November 13, 2016 – State of New Mexico v. John C. Pacheco, No. 34,759

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: November 3, 2016
NO. 34,759
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
JOHN C. PACHECO,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Jerry H. Ritter, Jr., District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM
for Appellant
Fuqua Law & Policy, P.C.
Scott Fuqua
Santa Fe, NM
for Appellee

OPINION
HANISEE, Judge.
{1} 	The State appeals from the dismissal of its criminal information charging
Defendant with fraud in violation of NMSA 1978, Section 30-16-6(A), (F) (2006). We
reverse.
{2} 	Rule 5-601(B) NMRA provides that “[a]ny defense, objection or request which
is capable of determination without a trial on the merits may be raised before trial by
motion.” In State v. Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329, we
held that a district court may dismiss a criminal information or indictment when guilt
turns on a “purely legal issue” and any relevant “factual predicate underlying the
charges” is undisputed by the state. Id. ¶ 6. In Foulenfont, the purely legal issue was
whether a fence is a “structure” under our burglary statute, and the state conceded that
the only basis for finding the defendant guilty turned on this legal question. Id. ¶ 7.
Accordingly, we held that the district court properly resolved the legal question
without holding a trial. Id. ¶ 10.
{3} 	Here, the offense with which Defendant was charged consists of “intentional
misappropriation or taking of anything of value [greater than $20,000] that belongs
to another by means of fraudulent conduct, practices or representations.” Section 30-
16-6(A), (F). The probable cause affidavit attached to the criminal complaint alleges

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that Defendant contracted with Richard Aguilar to purchase a coffee business in
Ruidoso, New Mexico for $43,000 to be paid for with a down payment and in
subsequent installments. Defendant paid the down payment, but a few months later
stopped making installment payments to Aguilar, thereby breaching the sale contract.
Defendant offered to give Aguilar a trailer and any equipment attached to it in
exchange for a release of his remaining obligation under the purchase agreement,
which Aguilar accepted based on invoices Defendant showed to Aguilar that
represented the value of the trailer and the attached equipment to be $43,096. The
affidavit states that Defendant admitted altering the invoices to inflate the value of the
trailer and the equipment, but maintained that he had done so with Aguilar’s consent.
A magistrate judge found that this information constituted probable cause that
Defendant had committed fraud and issued a warrant for Defendant’s arrest.
{4} 	Relying on Rule 5-601(B) and Foulenfont, Defendant filed a motion to dismiss
the information. He argued that Aguilar’s “prior sworn statements and verified
pleadings” in ancillary civil proceedings between Aguilar and Defendant “establish,
as a matter of law, [that] Defendant obtained no property as a result of a fraudulent act
or inducement . . . and [Aguilar] did not rely on any false representation made by
Defendant[.]” After the State’s opening statement on the morning of Defendant’s
bench trial, but before the State presented any evidence, counsel for Defendant

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renewed his motion to dismiss, once again arguing that the State would not be able to
prove the elements of fraud beyond a reasonable doubt. The district court granted the
motion, finding that “Defendant, through counsel, asserted sworn or otherwise
admissible evidence from a related civil proceeding establish[ing that Aguilar] did not
rely on any representations by Defendant and did not suffer pecuniary harm as a
matter of law.” The district court further reasoned that because the State “could offer
no evidence which would create a disputed fact” and “did not dispute the facts put
forth by Defendant[,]” dismissal under Rule 5-601(B) was appropriate.
{5} 	We disagree, but before we can explain our disagreement we must determine
whether the State is permitted to appeal the district court’s decision. This is because
the double jeopardy clause of the Fifth Amendment to the United States Constitution
provides that no “person [shall] be subject for the same offense to be twice put in
jeopardy of life or limb[.]” This means that “[t]he [s]tate is barred from appealing
when a defendant is acquitted” because any further proceedings in the district court
after appeal would violate the Double Jeopardy Clause. State v. Baca, 2015-NMSC-
021, ¶ 21, 352 P.3d 1151 (internal quotation marks and citation omitted). So the
question here is whether the district court’s decision below amounted to an acquittal.
{6} 	This question involves a term of art: whether “jeopardy has attached[.]” State
v. Collier, 2013-NMSC-015, ¶ 13, 301 P.3d 370. The United States Supreme Court

