January 19, 2021- State of New Mexico v. Carlos J. Villanueva aka Carlos McMahon, No. A-1-CA-37353

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

. Court of Appeals of New Mexico
Opinion Number: Filed 1/19/2021 11:07 AM

Filing Date: JANUARY 19, 2021 A. ne [>
Mark Reynolds

No. A-1-CA-37353

STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.

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

Defendant-A ppellant.

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

Hector H. Balderas, Attomey General

Manis Veidemanis, Assistant Attomey General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

John C. Bennett, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION	1
YOHALEM, Judge.	2
{1} 	Defendant Carlos Villanueva appeals his conviction for criminal contempt, in	3
violation of NMSA 1978, Section 34-1-2 (1851) and Rule 1-093(B)(1) NMRA.	4
Defendant 	contends 	that: 	(1) 	there 	was 	insufficient 	evidence 	to 	support 	his	5
conviction; (2) the jury instructions were unconstitutionally vague and overbroad;	6
(3) fundamental error in the jury instructions requires reversal; (4) the district court	7
erroneously excluded from evidence a recording of Defendant’s encounter with the	8
judge; and (5) the State failed to obtain an order appointing the district attorney to	9
prosecute the case. We reject each of Defendant’s contentions and affirm his	10
conviction.	11
BACKGROUND	12
{2} 	Defendant was convicted of criminal contempt for his conduct on or about	13
April 3, 2017. On that date, Defendant made several attempts to contact the district	14
court judge presiding over a child support case pending in the Thirteenth Judicial	15
District Court for the purpose of influencing the judge to recuse himself. Defendant’s	16
efforts culminated in a confrontation with the judge outside a local restaurant where	17
Defendant attempted to convince the judge to withdraw from the case.	18
{3} 	Defendant had contacted the Thirteenth Judicial District Court clerk’s office	19
the week before April 3, 2017, to request documents from the case file in a pending	20

2
child support case. Defendant spoke on the phone with Pablita Cohoe, a clerk, and	1
identified himself as a private investigator.	2
{4} 	The following week, on April 3, 2017, Defendant came into the district court	3
clerk’s office to speak to Cohoe. Cohoe testified that Defendant objected to the court	4
noting his name in the file. She told him it was the practice of the court to note the	5
name of anyone who reviewed a file. He then asked to speak to Judge Pedro Rael,	6
the judge assigned to the pending child support case. Cohoe told Defendant that he	7
would have to file a motion and request a hearing.	8
{5} 	Shortly after Defendant left the clerk’s office, a court security officer, Mike	9
Hawkins, observed Defendant knocking on a door marked “no entry” that leads to	10
Judge Rael’s chambers. Matthew MacEachen, administrative assistant to Judge	11
Rael, testified that Defendant came to Judge Rael’s door with another man asking to	12
speak to Judge Rael about a pending case. MacEachen told Defendant that Judge	13
Rael could not discuss a case without all parties present. Defendant then told	14
MacEachen that he was an “old friend” of Judge Rael.	15
{6} 	Judge Rael did not recognize Defendant’s name. He told MacEachen to tell	16
Defendant to file a motion. MacEachen testified that he told Defendant that the	17
proper way to contact Judge Rael is to call or email MacEachen explaining who he	18
is, what he wants from a proposed meeting, and how much of Judge Rael’s time he	19
would need. MacEachen also testified that Defendant called Judge Rael’s office	20

