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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 35,880 4 JULIE FREY, 5 Defendant-Appellee. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Alisa A. Hadfield District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 John Kloss, Assistant Attorney General 11 Albuquerque, NM 12 for Appellant 13 Bennett J. Baur, Chief Public Defender 14 Santa Fe, NM 15 for Appellee 16 MEMORANDUM OPINION 17 GARCIA, Judge. 18 {1} This is an appeal from the State, challenging the district court’s order 191 Pursuant to Supreme Court Order No. 16-8300-015, former LR2-400 was 18 recompiled and amended as LR2-308 eff ective December 31, 2016. Any references 19 to the local rule in this opinion are to former LR2-400. 20 2 dismissing the case against Defendant without prejudice for discovery violations, 1 pursuant to the recently en acted criminal case management rule for the Second 2 Judicial District, LR2-400 NMRA, which has since been recompiled as LR2-308 3 NMRA. 1 Perceiving no error, we issued a notice of proposed summary disposition, 4 proposing summary affirmance. The State filed a memorandum in opposition to our 5 notice. Our review of the State’s response doe s not reveal error. We therefore affirm. 6 {2} Our notice observed that LR2-400 applies tothe current case, and that the State 7 does not deny that it committed two violations of discoveryrules under that version 8 of the local rule. We noted that the local rule requires the district court to impose a 9 sanction where “a party fails to comply w ith any provision of this rule or the time 10 limits imposed by a scheduling order entered under this rule[.]” LR2-400(I)(1). 11 Expressly listed among appropriate remedi es is a dismissal without prejudice. See 12 LR2-400(I)(3)(e). We further noted that no restrictions on the district court’s 13 discretion to impose this remedy apply in the current case. SeeLR2-400(I)(4)(a), (b). 14 We proposed to reject the State’s argument that the high standard required for the 15 extreme sanction of witness exclusion that was articulated in State v. Harper , 2011- 16 NMSC-044, ¶¶ 16-20, 150 N.M. 745, 266 P.3d 25, applies to th e sanction of dismissal 173 without prejudice. 1 {3} In response to our proposed analysis, the State raises several challenges. First, 2 it argues that the Supreme Court in Harper did not distinguish between a dismissal 3 with or without prejudice in characterizing dismissals against the State as extreme 4 sanctions. [MIO 3-6] Second, it argues that the analysis Harper requires for dismissals 5 applies here; thus, the district court was required to consider lesser sanctions, 6 prejudice to Defendant, and whether the State engaged in especially culpable conduct. 7 [MIO 6-11] Third, the State contends th at this Court’s calendar notice improperly 8 shifted the inquiry from the lack of a findi ng of bad faith or intransigence on the part 9 of the State to the absence of an e xplanation from the State for the discovery 10 violations. [MIO 11-12] The State then proceed s to argue that the district court did not 11 reasonably evaluate prejudice to Defendant [MIO 12-14] and did not choose a remedy 12 that least affected the merits of the case. [MIO 14-15] 13 {4} We are not persuaded that the heightenedstandard for sanc tions applies equally 14 to dismissals with and without prejudice. Harper referred to the “outright dismissal 15 of a case” as a “severe sanction” that “should not be imposed except in extreme 16 cases,” and stated that the exclusion of material state witnesses is the functional 17 equivalent of such a dismissal because they both preclude the State from making its 18 prima facie case. 2011-NMSC-044, ¶ 21. In contrast, a dismissal without prejudice by 194 its nature does not permanently affect the merits or foreclose the State’s ability to 1 present its case. Thus, by “outright dismissal,” Harper refers to a dismissal with 2 prejudice, not without. Indeed, th is Court recently held that Harper applies to 3 dismissals with prejudice, exclusions of w itnesses, and “only to those sanctions . . . 4 that bar further prosecution by the [s]tate.” State v. Seigling , 2017-NMCA__, ¶ 23, __ 5 P.3d __ (No. 34,620, Jan. 24, 2017) (holding that the Harper analysis applies only to 6 those severe sanctions imposedunder the local rule that bar further prosecution of the 7 case). We specifically stated that Harper does not apply to dismissals without 8 prejudice, a sanction the local rule “clearly contemplates . . . to enforce compliance.” 