February 17, 2020- State of New Mexico v. Jason Krcelic, No. A-1-CA-38054

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	NO. A-1-CA-38054	4
JASON KRCELIC,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY	7
James W. Counts, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
for Appellee	11
Louis E. Lopez	12
El Paso, TX	13
Mary Stillinger	14
El Paso, TX	15
for Appellant	16
MEMORANDUM OPINION	17
VANZI, Judge.	18
{1} 	Defendant appeals from the district court’s judgment and sentence, convicting	19
him for kidnapping, armed robbery, conspiracy to commit armed robbery, three	20
counts of child abuse, and three counts of aggravated assault with a deadly weapon.	21
Unpersuaded that Defendant demonstrated error, we issued a notice of proposed	22
Court of Appeals of New Mexico
Filed 2/17/2020 9:53 AM

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summary disposition, proposing to affirm. Defendant has responded to our notice	1
with a memorandum in opposition. We remain unpersuaded and affirm.	2
{2} 	On appeal, Defendant has challenged the district court’s admission of text	3
messages found on a cell phone located at the scene of the crime. Our notice	4
proposed 	to 	reject 	Defendant’s 	theories 	that 	the 	text 	messages 	constituted	5
inadmissible hearsay and violated his confrontation right. In response to our notice,	6
Defendant abandons his challenge to the admission of all text messages except those	7
purported to be from Defendant’s mother to Defendant. We limit our analysis	8
accordingly. Defendant’s response further asks us to consider that this cell phone	9
and the text messages retrieved therefrom constitute the only evidence linking	10
Defendant to the crimes charged. [MIO 1-2] We agree that this evidence appears	11
critical to identifying Defendant as one of the perpetrators of this incident.	12
{3} 	“Hearsay is an out-of-court statement offered to prove the truth of the matter	13
asserted.” State v. Saiz, 2017-NMCA-072, ¶ 34, 404 P.3d 422 (internal quotation	14
marks and citation omitted); see Rule 11-801(C) NMRA. “ ‘Statement’ means a	15
person’s oral assertion, written assertion, or nonverbal conduct, if the person	16
intended it as an assertion.” Saiz, 2017-NMCA-072, ¶ 34 (quoting Rule 11-801(A)).	17
An assertion is a statement that may either be true or false. Id. “[S]tatements or	18
conduct which are non-assertive are not hearsay.” Id. (internal quotation marks and	19
citation omitted).	20

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{4} 	Defendant represents the challenged text conversation between Defendant and	1
his mother to be as follows:	2
Mother: “You could have at least said bye. Also hope you aren’t going	3
to do nothing dumb. Only because the bandana, gun, and tee shirt,	4
question mark. Call it as [sic] mom’s intuition.”	5
Defendant: “I did say bye.”	6
Mother: “No, you didn’t. Please don’t do nothing stupid.”	7
Defendant: “I’m not.”	8
Mother: “Tell Clayton, too, because if he does, I’ll be mad.”	9
[MIO 2 (alteration in original)]	10
{5} 	Our notice proposed to hold that the statements in Defendant’s mother’s text	11
messages express concern, do not express an intent to make an assertion of fact, and	12
the relevant portions do not constitute assertions that may be true or false. [CN 4] In	13
response, Defendant contends the statements imply that Defendant’s mother had	14
seen or somehow believed that Defendant had a bandana, a gun, and a tee-shirt, all	15
of which were used in the offense. [MIO 2] Defendant argues the State introduced	16
the statement about the bandana, gun, and tee-shirt to prove the truth of her	17
assertion—i.e., that she knew Defendant had the bandana, gun, and tee-shirt. [MIO	18
3]	19
{6} 	We are not persuaded that Defendant’s mother’s vague statement that she	20
hoped Defendant would not do anything dumb because of the bandana, gun, and tee-	21

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shirt, which ended with a “question mark,” makes an assertion that Defendant’s	1
mother knew Defendant had these items or that they belonged to Defendant. This	2
vague statement does not assert that she saw Defendant with these items, and does	3
not make an assertion of how she became aware of the items, whether or why she	4
may have believed they belonged to Defendant, or why they caused her concern. To	5
the extent Defendant contends the statement implies an assertion, we have held that	6
“implied assertions are not hearsay.” Saiz, 2017-NMCA-072, ¶ 34. Similarly, in	7
Saiz, we construed the text message—“You better not be f[ ]ing me over, prim”—to	8
be “an implied expression of skepticism about [the d]efendant’s intentions or	9
actions, and/or . . . an implied warning or an implied threat of an undefined	10
consequence” that was not an assertion of fact being offered for the truth of the	11
matter asserted. Id. ¶ 35 (internal quotation marks omitted).	12
{7} 	Although Mother may have made some assertions in the course of the text	13
conversation—she 	hoped 	Defendant 	was 	not 	going 	to 	do 	something 	stupid;	14
Defendant did not say “bye”; and she will be mad if Clayton does something	15
stupid—none of these statements were offered to prove the matters asserted. [MIO	16
2-3] For these reasons, we conclude the district court did not err by ruling that the	17
hearsay rule does not bar admission of the text conversation.	18
{8} 	Lastly, Defendant contends the admission of the text conversation violates the	19
Confrontation Clause because Defendant’s mother was not available to be cross-	20

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examined. [MIO 3-4] Our notice proposed to hold that her text messages were not	1
testimonial for purposes of the Confrontation Clause. In response, Defendant argues	2
that her statements were prejudicial assertions. [MIO 4] The Confrontation Clause,	3
however, “prohibits the introduction of testimonial hearsay unless the accused has	4
had the opportunity to cross-examine the declarant.” State v. Carmona, 2016-	5
NMCA-050, ¶ 15, 371 P.3d 1056 (emphasis added) (citing Crawford v. Washington,	6
541 U.S. 36, 54 (2004)). This prohibition “applies to witnesses against the accused	7
who provide testimony for the purpose of establishing or proving some fact.” State	8
v. Jimenez, 2017-NMCA-039, ¶ 12, 392 P.3d 668 (internal quotation marks and	9
citation omitted). “ ‘Testimonial statements’ include those that convey information	10
about evidence that was gathered after an emergency has been resolved and the	11
police have turned their attention to collecting evidence for use in a criminal	12
prosecution against a known criminal perpetrator.” Id. (internal quotation marks and	13
citation omitted).	14
{9} 	Defendant’s contention that his mother’s statements were assertions that	15
proved important to the State’s case does not establish that the statements were made	16
as a part of a police investigation or in any other context that would suggest they	17
were testimonial. Based on the foregoing, we hold the district court did not err in	18
admitting Defendant’s mother’s text messages retrieved from his cell phone.	19
{10} 	We affirm the district court’s judgment and sentence.	20

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{11} 	IT IS SO ORDERED.	1
_________________________________	2
LINDA M. VANZI, Judge	3
WE CONCUR:	4
_________________________________	5
KRISTINA BOGARDUS, Judge	6
_________________________________	7
JACQUELINE R. MEDINA, Judge	8