State v. Godinez

[[COURTLISTENER_SUBOPINION {"id":"11076175","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
Office of the Director      New Mexico
                                                                 08:19:38 2022.06.13        Compilation
                                                                               '00'06-      Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:
2022-NMCA-029
Filing Date: December 1, 2021

No. A-1-CA-38063

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

LUCIO GODINEZ, JR.,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James W. Counts, District Judge

Certiorari Granted, April 22, 2022, No. S-1-SC-39151. Released for Publication June
21, 2022.

Hector H. Balderas, Attorney General
Santa Fe, NM
John Kloss, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

IVES, Judge.

{1}    Defendant Lucio Godinez, Jr. appeals the revocation of his probation, arguing in
part that the district court violated his due process right to confront and cross-examine
witnesses at the revocation hearing. The key precedent that guides us is State v.
Guthrie, in which our Supreme Court recognized that a person who is accused of a
probation violation has a due process right “to confront and cross-examine adverse
witnesses []unless the hearing officer specifically finds good cause for not allowing
confrontation[.]”
2011-NMSC-014, ¶ 12
,
150 N.M. 84
,
257 P.3d 904
(emphasis, internal
quotation marks, and citation omitted). In Guthrie, the Court described general
principles and specific factors that New Mexico courts should consider when
determining whether “good cause” exists, and the Court considered those principles and
factors in deciding that a probationer who was accused of failing to complete a
treatment program did not have a due process right to confront his probation officer. Id.
¶¶ 45-49. Defining the inquiry as an assessment of “the necessity for, and utility of,
confrontation with respect to the truth-finding process,” the Guthrie Court made that
determination in the context of “straightforward and routine charges—the simple,
objective, and uncontroverted fact that probationer either did or did not successfully
complete the program[.]” Id. ¶ 21 (internal quotation marks and citation omitted).
Defendant’s appeal requires us to apply Guthrie in a very different context—one our
appellate courts have not previously addressed in a precedential opinion. Here, the
State accused Defendant of violating his probation by committing a new crime, criminal
sexual penetration of his daughter, and the district court determined that Defendant did
not have a right to confront and cross-examine Daughter. Applying Guthrie to a set of
facts not clearly contemplated by the governing framework that Guthrie created, we
conclude, based on the record before us, that Defendant had a due process right to
confront Daughter. Because the district court did not afford Defendant any opportunity
to do so, we reverse and remand for any further proceedings that might be necessary,
including a new revocation hearing if the State requests one. 1

BACKGROUND

{2}     In 2011, Defendant pleaded no contest to two counts of second-degree criminal
sexual contact of a minor, contrary to NMSA 1978, Section 30-9-13(B) (2003). The
district court entered judgment on Defendant’s plea and sentenced Defendant to nine
years’ imprisonment for each count. The court made the two sentences consecutive and
suspended all but two years of Defendant’s eighteen-year sentence. The court also
imposed a five-to-twenty-year probationary term to follow the two-year prison term. See
generally NMSA 1978, § 31-20-5.2(A), (F)(3) (2003).

{3}     Defendant completed his prison term in 2013. In 2018, the State sought to
revoke Defendant’s probation, alleging that Defendant violated its conditions by (1)
omitting Daughter’s autism diagnosis when he requested permission from his probation
officer to have her stay with him and (2) committing criminal sexual penetration against
Daughter.

{4}     At the hearing on the State’s petition to revoke Defendant’s probation, the district
court heard testimony from Defendant’s probation officer, Daughter’s mother, a sexual
assault nurse examiner (SANE), a forensic safehouse interviewer, and a New Mexico
State Police officer. Aside from noting the fact of Defendant’s arrest on suspicion of
violating the condition of his probation that he not commit any new crimes, the probation
officer only testified to evidence of the allegation that Defendant violated his probation

1Because we reverse under Guthrie, we do not reach Defendant’s argument that the district court erred
by relying upon certain hearsay evidence in reaching its ultimate decision.
by failing to report Daughter’s disability. Defendant denied that he had committed
criminal sexual penetration against Daughter.

