March 11, 2021- State of New Mexico v. Jesenya O., No. A-1-CA-39148

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: March 11, 2021	3
NO. A-1-CA-39148	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
JESENYA O.,	8
Child-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY	10
Donna J. Mowrer, District Judge	11
Hector H. Balderas, Attorney General	12
Benjamin Lammons, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Liane E. Kerr	16
Albuquerque, NM	17
for Appellant	18
Court of Appeals of New Mexico
Filed 3/11/2021 12:25 PM

OPINION	1
MEDINA, Judge.	2
{1} 	Jesenya O. (Child) appeals her adjudications of delinquency for unlawful	3
taking of a motor vehicle, contrary to NMSA 1978, Section 30-16D-1 (2009), and	4
reckless driving, contrary to NMSA 1978, Section 66-8-113 (1987). On appeal,	5
Child raises a number of issues, which we address in the following order: (1) the	6
district court abused its discretion when it admitted Facebook messages; (2) there is	7
insufficient evidence to support her delinquency adjudications; (3) the district court	8
violated her constitutional rights when it denied her motion to allow witnesses to	9
testify without face masks or, alternatively, to allow witnesses to wear plastic face	10
shields rather than face masks; and (4) the district court abused its discretion when	11
it denied her motion to continue her adjudicatory hearing. We reverse and remand.	12
BACKGROUND	13
{2} 	Late one night, Officer Andrew Olivas of the Portales Police Department	14
responded to the Ashley Furniture store to investigate a report of a stolen vehicle.	15
Upon arrival, Officer Olivas spoke with Jeremiah Erickson who identified Child as	16
the culprit. The State subsequently filed a delinquency petition alleging, in relevant	17
part, that Child committed the delinquent acts of unlawful taking of a motor vehicle	18
and reckless driving.	19

2
{3} 	On the morning of the adjudicatory hearing, Child’s counsel objected to the	1
requirement that witnesses wear face masks, asserting that the requirement violated	2
Child’s state and federal right of confrontation. Child’s counsel argued that not being	3
able to see each witness’s entire face would prejudice Child as it would make it	4
difficult for the jury to determine credibility by limiting important non-verbal	5
communication cues. 1 Counsel asked the district court to either allow witnesses to	6
testify wearing plastic face shields rather than face masks, or in the alternative, to	7
continue the trial until such time as face masks were not required.	8
{4} 	The district court denied Child’s motions and explained that the adjudicatory	9
hearing was proceeding pursuant to the New Mexico Supreme Court’s current	10
COVID-19 	operating 	procedures 	(Supreme 	Court 	COVID-19 	Order), 	which	11
required that—with limited exceptions—“the use of a mask or other protective face	12
covering that covers the nose and mouth shall be required by anyone entering and	13
while in a courthouse, judicial building, or other physical space used, occupied, or	14
operated by the New Mexico Judiciary[.]” Supreme Court Order No. 20-8500-17	15
(May 	15, 	2020), 	https://www.nmcourts.gov/wp-content/uploads/2020/12/Order-	16
No_-20-8500-017-Requiring-Use-of-Face-Masks-in-NM-Courts-During-COVID-	17
1 Counsel argued that the plastic shield in front of the witness stand was
sufficient to protect the witnesses, as well as those seated nearby.

3
19-PHE.pdf.2 The district court further stated that it had directly clarified with our	1
Supreme Court that witnesses were in fact required to wear face masks.	2
{5} 	Erickson, age nineteen, testified at the adjudicatory hearing that he knew	3
Child from high school and that they communicated with each other through	4
Facebook Messenger. On the evening of February 25, 2020, Erickson picked Child	5
up at her house in his parents’ white Dodge Durango so they could hang out at his	6
friend’s apartment.	7
{6} 	According to Erickson, he, Child, and his friend hung out in the apartment and	8
listened to music. Erickson testified that neither he nor Child drank any alcohol at	9
the apartment. As the evening progressed, Erickson noticed that Child started “kinda	10
acting really weird.” Around 11:00 p.m., Child announced that she was “going to go	11
smoke with one of her friends outside,” which Erickson interpreted to mean she was	12
going to smoke marijuana. Child left the apartment and returned about fifteen to	13
twenty minutes later.	14
{7} 	Child asked Erickson to take her home sometime between midnight and 1:00	15
a.m. During the ride home, Child directed Erickson to drive to an alley behind	16
2 As of the date of this opinion, the mask requirement remains in effect for all
courthouses and judicial buildings in New Mexico. See Supreme Court Order No. 21-8500-
003 (Feb. 12, 2021), https://www.nmcourts.gov/wp-content/uploads/2021/02/Order-No.-
21-8500-003-Amending-PHE-Protocol-No.1-2-12-21-Combined.pdf.

4
Ashley Furniture, which he did. Erickson described Child as “high and [that] she	1
looked drunk” as he drove to the alley.	2
{8} 	When he got to the alley, Erickson saw a couple of houses nearby. Erickson	3
and Child got out of the Durango—which was still running—to hug one another	4
goodbye. Child walked around the vehicle to the driver side, hugged Erickson, and	5
then pushed him aside and jumped into the open Durango. Child locked the doors of	6
the Durango and drove northbound down the alley.	7
{9} 	Erickson chased after Child on foot, pounded on the driver side window, and	8
yelled at Child to stop. Instead of stopping, Child continued to drive, jumped a curb,	9
and crashed through a chain-link fence. Child paused briefly before turning the	10
Durango around and driving back over the downed fence and toward the alley.	11
Erickson saw Child drive southbound down the alley and heard the Durango strike	12
a dumpster before he lost sight of the vehicle. Erickson immediately called and	13
messaged Child through Facebook Messenger “over and over again” but she did not	14
respond to Erickson until the following day.	15
{10} 	Child testified on her own behalf at the adjudicatory hearing. According to	16
Child, there were five people at the apartment (not three as Erickson testified to),	17
and she claimed that everyone at the apartment—including Erickson and Child—	18
had been drinking alcohol. Child denied having smoked marijuana that evening.	19

