April 21, 2020- State of New Mexico v. Joseph A. Grubb, No. A-1-CA-37836

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: April 21, 2020	3
NO. A-1-CA-37836	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellant,	6
v.	7
JOSEPH A. GRUBB,	8
Defendant-Appellee.	9
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY	10
William G. W. Shoobridge, District Judge	11
Hector H. Balderas, Attorney General	12
Emily C. Tyson-Jorgenson, Assistant Attorney General	13
Santa Fe, NM	14
for Appellant	15
Bennett J. Baur, Chief Public Defender	16
Santa Fe, NM	17
Steven J. Forsberg, Assistant Appellate Defender	18
Albuquerque, NM	19
for Appellee	20
Court of Appeals of New Mexico
Filed 4/21/2020 11:29 AM

OPINION	1
VARGAS, Judge.	2
{1} 	The State appeals the district court’s dismissal of one count of identity theft,	3
contrary to NMSA 1978, Section 30-16-24.1(A) (2009), and seventeen counts of	4
forgery, contrary to NMSA 1978, Section 30-16-10(A)(1) (2006), committed in Lea	5
County, for the State’s failure to join those charges under Rule 5-203(A) NMRA	6
with Defendant’s escape from jail charge, NMSA 1978, § 30-22-8 (1963), in Otero	7
County. The State challenges whether the offenses Defendant allegedly committed	8
in Lea County are, under Rule 5-203(A)(2), “based on the same conduct or on a	9
series of acts either connected together or constituting parts of a single scheme or	10
plan” as the offense Defendant was convicted of in Otero County; and, if so, whether	11
the State is required to join offenses under Rule 5-203(A) when the offenses were	12
committed in different counties located in different judicial districts—an issue of	13
first impression for our courts. Concluding under the circumstances of this case that	14
the charges in Lea County were erroneously dismissed in light of our statutory and	15
constitutional venue requirements, we reverse.	16
BACKGROUND	17
{2} 	This appeal arises from offenses charged in separate counties located in	18
different judicial districts. The forgery and identity theft charges, which were	19
dismissed in the case at bar, were brought in Lea County (the Lea County offenses),	20

2
located in the Fifth Judicial District, whereas the escape from jail charge was brought	1
in Otero County (the Otero County offense), located in the Twelfth Judicial District.	2
We set forth the relevant factual and procedural backgrounds of each case leading	3
up to the present appeal.	4
Otero County Offense	5
{3} 	While on probation, Defendant was arrested and charged with unrelated	6
crimes. The district court revoked his probation and granted him furlough until the	7
imposition of his sentence on December 31, 2011, at which time he was required to	8
turn himself into the custody of the Otero County Detention Center. Defendant failed	9
to turn himself in on December 31, 2011, and was charged with one count of escape	10
from jail.	11
Lea County Offenses	12
{4} 	In 2013 Defendant identified himself with his half-brother’s name and	13
personal information while being arrested, booked into jail, and appearing in court	14
on unrelated offenses.1 Based on these actions, the State charged Defendant with	15
identity theft and forgery.	16
Proceedings in Otero County	17
{5} 	Prior 	to 	trial 	for 	the 	Otero 	County 	offense, 	the 	district 	court 	denied	18
Defendant’s motion in limine to exclude testimony about the Lea County offenses,	19
1The facts underlying the arrests and charges were not made part of the record.