{5}    Daughter did not testify. The State presented evidence that Daughter’s condition
was likely to regress if she had to testify in court about the alleged crime. The State’s
evidence consisted of witnesses’ testimony about statements made by Daughter. The
remainder of the State’s evidence was testimony regarding witnesses’ personal
observations of Daughter’s demeanor and physical condition after the alleged crime, as
well as evidence of blood and the DNA of an unidentified male on some of Daughter’s
underwear.

{6}     Mother testified that Daughter, an adult who functioned at a first-grade level
intellectually, had been visiting Defendant for what had been planned as a two-week
stay. Near the end of those two weeks, Daughter did not call in the morning like she
normally would. After Daughter did not answer Mother’s call, Mother called Defendant
who, after first saying he was too busy to put Daughter on the phone, did so after
Mother demanded to speak with Daughter. When Defendant put Daughter on the
phone, Daughter was “hysterical” and asked to be picked up. 2 Mother went to pick up
Daughter and, when Defendant arrived at a meeting place with Daughter, Daughter was
leaning against the window of Defendant’s car and crying. Daughter hugged Mother
while crying and did not say goodbye to Defendant, which was unusual. On their way
home, Daughter said, “I’m tired; I’m tired,” and she told Mother that she never wanted to
return to Defendant’s home. When they arrived home, Daughter hugged Mother’s fiancé
and again began to cry and went to sleep soon thereafter. According to Mother, over the
next few days, Daughter acted unusually and appeared “distraught”: Daughter at times
followed Mother around the house and at other times sat idly on the couch rather than
doing the things she would have normally done; cried “loudly” in the shower, where
Mother would find her in the tub; woke in the night and screamed; hit the table; and
asked, “Why? Why? Why, dad?” Mother asked Daughter if Defendant had done
something to her, and Daughter pointed to “her behind” and asked to talk to the police.
According to Mother, Daughter said that Defendant “hit her” and that “it” happened
twice.

{7}     Mother also testified that she observed blood on underwear in the suitcase
Daughter had taken for her stay with Defendant. And the State elicited testimony from
Mother indicating that the blood could not be attributable to Daughter’s menstrual cycle
because she had her period at the end of June, after her stay with Defendant, which
was during the middle of the month. There was, however, conflicting testimony on this
point: the SANE testified that Daughter stated at her examination that she had
menstruated the previous Sunday, in the middle of the month. The police officer testified
that on June 22, 2018, as much as one week after the alleged crime, he collected some
of the clothing Daughter had taken for her stay with Defendant and brought it to the
state crime lab. He testified that the crime lab found male DNA on the “inside crotch
area” of Daughter’s underwear but that the DNA had not been compared to that of any

2Defendant’s girlfriend had been hospitalized the day before Mother called Daughter, and there was no
dispute that Defendant was alone with Daughter between that time and the call.
particular person. Although he testified that he had collected a DNA sample from
Defendant, the results of a comparison to that sample were still pending at the time of
the hearing, and the police officer read from the initial crime lab report that no
comparison would be possible because of how little DNA had been found.

{8}     The SANE testified that when she examined Daughter on Friday, June 22, she
asked Daughter whether “the assault had occurred on Sunday,” and Daughter nodded
affirmatively. The SANE noted tears “throughout the exam” and that Daughter trembled
during the anal portion of the examination. Although the SANE did not observe any
injuries to Daughter’s genital or anal areas, the SANE explained that skin in the vaginal
and anal areas heals quickly. The SANE did observe bruising on Daughter’s buttocks,
thighs, and near her genitals; that her vagina was “red”; and a white vaginal discharge
that, according to the SANE, could have had various causes. The SANE explained that
she is trained not to opine on the age of a bruise, and, though she noted the differing
coloration of Daughter’s bruises, she did not testify to the severity of the bruising she
observed. Although the SANE testified that she had seen similar bruising in earlier work
she had done on cases involving criminal sexual contact, she explained that things
other than sexual contact could have caused everything she observed at Daughter’s
examination.

