author: JULIE J. VARGAS, Judge

text:
    LOS ALAMOS NATIONAL BANK, Plaintiff-Appellee, v. George P. VELASQUEZ, Defendant-Appellant.
    NO. A-1-CA-35888
    Court of Appeals of New Mexico.
    Filing Date: April 25, 2019 Certiorari Denied, August 5, 2019, No. S-1-SC-37688
    Scott & Kienzle, P.A., Duncan Scott, Albuquerque, NM, for Appellee
    Jay Goodman & Associates Law Firm, P.C., Vanessa L. DeNiro, Santa Fe, NM, for Appellant
    M. ZAMORA, Chief Judge {1} Defendant George P. Velasquez (Homeowner) appeals the district court's order granting in rem summary judgment in favor of Plaintiff Los Alamos National Bank (LANB) in this mortgage foreclosure action. On appeal, Homeowner argues that the district court erred in granting summary judgment because LANB failed to establish that it had standing to enforce Homeowner's note at the time it filed its complaint. Homeowner also argues that the district court erred by permitting LANB, as servicer of the loan, to enforce the note. We conclude LANB had standing to enforce the note, as holder and loan servicer, at the time the complaint for foreclosure was filed and therefore affirm. We need not address Homeowner's remaining issue.
    BACKGROUND
    {2} The following facts are undisputed. In March 2007 Homeowner executed a promissory note in favor of LANB for $273,000, secured by a mortgage. A few years later, Homeowner entered into a home affordable modification agreement with LANB to avoid defaulting on the mortgage. In March 2011 Homeowner defaulted by failing to make payments on the note when due.
    {3} On August 23, 2011, LANB filed a complaint for foreclosure against Homeowner. Attached to the complaint was an unindorsed note bearing a statement stamped on the top of the first page by "Title Guaranty & Ins. Co." certifying that it was a true and correct copy of the original note. LANB also attached a copy of Homeowner's mortgage to the complaint.
    {4} On February 5, 2012, the district court entered a default judgment in favor of LANB based on Homeowner's failure to answer, and LANB subsequently filed a notice of sale. Shortly thereafter, and before the scheduled sale took place, Homeowner filed for voluntary Chapter 7 bankruptcy in the United States Bankruptcy Court. Within Homeowner's bankruptcy proceedings and on his Schedule D (Creditors Holding Secured Claims), he listed LANB as a secured creditor based on its mortgage, which he valued at $300,000. On March 22, 2012, seven months after it filed its complaint, LANB deposited the original note, indorsed in blank (the indorsed note), with the district court. Absent from this note was the stamped statement from the title company certifying that it was a true and correct copy.
    {5} On June 7, 2012, Homeowner filed a motion to set aside the default judgment, requesting proof that LANB was the proper party to foreclose on the mortgage at the time the complaint was filed. Homeowner argued that his failure to timely answer was excusable neglect under Rule 1-060(B)(1) NMRA and raised the defense of standing. Homeowner also attached a document printed from the Federal National Mortgage Association (Fannie Mae) website indicating that Fannie Mae owned Homeowner's loan, and argued at the motion hearing that LANB had "some explaining to do about where the note went" and how it came to "get [the note] back." The district court found that Homeowner satisfied the requirements of Rule 1-060(B), and set aside the default judgment. Homeowner then filed his answer and raised various affirmative defenses, only one of which is relevant to this appeal: LANB lacks standing to enforce the note and foreclose on the mortgage.
    {6} LANB filed three motions for in rem summary judgment. In its first motion, LANB asserted it was entitled to summary judgment because it was the holder of the note and Homeowner was in default. The district court denied LANB's first motion for in rem summary judgment because it did not address Homeowner's affirmative defenses.
    {7} In its second motion for in rem summary judgment, LANB included its responses to Homeowner's affirmative defenses and maintained that it could enforce the note because it was the holder. In support of this second motion, LANB attached an affidavit from Jamie Gallegos (the Gallegos affidavit), a loss mitigation specialist at LANB. Gallegos detailed the procedural background of Homeowner's loan and then stated, "[LANB] is the holder of the [n]ote and [m]ortgage." In LANB's reply, it attached an affidavit by Jane Finch (the first Finch affidavit), the LANB loan administrative officer who placed the indorsement on the note. Finch explained that LANB began the process to obtain the original, indorsed note from Fannie Mae twenty-nine days before the complaint was filed. She stated that upon receiving it from Fannie Mae, LANB delivered the original indorsed note to LANB's previous counsel, the Little Law Firm, on August 5, 2011, eighteen days before the foreclosure complaint was filed. Attached to the first Finch affidavit were three exhibits: (1) an e-mail from Jonathan LeDuc of LANB's legal department requesting the original note memorializing Homeowner's loan from Fannie Mae for judgment and foreclosure purposes; (2) a letter from Jonathan LeDuc to the Little Law Firm enclosing the original note for Homeowner's loan; and (3) a Federal Express air bill receipt from Jonathan LeDuc to the Little Law Firm stamped received on August 5, 2011. LANB additionally argued in its reply that Homeowner is judicially estopped from challenging LANB's standing because he acknowledged that LANB was a secured creditor during the course of his bankruptcy proceedings.
    {8} At the hearing on LANB's second motion for in rem summary judgment, Homeowner argued:
    Opposing counsel states that he has evidence that [LANB] held the note at the time [of] the filing of the complaint, but I don't see that evidence. The exhibit, which I would object to, to admit into court, is hearsay. And it is basically just a cover letter stating that it has the original note, but a copy of the note is not even attached to it.
    LANB did not respond to Homeowner's hearsay claim, but instead focused most of its argument on Fannie Mae's interest in the loan. At the conclusion of the January 25, 2016 hearing, the district court ordered:
    [Our New Mexico case law requires that LANB] show it was the holder at the time it filed its complaint, which can be done by all kinds of evidence, including a person who has first-hand knowledge, including copies of business records that would show that that is the case. So I'm not going to preclude the bank from relying on evidence, such as Ms. Finch's affidavit, in conjunction with the business records, that would show the Federal[ ]Expressing of the original note to the law firm at the time of the filing of the complaint.
    Nevertheless, the district court denied the second motion for in rem summary judgment because it found that Homeowner had offered evidence that Fannie Mae, at least at some point in time, had an interest in the note, and therefore summary judgment was not appropriate until evidence was submitted that Fannie Mae no longer had an interest in the note.
    {9} In LANB's third motion for in rem summary judgment, it clarified Fannie Mae's role in the underlying transaction, explaining that Fannie Mae "owns" the mortgage loan and LANB is the "servicer" of the mortgage loan and attaching the affidavit of John Curcio, Assistant Vice President for Fannie Mae (the Curcio affidavit), substantiating this relationship. Attached to the Curcio affidavit was a loan detail from Fannie Mae's Servicer & Investor Reporting platform, providing information regarding mortgage loans acquired and owned by Fannie Mae. Curcio explained that the loan detail reflects the acquisition and history of Homeowner's loan, establishing that Fannie Mae owns the mortgage in the present case and that LANB is the loan servicer. Nevertheless, LANB argued, it had standing to enforce the note based on its status as the servicer of the mortgage and as the holder of the note. In response, Homeowner again contended that the note and mortgage cannot properly be enforced by LANB because it is not the "true owner" of the note and therefore does not have authority to enforce the note. Notably, Homeowner did not dispute any of the material facts set forth in LANB's second motion for in rem summary judgment and reply, and the facts were further incorporated by reference into LANB's third in rem motion for summary judgment. In LANB's reply, it attached a second affidavit by Finch (the second Finch affidavit), this time explaining the procedures followed by LANB in servicing Fannie Mae loans. According to the second Finch affidavit, immediately following the closing, the title company sends LANB a pre-closing copy of the original note, which is marked as a true and correct copy of the original. After and apart from the closing, the title company also delivers the original note to LANB. Upon LANB's receipt of Homeowner's original signed note in this case, Finch personally indorsed it, and recalls doing so within approximately thirty days or so of the closing, a time period consistent with her typical practice. Therefore, Finch explained, the indorsed note is not stamped by the title company because it is the original, not a copy. LANB also cited to an American Bar Association article, Dale Whitman, The "Person Entitled to Enforce": Lessons Learned from BAC Home Loans Servicing v. Kolenich, https://www.americanbar.org/content/dam/aba/publishing/rpte_ereport/2012/6_december/rp_articles.pdf, to explain the working arrangement between Fannie Mae and LANB and to refute Homeowner's argument that he could be subject to multiple lawsuits. See id. (stating that at the time of foreclosure "Fannie Mae normally delivers possession of the note to its servicer becoming the holder or [person entitled to enforce], while Fannie Mae remains the owner, and will have the right to the proceeds of foreclosure").
    {10} The district court determined that LANB had met its evidentiary burden to establish that it was the holder of the note on the date the complaint was filed, as required by NMSA 1978, Section 55-3-301 (1992), and that LANB's evidence concerning its relationship with Fannie Mae was sufficient to set forth the basis of LANB's entitlement to enforce the note. As a separate and additional ground for summary judgment, the district court applied the doctrine of judicial estoppel against Homeowner based on the position taken by him in the bankruptcy proceedings. The district court accordingly granted LANB's third motion for in rem summary judgment and concurrently entered a separate judgment and order of foreclosure. Homeowner appeals.
    DISCUSSION
    Standard of Review
    {11} "Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Bank of N. Y. Mellon v. Lopes , 2014-NMCA-097, ¶ 6, 336 P.3d 443 (internal quotation marks and citation omitted). "We review issues of law de novo." Id. "The movant need only make a prima facie showing that he is entitled to summary judgment. Upon the movant making a prima facie showing, the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits." Id. (internal quotation marks and citation omitted).
    {12} "We review a district court's decision to admit or exclude evidence for abuse of discretion." Akins v. United Steelworkers of Am., 2009-NMCA-051, ¶ 40, 146 N.M. 237, 208 P.3d 457. "The determination of relevancy ... rests largely within the discretion of the district court." Id. (alteration, internal quotation marks, and citation omitted). "An abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions demanded by the facts and circumstances of the case." Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 11, 314 P.3d 688 (internal quotation marks and citation omitted).
    LANB Has Standing to Enforce the Note
    {13} Homeowner argues that summary judgment was improper because LANB failed to demonstrate that it came into possession of the note before filing its complaint, and therefore lacked standing to enforce the note. See Deutsche Bank Nat'l Trust Co. v. Johnston, 2016-NMSC-013, ¶ 20, 369 P.3d 1046 (stating that standing must be established as of the date the suit was filed in mortgage foreclosure actions). Homeowner points out that LANB failed to produce the indorsed note until six months after filing the complaint and that it was undated. Therefore, the compelling issue is whether LANB made a prima facie showing supported by admissible evidence that it was the holder of the note at the time it filed the complaint for foreclosure on August 23, 2011.
    {14} Possession of the original, indorsed note at the time of filing of the complaint is required to establish standing in this case. See PNC Mortg. v. Romero, 2016-NMCA-064, ¶ 23, 377 P.3d 461 ("In general, a person or entity in possession of a bearer instrument is considered a holder, and a holder of a bearer instrument is entitled to enforce its terms."). Prudential rules of standing apply in mortgage foreclosure cases in New Mexico and require litigants to demonstrate "injury in fact, causation, and redressability to invoke the [district] court's authority to decide the merits of a case." Johnston, 2016-NMSC-013, ¶ 13, 369 P.3d 1046 (internal quotation marks and citation omitted). To effectively show a direct and concrete injury, a party seeking to enforce a promissory note must establish that it has the right to enforce the note under the New Mexico Uniform Commercial Code (UCC). Id. ¶ 14 ; see also § 55-3-301. The UCC identifies three scenarios in which a person is entitled to enforce a promissory note: "(1) when that person is the holder of the instrument; (2) when that person is a non-holder in possession of the instrument who has the rights of a holder; and (3) when that person does not possess the instrument but is still entitled to enforce it subject to the lost-instrument provisions of UCC Article 3." Johnston , 2016-NMSC-013, ¶ 14, 369 P.3d 1046.
    {15} LANB argues that it was the holder of the note. A "holder" is "the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession[.]" NMSA 1978, § 55-1-201(b)(21)(A) (2005). Here, the note was indorsed without identifying a bearer, and was therefore indorsed in blank and payable to the bearer. See NMSA 1978, § 55-3-205(b) (1992) ("If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a 'blank indorsement.' When indorsed in blank, an instrument becomes payable to bearer[.]"); Bank of New York v. Romero , 2014-NMSC-007, ¶ 24, 320 P.3d 1 ("A blank indorsement, as its name suggests, does not identify a person to whom the instrument is payable but instead makes it payable to anyone who holds it as bearer paper."), abrogated on other grounds as recognized by Romero, 2016-NMCA-064, 377 P.3d 461. "Under the UCC, possession of a note properly indorsed in blank establishes the right to enforce that note." Lopes, 2014-NMCA-097, ¶ 12, 336 P.3d 443.
