June 30, 2017- State of New Mexico v. Mark Webb, No. 35,411

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: June 30, 2017
NO. 35,411
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MARK WEBB,
Defendant-Appellant.
INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY
Benjamin Chavez, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Walter Hart, Assistant Attorney General
Albuquerque, NM
for Appellee
Blackburn Law Office
Billy R. Blackburn
Albuquerque, NM
Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu
Paul M. Linnenburger
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant Mark Webb was charged in two separate cases after he allegedly
surreptitiously videotaped the minor daughter (Victim) of his former girlfriend
unclothed in her bathroom. The first case, State v. Webb, Second Judicial District
Court Case No. D-202-CR-2014-02997 (Webb I), was filed in 2014 and charged
Defendant with voyeurism (child under eighteen), in violation of NMSA 1978,
Section 30-9-20(A)(1) (2007), attempted voyeurism (child under eighteen), in
violation of Section 30-9-20(A)(1) and NMSA 1978, Section 30-28-1(A) (1963),
tampering with evidence, in violation of NMSA 1978, Section 30-22-5(B) (2003), and
battery on a household member, in violation of NMSA 1978, Section 30-3-15(A)
(2008). These charges were based on videos dated February 19, 2013 and February
24, 2013 that were discovered on a hidden camera located in Victim’s bathroom. The
second case, State v. Webb, Second Judicial District Court Case No. D-202-CR-2015-
01400 (Webb II), which is the subject of this appeal, was filed in 2015 and charged
Defendant with two counts of sexual exploitation of a child (manufacture), in
violation of NMSA 1978, Section 30-6A-3(D) (2007, amended 2016), and one count
of attempted sexual exploitation of a child (manufacture), in violation of Sections 30-
6A-3(D) and 30-28-1(B). These charges were based on videos dated between January

2
1, 2013 and January 30, 2013 that were discovered on a computer to which Defendant
had access. After the State unsuccessfully sought to join the two cases, Defendant
filed a motion to dismiss Webb II. The district court denied Defendant’s motion,
Defendant filed an application for interlocutory appeal, and this Court granted the
application.
{2} 	On appeal, Defendant argues that Webb II should be dismissed because the
mandatory joinder provisions of Rule 5-203(A) NMRA were violated, the State chose
not to timely pursue the Webb II charges and forfeited any discretion to pursue them,
and the State’s unjustifiable delay in seeking the Webb II charges created judicial
inefficiency and prejudiced Defendant. For the reasons set forth in this opinion, we
hold that Webb I and Webb II should have been mandatorily joined under Rule 5-
203(A) as initially requested by the State. Because the district court should have
granted the pretrial motion to join, dismissal of Webb II is not appropriate, and
therefore, we affirm the district court’s denial of Defendant’s motion to dismiss.
BACKGROUND
{3} 	On February 24, 2013, Victim, then age seventeen, discovered a USB camera
hidden in her bathroom in the home that she shared with her mother and brother, as
well as with mother’s boyfriend (Defendant). Detective Steve Walsh, the on-call child
exploitation detective, was called to the home. Detective Walsh obtained a search

1 We mention these admissions with hesitation because the district court
ultimately suppressed Defendant’s statements on the ground that there was a Miranda
violation. However, because Defendant relies on the fact that he told the police about
the additional recordings on February 26, 2013, in an attempt to bolster his argument
on appeal, we are compelled to mention the incriminating statements even though they
cannot later be used as evidence in the State’s case.
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warrant for the USB camera on February 26, 2013, viewed the contents of the camera,
and discovered two videos dated February 19, 2013 and February 22, 2013. According
to Detective Walsh, in the February 19 video, Defendant could be seen placing and
adjusting the camera, and thereafter, Victim could be seen entering the bathroom and
undressing. In the February 22 video, Defendant again could be seen placing and
manipulating the camera, and thereafter, Victim could be seen entering the bathroom,
preparing to take a shower, and noticing the camera, which she subsequently removed
from its location.
{4} 	Defendant was arrested on February 26, 2013, and charged in Bernalillo County
Metropolitan Court with sexual exploitation of a child (manufacture) and attempted
sexual exploitation of a child. After his arrest, Defendant was interviewed. During the
interview, Defendant apparently admitted to recording Victim “[a]bout half a dozen
times” and indicated to police that he would download the recorded videos to the
“community laptop” (the laptop), of which Victim’s mother was the administrator.1
Sometime in March 2013, Victim’s mother provided the police with the laptop so that