3
about the pending child support case on two occasions, though he could not recall if	1
the calls were before or after their April 3, 2017, encounter at the court. Each time	2
Defendant called, the caller ID read “Diane Levario.” Levario was a party to the	3
pending child support case.	4
{7} 	Around noon on April 3, 2017, Judge Rael drove from the courthouse to a	5
restaurant to meet a friend for lunch. The restaurant was four to six miles from the	6
courthouse; the drive took ten to fifteen minutes. When Judge Rael arrived at the	7
restaurant, he saw three men he did not recognize walking rapidly toward him. Two	8
of the men blocked the door to the restaurant so that Judge Rael “would have to push	9
one of them over if [he] was going to keep going through the restaurant door.” The	10
third man shook Judge Rael’s hand and identified himself as Defendant. Defendant	11
then told Judge Rael that he needed to recuse himself from the pending child support	12
case involving Levario because Defendant had information showing Judge Rael was	13
personally acquainted with the parties. Judge Rael testified that he told Defendant “I	14
don’t know what you’re talking about,” to which Defendant replied, “I have pictures	15
of you with the parties.” Defendant then started flipping through photos on his cell	16
phone, putting the phone “very close” to Judge Rael’s face. Judge Rael told	17
Defendant that he did not see himself in the photographs. Without informing Judge	18
Rael, Defendant was making an audio recording of the interaction on his phone.	19
Judge Rael told Defendant, “You have to file a motion,” and pushed past the two	20

4
men into the restaurant. Defendant and the two men with him left after Judge Rael	1
entered the restaurant.	2
{8} 	Judge Rael testified that his “state of concern was extremely high” by the end	3
of the interaction. He felt certain that Defendant and the other men followed him	4
from the courthouse to the restaurant. He testified that the route from the court to the	5
restaurant is “not easy to follow, unless you know how to get there.”	6
{9} 	That afternoon, after the encounter at the restaurant, Defendant telephoned the	7
courthouse, asking to speak to Judge Rael. Judge Rael instructed the courthouse staff	8
to tell Defendant not to call anymore. Judge Rael also entered an order to show cause	9
why Defendant should not be held in contempt. Following a hearing, at which	10
Defendant appeared and testified, Judge Rael turned the matter over to the district	11
attorney to determine whether to bring criminal contempt charges against Defendant.	12
The district attorney charged Defendant with contemptuous conduct in violation of	13
Section 34-1-2 and Rule 1-093(B)(1). 1 Following a jury trial, Defendant was	14
convicted of criminal contempt, pursuant to Section 34-1-2.	15
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.

5
I. 	Defendant’s 	Conviction 	of 	Criminal 	Contempt 	Is 	Supported 	by	1
Substantial Evidence	2
{10} 	Defendant first argues that the State’s evidence was insufficient to support a	3
conviction for criminal contempt, pursuant to Section 34-1-2 and Rule 1-093(B)(1).	4
We disagree.	5
A. 	Standard of Review	6
{11} 	“The test for sufficiency of the evidence is whether substantial evidence of	7
either a direct or circumstantial nature exists to support a verdict of guilty beyond a	8
reasonable doubt with respect to every element essential to a conviction.” State v.	9
Ford, 2019-NMCA-073, ¶ 7, 453 P.3d 471 (internal quotation marks and citation	10
omitted). We “view the evidence in the light most favorable to the guilty verdict,	11
indulging all reasonable inferences and resolving all conflicts in the evidence in	12
favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711,	13
998 P.2d 176. In doing so, the Court “should not re-weigh the evidence to determine	14
if there was another hypothesis that would support innocence.” State v. Garcia,	15
2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72. The relevant question is whether	16
“any rational trier of fact could have found the essential elements of the crime	17
beyond a reasonable doubt.” State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409	18
(internal quotation marks and citation omitted).	19

