NC Judicial Branch

RALEIGH — A three-judge panel of the N.C. Court of Appeals has unanimously directed that a 2018 trial against a man accused of indecent liberties with a child be dismissed as a Watauga County judge erred in declaring a mistrial, according to a ruling released Oct. 14.

“Applying the ‘strictest scrutiny’ as required by the U.S. Supreme Court, we conclude no manifest necessity existed and the trial court erred by denying (the) defendants’ motion to dismiss,” the opinion of the court stated.

The case involved Luis Alberto Resendiz-Merlos, who, according to the ruling, in November 2017 was indicted on one court of indecent liberties with a female child. The child, the child’s sister – who reportedly witnessed the alleged crime – and the child’s mother were called in as witnesses for the trial, which started on May 22, 2018. The three females are not named in the court documents.

“The protection against double jeopardy provided to citizens by our federal and state constitutions is a fundamental right,” said Jak Reeves, attorney with the Reeves DiVenere Wright law firm of West Jefferson, who represented Resendiz-Merlos in the case. “We appreciate the (N.C.) Court of Appeals recognizing these rights as they apply to Mr. Resendiz in this case.”

Resendiz-Merlos pleaded not guilty and opening remarks were held, but later in the day, the prosecutor requested a show-cause order for the mother as she was not there.

“The trial started Monday (May 21) … the mother and two daughters were in our office,” said District Attorney Seth Banks. “We had full expectation they would be there on Tuesday, we would pick our jury, then proceed further. The mother had responsibility and legal obligation to transport her daughters to court and and did not do that. She actually made herself unavailable to be found by law enforcement as she did not show up to work, did not send her children to school and was completely unavailable after Monday and beyond.”

On Wednesday, May 23, 2018, the case says that the mother and two daughters did not show up again, with Judge Alan Thornburg informed that an officer visited her residence the night before but could not locate her. The defense counsel asked the court to dismiss the case, saying it wouldn’t be appropriate to declare it a mistrial.

Banks said he believes a mistrial should have been declared because the material witnesses did not show up due to no fault of their own.

“In my mind, there’s different circumstances for an adult that doesn’t show up (to court),” Banks stated.

Thornburg granted the state’s motion for the mother’s arrest and after she didn’t show up in the afternoon, according to the ruling. Afterward, the state moved for a mistrial, saying it did not have sufficient evidence to prosecute the case without the daughters, and Thornburg granted the request over the defense’s motion to dismiss, the ruling explains.

“Given the circumstance, we are arguing for the mistrial because we couldn’t locate the material witnesses,” Banks said. “At the time, the victim and her sister had remained consistent with what happened in the case. We were content on putting them in front of a jury so they could make a determination on whether defendant had broken the law in abusing the child.”

Afterward, Resendiz-Merlos filed a motion to dismiss the case, saying a new trial would violate his constitutional protections against double jeopardy. On Aug. 21, 2018, Watauga County Judge Gary Gavenus denied the defendant’s motion to dismiss in a ruling, stating his court was not an appellate one and cannot overrule another Superior Court judge’s order. The ruling would have led to a second trial.

The N.C. Court of Appeals’ ruling, written by Judge Toby Hampson and joined by Judges Phillip Berger Jr. and Richard Dietz, said Gavenus’ decision on the principle of not overruling another Superior Court judge runs contrary to U.S. Supreme Court precedent.

“The record here contains innuendo and suspicion only,” the N.C. Court of Appeals’ ruling states. “Although the court followed the mandate to make findings, there is no evidence on which those findings could be based.”

Banks said that since the original mistrial, they’ve located the mother and found out that she and the defendant had “extensive communication” before the trial, but said it’s not clear there’s any evidence of tampering, partially due to the conversations being in Spanish.

Banks said he’s reached out to the state attorney general’s office to discuss their options on appealing to the N.C. Supreme Court. On a unanimous N.C. Court of Appeals’ decision, the right to appeal isn’t automatic.

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