{9}     A forensic interviewer testified about Daughter’s safehouse interview. The
interviewer explained that she had to question Daughter as if she were interviewing a
five- or six-year-old child. The interviewer testified that, during the interview, Daughter
said that her “butt got hurt” “on the inside” as a result of two “spanking[s]” that occurred
while neither she nor Defendant were wearing underwear and that, during these
incidents, she was lying face down with Defendant behind her. The interviewer testified
that she asked Daughter to identify, on a drawing of a nude male body, the body part
Defendant had used to hurt her, and Daughter circled the penis. And she told the
interviewer that she was still experiencing pain at the time of the interview, which
occurred approximately one week after the alleged criminal sexual penetration.

{10} Defendant objected to the admission of Daughter’s out-of-court statements
through the forensic interviewer’s testimony and the admission of DNA evidence
through the police officer’s testimony. The district court overruled the objections but did
not make factual findings as to whether there was good cause to admit the challenged
evidence without allowing Defendant to confront Daughter or the crime lab analyst who
reported the DNA evidence. After the close of evidence, the district court cited, as
corroboration for the unconfronted evidence, testimony of Mother regarding physical
evidence and changes in Daughter’s behavior. And the court concluded that the
evidence established to a reasonable certainty that Defendant had violated a condition
of his probation by committing a sex crime, citing, in addition to Mother’s testimony, the
police officer’s testimony that the crime lab noted the presence of male DNA on some of
Daughter’s underwear and the SANE’s testimony that Daughter presented with bruising
at the SANE examination. However, the district court rejected the State’s contention that
Defendant also violated his probation by failing to report Daughter’s disability.
{11} The district court revoked Defendant’s probation and remanded him to the New
Mexico Corrections Department for a period of just under eleven years, the remainder of
the suspended portion of the sentence for his 2011 convictions. Defendant appeals.

DISCUSSION

{12} Defendant argues that the district court deprived him of due process by denying
him, without good cause, an opportunity to confront Daughter and the crime lab analyst.
Whether Defendant suffered a violation of his due process right to confrontation is a
question of law that we review “de novo while deferring to the district court’s factual
findings.” 3 State v. Castillo,
2012-NMCA-116, ¶ 9
,
290 P.3d 727
. For the reasons that
follow, we agree with Defendant that there was not good cause to dispense with
confrontation as to Daughter, and we therefore reverse without reaching Defendant’s
argument as to the crime lab analyst.

{13} “Because loss of probation is loss of only conditional liberty, ‘the full panoply of
rights due a defendant in a criminal trial [does] not apply.’ ” Guthrie,
2011-NMSC-014, ¶
10
(alteration omitted) (quoting Morrissey v. Brewer,
408 U.S. 471, 480
(1972)); see
also Gagnon v. Scarpelli,
411 U.S. 778, 781-82
(1973) (extending Morrissey—which
concerned revocation of parole—to revocation of probation). However, defendants who
face allegations that they have violated their probation have a due process right “ ‘to
confront and cross-examine adverse witnesses []unless the hearing officer specifically
finds good cause for not allowing confrontation[.]’ ” Guthrie,
2011-NMSC-014
, ¶ 12
(emphasis omitted) (quoting Gagnon,
411 U.S. at 786
). Hence, at a probation violation
hearing, there is a “rebuttable presumption” that the probationer has a right to confront
adverse witnesses. State v. Wheeler, No. S-1-SC-37709, dec. ¶ 17 (N.M. Sup. Ct. June
10, 2021) (non-precedential). Guthrie indicates that this presumption is especially
strong, and thus more onerous to rebut, when, as in this case, the state seeks to revoke
probation based on an unadjudicated charge that the probationer committed another
crime.
2011-NMSC-014, ¶¶ 36, 38
. The Guthrie Court stated that, where “the
probationer is alleged to have committed a crime[] but has not been convicted,” it “would
be hard[-]pressed to envision a situation in which personal testimony and confrontation