4
they could search the computer. Detective Walsh returned the laptop in June 2013 and
indicated to Victim’s mother that he found nothing on the computer. A few days later,
Victim’s mother, as the administrator for the laptop, changed the login information for
Defendant’s accounts and discovered additional videos of Victim. She attempted to
call Detective Walsh directly and again through the Albuquerque Police Department.
She then contacted a victim’s advocate at the Office of the New Mexico Attorney
General and told her that she had found more videos on the laptop. The victim’s
advocate told Victim’s mother she would contact Detective Walsh and have him call
Victim’s mother. Detective Walsh followed up with Victim’s mother, and after she
showed him how to access the additional videos, the laptop was taken back into
evidence by the detective.
{5} 	After Defendant’s arrest, three target notices were issued to Defendant. The
first, dated March 4, 2013, was from the Second Judicial District Attorney and
indicated that the State intended to present charges of sexual exploitation of a child,
tampering with evidence, and voyeurism, which occurred on or about February 24,
2013. The second, dated August 9, 2013, was from the Office of the Attorney General
and indicated that the State intended to present charges of sexual exploitation of a
child (three counts) and attempt to commit the same (two counts), which were alleged
to have occurred on or between February 19, 2013 and February 24, 2013. The third,

5
dated June 9, 2014, was also from the Office of the Attorney General and restated its
intent to present the charges listed in the August 9, 2013 notice.
{6} 	Although the first and second notices listed specific dates on which the State
intended to present the listed charges to the grand jury, the grand jury only convened
on the date listed in the third notice—June 25, 2014. Defendant was subsequently
indicted, on June 25, 2014, in district court with voyeurism (child under eighteen),
attempted voyeurism (child under eighteen), tampering with evidence, and battery on
a household member (Webb I). Those charges arose from the videos found on the
camera, which were both dated in February 2013.
{7} 	On August 28, 2014, Detective Don Roberts with the Albuquerque Police
Department requested a forensic examination of the laptop, which had been in police
custody for approximately fourteen months. A September 18, 2014 forensic report
documented three additional videos of Victim naked in her bathroom that had been
saved on the laptop. These videos were dated between January 1, 2013 and January
30, 2013.
{8} 	On May 26, 2015, the State procured a second indictment charging Defendant
with two counts of sexual exploitation of a child (manufacture) and one count of
attempted sexual exploitation of a child (Webb II). Those charges arose from the
videos found on the laptop that were dated in January 2013. On June 8, 2015, the State

6
moved for joinder of Webb I and Webb II. In its motion, the State argued that the
charges in each proceeding involved different videos—the former related to the videos
on the camera, the latter related to videos on the laptop—but were of similar character,
involved the same Victim, and were “based on the same conduct or on a series of acts
connected together and constituting parts of a single scheme or plan” under Rule 5-
203(A)(2). Defendant agreed that joinder was mandatory under Rule 5-203(A) but
argued against joinder because the State did not join the offenses in one indictment.
According to Defendant, the State was required to “join offenses at the outset[,]” and
because it failed to do so, it was barred from adding additional charges at such a “late
juncture.”
{9} 	On July 1, 2015, the district court denied the motion for joinder on the ground
that Defendant had timely filed a peremptory challenge of the district judge and thus
the judge “lack[ed] jurisdiction to entertain the motion before the court.” On
December 17, 2015, Defendant filed a number of pleadings, including a motion to
dismiss for failure to properly join the charges in Webb II with the charges in Webb I.
The district court denied Defendant’s motion to dismiss on February 24, 2016,
concluding that although “[t]he charges in Webb I and Webb II are subject to joinder
pursuant to Rule 5-203” and “the separate incidents charged in Webb I and Webb II
are of the exact same type and were committed by the same individual against the

7
same [V]ictim in the same location, because they are not identical, it is permissible to
charge and try them separately.” This interlocutory appeal followed.
DISCUSSION
{10} 	In New Mexico, our rule concerning joinder in criminal cases “as originally
promulgated was discretionary and reflected the common law.” State v. Gallegos,
2007-NMSC-007, ¶ 10, 141 N.M. 185, 152 P.3d 828. However, in 1979, consistent
with other courts at the time, our Supreme Court issued an order stating that “ ‘[w]hen
a person is charged with more than one crime and the crimes can be incorporated in
one information or indictment in separate counts, this practice shall be followed.’ ”
Id. ¶¶ 11, 14 (emphasis omitted) (quoting Rule 5-203 comm. cmt.). The change
reflected the Court’s “distaste for piecemeal prosecutions” and mandated joinder in
certain cases “in order to avoid disorderly criminal procedures that threaten the
existence of our judicial system and risk . . . prejudice to the accused[.]” Id. ¶ 14
(omission in original) (alteration, internal quotation marks, and citations omitted).
{11} 	New Mexico’s current approach to joinder in criminal cases is articulated in
Rule 5-203(A), which states that “[t]wo or more offenses shall be joined in one
complaint, indictment or information with each offense stated in a separate count, if
the offenses . . . are of the same or similar character, even if not part of a single
scheme or plan; or . . . are based on the same conduct or on a series of acts either

