January 4, 2023- State of New Mexico v. Jacob Scott, No. A-1-CA-39175

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: January 4, 2023	3
No. A-1-CA-39175	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
JACOB SCOTT,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY	10
James Waylon Counts, District Court Judge	11
Raúl Torrez, Attorney General	12
Benjamin Lammons, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Bennett J. Baur, Chief Public Defender	16
Charles D. Agoos, Assistant Appellate Defender	17
Santa Fe, NM	18
for Appellant	19
Court of Appeals of New Mexico
Filed 1/4/2023 11:29 AM

OPINION	1
HANISEE, Chief Judge.	2
{1} 	Defendant Jacob Scott appeals his convictions, following a jury trial, for two	3
counts of trafficking controlled substances, contrary to NMSA 1978, Section 30-31-	4
20(B) (2006). Defendant argues the following: (1) law enforcement officers’	5
testimony regarding information provided by a confidential informant (CI) violated	6
the 	Confrontation 	Clause; 	(2) 	the 	admission 	of 	such 	testimony 	alternatively	7
constituted inadmissible hearsay amounting to prejudicial constitutional error; (3)	8
the district court erred in denying Defendant’s motion to exclude as a discovery	9
sanction evidence related to law enforcement’s coordination with the confidential	10
informant; and (4) the State violated Defendant’s right to reasonable notice by	11
changing its theory of the case on the morning trial was set to begin. For the reasons	12
that follow, we affirm.	13
DISCUSSION	14
{2} 	The Lincoln County Sheriff’s Office executed an arrest warrant during a	15
traffic stop for charges pending against Defendant in a matter unrelated to this	16
appeal. During that arrest, law enforcement found approximately twenty grams of	17
heroin and seven grams of methamphetamine in Defendant’s underwear. Defendant	18
subsequently was indicted by a grand jury on multiple charges, including the two	19

2
counts of trafficking a controlled substance on which he was convicted.1 At trial,	1
Officers Brack Rains and Pat Montes testified to the circumstances that led to	2
Defendant’s arrest, including information regarding law enforcement’s coordination	3
with a CI.	4
{3} 	Defendant first argues that such testimony violated the Confrontation Clause	5
because it conveyed to the jury out-of-court statements intended to prove the truth	6
of the matter asserted—that is, that Defendant had an intent to distribute the drugs	7
found on his possession. “[W]hether out-of-court statements are admissible under	8
the Confrontation Clause is a question of law, subject to de novo review.” State v.	9
Largo, 2012-NMSC-015, ¶ 9, 278 P.3d 532. The Confrontation Clause ensures that	10
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted	11
with the witnesses against him.” U.S. Const. amend. VI; N.M. Const. art. II, § 14.	12
Under the Confrontation Clause, “an out-of-court statement that is both testimonial	13
and offered to prove the truth of the matter asserted may not be admitted unless the	14
declarant is unavailable and the defendant had a prior opportunity to cross-examine	15
the declarant.” State v. Navarette, 2013-NMSC-003, ¶ 7, 294 P.3d 435.	16
1 Defendant was initially charged as well with one count of racketeering,
contrary to NMSA 1978, Section 30-42-4(C) (2015); one count of extortion,
contrary to NMSA 1978, Section 30-16-9 (1963); and two counts of receiving or
transferring a stolen motor vehicle, contrary to NMSA 1978, Section 30-16D-4(A)
(2009). The State subsequently filed a nolle prosequi as to these charges.

