June 11, 2019- State of New Mexico v. Randall Julian, No. A-1-CA-35746

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-35746
5 RANDALL JULIAN,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
8 Daniel A Bryant, District Judge
9 Hector H. Balderas, Attorney General
10 Emily Tyson-Jorgenson, Assistant Attorney General
11 	Santa Fe, NM
12 for Appellee 	,
13 	Bennett J. Baur, Chief Public Defender
14 C. David Henderson, Appellate Defender
15 	Santa Fe, NM
16 for Appellant
17 	MEMORANDUM OPINION
· 18 	M. ZAMORA, Chief Judge.
19 	{1} 	Defendant Randall Julian appeals his conviction for forgery (make or alter)
20 	(over $2,500 but not more than $20,000), pursuant to NMSA 1978, Section 30-16-
21 	10 (2006), and fraudulently obtaining a motor vehicle, pursuant to NMSA 1978,
22 	Section 30-l 6D-3 (2009). Defendant argues that (1) his confrontation rights were
Court of Appeals of New Mexico
Filed 6/11/2019 11:35 AM

l 	violated when the district court admitted implied testimonial statements from a
2 witness who 	did not testify; 	and (2) his 	convictions violate double jeopardy.
3 Concluding that Defendant's confrontation rights were not violated, but accepting
4 the State's concession that his right to be free from double jeopardy was violated,
5 we 	affirm, 	in 	part, 	reverse, 	in part, 	and 	~emand 	with 	instructions 	to 	vacate
6 Defendant's conviction for fraudulently obtaining a motor vehicle.
7 BACKGROUND
8 	{2} 	This case arises from an incident in which Defendant obtained a brown
9 Cadillac from Main Street Auto in Ruidoso, New Mexico, after providing a check
10 	in the amount of $16,000. The check reflected a checking account in the name· of
11 	Christopher Eisenberg and bore the memo "Nephew's Car." The check bounced
12 because the checking account on which it was drawn was a closed account. Officer
13 	Christopher Bryant of the Ruidoso Police Department was dispatched to Main Street
14 Auto regarding the $16,000 "hot check" and spoke to Bob Fincannon, the owner of
15 	Main Street Auto. After speaking to Mr. Fincannon, Officer Bryant's investigation
16 led him to search for Defendant and a brown Cadillac.
17 	{3} 	Officer Bryant located Defendant and told him that the $16,000 check he had
18 	written to Main Street Auto had bounced. Defendant admitted to providing the check
19 and to receiving the car in return for providing the check. Specifically, Defendant
20 told Officer Bryant that he had given the check to Main Street Auto for the Cadillac
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1 and told him "that a relative of his, named Chris, had loaned him the money until he
2 could get a settlement from a car wreck he was in, and then he was going to pay his
3 relative back."
4 	{4} 	During the investigation, Officer Bryant discovered that the check was made
5 on the account of Christopher Eisenberg and purportedly signed by Mr. Eisenberg.
6 Mr. Eisenberg is an officer of the Ruidoso Police Department and a colleague of
7 Officer Bryant's. Mr. Eisenberg testified at trial that he did not sign the check, did
8 not know Defendant, did not give Defendant permission to write a check on his
9 account, and had not done any business with Main Street Auto.
10 {5} 	Prior to trial, Mr. Fincannon died. As a result and before trial, Defendant
11 	moved to exclude "the check and any and all information and references related to
12 Mr. Fincannon," arguing that since Mr. Fincannon died before Defendant could
13 	cross-examine him, it would be a violation of his right to confront Mr. Fincannon
14 about how he received the check. The district court denied Defendant's motion in
15 	limine but ruled that Officer Bryant would only be allowed to testify that the check
16 was given to him by Mr. Fincannon if the State introduced evidence of Defendant's
17 admissions that tie the 	$16,000 -check to 	the transaction. 	The jury 	convicted
18 	Defendant of forgery and fraudulently obtaining a motor vehicle.
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1 DISCUSSION
2 I. 	Confrontation Clause
3 {6} 	The Sixth Amendment of the United States Constitution and Article II Section
4 	14 of the New Mexico Constitution provide that in criminal prosecutions, the
5 accused shall have the right to be confronted with the witnesses against him.
