1

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-015

Filing Date: March 25, 2013

Docket No. 32,915

STATE OF NEW MEXICO,

Plaintiff-Petitioner and Cross-Respondent

v.

GREG COLLIER,

Defendant-Respondent and Cross-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI

Fernando R. Macias, District Judge

Gary K. King, Attorney General

Joel Jacobsen, Assistant Attorney General

Santa Fe, NM

for Petitioner and Cross-Respondent

Caren Ilene Friedman

Santa Fe, NM

The Pickett Law Firm, L.L.C.

Lawrence M. Pickett

Las Cruces, NM

for Respondent and Cross-Petitioner

Albright Law and Consulting

Jennifer Rebecca Albright

Albuquerque, NM

Jones, Snead, Wertheim & Wentworth, P.A.

Jerry Todd Wertheim

Santa Fe, NM
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Barbara E. Bergman

Albuquerque, NM

Trace L. Rabern, Attorney and Counselor at Law, L.L.C.

Trace L. Rabern

Santa Fe, NM

for Amicus Curiae New Mexico Criminal Defense Lawyers Association

OPINION

MAES, Chief Justice.

{1} Greg Collier (Defendant) was indicted in August 2006 for extreme cruelty to animals,

a fourth-degree felony, after a horse that Defendant had been training died shortly after a

training session. A jury acquitted Defendant of felony extreme cruelty to animals but was

unable to reach a unanimous verdict on the lesser included offense of misdemeanor cruelty

to animals, on which the district court, at the State’s request, instructed the jury without

objection from Defendant. The issue on appeal is whether the State can retry Defendant for

the lesser offense, which was not explicitly charged in the indictment, without running afoul

of the double jeopardy clause of the Fifth Amendment to the United States Constitution. We

hold that the State can retry Defendant for the lesser included offense because retrial after

a mistrial caused by jury deadlock does not violate the constitutional prohibition on double

jeopardy.

{2} In the cross-appeal, we consider whether retrial on the lesser included offense is

barred by the period set by the two-year statute of limitations for that crime. The State

indicted Defendant for felony extreme cruelty to animals less than seven months after the

horse’s death, but the district court did not instruct the jury on misdemeanor cruelty to

animals until after the statute of limitations period for that offense had run. We hold that the

statute of limitations was satisfied because our statutes of limitations prescribe time limits

within which the State must commence a prosecution by filing the initial charging document

in a case, not time limits within which a defendant must be brought to trial. The statute of

limitations does not bar retrial on the lesser included offense.

{3} Additionally, Defendant asks this Court to consider the merits of his speedy trial

claim, on which the district court has not ruled. We decline to consider Defendant’s speedy

trial claim in the first instance and remand Defendant’s case to the district court.

BACKGROUND

{4} The State alleges that on February 13, 2006, Defendant injured a horse he was

training, causing the horse’s death. On August 31, 2006, a grand jury returned an indictment

charging Defendant with one count of extreme cruelty to animals, a fourth degree felony,
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under NMSA 1978, Section 30-18-1(E) (2001) (amended 2007).

{5} The State has tried Defendant twice under the indictment. The records of

Defendant’s previous trials are not in the appellate record before this Court. At Defendant’s

first trial, held in March 2008, the jury failed to reach a verdict on the felony offense, and

thus the district court declared a mistrial based on manifest necessity due to jury deadlock.

{6} At the second trial in January 2009, the State again tried Defendant on the felony

extreme cruelty charge but this time requested a jury instruction on the lesser included

offense of cruelty to animals. See § 30-18-1(B)(1) & (D). Defendant did not object to the

lesser included offense instruction, and the district court instructed the jury on both offenses.

The district court gave the jury the following standard step-down instruction: “If you should

have a reasonable doubt as to whether the defendant committed the crime of extreme cruelty

to animals, you must proceed to determine whether the defendant committed the included

offense of cruelty to animals.” UJI 14-6002 NMRA. The jury found Defendant not guilty

of the felony charge but failed to reach a unanimous decision on the misdemeanor offense.

