December 6, 2022- State of New Mexico v. Jerry Gilbert Espinoza, No. A-1-CA-39786

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: December 6, 2022	3
No. A-1-CA-39786	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
JERRY GILBERT ESPINOZA,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY	10
Melissa A. Kennelly, District Judge	11
Hector H. Balderas, Attorney General	12
Santa Fe, NM	13
Van Snow, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Santa Fe, NM	18
Steven J. Forsberg, Assistant Appellate Defender	19
Albuquerque, NM	20
for Appellant	21
Court of Appeals of New Mexico
Filed 12/6/2022 10:40 AM

OPINION	1
WRAY, Judge.	2
{1} 	Defendant Jerry Espinoza appeals the jury’s conviction on one count of	3
criminal sexual penetration of a minor (CSPM) in the first degree, contrary to NMSA	4
1978, Section 30-9-11(D) (2007, amended 2009), and one count of incest in the third	5
degree, contrary to NMSA 1978, Section 30-10-3 (1963). Defendant contends the	6
district court improperly admitted DNA evidence and other expert testimony. We	7
affirm.	8
BACKGROUND	9
{2} 	Defendant was charged with the sexual abuse of his granddaughter (Victim),	10
and a warrant to collect Defendant’s DNA was executed in order to conduct a	11
paternity test regarding Victim’s child (Child). Before trial, Defendant moved to	12
suppress any testimony regarding paternity testing.	13
{3} 	At the suppression hearing, the analyst from the New Mexico Department of	14
Public Safety Forensic Laboratories (NM Lab), Samantha Rynas, who tested the	15
samples in the present case, distinguished between forensic testing of DNA samples	16
and the statistical analysis of the results of the forensic testing. Rynas explained that	17
forensic testing involves manipulating a DNA sample to generate a profile. In the	18
present case, Rynas generated three profiles from three samples: Defendant, Victim,	19
and Child. Rynas compared Victim’s profile to Child’s and isolated the genetic	20

2
attributes that were contributed by someone other than Child’s mother, attributes	1
comprising 	the 	paternal 	contribution. 	Next, 	Rynas 	compared 	the 	paternal	2
contribution 	in 	Child’s 	profile 	to 	Defendant’s 	profile 	to 	determine 	whether	3
Defendant could be eliminated as a genetic contributor to Child. From this profile	4
comparison—the forensic testing—Rynas concluded that Defendant “couldn’t be	5
eliminated” as Child’s father.	6
{4} 	Next, Rynas engaged in a statistical analysis, to generate a likelihood ratio.	7
Generally, the likelihood ratio computation is “the probability that a man with the	8
phenotypes of the alleged father and a woman with the mother’s types would	9
produce an offspring with 	the child’s 	types.” 	1 Robert P. 	Mosteller 	et. 	al.,	10
McCormick on Evidence § 211.1 (8th ed. 2022). Rynas described the likelihood ratio	11
as “how often are these little bits of DNA being in the population and how likely is	12
it to find—for these set of circumstances to happen, in this situation, than if I just	13
pulled somebody off the street 	and tested 	their 	DNA.” 	Rynas 	explained 	the	14
likelihood ratio as follows: “It is essentially calculating out something very similar	15
to, if I rolled a big set of dice and it came up in a set order of 5-6-2-4-6, what are the	16
chances that I roll that dice again and get that exact set up again?” The statistical	17
analysis is important because if a person’s profile cannot be eliminated as a genetic	18
contributor, “we have to give a weight to that evidence and essentially say how likely	19
it is to find” the occurrence of this DNA profile in a population. To conduct the	20

