This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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-Appellee, 3

v. NO. 34,463 4 VINCENT VACCA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 Steven L. Bell, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Steven H. Johnston, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 McGarry Law Office 14 Kathleen McGarry 15 Glorieta, NM 16 for Appellant 17 MEMORANDUM OPINION 18 GARCIA, Judge. 192 {1} Defendant Vincent Vacca was charged and convicted of trafficking (by 1 possession with intent to distribute), pursuant to NMSA 1978, Section 30-31-20 2 (A)(3) (2006). This case comes before us on the question of whether the State’s failure 3 to disclose evidence of Defendant’s prior felony conviction for trafficking and 4 subsequent cross-examination of Defendant with that same undisclosed prior felony 5 conviction constitutes reversible error. We hold that the district court abused its 6 discretion in failing to grant Defendant’s motion for a new trial on the grounds that 7 Defendant was severely prejudiced by the State’s failure to disclose the prior felony 8 conviction and its subsequent use at trial. We reverse and remand Defendant’s 9 conviction for a new trial. 10 BACKGROUND 11 {2} On August 26, 2013, the State charged Defe ndant with one count of trafficking 12 a controlled substance by possession with intent to distribute. The charge stemmed 13 from a search warrant executed on Defendant’s residence on July 25, 2013. During 14 execution of the search warrant, Officer Kenneth Roberts of the Roswell Police 15 Department patted Defendant down and found a small bag of what he believed to be 16 methamphetamine in Defendant’s sock. O fficer Roberts then separated Defendant 17 from the other individuals on the scene, advised him of his constitutional rights, and 18 Defendant agreed to answer questions. Defe ndant admitted that the substance in his 193 sock was “methamphetamine [and] he sold to three or four people.” Officer Roberts 1 turned off his belt recorder to ask Defendant if he wantedto work as a confidential 2 informant, but Defendant was unwilling to provide the name of the person from whom 3 he bought. During the search of the property, officers found a cell phone, toothpicks, 4 baggies, a digital scale, and several meth pipes. The substance recovered from 5 Defendant was confirmed tobe 1.65 grams of methamphetamine by the New Mexico 6 Department of Public Safety Laboratory. 7 {3} At trial, Defendant took the stand inhis own defense. Defendant admitted to 8 possessing methamphetamine but denied selling methamphetamine to anyone. He 9 claimed that his previous admission to Offi cer Roberts was the result of coercion. On 10 direct examination, Defendant admitted that he had previously been convicted of one 11 felony. On cross-examination, the following exchanged occurred: 12 Q: 2005 you lived in Roswell? 13 A: Yes, sir. 14 Q: And that’s when you were convicted of receiving stolen 15 property? 16 A: Yes, sir. That’s my one felony that I have, yes, sir. 17 Q: So you only have one felony? 18 A: I have one felony receiving and disposing of stolen 19 property, yes, sir. 204 Q: [Have y]ou ever lived in Massachusetts? 1 A: Yes, I [did]. 2 Q: Did you ever live in Lowell? 3 A: Yes, I did. 4 Q: Isn’t it true you have another felony out of Lowell? 5 A: No, sir. You’re wrong about that. I’ve already been found 6 not guilty of that. They tried pulling that back in [2006] and I’ve already 7 been found that there was no charge for a felony there and that was back 8 in the first felony. They tried givi ng me that felony again and there was 9 no charge for that, no, sir. 10 Q: So you’re telling us under oath that you don’t have a 11 conviction or trafficking out of Massachusetts? 12 A: As far as I know, no, sir. 13 {4} The State then asked to approach th e bench where the State claimed that 14 Defendant had perjured himself because the State had a certified copy of the 15 conviction that it could not use because it wa s too old. The jury was sent out. Defense 16 counsel argued to the district court that he only had disclosure from the State for one 17 felony, which Defendant admitted to on the stand. The State claimed that it did not 18 know of the second felony convi ction for trafficking in Ma ssachusetts until that day, 19 during lunch, while doing research on another issue. The State further claimed the 20 felony would not have been us able or relevant if Defendant had not perjured himself. 