October 17, 2022- State of New Mexico v. Jason Evans, No. A-1-CA-39311

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: October 17, 2022	3
No. A-1-CA-39311	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellant,	6
v.	7
JASON EVANS a/k/a	8
JASON EDWARD EVANS,	9
Defendant-Appellee.	10
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY	11
Curtis R. Gurley, District Judge	12
Hector H. Balderas, Attorney General	13
Emily Tyson-Jorgenson, Assistant Attorney General	14
Santa Fe, NM	15
for Appellant	16
Bennett J. Baur, Chief Public Defender	17
William O’Connell, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellee	20
Court of Appeals of New Mexico
Filed 10/17/2022 11:36 AM

OPINION	1
BOGARDUS, Judge.	2
{1} 	In this case, we are asked to consider whether a preliminary hearing is required	3
in a case in which Defendant Jason Evans is charged only with misdemeanors. The	4
State’s appeal arises from the district court’s order dismissing six misdemeanor	5
charges filed against Defendant. The State argues that the district court erred when	6
(1) it interpreted 	Rule 5-201(C) 	NMRA, 	which governs charges 	by criminal	7
information to require a preliminary hearing when a defendant’s charges are limited	8
to misdemeanors; and (2) it relied on the State’s erroneous statement that “Defendant	9
waived preliminary hearing” as an alternative reason for dismissal. We reverse and	10
remand.	11
BACKGROUND	12
{2} 	The State initially filed a criminal complaint in magistrate court charging	13
Defendant with six misdemeanors. After the magistrate court denied the State’s	14
motion for continuance, the State voluntarily dismissed the complaint because the	15
testifying officers were unavailable. Three days later, the State refiled the case in	16
district 	court 	by 	criminal 	information, 	charging 	Defendant 	with 	the 	same	17
misdemeanors 	and 	erroneously 	stating 	that 	“Defendant 	waived 	preliminary	18
hearing.”	19

2
{3} 	Thereafter, Defendant filed a motion to dismiss the criminal information	1
arguing that Rule 5-201(C) “contemplates the filing of a [c]riminal [i]nformation	2
only after a preliminary hearing or waiver thereof [and n]either of these events	3
occurred.” The State opposed the motion, arguing that Defendant had “no right to a	4
preliminary hearing on misdemeanor charges.”	5
{4} 	The 	district 	court 	agreed 	with 	Defendant 	and 	dismissed 	the 	criminal	6
information. The district court interpreted Rule 5-201(C) to require a preliminary	7
hearing or a waiver of the hearing before an information is filed in the district court.	8
Additionally, the court cited the State’s “clear factual misrepresentation” regarding	9
waiver of the preliminary hearing as another reason to dismiss. The State appeals.	10
{5} 	We reserve discussion of additional facts relevant to Defendant’s appeal	11
where appropriate in our analysis.	12
DISCUSSION	13
I. 	The District Court Erred in Interpreting Rule 5-201(C) to Require a	14
Preliminary Hearing Be Held or Waived Before an Information Is Filed	15
{6} 	The State argues that Defendant was not entitled to a preliminary hearing	16
because he was charged only with misdemeanors and the district court’s reliance on	17
Rule 5-201 was in error because the rule does not contain a specific requirement for	18
a preliminary hearing in such circumstances. Defendant argues that dismissal was	19
proper to rectify the State’s error in filing a criminal information instead of a criminal	20
complaint, which does not require a preliminary hearing.	21