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has held that jeopardy attaches in a bench trial when the first witness is sworn. Crist
v. Bretz, 437 U.S. 28, 37 n.15 (1978). New Mexico courts have been a bit less
specific, holding that jeopardy attaches in a bench trial “when the court begins to hear
evidence.” State v. Angel, 2002-NMSC-025, ¶ 8, 132 N.M. 501, 51 P.3d 1155. In any
event, the animating purpose behind the two standards is the same:
[T]he [s]tate with all its resources and power should not be allowed to
make repeated attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though innocent he may be
found guilty.
Serfass v. United States, 420 U.S. 377, 388 (1975) (internal quotation marks and
citation omitted); see State v. Gutierrez, 2014-NMSC-031, ¶ 19, 333 P.3d 247 (same
(internal quotation marks and citation omitted)). Our Supreme Court has recently
noted that a defendant who “deliberately choos[es] to seek termination of the
proceedings against him before a determination of his guilt or innocence . . .
voluntarily reject[s] the Fifth Amendment protection against being twice placed in
jeopardy for the same offense.” Baca, 2015-NMSC-021, ¶ 41 (internal quotation
marks and citation omitted). Hence our Supreme Court distinguishes between
“termination [of a trial] based on finding the [s]tate’s evidence insufficient[,]” which
counts as an acquittal, and “procedural dismissal[s] unrelated to the evidence of [the
defendant’s] guilt[,]” which do not. Id. ¶¶ 36, 42.

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{7} 	Here, the district court characterized its order dismissing the information as a
finding that “[t]here are no material factual issues in dispute and the [S]tate cannot
prove the prima facie element of pecuniary loss beyond a reasonable doubt as a matter
of law.” But “a judge’s own characterization of his procedural dismissal as an
acquittal on the merits cannot control a reviewing court’s assessment of the true nature
of the action.” Id. ¶ 42. Here, the district court characterized its order as a finding that
the State had presented insufficient evidence to obtain a conviction. But the State had
yet to present any evidence whatsoever. So under Serfass and Gutierrez, jeopardy had
not attached.
{8} 	Defendant suggests that “[even] though no witness had yet been sworn, the
[d]istrict [c]ourt nevertheless considered uncontested evidence, discussed without
objection from the State, in connection with its dismissal.” But the district court did
not consider evidence; it considered a proffer by defense counsel as to what the
evidence at trial would show, and “statements of counsel are not evidence.” State v.
Garcia, 1978-NMCA-109, ¶ 4, 92 N.M. 730, 594 P.2d 1186. The district court would
have only been in a position to acquit Defendant after the State had put forward its
own evidence; because the district court terminated the case after the State’s opening
statement and before any witness was sworn, jeopardy had yet to attach. Accordingly,
we view the district court’s dismissal of the information as a procedural dismissal and

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not an acquittal. Thus, because double jeopardy had not attached, we will entertain the
State’s appeal of that dismissal.
{9} 	The State’s argument on appeal is that the district court resolved questions of
fact as to the meaning of the release agreement between Defendant and Aguilar, which
would be an improper “pretrial attack on the sufficiency of evidence under the guise
of a [Rule 5-601] motion.” State v. LaPietra, 2010-NMCA-009, ¶ 6, 147 N.M. 569,
226 P.3d 668. Defendant, in turn, argues that the “nature of the [trial c]ourt’s
determination” was a resolution of a purely legal question based on undisputed facts:
Aguilar’s testimony in a related civil proceeding that the release did not relieve
Defendant of his debt under the underlying sale contract and his assertion of a
continued security interest in property that was the subject of Defendant and Aguilar’s
original agreement. But framing the issue as a sufficiency of the evidence problem or
a pure question of law does not change the analysis meaningfully either way. What
the Court in Foulenfont characterized as a “purely legal issue” raised prior to
trial—whether a fence is an “other structure” under the burglary statute—can be just
as easily characterized as an argument that the state’s evidence was insufficient to
prove all of the elements of burglary beyond a reasonable doubt. 1995-NMCA-028,
¶¶ 6-7.
{10} 	Adding to the confusion is Foulenfont’s characterization of the issue on appeal