21 The district court concluded that it would allow the State to ask Defendant if he had 225 been convicted on the date of the trafficking felony, but because the nature of the 1 charge was unnecessary for impeachment purposes, it would not allow the State to 2 repeat what the other prior conviction (trafficking) was for again. 3 {5} Defense counsel requested a curative instruction “to disregard the prior 4 question about a trafficking conviction.” Th e district court responded that it was up 5 to defense counsel to decide whether he wanted an instruction or if he thought, as “a 6 matter of strategy,” it would be better not to go into the issue anymore. Defense 7 counsel requested that the instruction be to “just . . . disregard the last question[.]” The 8 district court instructed the jury “to disregard the last question that was asked by the 9 prosecutor[,] and I’m going to ask him to re state a different question.” Defendant then 10 testified on cross-examination that his mi nd had been refreshed and he did have a 11 conviction from Massachusetts for which he was put on probati on for two-and-one12 half years. Evidence of the conviction was ne ver entered. In closing, the State briefly 13 referenced that Defendant initially stated he had one prior fel ony in 2005 but was “not 14 accurate” because he did haveanother prior conviction. 15 {6} The jury convicted Defendant of one count of tr afficking. Defendant filed a 16 motion for a new trial. Defendant argued inhis motion and at a subsequent hearing 17 that the State had only disclosed one prior felony and had defense counsel known of 18 the second felony conviction for trafficki ng, his trial strategy would have been 196 different. With the knowledge of the second felony, he w ould have advi sed his client 1 differently regarding testifying and would have moved the district court, prior to trial, 2 to allow only evidence that it was a felony conviction and to exclude that the 3 conviction was for trafficking. Defendant asked the district court to consider, in the 4 interest of justice, the impact of the prosecutor’s question on the jury and reiterated 5 that defense counsel would have pursued a different “approach” to the trial with 6 knowledge of Defendant’s prio r conviction. The districtcourt denied Defendant’s 7 motion for a new trial. This appeal followed. 8 DISCUSSION 9 {7} Defendant makes two arguments on app eal: (1) the district court erred in 10 denying Defendant’s motion for a new trial based upon the State’s failure to notify 11 Defendant of his prior trafficking felony and its disclosure during trial; and (2) the 12 district court erred in failing to grant a continuance when informed by defense counsel 13 that he was not prepared for trial and wh en Defendant requesteda new attorney. We 14 agree that the district court abused its di scretion in failing to gr ant Defendant’s motion 15 for a new trial. As such, we need not reach Defendant’s other argument. 16 {8} “When the defendant has been found guilty, the court on motion of the 17 defendant, or on its own motion, may grant a new trial if required in the interest of 18 justice.” Rule 5-614(A) NMRA. “The [distric t] court has broad di scretion in granting 197 or denying a motion for new trial[.]” State v. Guerra , 2012-NMSC-027, ¶ 18, 284 1 P.3d 1076 (internal quotation marks and citation omitted). We will not reverse such 2 an order absent a clear and manifest abuse of discretion. Id. An abuse of discretion 3 occurs when “the ruling is clearly agains t the logic and effect of the facts and 4 circumstances of the case.” Id. (internal quotation marks and citation omitted). 5 {9} This Court considers the following factor s when evidence is disclosed for the 6 first time during trial to determine whether the error is reversible: “(1) whether the 7 [s]tate breached some duty or intentionally deprived the defendant of evidence; (2) 8 whether the improperly non-disclosed ev idence was material; (3) whether the 9 non-disclosure of the evidence prejudiced th e defendant; and (4) whether the [district] 10 court cured the failure to timely disclose the evidence.” State v. Mora , 11 1997-NMSC-060, ¶ 43, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds as 12 recognized by Kersey v. Hatch , 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683. 