February 20, 2025- State of New Mexico v. Bryan Keith Berry, No. A-1-CA-40788

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:__________	2
Filing Date: February 20, 2025	3
No. A-1-CA-40788	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
BRYAN KEITH BERRY,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY	10
Lee A. Kirksey, District Court Judge	11
Raúl Torrez, Attorney General	12
Santa Fe, NM	13
Meryl E. Francolini, Assistant Solicitor General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Joelle N. Gonzales, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 2/20/2025 7:38 AM

OPINION	1
WRAY, Judge.	2
{1} Defendant appeals his conviction for one count of second-degree criminal	3
sexual contact of a minor (CSCM), contrary to NMSA 1978, Section 30-9-13(B)(1)	4
(2003). Before trial, the district court found, “the evidence presented establishes that	5
the child-victim [(Child)] in this case cannot testify without suffering unreasonable	6
harm pursuant to Rule 5-504 NMRA.” As a result, the district court ordered the State	7
to take Child’s testimony at a videotaped deposition but did not allow Defendant to	8
be physically present in the room during the proceeding. At trial, Child’s deposition	9
was substituted for her in-court testimony, and Defendant did not object. On appeal,	10
Defendant challenges the district court’s conclusions that these special procedures	11
were justified under the circumstances and argues that as a result of these procedures,	12
he was denied the right under the Sixth Amendment to the United States Constitution	13
to confront and cross-examine his accuser. We hold that the district court’s factual	14
findings were supported by substantial evidence and justified the conclusion that a	15
videotaped deposition was necessary under the circumstances. The district court did	16
not, however, make factual findings to support the further conclusion that Defendant	17
would not be physically present and would watch the deposition on a video monitor	18
from another room. Nevertheless, Defendant did not object to the absence of findings	19
or to the substitution at trial of Child’s videotaped deposition testimony for face-to-	20

2
face confrontation. We therefore conclude that Defendant did not preserve an	1
objection to the absence of findings and waived the protections of the constitutional	2
rights he now asserts on appeal. Reviewing the admission of the videotaped	3
deposition testimony for fundamental error, we affirm.	4
BACKGROUND	5
{2} Defendant was briefly responsible for babysitting Child––the four-year-old	6
daughter of his wife’s friend––in his home in Hobbs, New Mexico. Afterward, Child	7
reported an incident, and Defendant was charged with one count of CSCM. The State	8
filed a pretrial motion to take a videotaped deposition of Child pursuant to Rule 5-	9
504(A) and argued that this special procedure was necessary “to prevent [Child]	10
suffering from unreasonable and unnecessary mental or emotional harm.” The State	11
attached to the motion a forensic evaluation completed by Mr. Munro, a licensed	12
professional clinical counselor. The forensic evaluation was based primarily on	13
information Mr. Munro gathered during separate interviews with Child and her	14
mother. Defendant did not respond to the State’s motion.	15
{3} The district court held a pretrial hearing on the State’s Rule 5-504(A) motion.	16
The State presented the sworn testimony of Mr. Munro, who offered unrebutted	17
expert opinions that Child would be traumatized by testifying both in court and in	18
Defendant’s physical presence. Although Defendant presented no evidence at the	19
pretrial hearing, Defendant’s counsel objected twice, unsuccessfully, to Mr. Munro’s	20

3
testimony as speculative and argued against the State’s motion on the grounds that	1
“any person accused of a crime has a right to confront his accuser, has a right under	2
the law for that witness’s testimony to be cross-examined, and for that witness to	3
appear in open court.”	4
{4} At the end of the pretrial hearing, the district court weighed Defendant’s	5
confrontation rights against the potential for unreasonable and unnecessary	6
emotional harm to Child and granted the State’s Rule 5-504(A) motion. The district	7
court also granted the State’s separate request, made only during the pretrial hearing,	8
that Defendant “not be present in the room while [the] deposition is going on.” The	9
district court explained the exclusion procedure it would implement for the	10
videotaped deposition as follows:	11
Now I have done a few of these over my time on the bench and I believe	12
one I have done where the defendant was not present, under a similar	13
situation. What we were able to do was to set up kind of a closed circuit.	14
[The defendant] was in a room across the hallway, he was able to watch	15
and listen in, in the deposition in real time. I gave his attorney the	16
opportunity for breaks during the deposition—to step across the hall,	17
consult with his client, talk about questions and issues that the	18
defendant wanted raised during the deposition and that is the same	19
process I intend to follow here.	20
Defendant did not object to the district court’s exclusion procedure. In the written	21
order granting the State’s motion, the district court found that Child “cannot testify	22
without suffering unreasonable harm pursuant to Rule 5-504” and ordered “that the	23