6
B. 	Sufficiency of the Evidence	1
{12} 	In this case, the jury was instructed that to enter a verdict of guilty of criminal	2
contempt, the State must prove beyond a reasonable doubt each of the following	3
elements of the crime: (1) “[D]efendant engaged in contemptuous conduct[,]” and	4
(2) the conduct “happened in New Mexico on or about the 3rd day of April, 2017.”	5
The 	jury 	was 	also 	given 	a 	definitional 	instruction 	defining 	“contempt” 	or	6
“contemptuous conduct” taken verbatim from Rule 1-093(B)(1), as follows:	7
“Contempt” or “contemptuous conduct” includes but is not limited to,	8
(a) 	disorderly conduct, insolent behavior, or a breach of	9
peace, noise, or other disturbance, if such behavior actually	10
obstructs or hinders the administration of justice or tends to	11
diminish the court’s authority,	12
(b) 	misconduct of court officers in official transactions, or	13
(c) 	disobedience of any lawful order, rule, or process of the	14
court.	15
“Jury instructions become the law of the case against which the sufficiency of the	16
evidence is to be measured.” State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729,	17
726 P.2d 883.	18
{13} 	Defendant argues first that the evidence in the record was insufficient to	19
establish that he engaged in “disorderly conduct, insolent behavior, or a breach of	20
[the] peace, noise, or other disturbance” required to convict of contempt, pursuant	21
to Rule 1-093(B)(1)(a) of the definitional instruction. He points to the absence of	22

7
evidence showing that his conduct created a physical disturbance, posed a threat to	1
the judge or court personnel, disrupted courtroom proceedings, or disturbed the	2
peace. Defendant’s argument assumes, without citation to authority, that either a use	3
of force, a physical threat, or a disturbance directly interfering with proceedings in	4
the courtroom is required to convict of contempt. We do not agree that the jury	5
instruction limited contempt to these types of behavior.	6
{14} 	The jury instruction defining contempt provides that, in addition to disorderly	7
conduct, or a breach of the peace, noise or other disturbance, “insolent behavior” is	8
sufficient to convict of contempt providing that “such behavior actually obstructs or	9
hinders the administration of justice or tends to diminish the court’s authority.” In	10
construing a jury instruction, we look to the meaning a reasonable juror would have	11
attributed to the words. See State v. Barber, 2004-NMSC-019, ¶ 19, 135 N.M. 621,	12
92 P.3d 633. We often use dictionary definitions for guidance when determining “the	13
plain meaning of the words at issue[.]” State v. Boyse, 2013-NMSC-024, ¶ 9, 303	14
P.3d 830 (recognizing that “our courts interpret the intended meaning of statutory	15
and other language by consulting the dictionary to ascertain the words’ ordinary	16
meaning”). “Insolent” behavior is defined by the Merriam-Webster Dictionary as	17
behavior which is “overbearing,” “impudent,” or which “exhibit[s] boldness or	18
effrontery.” 	Insolent, 	Merriam-Webster Dictionary, 	https://www.merriam-	19
webster.com/dictionary/insolent 	(last visited on January 8, 2021). Defendant’s	20

8
persistence in pursuing a face-to-face meeting with Judge Rael, even after being told	1
that he must telephone for an appointment or file a motion; Defendant’s lying about	2
being an “old friend” of Judge Rael as a way to gain access to Judge Rael;	3
Defendant’s pursuing Judge Rael to a restaurant, a ten or fifteen minute drive from	4
the courthouse, accosting Judge Rael, blocking his entrance to the restaurant, and	5
demanding that Judge Rael recuse himself from a pending case; Defendant thrusting	6
a cell phone in Judge Rael’s face is behavior that is the very essence of overbearing	7
and impudent, and which is characterized by “boldness or effrontery.”	8
{15} 	The fact that Defendant introduced evidence contradicting some of the State’s	9
evidence describing his conduct does not require reversal. It is well settled that	10
“[c]ontrary evidence supporting acquittal does not provide a basis for reversal	11
because the jury is free to reject [a d]efendant’s version of the facts.” State v. Rojo,	12
1999-NMSC-001, ¶ 19, 126 N.M 438, 971 P.2d 829. We conclude that “a rational	13
jury could have 	found 	beyond 	a 	reasonable 	doubt” 	based 	on 	the 	evidence	14
summarized above that Defendant engaged in “insolent behavior.” Id. (internal	15
quotation marks and citation omitted).	16
{16} 	Defendant also argues that the evidence in the record was insufficient to	17
establish that his behavior “actually obstruct[ed] or hinder[ed] the administration of	18
justice or tend[ed] to diminish the court’s authority[,]” a requirement to convict of	19
contempt, pursuant to Rule 1-093(B)(1)(a), the definitional instruction given to the	20