The district court entered a judgment of acquittal on the felony charge and declared a mistrial

based on manifest necessity due to jury deadlock on the misdemeanor charge.

{7} Following the second trial, the district court set Defendant’s case for retrial under the

original indictment on the lesser included misdemeanor offense of cruelty to animals. One

week prior to commencement of the third trial, which was scheduled to begin July 22, 2009,

Defendant moved the district court to dismiss his case. Defendant argued that any one of

three grounds warranted dismissal: (1) the double jeopardy clause of the Fifth Amendment

to the United States Constitution, (2) New Mexico’s two-year statute of limitations for the

misdemeanor cruelty to animals offense, or (3) Defendant’s right to speedy trial. The district

court granted Defendant’s motion to dismiss because the State did not explicitly charge

Defendant with misdemeanor cruelty to animals within the two-year statute of limitations

period for that crime.

{8} The State appealed to the Court of Appeals. See State v. Collier, No. 29,805, mem.

op. (N.M. Ct. App. Jan. 10, 2011). The Court of Appeals held “that cruelty to animals is a

lesser included offense of extreme cruelty to animals and that the statute of limitations did

not bar trial on the misdemeanor charge.” Id. at 2. But the Court of Appeals affirmed the

district court’s dismissal of the case because “subsequent prosecution of the Defendant on

the misdemeanor charge following his acquittal on the felony charge would violate the

constitutional guarantee against double jeopardy.” Id.

{9} The State filed a petition for writ of certiorari, arguing that principles of double

jeopardy do not preclude the State from retrying Defendant on the lesser included offense

because the jury hung on that charge, causing the district court to declare a mistrial.

Defendant filed a cross-petition for writ of certiorari, arguing that a third trial on the

misdemeanor charge would violate both the statute of limitations and his right to a speedy

trial. We granted certiorari on both petitions.
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DISCUSSION

The State may retry Defendant for the misdemeanor offense without violating

Defendant’s double jeopardy rights

{10} Defendant asks us to uphold the Court of Appeals’ conclusion that retrial on the

lesser included offense would violate Defendant’s double jeopardy rights. Defendant relies

only on the double jeopardy clause in the federal constitution and does not argue that the

New Mexico Constitution affords him greater protection. See N.M. Const. art. II, § 15.

Accordingly, we limit our discussion to the federal constitution and review Defendant’s

double jeopardy claim de novo. See State v. Gallegos, 2011-NMSC-027, ¶ 51, 149 N.M.

704, 254 P.3d 655 (providing that double jeopardy claims present questions of constitutional

law that we review de novo).

{11} The Fifth Amendment to the United States Constitution guarantees that no person

shall be “twice put in jeopardy” for the same offense. U.S. Const. amend. V. The “Double

Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth

Amendment.” Benton v. Maryland, 395 U.S. 784, 787 (1969). The double jeopardy clause

protects a criminal defendant against (1) “a second prosecution for the same offense after

acquittal,” (2) “a second prosecution for the same offense after conviction,” and (3)

“multiple punishments for the same offense.” Gallegos, 2011-NMSC-027, ¶ 30 (explaining

that both the state and federal constitutions provide these three levels of protection).

{12} Defendant asserts that retrial in this case would constitute a second prosecution for

the same offense after acquittal. In response, the State relies on State v. Desnoyers, arguing

that “double jeopardy principles are not implicated” when the State retries a defendant

“following a mistrial in which the jury could not reach a verdict on a particular count.”

2002-NMSC-031, ¶ 33, 132 N.M. 756, 55 P.3d 968 (internal quotation marks and citation

omitted), abrogated on other grounds as noted by State v. Forbes, 2005-NMSC-027, ¶ 6,

138 N.M. 264, 119 P.3d 144; see also State v. O’Kelley, 113 N.M. 25, 27, 822 P.2d 122, 124

(Ct. App. 1991) (citing New Mexico case law that relies on federal precedent and stating that

it “is well established under New Mexico case law that a retrial after a mistrial caused by a

hung jury does not violate the constitutional prohibition on double jeopardy”). We agree

that the State may retry Defendant for misdemeanor cruelty to animals without implicating

Defendant’s double jeopardy rights.