4
video deposition will comply with State v. Fairweather, 1993-NMSC-065, 116 N.M.	1
456[, 863 P.2d 1077].”	2
{5} During Child’s deposition, Defendant sat in a room adjacent to the room in	3
which Child testified and viewed the proceeding live on a video monitor. Both the	4
district court and Defendant’s attorney were physically present in the room where	5
Child testified, and Defendant’s attorney cross-examined Child. As noted above,	6
Child’s videotaped deposition testimony was played at the bench trial and admitted	7
into evidence in lieu of in-court testimony without objection from Defendant. The	8
district court found Defendant guilty, entered judgment, and imposed a sentence of	9
fifteen years, with eight years suspended. This appeal followed.	10
DISCUSSION	11
{6} On appeal, Defendant contests the district court’s order to take the deposition	12
and to exclude Defendant from the room where the deposition occurred. In addition	13
to challenging the sufficiency of both the evidence and the district court’s findings	14
to justify the procedures, Defendant also argues that aspects of the procedures	15
impermissibly burdened the right to cross-examination. Defendant’s arguments	16
involve whether the Sixth Amendment right to confront an accuser, which is	17
normally satisfied by physical, face-to-face confrontation at trial, has been	18
adequately safeguarded by substitute procedures. See Rule 5-504. We therefore	19

5
review the protections of the Confrontation Clause and the circumstances in which	1
substitute procedures are constitutionally acceptable.	2
I. The Confrontation Clause, the Physical Presence Element, and Substitute	3
Procedures	4
{7} The Confrontation Clause of the Sixth Amendment provides that “[i]n all	5
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the	6
witnesses against him.” U.S. Const. amend. VI. The Supreme Court of the United	7
States has held that this “bedrock procedural guarantee applies to both federal and	8
state prosecutions.” Crawford v. Washington, 541 U.S. 36, 42 (2004). The core	9
concern of the Confrontation Clause “is to ensure the reliability of the evidence	10
against a criminal defendant by subjecting it to rigorous testing in the context of an	11
adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845	12
(1990). This purpose is served by “[t]he combined effect of [the] elements of	13
confrontation—physical presence, oath, cross-examination, and observation of	14
demeanor by the trier of fact.” Id. at 846.	15
{8} The present case primarily involves the physical presence element of	16
confrontation. Before Craig, the physical presence element had been described as	17
the “right to meet face to face all those who appear and give evidence at trial” and	18
was long considered the root of the confrontation right. Coy v. Iowa, 487 U.S. 1012,	19
1016 (1988) (internal quotation marks and citation omitted). The Coy Court	20
described this strand of the right as the “irreducible literal meaning of the	21

6
[Confrontation] Clause” and left “for another day . . . the question of whether any	1
exceptions exist.” Id. at 1021. The Court cautioned, however, that any such	2
exceptions, “[w]hatever they may be, . . . would surely be allowed only when	3
necessary to further an important public policy.” Id.	4
{9} Two years after Coy, the Court continued the Confrontation Clause discussion	5
and explored the contours of public policy exceptions to the physical presence aspect	6
of the right. Craig, 497 U.S. at 849-50. Craig explained that the physical presence	7
aspect of the confrontation right cannot be absolute and without exception because	8
if it was, the Confrontation Clause would “prohibit the admission of any accusatory	9
hearsay statement made by an absent declarant.” Id. at 849. Such a broad	10
interpretation of the physical presence strand of confrontation “would abrogate	11
virtually every hearsay exception, a result long rejected as unintended and too	12
extreme.” Id. at 848 (internal quotation marks and citation omitted); see also	13
Crawford, 541 U.S. at 50-51 (rejecting the view “that the Confrontation Clause	14
applies of its own force only to in-court testimony,” but observing that “not all	15
hearsay implicates the Sixth Amendment’s core concerns”). Craig ultimately held	16
that “a defendant’s right to confront accusatory witnesses may be satisfied absent a	17
physical, face-to-face confrontation at trial only where denial of such confrontation	18
is necessary to further an important public policy and only where the reliability of	19