13 1. The State Breached its Duty to Disclose Defendant’s Prior Felony 14 {10} The first question is whether the State “breached [a] duty or intentionally 15 deprived [D]efendant of evidence.” Id. Defendant argues that the State had a duty to 16 disclose Defendant’s fel ony conviction for trafficki ng (the 1989 felony conviction) 17 under Rule 5-501(A)(2) NMRA. Rule 5-501(A )(2) states that “[u]nless a shorter 18 period of time is ordered by the court, within ten . . . days after arraignment or the date 198 of filing of a waiver of arraignment . . . the state shall disclose or make available to the 1 defendant . . . the defendant’s prior criminal record, if any, as is then available to the 2 state[.]” The State’s duty to di sclose is a continuing duty. SeeRule 5-505(A) NMRA. 3 If during trial, a party discovers “additional material or witnesses which he would 4 have been under a duty to produce or disclose [,] he shall promptly give written notice 5 to the other party or the party’s attorney of the existence of the additional material or 6 witnesses.” Id. 7 {11} Pursuant to Rules 5-501 and -505, the State had a continuing duty to disclose 8 the 1989 felony conviction to Defendant. Desp ite the State’s assertion of its late 9 discovery of Defendant’s second felony conviction, the State still had ample 10 opportunity to disclose this critical evid ence before surprising Defendant and the 11 district court by using the undisclosed convi ction on cross-examination. The State had 12 numerous opportunities to disclose the 1989 felony conviction in the following ways: 13 (1) alerting defense counsel during the lunch break once th e undisclosed felony 14 conviction was discovered or once the State returned to the court after the lunch break, 15 but before the trial reconvened; (2) beforeor after the testimony of Agent John Clay, 16 the first witness to testify after the lunc h break; (3) before or after the testimony of 17 Sergeant Filomeno Gonzales, the State’s final witness to te stify after the lunch break; 18 (4) during motions and arguments held after the State rested its case in chief; (5) 199 during the nine-minute break after the State rested its case and prior to Defendant’s 1 case; (6) during the district court’s advisement to Defendant regarding the 2 implications of testifying and prior to Defendant beginning totestify on his own 3 behalf; (7) by requesting a side-bar conf erence once Defendant testified on direct 4 examination about his one prior felony c onviction but did not testify about the 5 undisclosed 1989 felony convicti on; (8) by requesting a side-bar conference upon the 6 completion of the direct examination of De fendant by defense couns el and prior to the 7 start of cross-examination; and (9) by re questing a side-bar conference after cross8 examination began and the prosecutor madethe decision to question Defendant about 9 the 1989 felony conviction but before actually asking Defendant any questions about 10 the undisclosed 1989 felony convic tion. There is nothing in th e record to indicate why 11 the State did not take affirmative action to disclose this 1989 felony conviction. The 12 State fails to address why the time period between its late discovery of the 1989 felony 13 conviction during the lunch break and its eventual use on cross-examination should 14 not be recognized as an intentional failureto disclose this critical and severely 15 prejudicial evidence. See State v. Clark , 1986-NMCA-095, ¶¶ 34-41, 105 N.M. 10, 16 727 P.2d 949 (rejecting the state’s argument th at it did not disclo se the defendant’s 17 prior forgery arrest because it inte nded to use it only for impeachment). 18 {12} The State argues that its use of Defendant’s 1989 felony conviction for 1910 trafficking was not legal error as it wa s admitted as impeachment of Defendant’s 1 testimony that he had only one prior felony under Rule 11-609 NMRA, impeachment 2 of a witness by criminal conviction. Rule 11-609(B) states that a conviction ten years 3 or older is admissible only if: “(1) its probative value, supported by specific facts and 4 circumstances, substantially outweighs its prejudicial effect[;] and (2) the proponent 5 gives an adverse party reasonabl e written notice of the intent to use it so that the party 6 has a fair opportunity to contest its us e.” The State argues that under Rule 11- 7 609(B)(1), the 1989 felonyconviction was probative of the truthfulness of 8 Defendant’s statement and outweighed any potential prejudi ce. However, even if we 9 were to accept this more narrowly crafted argument as true, the State’s argument fails 10 to reasonably address the notice requirementof Rule 11-609(B)(2) or the implications 11 of Rule 11-404(B)(1) NMRA (excluding evidence of a defendant’s prior crimes “to 12 prove a person’s character in order to showthat on a particular occasion the person 13 acted in accordance with the character”). The State merely contends that it did not 14 comply with the reasonable notice requi rement because it believed the 1989 felony 15 conviction would be inadmissible. 