3The State argues that we should not review Defendant’s arguments, contending that (1) he did not
preserve them because his objections at trial were on different grounds from those he makes on appeal;
and (2) because he did not object to hearsay in the testimony of other witnesses, he “actively waived” his
arguments on appeal. We disagree. Defendant invoked rulings on (1) whether admitting Daughter’s
statements through the forensic interviewer’s testimony, without any opportunity to cross-examine
Daughter, would be erroneous and (2) whether admitting the crime lab report through the police officer’s
testimony violated Defendant’s right to confrontation. And, in arguing those objections, the parties
narrowed the question before the district court to whether due process prohibited the court from admitting
the challenged hearsay when Defendant would not have an opportunity to cross-examine either
declarant. Nor did Defendant waive these issues. The State emphasizes the admission, without objection,
of several statements Daughter purportedly made to Mother and the SANE, but the hearsay to which
Defendant did object was not cumulative of that evidence. Cf. State v. La Madrid,
1997-NMCA-057, ¶¶
16-17
,
123 N.M. 463
,
943 P.2d 110
(rejecting a claim that the district court had committed reversible error
by admitting certain hearsay statements because the defendant had “acquiesce[d] in the admission
of . . . the same statement[s]”).
would not be required.” Id. ¶ 38 (emphasis omitted); see also Wheeler, No. S-1-SC-
37709, dec. ¶ 21.

{14} In analyzing whether due process requires confrontation or whether there is good
cause to proceed without confrontation, a court should locate the particular evidentiary
issue on a “spectrum or sliding scale with extremes at either end and much balancing
and weighing of competing interests in between.” Guthrie,
2011-NMSC-014, ¶ 40
. The
court must assess “the relative need for confrontation to protect the truth-finding
process and the substantial reliability of the evidence,” and “the stronger the probative
value and reliability of the evidence, the less the need for confrontation.” Id. ¶¶ 43-44.
The focus should not be the reasons for the declarant’s absence, id., but instead
“fundamental fairness, the touchstone of due process.” Id. ¶ 25 (internal quotation
marks and citation omitted). Where evidentiary issues fall on the spectrum depends “on
a case-by-case analysis” of “the utility of confrontation.” Id. ¶ 33.

{15} Our Supreme Court has explained that this analysis involves an indefinite
number of factors, id. ¶¶ 34-41, and we glean five factors from Guthrie relevant to the
analysis in this case: (1) whether the source of the challenged evidence is reliable and
free of any motive to lie, id. ¶¶ 40-41; (2) the centrality of the challenged evidence to the
ultimate conclusion about whether a probation violation occurred, id. ¶¶ 34, 37, 41; (3)
whether the accused contests the fact that the challenged evidence would help prove,
id. ¶¶ 35, 40-41; (4) the extent to which credibility determinations, perception,
interpretation, inference, and judgment are required to decide the truth of the matter
asserted by the declarant’s statements, id. ¶¶ 37-41; and (5) whether the challenged
evidence is substantially reliable, either because it is inherently reliable—e.g., hearsay
admissible under a “proven exception[]” to the rule against hearsay, id. ¶ 36—or
because it is sufficiently corroborated by other, reliable evidence. Id. ¶¶ 40-41.

{16} Applying these factors to Defendant’s case, 4 we hold that there was not good
cause to dispense with confrontation because the evidence presented at the hearing
was not reliable enough to overcome the strong presumption that Defendant had a right
to confront Daughter about the unadjudicated accusation that he had committed a new
crime. As we will explain, Daughter’s hearsay statements and thus her credibility were
at the heart of this case. Those statements were neither inherently reliable nor
sufficiently corroborated by other, reliable evidence, and cross-examination was
therefore necessary to safeguard the truth-seeking process at the revocation hearing.

