State v. Stammer, 082219 NMCA, A-1-CA-36243

• Opinion Judge: J. MILES HANISEE, JUDGE
• Party Name: STATE OF NEW MEXICO, Plaintiff-Appellee, v. NEIL STAMMER, Defendant-Appellant.
• Attorney: Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee Robert E. Tangora, L.L.C. Robert E. Tangora Santa Fe, NM for Appellant
• Judge Panel: WE CONCUR: JULIE J. VARGAS, Judge, JACQUELINE R. MEDINA, Judge
• Case Date: August 22, 2019
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.

NEIL STAMMER, Defendant-Appellant.

No. A-1-CA-36243

Court of Appeals of New Mexico

August 22, 2019

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Benjamin Chavez, District Judge

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

Robert E. Tangora, L.L.C. Robert E. Tangora Santa Fe, NM for Appellant

MEMORANDUM OPINION

J. MILES HANISEE, JUDGE

{¶1} Defendant appeals his conviction of four counts of criminal sexual contact with a minor. On appeal, Defendant argues (1) the district court erred in denying his motion to dismiss for violation of the statute of limitations; and (2) there was insufficient evidence to support charges of criminal sexual contact. Primarily as a result of Defendant's undeveloped factual and legal analysis, we affirm.

BACKGROUND

{¶2} Defendant was charged with twelve counts related to alleged criminal sexual contact and/or penetration of a sixteen year-old boy who was an employee of Defendant's magic shop. Each instance of abuse took place between November 2, 1996 and May 14, 1999. Before trial, Defendant filed a motion to dismiss in district court alleging that all charges against him were filed over ten years after expiration of the six-year statute of limitations. The State argued that the statute of limitations had not run as (1) it did not begin to run until the victim turned eighteen years of age in November 1999; and (2) the time was tolled, pursuant to NMSA 1978, Section 30-1-9 (1963), when Defendant fled New Mexico in 2000 and did not return until 2014.

{¶3} At the initial hearing on Defendant's motion, the State failed to present evidence regarding Defendant's departure or absence from the state, and as a result the district court reset the hearing stating that the State should at least provide an affidavit or other attachment upon which the district court could make findings of fact. At the reset hearing, the State again did not present witnesses or evidence but instead asked the district court to take judicial notice of a separate motion hearing in a parallel case in which a similar issue was argued and resolved by another district court judge in conjunction with that judge's order denying Defendant's motion to dismiss for violation of right to a speedy trial. The State asked the district court to "make [its] decision based on some of the testimony that came forward at that hearing." Amongst other arguments, Defendant stated that the use of judicial notice was improper because the findings from the parallel case did not "necessarily reflect [Defendant]'s testimony completely[, ]" and that "even if the State were to produce a transcript or the [c]ourt h[o]ld that [the judge's] findings were a sufficient substitute, that would be an inappropriate use of my client's own statements in order to provide the proof against him at this subsequent hearing." However, Defendant conceded that he admitted in his prior sworn testimony to "breaking off contact and leaving the state at some point."

{¶4} The district court reserved ruling and later entered an order denying Defendant's motion to dismiss. In it, the district court took judicial notice "that Defendant gave sworn testimony on October 13, 2015, wherein he testified that he left New Mexico on April 13, 2000, and did not return until 2014." The district court reasoned, "[w]hile defense counsel argued that the testimony given by Defendant is subject to reasonable dispute, the testimony was duly sworn and it was never actually disputed that Defendant had left New Mexico." The district court denied the motion to dismiss based on its finding that Defendant was "absent from New Mexico from April 2000 until July 2014" and its conclusion that under applicable statutory authority the statute of limitations was tolled during that time.

{¶5} At trial, the jury found Defendant guilty of four counts of criminal sexual contact of a minor in the third degree (person in position of authority) and one count of bribery of a witness. Defendant appeals from the district court's ensuing judgment and sentence.

DISCUSSION

I. Defendant Has Not Demonstrated That the District Court Erred in Taking Judicial Notice of Defendant's Sworn...