3
statistical calculations, the NM Lab uses software that is provided and maintained	1
by the Federal Bureau of Investigation (FBI), called “Popstats.” Based on the	2
statistical calculation performed by Popstats, Rynas testified that it was “260 billion	3
times more likely” that Defendant “was the father than if an untested, unrelated man	4
was the father.”	5
{5} 	Defendant called his own DNA expert, Dr. Karl Reich, to testify at the	6
suppression hearing. Dr. Reich testified to the accreditations held by his commercial	7
DNA 	testing 	lab, 	including 	its 	accreditation 	with 	the 	Association 	for 	the	8
Advancement of Blood and Biotherapies (AABB). According to Dr. Reich, AABB	9
is the only accrediting body for familial relationship testing and labs with AABB	10
accreditation are required to log samples in a particular manner, to use particular	11
language in drafting reports, to calculate statistical 	conclusions using particular	12
frequency tables, and to annually verify the statistical conclusions by hand. Dr.	13
Reich testified that while the NM Lab is accredited to conduct the forensic testing to	14
produce DNA profiles, the NM Lab would not qualify for AABB accreditation for	15
statistical calculations. Dr. Reich agreed that the failure to log samples according to	16
AABB 	standards was “minor,” but that AABB does not recognize Popstats as	17
validated software; and no documentation suggested that the NM Lab conducts an	18
annual manual validation of Popstats calculations as AABB would require. At the	19
conclusion of the hearing, the district court ruled that (1) Rynas was qualified as an	20

4
expert in forensic DNA analysis; (2) the evidence showed that the protocols that	1
Rynas 	used were “widely, 	scientifically 	accepted” and “used in almost every	2
government/state lab,” according to Dr. Reich’s testimony; (3) the issue in dispute—	3
the reliability of Popstats—went to the weight of the evidence and was for the jury	4
to 	consider; 	and 	(4) 	Rynas’ 	testimony 	regarding 	the 	methods 	for 	statistical	5
calculation was sufficiently reliable for trial.	6
{6} 	At trial, Rynas explained that the statistical calculations compare a subject’s	7
profile to an “unrelated man” in order to determine the likelihood that the subject or	8
an unrelated man is the father. The statistics 	Rynas used “are based off of a	9
population 	group where essentially 	[the] 	data 	was 	gathered 	to 	look 	at 	how	10
frequent[ly] DNA markers appear in [a] population.” These statistics 	would be	11
“skew[ed],” however, if the subject’s DNA was tested against a related individual—	12
for example, a brother. Rynas confirmed that the Popstats software is programed to	13
“do the math for us and that is what we use to report our statistics.” Rynas again	14
testified that it was “260 billion times more likely” that Defendant was the father	15
rather “than an untested, unrelated man,” and “the probability of paternity [was]	16
99.99 percent.” The NM Lab report prepared by Rynas mirrored her testimony and	17
was admitted into evidence as State’s Exhibit 11. The district court also admitted the	18
NM Lab accreditation documents as State’s Exhibit 12a. Exhibit 12a includes a	19
performance certification of the Popstats software for the period during which the	20

5
DNA tests and calculations were performed in the present case. Dr. Reich also	1
testified and informed the jury that the NM Lab was not accredited to interpret the	2
results of the forensic testing and it did not verify the method used to analyze the	3
DNA profile.	4
{7} 	After trial began, Defendant argued that the district court should limit the	5
testimony of the State’s forensic interviewer, Julie Kay Vigil-Romero. Defendant	6
additionally objected that Vigil-Romero was only qualified to testify as a forensic	7
interviewer and not about disclosure of sexual assault, grooming, and promiscuity	8
resulting from sexual abuse. In this regard, the State argued that it would lay the	9
foundation for Vigil-Romero to qualify as an expert in the areas of (1) observed	10
behavioral 	manifestations 	of 	the 	impacts 	of 	sexual 	abuse 	on 	children 	and	11
adolescents, and (2) family dynamics in abusive homes. The district court ruled that	12
“as long as the foundation is laid to the jury,” Vigil-Romero would be admitted as	13
an expert in those areas identified by the State. The district court cautioned the State	14
“to 	stay 	away 	from 	[eliciting 	testimony 	from 	Vigil-Romero 	regarding] 	any	15
conclusions as to whether she thinks the abuse occurred or whether [V]ictim is	16
credible or truthful.” During the trial, Vigil-Romero testified that after reviewing the	17
case materials, she concluded that had she been the forensic interviewer, she would	18
have made referrals for a sexual assault nurse exam (SANE), a rape kit, counseling,	19
a mental health assessment, and mental health services.	20