    {16} In evaluating LANB's status as holder of the note, we look for guidance in Johnston, in which our Supreme Court gave two examples of how a party claiming to be a holder can establish that it was in possession of the note prior to the commencement of a foreclosure action: (1) by "attaching a note containing an undated indorsement to the initial complaint," or (2) by "producing a note dated before the filing of the complaint at some appropriate time in the litigation." 2016-NMSC-013, ¶ 23, 369 P.3d 1046. Inasmuch as the indorsed note here under consideration was neither attached to the initial complaint nor dated, this case does not fall into either of the two examples identified in Johnston. Our task, then, is to determine whether other evidence exists to establish that LANB had possession of the note at the time it filed the complaint. See Romero, 2016-NMCA-064, ¶¶ 24, 28, 377 P.3d 461 (discussing that mere production of the indorsed note was insufficient to prove standing at the time the complaint was filed, and the "successor in interest seeking to establish its right to foreclose [must] provide some evidence of a proper indorsement or transfer").
    {17} On this score, LANB produced separate affidavits from Ms. Finch, the loan administrator of Homeowner's account who had personal knowledge about the note's chain of title, which show that LANB's legal counsel had possession of the indorsed note when the complaint was filed. These affidavits and accompanying exhibits were sufficient to establish a prima facie showing that LANB was the holder in possession of the note at the time the complaint was filed, thereby shifting the burden to Defendant to show that there is a genuine issue of material fact for trial.
    {18} Homeowner's response to LANB's motion for in rem summary judgment did not dispute any of the material facts asserted in the motion, nor did it include an affidavit or other evidence to rebut LANB's prima facie showing. Instead, Homeowner argued that the differences between the note attached to the complaint and the original indorsed note submitted six months later are sufficient on their face to establish the existence of a disputed issue of material fact. On appeal, Homeowner contends that LANB failed to demonstrate through competent evidence that it possessed the right to enforce the note at the time it filed the complaint. Specifically, Homeowner argues: (1) the first Finch affidavit improperly relied on hearsay documents and lacked personal knowledge, and (2) the Gallegos affidavit stated legal and conclusory opinions. Significantly, however, Homeowner did not move to strike either affidavit or any purportedly inadmissible exhibits. See Chavez v. Ronquillo, 1980-NMCA-069, ¶ 20, 94 N.M. 442, 612 P.2d. 234 ("A party must move to strike an affidavit that violates Rule [1-056(E) NMRA]."). "If counsel do[es] not object to inadmiss[i]ble matters the court may consider them on the motion for summary judgment." Id. (alteration, internal quotation marks, and citation omitted). Accordingly, we conclude that Homeowner did not preserve any issue regarding the admissibility of the affidavits and exhibits for appeal.
    {19} Homeowner's only objection to the competency of LANB's evidence came at the hearing on the second summary judgment motion, during which Homeowner's counsel stated: "The exhibit, which I would object to, to admit into court, is hearsay. And it is basically just a cover letter stating that it has the original note, but a copy of the note is not even attached to it." The exhibit consisted of the first Finch affidavit with three documents attached. Homeowner is not clear as to which exhibit he was referring to at the hearing. The district court characterized the exhibit as an affidavit with business records attached, and thus viewed it as admissible evidence. On appeal, Homeowner does not develop his argument that the attached documents did not fall within the business records hearsay exception. We therefore decline to consider this argument further because this Court "will not review unclear arguments, or guess at what ... arguments might be." Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 ; see also State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (explaining that appellate courts are under no obligation to review unclear or undeveloped arguments). Moreover, Homeowner does not point us to where in the record he sought to strike the first Finch affidavit. See Romero, 2016-NMCA-064, ¶ 30, 377 P.3d 461 (giving "little weight to [an] appellate attack" on the admissibility of an affidavit because the defendants did not cite to where in the record they sought to strike it); Crutchfield v. N.M. Dep't of Taxation & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 ("[O]n appeal, the party must specifically point out where, in the record, the party invoked the court's ruling on the issue. Absent that citation to the record or any obvious preservation, we will not consider the issue."). "It is the duty of the appellant to provide a record adequate to review the issues on appeal." Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 65, 146 N.M. 853, 215 P.3d 791. Without a motion to strike the affidavit or clear argument about the hearsay exhibit, we cannot say the district court erroneously considered the first Finch affidavit and its corresponding exhibits.
    {20} LANB thus established through competent evidence that it possessed the indorsed note at the time it filed the complaint, and Homeowner offered nothing of substance to rebut this evidence. See Lopes, 2014-NMCA-097, ¶ 6, 336 P.3d 443 ("Upon the movant making a prima facie showing, the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits." (internal quotation marks and citation omitted)). While it undoubtedly would have been the better practice for LANB to have attached the indorsed note to the complaint, we acknowledge that such requirement was not clearly articulated in our case law until some years after the complaint was filed in the present case. See Romero, 2016-NMCA-064, ¶ 26, 377 P.3d 461 (recognizing that the test for establishing standing in foreclosure actions has "evolved dramatically" in recent years). As Defendant has failed to show that a genuine issue of material fact exists on the issue of LANB's status as the holder of the note, we hold that LANB, as holder, had standing to enforce the note and foreclose the mortgage and, accordingly, affirm the district court.
    LANB's Loan Servicer Status Does Not Bar Its Enforcement of the Note
    {21} Homeowner next argues that LANB cannot enforce the note because its role as a loan servicer does not establish a specific interest in the note or mortgage and because Fannie Mae still owns and maintains an interest in the note. Homeowner contends that without a transfer of interest from Fannie Mae to LANB, LANB has no standing to enforce the note, notwithstanding its possession of the note indorsed in blank. Homeowner's argument raises an issue of first impression as to whether a loan servicer has standing to enforce a note owned by another entity, one which is not a party to the foreclosure action. Cf. id. ¶ 15 n.2 (finding issues of fact regarding the plaintiff's standing to enforce an indorsed note, without addressing the plaintiff's apparent status as a loan servicer). We conclude that a loan servicer with authority, either statutorily or contractually, may properly enforce a note owned by another who is not a party to the foreclosure action. As LANB made a prima facie case that it was the holder of the note, it demonstrated its authority, pursuant to the UCC, to enforce the note and the district court did not err when it allowed it do to so.
    {22} A loan servicer is generally "responsible for processing payments and supervising any resulting foreclosure or workout." Id. (internal quotation marks and citation omitted). The Mortgage Loan Company Act, NMSA 1978, §§ 58-21-1 to -32 (1983, as amended through 2009), defines a servicer as
    a person who collects or receives payments, including principal, interest and trust items such as hazard insurance, property taxes and other amounts due, on behalf of a note holder or investor in accordance with the terms of a residential mortgage loan, and includes working with a borrower on behalf of a note holder or investor, when the borrower is in financial hardship or default, to modify either temporarily or permanently the terms of an existing mortgage loan.
    Section 58-21-2(N).
    {23} Other jurisdictions have analyzed the issue of whether loan servicers having no ownership interest in a promissory note can assert standing to enforce the note and have uniformly held that a loan servicer may enforce a note so long as it has authority to do so. See Bankers Trust (Delaware) v. 236 Beltway Inv., 865 F. Supp. 1186, 1191 (E.D. Va. 1994) (holding that both the servicer and owner of a promissory note had authority to sue to enforce the note); Arabia v. BAC Home Loans Servicing, L.P., 208 Cal.App.4th 462, 145 Cal. Rptr. 3d 678, 686 (2012) (concluding that a loan servicer may initiate a foreclosure action in its own name so long as the servicer has been assigned the right to foreclose). Cases from jurisdictions that have considered the question conclude that the authority to enforce a note generally stems from a statutory right to do so found in the UCC, though some courts have found the basis of the right arises from the pooling and servicing agreement between the loan servicer and the owner of the note. See J.E. Robert Co. v. Signature Prop, LLC, 309 Conn. 307, 71 A.3d 492, 499-501 (2013) (concluding that a loan servicer with authority has standing to enforce a note, surveying other jurisdictions and recognizing that some jurisdictions derive that authority from the UCC while others derive that authority from pooling and servicing agreements).
    {24} In this case, we have already concluded that LANB was the holder of the note, as it provided evidence that on the day it filed its complaint for foreclosure, it was in possession of the original note, which had been indorsed in blank a few days after it was executed by Homeowner. See § 55-1-201(b)(21)(A) (defining "holder" in pertinent part as "the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession"). As the "holder," LANB is among those entities authorized by statute to enforce the note, notwithstanding the fact that it does not "own" the note. See § 55-3-301 (stating that a " '[p]erson entitled to enforce' an instrument means ... the holder of the instrument").
    {25} Other jurisdictions have reached similar conclusions. In Central Mortgage Co. v. Davis, 53 N.Y.S.3d 325, 149 A.D.3d 898, 899 (N.Y. App. Div. 2017), the defendant challenged the loan servicer's standing to foreclose, and the court held that the servicer had standing to prosecute "by virtue of its possession of the note at the time of the commencement of th[e] action." The court held that by submitting the note indorsed in blank, the loan servicer demonstrated that it was a holder under New York's version of the UCC. Id. at 899-900. The court explained that "a plaintiff that has possession of the note has standing to foreclose, even where, as here, the plaintiff is the servicer, not the owner, of the mortgage loan." Id. at 899.
    {26} Our appellate courts' treatment of Mortgage Electronic Registration Systems' (MERS) right to enforce notes it manages is also instructive to our analysis. MERS is an electronic registry for tracking the servicing rights and beneficial ownership interests in mortgage loans throughout the United States. 125 Am. Jur. Trials 541 § 8 (2012, updated 2019). Our Supreme Court has held that a MERS assignment of a mortgage is valid if MERS is designated as the nominee on a mortgage contract. Romero , 2014-NMSC-007, ¶ 35, 320 P.3d 1 ; see also Flagstar Bank, FSB v. Licha, 2015-NMCA-086, ¶ 17, 356 P.3d 1102 (concluding that MERS had authority to assign a mortgage, where MERS' role as nominee for lender and lender's successors and assigns was clear from the face of the mortgage), abrogated on other grounds by Romero , 2016-NMCA-064, ¶ 18, 377 P.3d 461. Similar to MERS' authority to assign a mortgage when authorized, loan servicers can enforce a note when authorized. Guided by the reasoning employed by other jurisdictions in recognizing the right of a loan servicer to enforce a note, as well as our rationale in allowing MERS to act on behalf of the owner of a note, we hold that a loan servicer may properly enforce a note even without an ownership interest in the note, provided it has authority to do so.
    {27} Having established that LANB's role as a loan servicer provided an independent basis for its standing to maintain this action, we turn next to consider Homeowner's arguments challenging the admissibility of LANB's affidavits addressing LANB's servicing relationship with Fannie Mae. See Rule 1-056(E) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."). Curcio, the assistant vice president for Fannie Mae, explained in his affidavit that Fannie Mae acquired ownership of the mortgage loan and "remains the owner[,]" while LANB is the loan servicer. Homeowner argues, as he did below, that the Curcio affidavit should be stricken because its relevance is somehow diminished by the fact that Fannie Mae is not a party to the present case. Homeowner did not cite any authority for this proposition, and we assume no such authority exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 ("We assume where arguments in briefs are unsupported by cited authority, counsel [,] after diligent search, was unable to find any supporting authority."). Nevertheless, we disagree with Homeowner's premise, since Curcio's affidavit was clearly relevant to establish that Fannie Mae was the owner of the loan and LANB was the loan servicer. See Rule 11-401(A) NMRA (Relevant evidence is evidence having "any tendency to make a fact more or less probable than it would be without the evidence."); McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 14, 143 N.M. 740, 182 P.3d 121 ("Whatever naturally and logically tends to establish a fact in issue is relevant." (alteration, internal quotation marks, and citation omitted)). Thus, the district court did not abuse its discretion in considering the Curcio affidavit.
    {28} Homeowner also argues that the second Finch affidavit fails to demonstrate personal knowledge sufficient to address the issue of LANB's servicing arrangement with Fannie Mae. However, our review of the record reveals that Homeowner did not object to the admissibility of the second Finch affidavit below, and thus, his present argument is not preserved. See Rule 12-321 NMRA ("To preserve an issue for review, it must appear that a ruling or decision by the trial court was fairly invoked."); Chavez, 1980-NMCA-069, ¶ 20, 94 N.M. 442, 612 P.2d 234 ("A party must move to strike an affidavit that violates [Rule 1-056(E) ].").
    {29} We need not reach Homeowner's argument that Fannie Mae failed to reassign or transfer the indorsed note to LANB, in light of our holding that LANB was the holder of the note and therefore a "person entitled to enforce" the note pursuant to Section 55-3-301. Finally, since we affirm the grant of summary judgment in favor of LANB based on the ground discussed above, it is unnecessary to address the issue of judicial estoppel as an alternative basis for affirmance. See Porter v. Robert Porter & Sons, Inc., 1961-NMSC-010, ¶ 18, 68 N.M. 97, 359 P.2d 134 (stating that our appellate courts "will not make useless orders nor grant relief that will avail appellant nothing").
    CONCLUSION
    {30} For the aforementioned reasons, we affirm the district court's grant of summary judgment in favor of LANB.
    {31} IT IS SO ORDERED.
    WE CONCUR:
   JULIE J. VARGAS, Judge