{13} A criminal defendant’s double jeopardy right to be free from a second prosecution

for an offense does not arise until jeopardy has attached and then terminates for that offense.

See Richardson v. United States, 468 U.S. 317, 325 (1984). In other words, two

prerequisites for a meritorious successive-prosecution double jeopardy claim are (1) the

attachment of jeopardy and (2) the termination of jeopardy. In a jury trial, jeopardy attaches

“when the jury is sworn” to try the case. State v. Saavedra, 108 N.M. 38, 41, 766 P.2d 298,

301 (1998). Jeopardy is terminated by the entry of a final judgment, usually a conviction or

an acquittal. See Richardson, 468 U.S. at 325 (explaining that the protection against double
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jeopardy “applies only if there has been some event, such as an acquittal, which terminates

the original jeopardy”); see also Illinois v. Somerville, 410 U.S. 458, 467 (1973) (explaining

that “the conclusion that jeopardy has attached begins, rather than ends,” the double jeopardy

inquiry).

{14} Unlike a conviction or an acquittal, “a trial court’s declaration of a mistrial following

a hung jury is not an event that terminates the original jeopardy to which [the defendant] was

subjected.” Richardson, 468 U.S. at 326. Rather, retrial following a hung jury “is

considered a continuation of the first [trial], and the defendant is thus placed in jeopardy only

once.” Desnoyers, 2002-NMSC-031, ¶ 33 (internal quotation marks and citation omitted).

The United States Supreme Court has followed this rule for over one hundred and eighty

years. See United States v. Perez, 22 U.S. 579, 579-80 (1824) (holding that if the jury is

unable to agree on a verdict and the trial court discharges the jury for “manifest necessity,”

double jeopardy does not bar retrial of the defendant for the “same offence”). Likewise,

New Mexico courts have long held that a retrial following a mistrial declared for manifest

necessity does not implicate the double jeopardy clause. See State v. Martinez, 120 N.M.

677, 678, 822 P.2d 715, 716 (1995); see also O’Kelley, 113 N.M. at 27-28, 822 P.2d at 124-

25 (citing cases). “This rule accords recognition to society’s interest in giving the

prosecution one complete opportunity to convict those who have violated its laws.”

O’Kelley, 113 N.M. at 28, 822 P.2d at 125 (internal quotation marks and citation omitted).

{15} Applying these principles to this case, we conclude that jeopardy attached to the

felony offense, extreme cruelty to animals, at Defendant’s first trial. Jeopardy on the felony

offense did not terminate at the end of the first trial because the district court declared a

mistrial for manifest necessity due to jury deadlock. Thus, jeopardy continued on the felony

offense during Defendant’s second trial, when it also attached to the lesser included

misdemeanor offense via the jury instruction on that offense. The district court’s final

judgment of acquittal on the felony offense at the end of the second trial terminated jeopardy

for the felony offense. But Defendant remains in continuing jeopardy for the misdemeanor

offense because the jury was unable to reach a verdict on that offense. Accordingly, we

conclude that the State may retry Defendant for the lesser included offense of misdemeanor

cruelty to animals without violating Defendant’s double jeopardy rights.

{16} Defendant’s arguments to the contrary do not change our conclusion. Defendant

acknowledges the rule of continuing jeopardy discussed above but insists that principles of

continuing jeopardy should not apply in this case because (1) retrial is barred under Brown

v. Ohio, 432 U.S. 161 (1997); (2) Defendant has been acquitted of the only offense explicitly

charged in the indictment, and the State seeks to retry Defendant for the same alleged

conduct; (3) the issue preclusion aspect of double jeopardy bars retrial; and (4) it would be

unfair to allow retrial under the circumstances of this case.