3
ruling that the circumstances surrounding the Lea County offenses were “probative	1
of the elements of the crime [with which D]efendant is currently charged.” During	2
trial, the State explained in its opening statement that the Lea County offenses were	3
“evidenc[e of] a continuing intent not to come back, not to turn himself in, and to	4
avoid [the district court’s] order.” Further, in its closing argument, the State argued	5
Defendant’s use of his half-brother’s name was part of his ongoing effort to avoid a	6
sentence and commitment in the conviction for the Otero County offense. Explaining	7
Defendant’s motive to use a different identity when being arrested in Lea County,	8
the State argued Defendant was “living a lie” and wanted to go to jail under his half-	9
brother’s name because he “want[ed] to hide.” Defendant was found guilty of escape	10
from jail in the Otero County offense.2
11
Proceedings in Lea County	12
{6} 	Defendant filed a motion to dismiss the Lea County offenses with the Fifth	13
Judicial District Court for failure to join those offenses with the Otero County	14
offenses pursuant to Rule 5-203(A). In its response to the motion to dismiss, the	15
State contended that (1) the “crimes in Lea County were presented at trial on the	16
Otero 	County 	case 	pursuant 	to 	Rule 	11-404(B) 	[NMRA]” 	as 	evidence 	of	17
“[D]efendant’s intent in not returning from the furlough”; (2) Rule 5-203 neither	18
2 We recently reversed Defendant’s conviction for escape from jail and
remanded for a new trial in State v. Grubb, 2020-NMCA-003, ¶ 1, 455 P.3d 877.

4
allows for nor requires joinder of offenses when those offenses are not of the same	1
or similar character or based on the same conduct; and (3) “the rule does not	2
contemplate joinder of offenses in one indictment or information in which venue lies	3
in different jurisdictions.” The district court granted Defendant’s motion, dismissing	4
the Lea County offenses for failure to join. This appeal followed.	5
DISCUSSION	6
{7} 	The State raises the following issues on appeal: (1) whether compulsory	7
joinder under Rule 5-203(A) was appropriate given the facts underlying the Otero	8
County offense and the Lea County offenses; and (2) whether Rule 5-203(A) applies	9
to offenses committed in multiple judicial districts. As our holding with respect to	10
the inapplicability of Rule 5-203(A) to offenses committed in multiple counties	11
located in different judicial districts is dispositive of the matter, we need not address	12
whether joinder is appropriate under the circumstances.	13
{8} 	Rule 5-203(A) requires joinder of two or more offenses in one complaint,	14
indictment, or information if the offenses “(1) are of the same or similar character,	15
even if not part of a single scheme or plan; or (2) are based on the same conduct or	16
on a series of acts either connected together or constituting parts of a single scheme	17
or plan.”3 The State challenges our compulsory joinder rule’s applicability when the	18
3On appeal and in the district court, Defendant limited his joinder argument
to one of the applicability of Rule 5-203(A)(2).

5
offenses at issue were committed in two separate counties, located in different	1
judicial districts. Whether Rule 5-203(A) required joinder in these circumstances is	2
a question of law we review de novo. See State v. Webb, 2017-NMCA-077, ¶ 11,	3
404 P.3d 804 (“The question of whether offenses must be joined under Rule 5-	4
203(A) is a question of law that we review de novo.”); State v. Aragon, 2017-	5
NMCA-005, ¶ 7, 387 P.3d 320 (“Whether a criminal statute applies to particular	6
conduct is a question of law to be reviewed de novo.”).	7
{9} 	The rule itself is silent as to the question the State raises, and neither our New	8
Mexico Supreme Court nor this Court have provided guidance as to whether venue	9
has any bearing upon the compulsory joinder rule’s breadth. We therefore turn to	10
guidance from other states with compulsory joinder requirements.	11
A. 	Venue as a Limitation on Compulsory Joinder	12
{10} 	Of states that require joinder of offenses, we identify distinctions based upon	13
whether or not they have codified a venue limitation on compulsory joinder. Several	14
states with compulsory joinder requirements have expressly included within the text	15
of their joinder statutes or rules a limitation on joinder based upon venue. See, e.g.,	16
Colo. R. Crim. P. 8(a)(1) (2002) (“If several offenses . . . were committed within [the	17
prosecuting 	attorney’s] 	judicial 	district, 	all 	such 	offenses 	upon 	which 	the	18
prosecuting attorney elects to proceed must be prosecuted by separate counts in a	19
single prosecution if they are based on the same act or series of acts arising from the	20