6
{8} 	The jury convicted Defendant for one count of CSPM and incest and acquitted	1
Defendant of an additional CSPM count. This appeal followed.	2
DISCUSSION	3
{9} 	Defendant argues that the district court improperly admitted both the DNA	4
evidence and Vigil-Romero’s expert opinion. The admission of scientific evidence	5
and expert testimony is “within the sound discretion of the [district] court and will	6
not be reversed absent a showing of abuse of that discretion.” State v. Alberico, 1993-	7
NMSC-047, ¶ 58, 116 N.M. 156, 861 P.2d 192. A district court abuses its discretion	8
if its decision is manifestly erroneous, arbitrary, unwarranted, or is “clearly against	9
the logic and effect of the facts and circumstances before the court.” Id. ¶¶ 58, 63;	10
see also State v. Yepez, 2021-NMSC-010, ¶ 18, 483 P.3d 576 (explaining that the	11
role of the appellate court is to ascertain whether a meaningful analysis of the	12
admission of scientific testimony was conducted by the district court in accordance	13
with the Rules of Evidence).	14
I. 	The Admission of the DNA Evidence	15
{10} 	The admission of expert testimony is largely 	governed by Rule 11-702	16
NMRA, which has been interpreted to require the proponent of expert testimony to	17
satisfy three prerequisites: (1) the expert is qualified; (2) the testimony proffered will	18
assist the trier of fact; and (3) the testimony concerns scientific, technical, or other	19

7
specialized knowledge with a reliable basis.1 Yepez, 2021-NMSC-010, ¶ 19; Lee v.	1
Martinez, 2004-NMSC-027, ¶ 17, 136 N.M. 166, 96 P.3d 291. Defendant argues that	2
the district court abused its discretion in admitting the following evidence: (1) the	3
260-billion-to-one 	likelihood 	ratio; and (2) the 99.99 	percent probability 	that	4
Defendant was Child’s father. We refer to this evidence together as the “Probability	5
Conclusions.”	6
{11} 	Defendant 	specifically 	argues 	that 	the 	Probability 	Conclusions 	were	7
unreliable and misleading. 	Generally, 	courts determine reliability 	based on the	8
following factors:	9
(1) whether a theory or technique can be (and has been) tested; (2)	10
whether the theory or technique has been subjected to peer review and	11
publication; (3) the known or potential rate of error in using a particular	12
scientific technique and the existence and maintenance of standards	13
controlling the technique’s operation; and (4) whether the theory or	14
technique has been generally accepted in the particular scientific field.	15
Yepez, 2021-NMSC-010, ¶ 22 (internal quotation marks and citation omitted); see	16
State v. Fuentes, 2010-NMCA-027, ¶ 24, 147 N.M. 761, 228 P.3d 1181 (same). A	17
district court also “should determine whether the scientific technique is capable of	18
supporting opinions based upon reasonable probability rather than conjecture.”	19
1 We observe that the admission of expert testimony, like all evidence, is
additionally subject to Rule 11-401 NMRA (governing relevance) and Rule 11-403
NMRA 	(excluding relevant evidence that is substantially more prejudicial than
probative). Yepez, 2021-NMSC-010, ¶ 19. The parties make no arguments pertaining
to these rules, and we therefore do not address them.