5
{11} 	As to the ride home, Child testified that Erickson was driving erratically, that	1
he tried to kiss her, and that she told him to pull over and let her drive because he	2
was drunk. According to Child, Erickson eventually pulled over behind the Ashley	3
Furniture store. Both Child and Erickson got out of the Durango, and after arguing	4
about whether it was safe for Erickson to drive, Child told Erickson she was going	5
to walk home. Child testified that Erickson started to follow her as she began to walk	6
home and that she was afraid Erickson would hurt her.	7
{12} 	Child testified that it took her approximately twenty-eight minutes to walk	8
home from the alley. Child’s mother, Jennifer Baca, testified that Child arrived home	9
at approximately 1:03 a.m.	10
{13} 	Erickson’s Durango was located shortly before 2:30 a.m. by the Clovis Police	11
Department after investigating a report about a vehicle that crashed into a fence. The	12
vehicle was totaled.	13
{14} 	A jury determined that Child committed the acts of unlawful taking of a motor	14
vehicle and reckless driving. This appeal followed. We reserve discussion of	15
additional facts where necessary to our analysis.	16
DISCUSSION	17
A. 	The Facebook Messages Were Not Properly Authenticated	18
{15} 	During 	the 	adjudicatory 	hearing, Erickson 	testified 	that 	he 	and 	Child	19
communicated on their cellphones exclusively using Facebook Messenger. Erickson	20

6
further testified that, although Child did not respond to his messages after she stole	1
his Durango, she did message him the following day. The State then provided	2
Erickson with printouts of the messages Child reportedly sent him; however, as	3
Erickson attempted to read the messages, Child’s counsel objected, arguing a lack	4
of foundation. In response, the State attempted to lay further foundation, and	5
Erickson confirmed that the State’s exhibits were fair and accurate accounts of the	6
Facebook messages he and Child exchanged the day after she stole the Durango.	7
Child’s counsel responded that the evidence did not demonstrate that the messages	8
came from Child’s Facebook account and argued that laying a foundation for the	9
admission of Facebook messages is difficult “because anybody can have access to	10
[an individual’s] phone or Facebook account.” The district court overruled the	11
objection and admitted the exhibits, after which Erickson read the Facebook	12
messages—which contained incriminating statements—to the jury.	13
{16} 	On appeal, Child argues that the district court erred in admitting the Facebook	14
messages. Specifically, Child argues (1) Erickson did not, and could not, verify that	15
Child was in fact the author of the Facebook messages; (2) there was no evidence	16
presented that Child sent the Facebook messages from her personal Facebook	17
account; and (3) the Facebook messages were not capable of self-authentication.	18
{17} 	Rule 11-901(A) NMRA of the New Mexico Rules of Evidence addresses the	19
authentication of evidence and requires that the proponent of an item of evidence	20

7
“produce evidence sufficient to support a finding that the item is what the proponent	1
claims it is.” Id.; see State v. Imperial, 2017-NMCA-040, ¶ 28, 392 P.3d 658	2
(“Evidence is properly authenticated by the production of foundational evidence	3
‘sufficient to support a finding that the item is what the proponent claims it is.’ ”	4
(quoting Rule 11-901(A))). The standard for authentication is low, and “[a]s a	5
general rule, the admission of evidence is entrusted to the discretion of the trial court,	6
and rulings of the trial judge will not be disturbed absent a clear abuse of discretion.”	7
State v. Trujillo, 2002-NMSC-005, ¶ 15, 131 N.M. 709, 42 P.3d 814 (alteration,	8
internal quotation marks, and citation omitted). “An abuse of discretion occurs when	9
the ruling is clearly against the logic and effect of the facts and circumstances of the	10
case.” State v. Maples, 2013-NMCA-052, ¶ 13, 300 P.3d 749 (internal quotation	11
marks and citation omitted). “We will not presume that the district court abused its	12
discretion, 	but 	will 	instead 	presume 	the 	rectitude 	and 	regularity 	of 	the	13
proceedings[.]” Salehpoor v. N.M. Inst. of Mining & Tech., 2019-NMCA-046, ¶ 26,	14
447 P.3d 1169 (internal quotation marks and citations omitted).	15
{18} 	Rule 11-901(B) illustrates several ways to authenticate evidence, including	16
through testimony of a witness with knowledge, distinctive characteristics of the	17
item of evidence, and other evidence about a process or system. Depending on the	18
type of evidence offered, a combination of these approaches may be required to	19
authenticate the evidence. Compare State v. Jackson, 2018-NMCA-066, ¶¶ 15-16,	20

8
21, 429 P.3d 674 (affirming admission of text messages where the prosecution’s	1
expert in digital analysis and digital forensic analysis testified as to his examination	2
of the defendant’s alleged cell phones and a civilian witness testified that she knew	3
she was corresponding with the defendant because she recognized his voice when	4
she called the number and the text messages were consistent with the defendant’s in-	5
person responses), with State v. Thurman, 1972-NMSC-040, ¶ 9, 84 N.M. 5, 498	6
P.2d 697 (holding that the officer’s testimony that the video tape was a true and	7
accurate 	depiction 	as 	to 	what 	it 	purported 	to 	represent 	was 	sufficient 	for	8
authentication).	9
{19} 	In this case, the evidence at issue are messages exchanged through Facebook,	10
a social media website. Various forms of evidence from Facebook have been used	11
in trials ranging in form from profile pages, photos or videos, written postings, or—	12
as in this case—private messages. See, e.g., Commw. v. Fielding, 119 N.E.3d 328,	13
332 (Mass. App. Ct. 2019) (addressing authentication of Facebook photo); Mack v.	14
State, 832 S.E.2d 415, 416-17 (Ga. 2019) (discussing admission of third-party	15
comment on the defendant’s Facebook page); United States v. Vayner, 769 F.3d 125,	16
131-32 (2d Cir. 2014) (reviewing admission of printout of the defendant’s profile	17
page on Russian social media website).	18
{20} 	“Creating a Facebook account is easy. . . . [A]nyone at least thirteen years old	19
with a valid e[-]mail address [can] create a profile.” 2 Kenneth S. Broun et al.,	20