{17} Because we have no reason to doubt that the forensic interviewer testified
accurately about what Daughter told her, see id. ¶¶ 40-41, we turn to the remaining
factors, beginning with the critical role played by Daughter’s hearsay statements to the
interviewer. Those hearsay statements were central to the ultimate determination of
whether Defendant violated his probation by committing a new crime. See id. ¶¶ 34, 37,
41. Indeed, those statements were the most probative evidence—and the only direct

4Recognizing that, in Guthrie, our Supreme Court did not identify each factor that bears on the utility of
confrontation in every case, we have considered whether any additional factors might bear on this case.
Having identified none, we limit our analysis to the factors from Guthrie described in the text.
evidence—that Defendant had committed criminal sexual penetration as the State
alleged. Moreover, the commission of a new crime was an affirmative fact that
Defendant contested by denying that he had abused Daughter. See id. ¶¶ 35, 37, 40-
41. Under these circumstances, discovering whether the State’s allegation is true
involves credibility determinations, perception, interpretation, inference, and judgment,
and it was thus important to observe Daughter’s demeanor. See id. ¶¶ 34, 37-41; cf.
State v. Lucero,
1993-NMSC-064
, ¶¶ 2, 22,
116 N.M. 450
,
863 P.2d 1071
(stating that
the credibility of a child who had accused the defendant of sexual abuse “was a pivotal
issue” in a trial where “[t]he only witnesses to the alleged abuse were the defendant and
the [alleged victim]”); State v. Duran,
2015-NMCA-015, ¶¶ 2-4, 25-26
,
343 P.3d 207
(characterizing credibility as “the primary issue” in a trial where the alleged victim
testified that the defendant had sexually abused her when she was a child but the
defendant denied the accusation).

{18} Our analysis thus far having reinforced rather than rebutted the strong
presumption in favor of confrontation, we turn to the final factor, reliability. We first
address whether Daughter’s statements are inherently reliable. See Guthrie, 2011-
NMSC-014, ¶ 36. The State argues that they are because they would be admissible in a
trial under Rule 11-803(4) NMRA, the exception to the rule against hearsay for
statements made for medical diagnosis or treatment. See Guthrie,
2011-NMSC-014, ¶
36
(“[H]earsay evidence may be inherently reliable if it conforms to proven exceptions to
the hearsay rule.”). We disagree. Because the forensic interviewer was not a medical
provider, her testimony as to what Daughter told her would not be admissible under
Rule 11-803(4). The testimony at issue here is unlike the testimony at issue in State v.
Mendez, where our Supreme Court recognized that statements made to a SANE may
sometimes be admissible as statements made for medical diagnosis or treatment
because a SANE has “a dual role: the provision of medical care and the collection and
preservation of evidence.”
2010-NMSC-044, ¶¶ 41-43
,
148 N.M. 761
,
242 P.3d 328
. But
the witness here was not a SANE. She was a forensic interviewer whose testimony
gives us no reason to conclude that she had any role other than collecting, preserving,
and analyzing evidence; the record does not include any basis for concluding that a
purpose of her examination was medical diagnosis or treatment. Cf. Duran, 2015-
NMCA-015, ¶¶ 4-5 (recounting the testimony of a safehouse interviewer who explained
that the goal of a forensic safehouse interview is to test the truth of an allegation that a
child was a victim or witness to a crime). We therefore reject the State’s argument that
Daughter’s statements to the forensic interviewer conform to a proven hearsay
exception, and we see no other reason to conclude that her statements are inherently
reliable.