8
Yepez, 2021-NMSC-010, 	¶ 22 (omission, internal quotation marks, and citation	1
omitted). Defendant does not evaluate the statistical 	calculations performed by	2
Popstats, 	or 	the 	resulting 	Probability 	Conclusions, 	according 	to 	these 	four	3
nonexclusive factors.	4
{12} 	Instead, Defendant maintains that because the Popstats software performed	5
the statistical calculations that resulted in the probability conclusions and Rynas did	6
not testify to how those calculations were performed, the Probability Conclusions	7
were inadmissible on various legal grounds. In order to consider each of Defendant’s	8
arguments, we must first distinguish between (1) the evidence the State ultimately	9
sought to be admitted—the result of the scientific test, and (2) the evidence “used to	10
determine whether the test result is admitted in the first place—the foundational	11
requirements.” State v. Martinez, 2007-NMSC-025, ¶ 13, 141 N.M. 713, 160 P.3d	12
894 (noting that “[t]he distinction is critical”). In the context of the present case we	13
separate 	the evidence 	to 	be admitted, 	the Probability 	Conclusions, 	from the	14
foundational testimony 	that justifies 	its 	admission, 	the statistical 	calculations	15
performed by Popstats. See id. The Probability Conclusions are the evidence to be	16
admitted because that evidence is relevant to an element of proof for both charges.	17
To establish both CSPM and incest, the State was required to prove that Defendant	18
engaged in sexual intercourse with Victim. See UJI 14-958 NMRA; § 30-10-3. The	19
Probability Conclusions offer the jury evidence from which to infer that sexual	20

9
intercourse, resulting in Child’s conception, occurred. The statistical calculations,	1
however, provide the foundational support for the admission of the Probability	2
Conclusions and are therefore “merely [a] foundational requirement[] that the [s]tate	3
must meet before the critical piece of evidence—the test result—is admitted into	4
evidence.” Martinez, 2007-NMSC-025, ¶ 14.	5
{13} 	Having identified the type of evidence at issue—foundational evidence—we	6
next evaluate whether the foundational evidence offered was sufficient, by a	7
preponderance of the 	evidence, 	to 	support the 	admission 	of the 	Probability	8
Conclusions. 	See 	id. 	¶ 	19 	(“[T]he 	trial 	court 	need 	only 	be satisfied 	by 	a	9
preponderance of the evidence that the foundational requirement [is] met.”). We find	10
Martinez to be helpful in this respect. In Martinez, our Supreme Court considered	11
whether 	testimony 	from 	a 	police 	officer 	about 	a 	certification 	sticker 	on 	a	12
breathalyzer machine used to administer a breath test sufficiently established the	13
foundation to admit the breath test results generated by the machine. Id. ¶¶ 1, 6. The	14
Court first concluded that the foundational requirements for admitting the breath test	15
would be met by proof that the machine was certified by a state laboratory at the	16
time the test was administered. Id. ¶ 12. The sticker was sufficient because it	17
demonstrated compliance with regulations that existed to ensure the accuracy of the	18
breathalyzer machine. Id. ¶¶ 11-12. The defendant had argued that to lay a sufficient	19
foundation, the officer who conducted the test must have personal knowledge of the	20

10
certification process. Id. ¶ 22. The Martinez Court disagreed and explained that	1
“[w]hether the officer understands the underlying process that led to the document’s	2
content does not matter for foundational purposes—what matters is simply the	3
content of the document.” Id.	4
{14} 	In the present case, we observe that the parties point us to no accuracy-	5
ensuring 	regulations 	that 	would 	demonstrate 	the 	reliability 	of 	the 	statistical	6
calculations, like those the Martinez Court determined to be sufficient for the	7
breathalyzer. Nevertheless, we agree with the district court that Rynas’ testimony	8
provided a sufficient foundation for the Probability Conclusions by a preponderance	9
of the evidence. Rynas’ testimony about the “underlying process,” the statistical	10
calculations, demonstrated the NM Lab’s in-house quality assurance controls and	11
accuracy-ensuring policies and procedures. At both the suppression hearing and at	12
trial 2 Rynas testified that the NM Lab had its own conditions, procedures, and	13
policies for quality control and that as a CODIS-FBI affiliated lab, must adhere to	14
quality assurance standards. Rynas testified that all of these quality assurances were	15
in place and adhered to in the testing and analysis involved in this case. Specifically	16
related to Popstats, Rynas explained at trial that the NM Lab uses the software for	17
2
In considering the foundational evidence, we look to the evidence presented
at both the suppression hearing and at trial. Cf. State v. Martinez, 1980-NMSC- 066,
¶ 16, 94 N.M. 436, 612 P.2d 228 (broadening the scope of appellate review to include
assessment of the entire record to determine whether probable cause existed for a
warrantless arrest).