MEGAN P. DUFFY, Judge


source: Caselaw Access Project

license: Public Domain

text:
    Amy LANDAU, Joyce Rodarte n/k/a Joyce Solisz, Lawrence Otero, Nicole Beder, Jeffrey R. Burke, Paula E. Ganz, James Grayson, Yolanda J. Herrera, Anthony Manfredi, Shannon Murdock, Femma M. Olvera-Scott, Melinda Pate, Mary H. Smith, Jessica L. Sierra, Gregory D. Stover, Hamish Thomson, Michael P. Valdez, Michael Sanchez, and Maria Sanchez-Gagne, Appellants-Appellants, v. NEW MEXICO ATTORNEY GENERAL OFFICE, Appellee-Appellee.
    No. A-1-CA-36344
    Court of Appeals of New Mexico.
    Filing Date: May 14, 2019 Certiorari Denied, August 6, 2019, No. S-1-SC-37730
   Amy Landau, Albuquerque, NM, Pro Se Appellant

Joyce Solisz, f/k/a Joyce Rodarte, Castle Rock, CO, Pro Se Appellant

Lawrence Otero, Santa Fe, NM, Pro Se Appellant

Nicole Beder, Santa Fe, NM, Pro Se Appellant

Jeffrey R. Burke, Cedar Crest, NM, Pro Se Appellant

Paula E. Ganz, Santa Fe, NM, Pro Se Appellant

James Grayson, Santa Fe, NM, Pro Se Appellant

Yolanda J. Herrera, Albuquerque, NM, Pro Se Appellant

Anthony Manfredi, Albuquerque, NM, Pro Se Appellant

Shannon Murdock, Moriarty, NM, Pro Se Appellant

Femma M. Olvera-Scott, Albuquerque, NM, Pro Se Appellant

Melinda Pate, Austin, TX, Pro Se Appellant

Mary H. Smith, Albuquerque, NM, Pro Se Appellant

Jessica L. Sierra, Albuquerque, NM, Pro Se Appellant

Gregory D. Stover, Corrales, NM, Pro Se Appellant

Hamish Thomson, Santa Fe, NM, Pro Se Appellant

Michael P. Valdez, Albuquerque, NM, Pro Se Appellant

Michael Sanchez, Farmington, NM, Pro Se Appellant

Maria Sanchez-Gagne, Santa Fe, NM, Pro Se Appellant

Hinkle Shanor LLP, Ellen S. Casey, Jaclyn M. McLean, Jaime R. Kennedy, Santa Fe, NM, for Appellee

CHÁVEZ, Judge Pro Tempore.

{1} Hector Balderas was elected Attorney General in 2014 to begin his term on January 1, 2015. Attorney General Balderas's transition team terminated Appellants, who had been employees within the Office of the Attorney General (OAG), in most cases for several years, before Balderas took office. Appellants appealed to the State Personnel Board (the Board). The Board concluded it did not have subject matter jurisdiction to hear Appellants' appeal because OAG employees are not entitled to the protections of the Personnel Act, NMSA 1978, Sections 10-9-1 to -25 (1961, as amended through 2014). Those protections include the right to dismissal only for just cause, as well as the right to appeal a dismissal. Selmeczki v. N.M. Dep't. of Corr., 2006-NMCA-024, ¶ 15, 139 N.M. 122, 129 P.3d 158 ("Employees subject to the Personnel Act who have completed a probationary period may only be disciplined for just cause."); § 10-9-18(A) (providing for an appeal); § 10-9-18(F) (providing for reinstatement if dismissal was not for just cause); 1.7.11.10(A) NMAC (stating that "just cause" is "any behavior relating to the employee's work that is inconsistent with the employee's obligation to the agency").

