in the Court of Appeals 5 June 2019.
by Defendant from Order entered 21 August 2018 by Judge Gary
Gavenus in Watauga County Superior Court. No. 17 CRS 51149
Attorney General Joshua H. Stein, by Assistant Attorney
General Joseph L. Hyde, for the State.
DiVenere Wright, by John B. "Jak" Reeves and
Anné C. Wright, for defendant-appellant.
and Procedural Background
Alberto Resendiz-Merlos (Defendant) appeals from the trial
court's Order on Defendant's Motion to Dismiss
(Motion to Dismiss Order). The Record tends to show the
November 2017, Defendant was indicted on one count of
Indecent Liberties with a Child. The Indictment alleged
Defendant took indecent liberties with Y.B.G., who was a
minor at the time of the alleged incident. M.G. is the
mother of Y.B.G. and her sister A.B.G.,  who allegedly
witnessed the incident leading to Defendant's
Indictment. Given their relationship with Defendant and his
alleged criminal conduct, the State intended to call M.G.
and her two daughters as witnesses at Defendant's
case came on for trial before Judge Alan Z. Thornburg (Judge
Thornburg) on 22 May 2018. The same morning, Defendant was
arraigned and pleaded not guilty, and later that afternoon at
approximately 3:00 p.m., the jury was impaneled. After
opening remarks from both the State and defense counsel,
Judge Thornburg released the jury for the day. Thereafter,
the State requested a show-cause order for M.G., explaining:
[M.G.] was personally served with a subpoena to be here and
appear herself, as well as bring her two minor children. And
she was to be here at 2 p.m. today, did not show up.
We've tried to call her multiple times, both her cell
phone and her place of work. We were told she did not show up
for work today.
We have been in contact with the school who confirmed that
the children were at school until around 12:30, I believe,
but she checked them out then and there has been no further
contact. The interpreter from the school also tried to
contact her and there was no answer. I also do have some
information from a deputy that went out to her house, and he
said it appeared to him someone was home but no one would
come to the door. So that is the information from him.
Thornburg then heard from defense counsel regarding the
State's motion for a show-cause order. Defense counsel
stated, "we're here, ready to proceed. Based upon
conversations with the State I think it's pretty readily
apparent that the victim's mother does not wish to
prosecute this case. My understanding, I don't think any
of them do. We'd ask the matter be dismissed." Judge
Thornburg then issued an order to show cause why M.G. should
not be held in contempt of court and set a hearing for 9:30
a.m. the following morning.
next morning, on 23 May 2018, M.G. and her two children did
not show up to court. Judge Thornburg was informed that a
sheriff had visited M.G.'s residence the previous night
and that morning but could not locate her. The State
requested the trial court issue an order for M.G.'s
arrest, and arguing in response, defense counsel apprised the
Your Honor. If my client had not been here to start a trial
yesterday an order for arrest would have been issued
immediately. He was present. He is ready to proceed. We would
oppose the case being held open any longer. The case was held
On the record yesterday I asked that the matter be dismissed.
Again, I will ask that it be dismissed. I do not think that
it would be appropriate to grant a mistrial. If my client
hadn't shown I don't [sic] the Court would have
granted a mistrial for the defense. So, I would ask that the
matter be dismissed and not held open.
Judge Thornburg issued an order for M.G.'s arrest and
held the matter open until 12:30 that afternoon.
the case resumed that afternoon, M.G.'s whereabouts were
still unknown. The State moved for a mistrial under N.C. Gen.
Stat. § 15A-1063(1), and the trial court heard arguments
from both parties regarding the motion. During its argument,
the State conceded it did not have sufficient evidence to
assert that Defendant in any way caused the witnesses'
absence. Rather, the State asserted M.G., Y.B.G., and A.B.G.
were necessary and essential witnesses and that their absence
had made it "impossible for the trial to proceed in
conformity with law" under Section 15A-1063(1), thereby
requiring the trial court to grant a mistrial. In response,
defense counsel argued against granting a mistrial, citing
applicable case law and statutes. After hearing both
sides' arguments, Judge Thornburg found that "all
three [witnesses were] unavailable for trial due to no fault
of the State or the defendant" and that their absence
"deprived the State it's [sic] ability to present
its case and to meet its burden of proof." Therefore,
Judge Thornburg orally declared a mistrial pursuant to
June 2018, Defendant filed a Motion to Dismiss arguing
"that to be tried on this matter again would violate his
constitutional protections against double jeopardy."
Defendant's Motion to Dismiss came on for a hearing on 12
June 2018 before the trial court. After hearing arguments
from both sides, the trial court took the matter under
advisement. On 13 June 2018, the trial court entered an Order
continuing the hearing on Defendant's Motion to Dismiss
until "the entry of any Order by Judge Thornburg
granting a mistrial." On 15 June 2018, Judge Thornburg
entered a written Order on State's Motion for Mistrial
(Mistrial Order) granting the State's motion for a
July 2018, Judge Gary Gavenus (Judge Gavenus) heard arguments
regarding Defendant's Motion to Dismiss. Judge Gavenus
denied Defendant's Motion to Dismiss in open court, and
on 21 August 2018, Judge Gavenus entered his Motion to