3
{7} 	The State’s argument requires us to interpret the language of the rule, which	1
is a question of law that we review de novo. Allen v. LeMaster, 2012-NMSC- 001,	2
¶ 11, 267 P.3d 806. When construing procedural rules, we use the same rules of	3
construction applicable to the interpretation of statutes. See Walker v. Walton, 2003-	4
NMSC-014, ¶ 8, 133 N.M. 766, 70 P.3d 756. “We first look to the language of the	5
rule.” In re Michael L., 2002-NMCA-076, ¶ 9, 132 N.M. 479, 50 P.3d 574. “If the	6
rule is unambiguous, we give effect to its language and refrain from further	7
interpretation.” Id. If a rule is ambiguous, we consider its purpose in conjunction	8
with other rules. See In re Zac McV., 1998-NMCA-114, ¶ 10, 125 N.M. 583, 964	9
P.2d 144. We also seek guidance from the rule’s language, history, and background.	10
Roark v. Farmers Grp., Inc., 2007-NMCA-074, ¶ 50, 142 N.M. 59, 162 P.3d 896.	11
{8} 	As an initial matter, a defendant’s right to a preliminary hearing is limited to	12
those instances when a person is charged with a “capital, felonious or infamous	13
crime.” N.M. Const. art. II, § 14. This court has interpreted our state constitution to	14
conclude that “[a]n accused has no right to a preliminary hearing on a misdemeanor	15
charge.” State v. Greyeyes, 1987-NMCA-022, ¶ 15, 105 N.M. 549, 734 P.2d 789.	16
Therefore, we next consider whether the language of Rule 5-201(C) expands the	17
right to a preliminary hearing beyond our state constitution or if the rule simply	18
prescribes deadlines for filing a criminal information if a preliminary hearing was	19
otherwise required. We conclude it is the latter, and explain.	20

4
{9} 	The language of Rule 5-201(C) sets out the requirements for a criminal	1
information, 	which are 	a 	“written 	statement, 	signed 	by the district 	attorney,	2
containing the essential facts, common name of the offense, and, if applicable, a	3
specific section number of the New Mexico Statutes which defines the offense.” The	4
rule is silent regarding whether a preliminary hearing must occur before the criminal	5
information is filed. The absence of this specific requirement has been interpreted to	6
allow the State to file an information before the preliminary hearing. See State v.	7
Bailey, 1956-NMSC-123, ¶ 3, 62 N.M. 111, 305 P.2d 725 (holding that “[t]he court	8
did not err in putting appellant to trial upon an information filed prior to the	9
preliminary examination”); Rule 5-201 comm. cmt. (“Nothing . . . prohibits the	10
prosecution from first filing the information.”).	11
{10} 	Further, the rule states, “On completion of a preliminary examination or	12
acceptance of a waiver thereof by the district court, an information shall be filed	13
within thirty (30) days if a defendant is not in custody, and within ten (10) days if a	14
defendant is in custody.” Rule 5-201(C). Nothing in the rule creates a specific	15
preliminary hearing requirement for criminal informations charging misdemeanors.	16
Rather, the language prescribes deadlines for filing the information if a preliminary	17
hearing has occurred. Thus, if the preliminary hearing has not been completed, or it	18
is not required, or it has been waived, those deadlines do not apply. Such is the case	19
when the prosecution holds the 	preliminary 	hearing 	after 	filing 	the criminal	20

5
information, as permitted 	by Bailey, or when a defendant does not have the	1
constitutional right to a preliminary hearing, as in the present case.	2
{11} 	Our conclusion is supported by our Supreme Court’s rulings in Bailey, 1956-	3
NMSC-123, and State v. Nelson, 1958-NMSC-018, 63 N.M. 428, 321 P.2d 202. In	4
both cases a criminal information was filed before the preliminary hearing. See	5
Bailey, 1956-NMSC-123, 	¶ 3; Nelson, 1958-NMSC-018, 	¶ 25. In each of these	6
cases, our Supreme Court held that “[t]he [district] court did not err in putting	7
appellant to trial upon an information filed prior to the preliminary examination.”	8
Bailey, 1956-NMSC-123, 	¶ 3; Nelson, 1958-NMSC-018, 	¶ 26 (same). If Rule 5-	9
201(C) categorically required “a preliminary examination be held or waived before	10
an information is filed,” as the district court held, our Supreme Court would not have	11
permitted the prosecution in Bailey and Nelson to hold the preliminary hearing after	12
filing the information.1 (Emphasis added.)	13
{12} 	Our interpretation is further supported by the history and purpose of the	14
preliminary hearing. The primary purpose of the preliminary hearing is to provide	15
an opportunity for independent evaluation of the state’s showing of probable cause.	16
State ex rel. Whitehead v. Vescovi-Dial, 1997-NMCA-126, ¶ 5, 124 N.M. 375, 950	17
1
In Bailey and Nelson a preliminary hearing was constitutionally required,
either before or after the criminal information was filed, because the defendants had
been charged with felonies. See Bailey, 1956-NMSC-123, ¶¶ 1, 3; Nelson, 1958-
NMSC-018, ¶¶ 1, 25.