7
the testimony is otherwise assured.”1 497 U.S. at 850. The public policy interest at	1
issue in Craig was the state’s interest in protecting child sexual abuse victims from	2
the trauma of testifying in the presence of the defendant. See id. at 856. Regarding	3
whether the testimony had to be in court at all, the Court left open the possibility that	4
a state’s more general public policy interest “in the physical and psychological well-	5
being of child abuse victims may be sufficiently important to outweigh, at least in	6
some cases, a defendant’s right to face his or her accusers in court.” Id. at 853.	7
{10} Along these lines, this Court and our Supreme Court have recognized that	8
New Mexico has a “strong public policy”—shown by NMSA 1978, Section 30-9-	9
17 (1978) and Rule 5-504(A)—“to protect child victims of sexual crimes from the	10
further trauma of in-court testimony.” State v. Vigil, 1985-NMCA-103, ¶ 10, 103	11
N.M. 583, 711 P.2d 28; see also Fairweather, 1993-NMSC-065, ¶ 25 (adopting the	12
Vigil Court’s articulation of the public policy interest served by Section 30-9-17 and	13
Rule 5-504(A)). Both Section 30-9-17 and Rule 5-504 permit a pretrial, recorded	14
deposition of an alleged victim of sexual abuse who is under the age of sixteen.	15
Section 30-9-17(A) permits such a deposition “for a good cause shown,” while Rule	16
1We note that there is an open question regarding how Crawford’s elimination
of the indicia of reliability test articulated in Ohio v. Roberts, 448 U.S. 56 (1980),
abrogated by Crawford, 541 U.S. at 42, 68-69 affects Craig’s public policy
exception. See Crawford, 541 U.S. at 42, 68-69 (overruling Roberts’ reliability test
and holding that “[w]here testimonial evidence is at issue, . . . the Sixth Amendment
demands what the common law required: unavailability and a prior opportunity for
cross-examination”). We express no opinion on this question, as it is not before us.

8
5-504(A) permits the deposition on “a showing that the child may be unable to testify	1
without suffering unreasonable and unnecessary mental or emotional harm.” This	2
Court has explained that the State meets the “good cause” standard set forth in	3
Section 30-9-17(A) by satisfying the criteria articulated by Rule 5-504(A). State v.	4
Ruiz, 2001-NMCA-097, ¶ 26, 131 N.M. 241, 34 P.3d 630.	5
{11} Neither the rule nor the statute is intended to prevent a face-to-face	6
confrontation between the alleged child-victim and the defendant at the videotaped	7
deposition. See id. The statute plainly provides that “[t]he videotaped deposition	8
shall be taken . . . in the presence of the district attorney, the defendant and his	9
attorneys.” Section 30-9-17(A). The rule generally conditions the admissibility of	10
the videotaped deposition upon the defendant’s presence at the videotaped	11
deposition, among other requirements. See Rule 5-504(B)(2). New Mexico courts	12
have long accepted that adherence to Rule 5-504 satisfies the Confrontation Clause.	13
See State v. Herrera, 2004-NMCA-015, ¶ 7, 135 N.M. 79, 84 P.3d 696 (“When a	14
court follows these procedures, a defendant’s confrontation right under the Sixth	15
Amendment to the United States Constitution is satisfied.”). The present case,	16
however, involves a deposition of an alleged child-victim of a sexual offense that	17
was taken outside Defendant’s physical presence. Because the procedure did not	18
comply with Rule 5-504(B)(2), the State cannot rely on the rule alone to demonstrate	19
compliance with the Confrontation Clause. Instead, to support the admission of the	20

