1963), in Otero County.
The State challenges whether the offenses Defendant allegedly committed in Lea
County are, under Rule 5-203(A)(2), “based on the same conduct or on a series of acts
either connected together or constituting parts of a single scheme or plan” as the
offense Defendant was convicted of in Otero County; and, if so, whether the State is
required to join offenses under Rule 5-203(A) when the offenses were committed in
different counties located in different judicial districts—an issue of first impression for
our courts. Concluding under the circumstances of this case that the charges in Lea
County were erroneously dismissed in light of our statutory and constitutional venue
requirements, we reverse.

BACKGROUND

{2}     This appeal arises from offenses charged in separate counties located in
different judicial districts. The forgery and identity theft charges, which were dismissed
in the case at bar, were brought in Lea County (the Lea County offenses), located in the
Fifth Judicial District, whereas the escape from jail charge was brought in Otero County
(the Otero County offense), located in the Twelfth Judicial District. We set forth the
relevant factual and procedural backgrounds of each case leading up to the present
appeal.

Otero County Offense

{3}    While on probation, Defendant was arrested and charged with unrelated crimes.
The district court revoked his probation and granted him furlough until the imposition of
his sentence on December 31, 2011, at which time he was required to turn himself into
the custody of the Otero County Detention Center. Defendant failed to turn himself in on
December 31, 2011, and was charged with one count of escape from jail.

Lea County Offenses

{4}    In 2013 Defendant identified himself with his half-brother’s name and personal
information while being arrested, booked into jail, and appearing in court on unrelated
offenses. 1 Based on these actions, the State charged Defendant with identity theft and
forgery.

Proceedings in Otero County

{5}     Prior to trial for the Otero County offense, the district court denied Defendant’s
motion in limine to exclude testimony about the Lea County offenses, ruling that the
circumstances surrounding the Lea County offenses were “probative of the elements of
the crime [with which D]efendant is currently charged.” During trial, the State explained
in its opening statement that the Lea County offenses were “evidenc[e of] a continuing
intent not to come back, not to turn himself in, and to avoid [the district court’s] order.”
Further, in its closing argument, the State argued Defendant’s use of his half-brother’s


1The facts underlying the arrests and charges were not made part of the record.
name was part of his ongoing effort to avoid a sentence and commitment in the
conviction for the Otero County offense. Explaining Defendant’s motive to use a
different identity when being arrested in Lea County, the State argued Defendant was
“living a lie” and wanted to go to jail under his half-brother’s name because he “want[ed]
to hide.” Defendant was found guilty of escape from jail in the Otero County offense. 2

Proceedings in Lea County

{6}    Defendant filed a motion to dismiss the Lea County offenses with the Fifth
Judicial District Court for failure to join those offenses with the Otero County offenses
pursuant to Rule 5-203(A). In its response to the motion to dismiss, the State contended
that (1) the “crimes in Lea County were presented at trial on the Otero County case
pursuant to Rule 11-404(B) [NMRA]” as evidence of “[D]efendant’s intent in not
returning from the furlough”; (2) Rule 5-203 neither allows for nor requires joinder of
offenses when those offenses are not of the same or similar character or based on the
same conduct; and (3) “the rule does not contemplate joinder of offenses in one
indictment or information in which venue lies in different jurisdictions.” The district court
granted Defendant’s motion, dismissing the Lea County offenses for failure to join. This
appeal followed.

DISCUSSION

{7}    The State raises the following issues on appeal: (1) whether compulsory joinder
under Rule 5-203(A) was appropriate given the facts underlying the Otero County
offense and the Lea County offenses; and (2) whether Rule 5-203(A) applies to
offenses committed in multiple judicial districts. As our holding with respect to the
inapplicability of Rule 5-203(A) to offenses committed in multiple counties located in
different judicial districts is dispositive of the matter, we need not address whether
joinder is appropriate under the circumstances.

{8}     Rule 5-203(A) requires joinder of two or more offenses in one complaint,
indictment, or information if the offenses “(1) are of the same or similar character, even
if not part of a single scheme or plan; or (2) are based on the same conduct or on a
series of acts either connected together or constituting parts of a single scheme or
plan.”3 The State challenges our compulsory joinder rule’s applicability when the
offenses at issue were committed in two separate counties, located in different judicial
districts. Whether Rule 5-203(A) required joinder in these circumstances is a question of
law we review de novo. See State v. Webb, 

, 

 (“The
question of whether offenses must be joined under Rule 5-203(A) is a question of law
that we review de novo.”); State v. Aragon, 

, 

2We recently reversed Defendant’s conviction for escape from jail and remanded for a new trial in State v. Grubb,

, 

.
3On appeal and in the district court, Defendant limited his joinder argument to one of the applicability of Rule 5-
203(A)(2).
(“Whether a criminal statute applies to particular conduct is a question of law to be
reviewed de novo.”).

