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State v. House3/28/1996
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[2.] that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.
(quoting )).
{49} If the trial court determines that a question raised on appeal constitutes a "substantial question of law or fact," the trial court must then ascertain whether the issue is "likely to result in reversal or an order for a new trial." Section 31-1-11(C)(2). As stated in , "the phrase 'likely to result in reversal or an order for a new trial' . . . [should not] be construed to require the district court to predict the probability of reversal. . . . Instead, that language must be read as going to the significance of the substantial issue to the ultimate Disposition of the appeal."
{50} The Miller court further noted:
A question of law or fact may be substantial but may, nonetheless, in the circumstances of a particular case, be considered harmless, to have no prejudicial effect, or to have been insufficiently preserved. A court may find that reversal or a new trial is "likely" only if it concludes that the question is so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial.
Id.
{51} Defendant contends, among other things, that his appellate challenge to the propriety of the trial court's change of venue from Taos County to Dona Ana County raises a "substantial question of law" within the meaning of Section 31-11-1(C). Applying the definition of "substantial question of law" and the interpretation of the Bail Reform Act discussed in , to Defendant's venue challenge in the case before us, it is clear that the legal question presented constitutes both a substantial issue and one of first impression. Thus, I agree that Defendant's venue challenge on his appeal to this Court satisfies the requirements of Section 31-11-1(C). However, because the complete trial record is not before us and the parties have not had the opportunity to fully brief or argue the questions posed on appeal, I do not believe that our analysis of the venue issue at this stage of Defendant's appeal should undertake to explore the contentions of the parties beyond a careful application of the statutory test delineated in Section 31-11-1.
THOMAS A. DONNELLY, Judge
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