{17} Relying on Brown, 432 U.S. 161, Defendant argues that the State cannot retry him

for misdemeanor cruelty to animals because he has been acquitted of—what is for double

jeopardy purposes—the “same offense.” In Brown, the United States Supreme Court
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addressed whether the Fifth Amendment precluded Ohio from prosecuting the defendant for

automobile theft after the defendant already had been prosecuted and punished—based on

the same conduct—for the lesser included offense of joyriding. Id. at 162-63. The Supreme

Court concluded that automobile theft and joyriding were the same offense under Ohio law

for double jeopardy purposes and held that the defendant could not be subject to prosecution

for the greater offense after he had been convicted of and punished for the lesser included

offense. Id. at 167-69.

{18} Defendant argues that misdemeanor cruelty to animals is a lesser included offense

of felony extreme cruelty to animals and that, as in Brown, the State is precluded from

bringing successive prosecutions for the greater and lesser included offenses because they

constitute the same offense for purposes of our double jeopardy analysis. But unlike Brown,

where the defendant’s initial misdemeanor charge resulted in a conviction prior to the second

prosecution, the jury in this case never reached a verdict on the misdemeanor charge, and

thus no multiple indictments or successive prosecutions ever occurred. See id. at 165 n.5

(noting that the Supreme Court was “not concerned . . . with the double jeopardy questions

that may arise when a defendant is retried on the same charge after a mistrial”). Principles

of double jeopardy do not prohibit the State from trying a defendant for greater and lesser

included offenses in a single prosecution, as occurred in this case. See Martinez, 120 N.M.

at 678, 905 P.2d at 716 (explaining that Brown does not apply where multiple charges are

prosecuted simultaneously). Thus, Brown is inapplicable.

{19} Defendant also contends that the State cannot retry him for the uncharged, lesser

included misdemeanor offense because a jury acquitted him of the sole offense explicitly

charged in the indictment. Defendant’s position fails to recognize the significance of Rule

5-611(D) NMRA, which provides that “[i]f so instructed, the jury may find the defendant

guilty of an offense necessarily included in the offense charged,” i.e., a lesser included

offense. Id.; see State v. Meadors, 121 N.M. 38, 41 n.2, 908 P.2d 731, 734 n.2 (1995)

(noting that the terms “lesser-included” and “necessarily-included” are interchangeable in

the context of Rule 5-611(D)). The principle embodied in Rule 5-611, “that a defendant,

charged with a greater offense, can be convicted of an uncharged lesser included offense, has

been adopted by virtually every jurisdiction in the United States which has passed upon the

issue.” Hagans v. State, 559 A.2d 792, 800-01 & nn.5-6 (Md. 1989) (citing numerous

authorities, including judicial decisions, statutes from twenty-nine jurisdictions, and

procedural rules from six jurisdictions).

{20} For example, in United States v. Gooday, 714 F.2d 80 (9th Cir. 1983), cert. denied,

468 U.S. 1217 (1984), the Ninth Circuit Court of Appeals rejected the defendant’s argument

that retrial on an uncharged, lesser included offense would violate the defendant’s double

jeopardy rights. The defendant in Gooday “was tried under a one-count indictment for firstdegree murder.” Id. at 81. At the defendant’s request, the trial court instructed the jury “on

the lesser included offenses of second-degree murder, voluntary manslaughter, and

involuntary manslaughter.” Id. The jury acquitted the defendant of first-degree murder, the

only offense expressly charged in the indictment, but failed to reach a verdict on the three
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lesser included offenses. Id. On appeal, the defendant argued that retrial on the lesser

included offenses would violate his double jeopardy rights because the jury had acquitted

him of the sole count in the indictment. Id. at 81-82.

{21} The Ninth Circuit rejected the defendant’s argument, relying in part on the Federal

Rules of Criminal Procedure under which a “defendant may be found guilty of any lesser

offense necessarily included in the offense charged.” Id. at 82 (citing Fed. R. Crim. P.