{19} Because Daughter’s hearsay statements are not inherently reliable, Guthrie
permits us to conclude that her statements are substantially reliable only if they are
sufficiently corroborated by other, reliable evidence. See Guthrie,
2011-NMSC-014, ¶¶
40-41
. Although the Guthrie Court did not explicitly describe how courts should
determine whether corroborating evidence is powerful enough to obviate the need for
confrontation, our Supreme Court took a case-specific approach to the good cause
inquiry in Guthrie, and we therefore conclude that the corroboration determination
hinges on the nature of the allegation and the facts of each case. The inquiry is not
whether the corroborating evidence in the case would support a rational inference by
the trial court judge that the accused is guilty but instead whether cross-examination of
the declarant would assist the judge in deciding whether the accused is, in fact, guilty.
See id. ¶ 43 (emphasizing that courts should focus “on the need for, and utility of,
confrontation with respect to the truth-finding process . . . in light of the particular case
at hand, including the specific charge pressed against the probationer”); cf. Morrissey,
408 U.S. at 483-84
(stating that revocation of parole should not occur without “an
appropriate determination that the individual has in fact breached the conditions of
parole” and explaining that the accused and society share an interest in such
determinations resting on “accurate knowledge of the parolee’s behavior”). Reading
Guthrie holistically and focusing on the overarching principles that drove our Supreme
Court’s analysis, see generally
2011-NMSC-014, ¶ 43
, we conclude that only
unequivocal and reliable corroborating evidence will make the value of confrontation so
minimal as to be unnecessary when, as in this case, the state makes a contested
allegation that the probationer committed a new crime but there is no adjudication of
guilt; the hearsay statements are central to the state’s case but are not inherently
reliable; and determining whether the statements are true entails a subjective judgment
about the declarant’s credibility. Under these circumstances, confrontation is essential
to the truth-finding process unless corroborating evidence compellingly establishes that
the crime occurred and that the probationer committed it.

{20} We conclude that the evidence in this case does not clear this high bar. Because
the evidence offered to corroborate the declarant’s statements is subject to conflicting
interpretations, confrontation was necessary to increase the likelihood that the district
court arrived at the truth. Cf. California v. Green,
399 U.S. 149, 158
(1970) (recognizing
that cross-examination is “the greatest legal engine ever invented for the discovery of
truth” (internal quotation marks and citation omitted)); State v. Montoya, 2014-NMSC-
032, ¶ 39,
333 P.3d 935
(“For two centuries, common law judges and lawyers have
regarded the opportunity of cross-examination as an essential safeguard of the
accuracy and completeness of testimony.” (emphases, internal quotation marks, and
citation omitted)). As corroboration for Daughter’s hearsay statements, the district court
cited Mother’s testimony that Daughter’s demeanor changed after visiting Defendant
and that Mother observed blood on Daughter’s underwear that was unlikely to have
been due to menstruation. 5 The only other corroborating evidence was the police
officer’s testimony that there was male DNA on the underwear 6 and the SANE’s


5Our review is complicated somewhat by the fact that the district court made its factual findings regarding
the admissibility of the challenged evidence after the close of evidence, at the same time that it
announced its findings supporting its conclusion on the merits—that the evidence demonstrated to a
reasonable certainty that Defendant had violated his probation by committing a sex crime against
Daughter. Although the district court did not make any findings specific to whether the DNA evidence was
admissible without cross-examination of the crime lab analyst, it found that the male DNA on Daughter’s
underwear likely was Defendant’s. And the court found that the bruising observed at the SANE
examination had some significance. As we understand the record, the district court made these findings
to support its conclusion on the merits.
6In analyzing whether the other evidence sufficiently corroborated of the hearsay in the forensic
interviewer’s testimony, we assume without deciding that there was good cause to dispense with
testimony about her observations at Daughter’s examination. 7 Although all of this
evidence is consistent with the State’s allegation, it is subject to conflicting
interpretations and thus does not compellingly establish the truth of the allegation so as
to render confrontation unnecessary. Mother’s observations corroborate the accusation
of criminal sexual penetration to some extent; they amount to circumstantial evidence
that is consistent with the accusation. Nevertheless, everything Mother observed could
have had an explanation other than sexual abuse. The behavior Mother observed in
Daughter could have been a response to suffering criminal sexual penetration, or it
could have been a manifestation of some other trauma. And the conflicting testimony
about the timing of Daughter’s menstruation renders ambiguous the import of the blood
Mother observed. The DNA evidence also has some corroborative value. However,
there was no evidence to support that the DNA evidence was indicative of sexual
contact versus something like handling the underwear because the evidence did not
establish what sort of bodily material transferred the DNA. In addition, the male DNA
found on Daughter’s underwear had not been and, according to the lab report, would
not be matched with Defendant’s DNA. Hence, the DNA found on Daughter’s
underwear may have been related to sexual contact or may not have been, and it may
or may not have been Defendant’s. Under these circumstances, the import of the DNA
evidence is ambiguous. Similarly, although the SANE’s testimony supports the
inference that Daughter was sexually abused, it also allows for the interpretation that
sexual abuse might not be the explanation for Daughter’s physical condition at the
SANE examination, which occurred as much as one week after the alleged crime.
Because the corroborating evidence is subject to conflicting interpretations, we
conclude that, even when viewed as a whole, it does not compellingly establish that


