December 1, 2021- State of New Mexico v. Lucio Godinez, Jr., No. A-1-CA-38063

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: December 1, 2021	3
No. A-1-CA-38063	4
STATE OF NEW MEXICO,	5
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Plaintiff-Appellee,
v.
LUCIO GODINEZ, JR.,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James W. Counts, District Judge
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	20
Court of Appeals of New Mexico
Filed 12/1/2021 11:13 AM

OPINION	1
IVES, Judge.	2
{1} 	Defendant Lucio Godinez, Jr. appeals the revocation of his probation, arguing	3
in part that the district court violated his due process right to confront and cross-	4
examine witnesses at the revocation hearing. The key precedent that guides us is	5
State v. Guthrie, in which our Supreme Court recognized that a person who is	6
accused of a probation violation has a due process right “to confront and cross-	7
examine adverse witnesses []unless the hearing officer specifically finds good cause	8
for not allowing confrontation[.]” 2011-NMSC-014, ¶ 12, 150 N.M. 84, 257 P.3d	9
904 (emphasis, internal quotation marks, and citation omitted). In Guthrie, the Court	10
described general principles and specific factors that New Mexico courts should	11
consider when determining whether “good cause” exists, and the Court considered	12
those principles and factors in deciding that a probationer who was accused of failing	13
to complete a treatment program did not have a due process right to confront his	14
probation officer. Id. ¶¶ 45-49. Defining the inquiry as an assessment of “the	15
necessity for, and utility of, confrontation with respect to the truth-finding process,”	16
the Guthrie Court made that determination in the context of “straightforward and	17
routine charges—the simple, objective, and uncontroverted fact that probationer	18
either did or did not successfully complete the program[.]” Id. ¶ 21 (internal	19
quotation marks and citation omitted). Defendant’s appeal requires us to apply	20
Guthrie in a very different context—one our appellate courts have not previously	21

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addressed in a precedential opinion. Here, the State accused Defendant of violating	1
his probation by committing a new crime, criminal sexual penetration of his	2
daughter, and the district court determined that Defendant did not have a right to	3
confront and cross-examine Daughter. Applying Guthrie to a set of facts not clearly	4
contemplated by the governing framework that Guthrie created, we conclude, based	5
on the record before us, that Defendant had a due process right to confront Daughter.	6
Because the district court did not afford Defendant any opportunity to do so, we	7
reverse and remand for any further proceedings that might be necessary, including a	8
new revocation hearing if the State requests one.1
9
BACKGROUND	10
{2} 	In 2011, Defendant pleaded no contest to two counts of second-degree	11
criminal sexual contact of a minor, contrary to NMSA 1978, Section 30-9-13(B)	12
(2003). The district court entered judgment on Defendant’s plea and sentenced	13
Defendant to nine years’ imprisonment for each count. The court made the two	14
sentences consecutive and suspended all but two years of Defendant’s eighteen-year	15
sentence. The court also imposed a five-to-twenty-year probationary term to follow	16
the two-year prison term. See generally NMSA 1978, § 31-20-5.2(A), (F)(3) (2003).	17
{3} 	Defendant completed his prison term in 2013. In 2018, the State sought to	18
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.

3
revoke Defendant’s probation, alleging that Defendant violated its conditions by (1)	1
omitting Daughter’s autism diagnosis when he requested permission from his	2
probation officer to have her stay with him and (2) committing criminal sexual	3
penetration against Daughter.	4
{4} 	At the hearing on the State’s petition to revoke Defendant’s probation, the	5
district court heard testimony from Defendant’s probation officer, Daughter’s	6
mother, a sexual assault nurse examiner (SANE), a forensic safehouse interviewer,	7
and a New Mexico State Police officer. Aside from noting the fact of Defendant’s	8
arrest on suspicion of violating the condition of his probation that he not commit any	9
new crimes, the probation officer only testified to evidence of the allegation that	10
Defendant 	violated 	his 	probation 	by 	failing 	to 	report 	Daughter’s 	disability.	11
Defendant denied that he had committed criminal sexual penetration against	12
Daughter.	13
{5} 	Daughter did not testify. The State presented evidence that Daughter’s	14
condition was likely to regress if she had to testify in court about the alleged crime.	15
The State’s evidence consisted of witnesses’ testimony about statements made by	16
Daughter. The remainder of the State’s evidence was testimony regarding witnesses’	17
personal observations of Daughter’s demeanor and physical condition after the	18
alleged crime, as well as evidence of blood and the DNA of an unidentified male on	19
some of Daughter’s underwear.	20

