Judge dismisses criminal case against county treasurer
LAS CRUCES - An Alamogordo District Court judge on Monday dismissed the criminal case against Doña Ana County Treasurer David Gutierrez, who was scheduled to stand trial Tuesday on charges of ethics violations stemming from allegations he sexually harassed and solicited sex from a woman who worked in his office in 2014.
Twelfth Judicial District Judge Angie K. Schneider ruled that Gutierrez’s alleged actions were not criminal, a position shared by Gutierrez’s attorney, Jose Coronado of Las Cruces, who filed a motions last week to dismiss the criminal charges.
Coronado, in the six-page filing, argued that while the allegations against Gutierrez “may constitute a violation of ethical principles,” they do “not constitute a criminal offense.”
In separate motion, Coronado stated that a “crime cannot be proven” with the evidence that prosecutors intended to present at trial. He further said the case should be “dismissed as a matter of law” because of the “insufficient” evidence.
In issuing her ruling, Schneider vacated Gutierrez’s criminal trial that was set to begin at 9 a.m. Tuesday in 3rd Judicial District Court in Las Cruces.
Following Monday’s ruling, the 3rd Judicial District Attorney’s Office said it would appeal the judge’s decision.
“District Attorney Mark D’Antonio felt what the county treasurer did was criminal — the judge did not,” Patrick Hayes, the district attorney’s spokesman, said in a statement. “We respectfully disagree with her decision and plan on filing an appeal. However, this doesn't affect the removal case which is scheduled to go to trial later this month.”
Gutierrez was scheduled to be tried twice this month before juries in separate criminal and civil cases, which were filed earlier this year. He is still scheduled to stand trial beginning Nov. 29 in the civil case, where he faces the possibility of being removed from office.
Coronado said Gutierrez was “elated” when he learned about Monday’s ruling. Gutierrez did not attend the afternoon hearing, which took place in Alamogordo, Coronado said.
“He’s elated, man. He asked me to repeat it twice. He’s a happy guy,” Coronado said.
“Basically they charged him with a crime, but there was no crime — a crime does not exist here,” he added.
Gutierrez, 61, who is serving the final year of his second term as county treasurer, was indicted in March by a Doña Ana County grand jury in separate criminal and civil cases.
The charges in the indictments are based on allegations that Gutierrez sexually harassed a former female employee in his office on a consistent basis, beginning in early 2014 and leading up to an August 2014 incident in which he offered the woman $2,000 in exchange for sex.
In the criminal case, Gutierrez was charged with one of three possible violations to the state’s statute on ethical principles of public office. The alleged violations included obtaining a personal benefit, having a lack of integrity and engaging in a conflict of interest.
Coronado, in the six-page motion, said neither of those violations were criminal in nature but were a “failure to abide by guiding principles” for public officials.
“The statute under which he was charged, I argued they weren’t crimes,” Coronado said. “They were ethical principles intended to guide public officials in their conduct. But the DA chose to charge them as crimes.”
Coronado’s motion also pointed out that prosecutors had failed to charge Gutierrez under the fourth subsection of the statute, which makes it a low-level felony for a public officer to request or receive money or anything of value in exchange for the promise of an official act.
“They did not charge him violating the last subsection,” he said.
According to the statute, any public official who violates the last subsection is guilty of fourth-degree felony, which carries a maximum sentence of 18 months in prison, plus court fees.
Coronado would not speculate on how Monday’s ruling could affect Gutierrez’s civil trial later this month. He said he focused his efforts on resolving the criminal case.
By the time the civil trial begins, Gutierrez will have about 30 days remaining in his final term office. He was elected in 2008 and 2012, and he cannot seek re-election because of term limitations.
His last term in office was deeply marred by the sexual harassment scandal and lawsuits brought by former employees, including Luz Olivia Nuñez, the woman at the center of the scandal, and Jill Johnson and Rene Barba, two of his former chief deputies.
Two of the lawsuits resulted in settlements that nearly totaled about $243,000. In June, he threatened to sue the county over the criminal charges, but he has yet to file a formal lawsuit.
Since 2014, when allegations surfaced that he offered Nuñez money for sex, Gutierrez has repeatedly spurred public calls for his resignation and even chided the County Commission for censuring him.
On Tuesday, voters will head to the polls to elect a new county treasurer. They will choose between Johnson, a Republican, and current Chief Deputy Treasurer Eric Rodriguez, a Democrat.