6 "Claimed violations of the Sixth Amendment right to confrontation are reviewed de
7 novo." State v. 	Tollardo, 2012-NMSC-008, , 	15, 275 P.3d 110. "We review the
8 admission of evidence pursuant to the hearsay rule for an abuse of discretion." State
9 v. Leyba, 2012-NMSC-037,, 10, 289 P.3d 1215. The United States Supreme Court
10 further clarified the Confrontation Clause in Crawford v. Washington, 541 U.S. 36,
11 	68 (2004 ), providing that in order for a testimonial hearsay statement to be admitted
12 at trial, the witness must be unavailable at trial and the defendant must have had a
13 	prior opportunity to cross-examine the witness. See State v. Navarette, 2013-NMSC-
14 	003,, 7,294 P.3d 435. A testimonial statement is "typically a solemn declaration or
15 	affirmation made for the purpose of establishing or proving some fact." Tollardo,
16 2012-NMSC-008,, 15. "Crawford does not apply, however, where the testimonial
17 statement is not offered to prove the truth of the matter asserted." State v. Dietrich,
18 2009-NMCA-_031,, 50, 145 N.M. 733,204 P.3d 748. Thus, if the testimony was not
19 offered to prove the truth of the matter asserted, Defendant's right to confrontation
20 was never triggered. See id.
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1 {7} 	Defendant contends that under the Sixth Amendment of the U.S Constitution
2 	and under Article II,§ 14 of the New Mexico Constitution, his confrontation rights
3 were 	violated 	because 	the 	State 	introduced 	evidence 	that 	made 	implied
4 representations about Mr. Fincannon's statements to· Officer Bryant. Defendant
5 argues that Officer Bryant's testimony went beyond establishing the context of his
6 investigation and instead was intended to prove the truth of the matter asserted by
7 including "testimonial statements [from Mr. Fincannon] that [Defendant] gave him
8 a $16,000 check in exchange for the car; that the check had not cleared; that
9 	[Defendant] used the check to obtain the car; and that the check used was a forgery."
10 Defendant cites various out-of-state and federal cases to support the proposition that
11 	this is "implied hearsay" and thus violates the Confrontation Clause.
12 {8}
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The disputed testimony is as follows: .
Prosecutor: Now, ... did you speak to Mr. Fincannon?
Officer Bryant: Yes
Prosecutor: Now, where did you go or, who-and/or who did you seek out
after that?
Officer 	Bryant: 	Continuing 	with 	my 	investigation, 	I 	was 	looking 	for
[Defendant].
Prosecutor: And what were you looking for in addition to [Defendant]?
Officer Bryant: Okay, I was looking for a 2008 Cadillac, 4-door car that he
had got from Main Street Auto.
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Prosecutor: Now, what color was that Cadillac?
Officer Bryant: It was a brown.
[11/18/15 CD 3:04:27-46, 3:05:06-22]
Prosecutor: 	After 	talking 	to 	. 	. 	. 	Defendant, 	did 	you 	continue 	your
investigation?
Officer Bryant: Yes, I did continue the investigation.
Prosecutor: In your later investigation, did you have occasion to go back to
Main Street Auto?
Officer Bryant: Yes, I did, continuing my investigation.
Prosecutor: Let me show you State's Exhibit #1, front and back, ... do you
recognize State's #1?
Officer Bryant: Yes, I do.
Prosecutor: How do you recognize it?
Officer Bryant: This was the check that was given to me-that was the hot
check.
Prosecutor: And who did you ...
Defense Counsel: Objection.
[Unrecorded bench conference.]
Prosecutor: Did you obtain State's Exhibit #1 frorri Main Street Auto?
Officer Bryant: I did.
Prosecutor: On what date?
Officer Bryant: May 16th.
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I
2 	Prosecutor: Had, in your day before interview of . . . Defendant had he
3 	mentioned a person named Chris?
4 	Officer Bryant: Yes, he did.
5 	Prosecutor: Now that you had received the check-State's #I-from Mr.
6 	Fincannon, did a light go off?
7 	Officer Bryant: Yes, it did.
8 	Prosecutor: Why did the light go off?
9 	Officer Bryant: The check is-belongs to Chris Eisenberg. I've known Chris
IO 	for over ten years.
11 	{9} 	This Court has previously addressed this issue in Dietrich, 2009-NMCA-03 I.
12 	In Dietrich, the defendant contended that his Sixth Amendment confrontation rights
13 	were violated when an alleged victim did not testify at trial, and the detective
14 testified to statements the alleged victim made to him. Id. 1 46. The defendant in that
15 	case had initially called the police to report a burglary, but during the detective's
16 	investigation, the alleged victim stated that the defendant had tried to rape him. Id.
