October 31, 2019- State of New Mexico v. Louie A. Mendoza, No. A-1-CA-35855

OCR transcription for search; preserved printed pages are authoritative

—

oO ~l

10
11
12
13
14
15
16
17
18
19
20
21
22

23

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opmion/decision is updated accordingly
in Odyssey.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
STATE OF NEW MEXICO Filed 10/31/2019 2:30 PM
Plaintiff-A ppellee, ais
hdark Reynolds
V. No. A-1-CA-35855
LOUIE A. MENDOZA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Stanley Whitaker, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Lauren J. Wolongevicz, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
MJ Edge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
ATTREP, Judge.
3} Defendant Louie Mendoza appeals his convictions for multiple counts of
criminal sexual penetration of a minor, attempted criminal sexual penetration of a

minor, criminal sexual contact of a minor, bribery of a witness, and contributing to

the delinquency of minor, as well as one count each of child abuse and kidnapping.

10

11

12

13

14

15

16

17

18

19

20

Defendant asserts that his right to confrontation was violated and that the district
court abused its discretion by sending certain exhibits to the jury room. Following
due consideration, we affirm Defendant’s convictions.

DISCUSSION

I. Confrontation Challenge

3 Defendant’s confrontation challenge arises from a police officer’s testimony
regarding the results of an examination of Defendant’s cell phone using Cellebrite,
a cell phone examining tool. The officer testified that he used Cellebrite to examine
the contents of Defendant’s phone, extract phone call and text message data, and to
generate a report of that data, which was admitted into evidence. Of particular
relevance, the officer’s testimony and the Cellebrite report contradicted Defendant’s
statement that he received a phone call from the victim’s phone at a time when her
mother had reported her missing. Instead, the officer testified that Defendant’s phone
had not received a call from the victim’s phone during the relevant time.

433. Defendant asserts that his nght to confrontation was violated by the district
court’s receipt of the above-described evidence without providing Defendant an
opportunity to cross-examine a qualified witness regarding the functioning of the
Cellebrite device. The State argues that Defendant did not preserve the
Confrontation Clause claim he now advances on appeal. We agree. Defendant did

not object with sufficient specificity to preserve what he now claims as constitutional

10

il

12

13

14

15

16

17

18

19

20

error. See State v. Zamarripa, 2009-NMSC-001, § 33, 145 N.M. 402, 199 P.3d 846
(“Even constitutional rights may be lost if not preserved below.”). In order to
properly preserve an issue for appeal, a party must raise the issue with sufficient
specificity to alert the mind of the district court to the claimed error. State v. Silva,
2008-NMSC-051, 9 9, 144 N.M. 815, 192 P.3d 1192 (“We require that a party assert
the basis for its objection with sufficient specificity to alert the mind of the trial court
to the claimed error or errors.” (internal quotation marks and citation omitted)); see
also Rule 12-321(A) NMRA (“To preserve an issue for review, it must appear that
a ruling or decision by the trial court was fairly invoked.”’). Alerting the district court
to a Confrontation Clause error requires more than a general hearsay objection. State
v. Lucero, 1986-NMCA-085, 9 17, 104 N.M. 587, 725 P.2d 266. In this case,
Defendant made a simple hearsay objection but did not alert the district court to any
claim of constitutional error. As a result, Defendant did not preserve the
confrontation issue for review on appeal. See id.

4 | Even if Defendant had preserved a Confrontation Clause claim, it would fail.
Defendant’s argument is akin to that made in State v. Anaya, 2012-NMCA-094, 287
P.3d 956, in which the defendant argued that “the Confrontation Clause . . . requires
that he have the opportunity to challenge the underlying accuracy and reliability of
the [breathalyzer machine] through mandatory cross-examination of

[knowledgeable] witnesses.” /d. 9 19. This Court rejected the defendant’s argument,

10

11

12

13

14

“conclud[ing]| that this foundational argument improperly mixes preliminary, non-
testimonial information with the testimonial aspects of’ the defendant’s actual breath
test results, about which the arresting officer testified at trial. /d. Our appellate courts
have made clear that “foundational information regarding the scientific aspects” of
challenged technology are non-testimonial, id. § 22, and that “[t]he protections
afforded by the Confrontation Clause do not extend to preliminary questions of fact,”
State v. Martinez, 2007-NMSC-025, § 25, 141 N.M. 713, 160 P.3d 894. See also
Anaya, 2012-NMCA-094, § 22 (reaffirming this holding after Me/endez-Diaz v.
Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647
(2011)). Just as in Anaya, Defendant challenges the State’s failure to present a
witness regarding the scientific aspects of Cellebrite technology—its reliability and
accuracy—foundational matters that are non-testimonial in nature and that do not
implicate Confrontation Clause protections. Under Anaya, we conclude Defendant

has failed to assert a valid confrontation violation. !

