May 20, 2019- State of New Mexico v. Sterling Hamby, No. A-1-CA-37817

OCR transcription for search; preserved printed pages are authoritative

Court of Appeals of New Mexico
Filed 5/20/2019 9:06 AM

AA,

Markl Reynolds
| __IN“FHE COURT OF APPEALS OF THE STATE OF NEW MEXICO |

STATE OF NEW MEXICO,

Plaintiff-Appellee,

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ve INO. ArI-UCARO

STERLING HAMBY,

Defendant-Appellant.

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APPEAL
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Sarah t

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Backus, Distric

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0} Santa Fe, NM

Hector H. Balderas, Attorney General

M. Victoria Wilson, Assistant Attorney General

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Albuquerque, NM

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for Appellee

Bennett J. Baur, Chief Public Defender
Gregory B. Dawkins, Assistant Appellate Defender

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santa Fe, NM

for Appellant.

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MEMORANDUM OPINION

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VARGAS, Judge.

4} Defendant appeals from the district court’s interlocutory order declining to rule

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on his motion to dismiss. This Court’s calendar notice proposed to construe

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Defendant’s appeal as a direct, rather than interlocutory, appeal and to summarily

reverse. [CN 1] The State filed a timely memorandum in opposition to the proposed

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remand to the district court for proceedings consistent with this opinion.

23 The State asserts that the kidnapping charge in this case is based on allegations
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continuing acts of coercion to transport, restrain, or confine the victim while they
were living together in Taos County. [MIO 4] The State contends that those acts are
not the same acts thé
offense of false imprisonment after they left Taos and arrived in San Juan County on

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June 3, 2014. [Id.] In other words, the State maintains, the conduct charged in this
case is based solely on Defendant’s acts that started on the date that he and the victim
arrived in Taos County on March 24, 201 4, and ended on the date they left the county
on June 2, 2014. [MIO 2]

33 The State opposes the proposal to remand, and without citation to the record,
argues the record proper demonstrates that Defendant did not establish a double |
jeopardy violation. [MIO 6] The State asserts that there was enough evidence in the
record to rule on Defendant’s double jeopardy claim, and it is therefore unnecessary
to remand for an evidentiary hearing to develop the facts. [MIO 5] While that may be

the case, we nevertheless decline to consider Defendant’s double jeopardy claim

absent an express determination by the district court.

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{4}
raised at any time before or after entry of a judgment. See NMSA 1978, § 30-1-10

(1963). We generally apply a de novo standard of review to the constitutional

2003-NMCA-146, § 14, 134 N.M. 710, 82 P.3d 77. However, ruling on a double |
jeopardy claim requires the district court to make factual determinations. See State v.

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Rodriguez, 2006-NM SC-0 8,93, 139 N.M. 450, 134 P.3d

737 (recognizing that
where fact issues are intertwined with the double jeopardy analysis, the district
court’s fact determinations are subject to a deferential substantial evidence standard
of review). “[F]act-finding is a function of the district court[.]” State v. Rojo, 1999-
NMSC-001, 452, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation
omitted), The district court judge indicated that a development of the facts was
necessary to rule on Defendant’s double jeopardy claim; therefore, we believe the
best recourse is to remand to the district court. Cf Woods v. State, 1972-NMCA-128,
q 10, 84 N.M. 248, 250, 501 P.2d 692 (remanding for an evidentiary hearing where
double jeopardy claim goes outside the record in the underlying case and the record
does not conclusively show the defendant is not entitled to relief). |

§s} By refusing to rule on Defendant’s motion to dismiss and holding it in

abeyance pending development of the facts at trial, the district court essentially

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second trial for what was potentially unitary conduct. We, therefore, reverse and

remand to the district court for a definitive ruling on Defendant’s double jeopardy

WE CONCUR:

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KRISTINA B 'ARDU S, Judge

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MEGAN P. DUFF He