9
jury. Defendant again claims that because he neither overtly threatened Judge Rael	1
with physical harm, spoke to Judge Rael in a loud or threatening tone, nor created a	2
disturbance in the courtroom, the jury could not find that Defendant’s behavior	3
“actually obstruct[ed] or hinder[ed] the administration of justice or tend[ed] to	4
diminish the court’s authority.” Id. We again disagree.	5
{17} 	Defendant’s argument misconstrues the nature of criminal contempt. The	6
focus of criminal contempt as defined by the jury instruction is properly on whether	7
a defendant’s conduct has interfered with or obstructed the work of the court, not	8
whether a defendant’s conduct has been personally offensive to an individual judge.	9
See State v. Magee Publ’g Co., 1924-NMSC-023, ¶ 39, 29 N. M. 455, 224 P. 1028,	10
overruled in part on other grounds by State v. Morris, 1965-NMSC-113, ¶ 20, 75	11
N.M. 475, 406 P.2d 349. The administration of justice is hindered and the court’s	12
authority diminished when outside influence is exerted on a judge, juror, or witness.	13
“The theory of our system is that the conclusions to be reached in a case will be	14
induced only by evidence and argument in open court, and not by any outside	15
influence[.]” Patterson v. Colorado, ex rel. Att’y Gen. of Colo., 205 U.S. 454, 462	16
(1907). Personally approaching a judge outside the courtroom and urging him or her	17
to proceed in a certain way in a pending case, even in a soft-spoken, non-threatening	18
tone, is contemptuous conduct that hinders or obstructs the administration of justice	19
and diminishes the integrity of our courts. Bridges v. California, 314 U.S. 252, 282	20

10
(1941) (Frankfurter, J., dissenting) (stating that the administration of justice by an	1
impartial judiciary, free from outside influence “has been basic to our conception of	2
freedom ever since Magna Carta”); State v. Kayser, 1919-NMSC-019, ¶ 14, 25 N.M.	3
245, 181 P. 278 (stating that “[i]t is the interference with [a] witness and the attempt	4
to influence him, as to the testimony he will or will not give, that constitutes the	5
offense”), overruled in part on other grounds by Morris, 1965-NMSC-113, ¶¶ 20-	6
21.	7
{18} 	The undisputed evidence in this case shows that Defendant attempted to	8
influence or coerce a sitting judge to recuse himself from a pending case. The	9
evidence that Defendant exerted outside influence on a pending case is sufficient for	10
the jury to find, beyond a reasonable doubt, that Defendant’s behavior “actually	11
obstruct[ed] or hinder[ed] the administration of justice or tend[ed] to diminish the	12
court’s authority[.]” See Rule 1-093(B)(1)(a).	13
{19} 	We conclude that Defendant’s conviction of criminal contempt is supported	14
by substantial evidence in the record.	15
II. 	The Contempt Statute and Court Rule Are Neither Vague nor Overbroad	16
{20} 	Defendant next argues that Section 34-1-2 and Rule 1-093(B)(1), defining the	17
terms “contempt” and “contemptuous conduct” in the context of a civil proceeding,	18
are unconstitutionally vague, or, in the alternative, unconstitutionally overbroad.	19