9
McCormick on Evidence § 227 (8th ed. 2020) (omission in original) (internal	1
quotation marks and citation omitted). To create a Facebook profile, all one has to	2
do is “go to www.facebook.com, enter his or her full name, birth date, and e-mail	3
address, and register a password. Facebook then sends a confirmation link to the	4
registered e-mail, which the person must click on to complete registration.” Smith v.	5
State, 2012-CT-00218-SCT (¶ 19) 	(Miss. 2014). Although Facebook requires	6
confirmation for account creation, it is possible for a person to set up an account	7
purporting to belong to someone else. In fact it is relatively common: “By November	8
2019, Facebook had removed more than five billion fake accounts in 2019, up from	9
3.3 billion in 2018.” State v. Allcock, 2020 VT 60, ¶ 18, 237 A.3d 648. In 2020, the	10
number of fake accounts removed by the company jumped to 5.8 billion. See	11
Community 	Standards 	Enforcement 	Report, 	Facebook 	Transparency,	12
https://transparency.facebook.com/community-standards-enforcement#fake-accounts.	13
{21} 	While it is evident that Facebook may be manipulated by individuals of even	14
relative technological savviness, we are nevertheless confident that our rules for	15
authentication provide an appropriate framework for determining admissibility. Cf.	16
Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 32, 134 N.M. 421,	17
77 P.3d 1014 (recognizing a trial court’s gatekeeping role in the context of admitting	18
scientific evidence); see also State ex rel. State Highway Dep’t v. Kistler-Collister	19
Co., 1975-NMSC-039, ¶ 16, 88 N.M. 221, 539 P.2d 611 (“It is true that the	20

10
sufficiency of the foundation or authenticating evidence is a matter largely within	1
the discretion of the trial court[.]”). However, given the risks discussed here, we	2
emphasize that, as gatekeepers, courts must take care to ensure the proponent of the	3
evidence “produce[s] evidence sufficient to support a finding that the item is what	4
the proponent claims it is.” Rule 11-901(A). In this regard, when parties seek to	5
admit evidence of messages sent through social media websites such as Facebook,	6
authorship is key to authentication. Therefore, the proponent must produce evidence	7
sufficient to support a finding that both the account and the accompanying messages	8
are linked to the purported social media user. In doing so, the proponent may use	9
any form of verification available under Rule 11-901(B). Such evidence may be of	10
a direct or circumstantial nature. Cf. State v. Romero, 2019-NMSC-007, ¶ 41, 435	11
P.3d 1231 (noting that the identity of a telephone caller “may be established by either	12
direct or circumstantial evidence” (internal quotation marks and citation omitted)).	13
With this in mind, we now turn to evaluate the admission of Facebook messages in	14
this case.	15
{22} 	Once an item of evidence has been authenticated and is therefore admissible,	16
the jury is free to make its own determination with respect to reliability. See Vayner,	17
769 F.3d at 131 (“[A]uthentication of course merely renders evidence admissible,	18
leaving the issue of its ultimate reliability to the jury.” (alterations, internal quotation	19
marks, and citation omitted)). “Thus, after the proponent of the evidence has	20

11
adduced sufficient evidence to support a finding that the proffered evidence is what	1
it is claimed to be, the opposing party remains free to challenge the reliability of the	2
evidence, to minimize its importance, or to argue alternative interpretations of its	3
meaning, but these and similar other challenges go to the weight of the evidence—	4
not to its admissibility.” Id. (internal quotation marks and citation omitted).	5
{23} 	In its answer brief, the State maintains that it laid a sufficient foundation	6
supporting the admission of the Facebook messages. First, the State argues that the	7
presence of Child’s name and photo on the printouts of the Facebook messages were	8
sufficient to tie authorship of the messages to Child under Rule 11-901(B)(4).	9
Second, the State argues that circumstantial evidence demonstrates that Child	10
authored the Facebook messages because “few people would have known anything	11
about [Erickson’s] vehicle being stolen or had access to [Child]’s cell phone.” We	12
disagree.	13
{24} 	To begin, the mere presence of Child’s name and photo, in and of itself, is not	14
enough to suggest Child authored the Facebook messages. As we have previously	15
explained, 	fake 	Facebook 	accounts 	abound. 	See 	Allcock, 	2020 	VT 	60, 	¶ 19	16
(“[M]isrepresenting, masquerading, and lying are common in every day social	17
networking use.” (internal quotation marks and citation omitted)). “The ease in	18
fabricating a social media account to corroborate a story means that more than a	19
simple name and photograph are required to sufficiently link the communication to	20

12
the purported author under Rule [11-]901.” People v. Kent, 2017 IL App (2d)	1
140917, ¶ 118 (internal quotation marks and citation omitted); see also Sublet v.	2
State, 113 A.3d 695, 713 (Md. 2015) (“[A]nyone can create a fictitious account and	3
masquerade under another person’s name or can gain access to another’s account by	4
obtaining the user’s username and password.” (internal quotation marks and citation	5
omitted)). Without more, Child’s name and photo do not sufficiently show, for	6
purposes of authentication, that Child authored the Facebook messages.	7
{25} 	Although we conclude that Child’s name and photo alone were not sufficient	8
to authenticate the messages, because “[e]vidence may be authenticated in many	9
ways, and as with any piece of evidence whose authenticity is in question, the type	10
and quantum of evidence necessary to authenticate a web page will always depend	11
on context[,]” we take no stance on what kind of evidence would have been sufficient	12
to authenticate the Facebook messages proffered by the State. Vayner, 769 F.3d at	13
133 (internal quotation marks and citation omitted). We will, however, discuss what	14
is absent in the record before us as a means of illustrating the various methods by	15
which a proponent of social media messages may meet their burden of authentication	16
under Rule 11-901(A).	17
{26} 	We first note that Child did not admit to sending the Facebook messages nor	18
did anyone else testify that they saw Child send the Facebook messages. See Sublet,	19
113 A.3d at 713 (describing the “first and most obvious method for authentication”	20

