BY KATY BARNITZ / JOURNAL STAFF WRITER

ALBUQUERQUE, N.M. — The state Court of Appeals is asking the District Attorney’s Office to explain whether its appeal in the Fabian Gonzales case should be dismissed as moot following his cousin’s no contest plea.

Gonzales, along with his cousin Jessica Kelley, are defendants in a case centered on the death of 10-year-old Victoria Martens. In an agreement last month with the DA’s Office, Kelley pleaded no contest to reckless child abuse resulting in death, tampering with evidence and aggravated assault. She also promised to testify against Gonzales.

Prosecutors in September appealed Judge Charles Brown’s decision to exclude statements Jessica Kelley made in jail, along with evidence of her drug use and prior convictions.

Gonzales had been set for trial in mid-October, but the appeal put his case on hold indefinitely.

In an order filed last Thursday, the Court of Appeals noted that Kelley’s plea agreement and availability to testify may have rendered moot the argument asserted in the appeal.

A spokesman for the DA’s Office said prosecutors will file a response in coming days.

Gonzales’ attorney Stephen Aarons filed a response asking the court to dismiss the appeal and send the case back to the District Court for trial.

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