8
connected together or constituting parts of a single scheme or plan.” The question of
whether offenses must be joined under Rule 5-203(A) is a question of law that we
review de novo. See State v. Paiz, 2011-NMSC-008, ¶ 10, 149 N.M. 412, 249 P.3d
1235 (stating that Rule 5-203(A) is a mandatory rule and improper joinder under the
rule is a question of law, which we review de novo); State v. Foster, 2003-NMCA-
099, ¶ 6, 134 N.M. 224, 75 P.3d 824 (“We review de novo questions of law
concerning the interpretation of Supreme Court rules and the district court’s
application of the law to the facts of [the] case.”).
{12} 	The most relevant case regarding Rule 5-203(A) and the ramifications for
failing to join offenses is State v. Gonzales, 2013-NMSC-016, 301 P.3d 380, a case
upon which both parties rely. In Gonzales, the defendant was charged with child abuse
resulting in death, child abuse not resulting in death, aggravated driving while under
the influence, and leaving the scene of an accident after she drove drunk and crashed
into another vehicle, killing one child and injuring another. Id. ¶¶ 1-2. After the
defendant’s conviction for negligent child abuse was reversed on appeal for lack of
substantial evidence, the defendant was prosecuted for vehicular homicide. Id. ¶ 3. In
evaluating the lawfulness of the vehicular homicide charge after the defendant had
already been through a trial in Gonzales, our Supreme Court sua sponte turned to Rule
5-203(A). Gonzales, 2013-NMSC-016, ¶¶ 25-26. According to the Court, “[t]he

9
purpose of a compulsory joinder [rule], viewed as a whole, is twofold: (1) to protect
a defendant from the governmental harassment of being subjected to successive trials
for offenses stemming from the same criminal episode; and (2) to ensure finality
without unduly burdening the judicial process by repetitious litigation.” Id. ¶ 26
(alteration, internal quotation marks, and citation omitted). The Court held that the
vehicular homicide offense was “based on the same conduct against the same victim”
as the offenses pursued in the earlier trial and thus must have been joined under Rule
5-203(A). Gonzales, 2013-NMSC-016, ¶¶ 25, 27 (emphasis and internal quotation
marks omitted). Because the facts of the case mandated joinder under the rule and
because the prosecution failed to join the offenses in the first trial, our Supreme Court
also held that “a failure to join offenses under Rule 5-203(A) bars piecemeal
prosecution in a subsequent trial.”Gonzales, 2013-NMSC-016, ¶¶ 30-31. In deciding
that the prosecution was barred from pursuing a vehicular homicide in Gonzales, our
Supreme Court noted that:
This is not a case in which the charge the [prosecution] now seeks to
bring, vehicular homicide, was unknown at the time [the d]efendant was
indicted. The [prosecution] had at least three different opportunities to
join these offenses. The first was in the original indictment, but it chose
to ask the grand jury to indict only on charges of child abuse. The second
was at the hearing on the motion to dismiss. The [prosecution] was made
fully aware that the charge was available and admitted at that hearing
that it knew it was taking a risk when it decided on this particular trial
strategy. Finally, . . . the [prosecution] could have asked for a vehicular

10
homicide instruction notwithstanding its omission from the indictment,
but again the [prosecution] elected not to do so.
Id. ¶ 32. Thus, our Supreme Court affirmed that the subsequent prosecution of the
defendant for vehicular homicide was barred. Id. ¶ 34.
{13} 	Defendant’s position on appeal is that the State was required under Rule 5-203
to bring all charges related to Defendant’s alleged videotaping of Victim in a single
indictment and that because the State chose not to pursue the charges in a single
indictment, dismissal of Webb II is appropriate as stated in Gonzales, 2013-NMSC-
016. Defendant asserts that the State and its prosecutors knew about the videos on the
laptop prior to the indictment in Webb I as evidenced by: the statement from Victim’s
mother that she informed the police and a victim’s advocate from the Office of the
Attorney General about the laptop videos; Defendant’s admission to police that he
saved videos of Victim to the laptop; and the target letters from the Office of the
Attorney General that alluded to five counts, which, as a matter of logic and math,
appear to be related to the two videos found on the camera and the three videos found
on the laptop. Defendant argues that because the State chose not to join the charges
at the time of the indictment in Webb I, the State abandoned the charges that were
ultimately pursued in Webb II. Defendant asserts that dismissal is the only appropriate
remedy for the failure to join because there was a long delay between the filing of
Webb I and Webb II, the State had no justification for the delay, the failure resulted