{2} The central issue in this case is whether Appellants were "classified" employees covered by the Personnel Act or "exempt" employees not entitled to the procedural protections of the Personnel Act. Attorney General Balderas contends that all employees of the OAG are exempt because they all serve at the pleasure of the attorney general under NMSA 1978, Section 8-5-5 (1988) and therefore may be terminated with or without cause. Appellants contend that Section 10-9-4 of the Personnel Act, as amended in 1963, made all employees of the OAG, with a few exceptions not relevant to them, classified employees who could not be demoted or discharged without the procedural protections of the Act.

{3} We conclude that the Personnel Act controls over Section 8-5-5 because the history of the Personnel Act demonstrates that the Legislature intended it to be a comprehensive revision of the law regarding state employment. As a result, Appellants are classified employees unless the Board finds that their positions satisfy an enumerated exception in Section 10-9-4(A)-(O). We reverse the Board and remand for a hearing consistent with this opinion.

DISCUSSION

I. The Personnel Act Supersedes Section 8-5-5 Because it Covers the Entire Subject Regarding State Personnel, Defines Which State Employees Are Classified or Exempt, and Creates a New and Comprehensive Procedure for the Discharge or Demotion of Classified Employees

{4} The question before us is a legal question that we review de novo. See Rio Grande Chapter of Sierra Club v. N.M. Mining Comm'n, 2003-NMSC-005, ¶¶ 16, 17, 133 N.M. 97, 61 P.3d 806. The Legislature anticipated the possibility that it might enact competing statutes and therefore adopted legislation to explain how irreconcilable statutes are to be interpreted. NMSA 1978, § 12-2A-10 (1997). The most relevant provision is Section 12-2A-10(C), which provides: "[i]f a statute is a comprehensive revision of the law on a subject, it prevails over previous statutes on the subject, whether or not the revision and the previous statutes conflict irreconcilably." (Emphasis added.) Section 12-2A-10(C) is consistent with case law holding that repeals by implication, while not favored, will be found where "the last statute is so broad in its terms and so clear and explicit in its words as to show it was intended to cover the whole subject, and therefore[,] to displace the prior statute." State ex. rel. Bd. of Comm'rs v. Romero , 1914-NMSC-023, ¶ 6, 19 N.M. 1, 140 P. 1069 (internal quotation marks and citation omitted); see also Stokes v. N.M. State Bd. of Educ., 1951-NMSC-031, ¶ 5, 55 N.M. 213, 230 P.2d 243 (holding that a later act covering an entire subject and furnishing a new and comprehensive system of procedure evinces legislative intent to supersede prior legislation relating to the same subject, even if inconsistent).

{5} Section 8-5-5 was enacted before the Personnel Act. We must determine whether the Legislature intended the Personnel Act to be a comprehensive revision of state public employment law that governs whether OAG employees are classified or exempt. State v. Natoni, 2012-NMCA-062, ¶ 5, 282 P.3d 769 ("Our ultimate goal in statutory construction is to ascertain and give effect to the intent of the Legislature."). When construing statutes, courts generally turn first to the plain language of the statutes as the primary indicator of legislative intent. See State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064. Here, however, the plain language of the statutes at issue is contradictory, as we discuss further below. We therefore begin our analysis by describing the history of the enactment and amendments of both Section 8-5-5 and the Personnel Act. See Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064 ("The legislative history of the statute, including historical amendments, and whether it is part of a more comprehensive act, is instructive when searching for the spirit and reason the Legislature utilized in enacting the statute" (citation omitted)).

A. History of Section 8-5-5.

{6} In 1933, the Legislature created a Department of Justice, 1933 N.M. Laws, ch. 21, § 1, defined the duties, rights and powers of the Attorney General, id. §§ 2-4, and their assistants, id. § 5, and set the salaries for authorized assistants of the Attorney General, id. § 6. In 1955, the Legislature amended Section 5 and repealed Section 6. See Chapter 21; 1955 N.M. Laws, ch. 119, §§ 1, 2. The amendment of Section 5 cited as NMSA 1953, § 4-3-5 (1955) (current version at Section 8-5-5 )-is at the heart of the dispute before us. This section in 1955 read:.

Assistant attorneys general-Appointment The attorney general may appoint a first assistant attorney general, and as many other assistant attorneys general together with stenographic, clerical and other necessary employees oh a full or part time basis, at salaries to be fixed by him within budget allowances and appropriation limits, as the business of the department shall require, and who shall hold office during the pleasure of the attorney general. The assistant attorneys general shall, subject to the direction of the attorney general, have the same power and authority as the attorney general.

(Emphasis added.) In 1965, the title of the first assistant attorney general was changed to deputy attorney general. 1965 N.M. Laws, ch. 214, § 1. In 1979, the Legislature amended Section 8-5-5 by adding Subsection B to authorize the attorney general to appoint "peace officers for the full-time investigation and enforcement of violations of the Controlled Substances Act." 1979 N.M. Laws, ch. 356, § 1. The last amendment of Section 8-5-5 occurred in 1988 when the Legislature enacted two changes. First, the Legislature amended Subsection B to expand the authority of OAG peace officers to investigate and enforce all of the criminal laws of the state, limited only by legislative appropriations. Second, and material to the issue before us, the Legislature made a stylistic change in Subsection A to the language "who shall hold office during the pleasure of the attorney general" by supplanting the word "during" with the word "at." See NMSA 1978, § 8-5-5 (1989) Legis. History N.M. Comp. Comm'n ("The 1988 amendment, effective May 18, 1988, made a minor stylistic change in Subsection A[.]")

B. History of the Personnel Act

{7} The Personnel Act was first enacted in 1959, 1959 N.M. Laws, ch. 205, §§ 1-11, but was repealed and replaced in 1961 by a much more comprehensive Personnel Act, which was passed "to establish for New Mexico a system of personnel administration based solely on qualification and ability, which will provide greater economy and efficiency in the management of state affairs." 1961 N.M. Laws, ch. 240, § 2; see § 10-9-2. This was the first Personnel Act to create a one-year period of probation during which employees could be discharged or demoted without cause or the benefit of notice and a hearing. 1961 N.M. Laws, ch. 240, § 9(D). However, once employees served their one-year probationary period, employees covered by the Act could not be discharged or demoted without cause, notice, and a hearing. Id. § 9(G).

{8} The 1961 Personnel Act also specified in greater detail which state positions-defined as "any state office, job, or position of employment," id. § 3(D)-would be covered under the Personnel Act. Section 4 of the 1961 Personnel Act specified that "all state positions except" those in twelve categories were covered by the Personnel Act. Id. § 4 (emphasis added). Subsections A and I are the exceptions relevant to the issue before us. Subsection A excepted "officials elected by popular vote or appointed to fill vacancies in elective offices, and, except for the governor, their employees, unless the elected officials elect to have their employees covered by the Personnel Act." Id. § 4(A). Thus, an elected official was automatically excluded from the Personnel Act, as were his or her employees unless the elected official chose otherwise. An elected official who chose to have employees covered by the Personnel Act could exclude a maximum of two assistants from coverage. Id. § 4(I). The New Mexico Attorney General is an elected official and therefore exempt from the Personnel Act. N.M. Const, art. V, § 1. There is no evidence in the record that the Attorney General in 1961 exercised discretion to bring OAG employees under the Personnel Act.

{9} The Legislature in 1961 also passed Senate Joint Resolution Number 1 proposing to amend Article VII, Section 2 of the New Mexico Constitution to "allow the [L]egislature to provide by law for the creation of a personnel system and for the establishment of necessary qualifications for employment of appointive officials and employees." S.J. Res. 1, 25th Leg. (1961). The voters adopted the proposed amendment at the special election held on September 19, 1961. N.M. const. art. VII, § 2 (B) Ann. The amendment reads, "[t]he [L]egislature may provide by law for such qualifications and standards as may be necessary for holding an appointive position by any public officer or employee." N.M. Const. art. VII, § 2 (B).

{10} Armed with the approval of the voters, in 1963 the Legislature amended the Personnel Act to specify that the Personnel Act was enacted pursuant to Article VII, Section 2 and to broaden the scope of its application. 1963 N.M. Laws, ch. 200, § 1; NMSA 1953, § 5-4-29 (1963) (current version at Section 10-9-2). The Legislature broadened the Personnel Act's scope by amending Subsection 4(A) of the 1961 Personnel Act to delete the language that excluded employees of elected officials from coverage and to eliminate the discretion given to elected officials to bring their employees under coverage of the Personnel Act. 1963 N.M. Laws, ch. 200, § 2; NMSA 1953, § 5-4-31(A) (1963) (current version at Section 10-9-4). The 1963 amendment of Section 4(A) changed the language of that subsection as follows: "cover all state positions except: A. officials elected by popular vote or appointed to fill vacancies in elective offices, and, except for the governor, their employees, unless the elected officials elect to have their employees-covered by the Personnel Act." Id. (deleted language from the 1961 Personnel Act added)

{11} Elected officials remained excluded from the Personnel Act, NMSA 1953, § 5-4-31(A), and the 1963 Personnel Act still allowed up to two assistants in the office of an elected official to be excluded from coverage under the Personnel Act. NMSA 1953, § 5-4-31(I); see § 10-9-4(L). The 1963 Personnel Act also excluded from coverage "heads of divisions of agencies and such other employees serving in policy making capacities as may be determined by the personnel board." NMSA 1953, § 5-4-31(M); see § 10-9-4(O). In 1967, the Legislature added one secretary to the list of elected official employees who could be excluded from coverage. 1967 N.M. Laws, ch. 181, § 1; see § 10-9-4(L).