13
as asking the purported author if they wrote the messages). Indeed, the only	1
information presented tying the Facebook messages to Child was Erickson’s	2
testimony. Although Erickson testified that the messages were from the Facebook	3
account through which he and Child usually communicated, Erickson did not testify	4
as to how he knew that the Facebook account was Child’s; nor did he testify as to	5
how he knew that Child herself authored the messages in question. See Smith, 2012-	6
CT-00218-SCT (¶ 25) (rejecting the premise that testimony of a sole witness as to	7
authorship of social media messages passes muster as satisfying Rule 11-901(A)	8
when the movant “fail[s] to provide any information as to the basis of [the witness’s]	9
purported knowledge”).	10
{27} 	Additionally, while business records might sufficiently establish that Child	11
authored the messages, no such records are before us. See Jackson, 2018-NMCA-	12
066, ¶¶ 14-18; see also Smith, 2012-CT-00218-SCT (¶ 21) (providing “information	13
directly from the social networking website that links the profile and posting to the	14
purported author” as another method by which a social media record or message	15
may be authenticated).	16
{28} 	Turning to the State’s second argument that the Facebook messages were	17
attributable to Child because of their contents, we recognize that the Facebook	18
messages not only reference that Child drank alcohol the evening before—as she	19
testified to—but also allude to the fact that her drinking may have (1) impacted the	20

14
status of Erickson’s vehicle, and (2) warranted law enforcement’s involvement.	1
However, the circumstances described in the Facebook messages were also known	2
by Erickson and at least two other individuals who were with him while he spoke	3
with Officer Olivas. Given the number of individuals with knowledge of the	4
circumstances besides Erickson and Child, we are unconvinced that the content of	5
the messages was sufficiently confidential to establish that only Child could have	6
authored the messages. Thus, the State’s second argument also fails.	7
{29} 	Although authentication under Rule 11-901(A) is a low threshold and	8
“[p]rintouts of emails, internet chat room dialogues, and cellular phone text	9
messages have all been admitted into evidence when found to be sufficiently linked	10
to the purported author so as to justify submission to the jury for its ultimate	11
determination of authenticity[,]” we agree with Child that the State failed in this	12
instance to carry its burden. Tienda v. State, 358 S.W.3d 633, 639 (Tex. Crim. App.	13
2012). Accordingly, we hold that the district court abused its discretion in admitting	14
the Facebook messages.	15
B. 	The Admission of the Facebook Messages Was Not Harmless	16
{30} 	We next address whether the district court’s admission of the Facebook	17
messages constituted harmless error. “Improperly admitted evidence is not grounds	18
for a new [adjudicatory hearing] unless the error is determined to be harmful.” State	19
v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110. In order to determine whether a	20

15
district court’s erroneous application of the Rules of Evidence is harmless, “we	1
apply 	the 	non-constitutional error standard 	for harmless error.” State 	v. 	Leyba,	2
2012-NMSC-037, ¶ 24, 289 P.3d 1215.	3
{31} 	Under this standard, we assess the circumstances surrounding the error, which	4
may include “an examination of the source of the error”; “evidence of [Child’s] guilt	5
separate from the error”; “the importance of the erroneously admitted evidence in	6
the prosecution’s case”; and “whether the error was cumulative or instead introduced	7
new facts.” See Tollardo, 2012-NMSC-008, ¶ 43 (alterations, internal quotation	8
marks, and citation omitted). We also “look at the other, non-objectionable evidence	9
of guilt, not for a sufficiency-of-the-evidence analysis, but to evaluate what role	10
the error played at trial.” See Leyba, 2012-NMSC-037, ¶ 24. If this analysis reveals	11
a “reasonable probability” that the district court’s erroneous admission or exclusion	12
of 	evidence 	“contributed 	to 	the 	defendant’s 	conviction[,]” 	then 	reversal 	is	13
warranted. Id. (alteration, internal quotation marks, and citation omitted).	14
{32} 	The Facebook messages were introduced over Child’s objection by the State	15
in its direct examination of Erickson. The Facebook messages read in full:	16
[Child]: Your car!!	17
[Child]: I was drunk as fuck[.]	18
[Child]: I’m so sorry.	19
[Child]: Did u call the cops on me[?]	20

16
[Erickson]: Had to.	1
[Child]: And u gave them my name?	2
[Erickson]: Had to. What you did was beyond fucked up.	3
[Erickson]: And now I’m in deep shit for it.	4
[Child]: I’m IN DEEP SHIT[.]	5
[Child]: I was completely drunk[.] I don’t know what I was doing[.]	6
[Erickson]: Well we’re both fucked.	7
[Child]: Yeah no kidding.	8
[Child]: I’m going to jail[.]	9
[Erickson]: I can’t believe you took my car to Clovis and totaled it.	10
[Child]: I was drunk.	11
{33} 	Child was accused of committing the delinquent acts of unlawful taking of a	12
motor vehicle and reckless driving. In order to find that Child committed the act of	13
unlawful taking of a motor vehicle, the jury was instructed that the State must prove	14
to its satisfaction beyond a reasonable doubt that Child took Erickson’s Durango	15
without his consent on or about February 25, 2020. See UJI 14-1660 NMRA. And,	16
in order to find that Child committed reckless driving, the jury was instructed that	17
the State must prove to its satisfaction beyond a reasonable doubt that Child operated	18
a vehicle in a careless and heedless manner in willful or wanton disregard for the	19

17
rights or safety of others so as to endanger a person or property. See UJI 14-4504	1
NMRA.	2
{34} 	In an effort to meet its burden of proof, the State elicited testimony from	3
Erickson describing the events during which he stated Child took the Durango	4
without Erickson’s consent. He testified that Child pushed him aside, jumped in the	5
Durango, and refused to stop as he chased and pounded on the driver side window	6
and yelled at Child to stop. The State also introduced photographs of footprints	7
located next to a set of tire tracks, a downed fence, an askew dumpster, and scuff	8
marks on a curb, all of which tended to corroborate Erickson’s description of the	9
manner in which he claimed Child took and drove off with his Durango. However,	10
none of the photographs showed Child in the driver’s seat of the Durango. Child, on	11
the other hand, denied having driven the Durango and instead testified that once	12
Erickson pulled over near the Ashley Furniture store, she got out of the Durango and	13
walked home.	14
{35} 	Consequently, the State’s case as to each of the delinquent acts, were directly	15
tied to Erickson’s credibility and Child’s lack of credibility. And although Child	16
provided the jury with conflicting testimony regarding the use of her cell phone—	17
initially testifying that she texted her mother while she was walking home but later	18
testifying that she was in the Durango when she texted her mother—Child later	19