11
statistical analyses and that the FBI provides software updates. Before a Popstats	1
software update is “deployed out [by the FBI] to any of the [affiliated] agencies,”	2
the FBI performs its own verifications of the updated software, called performance	3
checks. Then, when the NM Lab receives the software update, it conducts an in-	4
house performance check to ensure accuracy of results between versions.	5
{15} 	The district court admitted State’s Exhibit 12a, which includes a document	6
titled “NM-DPS Forensic Laboratory—Biology Unit CODIS 8.0 Popstats Software	7
Performance Check.” The document states:	8
On 	August 	30, 	2018, 	the 	FBI 	CODIS 	Software 	programs 	were	9
upgraded to version 8.0 from version 7.0. The Popstats statistical	10
analysis program was part of this upgrade, and as such, required a	11
performance check of the statistical databases to ensure concordant	12
results were obtained for casework applications. Three forensic single-	13
source samples 	were evaluated 	using Random 	Match 	Probability	14
(RMP), three forensic mixtures were evaluated using Probability of	15
Inclusion (PI), and two sets of parentage samples were evaluated for	16
Parentage Trio. The statistical analysis of these samples demonstrated	17
concordant results with previously analyzed data.	18
This document is dated September 4, 2018, and the next upgrade, from version 8.0	19
to version 9.0, was September 25, 2020. Because the testing in this case occurred	20
between September 9, 2019 and September 13, 2019, the 2018 update and validation	21
was in place at the time of Defendant’s testing. Based on this collective evidence,	22
we reject Defendant’s assertion that Popstats was not validated,3 and as a result, we	23
3
At the suppression hearing, Defendant’s expert, Dr. Reich, testified that he
could not evaluate the statistical calculations performed by the NM Lab, because he

12
cannot say that admitting the Probability Conclusions based on the statistical	1
calculations performed by Popstats was “clearly contrary to logic and the facts and	2
circumstances of the case.” Martinez, 2007-NMSC-025, 	¶ 23 (internal quotation	3
marks and citation omitted).	4
A. 	Defendant’s Challenge to the Reliability of the DNA Evidence	5
{16} 	This conclusion, however, does not end our analysis. It is well established that	6
“once the [district] court determines that the [s]tate has met the foundational	7
requirements 	for the 	admission 	[of evidence], 	a defendant may 	successfully	8
challenge the reliability 	of the [evidence].” Id. ¶ 24. Defendant makes several	9
arguments in this regard: (1) the NM Lab was not accredited for paternity testing;	10
(2) Rynas simply plugged numbers into the Popstats software without understanding	11
the statistical calculations and parroted the software’s conclusions; (3) the Popstats	12
testimony violated Defendant’s right to confrontation; and (4) the district court	13
shifted the burden to Defendant to undermine the foundational evidence for Popstats.	14
We briefly dispose of Defendant’s final argument. Defendant points to the district	15
court’s observation that Dr. Reich did not testify or present literature demonstrating	16
that Popstats was unreliable and argues that this finding suggests that Defendant had	17
did not “have access to Popstats.” Dr. Reich conceded, however, that Popstats is
used exclusively by government laboratories—and further that he did not know of a
single 	government laboratory 	accredited 	by AABB—and 	that the NM 	Lab’s
conclusions could be independently verified using different software.

13
the burden to disprove the foundation for the Probability Conclusions. We agree that	1
once the State met the foundational requirements for admission of the evidence, a	2
defendant may “critically challenge” the State’s foundation for scientific testimony.	3
See id. Contrary to Defendant’s position, however, at this point, the burden to	4
challenge the reliability of the testimony shifts to the opponent of admissibility. See	5
id. The district court did not impermissibly shift the burden, but instead determined	6
that Dr. Reich’s testimony failed to mount a successful challenge to the State’s	7
foundational evidence. We see no abuse of discretion in that ruling. Cf. Martinez,	8
2007-NMSC-025, ¶ 24 (noting no abuse of discretion where the defendant failed to	9
mount any 	challenge 	to 	the 	foundational 	testimony). 	Having 	addressed 	this	10
argument, we turn to Defendant’s remaining contentions.	11
1. 	The Accreditation Argument	12
{17} 	Defendant argues the NM Lab’s lack of accreditation for “paternity” testing	13
“contributed 	to the [NM L]ab’s 	DNA 	results 	being inadmissible.” 	Defendant	14
acknowledges that the accreditation issue is not dispositive but contends that AABB	15
accreditation would have ensured the tests were properly conducted. If the NM Lab	16
were AABB 	accredited, 	Defendant argues, “then 	it probably would not have	17
committed the scientific errors that lead to an inaccurate and unjustified report being	18
provided to the jury.” As we have noted, Dr. Reich testified that the AABB standards	19
would have imposed additional requirements 	and processes 	on the NM 	Lab.	20