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{6} 	Mother testified that Daughter, an adult who functioned at a first-grade level	1
intellectually, had been visiting Defendant for what had been planned as a two-week	2
stay. Near the end of those two weeks, Daughter did not call in the morning like she	3
normally would. After Daughter did not answer Mother’s call, Mother called	4
Defendant who, after first saying he was too busy to put Daughter on the phone, did	5
so after Mother demanded to speak with Daughter. When Defendant put Daughter	6
on the phone, Daughter was “hysterical” and asked to be picked up.2 Mother went	7
to pick up Daughter and, when Defendant arrived at a meeting place with Daughter,	8
Daughter was leaning against the window of Defendant’s car and crying. Daughter	9
hugged Mother while crying and did not say goodbye to Defendant, which was	10
unusual. On their way home, Daughter said, “I’m tired; I’m tired,” and she told	11
Mother that she never wanted to return to Defendant’s home. When they arrived	12
home, Daughter hugged Mother’s fiancé and again began to cry and went to sleep	13
soon thereafter. According to Mother, over the next few days, Daughter acted	14
unusually and appeared “distraught”: Daughter at times followed Mother around the	15
house and at other times sat idly on the couch rather than doing the things she would	16
have normally done; cried “loudly” in the shower, where Mother would find her in	17
the tub; woke in the night and screamed; hit the table; and asked, “Why? Why? Why,	18
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.

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dad?” Mother asked Daughter if Defendant had done something to her, and Daughter	1
pointed to “her behind” and asked to talk to the police. According to Mother,	2
Daughter said that Defendant “hit her” and that “it” happened twice.	3
{7} 	Mother also testified that she observed blood on underwear in the suitcase	4
Daughter had taken for her stay with Defendant. And the State elicited testimony	5
from Mother indicating that the blood could not be attributable to Daughter’s	6
menstrual cycle because she had her period at the end of June, after her stay with	7
Defendant, which was during the middle of the month. There was, however,	8
conflicting testimony on this point: the SANE testified that Daughter stated at her	9
examination that she had menstruated the previous Sunday, in the middle of the	10
month. The police officer testified that on June 22, 2018, as much as one week after	11
the alleged crime, he collected some of the clothing Daughter had taken for her stay	12
with Defendant and brought it to the state crime lab. He testified that the crime lab	13
found male DNA on the “inside crotch area” of Daughter’s underwear but that the	14
DNA had not been compared to that of any particular person. Although he testified	15
that he had collected a DNA sample from Defendant, the results of a comparison to	16
that sample were still pending at the time of the hearing, and the police officer read	17
from the initial crime lab report that no comparison would be possible because of	18
how little DNA had been found.	19
{8} 	The SANE testified that when she examined Daughter on Friday, June 22, she	20

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asked Daughter whether “the assault had occurred on Sunday,” and Daughter	1
nodded affirmatively. The SANE noted tears “throughout the exam” and that	2
Daughter trembled during the anal portion of the examination. Although the SANE	3
did not observe any injuries to Daughter’s genital or anal areas, the SANE explained	4
that skin in the vaginal and anal areas heals quickly. The SANE did observe bruising	5
on Daughter’s buttocks, thighs, and near her genitals; that her vagina was “red”; and	6
a white vaginal discharge that, according to the SANE, could have had various	7
causes. The SANE explained that she is trained not to opine on the age of a bruise,	8
and, though she noted the differing coloration of Daughter’s bruises, she did not	9
testify to the severity of the bruising she observed. Although the SANE testified that	10
she had seen similar bruising in earlier work she had done on cases involving	11
criminal sexual contact, she explained that things other than sexual contact could	12
have caused everything she observed at Daughter’s examination.	13
{9} 	A forensic interviewer testified about Daughter’s safehouse interview. The	14
interviewer explained that she had to question Daughter as if she were interviewing	15
a five- or six-year-old child. The interviewer testified that, during the interview,	16
Daughter said that her “butt got hurt” “on the inside” as a result of two “spanking[s]”	17
that occurred while neither she nor Defendant were wearing underwear and that,	18
during these incidents, she was lying face down with Defendant behind her. The	19
interviewer testified that she asked Daughter to identify, on a drawing of a nude male	20

