State v. Villanueva

                                                            Office of the Director       New Mexico
                                                             09:33:15 2021.06.24         Compilation
                                                                           '00'06-       Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: January 19, 2021

No. A-1-CA-37353

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

CARLOS J. VILLANUEVA a/k/a
CARLOS MCMAHON,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Geraldine E. Rivera, District Judge

Certiorari Denied, March 31, 2021, No. S-1-SC-38679. Released for Publication June
29, 2021.

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
John C. Bennett, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

YOHALEM, Judge.

{1}     Defendant Carlos Villanueva appeals his conviction for criminal contempt, in
violation of NMSA 1978, Section 34-1-2 (1851) and Rule 1-093(B)(1) NMRA. Defendant
contends that: (1) there was insufficient evidence to support his conviction; (2) the jury
instructions were unconstitutionally vague and overbroad; (3) fundamental error in the
jury instructions requires reversal; (4) the district court erroneously excluded from
evidence a recording of Defendant’s encounter with the judge; and (5) the State failed to
obtain an order appointing the district attorney to prosecute the case. We reject each of
Defendant’s contentions and affirm his conviction.

BACKGROUND

{2}    Defendant was convicted of criminal contempt for his conduct on or about April 3,
2017. On that date, Defendant made several attempts to contact the district court judge
presiding over a child support case pending in the Thirteenth Judicial District Court for
the purpose of influencing the judge to recuse himself. Defendant’s efforts culminated in
a confrontation with the judge outside a local restaurant where Defendant attempted to
convince the judge to withdraw from the case.

{3}   Defendant had contacted the Thirteenth Judicial District Court clerk’s office the
week before April 3, 2017, to request documents from the case file in a pending child
support case. Defendant spoke on the phone with Pablita Cohoe, a clerk, and identified
himself as a private investigator.

{4}      The following week, on April 3, 2017, Defendant came into the district court
clerk’s office to speak to Cohoe. Cohoe testified that Defendant objected to the court
noting his name in the file. She told him it was the practice of the court to note the name
of anyone who reviewed a file. He then asked to speak to Judge Pedro Rael, the judge
assigned to the pending child support case. Cohoe told Defendant that he would have
to file a motion and request a hearing.

{5}    Shortly after Defendant left the clerk’s office, a court security officer, Mike
Hawkins, observed Defendant knocking on a door marked “no entry” that leads to Judge
Rael’s chambers. Matthew MacEachen, administrative assistant to Judge Rael, testified
that Defendant came to Judge Rael’s door with another man asking to speak to Judge
Rael about a pending case. MacEachen told Defendant that Judge Rael could not
discuss a case without all parties present. Defendant then told MacEachen that he was
an “old friend” of Judge Rael.

{6}    Judge Rael did not recognize Defendant’s name. He told MacEachen to tell
Defendant to file a motion. MacEachen testified that he told Defendant that the proper
way to contact Judge Rael is to call or email MacEachen explaining who he is, what he
wants from a proposed meeting, and how much of Judge Rael’s time he would need.
MacEachen also testified that Defendant called Judge Rael’s office about the pending
child support case on two occasions, though he could not recall if the calls were before
or after their April 3, 2017, encounter at the court. Each time Defendant called, the caller
ID read “Diane Levario.” Levario was a party to the pending child support case.