{12} The Legislature has revised Section 10-9-4 nine more times since 1967 to add or remove groups of employees from coverage, or to redefine which employees are excluded. See, e.g., 1969 N.M. Laws, ch. 126, § 1 (excluding disadvantaged youth); 1975 N.M. Laws, ch. 182, § 1 (excluding certified school instructors); 1977 N.M. Laws, ch. 247, § 45 (excluding directors of department divisions); 1981 N.M. Laws, ch. 339, § 5 (excluding corrections and criminal rehabilitation employees); 1990 N.M. Laws, ch. 20, § 1 (removing corrections employees from list of those excluded from coverage).

C. The Personnel Act Supersedes Section 8-5-5.

{13} We conclude that the Legislature intended the Personnel Act to supersede Section 8-5-5 based on the enactment and amendment history of these statutes. The Legislature's intent in 1961 to supersede prior legislation addressing the status of state employees generally is evident from its stated purpose, which was to establish "for New Mexico a system of personnel administration based solely on qualification and ability, which will provide greater economy and efficiency in the management of state affairs." 1961 N.M. Laws, ch. 240, § 2. The Legislature's intent is also reflected in the fact that it sought and obtained constitutional authority to create a personnel system that would establish the qualifications for employment of state employees. S.J. Res. 1, 25th Leg. (1961) The Legislature empowered the Personnel Board to develop a comprehensive administrative procedure for classified public employees covered by the Personnel Act. 1961 N.M. Laws, ch. 240, § 9; see Barreras v. N.M. Corr. Dep't, 2003-NMCA-027, ¶ 12, 133 N.M. 313, 62 P.3d 770 (acknowledging the Personnel Board's comprehensive administrative scheme); § 10-9-13 (providing that the Personnel Board shall promulgate rules for a classification plan, a pay plan, and procedures for dismissal and demotion, including notice and appeal procedures, for all positions unless exempted by Section 10-9-4 of the Personnel Act).

{14} The plain language of Section 10-9-4, specifically provides that the Act applies to "all state positions" except those falling within specific categories. The amendments to the Personnel Act from 1963 to 1990 excluding certain employees from the Act's coverage evinces legislative intent for all state employees to be covered by the Act unless they are specifically excluded from coverage by provisions in the Act itself.

{15} Moreover, the Legislature did not alter the Personnel Act in response to its interpretation by the attorney general in office at the time. Former Attorney General Earl E. Hartley issued official opinions in 1961 and 1963 addressing which employees were exempt from the Personnel Act. In 1961, the Director of Personnel asked Attorney General Hartley for an opinion identifying which public entities were covered by the 1961 Personnel Act. Attorney General Hartley opined that the Attorney General and his employees were exempt from the 1961 Personnel Act unless he chose to have his employees covered by the Act. N.M. Att'y Gen. Op. 61-28 (1961). Two years later, after the 1963 amendments to the Act, the Director of Personnel sought another opinion as to which public bodies, formerly exempt under the 1961 Personnel Act, would be subject to the 1963 Personnel Act. N.M. Att'y Gen. Op. 63-27 (1963). In an opinion authored by Thomas A. Donnelly, later a judge on this Court, Attorney General Hartley opined that the Attorney General's employees were no longer exempt from the coverage of the Personnel Act. Id.

{16} The fact that the Legislature did not amend the Personnel Act to specifically exclude OAG employees from coverage after Attorney General Hartley's official opinion, which was in temporal proximity to the 1963 amendment to the Personnel Act, is additional compelling evidence that the Legislature intended to supersede Section 8-5-5 and to cover OAG employees under the Act. See State ex. rel. State Eng'r v. Lewis, 1996-NMCA-019, ¶ 13, 121 N.M. 323, 910 P.2d 957 ("An early interpretation and uniform administration of a statute by executive officers will not be lightly overturned."); see also Five Corners Family Farmers v. State, 173 Wash.2d 296, 268 P.3d 892, 899 (2011) (En Banc) (failure to amend a statute in response to an attorney general's opinion interpreting legislation in temporal proximity to the enactment may constitute legislative acquiescence in the interpretation).

{17} Importantly, the 1963 Personnel Act provided that employees of an elected official who had been exempt because the official did not opt to bring them under the 1961 Personnel Act were automatically covered by the 1963 Personnel Act if the employee had served the elected official for at least one year. NMSA 1953, § 5-4-38. Any employee who had not served for at least one year would have to complete a year and pass a qualifying test before they could benefit from the protections of the Act. Id. The automatic coverage of employees who had served out a probationary period further reveals the Legislature's intent to apply the Personnel Act to all employees unless they fall within specified categories.

{18} Finally, a 1987 amendment to the Personnel Act to specifically except certain OAG employees from coverage also persuades us that the Legislature intended the Personnel Act to supersede Section 8-5-5. Beginning in 1984, employees in the OAG were assigned to the Rocky Mountain Information Network, which was "a federally funded regional information sharing systems program for law enforcement agencies." Hal Stratton, Office of the Attorney General, State of New Mexico: History, Powers & Responsibilities, 1846-1990, at 108 (1990). In 1987, the Legislature enacted Section 10-9-4.1 to address whether those employees were covered by the Personnel Act. In Subsection A, the Legislature stated, "[n]otwithstanding the provisions of Section 10-9-4..., all employees of the [R]ocky [M]ountain [I]nformation [N]etwork who commence employment on or after the effective date of this act are exempt from coverage under the Personnel Act." This language would not have been necessary if, as argued by Attorney General Balderas, all employees of the OAG were exempt from coverage under the Personnel Act. As if to make clear that OAG employees are classified under the Personnel Act, the Legislature in Section 10-9-14.1(B) allowed OAG employees who were assigned to the Rocky Mountain Information Network before passage of Section 10-9-4.1 to elect to become exempt from coverage under the Personnel Act. The language authorizing these employees to elect to become exempt from coverage would be superfluous if the Legislature had intended for OAG employees to be exempt in the first place. We refrain from reading statutes in a way that renders its provisions superfluous. State v. Rivera, 2004-NMSC-001, ¶ 18, 134 N.M. 768, 82 P.3d 939. Therefore, we must conclude that the option to become exempt employees was necessary because the Legislature intended for OAG employees to be classified under Section 10-9-4.

II. Since the 1963 Enactment of the Personnel Act, OAG Employees Have at Times Been Treated as Classified Employees

{19} The parties each seek to support their arguments by pointing to evidence that OAG employees have historically been treated as classified or exempt. For example, Appellants refer us to the Sunshine Portal, created pursuant to the Sunshine Portal Transparency Act, NMSA 1978, Section 10-16D-1 to -6 (2010, as amended through 2015). The Department of Information Technology updates the portal monthly with information it receives from agencies and the department of finance and administration. Section 10-16D-3(E), (F). The portal lists classified employees by state agency, position title, and salary but does not name the employees. Section 10-16D-3D(11). Exempt employees are named and are also listed by state agency, position title, and salary. Section 10-16D-3D(12). All OAG employees are currently listed as classified employees, except one: the Attorney General himself. See https://www.sunshineportalnm.com/ (last visited Apr. 29, 2019).

{20} For his part, Attorney General Balderas points to evidence that he and other attorneys general have required employees to sign a statement acknowledging that they are exempt employees. It is not clear from the record when this practice began. However, because Attorney General Hartley in 1963 issued an official opinion concluding that the employees of the Attorney General were "no longer exempted from the coverage of the State Personnel Act," N.M. Att'y Gen. Op. 63-27 (1963), it is reasonable to assume that Attorney General Hartley followed his own legal interpretation of the Personnel Act and, therefore, treated OAG employees as classified employees covered by the Personnel Act until he left office in 1964. The record does not reflect how many OAG employees were classified or exempt between 1964 and 1984.

{21} Attorney General Hal Stratton's book-often cited by Attorney General Balderas-provides some insight into how OAG employees were categorized from 1984 to 1990. Stratton, supra, at 62, 341. Figure 3 in Attorney General Stratton's book depicts the total number of OAG employees and the number that were exempt or classified from 1984 until 1990. Less than ten percent of the OAG employees were exempt from 1984 until 1987, when Attorney General Stratton took office. Stratton, supra, at 109.

{22} Attorney General Stratton disagreed with Attorney General Hartley's opinion and believed that Section 8-5-5(A) made all OAG employees at-will. Stratton, supra, at 114. Yet even Attorney General Stratton did not treat all OAG staff as exempt employees. For example, Figure 3 shows that in 1987, there were approximately 137 OAG employees and only approximately 42 were exempt. When Attorney General Stratton left office in 1990 there were approximately 118 OAG employees, of which approximately 62 were exempt, and 56 were classified. Stratton, supra, at 109.

{23} The persuasive power of the fact that some attorney generals may have treated their employees as exempt and/or required employees to sign an agreement stating they are exempt from the Personnel Act is virtually nil here. Such an agreement is not enforceable given our conclusion that the Personnel Act applies to OAG employees. See 1978 NMSA, §§ 8-5-1 to -18 (1933, as amended through 2019); Clark v. N.M. Children, Youth & Families Dep't, 1999-NMCA-114, ¶25, 128 N.M. 18, 988 P.2d 888 (stating that "[i]f [the employee] had been made to sign a document that was contrary to the State Personnel Rules or case law, her written acknowledgment would have no effect"); see also State v. Davidson , 1929-NMSC-016, ¶ 9, 33 N.M. 664, 275 P. 373 (stating that the powers of the attorney general are defined and limited by statute). Moreover, as we observed above, Attorney General Hartley's opinion concluding that the Personnel Act covers OAG employees is more persuasive because (1) it was contemporaneous with the 1963 amendment of the Personnel Act, and (2) the Legislature, fresh from obtaining constitutional authority to create a personnel system and identify which state employees would be covered by the Personnel Act, did not respond to Attorney General Hartley's opinion by amending the Personnel Act to exclude the OAG from its application.