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from the district court’s grant of a Rule 5-601 motion as “whether the district court
had authority to dismiss the charges prior to a trial on the merits.” Foulenfont, 1995-
NMCA-028, ¶ 1. But Rule 5-601 itself provides the district court with authority to
decide a motion to dismiss when a trial is unnecessary, and a trial is unnecessary when
the undisputed facts do not make out the elements of the charged crime. Foulenfont,
1995-NMCA-028, ¶ 6. So the question of the district court’s authority is the same as
the merits of its decision. Focusing on whether the nature of the decision involves a
pure question of law, or instead turns on disputed questions of fact begs the
underlying question: whether the undisputed facts—whether stipulated to by the State
or alleged in the indictment or information—show that the State cannot prove the
elements of the charged offense at trial, thereby making a trial on the merits
unnecessary. More often than not, the question is whether “the [s]tate could
reasonably assert the availability of additional evidence.” State v. Gomez, 2003-
NMSC-012, ¶ 7, 133 N.M. 763, 70 P.3d 753. Framing the analysis this way avoids
confusing questions about the district court’s “authority” to decide a motion or
whether the motion involves a question of fact or a pure question of law. It has the
added benefit of tying the inquiry to the text of Rule 5-601(B), which looks to whether
a motion is “capable of determination without a trial.”
{11} 	Applying this analysis, we begin by setting out the elements of the fraud charge

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the State was required to prove beyond a reasonable doubt at trial: Defendant (1) by
any words or conduct, made a promise he had no intention of keeping or
misrepresented a fact to Aguilar; (2) intended to deceive or cheat Aguilar; (3) because
of the promise or representation and Aguilar’s reliance on it, Defendant obtained
property or money valued in excess of $20,000; (4) the property or money belonged
to someone other than Defendant; and (5) the fraud took place in New Mexico. See
UJI 14-1640 NMRA; see also § 30-16-6. Here, the district court found that “[Aguilar
had asserted] in civil judicial pleadings and a UCC-1 filed in the property records of
Lincoln County [that] he had not relinquished all right, title[,] and interest in the
property allegedly obtained by fraud.” We understand the district court to have
concluded, based on this evidence, that the State could not prove that Aguilar had
relied on Defendant’s misrepresentations in releasing him from the original purchase
agreement.
{12} 	But the criminal complaint alleged that Aguilar’s decision to sign the release
was based on Defendant’s misrepresentations as to the value of a trailer and attached
fixtures. Indeed, the State argued in response to Defendant’s motion that it expected
Aguilar to testify to that effect at trial. The fact that Aguilar continued to maintain his
right to payments under the original purchase agreement in a related civil proceeding
is irrelevant to the question of whether Defendant obtained the release itself through

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his alleged misrepresentation. See State v. Higgins, 1988-NMCA-072, ¶ 8, 107 N.M.
617, 762 P.2d 904 (“If a defendant obtains something of value by fraudulent
misrepresentations, the fact it is later repaid does not bar prosecution.”). All of which
is to say that Defendant’s motion to dismiss could not be decided without a trial, and
the district court’s contrary conclusion was in error. Accordingly, the district court’s
grant of Defendant’s motion to dismiss is reversed. The case is remanded for further
proceedings.
{13} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
WE CONCUR:
___________________________
JAMES J. WECHSLER, Judge
LINDA M. VANZI, Judge