{7}    Around noon on April 3, 2017, Judge Rael drove from the courthouse to a
restaurant to meet a friend for lunch. The restaurant was four to six miles from the
courthouse; the drive took ten to fifteen minutes. When Judge Rael arrived at the
restaurant, he saw three men he did not recognize walking rapidly toward him. Two of
the men blocked the door to the restaurant so that Judge Rael “would have to push one
of them over if [he] was going to keep going through the restaurant door.” The third man
shook Judge Rael’s hand and identified himself as Defendant. Defendant then told
Judge Rael that he needed to recuse himself from the pending child support case
involving Levario because Defendant had information showing Judge Rael was
personally acquainted with the parties. Judge Rael testified that he told Defendant “I
don’t know what you’re talking about,” to which Defendant replied, “I have pictures of
you with the parties.” Defendant then started flipping through photos on his cell phone,
putting the phone “very close” to Judge Rael’s face. Judge Rael told Defendant that he
did not see himself in the photographs. Without informing Judge Rael, Defendant was
making an audio recording of the interaction on his phone. Judge Rael told Defendant,
“You have to file a motion,” and pushed past the two men into the restaurant. Defendant
and the two men with him left after Judge Rael entered the restaurant.

{8}     Judge Rael testified that his “state of concern was extremely high” by the end of
the interaction. He felt certain that Defendant and the other men followed him from the
courthouse to the restaurant. He testified that the route from the court to the restaurant
is “not easy to follow, unless you know how to get there.”

{9}     That afternoon, after the encounter at the restaurant, Defendant telephoned the
courthouse, asking to speak to Judge Rael. Judge Rael instructed the courthouse staff
to tell Defendant not to call anymore. Judge Rael also entered an order to show cause
why Defendant should not be held in contempt. Following a hearing, at which Defendant
appeared and testified, Judge Rael turned the matter over to the district attorney to
determine whether to bring criminal contempt charges against Defendant. The district
attorney charged Defendant with contemptuous conduct in violation of Section 34-1-2
and Rule 1-093(B)(1). 1 Following a jury trial, Defendant was convicted of criminal
contempt, pursuant to Section 34-1-2.

I.     Defendant’s Conviction of Criminal Contempt Is Supported by Substantial
       Evidence

{10} Defendant first argues that the State’s evidence was insufficient to support a
conviction for criminal contempt, pursuant to Section 34-1-2 and Rule 1-093(B)(1). We
disagree.

A.     Standard of Review

{11} “The test for sufficiency of the evidence is whether substantial evidence of either
a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable
doubt with respect to every element essential to a conviction.” State v. Ford, 2019-
NMCA-073, ¶ 7, 

 (internal quotation marks and citation omitted). We “view
the evidence in the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.” State v.
Cunningham, 

, ¶ 26, 

, 

. In doing so, the

1NMSA 1978, Section 34-1-4 (1965) was included in the amended criminal complaint, but was not
presented to the jury as a charge count.
Court “should not re-weigh the evidence to determine if there was another hypothesis
that would support innocence.” State v. Garcia, 

, 

, 

. The relevant question is whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” State v. Holt, 2016-NMSC-
011, ¶ 20, 

 (internal quotation marks and citation omitted).

B.     Sufficiency of the Evidence

{12} In this case, the jury was instructed that to enter a verdict of guilty of criminal
contempt, the State must prove beyond a reasonable doubt each of the following
elements of the crime: (1) “[D]efendant engaged in contemptuous conduct[,]” and (2) the
conduct “happened in New Mexico on or about the 3rd day of April, 2017.” The jury was
also given a definitional instruction defining “contempt” or “contemptuous conduct” taken
verbatim from Rule 1-093(B)(1), as follows:

       “Contempt” or “contemptuous conduct” includes but is not limited to,

              (a)    disorderly conduct, insolent behavior, or a breach of peace,
              noise, or other disturbance, if such behavior actually obstructs or
              hinders the administration of justice or tends to diminish the court’s
              authority,

              (b)    misconduct of court officers in official transactions, or

              (c)    disobedience of any lawful order, rule, or process of the
              court.

“Jury instructions become the law of the case against which the sufficiency of the
evidence is to be measured.” State v. Smith, 

, ¶ 7, 

, 

.

