August 22, 2019- State of New Mexico v. Neil Stammer, No. A-1-CA-36243

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
STATE OF NEW MEXICO ULL tha AN
Plaintiff-Appellee, ~fe4
Mark Reynolds
Vv. No. A-1-CA-36243
NEIL STAMMER,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Benjamin Chavez, District Judge
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellee
Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
HANISEE, Judge.
{13 Defendant appeals his conviction of four counts of criminal sexual contact
with a minor. On appeal, Defendant argues (1) the district court erred in denying his
motion to dismiss for violation of the statute of limitations; and (2) there was

insufficient evidence to support charges of criminal sexual contact. Primarily as a

result of Defendant’s undeveloped factual and legal analysis, we affirm.

1 BACKGROUND
2 	{2} 	Defendant was charged with twelve counts related to alleged criminal sexual
3 contact and/or penetration of a sixteen year-old boy who was an employee of
4 Defendant's magic shop. Each instance of abuse took place between November 2,
5 	1996 and May 14, 1999. Before trial, Defendant filed a motion to dismiss in district
6 court alleging that all charges against him were filed over ten years after expiration
7 	of the six-year statute of limitations. The State argued that the statute of limitations
8 had not run as ( 1) it did not begin to run until the victim turned eighteen years of age
9 in November 1999; and (2) the time was tolled, pursuant to NMSA 1978, Section
10 30-1-9 (1963), when Defendant fled New Mexico in 2000 and did not return until
11 	2014.
12 	{3} 	At the initial hearing on Defendant's motion, the State failed to present
13 	evidence regarding Defendant's departure or absence from the state, and as a result
14 the district court reset the hearing stating that the State should at least provide an
15 	affidavit or other attachment upon which the district court could make findings of
16 fact. At the reset hearing, the State again did not present witnesses or evidence but
17 instead asked the district court to take judicial notice of a separate motion hearing in
18 	a parallel case in which a similar issue was argued and resolved by another :district
19 court judge in conjunction with that judge's order denying Defendant's motion to
20 	dismiss for violation of right to a speedy trial. The State asked the district court to
2

1 "make [its] decision based on some of the testimony that came forward at that
2 hearing." Amongst other arguments, Defendant stated that the use of judicial notice
3 was improper because the findings from the parallel case did not "necessarily reflect
4 	[Defendant]'s testimony completely[,]" and that "even if the State were to produce
5 a transcript or the 	[c]ourt. h[o]ld that [the judge's] 	findings were a sufficient
6 substitute, that would be an inappropriate use of my client's own statements in order
7 to provide the proof against him at this subsequent hearing." However, Defendant
8 conceded that he admitted in his prior sworn testimony to "breaking off contact and
9 leaving the state at some point."
10 	{4} 	The 	district 	court 	reserved 	ruling 	and 	later 	entered 	an 	order 	denying
11 	Defendant's motion to dismiss. In it, the district court took judicial notice "that
12 Defendant gave sworn testimony on October 13, 2015, wherein he testified that he
13 	left New Mexico on April 13, 2000, and did not return until 2014." The district court
14 reasoned, "[w ]hile defense counsel argued that the testimony given by Defendant is
15 	subject to reasonable dispute, the testimony was duly sworn and it was never actually
16 disputed that Defendant had left New Mexico." The district court denied the motion
17 to dismiss based on its finding that Defendant was "absent from New Mexico from
18 April 2000 until July 2014" and its conclusion that under applicable statutory
19 authority the statute of limitations was tolled during that time.
3

1 {5} 	At trial, the jury found Defendant guilty of four counts of criminal sexual
2 contact of a minor in the third degree (person in position of authority) and one count
3 	of bribery of a witness. Defendant appeals from the district court's ensuing judgment
4 and sentence.
5 DISCUSSION
6 I. 	Defendant Has Not Demonstrated That the District Court Erred in
7 	Taking Judicial Notice of Defendant's Sworn Testimony in Another
8 	Case
9 	{6} 	On appeal, under State v. Franklin, 1967-NMSC-151, 78 N.M. 127,428 P.2d
10 	127 and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, Defendant
11 	argues that the district court erred in denying his motion to dismiss for violation of
12 the statute of limitations because the State presented no evidence showing that
13 	Defendant left New Mexico, precluding the tolling of the statute of limitations.
14 Defendant states only that the district court taking "judicial notice from the judgment
15 	and sentence from a prior case against [Defendant was improper because] . . . the
16 facts taken notice of were not of sufficient detail." Defendant offers one case citation
17 	in support of his contention, and little factual or legal analysis. The State answers
18 that Defendant failed to "identify anything about the transcript of his own testimony
19 or the judgment in that case that was not sufficiently detailed to permit appellate
20 review" and for that reason Defendant's reliance on Frost v. 	Markham, 	1974-
21 	NMSC-046, ,r 7, 86 N.M. 261, 522 P.2d 808, is misplaced.
4