17 11 2-3. Thereafter the investigation developed into an investigation about the
18 	defendant's sexual misconduct. Id. 13. The detective testified about statements the
19 alleged victim made to him, including that the defendant had tried to rape him. Id.
20 11 46, 48. On appeal, the defendant argued that the admission of these statements
21 	amounted 	to 	fundamental 	error 	because 	they 	violated 	the 	defendant's 	Sixth
22 Amendment rights. Id. 11 46-4 7. This Court disagreed and stated that the alleged
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1 victim's statements were not offered to prove that he was a victim of an attempted
2 rape, but rather, they were offered "to demonstrate.how the investigation proceeded
3 from one of burglary to one of sexual misconduct." Id. 	,-r 54. We held that the
4 evidence was not hearsay, and concluded that "simply, it was not offered to prove
5 the truth of the matter asserted." Id. ,-r 54.
6 	{to} 	Defendant argues that Dietrich does not apply to the present case because the
7 statements in Dietrich were not relevant to the charges submitted to the jury, but
8 were only relevant to explain why the investigation changed from a burglary
9 investigation into a sexual misconduct investigation. Defendant contends that in this
10 case, "[f]ar from merely explaining the course of [Officer] Bryant's investigation,
11 	this testimony thus provided the jury significant detail about the substance of Mr.
12 Fincannon's testimonial statements and was directly relevant to the elements of the
13 	crimes of conviction."
14 	{11} 	We disagree with Defendant and conclude that Dietrich is controlling. Officer
15 	Bryant's testimony explained the steps he took in his investigation after speaking
16 with Mr. Fincannon. This is not hearsay because the statements were not offered for
17 the truth of the matter asserted, but rather to show the course of Officer Bryant's
18 	investigation and how he came to look for Defendant and the Cadillac in the first
19 place. The elicited testimony from Officer Bryant was, at a minimum, evidence of
20 the Defendant's identity of the person who gave Mr. Fincarinon the check for the
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1 p~rchase of the Cadillac. Additionally, whereas in Dietrich the officer testified to
2 specific statements the alleged victim made to him, here, Officer Bryant did not
3 testify to any specific statements made by Mr. Fincannon. Rather, Officer Bryant
4 merely explained the process . of his investigation and the actions he took after
5 speaking to Mr. Fincannon. Any implications arising from this testimony do not
6 amount to statements offered for the truth of the matter asserted and are therefore
7 not hearsay. Because New Mexico precedent resolves this issue, we do not consider
8 Defendant's out-of-state and federal case law arguments. Therefore, we hold that
9 Officer Bryant's testimony was not hearsay and that Defendant's confrontation
10 rights were not violated.
11 	II. 	Double Jeopardy
12 	{12} 	Defendant argues that his convictions for forgery and fraudulently obtaining
13 	a motor vehicle violate double jeopardy because the elements of one is subsumed
14 within the other. The State concedes that Defendant's double jeopardy rights were
15 	violated and asks this Court to vacate his lesser conviction. Although we are not
16 bound by the State's concession, we accept it under the facts of this case. See State
17 v. Montoya, 1993-NMCA-097, ,-r 28, 116 N.M. 297, 861 P.2d 978 (accepting the
18 	state's concession that the defendant's convictions of fraud and making a false
19 written statement violated double jeopardy). "When double jeopardy exists, the
20 offense carrying the lesser punishment is to be vacated." State v. Lee, 2009-NMCA-
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1 075, ,r 16, 146 N.M. 605, 213 P.3d 509. Defendant's conviction for fraudulently
2 obtaining a motor vehicle was a fourth degree felony and his conviction for forgery
3 was a third degree felony. 	Therefore, Defendant's conviction for 	fraudulently
4 obtaining a motor vehicle must be vacated.
5 CONCLUSION
6 	{13} 	For 	the 	aforementioned 	reasons, 	Defendant's 	conviction 	for 	forgery 	1s
7 affirmed. His conviction for fraudulently obtaining a motor vehicle is reversed and
8 remanded with instructions to vacate and for further proceedings consistent with this
9 opm10n.
10 	{14}
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IT IS SO ORDERED.
WE CONCUR:
15 ~..J_.._..JL_~~(A.L..1.,....,.~::::::::::=J=,:::::::......~~
16 BRIANA H. L.l~~JL'L
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