{24} Without question, the continued existence of the language in Section 8-5-5 that declares that OAG employees "hold office at the pleasure of the attorney general" complicates matters. Such language typically connotes "at will" employment, i.e., employment that may be terminated without cause or process as provided in the Personnel Act. See Hartbarger v. Frank Paxton Co., 1993-NMSC-029, ¶ 4, 115 N.M. 665, 668, 857 P.2d 776 ("An at-will employment relationship can be terminated by either party at any time for any reason or no reason, without liability."). When the Legislature made a minor stylistic change to Section 8-5-5(A) in 1988, it did not delete this language, a fact that might be construed to indicate that the Legislature intended Section 8-5-5 to remain viable despite the Personnel Act. However, when construing statutes, we presume that the Legislature is aware of the statutes and case law extant at the time. Hence, any amendments to Section 8-5-5 must be understood in light of the Personnel Act's comprehensive provisions. Santa Fe Water Res. All., LLC v. D'Antonio, 2016-NMCA-035, ¶ 29, 369 P.3d 12 (stating that "when the Legislature recompiles or amends a statute, it is presumed to be aware of other relevant statutes and court holdings at the time of the recompilation or amendment").

{25} The Personnel Act is a comprehensive statute that addresses state public employment; which employees are or are not covered by the Personnel Act; and the procedural protections available to those state employees covered by the Personnel Act. The Legislature has instructed courts that a comprehensive revision of the law on a subject prevails over previous statutes on the subject regardless of whether the statutes are irreconcilable. If the attorney general wants his employees to be exempt from the Personnel Act, he may pursue an amendment to the Personnel. Act. See, e.g., § 10-9-4(J). The only OAG employees exempt from the Act are those specifically excluded under Section 10-9-4(A)-(P).

III. Appellants Have the Burden of Establishing Sufficient Facts to Invoke the Subject Matter Jurisdiction of the Board

{26} The Board has subject matter jurisdiction to hear an appeal by a state employee who files an appeal within thirty days of being dismissed. Section 10-9-10(B); § 10-9-18(A). After Appellants appealed their dismissals to the Board, Attorney General Balderas challenged the Board's subject matter jurisdiction, arguing that Appellants are not employees covered by the Personnel Act. Appellants contend that Attorney General Balderas has the burden of demonstrating a lack of subject matter jurisdiction because he challenged the Board's jurisdiction and cite State v. Begay, 1987-NMCA-025, ¶ 6, 105 N.M. 498, 734 P.2d 278 ("Demonstrating a lack of jurisdiction is [the] defendant's burden."). We disagree.

{27} In this case, Appellants have the burden of proving that they were employees as defined by the Personnel Act, Section 10-9-3(I), and held positions covered by the Act. Section 10-9-4; see Lopez v. Career Serv. Review Bd., 834 P.2d 568, 573 (Utah Ct. App. 1992) (stating that a party who brings a case before a tribunal of limited jurisdiction must present sufficient facts to invoke the tribunal's jurisdiction). Here Appellants had to present sufficient facts that they held a state job that was not excluded under Section 10-9-4(A)-(O). They have satisfied their burden of proving that they were state employees.

However, they also have the burden of establishing that they were not, at the time they were dismissed, a director of a department division excluded under Section 10-9-4(D); one of two assistants or one secretary designated by Attorney General Balderas or the Legislature as exempt under Section 10-9-4(L); or in a policy-making position as determined by the Board under Section 10-9-4(O). Hence, on remand, the Board must determine whether one or more of the Appellants fall within one of the relevant enumerated exceptions in Section 10-9-4, in which case they do not have the protections of the Personnel Act.

CONCLUSION

{28} Appellants are covered under the Personnel Act unless the Board finds that they are excluded under Section 10-9-4(D), (L), or (O). The Board's dismissal for lack of subject matter jurisdiction is reversed and this matter is remanded for further proceedings consistent with this opinion.

{29} IT IS SO ORDERED.

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge Pro Tempore

LINDA M. VANZI, Judge

      Appellants appealed from the Board's decision to the First Judicial District Court, pursuant to Section 10-9-18(G) ("A party aggrieved by the decision of the board made pursuant to this section may appeal the decision to the district court pursuant to the provisions of [NMSA 1978,] Section 39-3-1.1 [ (1999) ].") and Rule 1-074(A) NMRA (governing "appeals from administrative agencies to the district courts when there is a statutory right of review to the district court"). Without deciding the merits, the district court certified the appeals to this Court on the ground that they "address an issue of substantial importance because they implicate the New Mexico Attorney General's authority to hire and fire at will, which affects not only [Appellants], but also all current and future employees of the NM[OAG]." See Rule 1-074(S) ("[T]he district court may, as a matter of judicial discretion, certify to the Court of Appeals a final decision appealed to the district court, but undecided by that court, if the appeal involves an issue of substantial public interest that should be decided by the Court of Appeals.").

      The parties do not dispute that Appellants timely appealed their dismissals within thirty days.


author: VARGAS, Judge.

text:
    STATE of New Mexico, Plaintiff-Appellee, v. JACOB F., Defendant-Appellant.
    No. A-1-CA-36643
    Court of Appeals of New Mexico.
    Filing Date: May 20, 2019
    Hector H. Balderas, Attorney General, Santa Fe, NM, Meryl E. Francolini, Assistant Attorney General, Albuquerque, NM, for Appellee
    Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant
   VARGAS, Judge.

{1} Defendant was arrested for aggravated battery after allegedly attacking his mother with a pair of garden shears. He appeals the district court's determination that he is not mentally retarded, arguing that it erred in its application of NMSA 1978, Section 31-9-1.6 (1999). Because we conclude that the district court improperly placed the burden to demonstrate mental retardation on Defendant despite evidence sufficient to give rise to a statutory presumption that Defendant was mentally retarded, we reverse the district court's Section 31-9-1.6(E) determination and remand the matter to the district court. In light of this determination, we need not and do not consider Defendant's remaining arguments.

BACKGROUND

{2} Following his arrest, Defendant's competency was immediately designated as an issue in the case, and the district court deemed Defendant both incompetent to stand trial and dangerous. Defendant moved for a hearing pursuant to Section 31-9-1.6 to determine whether he was mentally retarded and therefore subject only to civil commitment and not criminal prosecution. See § 31-9-1.6(D). Prior to the hearing, two IQ tests were administered to Defendant. Each of the doctors who separately administered the IQ tests testified that Defendant showed symptoms of psychosis during the testing process and each testified that Defendant scored below seventy on the IQ test he administered. Following the hearing, the district court issued an oral ruling, stating,

First, is whether the defense has established by a reliably administered test that [Defendant] has a full scale IQ of less than seventy. The Court concludes they have not. ... The question is whether the information received from him taking the test is reliable. The court concludes that ... the information is not reliable. So, the presumptive level of a seventy test score has not been shown by a preponderance of the evidence to create the legal presumption. That being the case, ... the State does not have to prove by a preponderance of evidence because the burden has not shifted as he is not ... his intellectual disability and/or developmental delay in the modern vernacular, mental retardation as described under Section 31-9-1, that sequence has been met.

Of particular concern to the district court in making its determination was the unknown level of psychosis Defendant experienced during the tests and how any such psychosis might have impacted Defendant's scores. In the order resulting from the hearing, the district court reached two conclusions: (1) Defendant failed to establish, "based on a reliably administered intelligence quotient test[,]" that his IQ was at or below seventy, and (2) Defendant "failed to establish by a preponderance of the evidence that [he] was mentally retard[ed] as defined by [ Section] 31-9-1.6(E)." Defendant appeals.

DISCUSSION

{3} Defendant argues on appeal that the district court erred when it concluded he was not mentally retarded pursuant to Section 31-9-1.6. Specifically, Defendant argues that the district court erroneously failed to shift the burden of proof to the State to rebut the presumption that Defendant is mentally retarded after two doctors testified that Defendant received a score below seventy on each of two IQ tests administered to him. We review the district court's determination that Defendant is not mentally retarded for an abuse of discretion. See Linares , 2017-NMSC-014, ¶¶ 23, 32, 393 P.3d 691. "A district court abuses its discretion when it misapplies or misapprehends the law[,]" State v. Pacheco , 2008-NMCA-131, ¶ 34, 145 N.M. 40, 49, 193 P.3d 587, 596, or when its ruling is "against logic and is clearly untenable or not justified by reason[,]" Linares , 2017-NMSC-014, ¶ 24, 393 P.3d 691 (internal quotation marks and citation omitted). To the extent Defendant's appeal presents questions requiring statutory interpretation, those are questions of law that we review de novo. Id. ¶ 41.

{4} "[M]ental retardation" is statutorily defined as "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior." Section 31-9-1.6(E) ; see Gutierrez , 2015-NMCA-082, ¶ 44, 355 P.3d 93 (describing statutory definition as a "two-prong test"). An IQ of seventy or below on a "reliably administered" IQ test "shall be presumptive evidence of mental retardation[,]" and creates a statutory presumption that a defendant is mentally retarded. Section 31-9-1.6(E) ; Gutierrez , 2015-NMCA-082, ¶ 44, 355 P.3d 93 (internal quotation marks and citation omitted). Once this presumption is established, "the burden shifts to the [s]tate to prove by a preponderance of the evidence that a person does not have mental retardation." Gutierrez , 2015-NMCA-082, ¶ 44, 355 P.3d 93.

{5} To claim entitlement to the statutory presumption of mental retardation, Defendant must show that he has an IQ of seventy or less and that the test used to determine that IQ was "reliably administered." The parties do not dispute that Defendant scored below seventy on the two IQ tests administered to him. The evidence presented at the hearing to determine whether Defendant is mentally retarded showed that Defendant underwent cognitive testing administered by two different doctors-Dr. Fields and Dr. Andrews. The testing revealed IQ scores of 67 and 68, respectively, scores which both doctors characterized as falling within the "extremely low range."