6
same criminal episode.” (emphasis added)); Me. Rev. Stat. Ann. Separate Trials 17-	1
A, § 14 (1976) (“A defendant shall not be subject to separate trials for multiple	2
offenses based on the same conduct or arising from the same criminal episode, if	3
such offenses . . . were within the jurisdiction of the same court and within the same	4
venue[.]” (emphasis added)); N.J. Stat. Ann. § 3:15-1(b) (West 1987) (barring	5
“separate trials for multiple criminal offenses based on the same conduct or arising	6
from the same episode, if such offenses . . . are within the jurisdiction and venue of	7
a single court” (emphasis added)); Or. Rev. Stat. Ann. § 131.515(2) (West 1997)	8
(barring separate prosecutions “for two or more offenses based upon the same	9
criminal episode, if the several offenses . . . establish proper venue in a single court”	10
(emphasis added)).	11
{11} 	Conversely, 	there 	are 	also 	states 	that 	have 	declined 	to 	include 	venue	12
limitations in their compulsory joinder statutes or rules. See, e.g., 720 Ill. Comp.	13
Stat. Ann. 5/3-3(b) (West 1961) (“If the several offenses are known to the proper	14
prosecuting officer at the time of commencing the prosecution and are within the	15
jurisdiction of a single court, they must be prosecuted in a single prosecution[.]”);	16
N.Y. Crim. Proc. Law § 40.40(1) (McKinney 1970) (“Where two or more offenses	17
are joinable in a single accusatory instrument against a person by reason of being	18
based upon the same criminal transaction, . . . such person may not . . . be separately	19
prosecuted for such offenses even though such separate prosecutions are not	20

7
otherwise barred by any other section of this article.”). Notwithstanding the lack of	1
an express codification of a venue limitation, courts in these states have diverged	2
with respect to whether compulsory joinder is limited by the venue of a defendant’s	3
criminal offenses. Compare People v. Gray, 783 N.E.2d 170, 179 (Ill. App. Ct. 2003)	4
(concluding that although “venue is not jurisdictional[,]” compulsory joinder in one	5
county is improper if that county is an improper venue because that county’s	6
prosecutor is not the “proper prosecuting officer” (internal quotation marks and	7
citation omitted)), People v. Lindsly, 472 N.Y.S.2d 115, 118 (N.Y. App. Div. 1984)	8
(“Offenses are joinable in a single accusatory instrument if they arise out of the same	9
criminal transaction and the court has subject matter and geographical jurisdiction	10
over both of them[.]” (emphasis added)), and People v. Bigness, 813 N.Y.S.2d 570,	11
571 (N.Y. App. Div. 2006) (recognizing that venue is also referred to by the term	12
“geographical jurisdiction”), with Commonwealth v. McPhail, 692 A.2d 139, 141,	13
144-45 (Pa. 1997) (plurality opinion) (interpreting Pennsylvania’s pre-2002 joinder	14
statute—which barred a subsequent prosecution of “any offense based on the same	15
conduct or arising from the same criminal episode, if such offense was . . . within	16
the jurisdiction of a single court”—as not including a venue-based preclusion of	17
joinder of offenses in one county when the offenses were committed during the same	18
criminal episode across several counties (emphasis, internal quotation marks, and	19

8
citation omitted)), superseded by statute as stated in Commonwealth v. Fithian, 961	1
A.2d 66, 76-77 (Pa. 2008).	2
{12} 	As we noted above, New Mexico’s compulsory joinder rule does not	3
expressly limit compulsory joinder’s reach on the basis of venue. We therefore turn	4
to an examination of our venue statute, which provides, “All trials of crime shall be	5
had in the county in which they were committed.” NMSA 1978, § 30-1-14 (1963).	6
Our Supreme Court has held this provision to be “merely a reiteration of the	7
constitutional right of venue” found in Article II, Section 14 of the New Mexico	8
Constitution. State v. Lopez, 1973-NMSC-041, ¶ 11, 84 N.M. 805, 508 P.2d 1292;	9
see N.M. Const. art. II, § 14 (“In all criminal prosecutions, the accused shall have	10
the right to . . . a speedy public trial by an impartial jury of the county or district in	11
which the offense is alleged to have been committed.”). Requiring joinder of	12
offenses, committed exclusively within one county, with an offense committed and	13
charged in another county located in a different judicial district would seem to	14
contravene our venue requirements.4
15
4 We 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, 2006-NMCA-043, ¶ 31, 139 N.M. 341, 132 P.3d 598
(“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