14
Defendant, 	however, points 	to 	no 	authority that a particular 	accreditation 	or	1
satisfaction of other standards was required in order for paternal DNA testing	2
conclusions 	to 	be admissible. 	As 	discussed 	at length 	above, 	we 	are 	further	3
unpersuaded that the State failed to establish the reliability of the results in the	4
absence of AABB accreditation. We therefore agree with the district court that the	5
differences in accreditation requirements went to the weight of the evidence and not	6
to its admissibility. See State v. Anderson, 1994-NMSC-089, ¶¶ 47, 50, 118 N.M.	7
284, 881 P.2d 29 (concluding that doubts about a single aspect of the scientific	8
evidence reliability evaluation and disputes about “the accuracy of the probability	9
results . . . goes to the weight of the evidence, not its admissibility” 	(internal	10
quotation marks and citation omitted)).	11
{18} 	Defendant maintains that because NMSA 1978, Section 40-11A-503 (2009)	12
of the New Mexico Uniform Parentage Act (NMUPA) 	establishes standards for	13
paternity testing and requires AABB 	accreditation 	of a testing laboratory, the	14
Legislature 	has 	recognized 	“the 	different 	nature 	of 	paternity 	testing” 	and	15
accreditation would safeguard against unreliable results. See id. The State responds	16
that the NMUPA permits paternity testing to be performed by a lab accredited by	17
AABB or “an accrediting body designated by the federal secretary of health and	18
human services.” Section 40-11A-503(A)(1), (3). The NM Lab was accredited by an	19
organization called A2LA. See American Association for Laboratory Accreditation	20

15
(A2LA), 83 Fed. Reg. 12,799, 12,800 (Mar. 23, 2018) (to be codified at 42 C.F.R.	1
pt. 493). As the State points out, A2LA accreditation satisfies Section 40-11A-	2
503(A)(3). The NM Lab therefore was accredited under the NMUPA. 	While Dr.	3
Reich did not dispute that the NM Lab was accredited by A2LA, he dismissed the	4
A2LA accreditation because it related to forensic testing and not the statistical	5
calculations. The NMUPA, however, does not distinguish between accreditation for	6
forensic testing and statistical calculations—the statute simply refers to “[g]enetic	7
testing.” See § 40-11A-503(A). We thus conclude that the NMUPA provides little	8
support for Defendant’s argument that the State failed to establish a sufficient	9
foundation for the admissibility of the evidence.	10
2. 	The “Parroting” Argument	11
{19} 	We 	understand 	Defendant’s 	next 	argument 	as 	follows. 	Because 	it 	is	12
Defendant’s position that Rynas simply plugged the DNA profile into Popstats,	13
which Defendant maintains was not validated, and Rynas did not know how Popstats	14
calculated 	the statistics, 	Rynas’ testimony about the resulting conclusions was	15
inadmissible, improper “parroting” of the Popstats calculations.4 Parroting is one	16
4
To the extent that Defendant’s argument could be viewed as a challenge to
Rynas’ qualifications to testify about the statistical calculations and the Probability
Conclusions, we agree with the State that Defendant did not challenge Rynas’
qualifications in the district court. In reply, Defendant clarifies his position that
Rynas was “not an expert in paternity testing” but does not point us to any place in
the record where the qualifications argument was preserved. Accordingly, we do not
consider it. See State v. Clements, 2009-NMCA-085, ¶ 19, 146 N.M. 745, 215 P.3d