9
deposition at trial, the facts and circumstances must otherwise justify a conclusion	1
that the procedures used were constitutionally adequate.	2
{12} As we have noted, this was the very issue before the Craig Court—whether	3
and under what circumstances an alleged child-victim of a sexual offense could be	4
permitted to testify without physically confronting the defendant. 497 U.S. at 857;	5
see also Fairweather, 1993-NMSC-065, ¶ 23. The Craig Court described the	6
“requisite finding of necessity” in this circumstance to include whether (1) the	7
defendant’s absence “is necessary to protect the welfare of the particular child	8
witness”; (2) the child “would be traumatized, not by the courtroom generally, but	9
by the presence of the defendant”; and (3) “the emotional distress suffered by the	10
child witness in the presence of the defendant is more than de minimis.” 497 U.S. at	11
855-56. Where the requisite findings are made as to the particular child witness, and	12
the witness testifies under oath, subject to full cross-examination, observed by the	13
judge, jury, and the defendant, “the Confrontation Clause does not prohibit use of a	14
procedure that, despite the absence of face-to-face confrontation, ensures the	15
reliability of the evidence by subjecting it to rigorous adversarial testing and thereby	16
preserves the essence of effective confrontation.” Id. at 855-57; see Fairweather,	17
1993-NMSC-065, ¶¶ 27-30.	18
{13} Thus, we have two inquiries. First, whether the deposition was justified under	19
Rule 5-504(A). Second, whether Defendant’s exclusion from that deposition was	20

10
justified under Craig such that the recorded deposition was admissible at trial.	1
Defendant additionally contends that because he had no opportunity for a pretrial	2
interview and could not prepare for the deposition, the procedure employed in the	3
present case did not permit him to adequately cross-examine Child. We address each	4
argument in turn.	5
II. The Evidence and Findings Supporting the District Court’s Order to	6
Take Child’s Deposition Under Rule 5-504(A)	7
{14} Defendant challenges the evidentiary basis for the district court’s factual	8
findings supporting its conclusion that a videotaped deposition was necessary to	9
prevent Child from suffering unreasonable emotional harm. We review such	10
findings for substantial evidence and resolve all disputed facts in favor of the	11
successful party, indulge all reasonable inferences in support of the challenged	12
findings, and discard any contrary evidence and inferences. See Vigil, 1985-NMCA-	13
103, ¶ 7. “[S]ubstantial evidence means such relevant evidence as a reasonable mind	14
might accept as adequate to support a conclusion.” Id. The committee commentary	15
accompanying Rule 5-504 suggests “that the court should consider [four] factors in	16
determining whether a videotaped deposition should be taken to avoid a victim child	17
from suffering unreasonable and unnecessary mental or emotional harm.” The	18
factors suggested by the committee commentary are whether	19
(1) the child is unable to testify because of fear;	20

11
(2) there is a substantial likelihood, established by expert testimony,	1
that the child would suffer emotional trauma from testifying;	2
(3) the child suffers a mental or other infirmity; or	3
(4) conduct by defendant or defense counsel causes the child to be	4
unable to continue testifying.	5
Rule 5-504 comm. cmt. In its written order granting the State’s Rule 5-504(A)	6
motion, the district court found that “the evidence presented establishes that the	7
[C]hild-victim in this case cannot testify without suffering unreasonable harm	8
pursuant to Rule 5-504.” Additionally, during the pretrial hearing, the district court	9
considered each of the suggested committee commentary factors and made oral	10
findings on the record with respect to each.	11
{15} The district court’s findings were based on Mr. Munro’s written forensic	12
evaluation and his testimony at the pretrial hearing. The evaluation reported that	13
Child “repeatedly stated that she did not like to talk about [Defendant]” and that	14
Child “gets mad when she talks about him.” Mr. Munro noted reports from Child’s	15
mother that after disclosing the sexual abuse, Child started crying more frequently	16
when she was outside the home and away from her parents, and after the interview	17
with Mr. Munro, Child began experiencing stomach problems at preschool. At the	18
hearing, Mr. Munro testified that “it would also be quite reasonable to assume that	19
if [Child] testified in court, she may not have a[n] observable reaction during the	20
court proceeding, but it would have dramatic effects after.” Mr. Munro stated that	21