confrontation as to the crime lab analyst and that the findings of the crime lab were thus admissible
through the testimony of the police officer.
7Various pieces of evidence have no impact our analysis. First, contrary to the State’s argument, a
recording of Daughter’s unconfronted safehouse interview is not corroborating evidence, not least
because it appears from the record that the district court did not view the recording, and the recording
therefore could not have influenced the court’s decision to dispense with confrontation. Cf. State v. Myers,
2008-NMCA-047, ¶¶ 6, 8, 10
,
143 N.M. 710
,
181 P.3d 702
(declining to incorporate certain video
evidence into a review of the sufficiency of the evidence because the district court had not considered it in
rendering its verdict), rev’d on other grounds,
2009-NMSC-016
,
146 N.M. 128
,
207 P.3d 1105
. In addition,
the probation officer’s testimony regarding Defendant’s failure to report Daughter’s disability has only de
minimis corroborative value. The same is true of the testimony the State elicited from both Mother and the
police officer seeking to demonstrate that Defendant had evinced a consciousness of guilt. Mother
testified that another of her daughters told her that her son said that he was going to help Defendant “fix
his finances” because Defendant would be going “somewhere.” And the police officer recounted an
interview he conducted of Defendant after Defendant had been jailed on suspicion of committing a
probation violation. According to the police officer, Defendant said that, before his arrest, Mother had
asked him why he had “hit” Daughter. Defendant denied abusing Daughter but told the police officer that,
because of Mother’s accusation and his criminal history, he expected that he might “be blamed.” Because
of the vagueness of Mother’s testimony and the lack of evidence as to whether the statements regarding
Defendant going “somewhere” were made before or after Defendant learned that he was being accused
of abusing Daughter, we do not view that testimony as corroborating of the allegation that Defendant
committed a sex crime against Daughter. And we do not view Defendant’s statement to the police officer
that he expected to “be blamed” as an admission or awareness of guilt when Defendant made the
statement after his arrest, already charged with violating his probation in relation to Daughter’s stay with
him.
Daughter’s hearsay statements are reliable enough to render confrontation
unnecessary.

{21} Finally, we address the State’s argument that the need to protect Daughter from
further emotional harm supports the conclusion that there was good cause for
dispensing with confrontation. The State relies on State v. Herrera, in which the state, in
a trial on charges of criminal sexual contact of a minor, introduced video depositions of
the two victims in lieu of the victims’ direct testimony.
2004-NMCA-015, ¶¶ 2-3, 7
,
135
N.M. 79
,
84 P.3d 696
. See generally NMSA 1978, § 30-9-17 (1978); Rule 5-504 NMRA.
Allowing the use of deposition testimony under such circumstances is meant to protect
victims from “suffering unreasonable and unnecessary mental or emotional harm” while
ensuring that defendants are “given an adequate opportunity to cross-examine” those
victims. Rule 5-504(B). However, Herrera has no bearing on our analysis because here,
unlike in Herrera, the State never sought to introduce deposition testimony to obviate
the need for live testimony, and Defendant never had “an adequate opportunity to
cross-examine” Daughter. Rule 5-504(B)(3). This case does not present the question of
whether affording the accused an opportunity to confront a vulnerable alleged victim in a
deposition, rather than during the revocation hearing itself, would satisfy due process
under Guthrie.