{9}    The rule itself is silent as to the question the State raises, and neither our New
Mexico Supreme Court nor this Court have provided guidance as to whether venue has
any bearing upon the compulsory joinder rule’s breadth. We therefore turn to guidance
from other states with compulsory joinder requirements.

A.     Venue as a Limitation on Compulsory Joinder

{10} Of states that require joinder of offenses, we identify distinctions based upon
whether or not they have codified a venue limitation on compulsory joinder. Several
states with compulsory joinder requirements have expressly included within the text of
their joinder statutes or rules a limitation on joinder based upon venue. See, e.g., Colo.
R. Crim. P. 8(a)(1) (2002) (“If several offenses . . . were committed within [the
prosecuting attorney’s] judicial district, all such offenses upon which the prosecuting
attorney elects to proceed must be prosecuted by separate counts in a single
prosecution if they are based on the same act or series of acts arising from the same
criminal episode.” (emphasis added)); Me. Rev. Stat. Ann. Separate Trials 17-A, § 14
(1976) (“A defendant shall not be subject to separate trials for multiple offenses based
on the same conduct or arising from the same criminal episode, if such
offenses . . . were within the jurisdiction of the same court and within the same venue[.]”
(emphasis added)); 

(b) (West 1987) (barring “separate trials for
multiple criminal offenses based on the same conduct or arising from the same episode,
if such offenses . . . are within the jurisdiction and venue of a single court” (emphasis
added)); 

(2) (West 1997) (barring separate prosecutions
“for two or more offenses based upon the same criminal episode, if the several
offenses . . . establish proper venue in a single court” (emphasis added)).

{11} Conversely, there are also states that have declined to include venue limitations
in their compulsory joinder statutes or rules. See, e.g., 720 Ill. Comp. Stat. Ann. 5/3-3(b)
(West 1961) (“If the several offenses are known to the proper prosecuting officer at the
time of commencing the prosecution and are within the jurisdiction of a single court,
they must be prosecuted in a single prosecution[.]”); 

(1)
(McKinney 1970) (“Where two or more offenses are joinable in a single accusatory
instrument against a person by reason of being based upon the same criminal
transaction, . . . such person may not . . . be separately prosecuted for such offenses
even though such separate prosecutions are not otherwise barred by any other section
of this article.”). Notwithstanding the lack of an express codification of a venue limitation,
courts in these states have diverged with respect to whether compulsory joinder is
limited by the venue of a defendant’s criminal offenses. Compare People v. Gray, 

 (Ill. App. Ct. 2003) (concluding that although “venue is not
jurisdictional[,]” compulsory joinder in one county is improper if that county is an
improper venue because that county’s prosecutor is not the “proper prosecuting officer”
(internal quotation marks and citation omitted)), People v. Lindsly, 

 (N.Y. App. Div. 1984) (“Offenses are joinable in a single accusatory instrument if
they arise out of the same criminal transaction and the court has subject matter and
geographical jurisdiction over both of them[.]” (emphasis added)), and People v.
Bigness, 

 (N.Y. App. Div. 2006) (recognizing that venue is also
referred to by the term “geographical jurisdiction”), with Commonwealth v. McPhail, 

 (Pa. 1997) (plurality opinion) (interpreting Pennsylvania’s pre-
2002 joinder statute—which barred a subsequent prosecution of “any offense based on
the same conduct or arising from the same criminal episode, if such offense
was . . . within the jurisdiction of a single court”—as not including a venue-based
preclusion of joinder of offenses in one county when the offenses were committed
during the same criminal episode across several counties (emphasis, internal quotation
marks, and citation omitted)), superseded by statute as stated in Commonwealth v.
Fithian, 

 (Pa. 2008).