31(c)(1)). In light of this rule, the Ninth Circuit concluded that in cases where the trial court

has instructed the jury on lesser included offenses, the “lesser included offenses should be

treated as if they had been specified in separate counts of the indictment.” Id. at 83.

Alternatively, if the trial court has not instructed the jury on any lesser included offenses,

“the jury’s verdict [must be] limited to whether the defendant committed the crime explicitly

charged in the indictment. In such cases, an acquittal on the crime explicitly charged

necessarily implies an acquittal on all lesser offenses included within that charge.” Id. at 82

(citing In re Nielsen, 131 U.S. 176, 189-90 (1889)). The Ninth Circuit held that the

“acquittal on the indictment’s first-degree murder count [did] not preclude retrial on the

three lesser included offenses on which the jury was instructed.” Id. at 83.

{22} Like the Federal Rules of Criminal Procedure, our Rule 5-611(D) provides a

mechanism through which a defendant can be retried for an uncharged, lesser included

offense following a hung jury on that offense without violating double jeopardy. If a district

court properly instructs a jury on a lesser included offense, then that offense should be

treated as if the State had explicitly included it in the charging document. In this case, the

district court instructed the jury on both the charged felony offense, extreme cruelty to

animals, and the lesser included misdemeanor offense, cruelty to animals, without any

objection from Defendant. Accordingly, we treat the misdemeanor offense as if it had

explicitly been included in the indictment, and we conclude that acquittal on the felony

offense does not raise a double jeopardy bar to retrial on the misdemeanor offense following

a hung jury.

{23} Defendant also argues that double jeopardy bars his retrial as a matter of issue

preclusion because the jury already determined an issue of ultimate fact—that he did not

cruelly abuse an animal—by acquitting Defendant of the felony charge. We disagree.

{24} Issue preclusion in the double jeopardy context “means simply that when an issue

of ultimate fact has once been determined by a valid and final judgment, that issue cannot

again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397

U.S. 436, 443 (1970) (applied by this Court in Rodriguez, 2005-NMSC-091, ¶ 15, 138 N.M.

21, 116 P.3d 92). Thus, we must determine whether Defendant’s acquittal of felony extreme

cruelty to animals necessarily decided all of the issues of ultimate fact that the State would

have to prove in a retrial on the misdemeanor offense.

{25} With regard to the felony offense, the district court instructed the jury that in order

“to find the defendant guilty of extreme cruelty to animals, the state must prove . . . beyond
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a reasonable doubt” that the “defendant intentionally or maliciously tortured, mutilated or

injured a horse.” We recognize that by acquitting Defendant of the felony offense the jury

likely concluded that the State failed to prove one or more elements of the crime beyond a

reasonable doubt. On the record before us, however, we cannot determine with any degree

of certainty which issues of ultimate fact the jury actually determined. For example, the jury

may have concluded that the prosecution failed to prove that Defendant acted with the mens

rea required for the felony offense, “intentionally or maliciously.” Section 30-18-1(E). But

whether Defendant acted maliciously or intentionally would be irrelevant in a third trial for

misdemeanor cruelty to animals, in which the State would have to prove that Defendant

acted with a different mens rea, criminal negligence. See § 30-18-1(B)(1) (defining cruelty

to animals as “negligently mistreating, injuring, killing without lawful justification or

tormenting an animal”); see also Santillanes v. State, 115 N.M. 215, 222, 849 P.2d 358, 365

(1993) (presuming that the word “negligence” in a criminal statute means criminal as

opposed to civil negligence, absent a contrary indication from the Legislature); UJI 14-133

NMRA (defining criminal negligence). We conclude that the issue preclusion aspect of

double jeopardy does not impede the State from retrying Defendant for misdemeanor cruelty

to animals.

{26} Finally, Defendant argues that, as a matter of fairness in its review of his double

jeopardy claim, this Court should consider federal due process considerations, even though

Defendant concedes he makes this argument without support. The State contends that this

Court should not address Defendant’s due process argument because, as an argument not

raised in either the State’s petition or Defendant’s cross-petition for writ of certiorari, it is

not properly before this Court. We agree with the State that “it is improper for this Court

to consider any questions except those set forth in the petition[s] for certiorari.” Fikes v.