11
{21} 	Under the Due Process Clause of the United States Constitution, vagueness	1
can render a statute unconstitutional. A criminal statute is unconstitutionally vague	2
if it “does not allow individuals of ordinary intelligence a fair opportunity to	3
determine whether their conduct is prohibited.” State v. Ebert, 2011-NMCA-098,	4
¶ 20, 150 N.M. 576, 263 P.3d 918 (internal quotation marks and citation omitted).	5
“Vagueness also exists when the statute permits police officers, prosecutors, judges,	6
or juries to engage in arbitrary and discriminatory enforcement of the statute, which	7
occurs because the statute has no standards or guidelines and therefore allows, if not	8
encourages ad hoc application.” Id. (omission, internal quotation marks, and citation	9
omitted). “Because the essence of a vagueness claim rests on a lack of notice, a party	10
may not succeed on the claim if the statute clearly applies to the defendant’s	11
conduct.” Id. (internal quotation marks and citation omitted).	12
{22} 	The constitutional doctrine of overbreadth, “serves to invalidate a statute only	13
when it sweeps so broadly to impinge unnecessarily on conduct protected by the	14
First and Fourteenth Amendments.” Santillanes v. State, 1993-NMSC-012, ¶ 23, 115	15
N.M. 215, 849 P.2d 358. Unlike a vagueness challenge, which is limited to the	16
particular facts of the defendant’s case, “a defendant may make an overbreadth	17
challenge based on the First Amendment even if the statute is constitutional as	18
applied to him.” Ebert, 2011-NMCA-098, ¶ 6. “Statutes enjoy a strong presumption	19

12
of 	constitutionality, and 	the 	burden 	is 	on 	the 	challenger 	to 	prove 	a statute	1
unconstitutional beyond a reasonable doubt.” Id.	2
{23} 	Both Defendant’s void for vagueness and overbreadth claim focus on the	3
introductory phrase of Rule 1-093(B)(1). The introductory phrase of Rule 1-	4
093(B)(1) leaves open the possibility that other types of conduct beyond those	5
described in Subsections (1)(a)-(c) of the Rule could be contemptuous. The rule’s	6
definition of contempt begins as follows: “ ‘Contempt’ or ‘contemptuous conduct’	7
includes but is not limited to . . . .” That phrase is followed by a list of three types of	8
conduct: (a) conduct which obstructs or hinders the administration of justice; (b)	9
misconduct by court officers; and (c) disobedience of court order, rule, or process.	10
Rule 1-093(B)(1)(a)-(c).	11
{24} 	Defendant argues that leaving the definition of “[c]ontempt” open-ended	12
makes it impossible for individuals of ordinary intelligence to know what conduct	13
will constitute contempt and, therefore, the rule is void for vagueness. Defendant	14
claims as well that the open-ended phrasing sweeps too broadly, encompassing	15
speech protected by the First Amendment.	16
{25} 	Defendant cannot succeed on his void for vagueness claim because the	17
definition of “[c]ontempt” in Subsection (1)(a) of the definition clearly applies to	18
Defendant’s conduct. Ebert, 2011-NMCA-098, ¶ 20. Rule 1-093(B)(1) plainly gives	19
notice that an extra-judicial attempt to influence, convince, or coerce a judge to	20

13
recuse himself from a pending case, the conduct engaged in by Defendant, is	1
criminal contempt. This is not a situation where persons of common intelligence	2
must guess at the meaning of criminal contempt. See Ebert, 2011-NMCA-098, ¶ 20.	3
{26} 	Defendant’s overbreadth claim, unlike his void for vagueness claim, need not	4
be limited to the facts of his case. A defendant is permitted to argue that the statutory	5
elements of a crime as applied to circumstances different from his own impinge on	6
rights protected by the First Amendment. See State v. Garcia, 2013-NMCA-005,	7
¶ 23, 294 P.3d 1256. Defendant claims that the criminal contempt statute, Section	8
34-1-2, would allow a conviction of contempt for public speech or for written	9
publications that are protected by the First Amendment. Defendant’s argument fails	10
because the contempt statute, Section 34-1-2, expressly incorporates the common	11
law of contempt. Section 34-1-2 states that the power of contempt is to be applied	12
as “circumscribed by the usage of the courts of the United States.” The common law	13
of contempt addresses at length the intersection of the First Amendment and the	14
constitutional interest in protecting the integrity of our judicial system so as to ensure	15
that both constitutional interests are protected in contempt proceedings involving	16
public speech. See, e.g., Morris, 1965-NMSC-113, ¶¶ 15-20; Bridges, 314 U.S. at	17
271. Because Section 34-1-2 acknowledges and incorporates the common law of	18
contempt, it does not unnecessarily impinge on conduct protected by the First	19
Amendment and is not overbroad.	20