3
{4} 	Here, Defendant asserts that the following testimony of Officer Rains	1
included testimonial statements by the CI used to establish the truth of the matter	2
asserted:	3
State: 	So how did you know [Defendant] was going to be	4
in the area?	5
Officer Rains: 	. . . [W]e arranged through a [CI] to make a	6
purchase.	7
. . . .	8
State: 	On January 24th, you were working with a [CI] and	9
what did you instruct the informant to do?	10
Officer Rains: 	Order narcotics from [Defendant]. Arrange for a	11
meeting.	12
State: 	Did [the CI] give you a general vicinity of where	13
that meeting should occur?	14
Officer Rains: 	He did.	15
{5} 	Defendant further contends that the following testimony of Officer Montes,	16
who found the narcotics during the execution of the warrant for Defendant’s arrest,	17
included impermissible testimonial statements used to prove the truth of the matter	18
asserted:	19
I took [Defendant] out of his vehicle, took him down, advised him of	20
his warrant, was advised to pat him down for narcotics because he was	21
known to have narcotics on him.	22
{6} 	We first consider whether these statements are testimonial. See Navarette,	23
2013-NMSC-003, ¶ 7. Testimonial statements may include “formalized testimonial	24

4
materials, such as affidavits, depositions, prior testimony, or confessions,” as well	1
as “statements that were made under circumstances which would lead an objective	2
witness reasonably to believe that the statement would be available for use at a later	3
trial.” State v. Gurule, 2013-NMSC-025, ¶ 35, 303 P.3d 838 (internal quotation	4
marks and citation omitted). Our Supreme Court has explained that “a statement can	5
only be testimonial if the declarant made the statement primarily intending to	6
establish some fact with the understanding that the statement may be used in a	7
criminal prosecution.” Navarette, 2013-NMSC-003, ¶ 8.	8
{7} 	Here, even if we were to assume without deciding that a “reasonable person”	9
in the CI’s position—that being the position of someone working with law	10
enforcement officers to set up a controlled buy for the sale of narcotics—“would	11
objectively believe that [his or her] statement . . . would be used in a later criminal	12
prosecution,” 	Gurule, 	2013-NMSC-025, 	¶ 	38, 	we 	cannot 	conclude 	that 	the	13
challenged testimony at issue included testimonial statements made by the CI.	14
Indeed, there is no actual statement to analyze for its testimonial nature here, given	15
that the testimony in question wholly lacks any words allegedly uttered by the CI. In	16
order to demonstrate a Confrontation Clause violation, the State must elicit	17
testimony conveying a specific statement made by an out-of-court declarant who is	18
unavailable for cross-examination. Navarette, 2013-NMSC-003, ¶ 7. Defendant has	19

5
failed to identify the occurrence of such testimony, and our own thorough review of	1
the record likewise reveals none.	2
{8} 	Stated differently, the testimony Defendant contends triggered his right to	3
confront by cross-examination the CI altogether lacks words spoken by the CI. To	4
the extent any of the officers’ testimonies can even be construed as attributable to	5
the CI, that aspect of it does not assert who was the seller or who the buyer was at	6
any completed or planned controlled purchase. Indeed, only Officer Rains himself	7
stated he instructed the CI to “order narcotics from [Defendant,]” a statement about	8
which Officer Rains was subject to cross-examination. And nothing within Officer	9
Montes’s testimony suggested any statement attributable to the CI regarding	10
Defendant’s plan for the narcotics in his possession.	11
{9} 	Defendant argues that Confrontation Clause violations may nonetheless occur	12
when testimony incorporates implied or inferred statements by absent declarants,	13
thus precluding the need for a violation to arise from the utterance of a direct	14
statement by that absent declarant. Defendant further contends that because the	15
“questions and answers [at issue here] conveyed the substance of testimonial	16
statements” by a CI, such testimony violated the Confrontation Clause despite the	17
absence of direct statements by the CI. We are unpersuaded by Defendant’s	18
argument in this regard and consider the authorities Defendant cites in support	19
thereof to be distinct from the instant case. For example, Defendant cites Gray v.	20