Furst, 2003-NMSC-033, ¶ 8, 134 N.M. 602, 81 P.3d 545 (citing Rule 12-502(C)(2) NMRA).

Moreover, Defendant does not appear to have preserved his due process argument. See Rule

12-216(A) NMRA (“To preserve a question for review it must appear that a ruling or

decision by the district court was fairly invoked[.]”). We conclude that Defendant’s due

process argument is not properly before the Court, and we decline to address it.

{27} Finding none of Defendant’s arguments persuasive, we hold that the State may retry

Defendant for misdemeanor cruelty to animals without violating the double jeopardy clause

of the Fifth Amendment to the United States Constitution.

The State indicted Defendant within the statute of limitations period for misdemeanor

cruelty to animals 

{28} The district court dismissed Defendant’s case because the State did not charge

Defendant with misdemeanor cruelty to animals within the statute of limitations period for

that offense. In his cross-petition for writ of certiorari, Defendant asks this Court to uphold

the district court’s ruling.

{29} The parties do not dispute the facts relevant to the statute of limitations in this case.
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“When facts relevant to a statute of limitations issue are not in dispute,” the Court reviews

de novo “whether the district court correctly applied the law to the undisputed facts.” State

v. Kerby, 2007-NMSC-014, ¶ 11, 141 N.M. 413, 156 P.3d 704 (internal quotation marks and

citation omitted).

{30} The parties agree that the Legislature established the relevant statute of limitations

in NMSA 1978, Section 30-1-8 (2005) (amended 2009). Under Section 30-1-8(C), the State

cannot prosecute a person for a misdemeanor offense, such as misdemeanor cruelty to

animals, “unless the indictment is found or information or complaint is filed . . . within two

years from the time the crime was committed.” For a fourth degree felony, such as extreme

cruelty to animals, the State cannot prosecute a person “unless the indictment is found or

information or complaint is filed . . . within five years from the time the crime was

committed.” Section 30-1-8(B).

{31} The State argues that it filed the indictment within the limitations period for both

felony extreme cruelty to animals and misdemeanor cruelty to animals, satisfying the

requirements of Section 30-1-8 for both offenses. We agree. Section 30-1-8 specifies the

time period within which the State must commence a prosecution by filing the initial

charging document in a case, either a complaint, an information, or an indictment. See id.;

see also Rule 5-201(A) NMRA. In this case, the State alleges that Defendant’s conduct

caused the horse’s death on or about February 13, 2006. A grand jury returned the

indictment on August 31, 2006, charging Defendant with extreme cruelty to animals in

violation of Section 30-18-1(E). We conclude that the State commenced the prosecution

within seven months of the alleged crime, well before the statute of limitations period ran

for either felony extreme cruelty to animals or misdemeanor cruelty to animals.

{32} Despite this straightforward application of Section 30-1-8 to the undisputed facts,

Defendant asks us to affirm the district court’s dismissal of his case because the State did

not request a lesser included offense instruction until his second trial in January 2009, well

after the two-year statute of limitations periods had run for the misdemeanor offense. In

Defendant’s view, if an indictment includes an uncharged lesser included offense, a

conviction for that lesser included offense is time barred unless the trial court instructs the

jury on that lesser included offense within the limitations period for that offense.

{33} Adopting Defendant’s approach would ignore the purpose of a criminal statute of

limitations, which is to ensure the timely initiation of a prosecution. See § 30-1-8; cf. Kerby,

2007-NMSC-014, ¶ 13 (explaining that the purpose of a criminal statute of limitations “is

to limit exposure to criminal prosecution to a certain fixed period of time following the

occurrence of those acts the legislature has decided to punish by criminal sanctions” (internal

quotation marks and citations omitted)). In addressing Defendant’s statute of limitations

argument, our inquiry is limited to the timeliness of the charging document itself, not the

timeliness of trial.