18
explained that she was confused when she initially stated she texted her mother while	1
she was walking home.	2
{36} 	The Facebook messages on the other hand were highly incriminating. Child	3
not only purportedly apologized for taking the Durango to Clovis and totaling it, but	4
also blamed her actions on being “drunk.” As the United States Supreme Court	5
observed, “confessions have [a] profound impact on the jury, so much so that we	6
may 	justifiably 	doubt 	its 	ability 	to 	put 	them 	out 	of 	mind[.]” 	Arizona 	v.	7
Fulminante, 499 U.S. 279, 296 (1991) (internal quotation marks and citation	8
omitted). Based on the record before us, we cannot say then that there is no	9
reasonable probability that the district court’s erroneous admission of the Facebook	10
messages contributed to the jurors’ determination that Child committed both	11
delinquent acts. Accordingly, we reverse each of Child’s delinquency adjudications.	12
C. 	Sufficient Evidence Supports Child’s Adjudications	13
{37} 	Although we reverse each of Child’s adjudications and remand for a new	14
adjudicatory hearing based on the erroneous admission of the Facebook messages—	15
which we have concluded were not harmless error—we address Child’s claims	16
regarding the sufficiency of the evidence. See State v. Post, 1989-NMCA-090, ¶ 22,	17
109 N.M. 177, 783 P.2d 487 (“If all of the evidence, including the wrongfully	18
admitted evidence, is sufficient, then retrial following appeal is not barred [by the	19
Double Jeopardy Clause].”). Child argues that the evidence was insufficient to	20

19
support her adjudications for unlawful taking of a motor vehicle and reckless	1
driving.	2
{38} 	In reviewing challenges to sufficiency of the evidence, we determine “whether	3
substantial evidence of either a direct or circumstantial nature exists to support a	4
verdict of guilty beyond a reasonable doubt with respect to every element essential	5
to a conviction.” State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal	6
quotation marks and citation omitted). In reviewing the sufficiency of the evidence,	7
we consider all the evidence admitted, even wrongfully admitted evidence. See Post,	8
1989-NMCA-090, ¶ 22. We “view the evidence in the light most favorable to the	9
guilty verdict, indulging all reasonable inferences and resolving all conflicts in the	10
evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128	11
N.M. 711, 998 P.2d 176. We disregard all evidence and inferences that support a	12
different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d	13
829.	14
1. 	Unlawful Taking of a Motor Vehicle	15
{39} 	“Jury instructions become the law of the case against which the sufficiency of	16
the evidence is to be measured.” State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M.	17
729, 726 P.2d 883. In order to find that Child committed the act of unlawful taking	18
of a motor vehicle, the jury was instructed that the State must prove to its satisfaction	19
beyond a reasonable doubt that (1) Child took a white 2002 Dodge Durango without	20

20
the owner’s consent, and (2) this occurred on or about February 25, 2020. See UJI	1
14-1660.3
2
{40} 	Child argues that only one witness—Erickson—“claimed that [she] was in	3
possession of the [Durango]” and that the State never proved that Child had	4
possession of the Durango by fingerprint, hair, or DNA evidence. The former	5
argument fails since the “testimony of a single witness may legally suffice as	6
evidence to support a jury’s verdict.” State v. Riley, 1970-NMCA-015, ¶ 6, 82 N.M.	7
298, 480 P.2d 693. Because Child directs us to no case law to support the latter	8
argument that the State was required to produce physical evidence of Child’s	9
possession of the Durango, we assume no such authority exists. See State v. Vigil-	10
Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129.	11
{41} 	Viewing the evidence in the light most favorable to the delinquency verdict,	12
we conclude that the following evidence supports the jury’s determination that Child	13
unlawfully took Erickson’s Durango. Erickson testified that after getting out of the	14
Durango to hug Child goodbye, Child pushed him aside and took off in his Durango	15
3In addition to the elements of unlawful taking of a motor vehicle and reckless
driving, the jury was instructed that it had to find beyond a reasonable doubt that
Child acted intentionally when she committed the act and that “[a] person acts
intentionally when she purposely does an act which the law declares to be a
delinquent act even though she may not know that her act is unlawful. Whether the
child acted intentionally may be inferred from all of the surrounding circumstances,
such as the manner in which she acts, the means used, and her conduct and any
statements made by her.”

21
without his permission and that she failed to stop even though he ran after her,	1
banged on the driver side window, and yelled for her to stop. Erickson additionally	2
testified that he filed a stolen motor vehicle report. Finally, the jury was presented	3
with exhibits of Facebook messages Child purportedly sent to Erickson the	4
following day in which Child apologized and claimed she was so intoxicated that	5
she did not know what she was doing when she took the Durango and destroyed it.	6
This evidence was sufficient to support the jurors’ reasonable determination that	7
Child committed the act of unlawful taking of a motor vehicle.	8
{42} 	To the extent Child argues that her mother’s testimony that she “was home at	9
1:00 a.m., prior to the wrecked automobile being discovered” requires reversal, we	10
disagree. Any conflict created by testimony from Child’s mother regarding the time	11
of Child’s arrival at home that evening and the discovery of Erickson’s crashed	12
vehicle by the Clovis Police Department was for the jury to resolve. See Jackson,	13
2018-NMCA-066, ¶ 25 (“It is for the jury to resolve conflicts in the evidence at trial,	14
and we resolve conflicts in the light most favorable to the verdict.”). The same is	15
true of Child’s testimony that she never drove Erickson’s vehicle. See id.	16
2. 	Reckless Driving	17
{43} 	Child also challenges the sufficiency of the evidence with respect to her	18
adjudication for reckless driving. In asserting this argument, Child contends that the	19
State was required to prove that “Child operated a motor vehicle on a highway and	20