6
Maryland, 523 U.S. 185, 196 (1998), for the proposition that the Confrontation	1
Clause prohibits the use of implied testimony of absent declarants. There, a redacted	2
version of a codefendant’s confession was introduced into evidence, omitting the	3
defendant’s name and including instead a blank space or the word “deleted” where	4
the name would have been. Id. at 188. While we agree with the United States	5
Supreme Court’s reasoning that the type of inferences at issue in Gray “involve	6
statements that, despite redaction, obviously refer directly to someone, often	7
obviously the defendant,” we cannot overlook the distinct fact that a statement was	8
entered into evidence in the form of the codefendant’s confession. Id. at 196. Here,	9
there was no such comparable statement by the CI that was entered into evidence.	10
{10} 	Defendant further cites United States v. Meises, 645 F.3d 5 (1st Cir. 2011),	11
and United States v. Jones, 930 F.3d 366 (5th Cir. 2019), for the proposition that a	12
Confrontation Clause violation may arise from law enforcement testimony that	13
substantively—even if not explicitly—refers to statements made by an absent	14
declarant. In both cases, law enforcement testimony described tips received from	15
CIs regarding alleged crimes that were committed by the defendants, who were	16
directly identified by the CIs as having committed the alleged crimes. See Meises,	17
645 F.3d at 21; Jones, 930 F.3d at 376. In Meises, the law enforcement agent testified	18
that the CI identified the defendants as having participated in the drug deal. 645 F.3d	19
at 21. In Jones, the law enforcement agent “testified that he knew that [the defendant]	20

7
had received a large amount of methamphetamine because of what the CI told him	1
he heard from others.” 930 F.3d at 376. Here, on the other hand, the CI’s information	2
provided to law enforcement did not explicitly incriminate Defendant as having	3
actually committed the crime at issue—that is, distributing narcotics, but rather	4
explained the context for law enforcement’s investigation.	5
{11} 	As further stated in Jones, “[t]estifying officers may refer to out-of-court	6
statements to provide context for their investigation or explain ‘background’ facts,	7
so long as the out-of-court statements are not offered for the truth of the matter	8
asserted therein, but instead for another purpose: to explain the officer’s actions.”	9
Id. at 377 (internal quotation marks and citation omitted); see also id. (emphasizing	10
that “when such evidence comes into play, the prosecution must be circumspect in	11
its use, and the trial court must be vigilant in preventing its abuse” and noting that	12
“[s]tatements exceeding the limited need to explain an officer’s actions can violate	13
the Sixth Amendment—where a nontestifying witness specifically links a defendant	14
to the crime” (alteration, internal quotation marks, and citations omitted)). We	15
conclude the challenged portions of the officers’ testimony in the instant case fit into	16
this type of permissible reliance on out-of-court statements by CIs, given the	17
nonspecific nature of the testimony at issue, which focuses generally on the function	18
of controlled buys and the manner in which law enforcement relies on CIs.	19
Therefore, even though Jones and Meises establish that implied statements may in	20

8
certain circumstances result in Confrontation Clause violations, we conclude that the	1
implied statements in the instant case are wholly distinct from the implied statements	2
in such cases and do not constitute Confrontation Clause violations.2
3
{12} 	We turn now to Defendant’s argument that the above testimony of Officers	4
Rains and Montes constituted inadmissible hearsay. “Hearsay” is defined as “a	5
statement that . . . the declarant does not make while testifying at the current trial or	6
hearing,” and that “a party offers in evidence to prove the truth of the matter asserted	7
in the statement.” Rule 11-801(C) NMRA. Just as a Confrontation Clause violation	8
requires an out-of-court testimonial statement by an unavailable declarant, see	9
Navarette, 2013-NMSC-003, ¶ 7, so does the hearsay rule, which then requires the	10
out-of-court statement to have been offered to prove the truth of the matter asserted.	11
2We note that our conclusion in this regard is in part additionally informed by
Defendant’s decision not to raise on appeal arguments regarding prosecutorial
misconduct or sufficiency of the evidence, which would have (1) afforded us the
opportunity to examine the prosecutor’s statements during opening and closing
arguments, which are not evidence, see State v. Cordova, 2014-NMCA-081, ¶ 14,
331 P.3d 980 (“[A]rgument of counsel is not evidence.”); and (2) allowed us to
examine whether the State had adequately proven the intent element of the charged
crime of possession with an intent to distribute, which was ostensibly only supported
by the testimony of law enforcement and references to the controlled buys conducted
with the CI. See State ex rel. Hum. Servs. Dep’t v. Staples, 1982-NMSC-099, ¶¶ 2-
3, 98 N.M. 540, 650 P.2d 824 (cautioning that an appellate court should not reach
issues that the parties have failed to raise in their briefs). On the other hand, we do
not intend to endorse the litigation approach taken by the prosecutor here. Having
inferred that the informant would play no role in the testimony, the prosecutor used
what can be viewed as sleight of hand to use the circumstance of the buy the officers
set up to prove intent. We consider the approach to be unduly sharp practice.