{13} Defendant argues first that the evidence in the record was insufficient to establish
that he engaged in “disorderly conduct, insolent behavior, or a breach of [the] peace,
noise, or other disturbance” required to convict of contempt, pursuant to Rule 1-
093(B)(1)(a) of the definitional instruction. He points to the absence of evidence
showing that his conduct created a physical disturbance, posed a threat to the judge or
court personnel, disrupted courtroom proceedings, or disturbed the peace. Defendant’s
argument assumes, without citation to authority, that either a use of force, a physical
threat, or a disturbance directly interfering with proceedings in the courtroom is required
to convict of contempt. We do not agree that the jury instruction limited contempt to
these types of behavior.

{14} The jury instruction defining contempt provides that, in addition to disorderly
conduct, or a breach of the peace, noise or other disturbance, “insolent behavior” is
sufficient to convict of contempt providing that “such behavior actually obstructs or
hinders the administration of justice or tends to diminish the court’s authority.” In
construing a jury instruction, we look to the meaning a reasonable juror would have
attributed to the words. See State v. Barber, 

, 

, 

. We often use dictionary definitions for guidance when determining “the plain
meaning of the words at issue[.]” State v. Boyse, 

, 

(recognizing that “our courts interpret the intended meaning of statutory and other
language by consulting the dictionary to ascertain the words’ ordinary meaning”).
“Insolent” behavior is defined by the Merriam-Webster Dictionary as behavior which is
“overbearing,” “impudent,” or which “exhibit[s] boldness or effrontery.” Insolent,
Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/insolent (last
visited on January 8, 2021). Defendant’s persistence in pursuing a face-to-face meeting
with Judge Rael, even after being told that he must telephone for an appointment or file
a motion; Defendant’s lying about being an “old friend” of Judge Rael as a way to gain
access to Judge Rael; Defendant’s pursuing Judge Rael to a restaurant, a ten or fifteen
minute drive from the courthouse, accosting Judge Rael, blocking his entrance to the
restaurant, and demanding that Judge Rael recuse himself from a pending case;
Defendant thrusting a cell phone in Judge Rael’s face is behavior that is the very
essence of overbearing and impudent, and which is characterized by “boldness or
effrontery.”

{15} The fact that Defendant introduced evidence contradicting some of the State’s
evidence describing his conduct does not require reversal. It is well settled that
“[c]ontrary evidence supporting acquittal does not provide a basis for reversal because
the jury is free to reject [a d]efendant’s version of the facts.” State v. Rojo, 1999-NMSC-
001, ¶ 19, 126 N.M 438, 

. We conclude that “a rational jury could have
found beyond a reasonable doubt” based on the evidence summarized above that
Defendant engaged in “insolent behavior.” 

 (internal quotation marks and citation
omitted).

{16} Defendant also argues that the evidence in the record was insufficient to
establish that his behavior “actually obstruct[ed] or hinder[ed] the administration of
justice or tend[ed] to diminish the court’s authority[,]” a requirement to convict of
contempt, pursuant to Rule 1-093(B)(1)(a), the definitional instruction given to the jury.
Defendant again claims that because he neither overtly threatened Judge Rael with
physical harm, spoke to Judge Rael in a loud or threatening tone, nor created a
disturbance in the courtroom, the jury could not find that Defendant’s behavior “actually
obstruct[ed] or hinder[ed] the administration of justice or tend[ed] to diminish the court’s
authority.” 

 We again disagree.

{17} Defendant’s argument misconstrues the nature of criminal contempt. The focus
of criminal contempt as defined by the jury instruction is properly on whether a
defendant’s conduct has interfered with or obstructed the work of the court, not whether
a defendant’s conduct has been personally offensive to an individual judge. See State v.
Magee Publ’g Co., 

, ¶ 39, 29 N. M. 455, 

, overruled in part
on other grounds by State v. Morris, 

, ¶ 20, 

, 

.
The administration of justice is hindered and the court’s authority diminished when
outside influence is exerted on a judge, juror, or witness. “The theory of our system is
that the conclusions to be reached in a case will be induced only by evidence and
argument in open court, and not by any outside influence[.]” Patterson v. Colorado, ex
rel. Att’y Gen. of Colo., 