'Defendant limits his argument to a confrontation challenge and has not
developed the argument that the State failed to lay an adequate foundation for the
admission of the Cellebrite report. See Andrews v. U.S. Steel Corp., 2011-NMCA-
032, 9 14, 149 N.M. 461, 250 P.3d 887 (“The proponent of the scientific evidence is
required to establish by a preponderance of the evidence that the testimony is
reliable, and therefore admissible[.]”). Consequently, we give no_ further
consideration to this matter. See State v. Guerra, 2012-NMSC-014, ¢ 21, 278 P.3d
1031 (explaining that appellate courts do not review unclear or undeveloped
arguments).

10

11

12

13

14

15

16

17

18

19

5} In an attempt to avoid this conclusion, Defendant tries to distinguish Anaya
on the ground that breathalyzer results are statutorily subject to regulation by the
Scientific Laboratory Division (SLD). See 2012-NMCA-094, 4 20. According to
Defendant, the regulatory framework governing breathalyzer machines thus “makes
the diminishment of confrontation protections palatable.” But irrespective of these
regulatory requirements, this Court in Anaya affirmed that “the scientific aspects of
the breathalyzer machine are non-testimonial and the Confrontation Clause does not
apply.” /d. § 25. Whether the SLD regulations pertaining to a breathalyzer machine
are followed is a foundational question impacting only the admissibility of that
evidence. /d. § 22. As already noted, this foundational question is separate and
distinct from the Confrontation Clause issue Defendant asserts on appeal. See id.

6} | Defendant’s additional reliance on State v. Aragon, 2010-NMSC-008, 147
N.M. 474, 225 P.3d 1280, likewise is inapposite. In Aragon, our Supreme Court held
that evidence derived from forensic testing must be subjected to cross-examination.
Id. § 13. The error in Aragon arose from the fact that a surrogate chemist testified to
the substance and conclusion of another chemist’s forensic testing. /d. J 4-5. It was
the admission of the non-testifying chemist’s report that led to a confrontation
violation. /d. § 19. Unlike Aragon, the officer who testified at Defendant’s trial was

the same officer who examined the cell phone. Thus, the witness who testified and

10

il

12

13

14

15

16

17

18

19

20

was subject to cross-examination was also the person responsible for the report at
issue. The problem identified in Aragon simply does not exist in this case.

‘3 Accordingly, we reject Defendant’s claim that his right to confrontation was
violated when the State did not present a witness knowledgeable about Cellebrite
technology.

II. Submission of Exhibits to the Jury

83 Defendant also asserts that the district court abused its discretion by sending
certain exhibits to the jury room. For support, Defendant relies on Rule 5-609(C)
NMRA, which instructs that “[u]pon its request to review any exhibit during its
deliberations, the jury shall be furnished all exhibits received in evidence.” The
committee commentary to Rule 5-609(C) also notes that, “if the jury requests any
one exhibit, all exhibits should go in as a way of preventing undue emphasis being
placed on one of the exhibits.”

993 Again, Defendant advances an argument that was not preserved below.
Regardless, this claimed error is also without merit. Defendant’s specific assertion
is that the district court unduly emphasized thong underwear and vibrators that were
sent with the jury when they retired for deliberation. Defendant, however, does not
assert that any other exhibits were withheld from the jury, as would seem necessary
to create the undue emphasis at issue in Rule 5-609. Instead, it appears the district

court simply allowed the jurors to have all the trial exhibits during their deliberation.

10

il

12

13

14

15

16
17

18
19

Defendant thus appears to be arguing, without any citation to authority, that it is an
abuse of discretion to allow the jury to take exhibits to the jury room without first
entertaining a request to do so. We are unaware of any authority that supports
Defendant’s argument and, to the contrary, the uniform jury instructions indicate
that sending the exhibits back to the jury room is indeed appropriate protocol. See
UJI 14-6020 NMRA (stating that the jury “will be provided a copy of the jury
instructions and the exhibits introduced as evidence”). We, accordingly, are not
persuaded that the district court abused its discretion by sending the exhibits to the
jury room.
CONCLUSION
410} For the foregoing reasons, we affirm Defendant’s convictions.
ay ITTIS SO ORDERED.

CAR ATTE P, Judge
WE CONCUR:
Mogan PL: Uy
MECAN P. DUFFY, Judge
Broke L ewe
BRIANA H. ZAMORA, Judge