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body, the body part Defendant had used to hurt her, and Daughter circled the penis.	1
And she told the interviewer that she was still experiencing pain at the time of the	2
interview, which occurred approximately one week after the alleged criminal sexual	3
penetration.	4
{10} 	Defendant objected to the admission of Daughter’s out-of-court statements	5
through the forensic interviewer’s testimony and the admission of DNA evidence	6
through the police officer’s testimony. The district court overruled the objections but	7
did not make factual findings as to whether there was good cause to admit the	8
challenged evidence without allowing Defendant to confront Daughter or the crime	9
lab analyst who reported the DNA evidence. After the close of evidence, the district	10
court cited, as corroboration for the unconfronted evidence, testimony of Mother	11
regarding physical evidence and changes in Daughter’s behavior. And the court	12
concluded that the evidence established to a reasonable certainty that Defendant had	13
violated a condition of his probation by committing a sex crime, citing, in addition	14
to Mother’s testimony, the police officer’s testimony that the crime lab noted the	15
presence of male DNA on some of Daughter’s underwear and the SANE’s testimony	16
that Daughter presented with bruising at the SANE examination. However, the	17
district court rejected the State’s contention that Defendant also violated his	18
probation by failing to report Daughter’s disability.	19
{11} 	The district court revoked Defendant’s probation and remanded him to the	20

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New Mexico Corrections Department for a period of just under eleven years, the	1
remainder of the suspended portion of the sentence for his 2011 convictions.	2
Defendant appeals.	3
DISCUSSION	4
{12} 	Defendant argues that the district court deprived him of due process by	5
denying him, without good cause, an opportunity to confront Daughter and the crime	6
lab analyst. Whether Defendant suffered a violation of his due process right to	7
confrontation is a question of law that we review “de novo while deferring to the	8
district court’s factual findings.” 3 State v. Castillo, 2012-NMCA-116, ¶ 9, 290 P.3d	9
727. For the reasons that follow, we agree with Defendant that there was not good	10
3 The 	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]”).

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cause to dispense with confrontation as to Daughter, and we therefore reverse	1
without reaching Defendant’s argument as to the crime lab analyst.	2
{13} 	“Because loss of probation is loss of only conditional liberty, ‘the full panoply	3
of rights due a defendant in a criminal trial [does] not apply.’ ” Guthrie, 2011-	4
NMSC-014, ¶ 10 (alteration omitted) (quoting Morrissey v. Brewer, 408 U.S. 471,	5
480 (1972)); see also Gagnon v. Scarpelli, 411 U.S. 778, 781-82 (1973) (extending	6
Morrissey—which concerned revocation of parole—to revocation of probation).	7
However, defendants who face allegations that they have violated their probation	8
have a due process right “ ‘to confront and cross-examine adverse witnesses []unless	9
the hearing officer specifically finds good cause for not allowing confrontation[.]’ ”	10
Guthrie, 2011-NMSC-014, ¶ 12 (emphasis omitted) (quoting Gagnon, 411 U.S. at	11
786). Hence, at a probation violation hearing, there is a “rebuttable presumption”	12
that the probationer has a right to confront adverse witnesses. State v. Wheeler, No.	13
S-1-SC-37709, dec. ¶ 17 (N.M. Sup. Ct. June 10, 2021) (non-precedential). Guthrie	14
indicates that this presumption is especially strong, and thus more onerous to rebut,	15
when, as in this case, the state seeks to revoke probation based on an unadjudicated	16
charge that the probationer committed another crime. 2011-NMSC-014, ¶¶ 36, 38.	17
The Guthrie Court stated that, where “the probationer is alleged to have committed	18
a crime[] but has not been convicted,” it “would be hard[-]pressed to envision a	19