14
III. 	There Was No Fundamental Error in Instructing the Jury	1
{27} 	Defendant next challenges the jury instructions given by the district court,	2
claiming, for the first time on appeal, that the instruction defining the terms	3
“contempt” or “contemptuous conduct” confused or misdirected the jury, resulting	4
in a miscarriage of justice.	5
A. 	Standard of Review	6
{28} 	“The standard of review we apply to jury instructions depends on whether the	7
error has been preserved. If the error has been preserved we review the instructions	8
for reversible error. If not, we review for fundamental error.” State v. Benally, 2001-	9
NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (citation omitted). Because	10
Defendant failed to object to the instructions, we review for fundamental error.	11
Barber, 2004-NMSC-019, ¶ 8.	12
{29} 	When our review is for fundamental error, we first look to whether the	13
instruction confused or misdirected the jury. See Benally, 2001-NMSC-033, ¶ 12. If	14
we find that the jury was confused or misdirected, we then continue our analysis to	15
determine whether the error so undermined the reliability of the conviction or	16
prejudiced the defendant’s rights that it would “shock the conscience” to allow the	17
conviction 	to 	stand. 	Barber, 	2004-NMSC-019, 	¶¶ 	8, 	14 	(“The 	doctrine 	of	18
fundamental error applies only under exceptional circumstances and only to prevent	19
a miscarriage of justice.”). We will not uphold a conviction “if an error implicated a	20

15
fundamental unfairness within the system that would undermine judicial integrity if	1
left unchecked.” Id. ¶ 18 (internal quotation marks and citation omitted).	2
B. 	The Definitional Instruction	3
{30} 	Defendant’s challenge to the jury instructions focuses on the introductory	4
phrase in the definition of “contempt” or “contemptuous conduct” given to the jury.	5
Defendant claims, for the first time on appeal, that the phrase “includes but is not	6
limited to” is likely to have confused or misled a reasonable juror, resulting in a	7
miscarriage of justice. Defendant claims that “the jury may have found that literally	8
anything constitutes contempt.”	9
{31} 	We do not agree that this introductory phrase, acknowledging that there are	10
other types of conduct that also constitute contempt, confused the jury. Immediately	11
following the introductory phrase, the jury was given a definition of “contempt” and	12
“contemptuous conduct,” which was directly applicable to Defendant’s conduct.	13
Any confusion created by the introductory phrase was immediately clarified by the	14
giving of a directly applicable definition. State v. Parish, 1994-NMSC-073, ¶ 4, 118	15
N.M. 39, 878 P.2d 988 (“[I]f a jury instruction is capable of more than one	16
interpretation, then the court must next evaluate whether another part of the jury	17
instructions satisfactorily cures the ambiguity.”). The jury thus received an accurate	18
rendition of the relevant law the jurors were to apply. There was neither an omission	19
nor a misstatement of the law. State v. Anderson, 2016-NMCA-007, ¶ 9, 364 P.3d	20