16 {13} The State also argues that because it did not intentionally conceal the 1989 17 felony conviction from Defendant, this case is distinguishable from State v. Allison , 18 2000-NMSC-027, ¶ 11, 129 N.M. 566, 11 P.3d 141. In Allison , the prosecutor 1911 intentionally did not disclose to the defe ndant his arrest report, which included an 1 arrest for using a false name. Id. On appeal, our Supreme Court applied the factors 2 from Moraand, after concluding that all four were in the defendant’s favor, held that 3 reversal was required. Allison , 2000-NMSC-027, ¶¶ 1, 6. In consideration of the first 4 factor, our Supreme Court rej ected the state’s argument that in the context of Rule 5- 5 501(A), it was under no duty to report the arrest. Allison , 2000-NMSC-027, ¶ 8. Our 6 Supreme Court reasoned that the purpose of discovery in a criminal case is “to 7 ascertain the truth,” and the “articles regul ating discovery are intended to eliminate 8 unwarranted prejudice which could arise fro m surprise testimony [and] enable the 9 defendant to properly assess th e strength of the state’s case against him . . . in order 10 to prepare his . . . defense.” Id. ¶ 9 (internal quotation marks and citation omitted). In 11 Allison , our Supreme Court also rejected th e state’s argument that because the 12 defendant was aware of his arrest himself, this awareness relie ved it of a discovery 13 violation. See id. ¶ 13. Instead, “[t]he actions of th e prosecutor . . . are at issue, not 14 whether [the d]efendant knew or s hould have known of his own arrest.” Id. ¶ 14. 15 {14} We, therefore, find the State’s similar arguments in this case unpersuasive. It 16 would be nonsensical to allow the State to bypass the notice requirement of Rule 11- 17 609(B)(2) because of claims that it did not intend to use the conviction but did so as 18 a result of Defendant’s statements at trial. The State could have provided notice to 1912 Defendant and defense counsel as late as a side-bar conference during Defendant’s 1 testimony if it truly believed such an im peachment was necessary and supported by 2 our rules. Furthermore, it is clear from the State’s cross-examination of Defendant that 3 it intended to use the conviction to imp each Defendant on the 1989 felony conviction 4 if Defendant did not readily admit to it on direct examination, and our Supreme Court 5 has clearly rejected the use of such “surprise testimony.” Allison , 2000-NMSC-027, 6 ¶ 9 (internal quotation marks and citation omitted). 7 {15} The State breached its duty to disclo se the 1989 felony c onviction under Rules 8 5-501(A) and 5-505(A). See Allison , 2000-NMSC-027, ¶ 15 (“It is not the primary 9 duty of the district attorney to convict a de fendant. It is his or her primary duty to see 10 that the defendant has a fair trial, that justice is done.” (alteration, internal quotation 11 marks, and citation omitted)). Furthermore, although the evidence may have been 12 admissible pursuant to Rule 11-609(B), this did not override the notice requirement 13 of Rule 11-609(B)(2), the Rule 11-404(B) implications, the State’s subsequent duty 14 to disclose under our discoveryrules, or its intentional failures pursuant to the facts 15 in this case. 16 2. The Improperly Disclosed Evidence Admitted at Trial Was Material 17 {16} The second question is “whether the improperly non-disclosed evidence was 18 material[.]” Mora , 1997-NMSC-060, ¶ 43. “Whether ev idence is material depends on 1913 if there is a reasonable probability that, had the evidence been disclosed to the 1 defense, the result of the proceeding w ould have been different. A reasonable 2 probability is a probability sufficient to undermine confidence in the outcome.” 3 Allison , 2000-NMSC-027, ¶ 17. (internal quot ation marks and citation omitted). 4 {17} If Defendant’s 1989 felony convi ction had been disclosed there is a reasonable 5 probability that the result of the proceeding would have been different. The 1989 6 felony conviction was directly at odds with Defendant’s c ontention that he was merely 7 in possession of methamphetamine and wa s not selling it. Furthermore, defense 8 counsel argues, both in his brief in chief and in his motion for a new trial, that he 9 would have advised his client differently regarding testifyi ng had he been aware of the 10 conviction. Defendant also argues that th e information that Defendant had a prior 11 conviction for trafficking went to the very heart of the cas e. We conclude the evidence 12 was material. 