{12} As we noted above, New Mexico’s compulsory joinder rule does not expressly
limit compulsory joinder’s reach on the basis of venue. We therefore turn to an
examination of our venue statute, which provides, “All trials of crime shall be had in the
county in which they were committed.” NMSA 1978, § 30-1-14 (1963). Our Supreme
Court has held this provision to be “merely a reiteration of the constitutional right of
venue” found in Article II, Section 14 of the New Mexico Constitution. State v. Lopez,

, ¶ 11, 

, 

; see N.M. Const. art. II, § 14 (“In all
criminal prosecutions, the accused shall have the right to . . . a speedy public trial by an
impartial jury of the county or district in which the offense is alleged to have been
committed.”). Requiring joinder of offenses, committed exclusively within one county,
with an offense committed and charged in another county located in a different judicial
district would seem to contravene our venue requirements. 4

{13} Among the approaches taken in other jurisdictions set out above, we find those
cases determining that venue functions as a reasonable limitation on compulsory
joinder persuasive. See 4 Wayne R. LaFave et al., Criminal Procedure § 16.1(f) (4th ed.
2019) (“In general, states requiring same transaction joinder restrict that obligation to
offenses that have venue in a single judicial district. . . . Where legislation requires
joinder of offenses arising out of the same criminal episode, but makes no reference to
venue limitations, courts have assumed that the venue limitations remain in place and
modify the mandatory joinder obligation.” (footnote omitted)). Significantly, this approach
gives effect to our venue requirements, which are grounded in New Mexico’s
Constitution—as such, they may not yield to a court rule, such as Rule 5-203(A), to the
extent there is a conflict between the rule and the constitutional directive. See 20 Am.

4We recognize that our venue statute further provides that “[i]n the event elements of the crime were committed
in different counties, the trial may be had in any county in which a material element of the crime was committed.”
Section 30-1-14; see also State v. Roybal, 

, 

, 

 (“For purposes of a
continuing crime, venue is proper in any county in which the continuing conduct has occurred.”). Although
Defendant contends the Otero County offense may have been based, in part, on conduct occurring within Lea
County, the parties do not argue, nor does our review of the record reveal, that any element of the Lea County
offenses was committed in Otero County such that we would be faced with the question of whether joinder is
appropriate in those circumstances. We therefore leave resolution of that question for another day. See Aragon,

, ¶ 9 n.4 (observing the need for case-by-case considerations of reasonable limitations on our
compulsory joinder rule).
Jur. 2d Courts § 50 (2020) (“A court rule will not be construed to circumvent or
supersede a constitutional mandate.”); 21 C.J.S. Courts § 166 (2020) (“Court rules and
their official comments are not effective if they conflict with valid provisions of the
constitution.”). We now proceed with an application of our venue requirements to the
circumstances in the present case. 5

B.       Venue Limitation as Applied to the Present Case

{14} Applying the applicable venue requirements to the case at bar, we conclude the
proper venue for the Lea County offenses was in Lea County, in the absence of a
change of venue or waiver. See State v. House, 

, 

,

 (recognizing the right of both the state and the defendant to seek a
change of venue); State v. Allen, 

, 

 (observing that
challenges to venue may be waived). Here, neither party sought a change of, and
Defendant did not waive, venue. 6 Rather, Defendant sought dismissal based on the
State’s failure to join the Lea County offenses with the Otero County offense. Under the
procedural posture of the present case, we conclude venue was proper in Lea County
and, therefore, the district court erred in dismissing the charges arising from the Lea
County offenses for failure to join with the offense charged in Otero County.

CONCLUSION

{15} For the foregoing reasons, we reverse and remand to the district court for
reinstatement of the charges arising from the Lea County offenses.

{16}     IT IS SO ORDERED.

JULIE J. VARGAS, Judge

WE CONCUR:




5Although we recognize a potential conflict between our compulsory joinder rule and our statute identifying the
duties of district attorneys, we need not address this issue under the present circumstances. Compare Rule 5-
203(A) (requiring joinder of certain offenses “in one complaint, indictment or information”), and State v. Gonzales,

, 

 (concluding that Rule 5-203(A) “demands that the [s]tate join certain charges”
(emphasis added) (internal quotation marks and citation omitted)), with NMSA 1978, § 36-1-18(A)(1) (2001)
(requiring district attorneys to “prosecute and defend for the state in all courts of record of the counties of his
district all cases, criminal and civil, in which the state or any county in his district may be a party or may be
interested” (emphasis added)). But see NMSA 1978, § 8-5-2(B) (1975) (vesting the attorney general with the
authority to “prosecute and defend in any [court or tribunal other than the New Mexico Supreme Court and Court
of Appeals] all actions and proceedings, civil or criminal, in which the state may be a party or interested when, in
his judgment, the interest of the state requires such action or when requested to do so by the governor”).
6Although Defendant states he “waived venue implicitly (if not explicitly) in the proceedings below[,]” he has failed
to provide any reference to the record to support this assertion. See State v. Dominguez, 

,

 (explaining that “we will not search the record to find facts to support [the defendant’s]
argument”).
JENNIFER L. ATTREP, Judge

KRISTINA BOGARDUS, Judge