 (1907). Personally approaching a judge
outside the courtroom and urging him or her to proceed in a certain way in a pending
case, even in a soft-spoken, non-threatening tone, is contemptuous conduct that
hinders or obstructs the administration of justice and diminishes the integrity of our
courts. Bridges v. California, 

 (1941) (Frankfurter, J., dissenting)
(stating that the administration of justice by an impartial judiciary, free from outside
influence “has been basic to our conception of freedom ever since Magna Carta”); State
v. Kayser, 

, ¶ 14, 

, 

 (stating that “[i]t is the
interference with [a] witness and the attempt to influence him, as to the testimony he will
or will not give, that constitutes the offense”), overruled in part on other grounds by
Morris, 

, ¶¶ 20-21.

{18} The undisputed evidence in this case shows that Defendant attempted to
influence or coerce a sitting judge to recuse himself from a pending case. The evidence
that Defendant exerted outside influence on a pending case is sufficient for the jury to
find, beyond a reasonable doubt, that Defendant’s behavior “actually obstruct[ed] or
hinder[ed] the administration of justice or tend[ed] to diminish the court’s authority[.]”
See Rule 1-093(B)(1)(a).

{19} We conclude that Defendant’s conviction of criminal contempt is supported by
substantial evidence in the record.

II.    The Contempt Statute and Court Rule Are Neither Vague nor Overbroad

{20} Defendant next argues that Section 34-1-2 and Rule 1-093(B)(1), defining the
terms “contempt” and “contemptuous conduct” in the context of a civil proceeding, are
unconstitutionally vague, or, in the alternative, unconstitutionally overbroad.

{21} Under the Due Process Clause of the United States Constitution, vagueness can
render a statute unconstitutional. A criminal statute is unconstitutionally vague if it “does
not allow individuals of ordinary intelligence a fair opportunity to determine whether their
conduct is prohibited.” State v. Ebert, 

, 

, 

 (internal quotation marks and citation omitted). “Vagueness also exists when the
statute permits police officers, prosecutors, judges, or juries to engage in arbitrary and
discriminatory enforcement of the statute, which occurs because the statute has no
standards or guidelines and therefore allows, if not encourages ad hoc application.” 

(omission, internal quotation marks, and citation omitted). “Because the essence of a
vagueness claim rests on a lack of notice, a party may not succeed on the claim if the
statute clearly applies to the defendant’s conduct.” 

 (internal quotation marks and
citation omitted).

{22} The constitutional doctrine of overbreadth, “serves to invalidate a statute only
when it sweeps so broadly to impinge unnecessarily on conduct protected by the First
and Fourteenth Amendments.” Santillanes v. State, 

, ¶ 23, 

, 

. Unlike a vagueness challenge, which is limited to the particular facts
of the defendant’s case, “a defendant may make an overbreadth challenge based on
the First Amendment even if the statute is constitutional as applied to him.” Ebert, 2011-
NMCA-098, ¶ 6. “Statutes enjoy a strong presumption of constitutionality, and the
burden is on the challenger to prove a statute unconstitutional beyond a reasonable
doubt.” 

{23} Both Defendant’s void for vagueness and overbreadth claim focus on the
introductory phrase of Rule 1-093(B)(1). The introductory phrase of Rule 1-093(B)(1)
leaves open the possibility that other types of conduct beyond those described in
Subsections (1)(a)-(c) of the Rule could be contemptuous. The rule’s definition of
contempt begins as follows: “ ‘Contempt’ or ‘contemptuous conduct’ includes but is not
limited to . . . .” That phrase is followed by a list of three types of conduct: (a) conduct
which obstructs or hinders the administration of justice; (b) misconduct by court officers;
and (c) disobedience of court order, rule, or process. Rule 1-093(B)(1)(a)-(c).