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situation in which personal testimony and confrontation would not be required.” Id.	1
¶ 38 (emphasis omitted); see also Wheeler, No. S-1-SC-37709, dec. ¶ 21.	2
{14} 	In analyzing whether due process requires confrontation or whether there is	3
good cause to proceed without confrontation, a court should locate the particular	4
evidentiary issue on a “spectrum or sliding scale with extremes at either end and	5
much balancing and weighing of competing interests in between.” Guthrie, 2011-	6
NMSC-014, ¶ 40. The court must assess “the relative need for confrontation to	7
protect the truth-finding process and the substantial reliability of the evidence,” and	8
“the stronger the probative value and reliability of the evidence, the less the need for	9
confrontation.” Id. ¶¶ 43-44. The focus should not be the reasons for the declarant’s	10
absence, id., but instead “fundamental fairness, the touchstone of due process.” Id.	11
¶ 25 (internal quotation marks and citation omitted). Where evidentiary issues fall	12
on 	the 	spectrum 	depends 	“on 	a 	case-by-case 	analysis” 	of 	“the 	utility 	of	13
confrontation.” Id. ¶ 33.	14
{15} 	Our Supreme Court has explained that this analysis involves an indefinite	15
number of factors, id. ¶¶ 34-41, and we glean five factors from Guthrie relevant to	16
the analysis in this case: (1) whether the source of the challenged evidence is reliable	17
and free of any motive to lie, id. ¶¶ 40-41; (2) the centrality of the challenged	18
evidence to the ultimate conclusion about whether a probation violation occurred,	19
id. ¶¶ 34, 37, 41; (3) whether the accused contests the fact that the challenged	20

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evidence would help prove, id. ¶¶ 35, 40-41; (4) the extent to which credibility	1
determinations, perception, interpretation, inference, and judgment are required to	2
decide the truth of the matter asserted by the declarant’s statements, id. ¶¶ 37-41;	3
and (5) whether the challenged evidence is substantially reliable, either because it is	4
inherently reliable—e.g., hearsay admissible under a “proven exception[]” to the	5
rule against hearsay, id. ¶ 36—or because it is sufficiently corroborated by other,	6
reliable evidence. Id. ¶¶ 40-41.	7
{16} 	Applying these factors to Defendant’s case, 4 we hold that there was not good	8
cause to dispense with confrontation because the evidence presented at the hearing	9
was not reliable enough to overcome the strong presumption that Defendant had a	10
right to confront Daughter about the unadjudicated accusation that he had committed	11
a new crime. As we will explain, Daughter’s hearsay statements and thus her	12
credibility were at the heart of this case. Those statements were neither inherently	13
reliable 	nor 	sufficiently 	corroborated 	by 	other, 	reliable 	evidence, 	and 	cross-	14
examination was therefore necessary to safeguard the truth-seeking process at the	15
revocation hearing.	16
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.

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{17} 	Because we have no reason to doubt that the forensic interviewer testified	1
accurately about what Daughter told her, see id. ¶¶ 40-41, we turn to the remaining	2
factors, beginning with the critical role played by Daughter’s hearsay statements to	3
the interviewer. Those hearsay statements were central to the ultimate determination	4
of whether Defendant violated his probation by committing a new crime. See id.	5
¶¶ 34, 37, 41. Indeed, those statements were the most probative evidence—and the	6
only direct evidence—that Defendant had committed criminal sexual penetration as	7
the State alleged. Moreover, the commission of a new crime was an affirmative fact	8
that Defendant contested by denying that he had abused Daughter. See id. ¶¶ 35, 37,	9
40-41. Under these circumstances, discovering whether the State’s allegation is true	10
involves 	credibility 	determinations, 	perception, 	interpretation, 	inference, 	and	11
judgment, and it was thus important to observe Daughter’s demeanor. See id. ¶¶ 34,	12
37-41; cf. State v. Lucero, 1993-NMSC-064, ¶¶ 2, 22, 116 N.M. 450, 863 P.2d 1071	13
(stating that the credibility of a child who had accused the defendant of sexual abuse	14
“was a pivotal issue” in a trial where “[t]he only witnesses to the alleged abuse were	15
the defendant and the [alleged victim]”); State v. Duran, 2015-NMCA-015, ¶¶ 2-4,	16
25-26, 343 P.3d 207 (characterizing credibility as “the primary issue” in a trial where	17
the alleged victim testified that the defendant had sexually abused her when she was	18
a child but the defendant denied the accusation).	19