9 Seigling. 2017-NMCA-___, ¶ 23. The State makes no argument that the dismissal 10 without prejudice in the current case precludes further prosecution. As a result, we are 11 not persuaded that the district court should have applied the standard in Harper before 12 dismissing the case without prejudice under the local rule. The State’s arguments 13 regarding the lack of prejudice to the defendant and its lack of culpability are relevant 14 considerations under Harper , not for the dismissal without prejudice imposed in this 15 case under the local rule, and are therefore rejected. 16 {5} Next we turn to whether the district court abused its disc retion by its choice of 17 sanction. We point out that it is the State’ s burden in this appeal to demonstrate that 18 the district court abused its discretion by imposing the dismissal without prejudice, 195 rather than a different sanction. See State v. Aragon , 1999-NMCA-060, ¶ 10, 127 1 N.M. 393, 981 P.2d 1211 (stating that we presume correctness in the district court’s 2 rulings and the burden is on th e appellant to demonstrate district court error). The 3 State still does not dispute that a sanction was required for its violations of the 4 discovery provisions. The local rule does notcontain a provision requiring the district 5 court to enter findings to support its c hoice of one of the lesser sanctions, and Harper 6 does not apply to restrict the imposition of a dismissal without prejudice. The State 7 does not explain why another sanction would have been more appropriate under the 8 circumstances, and does not suggest that anything would bar the State from reindicting 9 Defendant. The State also does not refer us to any case law suggesting that the district 10 court abuses its discretion by imposing a sanction the law permits. We note that the 11 State even refuses to discuss the reasons for the discovery violations—despite its 12 obligation to provide this Court with all facts material to the issues it raises on 13 appeal—asserting that such an inquiry contradicts the culpability showing required 14 under Harper , which we hold does not appl y to the sanction imposed. See State v. 15 Chamberlain , 1989-NMCA-082, ¶ 11, 109 N.M. 173, 783 P.2d 483 (stating that 16 where an appellant fails “to provide us with a summary of all the facts material to 17 consideration of [his or her] issue, as required by [our Rules of Appellate Procedure], 18 we cannot grant relief on [that] ground”). It seems to us that the State’s reasons for 196 violating the local rule would be relevant to its assertion that the district court abused 1 its discretion in its choice of sanction. For instance, the local rule explains that “the 2 court shall not accept negligence or the usual press of business as sufficient excuse for 3 failure to comply.” LR2-400(I)(2). We pres ume this could explain the violations. 4 {6} Recent opinions from this Court emphasize the use of a dismissal without 5 prejudice as an appropriate remedy for a di scovery violation because it does not affect 6 the merits and avoids potential due proce ss problems that may result from forcing a 7 defendant to proceed to the scheduled trial without an adequate opportunity to 8 discover and examine the state’s evidence. See Seigling , 2017-NMCA-___ ¶¶ 16, 23; 9 State v. Navarro-Calzadillas , 2017-NMCA__, ¶¶ 17-18, __ P.3d __ (No. 34,667, Jan. 10 24, 2017). Under the circumstances presented—where the rule requires a sanction, the 11 sanction imposed is expressl y permitted by law and does not prejudice the State, the 12 law does not require fi ndings about the circumstances the district court considered, 13 simple negligence and work pressure provide no excuse, and the State does not 14 explain the reasons for its violations—the State presents us with little to review 15 regarding the district court’s choice of sanc tion. We see no abuse of discretion in the 16 district court’s imposition of the dismi ssal without prejudice for the State’s two 17 discovery violations. 18 {7} For the reasons stated in this opinion and in our notice, we affirm the district 197 court’s order dismissing the case without prejudice. 1 {8} IT IS SO ORDERED. 2

__________________ ______________ 3 TIMOTHY L. GARCIA, Judge 4 WE CONCUR: 5

_______________________________ 6 MICHAEL E. VIGIL, Judge 7

_______________________________ 8 M. MONICA ZAMORA, Judge 9