16
306 (“Juror confusion or misdirection may stem from instructions which, through	1
omission or misstatement, fail to provide the juror with an accurate rendition of the	2
relevant law.” (internal quotation marks and citation omitted)). As the United States	3
Supreme Court noted in Griffin v. United States, jurors are capable of evaluating the	4
facts, and where they are instructed on a ground for conviction that is supported by	5
adequate evidence in the record, appellate courts will not presume “that the jury	6
convicted on a ground that was not supported by adequate evidence.” 502 U.S. 46,	7
59-60 (1991) (internal quotation marks and citation omitted). We, therefore,	8
conclude that the instruction was not likely to confuse or misdirect the jury.	9
{32} 	In any event, because the record developed at trial establishes Defendant’s	10
guilt pursuant to the Rule 1-093(B)(1) definitional instruction beyond a reasonable	11
doubt, 	and 	there 	was 	no 	mistake 	in 	the 	process 	that 	makes 	his 	conviction	12
fundamentally unfair, we hold that there was no fundamental error and reversal is	13
not required.	14
IV. 	The 	District 	Court 	Did 	Not 	Abuse 	Its 	Discretion 	in 	Excluding	15
Defendant’s Cell Phone Recording	16
{33} 	Defendant argues that the district court abused its discretion in excluding from	17
evidence a tape recording of Defendant’s conversation with Judge Rael taken from	18
Defendant’s cell phone. Defendant contends, first, that the district court erred as a	19
matter of law in excluding the recording because the voices on the recording were	20
not properly authenticated, pursuant to Rule 11-901 NMRA. The record shows that	21

17
the district court did not question the authenticity of the recording. The court	1
excluded the recording solely because the voices were not understandable due to the	2
poor quality of the recording and background noise. The court explained that the	3
recording was being excluded because:	4
THE COURT: 	I don’t understand it. There is too much static for	5
me from the wind or traffic. . . . [T]here’s just too	6
much interference for it to be reliable.	7
{34} 	Defendant next claims that the district court erred in excluding the recording	8
even if the words were inaudible because it was nonetheless relevant support for	9
Defendant’s claim that he had not raised his voice or used a threatening tone in	10
speaking to Judge Rael. Defendant argues that the court’s decision erroneously cut	11
off this potential line of defense.	12
{35} 	Appellate courts “review the district court’s decision to admit or exclude	13
evidence for an abuse of discretion.” State v. Guerra, 2012-NMSC-014, ¶ 36, 278	14
P.3d 1031. “An abuse of discretion arises when the evidentiary ruling is clearly	15
contrary to logic and the facts and circumstances of the case.” State v. Downey, 2008-	16
NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244 (internal quotation marks and	17
citation omitted).	18
{36} 	Rule 11-403 NMRA gives the district court authority to exclude relevant	19
evidence under certain circumstances. Rule 11-403 states:	20

18
The court may exclude relevant evidence if its probative value is	1
substantially outweighed by a danger of one or more of the following:	2
unfair prejudice, confusing the issues, misleading the jury, undue delay,	3
wasting time, or needlessly presenting cumulative evidence.	4
{37} 	Under this rule, the district court must weigh the evidence to determine	5
whether its “probative value is outweighed by its prejudicial effect.” State v.	6
Martinez, 1980-NMCA-022, ¶ 6, 94 N.M. 50, 607 P.2d 137. The rule recognizes that	7
evidence that wastes the jury’s time, is cumulative of other evidence, or is confusing	8
or misleading can be excluded by the court as lacking in probative value. Rule 11-	9
403. If “there were alternative means of establishing the same fact” then the	10
probative value of the excluded evidence is minimized. Martinez, 1980-NMCA-022,	11
¶ 6.	12
{38} 	Although our appellate courts have not adopted a specific standard that	13
justifies the exclusion of authenticated recordings based on their audibility, federal	14
courts which have considered this question have generally agreed that exclusion is	15
justified 	where 	substantial 	portions 	of 	the 	recording 	are 	inaudible 	or	16
incomprehensible. See United States v. Carbone, 798 F.2d 21, 24 (1st Cir. 1986)	17
(adopting the generally accepted rule that “where a tape recording is challenged on	18
the grounds of audibility the question is whether the inaudible parts are so substantial	19
as to make the rest more misleading than helpful” (internal quotation marks and	20
citation omitted)). Whether that standard is met is left to the discretion of the trial	21
court. Id.	22