{24} Defendant argues that leaving the definition of “[c]ontempt” open-ended makes it
impossible for individuals of ordinary intelligence to know what conduct will constitute
contempt and, therefore, the rule is void for vagueness. Defendant claims as well that
the open-ended phrasing sweeps too broadly, encompassing speech protected by the
First Amendment.

{25} Defendant cannot succeed on his void for vagueness claim because the
definition of “[c]ontempt” in Subsection (1)(a) of the definition clearly applies to
Defendant’s conduct. Ebert, 

. Rule 1-093(B)(1) plainly gives
notice that an extra-judicial attempt to influence, convince, or coerce a judge to recuse
himself from a pending case, the conduct engaged in by Defendant, is criminal
contempt. This is not a situation where persons of common intelligence must guess at
the meaning of criminal contempt. See Ebert, 

.

{26} Defendant’s overbreadth claim, unlike his void for vagueness claim, need not be
limited to the facts of his case. A defendant is permitted to argue that the statutory
elements of a crime as applied to circumstances different from his own impinge on
rights protected by the First Amendment. See State v. Garcia, 

,

. Defendant claims that the criminal contempt statute, Section 34-1-2,
would allow a conviction of contempt for public speech or for written publications that
are protected by the First Amendment. Defendant’s argument fails because the
contempt statute, Section 34-1-2, expressly incorporates the common law of contempt.
Section 34-1-2 states that the power of contempt is to be applied as “circumscribed by
the usage of the courts of the United States.” The common law of contempt addresses
at length the intersection of the First Amendment and the constitutional interest in
protecting the integrity of our judicial system so as to ensure that both constitutional
interests are protected in contempt proceedings involving public speech. See, e.g.,
Morris, 

, ¶¶ 15-20; Bridges, 

. Because Section 34-1-2
acknowledges and incorporates the common law of contempt, it does not unnecessarily
impinge on conduct protected by the First Amendment and is not overbroad.
III.   There Was No Fundamental Error in Instructing the Jury

{27} Defendant next challenges the jury instructions given by the district court,
claiming, for the first time on appeal, that the instruction defining the terms “contempt” or
“contemptuous conduct” confused or misdirected the jury, resulting in a miscarriage of
justice.

A.     Standard of Review

{28} “The standard of review we apply to jury instructions depends on whether the
error has been preserved. If the error has been preserved we review the instructions for
reversible error. If not, we review for fundamental error.” State v. Benally, 2001-NMSC-
033, ¶ 12, 

, 

 (citation omitted). Because Defendant failed to
object to the instructions, we review for fundamental error. Barber, 

.

{29} When our review is for fundamental error, we first look to whether the instruction
confused or misdirected the jury. See Benally, 

. If we find that the
jury was confused or misdirected, we then continue our analysis to determine whether
the error so undermined the reliability of the conviction or prejudiced the defendant’s
rights that it would “shock the conscience” to allow the conviction to stand. Barber,

 (“The doctrine of fundamental error applies only under
exceptional circumstances and only to prevent a miscarriage of justice.”). We will not
uphold a conviction “if an error implicated a fundamental unfairness within the system
that would undermine judicial integrity if left unchecked.” Id. ¶ 18 (internal quotation
marks and citation omitted).

B.     The Definitional Instruction

{30} Defendant’s challenge to the jury instructions focuses on the introductory phrase
in the definition of “contempt” or “contemptuous conduct” given to the jury. Defendant
claims, for the first time on appeal, that the phrase “includes but is not limited to” is likely
to have confused or misled a reasonable juror, resulting in a miscarriage of justice.
Defendant claims that “the jury may have found that literally anything constitutes
contempt.”

