This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellant, 3

v. NO. A-1-CA-36499 4 MICHAEL LUCERO, 5 Defendant-Appellee, 6 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 7 George P. Eichwald, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellant 11 Bennett J. Baur, Chief Public Defender 12 William A. O’Connell 13 Santa Fe, NM 14 for Appellee 15 MEMORANDUM OPINION 16 ZAMORA, Judge. 17 {1} The State appeals from the di strict court’s order dismissing the charges against 18 Defendant Michael Lucero with prejudice. We issued a notice of proposed summary 192 disposition proposing to reverse and re mand. Defendant has filed a timely 1 memorandum in opposition, which we have duly considered. We remain unpersuaded 2 that our initial proposed disposition was incorrect, and we therefore reverse and 3 remand this case to the district court for the reasons set forth below. 4 Background 5 {2} At Defendant’s trial on charges of burgl ary and criminal damage to property, 6 it became apparent during cross-examinati on of the State’s witness, Cuba, New 7 Mexico Police Department Ch ief Joe Chavez, that an audio recording of Defendant’s 8 third interview with police had not been turned over to the defense in discovery. [MIO 9 5] See Rule 5-501(A)(1) NMRA (stating that w ithin ten days after arraignment the 10 State shall disclose “any st atement made by the defendant , . . . within the possession, 11 custody or control of the state, the existen ce of which is known, or by the exercise of 12 due diligence may become known, to the district attorney”). There was a disagreement 13 between Officer Chavez and the prosecuto r about whether the recording had been 14 turned over to the district attorney’s o ffice. [RP 73] Defendant then moved for a 15 mistrial, which the district court granted. [MIO 5-6-7; RP 73-74] In its order granting 16 the mistrial, the district court found th at Defendant had not been provided with 17 discovery in accordance with the rules of criminal procedure, and it dismissed all 18 charges against Defendant with prejudice. [RP 73-74] 193 {3} We review the district court’s imposition of sanctions for an abuse of discretion. 1 See State v. Le Mier , 2017-NMSC-017, ¶ 22, 394 P.3d 959. District courts have broad 2 discretionary authority to determine whatsanction to impose for a violation of a 3 discovery order. Id. ¶ 22. However, our Supreme C ourt has provided guidelines for 4 district courts to follow in assessing what sanctions to impose. In Le Mier , our 5 Supreme Court considered the district court’ s exclusion of a witness as a sanction for 6 the State’s failure to provide discovery in accordance with the district court’s orders. 7 While recognizing the district court’s discretionary authority to fashion an appropriate 8 remedy, the Court stated that district courts are required to assess: “(1) the culpability 9 of the offending party, (2) the prejudice to the adversely affected party, and (3) the 10 availability of lesser sanctions.” Id. ¶ 15; State v. Harper , 2011-NMSC-044, ¶ 15, 150 11 N.M. 745, 266 P.3d 25. The Supreme Court further stated that district courts “must 12 explain their decision to exclude or not toexclude a witness within the framework 13 articulated in Harper[.]” Le Mier , 2017-NMSC-017, ¶ 20. 14 {4} Le Mier addresses situations in which the di strict courts excluded witnesses as 15 a sanction, not the dismissal of the charge s with prejudice as occurred in this case. 16 However, “both dismissal and witness ex clusion constitute ‘extreme’ sanctions.” State 17 v. Lewis , 2018-NMCA-019, ¶ 8, 413 P.3d 484; see also Harper , 2011-NMSC-044, ¶¶ 18 16, 21 (cautioning that the exclusion of w itnesses and outright dismissal are severe 194 sanctions and should only be imposed in th e most exceptional cas es). Therefore, we 1 apply the Harper and Le Mier analysis to review the distri ct court’s action in this case. 2 See Lewis , 2018-NMCA-019, ¶ 8 (applying the Harper and Le Mier considerations 3 to review the district court’s imposition of the extreme sanction of dismissal of 4 criminal charges as a sanction for a discovery violation). 5 {5} As an initial matter, we perceive no error in the district court’s decision to 6 declare a mistrial under the circumstances . We only review the district court’s 7 decision to dismiss the charges with prejudice as a sanction for the discovery 8 violation. We remain of the opinion that th e record and the district court’s order are 9 not sufficient to demonstrate that the distri ct court considered or weighed the relevant 10 factors before dismissing the charges with prejudice. 11 {6} With respect to the first Harper factor, the culpability of the offending party, 12 the district court’s order merely notes th at Defendant was not provided with discovery 13 in accordance with the rules of criminal procedure. [RP 73] Howe ver, the order does 14 not demonstrate that the district court madeany fact specific inquiry into the degree 15 of the State’s culpability. [RP 73-74] Defendant responds in his memorandum in 16 opposition that the fact that the recording was always in the hands of either the 17 prosecutor or the police demonstrates the State’s culpability, and we agree. [MIO 10] 18 See Le Mier , 2017-NMSC-017, ¶ 24 (acknowledging a rebuttable presumption of 195 culpability when a discovery order is violated). However, a discovery violation by the 1 State does not necessarily involve bad faith or intransigence, which is what the district 2 court is required to assess indetermining an appropriate sanction. “It is through this 3 consideration of degree that bad faith or intransigence now factors into a district 4 court’s calculation of appropriate sanctions.” Lewis , 2018-NMCA-019, ¶ 13 5 (recognizing that the degree of culpability is a fact specific inquiry that considers bad 6 faith or intransigence in assessing sanctions against a party). 