{34} Defendant’s argument conflates the statute of limitations issue with the separate issue
10

of whether the district court erred by instructing the jury on misdemeanor cruelty to animals

as a lesser included offense. See Meadors, 121 N.M. at 41-44, 908 P.2d at 734-37

(explaining the “cognate approach” that a district court should use in determining whether

to grant the State’s request for a lesser included offense instruction). Defendant did not

object at trial to the district court’s jury instruction on misdemeanor cruelty to animals, and

Defendant does not challenge the jury instructions on appeal. Cf. State v. Boeglin, 105 N.M.

247, 250, 731 P.2d 943, 946 (1987) (explaining that where a defendant fails to preserve an

objection to jury instructions at trial, the Court may still grant relief in cases of fundamental

error). Because Defendant does not challenge the jury instructions that the district court

gave the jury, we assume without deciding that the district court did not err by instructing

the jury on misdemeanor cruelty to animals as a lesser included offense of felony extreme

cruelty to animals. See Rule 5-611(D).

{35} Defendant also contends he lacked notice that he would be required to mount a

defense to misdemeanor cruelty to animals because he was not originally charged with the

lesser included offense. We agree that “[p]rocedural due process under the Fourteenth

Amendment to the United States Constitution requires the State to provide reasonable notice

of charges against a person and a fair opportunity to defend.” State v. Dominguez, 2008-

NMCA-029, ¶ 5, 143 N.M. 549, 178 P.3d 834 (internal quotation marks and citation

omitted). But we disagree that Defendant was entitled to any additional notice. This Court

has long recognized that notice of a criminal charge necessarily includes notice of any lesser

included offenses. See Meadors, 121 N.M. at 44-45, 908 P.2d at 737-38 (explaining that the

“instrument” charging a defendant with a greater offense gives the defendant adequate notice

of potential lesser included offenses even though lesser included offense instructions are not

given until the district court has seen the “the evidence adduced at trial”); Rule 5-611(D)

(providing that a defendant may be convicted of a lesser included offense and differentiating

between “the offense charged” and “an offense necessarily included”); see also Gooday, 714

F.2d at 82 (explaining that an indictment gives the defendant notice of the charges against

which the defendant may have to defend, including the explicit charges and any offenses

necessarily included in those charges).

{36} Finally, in support of his statute of limitations argument Defendant cites a law review

article and several cases from other jurisdictions addressing how a court should handle lesser

included offenses when the government has filed the initial charging document within the

limitations period for the explicitly charged offense but after the period has run on lesser

included offenses. See Spaziano v. Florida, 468 U.S. 447, 450 (1984); Cowan v. Superior

Court, 926 P.2d 438, 439 (Cal. 1996); Tucker v. State, 417 So. 2d 1006, 1009 (Fla. Dist. Ct.

App. 1982); State v. Delisle, 648 A.2d 632, 634 (Vt. 1994); State v. Muentner, 406 N.W.2d

415, 417 (Wis. 1987); Alan L. Adlestein, Conflict of the Criminal Statute of Limitations with

Lesser Offenses at Trial, 37 Wm. & Mary L. Rev. 199, 200-03 (1995). We conclude that

such authorities are not relevant here because in this case the State filed an indictment on the

felony, which necessarily included the lesser included misdemeanor offense, within the

limitations period for both the charged felony offense and the lesser included misdemeanor

offense.
11

{37} A timely filed charging document stops the statute of limitations clock from running

on any explicitly charged offenses and any lesser included offenses upon which the district

court properly instructs the jury at trial. We hold that the statute of limitations does not bar

a third trial on misdemeanor cruelty to animals because the State commenced the prosecution

by timely filing the indictment within the two-year statute of limitations period for that

offense.