19
{39} 	In this case, the court determined that the jury would not be able to understand	1
any of the recording because of the level of static and background noise. In deciding	2
to exclude the recording, the court considered and rejected Defendant’s claim that	3
the exclusion prejudiced Defendant’s defense. The court noted that Defendant could	4
address the content and tone of the conversation through two witnesses to the	5
conversation 	who 	testified 	at 	trial, 	Judge 	Rael 	and 	Defendant’s 	companion.	6
Defendant was thus able to establish both the content and tone of the conversation	7
by alternative means, greatly diminishing both the probative value of the recording	8
and any prejudice which might otherwise have arisen from its exclusion.	9
{40} 	Because the probative value of the recording was outweighed by the dangers	10
of confusing the jury and wasting valuable time, and because the evidence would	11
have been cumulative of the witnesses’ testimony, we hold that the court did not	12
abuse its discretion in excluding the recording.	13
V. 	Defendant’s 	Claim 	That 	the 	District 	Attorney 	Was 	Not 	Properly	14
Appointed Lacks Merit	15
{41} 	Defendant argues that the district court lacked jurisdiction because the record	16
does not reflect that the district court appointed the district attorney to prosecute the	17
case, as required by Rule 1-093(D)(2). We disagree.	18
{42} 	Rule 1-093(D)(2) provides that “[t]he court shall appoint the district attorney	19
to prosecute the criminal contempt for the state.” See also NMSA 1978, § 36-1-	20
18(A)(1) (2001) (“Each district attorney shall . . . prosecute . . . for the state in all	21

20
courts of record of the counties of his district all cases, criminal and civil, in which	1
the state or any county in his district may be a party or may be interested[.]”). We	2
interpret our Supreme Court’s rules of procedure by seeking to determine the	3
underlying intent of the enacting authority. See Roark v. Farmers Grp., Inc., 2007-	4
NMCA-074, ¶ 50, 142 N.M. 59, 162 P.3d 896 (“We apply the same rules to the	5
construction of Supreme Court rules of procedure as we apply to statutes.” (internal	6
quotation marks and citation omitted)).	7
{43} 	Indirect contempt charges can result in a criminal conviction with serious	8
consequences for the defendant. Our Supreme Court has required that the due	9
process protections provided to other criminal defendants apply in a nonsummary	10
indirect contempt prosecution. Concha v. Sanchez, 2011-NMSC-031, ¶ 40, 150	11
N.M. 268, 258 P.3d 1060 (listing criminal due process protections required in a	12
nonsummary criminal contempt proceeding). The purpose of the Supreme Court’s	13
requirement for appointment of the district attorney to prosecute criminal contempt	14
is part of the Court’s effort to ensure that due process is provided. Prosecution by an	15
independent, disinterested prosecutor protects the defendant’s right to a fair trial.	16
Rule 1-093 comm. cmt.	17
{44} 	There is no indication that our Supreme Court intended that there be a special	18
method used to appoint the district attorney. We find no merit to Defendant’s claim	19
that the district court was required to enter a written order. Rule 1-093 adopts the	20

21
Court’s Rules of Criminal Procedure for cases of nonsummary indirect criminal	1
contempt. Rule 1-093(D)(3). Rule 5-201(B) NMRA provides that the district	2
attorney may commence a criminal prosecution by filing a criminal complaint. The	3
district attorney filed such a complaint in this case and then proceeded to prosecute	4
the case at trial. Judge Rael neither presided nor served as the prosecutor, in full	5
compliance with Rule 1-093(D)(2), the Rules of Criminal Procedure, and the	6
requirements of due process.	7
{45} 	The purpose of Rule 1-093(D)(2)—to provide an independent prosecutor in a	8
criminal contempt proceeding—was fully achieved. Defendant’s claim that Rule 1-	9
093(D)(2) was violated lacks merit.	10
CONCLUSION	11
{46} 	For the reasons stated above, we affirm Defendant’s conviction for criminal	12
contempt.	13
{47} 	IT IS SO ORDERED.	14
__________________________________	15
JANE B. YOHALEM, Judge	16

1
WE CONCUR:
Megan P Dufly
MEGAN P. DUFFY, Judge
SHAMMARA H. HENDERSON, Judge
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