7 {7} With respect to prejudice, the second factor, Le Mier explains that any 8 discovery violation involves some amount of prejudice to the defendant. See Le Mier , 9 2017-NMSC-017, ¶ 25 (“When a court orders a party to provide disc overy within a 10 given time frame, failure to comply with that order causes prejudice both to the 11 opposing party and to the court.”); see also Lewis , 2018-NMCA-019, ¶ 14 (noting 12 that, under Le Mier , every discovery violation results in some level of prejudice). 13 Additionally, the discovery violation in th is case was not discovered until the middle 14 of trial. Some amount of delay would th erefore necessarily result while the State 15 complied or attempted to comply with its discovery obligation. However, there is no 16 indication in the record or the district c ourt’s order that it considered prejudice before 17 imposing the extreme sanction of dismissal with prejudice. In his memorandum in 18 opposition, Defendant states that he argued tothe district court that he was prejudiced 196 by the absence of the recording because he had no way to cross-examine Officer 1 Chavez to show that his recollection of the statement was false or inaccurate. [MIO 2 5-6] We agree that Defendant’s argument as to the prejudice resulting from the 3 discovery violation would be appropriate for the district c ourt to consider in applying 4 the Harper factors. However, the record does not reflect that the district court engaged 5 in this consideration. See Lewis , 2018-NMCA-019, ¶ 16 (reversing and remanding the 6 district court’s dismissal of criminal ch arges where there was no indication in the 7 record that the district court considered prejudice). 8 {8} Finally, there is no indication that the di strict court considered lesser sanctions 9 before dismissing with prejudice. See Le Mier , 2017-NMSC-017, ¶ 27 (noting that the 10 district court is not required to considerevery conceivable lesser sanction, but is 11 required to fashion the least severe sanction that it feels fits the situation and achieves 12 the desired result). In our notice of proposedsummary disposition, we referred to the 13 docketing statement’s assertion that the district court did not hear from either party 14 before imposing the sanction. In his memo randum in opposition, Defendant states that 15 the district court did hear from both the State and defense before dismissing the 16 charges with prejudice. Defendant argues that this constitutes a factual dispute 17 requiring assigning this case to the general calendar. [MIO 2] We disagree, however, 18 as we will accept Defendant’s statement that the district court heard from the parties 197 before dismissing the case with prejudice as true. The problem remains that the record 1 does not reflect that the district court considered lesser sanctions. “Le Mier requires 2 the district court to not only weigh the de gree of culpability and extent of prejudice, 3 but also explain its decision regarding app licability of lesser sanctions on the record.” 4 Lewis , 2018-NMCA-019,¶ 12. 5 {9} Defendant argues that the district court considered a less extreme remedy when 6 it offered to recess the trial so that the St ate could turn over the recording for review. 7 Defendant asserts that the district court wa s then met with intransigence because the 8 prosecutor and police chief did not agree about whether the recording had been 9 handed over. [MIO 11] We question whether a disagreement between the police and 10 the prosecutor about whether an item of di scovery has been turned over, on its face, 11 amounts to intransigence. Regardless, th e record itself does not support Defendant’s 12 characterization of the district court as having initially offered a less extreme remedy 13 only to be rebuffed by the actions of the State. Speculation as to why the district court 14 chose to impose dismissal with prejudi ce does not substitute for an adequately 15 developed record. Accordingly, we cannot ag ree that the record shows a consideration 16 of lesser sanctions. See Lewis , 2018-NMCA-019,¶ 15 (determining that the record 17 was insufficient to allow fo r appellate review where th ere was no discussion by the 18 district court on the record regarding the av ailability of alternative sanctions and there 198 was no explanation of its decision to impos e the extreme sanction of dismissal with 1 prejudice over lesser sanctions). 2 {10} As a final matter, we note that, although Officer Chavez testified that a 3 recording had been made and handed over to the prosecutor, the district court did not 4 make any finding or resolve any conflict regarding the lo cation and the availability of 5 the recording before dismissi ng the charges with prejudice. See generally State v. 6 Bourland, 1993-NMCA-117, ¶ 8, 116 N.M. 349, 862 P.2d 457 (observing that it was 7 for the district court to determine whether a recording existed where there was a 8 conflict in the evidence). 9 {11} For these reasons, we continue to belie ve that the record is insufficient to 10 support the dismissal of charges with prejudi ce at this time, and we therefore reverse 11 and remand to the district court. See Lewis , 2018-NMCA-019, ¶ 18 (reversing the 12 district court’s dismissal of criminal charges with prejudice and remanding for 13 development of a record where the record was not adequateto determine whether the 14 district court abused its discretion in dismissing because the record did not show that 15 the district court considered the factors set out in Harper and Le Mier). In remanding 16 this case to the district court, we express no opinion as to the propriety of dismissal 17 with prejudice as a sanction under the circum stances. We merely hold that the record 189 has not been adequately developed as required by Le Mier , and we therefore remand 1 for further proceedings. 2 {12} IT IS SO ORDERED

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_______________________________ 4 M. MONICA ZAMORA, Judge 5

WE CONCUR: 6

_____________________________ 7 JULIE J. VARGAS, Judge 8

______________________________ 9 HENRY M. BOHNHOFF, Judge 10