13 3. The Improperly Disclosed Evidence Was Prejudicial to Defendant 14 {18} The third question is “whether the non- disclosure of the evidence prejudiced 15 [D]efendant[.]” Mora , 1997-NMSC-060, ¶ 43. On review, a defendant bears the 16 burden of proving he was prejudiced by non-disclosure of evidence. See State v. 17 Hernandez , 1993-NMSC-007, ¶ 63, 115 N.M. 6, 846 P.2d 312. Whether Defendant 18 was prejudiced by the disclosed evidence is critical to the question of whether the 1914 error requires reversal. The appellate courts have uphe ld convictions, even while 1 acknowledging evidentiary violati ons, if no prejudice was found. See Clark , 2 1986-NMCA-095, ¶¶ 40-41 (concluding that the defendant did not show prejudice and 3 thus affirming the district court’s denial of a mistrial). 4 {19} In Allison , the defendant was charged withnumerous crimes including “willful 5 and deliberate first degree murder, aggravatedbattery, aggravated assault, conspiracy, 6 and tampering with evidence.” 2000-NMSC -027, ¶ 1. The prosecutor failed to 7 disclose “an [unrelated] arrest report . . . for using a false name during in a traffic 8 stop.” Id. ¶ 6. In its analysis of whether the non-disclosure was prejudicial to the 9 defendant, our Supreme Court agreed with the defendant’s argument because “defense 10 counsel was attempting to portray [the d] efendant as an individual without any 11 criminal record, and had counsel been aware of [the d]efendant’s arrest, he may have 12 altered his strategy.” Id. ¶ 18. Our Supreme Court conc luded that the failure to 13 disclose the arrest was prejudicial and reasoned that “the prosecutor was using the 14 undisclosed evidence not merely to counter [the d]efendant’s testimony regarding 15 other arrests, but instead as a specific instance of conduct to demonstrate 16 untruthfulness[.]” Id. ¶ 19. 17 {20} The State, in this case, ha s readily admitted that its intent in raising Defendant’s 18 prior conviction on cross-examination was to demonstrate the untruthfulness of his 1915 answer. The State’s comments in closing were also to that point, “[L]et’s look at his 1 credibility. First he admitted that he had b een convicted of a felony in 2005[.] Then 2 he tells us, well that’s the only conviction I’ve ever had, and we soon find out that’s 3 not accurate.” If our Supreme Court found prejudice to the defendant in Allisonupon 4 the revelation of an unrelated arrest, it is evident that Defendant was prejudiced in this 5 case, where the prior undisclosed conviction wa s revealed to be for the same offense 6 for which Defendant was charged—traffi cking. Additionally, by identifying the 7 specific crime of “trafficking,” it appears th at the prosecutor was not merely using the 8 nature of the 1989 felony conviction to prove the untruthfulness of Defendant’s 9 statement, but also to show propensity. See State v. Rowell , 1966-NMSC-231, ¶¶ 1, 10 5, 13, 77 N.M. 124, 419 P.2d 966 (reversing th e defendant’s conviction for forgery 11 on the grounds that the prosecutor inten tionally asked the witness about the 12 defendant’s prior conviction for forgery as a means “to prejudice the minds of the 13 triers [of fact] against the [defendant] and to predispose them to a belief in his guilt” 14 (internal quotation marks and citation omitted)). 15 {21} Furthermore, Defendant argues that had the 1989 felony conviction been 16 properly disclosed, defense counsel would have altered his trial strategy or had an 17 opportunity to advise his client differentlyregarding Defendant’s decision to testify 18 on his own behalf. The State counters that Defendant would have been compelled to 1916 testify whether the 1989 felony conviction was disclosed or not, because of the 1 statement he made to Officer Roberts admitting that he sold methamphetamine. 2 However, it is merely speculation to try and determine what woul d have been defense 3 counsel’s trial strategy at this juncture. We can only hold th at it was in the interest of 4 justice that Defendant have a complete picture of the State’s case in order to 5 adequately prepare for trial, and that the St ate’s failure to disclo se the evidence prior 6 to raising it on cross-examination prejudiced Defendant. See Allison , 7 2000-NMSC-027, ¶ 18 (“[T]he discovery rules were designed to prevent-surprise and 8 deception [and] seek to foster informed pleas, expedited trials, a minimum of surprise, 9 and the opportunity for effective cross-ex amination.” (internal quotation marks and 10 citation omitted)). 