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{18} 	Our analysis thus far having reinforced rather than rebutted the strong	1
presumption in favor of confrontation, we turn to the final factor, reliability. We first	2
address whether Daughter’s statements are inherently reliable. See Guthrie, 2011-	3
NMSC-014, ¶ 36. The State argues that they are because they would be admissible	4
in a trial under Rule 11-803(4) NMRA, the exception to the rule against hearsay for	5
statements made for medical diagnosis or treatment. See Guthrie, 2011-NMSC-014,	6
¶ 36 (“[H]earsay evidence may be inherently reliable if it conforms to proven	7
exceptions to the hearsay rule.”). We disagree. Because the forensic interviewer was	8
not a medical provider, her testimony as to what Daughter told her would not be	9
admissible under Rule 11-803(4). The testimony at issue here is unlike the testimony	10
at issue in State v. Mendez, where our Supreme Court recognized that statements	11
made to a SANE may sometimes be admissible as statements made for medical	12
diagnosis or treatment because a SANE has “a dual role: the provision of medical	13
care and the collection and preservation of evidence.” 2010-NMSC-044, ¶¶ 41-43,	14
148 N.M. 761, 242 P.3d 328. But the witness here was not a SANE. She was a	15
forensic interviewer whose testimony gives us no reason to conclude that she had	16
any role other than collecting, preserving, and analyzing evidence; the record does	17
not include any basis for concluding that a purpose of her examination was medical	18
diagnosis 	or 	treatment. 	Cf. 	Duran, 	2015-NMCA-015, 	¶¶ 4-5 	(recounting 	the	19
testimony of a safehouse interviewer who explained that the goal of a forensic	20

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safehouse interview is to test the truth of an allegation that a child was a victim or	1
witness to a crime). We therefore reject the State’s argument that Daughter’s	2
statements to the forensic interviewer conform to a proven hearsay exception, and	3
we see no other reason to conclude that her statements are inherently reliable.	4
{19} 	Because Daughter’s hearsay statements are not inherently reliable, Guthrie	5
permits us to conclude that her statements are substantially reliable only if they are	6
sufficiently corroborated by other, reliable evidence. See Guthrie, 2011-NMSC-014,	7
¶¶ 40-41. Although the Guthrie Court did not explicitly describe how courts should	8
determine whether corroborating evidence is powerful enough to obviate the need	9
for confrontation, our Supreme Court took a case-specific approach to the good	10
cause 	inquiry 	in 	Guthrie, 	and 	we 	therefore 	conclude 	that 	the 	corroboration	11
determination hinges on the nature of the allegation and the facts of each case. The	12
inquiry is not whether the corroborating evidence in the case would support a rational	13
inference by the trial court judge that the accused is guilty but instead whether cross-	14
examination of the declarant would assist the judge in deciding whether the accused	15
is, in fact, guilty. See id. ¶ 43 (emphasizing that courts should focus “on the need	16
for, and utility of, confrontation with respect to the truth-finding process . . . in light	17
of the particular case at hand, including the specific charge pressed against the	18
probationer”); cf. Morrissey, 408 U.S. at 483-84 (stating that revocation of parole	19
should not occur without “an appropriate determination that the individual has in	20

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fact breached the conditions of parole” and explaining that the accused and society	1
share an interest in such determinations resting on “accurate knowledge of the	2
parolee’s behavior”). Reading Guthrie holistically and focusing on the overarching	3
principles that drove our Supreme Court’s analysis, see generally 2011-NMSC-014,	4
¶ 43, we conclude that only unequivocal and reliable corroborating evidence will	5
make the value of confrontation so minimal as to be unnecessary when, as in this	6
case, the state makes a contested allegation that the probationer committed a new	7
crime but there is no adjudication of guilt; the hearsay statements are central to the	8
state’s case but are not inherently reliable; and determining whether the statements	9
are true entails a subjective judgment about the declarant’s credibility. Under these	10
circumstances, 	confrontation 	is 	essential 	to 	the 	truth-finding 	process 	unless	11
corroborating evidence compellingly establishes that the crime occurred and that the	12
probationer committed it.	13
{20} 	We conclude that the evidence in this case does not clear this high bar.	14
Because the evidence offered to corroborate the declarant’s statements is subject to	15
conflicting interpretations, confrontation was necessary to increase the likelihood	16
that the district court arrived at the truth. Cf. California v. Green, 399 U.S. 149, 158	17
(1970) (recognizing that cross-examination is “the greatest legal engine ever	18
invented for the discovery of truth” (internal quotation marks and citation omitted));	19
State v. Montoya, 2014-NMSC-032, ¶ 39, 333 P.3d 935 ( “For two centuries,	20