{6} While the parties agree that Defendant scored below seventy on the IQ tests, they disagree as to whether the IQ tests were "reliably administered," as required by Section 31-9-1.6(E). The State, urging a broad interpretation of the statute, argues that the language of Section 31-9-1.6(E) requiring the IQ test to be "reliably administered" requires proof that the test results themselves are reliable in order to trigger the statutory presumption and that Defendant's psychosis prevented the doctors from obtaining accurate results when they administered their IQ tests to Defendant. According to the State, a strict construction of the statutory language-one limiting the relevant inquiry to the reliability of the administration of the IQ test without requiring accuracy in the result-would run counter to legislative intent and render the "reliably administered" test requirement "useless and superfluous." By contrast, Defendant contends that the Legislature's use of the term "reliably administered" IQ test unambiguously refers to the reliability of the test's administration, not the reliability of its results, noting that to "administer" a test is to "manage or supervise [its] execution[.]" We conclude that Defendant's straightforward reading of the statute must control.

{7} When interpreting a statute, we seek to effectuate the Legislature's intent, which we discern from the language of the statute. See State ex rel. Helman v. Gallegos , 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352 ; State v. Nieto , 2013-NMCA-065, ¶ 4, 303 P.3d 855. Our interpretation may encompass no more than applying the language of the statute as written:

[I]f the meaning of a statute is truly clear-not vague, uncertain, ambiguous, or otherwise doubtful-it is of course the responsibility of the judiciary to apply the statute as written and not to second-guess the [L]egislature's selection from among competing policies or adoption of one of perhaps several ways of effectuating a particular legislative objective.

Helman , 1994-NMSC-023, ¶ 22, 117 N.M. 346, 352, 871 P.2d 1352, 1358.

{8} As we consider the Legislature's intent in requiring a "reliably administered" IQ test as presumptive evidence of mental retardation, we note that each of the testifying doctors in this case provided a similar definition of what constitutes a "reliably administered" test. Dr. Fields testified that a "reliably administered" test referred to an evaluator's ability to administer the test in a way that a person's performance on that test would remain the same over time, even if tested by different examiners. Dr. Andrews described a "reliably administered" test as one that is well validated and widely accepted among practitioners in the field, that the person administering the test would have experience administering and evaluating the test, and that the test would yield consistent results.

{9} In this instance, neither doctor questioned the efficacy or acceptance of the test used by the other to determine Defendant's IQ, nor did either doctor challenge the methods employed or procedures followed by the other in implementing the tests. Both doctors were experienced in administering and evaluating IQ tests. With regard to the testimony of both doctors that a "reliably administered" test would necessarily yield consistent results, Dr. Fields testified that Defendant's score of 62 on a previously administered IQ test, as well as Defendant's scores of 67 and 68 on the tests he and Dr. Andrews administered, suggested reliability. Dr. Fields opined that the scores were indicative of Defendant's consistent performance at the extremely low range and that future testing would produce scores in a similar range. Dr. Andrews, by contrast, testified that while there appeared to be some "surface" consistency in the IQ scores, the subtests administered to Defendant indicated some significant differences in his performance, suggesting a lack of ability to perform consistently across time due to Defendant's psychotic symptoms. According to Dr. Andrews, these differences in performance in the subtests call into question the accuracy of Defendant's IQ scores of 67 and 68.

{10} Having considered the language of the statute and the testimony of the doctors, we agree with Defendant that the legislative requirement of a "reliably administered" IQ test is directed at the manner in which the test is given to the subject, rather than the accuracy of the results reached. The State fails to point to any language in the statute to support its contention that the statute requires a defendant to prove the accuracy of the IQ test results before he or she is entitled to a presumption of mental retardation. For one to be presumed mentally retarded, the plain language of Section 31-9-1.6(E) unambiguously requires nothing more than a showing of a "reliably administered" test that results in a score of seventy or less. Common usage makes clear that the phrase "reliably administered test" addresses the manner in which the test is given and not the accuracy of the results, and there is nothing in the statute to suggest that the two concepts should be viewed as synonymous with one another. See NMSA 1978, § 12-2A-2 (1997) ("Unless a word or phrase is defined in the statute or rule being construed, its meaning is determined by its context, the rules of grammar and common usage."). "We will not read into a statute any words that are not there, particularly when the statute is complete and makes sense as written." State v. Trujillo , 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125.

{11} Furthermore, nothing in the language of the statute raises any "genuine uncertainty as to what the [L]egislature was trying to accomplish" that might necessitate further interpretation beyond the statute's plain language. Helman , 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352. The plain language of Section 31-9-1.6(E) states, in no uncertain terms, that "[a]n [IQ] of seventy or below on a reliably administered [IQ] test shall be presumptive evidence of mental retardation." Section 31-9-1.6(E) (emphasis added). " 'Shall' will be given its mandatory meaning, unless there are indications in the statute that the mandatory reading is repugnant to the manifest intent of the Legislature." Tomlinson v. State , 1982-NMSC-074, ¶ 9, 98 N.M. 213, 647 P.2d 415 ; see Marbob Energy Corp. v. N.M. Oil Conservation Comm'n , 2009-NMSC-013, ¶ 22, 146 N.M. 24, 206 P.3d 135 ("It is widely accepted that when construing statutes, 'shall' indicates that the provision is mandatory, and we must assume that the Legislature intended the provision to be mandatory absent a clear indication to the contrary."). In furtherance of our constitutional prohibition against prosecuting mentally retarded defendants, see State v. Rotherham , 1996-NMSC-048, ¶ 13, 122 N.M. 246, 923 P.2d 1131, the Legislature clearly intended to establish a statutory scheme that set a quantifiable standard to guide courts as they evaluate defendants for mental retardation-a defendant with an IQ of seventy or below is presumed to be mentally retarded.

{12} Importantly, the remaining provisions of Section 31-9-1.6 make clear the Legislature's intent to extend the inquiry into a defendant's mental retardation beyond the presumption-creating stage of the proceedings, as an IQ score of seventy or below does not end the court's inquiry, but merely gives rise to a rebuttable presumption of mental retardation. In the event the state has concerns about the accuracy of a given IQ test, it retains the opportunity to demonstrate that inaccuracy in seeking to overcome the presumption of mental retardation by a preponderance of the evidence. See Gutierrez , 2015-NMCA-082, ¶ 44, 355 P.3d 93. Thus, the State's argument addressing the accuracy of Defendant's IQ test results is more properly explored during the State's rebuttal, when the level of Defendant's general intellectual functioning will ultimately be determined.

{13} Our decision that a defendant need not prove the accuracy of IQ test results to be entitled to a presumption of mental retardation is not to say that the accuracy of the results of such tests are not affected by the method or manner of their administration. Obviously, a "reliably administered" test is more likely to yield an accurate result than a test that is not "reliably administered." Nonetheless, at the "presumption" stage of the mental retardation analysis, the Legislature has made clear that nothing more is required than that the test be "reliably administered."

{14} Having determined that Defendant is not required to prove the accuracy of the testing results, but only that the testing was "reliably administered" to be entitled to a presumption of mental retardation, we consider the evidence presented at the Section 31-9-1.6 hearing below. As indicated, neither doctor questioned the efficacy or acceptance of the IQ tests used to evaluate Defendant or the underlying methods employed during the testing process. Furthermore, the doctors' ultimate findings as to the numerical values of Defendant's IQ scores were separated by only a single point, with one scoring Defendant's IQ at 67 and the other scoring it at 68, indicating consistency in results. The State presented nothing to suggest that the test each doctor administered to Defendant was unreliably administered, pointing instead to a perceived inaccuracy in the testing results that it attributes to Defendant's psychosis-a cause Dr. Fields testified was unrelated to the "reliable administration" of the tests. Because the testimony presented at the hearing to determine whether Defendant was mentally retarded was sufficient to support a conclusion that Defendant's IQ tests were "reliably administered," the district court was required to presume that Defendant was mentally retarded based on his IQ scores of 67 and 68.

{15} We conclude that the district court misapplied Section 31-9-1.6(E), that Defendant is entitled to a presumption that he is mentally retarded, and that the district court improperly placed the burden on Defendant to prove mental retardation. We therefore remand for such further proceedings as may be necessary to allow the district court to determine whether the State met its burden of proving by a preponderance of the evidence that Defendant was not mentally retarded, either by establishing that Defendant does not have significantly subaverage general intellectual functioning or that he does not have deficits in his adaptive behavior, or both. Based on this disposition, it is unnecessary for us to address the other arguments raised by Defendant.

CONCLUSION

{16} We reverse and remand for further proceedings consistent with this opinion.

{17} IT IS SO ORDERED.

WE CONCUR:

M. MONICA ZAMORA, Chief Judge

BRIANA H. ZAMORA, Judge

      Although our Supreme Court has acknowledged it is "no longer acceptable to describe individuals with developmental disabilities as 'mentally retarded[,]' " our statutes continue to use the term. See State v. Linares , 2017-NMSC-014, ¶ 1 n.1, 393 P.3d 691. In this opinion, we apply the language used by the Legislature, and, like the Supreme Court in Linares , encourage our Legislature to amend the statutes in favor of more respectful terminology.

      Defendant also argues that the evidence was insufficient to support a conclusion that he committed one of the felonies giving rise to his detention, in violation of NMSA 1978, Section 31-9-1.5(D) (1999), and that the district court abused its discretion when it allowed the State to obtain a forensic evaluation of Defendant's competence.