{31} We do not agree that this introductory phrase, acknowledging that there are other
types of conduct that also constitute contempt, confused the jury. Immediately following
the introductory phrase, the jury was given a definition of “contempt” and “contemptuous
conduct,” which was directly applicable to Defendant’s conduct. Any confusion created
by the introductory phrase was immediately clarified by the giving of a directly
applicable definition. State v. Parish, 

, ¶ 4, 

, 

(“[I]f a jury instruction is capable of more than one interpretation, then the court must
next evaluate whether another part of the jury instructions satisfactorily cures the
ambiguity.”). The jury thus received an accurate rendition of the relevant law the jurors
were to apply. There was neither an omission nor a misstatement of the law. State v.
Anderson, 

, 

 (“Juror confusion or misdirection may
stem from instructions which, through omission or misstatement, fail to provide the juror
with an accurate rendition of the relevant law.” (internal quotation marks and citation
omitted)). As the United States Supreme Court noted in Griffin v. United States, jurors
are capable of evaluating the facts, and where they are instructed on a ground for
conviction that is supported by adequate evidence in the record, appellate courts will not
presume “that the jury convicted on a ground that was not supported by adequate
evidence.” 

 (1991) (internal quotation marks and citation omitted).
We, therefore, conclude that the instruction was not likely to confuse or misdirect the
jury.

{32} In any event, because the record developed at trial establishes Defendant’s guilt
pursuant to the Rule 1-093(B)(1) definitional instruction beyond a reasonable doubt, and
there was no mistake in the process that makes his conviction fundamentally unfair, we
hold that there was no fundamental error and reversal is not required.

IV.    The District Court Did Not Abuse Its Discretion in Excluding Defendant’s
       Cell Phone Recording

{33} Defendant argues that the district court abused its discretion in excluding from
evidence a tape recording of Defendant’s conversation with Judge Rael taken from
Defendant’s cell phone. Defendant contends, first, that the district court erred as a
matter of law in excluding the recording because the voices on the recording were not
properly authenticated, pursuant to Rule 11-901 NMRA. The record shows that the
district court did not question the authenticity of the recording. The court excluded the
recording solely because the voices were not understandable due to the poor quality of
the recording and background noise. The court explained that the recording was being
excluded because:

       THE COURT:           I don’t understand it. There is too much static for me
                            from the wind or traffic. . . . [T]here’s just too much
                            interference for it to be reliable.

{34} Defendant next claims that the district court erred in excluding the recording even
if the words were inaudible because it was nonetheless relevant support for Defendant’s
claim that he had not raised his voice or used a threatening tone in speaking to Judge
Rael. Defendant argues that the court’s decision erroneously cut off this potential line of
defense.

{35} Appellate courts “review the district court’s decision to admit or exclude evidence
for an abuse of discretion.” State v. Guerra, 

, 

. “An
abuse of discretion arises when the evidentiary ruling is clearly contrary to logic and the
facts and circumstances of the case.” State v. Downey, 

, 

, 

 (internal quotation marks and citation omitted).
{36} Rule 11-403 NMRA gives the district court authority to exclude relevant evidence
under certain circumstances. Rule 11-403 states:

             The court may exclude relevant evidence if its probative value is
      substantially outweighed by a danger of one or more of the following:
      unfair prejudice, confusing the issues, misleading the jury, undue delay,
      wasting time, or needlessly presenting cumulative evidence.

{37} Under this rule, the district court must weigh the evidence to determine whether
its “probative value is outweighed by its prejudicial effect.” State v. Martinez, 1980-
NMCA-022, ¶ 6, 

, 

. The rule recognizes that evidence that
wastes the jury’s time, is cumulative of other evidence, or is confusing or misleading can
be excluded by the court as lacking in probative value. Rule 11-403. If “there were
alternative means of establishing the same fact” then the probative value of the
excluded evidence is minimized. Martinez, 

, ¶ 6.