9
Here again, however, the officers’ testimony did not repeat any out-of-court	1
statements by the CI—the would-be declarant. Without repeating an actual statement	2
made by the CI, neither officers’ testimony constitutes hearsay, and we conclude the	3
district court did not err in overruling Defendant’s objections on such basis. Our	4
above 	conclusions 	regarding 	Defendant’s 	Confrontation 	Clause 	and 	hearsay	5
assertions as well preclude further review of Defendant’s argument regarding	6
prejudicial constitutional error, given that such argument rests also upon his	7
assertion of error related to the admission of the Officers’ testimony regarding the	8
CI. Finding no such error, we decline to consider this argument further.	9
{13} 	We next briefly address Defendant’s argument that the district court erred in	10
denying his motion to exclude the officers’ testimony as a discovery sanction. “Trial	11
courts possess broad discretionary authority to decide what sanction to impose when	12
a discovery order is violated.” State v. Le Mier, 2017-NMSC-017, ¶ 22, 394 P.3d	13
959. “The propriety of a trial court’s decision to exclude or not to exclude witnesses	14
is reviewed for abuse of discretion.” Id. “An abuse of discretion occurs when the	15
ruling is clearly against the logic and effect of the facts and circumstances of the	16
case. We cannot say the trial court abused its discretion by its ruling unless we can	17
characterize it as clearly untenable or not justified by reason.” Id. (internal quotation	18
marks and citation omitted). “In reviewing the district court’s decision, [the appellate	19

10
c]ourt views the evidence—and all inferences to be drawn from the evidence—in	1
the light most favorable to the district court’s decision.” Id.	2
{14} 	While Defendant contends that the district court abused its discretion by	3
denying his motion to exclude the officers’ testimony regarding the CI, under a	4
theory that testimony related to the CI curtailed Defendant’s ability to present his	5
planned defense, following our own review of the record and briefing herein, we	6
conclude there to be no error in the district court’s denial of such motion. Indeed, we	7
credit the district court’s observation that defense counsel was made aware of Officer	8
Rains’ testimony to the grand jury regarding the CI, and that Defendant therefore	9
had reasonable notice that the State may elect at trial to pursue a theory based upon	10
such information and present evidence in support thereof. We discern no error in the	11
district court’s refusal to exclude testimony as a discovery sanction.	12
{15} 	Defendant’s final argument—that he was deprived of reasonable notice	13
regarding the State’s theory of the case—is for similar reasons unavailing. 3 As	14
stated, Defendant knew of the CI’s involvement disclosure by the State to him of the	15
grand jury proceedings and, therefore, had notice that the State might well elect to	16
3 Despite asserting that the State deliberately suppressed further evidence
regarding the confidential informant, Defendant does not claim prosecutorial
misconduct, and we will not make such an argument on his behalf. See Staples, 1982-
NMSC-099, ¶¶ 3, 5 (stating that “courts risk overlooking important facts or legal
considerations when they take it upon themselves to raise, argue, and decide legal
questions overlooked by the lawyers who tailor the case to fit within their legal
theories” (alteration, internal quotation marks, and citation omitted)).

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pursue a theory of prosecution that incorporated this aspect of its investigation.	1
Defendant fails to demonstrate that the district court erred in its ruling in this regard.	2
CONCLUSION	3
{16} 	For the above reasons, we affirm.	4
{17} 	IT IS SO ORDERED.	5
______________________________	6
J. MILES HANISEE, Chief Judge	7
WE CONCUR:	8
________________________________	9
MEGAN P. DUFFY, Judge	10
________________________________	11
MICHAEL D. BUSTAMANTE, Judge	12
retired, sitting by designation	13