1 {7} 	"There is a presumption of correctness in the district court's rulings" an~ it is
2 the claiming party's burden to demonstrate error~ State v. Aragon, 1999-NMCA-060,
3 ,r 10, 127N.M. 393,981 P.2d ~211 (alteration, internal quotation marks, and citation
4 omitted). "We will not search the record ror facts, arguments, and rulings in order to
5 support generalized arguments." Muse v. Muse, 2009-NMCA-003, ,r 72, 145 N.M.
6 451, 200 P.3d 104. Further, "[w]e wiU not review unclear arguments, or guess at
7 what [a party's] arguments might be." Headley v. 	Morgan Mgmt. 	Corp., 2005-
8 NMCA-045, ,r 15, 137 N.M. 339, 110 P.3d 1076. Defendant's minimalist assertion
9 that the facts of which the district court took judicial notice do not contain sufficient
10 detail is not an adequate analysis of the law or application of the facts such that this
11 	Court can properly consider whether judicial notice was proper under the facts and
12 	circumstances of this case. Moreover, the argument fails to address that primarily
13 	relied on by the district court: Defendant's uncontroverted testimpny under oath that
14 he 	left New Mexico 	in 2000 	and was gone 	for 	over fourteen years. 	Given
15 	Defendant's deficient argument, we only briefly address his singular reliance on
16 Frost.
17 {8} 	Defendant cites Frost for his assertion that "facts taken notice of must be of
18 	sufficient detail to permit appellate review." See Frost, 1974-NMSC-046, ,r 7. Frost
19 	stated that "if judicial notice is taken of a prior judicial proceeding, there should be
20 a clear delineation in the record as to what is being noticed." Id. But Defendant fails
5-

1 to adequately _describe how the facts noticed by the district court lack sufficient
2 detail. In the district court's order denying the motion to dismiss, the court identified
3 that it was taking notice of sworn testimony from Defendant from a hearing on
4 October 13, 2015, during which Defendant provided specific testimony about when
5 he left New Mexico and when he returned.· Without further clarification from
6 Defendant as to why the information provided was not sufficient under Frost, we
7 agree with the State that the district court cle-arly delineated what it had noticed from
8 the parallel proceeding, specifically, the dates during which Defendant was absent
9 from New Mexico.
10 {9} 	Because Defendant has failed to demonstrate error on appeal, we presume the
11 	district court was correct in taking judicial notice of Defendant's sworn testimony in
12 the parallel proceeding to establish that Defendant was not in the country for a
13 	number of years, tolling the statute of limitations. We affirm the district court's
14 denial of Defendant's motion to dismiss.
15 	II. 	Sufficient Evidence Supported the Charges Against Defendant
16 	{to} 	When reviewing for sufficiency of the evidence on appeal, "[t]he Court must
17 determine whether substantial evidence of either a direct or circumstantial nature
18 	exists to support a verdict of guilt beyond a reasonable doubt with respect to every
19 element essential to a conviction." State v. Dowling, 2011-NMSC-016, , 	20, 150
20 N.M. 110, 257 P.3d 930 (internal quotation marks and citation omitted). Such a
6

1 review requires the evidence "to be viewed in the light most favorable to the [s]tate,
2 resolving all conflicts and making all permissible inferences in favor of the jury's
3 verdict." Id.
4 {II} 	"An appeal is moot when no actual controversy exists, and an appellate ruling
5 will not grant the appellant any actual relief." State v. Segura, 2014-NMCA-037,
6 ,r 18, 321 P.3d 140, overruled on other grounds by State v. Ameer, 2018-NMSC-
7 030, _ 	P.3d _; see State v. Sergio B., 2002-NMCA-070, ,r 9, 132 N.M. 375, 48
, 8 P.3d 764. Defendant argues that the victim testified at trial that he was sixteen or
9 seventeen-years-old when the incidents occurred and that "[t]he ambiguity in
10 	[victim's] testimony regarding his age cannot support the jury verdict finding him
11 	between twelve and sixteen years of age." In response, the State explained that there
12 was no ambiguity in the victims testimony and that "all of the ... counts on which
13 	Defendant was convicted (Counts 2, 4, 5 and 7) charged that [victim] was thirteen-
14 eighteen-years-old at the time, not twelve-sixteen-years-old." Defendant also states
15 	that he "preserved the issue [below] by moving_ for a directed verdict on Counts 4
16 and 5, both for [c]riminal [s]exual [p]enetration in the [second] degree (child age
17 between [twelve and sixteen])." 1 But regarding this argument, it is unclear to which
1
The criminal sexual penetration in the second degree charges include the
age range of "child [thirteen] to [sixteen] years old" not "child age between
[twelve] and [sixteen]."
7·

1 counts Defendant is referring. 2 That is because the only charges Defendant faced for
2 criminal sexual penetration in the second degree were the original Counts 1, 2, and
3 3, all of which were dismissed by directed verdict following trial. The only other
4 charges which include the sixteen years of age limitation were original Counts 4 and
5 5, for criminal sexual penetration in the third degree (force or coercion). Defendant
6 was found not guilty of the original Count 4, and the original Count 5 was dismissed
7 on directed verdict. As a result of Defendant's undeveloped argument, it appears that
8 the second issue raised by Defendant on appeal is moot and does not require any
9 relief. We refuse to guess at what Defendant's arguments may be and therefore defer
10 to the verdicts below. See Headley, 2005-NMCA-045, ,r 15,
11 	CONCLUSION
12 	{12}
13 	{13}
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15
For the reasons set forth above, we affirm.
IT IS SO ORDERED.
9.~
J. MILES HANISEE, Judge
2The charges were renumbered before being submitted to the jury after
original Counts 1-3 and 5 were dismissed on directed verdict.
8

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WE CONCUR:

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JUI

LIE J. VARGAS, Judge

agus Le R. MEDINA, Judge