22
did so in a careless, inattentive or imprudent manner without due regard for the	1
width, grade, curves, corners, traffic, weather, road conditions and all other attendant	2
circumstances.” Child is mistaken.	3
{44} 	In order to determine that Child committed the act of reckless driving, the jury	4
was instructed that that the State must prove to its satisfaction beyond a reasonable	5
doubt that (1) “[C]hild operated a motor vehicle”; (2) “[C]hild drove carelessly and	6
heedlessly in willful or wanton disregard of the rights or safety of others and without	7
due caution and circumspection and at a speed or in a manner so as to endanger or	8
be likely to endanger any person or property”; and (3) this happened in New Mexico	9
on or about February 25, 2020. See UJI 14-4504.	10
{45} 	Erickson testified that after Child took his Durango, she continued to drive as	11
he ran beside the vehicle banging on the driver side window shouting at her to stop.	12
Shortly thereafter, he saw Child jump a curb, knock down a fence, turn his Durango	13
around, drive over the fence again, and he later heard the sound of his Durango	14
striking a dumpster before he lost sight of the vehicle.	15
{46} 	The State also presented evidence that the following morning, Detective Rice	16
traveled to the alley where Child took Erickson’s Durango in order to look for	17
physical evidence and to see what the area looked like. Consistent with Erickson’s	18
testimony, Detective Rice saw an “obviously damaged” fence near a playground on	19
the north end of the alley near a church. In addition, he observed “signs that a vehicle	20

23
traveled not only northbound through the alleyway, but also southbound”; scuff	1
marks on one of the curbs that were “consistent not with a vehicle exiting the alley	2
but entering it again at a high rate of speed”; a dumpster in the alley that had been	3
hit by a vehicle traveling southbound; and that dirt in the alley was sprayed in such	4
a way as to suggest that “something that had traveled high speed going south through	5
the alleyway.”	6
{47} 	Based on the testimony of both Erickson and Detective Rice, a reasonable jury	7
could infer that Child operated the Durango “carelessly and heedlessly in willful or	8
wanton disregard of the rights or safety of others and without due caution and	9
circumspection and at a speed or in a manner so as to endanger or be likely to	10
endanger any person or property.” Section 66-8-113(A); see State v. Bent, 2013-	11
NMCA-108, ¶ 24, 328 P.3d 677 (“A reasonable inference is a conclusion arrived at	12
by a process of reasoning. This conclusion, however, must be a rational and logical	13
deduction from facts admitted or established by the evidence, when such facts are	14
viewed in light of common knowledge or common experience.” (omission, internal	15
quotation marks, and citation omitted)); see also Rojo, 1999-NMSC-001, ¶ 19	16
(explaining that review by appellate courts requires “scrutiny of the evidence . . . to	17
ensure that, indeed, a rational jury could have found beyond a reasonable doubt the	18
essential facts required for a conviction” (internal quotation marks and citation	19

24
omitted)). We conclude that the evidence was sufficient to support the jurors’	1
reasonable determination that Child committed the act of reckless driving.	2
D. 	Child’s Right of Confrontation Was Not Violated	3
{48} 	Child contends the district court’s denial of her motion to allow witnesses to	4
testify without face masks violated her state and federal constitutional right to	5
confront adverse witnesses. 4 The State responds that the face mask requirement did	6
not interfere with Child’s right of confrontation and that the requirement of wearing	7
a face mask serves the significant public policy interest of limiting the spread of	8
COVID-19.	9
{49} 	Both the United States and New Mexico Constitutions provide a criminal	10
defendant the right to confront adverse witnesses. U.S. Const. amend. VI (“In all	11
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the	12
witnesses against him[.]”); N.M. Const. art. II, § 14 (same). “Under [the appellate	13
court’s] interstitial mode of constitutional analysis, we first consider whether the	14
United States Constitution provides [Child] relief before determining whether it is	15
necessary to address a counterpart protection under the New Mexico Constitution.”	16
State v. Thomas, 2016-NMSC-024, ¶ 17, 376 P.3d 184. Child’s claims under the	17
4 In the interest of judicial economy we address Child’s remaining claims
related to the current pandemic.

25
Confrontation Clause are subject to de novo review. See State v. Massengill, 2003-	1
NMCA-024, ¶ 5, 133 N.M. 263, 62 P.3d 354.	2
{50} 	“The central purpose of the Confrontation Clause, to ensure the reliability of	3
evidence, is served by the combined effect of physical presence, oath, cross-	4
examination, and observation of demeanor by the trier of fact.” Thomas, 2016-	5
NMSC-024, ¶ 24 (alteration, omission, internal quotation marks, and citation	6
omitted). “Generally, the Confrontation Clause guarantees the defendant a face-to-	7
face meeting with witnesses appearing before the trier of fact.” State v. Smith, 2013-	8
NMCA-081, ¶ 5, 308 P.3d 135 (internal quotation marks and citation omitted).	9
However, the right to confront an adverse witness face-to-face is not absolute: “[A	10
child’s] right to confront accusatory witnesses may be satisfied absent a physical,	11
face-to-face confrontation at trial only where denial of such confrontation is	12
necessary to further an important public policy and only where the reliability of the	13
testimony is otherwise assured.” Thomas, 2016-NMSC-024, ¶ 24 (quoting Maryland	14
v. Craig, 497 U.S. 836, 850 (1990)).	15
{51} 	“COVID-19 is a rapidly evolving public health crisis of an extraordinary	16
magnitude.” 5 State v. Alejandro M., 2021-NMCA-___, ¶ 8, ___ P.3d ___ (No. A-1-	17
5“COVID-19 is a highly infectious and fast-spreading disease caused by a new
form of coronavirus that was identified in late 2019. The official name of this novel
coronavirus is SARS-CoV-2[.]” New Mexico Dep’t of Health, Policies for the
Prevention 	and 	Control 	of 	COVID-19 	in 	New 	Mexico, 	2 	(Jan. 	4, 	2021),
https://cv.nmhealth.org/wp-content/uploads/2021/01/EPI-COVID19-Containment-

26
CA-39004, 	Jan. 	7, 	2021). 	Governor 	Michelle 	Lujan-Grisham 	declared 	the	1
transmission of COVID-19 a public health emergency in New Mexico on March 11,	2
2020. Id. Since that time, COVID-19 has claimed the lives of more than three	3
thousand five hundred New Mexicans. See N.M. Dep’t of Health, New Mexico	4
COVID-19 	Update: 	411 	New 	Cases, 	Totaling 	181,739 	(Feb. 	18, 	2021),	5
https://cv.nmhealth.org/2021/02/18/new-mexico-covid-19-update-411-new-cases-	6
totaling-181739/. As evidenced by the number of executive and judicial orders	7
concerning access to courts, quarantine and travel restrictions, as well as social	8
interactions, generally, there is no question that preventing the transmission of	9
COVID-19 is an important public policy matter.	10
{52} 	As to the assurance of reliable testimony, the district court’s ruling that	11
witnesses wear face masks while testifying—as mandated by the Supreme Court	12
COVID-19 	Order—“ensured 	the 	presence 	of 	other 	confrontation 	elements	13
concerning 	the 	witness 	testimony 	including 	administration 	of 	the 	oath, 	the	14
opportunity for cross-examination, and the allowance for observation of witness	15
demeanor by the trier of fact.” Thomas, 2016-NMSC-024, ¶ 29. Witnesses were	16
under oath as they testified in the courtroom at the adjudicatory hearing, and Child	17
had the opportunity to cross-examine the witnesses. As for observation of demeanor,	18
Policies.1.4.21.pdf. 	COVID-19 	is 	generally 	believed 	to 	be 	spread 	“[t]hrough
respiratory droplets produced when an infected person coughs, sneezes, or talks.”
Id.