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common law judges and lawyers have regarded the opportunity of cross-examination	1
as 	an 	essential 	safeguard 	of 	the 	accuracy 	and 	completeness 	of 	testimony.”	2
(emphases, internal quotation marks, and citation omitted)). As corroboration for	3
Daughter’s hearsay statements, the district court cited Mother’s testimony that	4
Daughter’s demeanor changed after visiting Defendant and that Mother observed	5
blood on Daughter’s underwear that was unlikely to have been due to menstruation.5
6
The only other corroborating evidence was the police officer’s testimony that there	7
was male DNA on the underwear6 and the SANE’s testimony about her observations	8
at Daughter’s examination. 7 Although all of this evidence is consistent with the	9
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.
6 In 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 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

17
State’s allegation, it is subject to conflicting interpretations and thus does not	1
compellingly establish the truth of the allegation so as to render confrontation	2
unnecessary. Mother’s observations corroborate the accusation of criminal sexual	3
penetration to some extent; they amount to circumstantial evidence that is consistent	4
with the accusation. Nevertheless, everything Mother observed could have had an	5
explanation other than sexual abuse. The behavior Mother observed in Daughter	6
could have been a response to suffering criminal sexual penetration, or it could have	7
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.

18
been a manifestation of some other trauma. And the conflicting testimony about the	1
timing of Daughter’s menstruation renders ambiguous the import of the blood	2
Mother observed. The DNA evidence also has some corroborative value. However,	3
there was no evidence to support that the DNA evidence was indicative of sexual	4
contact versus something like handling the underwear because the evidence did not	5
establish what sort of bodily material transferred the DNA. In addition, the male	6
DNA found on Daughter’s underwear had not been and, according to the lab report,	7
would not be matched with Defendant’s DNA. Hence, the DNA found on Daughter’s	8
underwear may have been related to sexual contact or may not have been, and it may	9
or may not have been Defendant’s. Under these circumstances, the import of the	10
DNA evidence is ambiguous. Similarly, although the SANE’s testimony supports	11
the inference that Daughter was sexually abused, it also allows for the interpretation	12
that sexual abuse might not be the explanation for Daughter’s physical condition at	13
the SANE examination, which occurred as much as one week after the alleged crime.	14
Because the corroborating evidence is subject to conflicting interpretations, we	15
conclude that, even when viewed as a whole, it does not compellingly establish that	16
Daughter’s 	hearsay 	statements 	are 	reliable 	enough 	to 	render 	confrontation	17
unnecessary.	18
{21} 	Finally, we address the State’s argument that the need to protect Daughter	19
from further emotional harm supports the conclusion that there was good cause for	20

19
dispensing with confrontation. The State relies on State v. Herrera, in which the	1
state, in a trial on charges of criminal sexual contact of a minor, introduced video	2
depositions of the two victims in lieu of the victims’ direct testimony. 2004-NMCA-	3
015, ¶¶ 2-3, 7, 135 N.M. 79, 84 P.3d 696. See generally NMSA 1978, § 30-9-17	4
(1978); Rule 5-504 NMRA. Allowing the use of deposition testimony under such	5
circumstances 	is 	meant 	to 	protect 	victims 	from “suffering 	unreasonable 	and	6
unnecessary mental or emotional harm” while ensuring that defendants are “given	7
an adequate opportunity to cross-examine” those victims. Rule 5-504(B). However,	8
Herrera has no bearing on our analysis because here, unlike in Herrera, the State	9
never sought to introduce deposition testimony to obviate the need for live	10
testimony, and Defendant never had “an adequate opportunity to cross-examine”	11
Daughter. Rule 5-504(B)(3). This case does not present the question of whether	12
affording the accused an opportunity to confront a vulnerable alleged victim in a	13
deposition, rather than during the revocation hearing itself, would satisfy due process	14
under Guthrie.	15
{22} 	Instead, the question before us is whether it is consistent with due process to	16
deny Defendant any opportunity whatsoever to confront Daughter because of her	17
vulnerability. We recognize that the New Mexico Constitution protects Daughter’s	18
right to be treated with fairness and with respect for her dignity and privacy, see	19
N.M. Const. art. II, § 24(A)(1), and that the risk that Daughter would suffer harm	20