6
P.2d 818. The preliminary hearing “operates as a screening device to prevent hasty	1
and unwise prosecutions and to save an innocent accused from the humiliation and	2
anxiety of a public prosecution.” Id. ¶ 6. “The preliminary hearing originally was	3
instituted as a charge-screening process in response to delays in the grand jury	4
indictment process.” 4 Wayne R. LaFave et al., Criminal Procedure § 14.1(a) n.2	5
(4th ed. 2021). Because prosecutions by grand jury indictment were typically limited	6
to felonies, the preliminary hearing was also limited to felonies. Id.	7
{13} 	Construing the rule to require district courts to provide independent evaluation	8
through preliminary hearings to misdemeanors charges would be contrary to the goal	9
of expediting the screening process. Misdemeanor charges undergo screening by the	10
court’s issuance of arrest warrants or by judicial review of arrests pursuant to the	11
misdemeanor arrest rule. See id.; see also City of Santa Fe v. Martinez, 2010-NMSC-	12
033, ¶ 6, 148 N.M. 708, 242 P.3d 275 (“[A]n officer may only arrest without a	13
warrant one guilty of a misdemeanor if committed in his presence.” (internal	14
quotation marks and citation omitted)). These independent screening processes are	15
deliberately less demanding than those required for felonies because “misdemeanors	16
do not threaten public safety to the level of felonies.” Martinez, 2010-NMSC- 033,	17
¶ 12 (explaining the basis for permitting warrantless misdemeanor arrests).	18
{14} 	Although Defendant’s argument is not developed and thus is not entirely	19
clear, to the extent that Defendant argues that the State’s error was in filing a criminal	20

7
information in this instance, rather than a criminal complaint, we disagree. Rule 5-	1
201(A) authorizes the State to initiate prosecution by filing a complaint, information,	2
or an indictment. Thus, we find no error in the the State’s choice of filing an	3
information.	4
{15} 	Based on our review of relevant authority and the rule’s language and purpose,	5
we conclude that Rule 5-201(C) prescribes filing deadlines in the event that a	6
preliminary hearing has been completed or waived prior to filing; it does not require	7
a prior preliminary hearing for every instance, as in this case, in which Defendant	8
was charged only with misdemeanors. Accordingly, 	the district court erred by	9
requiring a preliminary hearing.	10
II. 	The District Court Erred in Dismissing 	the Complaint Based on the	11
State’s 	Erroneous 	Statement 	That 	Defendant Waived 	Preliminary	12
Hearing	13
{16} 	Defendant contends that pursuant to State v. Le Mier, 2017-NMSC-017, 394	14
P.3d 395, and State v. Harper, 2011-NMSC-044, 150 N.M. 745, 266 P.3d 25, he	15
suffered prejudice, and therefore dismissal was appropriate to rectify the State’s	16
error. The only argument Defendant makes in support of his claim of prejudice is	17
that 	courts 	“examine 	charging 	documents 	to 	determine 	the 	culpability 	of	18
defendants.” Defendant fails 	to explain 	how the State’s 	error in the charging	19
document prejudiced him—especially since the district court did not rely on it and	20
instead dismissed the charges—thus, Defendant’s claim of prejudice is without	21

8
merit. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d	1
318 (“An assertion of prejudice is not a showing of prejudice.”); see also State v.	2
Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (observing that appellate courts are	3
under no obligation to review unclear or undeveloped arguments).	4
CONCLUSION	5
{17} 	For the foregoing reasons, we reverse and remand.	6
{18} 	IT IS SO ORDERED.	7
_____________________________	8
KRISTINA BOGARDUS, Judge	9
WE CONCUR:	10
______________________________	11
JACQUELINE R. MEDINA, Judge	12
______________________________	13
KATHERINE A. WRAY, Judge	14