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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-41065

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

EDWARD HOREY,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY

Mark Sanchez, District Court Judge

Raúl Torrez, Attorney General

Santa Fe, NM

Walter Hart, Assistant Attorney General

Albuquerque, NM

for Appellant

Bennett J. Baur, Chief Public Defender

Santa Fe, NM

Steven J. Forsberg, Assistant Appellate Defender

Albuquerque, NM

for Appellee

MEMORANDUM OPINION

MEDINA, Judge.

{1} The State appeals the district court’s order suppressing evidence as a sanction 

for its discovery violation. We issued a second notice of proposed summary disposition 

proposing summary reversal, and Defendant has responded with a memorandum in 

opposition, which we have duly considered. We remain unpersuaded that our proposed 

reversal is incorrect, and we therefore reverse the district court. 
{2} “We review the district court’s imposition of sanctions for an abuse of discretion.” 

State v. Lewis, 2018-NMCA-019, ¶ 5, 413 P.3d 484; see State v. Harper, 2011-NMSC044, ¶ 16, 150 N.M. 745, 266 P.3d 25. “An abuse of discretion occurs when the ruling is 

clearly against the logic and effect of the facts and circumstances of the case.” State v. 

Le Mier, 2017-NMSC-017, ¶ 22, 394 P.3d 959 (internal quotation marks and citation 

omitted). 

{3} When a party violates a discovery or scheduling order, “Harper instructs our 

courts to assess (1) the culpability of the offending party, (2) the prejudice to the 

adversely affected party, and (3) the availability of lesser sanctions.” Le Mier, 2017-

NMSC-017, ¶ 15; see Harper, 2011-NMSC-044, ¶ 16. In addition, our case law requires 

the district court to demonstrate its consideration of the Harper/Le Mier framework on 

the record. State v. McWhorter, 2022-NMCA-011, ¶¶ 16-17, 505 P.3d 865; Lewis, 2018-

NMCA-019, ¶¶ 6, 11; Le Mier, 2017-NMSC-017, ¶ 20. While, traditionally, this analysis 

was applied in cases involving “severe sanctions,” this Court recently clarified that this 

framework is also a necessary analysis for the imposition of lesser sanctions. See 

McWhorter, 2022-NMCA-011, ¶¶ 16-17 (“While Harper, Le Mier, and Lewis are all 

addressed toward severe sanctions such as dismissal with prejudice or witness 

exclusion, the analytical framework articulated in these cases does not occur after the 

fact based on the level of sanction the district court deems appropriate; instead, it is the 

framework the court must work through to arrive at the appropriate sanction, and this 

analysis may in some instances lead the court to lesser sanctions. The analysis is no 

less appropriate or important in these instances.”).

{4} Neither the district court’s written order nor its comments at the hearing indicate 

that it engaged in the requisite consideration of the factors set out in Harper and Le 

Mier. Accordingly, the record is insufficient to support the district court’s suppression of 

the evidence at this time. See Lewis, 2018-NMCA-019, ¶ 18 (reversing the district 

court’s sanction for discovery violation and remanding for development of a record 

where the record was not adequate to determine whether the district court abused its 

discretion because the record did not establish that the district court considered the 

factors set out in Harper and Le Mier).

{5} In his memorandum in opposition, Defendant does not contest that the district 

court failed to demonstrate its consideration of the relevant factors on the record. 

Rather, Defendant argues that the State failed to preserve any objection to the 

sufficiency of the record in support of suppression of the evidence because the State 

failed to alert the district court that its explanation was deficient so that the district court 

could correct any error. [Defendant’s MIO 1-3]

{6} We disagree. The record indicates that at the suppression hearing, the 

prosecutor informed the district court that the State had located the video evidence that 

morning and that it had been sent to defense counsel. [State’s MIO 10-11] The 

prosecutor argued that Defendant had not been prejudiced by the late disclosure, as the 

defense had been aware of the contents of the video and now was in possession of the 

videos. [State’s MIO 11] The State further argued that there had not been a sufficient 
showing of culpability on the part of the State. [State’s MIO 13-15] The State therefore 

preserved its objection to the district court’s suppression of the evidence by arguing 

against it at the hearing on the motion to suppress and making arguments in support of 

its position. See State v. Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (recognizing 

that to preserve an issue for appeal, a party “must make a timely objection that 

specifically apprises the trial court of the nature of the claimed error and invokes an 

intelligent ruling thereon.” (internal quotation marks and citation omitted)). Defendant 

has cited no authority to suggest that the State was required to make a further 

objection, after the district court entered its written suppression order, on the basis that 

the order was insufficient. See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 

1129 (“[A]ppellate courts will not consider an issue if no authority is cited in support of 

the issue and that, given no cited authority, we assume no such authority exists.”). We 

therefore reject this assertion of error.

{7} For these reasons and those stated in our second notice of proposed summary 

disposition, we reverse and remand this case to the district court for further 

proceedings. See Lewis, 2018-NMCA-019, ¶ 18 (reversing the district court’s sanction 

for discovery violation and remanding for development of a record where the record was 

not adequate to determine whether the district court abused its discretion because the 

record did not establish that the district court considered the factors set out in Harper

and Le Mier).

{8} IT IS SO ORDERED.

JACQUELINE R. MEDINA, Judge

WE CONCUR:

KRISTINA BOGARDUS, Judge

KATHERINE A. WRAY, Judge