      Defendant contends, and the State concedes, that the applicable standard of review is de novo, but we find the parties' citations in support of their shared view unpersuasive. Defendant cites to State v. Office of Public Defender ex rel. Muqqddin , 2012-NMSC-029, 285 P.3d 622, which involves no competency issues at all, and instead relies on principles of statutory construction in resolving a burglary-related question. The State cites to a Section 31-9-1.6 case from this Court, State v. Gutierrez , 2015-NMCA-082, 355 P.3d 93, but in doing so ignores the fact that our Supreme Court has subsequently applied an abuse of discretion standard in reviewing a mental retardation determination. We are bound by precedent set by our Supreme Court, see State ex rel. Martinez v. City of Las Vegas , 2004-NMSC-009, ¶ 22, 135 N.M. 375, 89 P.3d 47 (reiterating principle that Court of Appeals is bound by Supreme Court precedent).


author: ROWLAND, JUDGE: KUEHN, V.P.J., SPECIALLY CONCURRING:

text:
    Daniel Ryan CHADWELL, Appellant v. The STATE of Oklahoma, Appellee.
    Case No. F-2017-1142
    Court of Criminal Appeals of Oklahoma.
    FILED JULY 18, 2019
    SUMMARY OPINION
   ROWLAND, JUDGE:

¶1 Appellant Daniel Ryan Chadwell was tried by a jury in the District Court of Cleveland County, in Case No. CF-2014-2296, for forty counts of Lewd Acts with Child Under 16, in violation of 21 O.S.Supp.2013, § 1123(A). He was convicted on all but Counts 25 and 26. The jury assessed punishment at one hundred years imprisonment on each of Counts 1, 2, 4-15, 27-32, and 38-40; seventy-five years imprisonment on each of Counts 34-35; fifty years imprisonment on each of Counts 3, 16-19, 22-24, 33, and 36; and twenty-five years imprisonment on each of Counts 20, 21, and 37. The Honorable Thad Balkman, District Judge, presided over Chadwell's jury trial and sentenced him, in accordance with the jury's verdicts, ordering the sentences to be served consecutively.

Chadwell appeals raising the following issues:

(1) whether the trial court gave erroneous jury instructions in sentencing; and
(2) whether prosecutorial misconduct deprived him of a fair trial.

¶2 We find relief is not required and affirm the Judgment and Sentence of the district court.

1.

¶3 Chadwell was charged with forty counts of lewd acts with a child under 16, in violation of 21 O.S.Supp.2013, § 1123(A). He complains on appeal that error occurred because the jury was instructed on the range of punishment for lewd acts committed with a child under the age of 12. This was error, he asserts, because he was not charged with or convicted of the crime of lewd acts with a child under 12 and because the jury was not instructed on the age element.

¶4 "It is settled law that trial courts have a duty to instruct the jury on the salient features of the law raised by the evidence with or without a request." Hogan v. State , 2006 OK CR 19, ¶ 39, 139 P.3d 907, 923 (citing Atterberry v. State , 1986 OK CR 186, ¶ 8, 731 P.2d 420, 422 ). See also Soriano v. State , 2011 OK CR 9, ¶ 36, 248 P.3d 381, 396. Because the record does not show that trial counsel objected to the instructions at issue, review on appeal is for plain error. See Rutan v. State , 2009 OK CR 3, ¶ 78, 202 P.3d 839, 855. To be entitled to relief for plain error, an appellant must show: "(1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding." Hogan , 2006 OK CR 19, ¶ 38, 139 P.3d at 923. "This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice." Stewart v. State , 2016 OK CR 9, ¶ 25, 372 P.3d 508, 514.

¶5 Title 21 O.S.Supp.2013, § 1123(A) prohibits a broad range of sexual conduct with minors. Lewd acts with a child under 12 is not a different or separate crime from lewd acts with a child under 16 as Chadwell argues. Rather, the paragraph at the end of Section 1123(A) simply provides different ranges of punishment for lewd acts committed with a child under 16 and for those committed with a child under 12. This paragraph provides as follows:

Any person convicted of any violation of this subsection shall be punished by imprisonment in the custody of the Department of Corrections for not less than three (3) years nor more than twenty (20) years, except when the child is under twelve (12) years of age at the time the offense is committed, and in such case the person shall, upon conviction, be punished by imprisonment in the custody of the Department of Corrections for not less than twenty-five (25) years.

Thus, Chadwell was convicted for the crimes with which he was charged which were lewd acts with a child under 16. However, his argument that his jury should have been instructed that in order to assess punishment at not less than twenty-five years imprisonment they had to find that the victims were under twelve years of age at the time that the crimes were committed is not without merit.

¶6 In Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The Supreme Court further provided, in Alleyne v. United States , 570 U.S. 99, 103, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), that "any fact that increases the mandatory minimum [sentence] is an 'element' that must be submitted to a jury." See also United States v. Ellis , 868 F.3d 1155, 1169 (10th Cir. 2017) ("a district court violates the Sixth Amendment if it imposes a sentence based on a judge-found (and not a jury-found) fact that increases a minimum sentence."). Thus, the age of the victims at the time of the crimes is an element of the crime of lewd acts with a child under 16 for purposes of sentencing and a criminal defendant has a constitutional right to have the jury instructed on this element and the charged offense proved beyond a reasonable doubt.

¶7 Failure to so instruct in the present case was error. This error, however, is subject to harmless error analysis. See Neder v. United States , 527 U.S. 1, 4, 15, 119 S.Ct. 1827, 1831, 1837, 144 L.Ed.2d 35 (1999) (the error which occurs when an element of the crime charged is omitted from the jury instructions is subject to harmless error analysis). The harmless error test is "whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " Id. at 15, 119 S.Ct. at 1837 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) ). See also Barnard v. State , 2012 OK CR 15, ¶ 14, 290 P.3d 759, 764 (where an element of the crime was omitted from the jury instruction this Court reviewed for plain error and applied the harmless error doctrine pursuant to United States Supreme Court's decisions in Chapman and Neder ).

¶8 The evidence presented at trial was that all of the child victims were under the age of twelve at the time Chadwell committed the crimes charged. This evidence was overwhelming and not contradicted. Given the evidence, we find that the instructional error was harmless beyond a reasonable doubt. See Neder, 527 U.S. at 17, 119 S.Ct. at 1837 ("where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless"). There is no plain error here and this claim is denied.

2.

¶9 Chadwell complains that the cumulative effect of prosecutorial misconduct deprived him of his right to a fair trial. Because none of the comments at issue were met with objection at trial we review for plain error only. Harney v. State , 2011 OK CR 10, ¶ 23, 256 P.3d 1002, 1007. To be entitled to relief for plain error, an appellant must show plain error under the analysis set forth in Hogan , 2006 OK CR 19, ¶ 38, 139 P.3d at 923. "This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice." Stewart , 2016 OK CR 9, ¶ 25, 372 P.3d at 514.

¶10 "[W]e evaluate the alleged misconduct within the context of the entire trial, considering not only the propriety of the prosecutor's actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel." Hanson v. State , 2009 OK CR 13, ¶ 18, 206 P.3d 1020, 1028. Both sides have wide latitude to discuss the evidence and reasonable inferences therefrom. Harmon v. State, 2011 OK CR 6, ¶ 81, 248 P.3d 918, 943. Relief is only granted where the prosecutor's flagrant misconduct so infected the defendant's trial that it was rendered fundamentally unfair. Jones v. State , 2011 OK CR 13, ¶ 3, 253 P.3d 997, 998. It is the rare instance when a prosecutor's misconduct during closing argument will be found so egregiously detrimental to a defendant's right to a fair trial that reversal is required. See Pryor v. State , 2011 OK CR 18, ¶ 4, 254 P.3d 721, 722.

¶11 While some of the comments at issue may have bordered upon impropriety, none rose to the level of plain error. This claim is denied.

DECISION

¶12 The Judgment and Sentence of the district court is AFFIRMED . Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

LEWIS, P.J.: Concur in Results

KUEHN, V.P.J.: Specially Concur

LUMPKIN, J.: Concur

HUDSON, J.: Concur

KUEHN, V.P.J., SPECIALLY CONCURRING:

¶1 I agree with the Majority's finding in Proposition 1. In reaching that conclusion, I agree that the appropriate test for alleged Constitutional violations is that required by Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), rather than the qualitatively different test for nonconstitutional violations found in Hogan v. State , 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. I agree that, under Chapman , the trial court's failure to instruct the jury properly was error, and the State has shown that error was harmless beyond a reasonable doubt. I write separately to more fully address the instruction issue to give guidance to trial courts and counsel.

¶2 As the Majority correctly finds, lewd molestation of a child under the age of 12 is not a "different or separate crime" from lewd molestation of a child under 16, as the age difference only enhances the punishment range. The age of the victim of a lewd molestation crime under any subsection of Title 21 O.S. § 1123 is an element of the crime itself, but that age is 16 years or younger. The trial judge appropriately instructed the jury on the elements of the crime of lewd molestation of a child under the age of 16, as the State charged the Appellant with that specific offense.

¶3 The Majority also correctly holds it was error to exclude from the instructions on punishment that the jury find the State proved the victim was 12 years or younger in order to consider an enhanced punishment. The jury instruction for lewd molestation (OUJI 4-129) should not change, but the instruction on the available punishment range, OUJI 10-13, should. The third paragraph of the instruction should read as follows:

If you find the defendant guilty, you shall then determine the proper punishment.
The crime of lewd molestation of a child under the age of 16 is punishable by imprisonment in the custody of the Department of Corrections for not less than three years nor more than twenty (20) years. You may also impose a fine up to $10,000.00.
If you find the defendant guilty, and find beyond a reasonable doubt that the victim(s) (insert either initials of victim(s) or count(s) of the Information here if multiple victims) (was) (is) (were) (are) the age of twelve or under, then you may sentence the defendant to custody in the Department of Corrections for not less than twenty-five (25) years. You may also impose a fine up to $10,000.00.

Although not raised in this appeal, the State must put a defendant on notice that it is seeking enhanced punishment. Therefore, the Information should state that the child is under the age of twelve.

      The jury found Chadwell not guilty on Counts 25 and 26.

      Under 21 O.S.Supp.2014, § 13.1, Chadwell must serve 85% of his sentence of imprisonment before he is eligible for parole consideration.

      OUJI 4-129 notes that element.

      In this case notice was not an issue. The State first charged Appellant with Sexual Abuse of a Minor Child. That crime, like Lewd Molestation, also includes a finding that the victim was a child under the age of eighteen (18) and carries up to Life in prison. When the State requested to amend the charges to lewd molestation of a child under the age of sixteen (16), they argued that since the victim was under twelve (12) the maximum punishment would not change. Therefore, Appellant was put on notice of the range of punishment.