12
he could not “see a situation where [Child] would not experience trauma testifying,	1
specifically in a courtroom setting,” and concluded that his “biggest concern is her	2
behavioral reaction after testimony that was caused by the fact that she had to	3
testify.” Defendant did not object to Mr. Munro’s qualifications as an expert, and	4
although the district court overruled Defendant’s two objections that this testimony	5
was speculative, Defendant does not appear to challenge those evidentiary rulings	6
on appeal. Instead, to this Court, Defendant contends that Mr. Munro’s testimony	7
was too speculative and general to justify a videotaped deposition under Rule 5-	8
504(A).	9
{16} We disagree and conclude that Mr. Munro’s report and testimony, as we have	10
described that evidence, satisfied the State’s burden under Rule 5-504(A). As the	11
district court recognized, Mr. Munro was qualified as an expert in the field of child	12
and adolescent trauma and offered an unrebutted opinion about what was	13
substantially likely to occur in the future. Defendant’s evidentiary challenge to the	14
district court’s written and oral findings amounts to an assertion that Mr. Munro “did	15
not indicate . . . the facts supporting his conclusion that [Child] would be	16
unreasonably harmed by testifying at trial.” Mindful of our standard of review, we	17
decline to reweigh the evidence and are satisfied that Mr. Munro provided “such	18
relevant evidence as a reasonable mind might accept as adequate to support a	19
conclusion,” see Vigil, 1985-NMCA-103, ¶ 7, that Child “may” have been “unable	20

13
to testify without suffering unreasonable and unnecessary mental or emotional	1
harm,” see Rule 5-504(A). See also Rule 5-504 comm. cmt. (suggesting that the	2
district court consider whether “there is a substantial likelihood, established by	3
expert testimony, that the child would suffer emotional trauma from testifying”	4
(emphasis added)).	5
{17} Defendant suggests that the district court’s written finding did not justify	6
protecting Child from having to testify live but instead related to “simply testifying	7
in general.” To the contrary, the district court’s oral and written findings were	8
sufficiently specific for this Court to “review those findings in determining whether	9
the [district] court properly balanced the defendant’s Sixth Amendment right and the	10
special need for protection of the child witness.” Fairweather, 1993-NMSC-065,	11
¶ 29; see State v. Tafoya, 1988-NMCA-082, ¶¶ 16, 23, 108 N.M. 1, 765 P.2d 1183	12
(noting that the district court’s “detailed oral findings” satisfied the Confrontation	13
Clause). At the hearing and on Defendant’s prompting, the district court reviewed	14
the suggested factors set forth in the Rule 5-504 committee commentary and the	15
balance of those factors is reflected in the written finding that Defendant challenges.	16
Specifically, the district court weighed the first and fourth factors against ordering	17
the videotaped deposition because the State presented no evidence establishing that	18
Child was afraid of Defendant or that the conduct of Defendant or Defendant’s	19
counsel would cause Child to be unable to testify. The district court found, in relation	20

14
to the third factor, that Child’s “very young age” constituted “a form of infirmity.”	1
We view the district court’s consideration of Child’s young age not as an overly	2
broad and unsubstantiated policy finding that young age is always an infirmity, as	3
Defendant contends, but as part of the district court’s “careful, informed weighing	4
and balancing based on particularized evidence” that relates to Child specifically.	5
See Tafoya, 1988-NMCA-082, ¶ 16. With respect to the second factor, which most	6
closely resembles the standard set forth in Rule 5-504(A), the district court found	7
that “there is a substantial likelihood, established by Mr. Munro, the expert, that	8
Child would suffer emotional trauma from testifying.” To support this finding, the	9
district court could (1) reasonably infer from the State’s evidence that requiring	10
Child to testify in court would cause her mental or emotional harm, exacerbate	11
existing somatic symptoms, and lead to other negative changes in her behavior; and	12
(2) conclude based on the evidence that the harm would be unreasonable under the	13
circumstances. See Vigil, 1985-NMCA-103, ¶ 7 (“[O]n appeal, all disputed facts are	14
resolved in favor of the successful party, with all reasonable inferences indulged in	15
support of the finding, and all evidence and inferences to the contrary discarded.”).	16
We are therefore satisfied that the district court reasonably accepted the State’s	17
evidence as adequate to support its findings justifying the need for a videotaped	18
deposition in this case. Next, we consider Defendant’s arguments challenging the	19