20
was likely the reason she did not testify. However, Guthrie requires us to focus less	1
on why the declarant did not testify and more on “the need for, and utility of,	2
confrontation with respect to the truth-finding process . . . in light of the particular	3
case at hand, including the specific charge pressed against the probationer.” 2011-	4
NMSC-014, ¶ 43. Where “that need is significant,” the declarant “must appear and	5
be subject to confrontation, regardless of the reasons for his or her absence[,]” which	6
are, “for the most part, irrelevant” to the analysis. Id. Whatever limited weight	7
Guthrie permits us to give to Daughter’s vulnerability, it is outweighed by the	8
considerations our Supreme Court has identified as pertinent to the need for	9
confrontation and the reliability of the evidence.	10
{23} 	Based on our application of Guthrie to this case, we conclude that no showing	11
of good cause rebutted the strong presumption in favor of confrontation. In short, we	12
cannot conclude, on the record before us, that this is the case our Supreme Court was	13
“hard[-]pressed to envision”—one in which “personal testimony and confrontation	14
[are not] required” to prove that the accused committed a new crime. Id. ¶ 38. We	15
therefore hold that Defendant was denied due process when the district court relied	16
on Daughter’s hearsay statements to the forensic interviewer without affording	17
Defendant any opportunity to confront Daughter.8
18
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

21
{24} 	We emphasize that our holding is narrow. We address only the question	1
presented: whether the complete denial of Defendant’s request for confrontation,	2
which prevented the defense from conducting any cross-examination of Daughter,	3
violated Defendant’s right to due process. Accordingly, we offer no opinion about	4
the type of confrontation or the scope of cross-examination that would satisfy due	5
process under Guthrie while protecting Daughter’s rights under Article II, Section	6
24 of the New Mexico Constitution. See Gagnon, 411 U.S. at 782 n.5 (explaining	7
that states may develop “creative solutions to the practical difficulties” of ensuring	8
due process in probation violation hearings); Guthrie, 2011-NMSC-014, ¶ 11	9
(recognizing that “due process is flexible and calls for such procedural protections	10
as the particular situation demands” and that “not all situations calling for procedural	11
safeguards call for the same kind of procedure” (emphasis, internal quotation marks,	12
and citation omitted)); cf. State v. Fairweather, 1993-NMSC-065, ¶¶ 23-31, 116	13
N.M. 456, 863 P.2d 1077 (holding that the use of video recordings of depositions of	14
child victims of sexual abuse in a criminal trial did not violate the defendant’s Sixth	15
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.

22
Amendment right to confrontation, where defense counsel cross-examined the	1
victims and the defendant viewed the depositions by television monitor in another	2
room and was able to confer with counsel during the depositions); State v. Smith,	3
2001-NMSC-004, ¶ 23, 130 N.M. 117, 19 P.3d 254 (recognizing that, even in the	4
context of a criminal trial, “the trial court has broad discretion to control the scope	5
of cross-examination”).	6
CONCLUSION	7
{25} 	We reverse the order revoking Defendant’s probation and remand for any	8
further proceedings that might be necessary, including a new revocation hearing if	9
the State requests one.	10
{26} 	IT IS SO ORDERED.	11
_________________________________	12
ZACHARY A. IVES, Judge	13
WE CONCUR:	14
_________________________________	15
JACQUELINE R. MEDINA, Judge	16
_________________________________	17
SHAMMARA H. HENDERSON, Judge	18