{22} Instead, the question before us is whether it is consistent with due process to
deny Defendant any opportunity whatsoever to confront Daughter because of her
vulnerability. We recognize that the New Mexico Constitution protects Daughter’s right
to be treated with fairness and with respect for her dignity and privacy, see N.M. Const.
art. II, § 24(A)(1), and that the risk that Daughter would suffer harm was likely the
reason she did not testify. However, Guthrie requires us to focus less on why the
declarant did not testify and more on “the need for, and utility of, confrontation with
respect to the truth-finding process . . . in light of the particular case at hand,
including the specific charge pressed against the probationer.”
2011-NMSC-014, ¶ 43
.
Where “that need is significant,” the declarant “must appear and be subject to
confrontation, regardless of the reasons for his or her absence[,]” which are, “for the
most part, irrelevant” to the analysis.
Id.
Whatever limited weight Guthrie permits us to
give to Daughter’s vulnerability, it is outweighed by the considerations our Supreme
Court has identified as pertinent to the need for confrontation and the reliability of the
evidence.

{23} Based on our application of Guthrie to this case, we conclude that no showing of
good cause rebutted the strong presumption in favor of confrontation. In short, we
cannot conclude, on the record before us, that this is the case our Supreme Court was
“hard[-]pressed to envision”—one in which “personal testimony and confrontation [are
not] required” to prove that the accused committed a new crime. Id. ¶ 38. We therefore
hold that Defendant was denied due process when the district court relied on
Daughter’s hearsay statements to the forensic interviewer without affording Defendant
any opportunity to confront Daughter. 8

{24} We emphasize that our holding is narrow. We address only the question
presented: whether the complete denial of Defendant’s request for confrontation, which
prevented the defense from conducting any cross-examination of Daughter, violated
Defendant’s right to due process. Accordingly, we offer no opinion about the type of
confrontation or the scope of cross-examination that would satisfy due process under
Guthrie while protecting Daughter’s rights under Article II, Section 24 of the New Mexico
Constitution. See Gagnon,
411 U.S. at 782
n.5 (explaining that states may develop
“creative solutions to the practical difficulties” of ensuring due process in probation
violation hearings); Guthrie,
2011-NMSC-014, ¶ 11
(recognizing that “due process is
flexible and calls for such procedural protections as the particular situation demands”
and that “not all situations calling for procedural safeguards call for the same kind of
procedure” (emphasis, internal quotation marks, and citation omitted)); cf. State v.
Fairweather,
1993-NMSC-065
, ¶¶ 23-31,
116 N.M. 456
,
863 P.2d 1077
(holding that the
use of video recordings of depositions of child victims of sexual abuse in a criminal trial
did not violate the defendant’s Sixth Amendment right to confrontation, where defense
counsel cross-examined the victims and the defendant viewed the depositions by
television monitor in another room and was able to confer with counsel during the
depositions); State v. Smith,
2001-NMSC-004, ¶ 23
,
130 N.M. 117
,
19 P.3d 254
(recognizing that, even in the context of a criminal trial, “the trial court has broad
discretion to control the scope of cross-examination”).

CONCLUSION

{25} We reverse the order revoking Defendant’s probation and remand for any further
proceedings that might be necessary, including a new revocation hearing if the State
requests one.

{26}    IT IS SO ORDERED.

ZACHARY A. IVES, Judge

WE CONCUR:

JACQUELINE R. MEDINA, Judge



8Because we hold that Defendant was denied his due process right to confront Daughter, we need not
determine whether there was good cause to dispense with confrontation as to the crime lab analyst.
Should the State request a new revocation hearing and seek to introduce hearsay like the crime lab
report at issue in this appeal, we note that this Court has previously identified particular “minimum
requirements” for the admission of that kind of evidence at a probation violation hearing. See generally
State v. Sanchez,
2001-NMCA-060, ¶¶ 17-18
,
130 N.M. 602
,
28 P.3d 1143
. And if Defendant raises the
issue, the district court should analyze, consistent with Guthrie and this opinion, whether there is good
cause for admitting the evidence without affording Defendant an opportunity to confront its author.
SHAMMARA H. HENDERSON, Judge