27
face masks “only obfuscate two witness traits—movement of the nose and mouth.”	1
United States v. James, No. CR-19-08019-001-PCT-DLR, 2020 WL 6081501, order	2
at *2 (D. Ariz. Oct. 15, 2020) (non-precedential). “The Confrontation Clause does	3
not require that the jury be able to see a witness’s entire face or body.” Id.	4
{53} 	We are further persuaded that the face mask requirement did not interfere with	5
Child’s constitutional rights based on the reasoning in United States v. Crittenden,	6
which explained,	7
Demeanor includes the language of the entire body. . . . [T]he jurors . . .	8
[were] able to see how the witnesses move[d] when they answer[ed] a	9
question; [if] the witnesses hesitate[d]; how fast the witnesses [spoke].	10
They [saw if] the witnesses blink[ed] or roll[ed] their eyes, ma[de]	11
furtive glances, and tilt[ed] their heads. The Confrontation Clause does	12
not guarantee the right to see the witness’s lips move or nose sniff, any	13
more than it requires the jurors to subject the back of a witness’s neck	14
to a magnifying glass to see if the hair raised during [a] particularly	15
probative question[].	16
No. 4:20-CR-7 (CDL), 2020 WL 4917733, order at *7 (M.D. Ga. Aug. 21, 2020)	17
(non-precedential).	18
{54} 	To the extent that Child argues that witnesses’ demeanors were not known to	19
the jury because of the presence of face masks, we disagree. Child spares no ink	20
detailing the importance of facial expressions to the determination of veracity.	21
Although we are mindful of the science supporting Child’s argument, we note that	22
she herself details the other ways in which witnesses communicate to jurors by	23
explaining that, in addition to facial expressions, “body language and delays in	24

28
speech are critically important in telling whether a witness is lying, hiding	1
information, guarding a secret or being truthful.” The jurors were able to physically	2
see the witnesses’ body language, albeit not the lower portion of their faces, as well	3
as hear them. We cannot find any evidence in the record that would suggest that the	4
judge, attorneys, or the jury were unable to sufficiently understand the witnesses’	5
testimony despite their face masks.	6
{55} 	Alternatively, Child requested that the witnesses wear face shields as opposed	7
to face masks. Just as it did with Child’s prior request, the district court correctly	8
explained that Child’s alternate request for face shields failed to satisfy the Supreme	9
Court COVID-19 Order and denied the motion. See Supreme Court Order No. 20-8500-	10
17 (May 15, 2020), https://www.nmcourts.gov/wp-content/uploads/2020/12/Order-	11
No_-20-8500-017-Requiring-Use-of-Face-Masks-in-NM-Courts-During-COVID-19-	12
PHE.pdf.	13
{56} 	“The [c]ourt is responsible for the safety of everyone in the courtroom[.]”	14
James, 2020 WL 6081501, at *1. Our Supreme Court’s COVID-19 operating	15
procedures have been designed, in conjunction with the New Mexico Department of	16
Health, based on the best available science and with public safety in mind. See, e.g.,	17
Administrative Office of the Courts, People entering New Mexico courthouses	18
required to wear a face covering (May 15, 2020), https://www.nmcourts.gov/wp-	19
content/uploads/2020/12/News-release-People-entering-a-NM-courthouse-must-	20

29
wear-a-face-covering.pdf (quoting Chief Justice Judith K. Nakamura as stating,	1
“State health officials have made it abundantly clear that if each of us wears a mask	2
in public we can help slow the spread of COVID-19 and save lives[.] . . . Our courts	3
provide essential services to the public so we continue to take all steps necessary to	4
safeguard the health and well-being of people who work in or need to visit a	5
courthouse.” (internal quotation marks omitted)).	6
{57} 	According to the Centers for Disease Control and Prevention (CDC), “face	7
shields are not as effective as masks, and it does not recommend substituting face	8
shields for masks.” Crittenden, 2020 WL 4917733, at *6. A face shield primarily	9
serves to protect the eyes of the individual wearing it, but does little to prevent the	10
spread of respiratory droplets to others as a face shield leaves large gaps below and	11
along the face. See Centers for Disease Control and Prevention, Guidance for Wearing	12
Masks: Help Slow the Spread of COVID-19, https://www.cdc.gov/coronavirus/2019-	13
ncov/prevent-getting-sick/cloth-face-cover-guidance.html. On the other hand, a face	14
mask over the mouth and nose prevents an individual’s respiratory droplets from	15
reaching others. Id. Because COVID-19 is primarily spread through respiratory	16
droplets, the face mask requirement “mitigates for all trial participants the risk of	17
transmission of a potentially deadly or disabling virus.” James, 2020 WL 6081501,	18
at *1.	19