9
{13} 	Among the approaches taken in other jurisdictions set out above, we find those	1
cases determining that venue functions as a reasonable limitation on compulsory	2
joinder persuasive. See 4 Wayne R. LaFave et al., Criminal Procedure § 16.1(f) (4th	3
ed. 2019) (“In general, states requiring same transaction joinder restrict that	4
obligation to offenses that have venue in a single judicial district. . . . Where	5
legislation requires joinder of offenses arising out of the same criminal episode, but	6
makes no reference to venue limitations, courts have assumed that the venue	7
limitations remain in place and modify the mandatory joinder obligation.” (footnote	8
omitted)). Significantly, this approach gives effect to our venue requirements, which	9
are grounded in New Mexico’s Constitution—as such, they may not yield to a court	10
rule, such as Rule 5-203(A), to the extent there is a conflict between the rule and the	11
constitutional directive. See 20 Am. Jur. 2d Courts § 50 (2020) (“A court rule will	12
not be construed to circumvent or supersede a constitutional mandate.”); 21 C.J.S.	13
Courts § 166 (2020) (“Court rules and their official comments are not effective if	14
they conflict with valid provisions of the constitution.”). We now proceed with an	15
application of our venue requirements to the circumstances in the present case. 5
16
faced with the question of whether joinder is appropriate in those circumstances. We
therefore leave resolution of that question for another day. See Aragon, 2017-
NMCA-005, 	¶ 9 	n.4 	(observing 	the 	need 	for 	case-by-case 	considerations 	of
reasonable limitations on our compulsory joinder rule).
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

10
C. 	Venue Limitation as Applied to the Present Case	1
{14} 	Applying the applicable venue requirements to the case at bar, we conclude	2
the proper venue for the Lea County offenses was in Lea County, in the absence of	3
a change of venue or waiver. See State v. House, 1999-NMSC-014, ¶ 28, 127 N.M.	4
151, 978 P.2d 967 (recognizing the right of both the state and the defendant to seek	5
a change of venue); State v. Allen, 2014-NMCA-111, ¶ 21, 336 P.3d 1007 (observing	6
that challenges to venue may be waived). Here, neither party sought a change of, and	7
Defendant did not waive, venue. 6 Rather, Defendant sought dismissal based on the	8
State’s failure to join the Lea County offenses with the Otero County offense. Under	9
the procedural posture of the present case, we conclude venue was proper in Lea	10
joinder of certain offenses “in one complaint, indictment or information”), and State
v. Gonzales, 2013-NMSC-016, ¶ 25, 301 P.3d 380 (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, 2014-NMCA-064, ¶ 26, 327
P.3d 1092 (explaining that “we will not search the record to find facts to
support [the defendant’s] argument”).

11
County and, therefore, the district court erred in dismissing the charges arising from	1
the Lea County offenses for failure to join with the offense charged in Otero County.	2
CONCLUSION	3
{15} 	For the foregoing reasons, we reverse and remand to the district court for	4
reinstatement of the charges arising from the Lea County offenses.	5
{16} 	IT IS SO ORDERED.	6
_________________________________	7
JULIE J. VARGAS, Judge	8
WE CONCUR:	9
_________________________________	10
JENNIFER L. ATTREP, Judge	11
_________________________________	12
KRISTINA BOGARDUS, Judge	13