11
in inefficiency and harmed judicial resources, the failure prejudiced and harmed
Defendant, and Rule 5-203 is mandatory.
{14} 	We begin our analysis by noting that there is no real dispute that the offenses
should have been joined under Rule 5-203. The State argued that joinder was
mandatory in its motion for joinder, and Defendant admitted that joinder was
mandatory in his response to the motion for joinder and in his motion to dismiss.
Although the district court ultimately concluded that Webb I and Webb II could
proceed separately in its order denying Defendant’s motion to dismiss, it noted that
“[t]he charges in Webb I and Webb II are subject to joinder pursuant to Rule 5-203[,]”
and “the separate incidents charged in Webb I and Webb II are of the exact same type
and were committed by the same individual against the same [V]ictim in the same
location[.]”
{15} 	We agree that the offenses in Webb I and Webb II, all of which were related to
Defendant’s alleged videotaping of Victim in her bathroom, were of the same or
similar character or based on the same conduct or on a series of acts either connected
together or constituting parts of a single scheme or plan. See Gallegos, 2007-NMSC-
007, ¶ 15 (stating that the defendant “engaged in inappropriate sexual activities with
minors in his care[,]” and at the very least, his acts toward the two victims “were of
the same or similar character regardless of whether they were part of a single scheme

12
or plan” (internal quotation marks and citation omitted)); State v. Riordan, 1974-
NMCA-013, ¶¶ 4-5, 86 N.M. 92, 519 P.2d 1029 (recognizing that “[i]t would be
difficult to conceive of three separate offenses, more the same or similar in character”
where the defendant sold controlled substances to a single officer on three occasions
in the same community over the course of approximately three weeks). The rule does
not require that the cases be “identical” as suggested by the district court. We hold that
the district court erred in not joining all the offenses into one proceeding.
{16} 	Although there is no real dispute that the offenses in Webb I and Webb II were
of the same or similar character or continued parts of a single scheme or plan, both
parties on appeal expend much of their energy and briefing on whether the State
and/or the prosecutors knew about the laptop videos prior to the Webb I indictment.
Interestingly, however, prosecutorial knowledge, although a seemingly reasonable
limiter to Rule 5-203, is not explicitly required under Rule 5-203. See Rule 5-203; see
also Ryan C. Schotter, State v. Gonzales: Reinvigorating Criminal Joinder in New
Mexico, 44 N.M. L. Rev. 467, 485-88 (2014) (noting that Rule 5-203 is “devoid of
any of the important limiting principles expressed in the model codes promulgated by
the ABA, ALI, and NCCUSL[,]” including a prosecutorial knowledge limitation). And
although our Supreme Court stated in Gonzales, 2013-NMSC-016, ¶ 32, that it was
“not a case in which the charge the [prosecution sought] to bring . . . was unknown at

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the time [the d]efendant was indicted[,]” Gonzales does not say that a finding of actual
prosecutorial knowledge is necessary in order for there to be a compulsory joinder
violation. But, more importantly, we need not and do not address prosecutorial
knowledge head-on here because, in this case, even assuming arguendo that the State
and/or the prosecutors knew about the laptop videos prior to the Webb I indictment,
we hold that the State was not precluded from seeking to join the offenses in Webb II
with similar offenses in Webb I, as it did in this case. The relevant inquiry is whether
the State was permitted, under Rule 5-203, to move for joinder of the offenses in
Webb II after the indictment was filed in Webb I, or whether they were, as a matter of
law, barred from joining offenses once there was an indictment in Webb I.
{17} 	Although Rule 5-203 is admittedly broad and states that offenses shall be joined
“in one complaint, indictment or information[,]” our Supreme Court in Gonzales
suggested that additional offenses could be joined after an indictment even when a
prosecutor knows of the additional offenses at the time of the indictment. As noted
earlier, in Gonzales, the Court identified two post-indictment opportunities that the
prosecution had to seek joinder of additional charges—one at the time of the hearing
on a motion to dismiss and another by asking for “a vehicular homicide instruction
notwithstanding its omission from the indictment[.]” 2013-NMSC-016, ¶ 32. If the
sanction of dismissal for New Mexico’s compulsory joinder provision were intended

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automatically to be triggered upon the State’s failure to join all charges in an original
indictment, there would have been no legal or other basis for our Supreme Court to
reference additional opportunities for joinder thereafter. We interpret the Supreme
Court’s instructions in Gonzales as indicating that additional offenses can be joined
post-indictment, but prior to a case being submitted to a jury.
{18} 	Applying the Court’s guidance in Gonzales to the present case, we hold that the
State, having moved to join the offenses in Webb I and Webb II post-indictment but
pretrial, did not run afoul of Rule 5-203. Because the State properly sought to join the
offenses in a manner that is acceptable under the rule and as contemplated by
Gonzales, there is no merit to Defendant’s argument that Webb II should be dismissed.
CONCLUSION
{19} 	For the reasons set forth in this opinion, we affirm the district court’s denial of
Defendant’s motion to dismiss and remand for proceedings consistent with this
opinion.

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{20} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_______________________________
TIMOTHY L. GARCIA, Judge
_______________________________
JULIE J. VARGAS, Judge