30
{58} 	Bearing in mind the unique attendant circumstances to the COVID-19	1
pandemic, Child’s constitutional right to confrontation was not violated by the	2
requirement that witnesses wear face masks at her adjudicatory hearing.	3
E. 	The District Court Did Not Abuse Its Discretion by Denying Child’s	4
Motion to Continue	5
{59} 	Child next argues that the district court abused its discretion when it denied	6
her request to continue the trial “as a remedy to the face mask issue and	7
[C]onfrontation [Clause issue].” We disagree.	8
{60} 	“ ‘An abuse of discretion occurs when the ruling is clearly against the logic	9
and effect of the facts and circumstances of the case. We cannot say [a] trial court	10
abused its discretion by its ruling unless we can characterize it as clearly untenable	11
or not justified by reason.’ ” State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148,	12
152 P.3d 135 (quoting Rojo, 1999-NMSC-001, ¶ 41). In evaluating a motion for a	13
continuance, trial courts consider “the length of the requested delay, the likelihood	14
that a delay would accomplish the movant’s objectives, the existence of previous	15
continuances in the same matter, the degree of inconvenience to the parties and the	16
court, the legitimacy of the motives in requesting the delay, the fault of the movant	17
in causing a need for the delay, and the prejudice to the movant in denying the	18
motion.” State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20. We will	19
not find an abuse of discretion when reasons in the record “both support and detract	20
from a trial court’s decision.” State v. Anthony L., 2019-NMCA-003, ¶ 7, 433 P.3d	21

31
347. Our review involves “look[ing] at the evidence and its inference[s] in the light	1
most favorable to the district court’s decision.” Id.	2
{61} 	Child alternatively requested that her adjudicatory hearing be continued until	3
such time as our Supreme Court’s COVID-19 operating procedures are relaxed to	4
the point at which witnesses may testify without face masks. Child’s continuance	5
request was one of an indefinite length since “COVID-19 is unprecedented as much	6
as it is unpredictable. . . . [T]here is no way for the [c]ourt to know when the crisis	7
will end.” United States v. Casher, No. CR 19-65-BLG, 2020 WL 3270541, order at	8
*3 (D. Mont. June 17, 2020) (non-precedential); cf. Quinn v. City of Tuskegee, 464	9
F. Supp. 3d 1262, 1263 (M.D. Ala. 2020) (order) (“Jury trials cannot remain stalled	10
indefinitely[.]”).	11
{62} 	No vaccines were available to combat COVID-19 at the time of Child’s	12
adjudicatory hearing. See S. Bay Pentecostal Church v. Newsom, ___ U.S. ___, ___,	13
140 S. Ct. 1613, 1613 (2020) (Roberts, C. J., concurring) (“At this time, there is no	14
known cure, no effective treatment, and no vaccine.”). And while two vaccines have	15
since been developed and approved, widespread inoculation remains elusive. See	16
Am. Coll. of Obstetricians & Gynecologists v. U.S. Food & Drug Admin., No. TDC-	17
20-1320, 2020 WL 7240396, mem. op. at *3 (D. Md. Dec. 9, 2020) (non-	18
precedential) (explaining that widespread administration of COVID-19 vaccines	19
will not occur until spring 2021). An indefinite continuance would have achieved	20

32
Child’s desired outcome—that is, for witnesses to testify at her adjudicatory hearing	1
without face masks—but it is impossible to predict when the New Mexico Supreme	2
Court’s operating procedures will allow for such.	3
{63} 	As for previous continuances, the State filed the only other continuance	4
request in this case, which the district court granted. Therefore, this factor weighs in	5
favor of Child.	6
{64} 	Because Child is not at fault for the reason underlying her continuance	7
request—that is, the desire to have an adjudicatory hearing as it may have taken	8
place prior to COVID-19—we weigh this factor neutrally. See Oglesby v. Masse	9
Contracting, Inc., No. 19-2360-WBV-JCW, 2020 WL 3063849, order at *1 (E.D.	10
La. June 9, 2020) (non-precedential) (“The [c]ourt acknowledges and understands	11
interruptions associated with the pandemic that has affected the [s]tate, the country	12
and the world.”).	13
{65} 	The timing of Child’s request does, however, weigh against her. Child	14
requested to continue her adjudicatory hearing on the morning it was set to take	15
place. As the State correctly points out, the face mask requirement went into effect	16
on May 15, 2020, which left Child ample time to request a continuance prior to June	17
15, 2020—the morning of her adjudicatory hearing. “[W]e presume resetting the	18
trial date on the day trial is supposed to begin is inconvenient for the parties and for	19
the court.” State v. Gonzales, 2017-NMCA-080, ¶ 36, 406 P.3d 534. This is	20

33
especially true in the context of COVID-19 when the district court had to take	1
additional measures, consistent with our Supreme Court’s operating procedures, to	2
ensure the safety of the adjudicatory hearing participants. See, e.g., State v. Brazeal,	3
1990-NMCA-010, ¶ 16, 109 N.M. 752, 790 P.2d 1033 (“Trial judges necessarily	4
require a great deal of latitude in scheduling trials. Not the least of their problems is	5
that of assembling the witnesses, lawyers, and jurors at the same place at the same	6
time, and this burden counsels against continuances except for compelling reasons.”	7
(internal quotation marks and citation omitted)).	8
{66} 	Finally, it is Child’s responsibility to “establish not only an abuse of	9
discretion, but also that the abuse was to [her injury].” Salazar, 2007-NMSC-004,	10
¶ 10 (internal quotation marks and citation omitted). “No more prejudice need be	11
shown than that the trial court’s order may have made a potential avenue of defense	12
unavailable to the defendant.” Id. ¶ 16 (internal quotation marks and citation	13
omitted). As we have already explained, just because Child argues that face masks	14
denied her “the ability to fully confront her accusers” does not make it so. Child has	15
not met her burden of showing—at the bare minimum—that the district court’s	16
ruling prejudiced her by eliminating a potential defense.	17
{67} 	In conclusion, the district court’s decision to deny Child’s continuance request	18
was reasonable and supported by the circumstances at hand. See State v. Le Mier,	19
2017-NMSC-017, ¶ 18, 394 P.3d 959 (“[T]rial courts shoulder the significant and	20

34
important responsibility of ensuring the efficient administration of justice in the	1
matters over which they preside, and it is our obligation [as appellate courts] to	2
support them in fulfilling this responsibility.”).	3
CONCLUSION	4
{68} 	Based on foregoing, we reverse Child’s delinquency adjudications and	5
remand for a new adjudicatory hearing consistent with this opinion.	6
{69} 	IT IS SO ORDERED.	7
_________________________________	8
JACQUELINE R. MEDINA, Judge	9
WE CONCUR:	10
_________________________________	11
J. MILES HANISEE, Chief Judge	12
_________________________________	13
SHAMMARA H. HENDERSON, Judge	14