11 4. The District Court’s Instruction toDisregard Was Insufficient to Cure the 12 Prejudice to Defendant 13 {22} The final question is “whether the [district] court cured the failure to timely 14 disclose the evidence.” Mora , 1997-NMSC-060, ¶ 43. “In determining prejudice to 15 a defendant where the state initially deprives [the] defendant of the evidence but later 16 produces the evidence, the reviewing court should consider whether the failure to 17 timely disclose the evidence was cured by the [district] court.” Allison , 18 2000-NMSC-027, ¶ 20 (internal quotation marks and citation omitted). 19 {23} This Court has addressed similar cases where the defendant’s prior criminal 2017 record was introduced improperly through w itness testimony. To determine whether 1 the error was cured by the district court’ s admonition, our Supreme Court instructs 2 that it “is a question that must be decide d according to the particular facts of each 3 case.” State v. Saavedra , 1985-NMSC-077, ¶ 13, 103 N.M. 282, 705 P.2d 1133, 4 abrogated on other grounds by State v. Belanger , 2009-NMSC-025, ¶ 36 n.1, 146 5 N.M. 357, 210 P.3d 783. An admonition will be d eemed sufficient to cure if “evidence 6 of [the] defendant’s guilt [is] so overwhe lmingly persuasive that under no reasonable 7 probability could the inadmissible evidence have induced the jury’s finding of guilt.” 8 Id. (alteration, internal quotation marks, and citation omitted). We note that the 9 curative instruction given in this case wa s requested by Defendant, but we understand 10 Defendant’s argument to be that regardless of form, any instruction would have been 11 insufficient to cure. 12 {24} We agree. The district court’s instructi on to the jury was insufficient to cure. 13 We are not persuaded that evidence of Defendant’s guilt was so overwhelmingly 14 persuasive that the admittance of Defendant’s 1989 felony conviction for trafficking, 15 the same type of crime for which he was on trial, would not have induced the jury’s 16 verdict. Furthermore, the State’s reference to Defendant’s 1989 felony conviction in 17 closing further weighed into the jury’s c onsideration of Defendant’s credibility as a 18 witness, undermining Defendant ’s trial testimony that he was merely in possession of 1918 methamphetamine and not trafficking. Under such highly prejudicial circumstances, 1 we agree with Defendant thatit was not possible to “un -ring [the] bell.” Once the jury 2 was told that Defendant had a prior convi ction for trafficking, any instruction to 3 disregard was realistically ineffective. See Saavedra , 1985-NMSC-077, ¶¶ 8, 14 4 (concluding that the district court abusedits discretion in denying the defendant’s 5 motion for a mistrial on the admission of evidence of the defendant’s prior 6 incarceration through a witness). 7 {25} Furthermore, we note that, unlike similar cases where a defendant’s prior crimes 8 were improperly admitte d at trial through the inadvertent testimony of a witness, the 9 State’s intentions with regard to usi ng the 1989 felony convicti on were not accidental 10 in this case. Therefore, this case is more aligned with others involving an intentional 11 solicitation of improper evidence, a circum stance that this Court has viewed with 12 strong disfavor. See State v. Simonson , 1983-NMSC-075, ¶¶ 19-20, 100 N.M. 297, 13 669 P.2d 1092 (distinguishing cases where th e appellate courts reversed the 14 defendant’s convictions in wh ich a prosecutor deliberately asks a question in order to 15 elicit improper evidence). 16 {26} Defendant has satisfied all four of the Mora factors for determining whether the 17 State’s late disclosure of the 1989 felony conviction was reversib le error. We have 18 also determined that such failure was not acci dental and the district court’s instruction 1919 to the jury was insufficient to cure in this case when balanced against the severe 1 prejudice to Defendant’s case. See Allison, 2000-NMSC-027, ¶ 23. As a result, we 2 hold that the district court’s denial of De fendant’s motion for a new trial was against 3 the logic and effect of the facts and circumst ances in the case and, therefore, an abuse 4 of discretion. See Guerra , 2012-NMSC-027, ¶ 18 (“We cannot say the [the district] 5 court abused its discretion by its ruling unle ss we can characterize the ruling as clearly 6 untenable or not justified by reason.” (alteration, internal quotati on marks, and citation 7 omitted)). 8 CONCLUSION 9 {27} For the foregoing reasons, Defendant’s c onviction is revers ed and remanded to 10 the district court for a new trial. 11 {28} IT IS SO ORDERED. 12

__________________________________ 13 TIMOTHY L. GARCIA, Judge 14 WE CONCUR: 15

___________________________________ 16 JAMES J. WECHSLER, Judge 17

___________________________________ 18 M. MONICA ZAMORA, Judge 19