The Court will not consider Defendant’s speedy trial claim because the district court

has not ruled on that claim

{38} Defendant argues that, even if we reject his double jeopardy and statute of limitations

claims, we should affirm the district court’s dismissal of his case because the State violated

his constitutional right to speedy trial. See U.S. Const. amend. VI (guaranteeing criminal

defendants “the right to a speedy and public trial, by an impartial jury”); N.M. Const. art. II,

§ 14 (“In all criminal prosecutions, the accused shall have the right to . . . a speedy public

trial by an impartial jury.”).

{39} New Mexico courts evaluate speedy trial claims using the framework of Barker v.

Wingo, 407 U.S. 514, 530-32 (1972), to balance “the following four factors: (1) the length

of the delay, (2) the reasons given for the delay, (3) the defendant’s assertion of the right to

a speedy trial, and (4) prejudice to the defendant.” State v. Urban, 2004-NMSC-007, ¶ 11,

135 N.M. 279, 87 P.3d 1061. In order to rule on a speedy trial motion the district court must

first “make certain factual determinations and legal conclusions.” State v. Spearman, 2012-

NMSC-023, ¶ 19, 283 P.3d 272 (internal quotation marks and citation omitted). On appeal,

“we give deference to the [district] court’s factual findings, but we review the weighing and

the balancing [of] the Barker factors de novo.” Id. (alterations in original) (internal

quotation marks and citations omitted).

{40} The State contends that it would be inappropriate for this Court to consider the merits

of Defendant’s speedy trial claim in the absence of any factual findings from the district

court. Defendant filed two speedy trial motions in the district court, one on January 15,

2009, and one on July 15, 2009. But the parties do not cite, and this Court has not found,

any portion of the record demonstrating that the district court ever held an evidentiary

hearing or ruled on the motions. Instead, the parties agree on appeal that the district court

never issued a ruling on either of Defendant’s speedy trial motions. Nonetheless, Defendant

asserts that this Court is in as good a position as the district court to analyze whether a third

trial would violate Defendant’s right to a speedy trial because this Court reviews speedy trial

issues de novo.

{41} We disagree with Defendant and decline to consider his speedy trial claim absent a

ruling by the district court. Ruling on a speedy trial motion requires a court to weigh

factually based factors, and “[f]act-finding is a function of the district court.” State v. Rojo,

1999-NMSC-001, ¶ 52, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation

omitted). If a defendant does not raise a constitutional speedy trial issue before the district
12

court, there is nothing for an appellate court to review. Id. ¶ 51 (citing State v. Valdez, 109

N.M. 759, 763, 790 P.2d 1040, 1044 (Ct. App. 1990)); see also State v. Lopez, 2008-NMCA002, ¶ 25, 143 N.M. 274, 175 P.3d 942 (“It is well-settled law that in order to preserve a

speedy trial argument, Defendant must properly raise it in the lower court and invoke a

ruling.”). If Defendant reasserts his speedy trial claim on remand, the district court should

evaluate that claim under the four Barker factors. See Barker, 407 U.S. at 530-32.

CONCLUSION

{42} We conclude that the district court erred by dismissing Defendant’s case and hold

that retrial on misdemeanor cruelty to animals is not barred by the two-year period set by the

statute of limitations for that offense. We reverse the Court of Appeals and hold that the

State can retry Defendant for misdemeanor cruelty to animals without violating the double

jeopardy clause of the Fifth Amendment to the United States Constitution. We remand to

the district court for further proceedings consistent with this Opinion.

{43} IT IS SO ORDERED.

____________________________________

PETRA JIMENEZ MAES, Chief Justice

WE CONCUR:

____________________________________

RICHARD C. BOSSON, Justice

____________________________________

EDWARD L. CHÁVEZ, Justice

____________________________________

CHARLES W. DANIELS, Justice

____________________________________

BARBARA J. VIGIL, Justice

Topic Index for State v. Collier, No. 32,915

CRIMINAL LAW

Cruelty to Animals

Misdemeanor

CONSTITUTIONAL LAW

Double Jeopardy

Speedy Trial
13

CRIMINAL PROCEDURE

Double Jeopardy

Indictment

Lesser Included Offense

Mistrial

Speedy Trial

Statute of Limitations