15
district court’s conclusion that he would not be physically present during Child’s	1
deposition.	2
III. The District Court’s Order to Exclude Defendant From the State’s Rule	3
5-504(A) Deposition and the Admissibility of That Deposition at Trial	4
{18} To contextualize Defendant’s arguments, we briefly return to the rules	5
governing substitute procedures and the Confrontation Clause. As we have noted,	6
the admissibility of a Rule 5-504(A) deposition depends in part on the requirement	7
in Rule 5-504(B)(2) that Defendant be present at the deposition unless the district	8
court makes the particularized findings outlined in Craig. With appropriate findings,	9
the lack of Defendant’s physical presence does not violate the Confrontation Clause	10
and the deposition may be otherwise admissible. In this tangled context, Defendant	11
makes two arguments: (1) the State did not present substantial evidence that Child	12
would be harmed by testifying in Defendant’s physical presence; and (2) the district	13
court did not make sufficient findings of fact supporting the decision to exclude	14
Defendant from the deposition. Based on the evidence presented in Mr. Munro’s	15
report and testimony, which we have already described, the district court’s decision	16
to conduct Child’s deposition outside Defendant’s physical presence was supported.	17
Nevertheless, whether the evidence supported the decision is not the only inquiry.	18
See State v. Benny E., 1990-NMCA-052, ¶ 11, 110 N.M. 237, 794 P.2d 380 (“Even	19
though the evidence we have already summarized may support the required	20
individualized findings, making such findings is not our function as a reviewing	21

16
court.”). The record before us contains no individualized findings related to	1
Defendant’s absence from the deposition. See Craig, 497 U.S. at 855-56 (describing	2
the individualized findings that specifically justify excusing face-to-face	3
confrontation and substituting an alternate procedure). We conclude, however, that	4
this issue was not preserved.	5
{19} Defendant did not alert the district court to any error arising from the absence	6
of findings related to the physical presence element of the confrontation right, and	7
the State did not have the opportunity to cure any defects or counter the objections	8
Defendant could have made. See DeFillippo v. Neil, 2002-NMCA-085, ¶ 12, 132	9
N.M. 529, 51 P.3d 1183 (discussing the purposes of the preservation rule).	10
Defendant did not object to his exclusion from the deposition on the basis that the	11
district court did not make the required factual findings, nor did Defendant raise the	12
absence of findings as an objection to the admission of the videotaped deposition in	13
lieu of Child’s live testimony at trial. As a result, the Confrontation Clause issue that	14
Defendant raises in relation to his exclusion from the deposition is unpreserved, and	15
we would review only for fundamental error. See Herrera, 2004-NMCA-015, ¶ 5	16
(declining to review de novo the decision to admit a videotaped deposition when the	17
defendant did not object and instead applying fundamental error analysis). But	18
Defendant does not seek fundamental error review, and while some constitutional	19
deprivations might compel our review nonetheless, in the present case, we conclude	20

17
that Defendant waived the right to confrontation by conduct. See id. ¶¶ 8-9 (declining	1
to find fundamental error in part where the “[d]efendant’s actions indicate that he	2
implicitly waived his right to face-to-face confrontation by conduct”). Like the	3
defendant in Herrera, Defendant (1) “did not file a response to the State’s motion	4
for the videotaped deposition”; (2) “did not object at the time of the taking of the	5
deposition”; and (3) did not object “at the time that the district court admitted the	6
deposition tape as evidence.” See id. ¶ 9. The defendant in Herrera relied on the	7
deposition tape in opening and closing arguments, id., and Defendant similarly	8
referred to Child’s deposition testimony in argument on directed verdict and in	9
closing. Under these circumstances, we decline to review for fundamental error the	10
admission of the deposition testimony at trial. See State v. Garcia, 2019-NMCA-	11
056, ¶ 38, 450 P.3d 418 (declining to exercise appellate discretion to review an	12
unpreserved claim that the defendant’s constitutional right to a speedy trial was	13
violated).	14
IV. The Right to Cross-Examination	15
{20} Defendant also contends that the deposition procedure violated the “right to a	16
full and fair opportunity for cross-examination.” Specifically, Defendant contends	17
that even though he was permitted to cross-examine Child at the deposition, “[t]he	18
lack of a pretrial interview limited the defense’s ability to mount a defense at the	19
deposition.” As the State points out, however, Defendant does not demonstrate	20

18
preservation, and we therefore decline to consider the issue. See State v. Schaublin,	1
2015-NMCA-024, ¶ 27, 344 P.3d 1074.	2
CONCLUSION	3
{21} We affirm the district court.	4
{22} IT IS SO ORDERED.	5
__________________________________	6
KATHERINE A. WRAY, Judge	7
WE CONCUR:	8
9
JACQUELINE R. MEDINA, Judge	10
11
SHAMMARA H. HENDERSON, Judge	12