{38} Although our appellate courts have not adopted a specific standard that justifies
the exclusion of authenticated recordings based on their audibility, federal courts which
have considered this question have generally agreed that exclusion is justified where
substantial portions of the recording are inaudible or incomprehensible. See United
States v. Carbone, 

 (1st Cir. 1986) (adopting the generally accepted rule
that “where a tape recording is challenged on the grounds of audibility the question is
whether the inaudible parts are so substantial as to make the rest more misleading than
helpful” (internal quotation marks and citation omitted)). Whether that standard is met is
left to the discretion of the trial court. 

{39} In this case, the court determined that the jury would not be able to understand
any of the recording because of the level of static and background noise. In deciding to
exclude the recording, the court considered and rejected Defendant’s claim that the
exclusion prejudiced Defendant’s defense. The court noted that Defendant could
address the content and tone of the conversation through two witnesses to the
conversation who testified at trial, Judge Rael and Defendant’s companion. Defendant
was thus able to establish both the content and tone of the conversation by alternative
means, greatly diminishing both the probative value of the recording and any prejudice
which might otherwise have arisen from its exclusion.

{40} Because the probative value of the recording was outweighed by the dangers of
confusing the jury and wasting valuable time, and because the evidence would have
been cumulative of the witnesses’ testimony, we hold that the court did not abuse its
discretion in excluding the recording.

V.    Defendant’s Claim That the District Attorney Was Not Properly Appointed
      Lacks Merit
{41} Defendant argues that the district court lacked jurisdiction because the record
does not reflect that the district court appointed the district attorney to prosecute the
case, as required by Rule 1-093(D)(2). We disagree.

{42} Rule 1-093(D)(2) provides that “[t]he court shall appoint the district attorney to
prosecute the criminal contempt for the state.” See also NMSA 1978, § 36-1-18(A)(1)
(2001) (“Each district attorney shall . . . prosecute . . . 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[.]”). We interpret our Supreme Court’s
rules of procedure by seeking to determine the underlying intent of the enacting
authority. See Roark v. Farmers Grp., Inc., 

, 

, 

 (“We apply the same rules to the construction of Supreme Court rules of
procedure as we apply to statutes.” (internal quotation marks and citation omitted)).

{43} Indirect contempt charges can result in a criminal conviction with serious
consequences for the defendant. Our Supreme Court has required that the due process
protections provided to other criminal defendants apply in a nonsummary indirect
contempt prosecution. Concha v. Sanchez, 

, 

, 

 (listing criminal due process protections required in a nonsummary criminal
contempt proceeding). The purpose of the Supreme Court’s requirement for
appointment of the district attorney to prosecute criminal contempt is part of the Court’s
effort to ensure that due process is provided. Prosecution by an independent,
disinterested prosecutor protects the defendant’s right to a fair trial. Rule 1-093 comm.
cmt.

{44} There is no indication that our Supreme Court intended that there be a special
method used to appoint the district attorney. We find no merit to Defendant’s claim that
the district court was required to enter a written order. Rule 1-093 adopts the Court’s
Rules of Criminal Procedure for cases of nonsummary indirect criminal contempt. Rule
1-093(D)(3). Rule 5-201(B) NMRA provides that the district attorney may commence a
criminal prosecution by filing a criminal complaint. The district attorney filed such a
complaint in this case and then proceeded to prosecute the case at trial. Judge Rael
neither presided nor served as the prosecutor, in full compliance with Rule 1-093(D)(2),
the Rules of Criminal Procedure, and the requirements of due process.

{45} The purpose of Rule 1-093(D)(2)—to provide an independent prosecutor in a
criminal contempt proceeding—was fully achieved. Defendant’s claim that Rule 1-
093(D)(2) was violated lacks merit.

CONCLUSION

{46} For the reasons stated above, we affirm Defendant’s conviction for criminal
contempt.

{47}   IT IS SO ORDERED.
JANE B. YOHALEM, Judge

WE CONCUR:

MEGAN P. DUFFY, Judge

SHAMMARA H. HENDERSON, Judge