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State v. House2/24/1999
398 (discussing State's interest in moving for venue change). This is because, depending upon the venue, both sides are susceptible to prejudice and both sides are equally entitled to a fair trial under the venue statute, though a criminal defendant's statutory right to a fair trial is guided by the constitutional right to an impartial jury in the county in which the crime allegedly occurred. See Holloway, 19 N.M. at 536-37, 146 P. at 1068 (explaining that the State has a right to a venue change in order to secure a fair trial "assuming that statutory authority for a change of venue exists").
{29} In a case in which there have been no preceding changes of venue, this right to a venue change is generally mandatory and must be granted by the trial court, provided that the moving party has filed an affidavit as prescribed by Section 38-3-3(A)(2). See State v. Turner, 90 N.M. 79, 81, 559 P.2d 1206, 1208 (Ct. App. 1976). However, " pon the filing of a motion for change of venue, the court may require evidence in support thereof, and upon hearing thereon shall make findings and either grant or overrule said motion." NMSA 1978, § 38-3-5 (1929). Thus, upon the need for an evidentiary hearing, this first change of venue ceases to be mandatory and is left to the court's discretion. Turner, 90 N.M. at 81, 559 P.2d at 1208. As discussed below, an evidentiary hearing would be required when the State, against the defendant's objections, seeks to move the trial from the constitutional vicinage. In addition to these procedures, a venue change may be ordered by the trial court "if both parties stipulate in writing to that change." NMSA 1978, § 38-3-4 (1961). In the case at bar, House made a motion for a venue change which the State did not oppose.
{30} Should either party conclude that a fair trial may be impossible after the first venue change, " second change of venue shall not be allowed in any civil or criminal case, as a matter of right, but shall be within the discretion of the court." NMSA 1978, § 38-3-6 (1880). The State's motion to change venue for the second time in this case was therefore within the trial court's discretion.
III. STANDARD OF REVIEW
A. The Proper Standard of Review
{31} Under our venue statutes, those changes of venue that are not mandatory take place at the discretion of the trial court. See § 38-3- 3(A) (mandatory upon proper motion unless evidentiary hearing under Section 38-3-5); § 38-3-6 (second venue change at court's discretion). The trial court's discretion in this matter is broad and will not be disturbed on appeal unless a clear abuse of that discretion can be demonstrated. State v. Hargrove, 108 N.M. 233, 239, 771 P.2d 166, 172 (1989). The burden of establishing an abuse of discretion is borne by the party that opposes the trial court's venue decision. Id. In this case, House bears that burden. We will affirm a determination of venue if we are convinced that the trial court, in exercising its discretion, was "guided by law, caution, and prudence." State v. Alaniz, 55 N.M. 312, 318, 232 P.2d 982, 985 (1951).
{32} The standard of review required in assessing most abuse-of- discretion claims is whether the trial court's venue determination is supported by substantial evidence in the record. See State v. Atwood, 83 N.M. 416, 417, 492 P.2d 1279, 1280 (Ct. App. 1971).
"Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a Conclusion, and has been defined as evidence of substance which establishes facts from which reasonable inferences may be drawn. On appeal, all disputed facts are resolved in favor of the successful party, all reasonabl
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