16
witness conveying “another individual’s testimonial hearsay, rather than conveying	1
her independent judgment that only incidentally discloses testimonial hearsay to	2
assist the jury in evaluating her opinion.” State v. Gonzales, 2012-NMCA-034, ¶ 8,	3
274 P.3d 151 (internal quotation marks and citation omitted). Nothing in the record	4
suggests 	that 	Rynas 	“parroted” 	Popstats. 	Rynas 	explained 	the 	purposes and	5
relevance of the statistical calculations. According to Martinez, if other evidence	6
established the reliability of the Probability Conclusions, whether Rynas understood	7
the underlying calculations performed by Popstats “does not matter for foundational	8
purposes.” 2007-NMSC-025, ¶ 22. Nevertheless, Defendant cites Gonzales to argue	9
that the “parroting” impacted the admissibility of the testimony. The Gonzales Court	10
considered the substitute testimony of an expert who did not perform the initial	11
procedure and whether that testimony violated the Confrontation Clause of the Sixth	12
Amendment to the United 	States 	Constitution and the New Mexico 	Rules of	13
Evidence. 2012-NMCA-034, ¶ 1. To the extent that “parroting” concerns apply to	14
this evidentiary argument—as opposed to a Confrontation Clause argument—the	15
present case does not involve a substitute analyst. Id. ¶ 16 (explaining that “the	16
degree to which a substitute analyst parrots the hearsay testimony of another”	17
controls the analysis under the Confrontation Clause). Rynas described the purpose	18
54 (“This Court will not search the record to find whether an issue was preserved
where 	[the 	d]efendant 	does 	not 	refer 	this 	Court 	to 	appropriate 	transcript
references.”).

17
of using Popstats, the calculations Popstats performed, and the meaning of the	1
results. Rynas testified to her own work and results and did not relay the testimonial	2
hearsay of another person. See id. 	(distinguishing “parroting” from an expert	3
expressing their own opinion). For these reasons, we reject Defendant’s “parroting”	4
argument.	5
3. 	The Confrontation Clause	6
{20} 	For many of the same reasons, the admission of the DNA evidence did not	7
violate Defendant’s right to Confrontation, which would have been violated if he	8
was “unable to confront testimony offered against [him].” State v. Imperial, 2017-	9
NMCA-040, ¶ 15, 392 P.3d 658. The right to confrontation extends to testimonial	10
statements made by a declarant “who did not appear at trial unless [the declarant]	11
was unavailable to testify, and the defendant had [a] prior opportunity for cross-	12
examination.” Id. ¶ 38 (internal quotation marks and citation omitted). The parties	13
agree that Defendant did not preserve a Confrontation Clause challenge and that our	14
review is for fundamental error. See State v. Silva, 2008-NMSC-051, ¶¶ 11, 13, 144	15
N.M. 815, 192 P.3d 1192 (reviewing an unpreserved Confrontation Clause claim	16
first for error and then to determine whether the error was fundamental, reversing	17
the conviction only “if the defendant’s guilt is so questionable that upholding a	18
conviction would shock the conscience, or where, notwithstanding the apparent	19

18
culpability 	of the defendant, substantial justice has not been served” (internal	1
quotation marks and citation omitted)).	2
{21} 	Defendant argues that the district court “created a [C]onfrontation [C]lause	3
violation by permitting” Rynas to testify about the statistical 	calculations 	and	4
Probability Conclusions. Defendant characterizes 	the statistical calculations as a	5
“computer 	accusation” 	and 	“basis 	evidence.” 	Defendant 	casts 	Rynas 	as 	an	6
“alternative expert witness” whose testimony parroted the computer’s accusation	7
because she did not know how the statistics were calculated and could not verify the	8
calculations. In response, the State argues that Defendant failed to identify a witness	9
whom he was unable to cross-examine for the purposes of the Confrontation Clause.	10
We conclude that the statistical calculations performed by Popstats—as opposed to	11
the Probability Conclusions reached as a result of the calculations—was neither	12
testimonial nor basis evidence, and Defendant had the opportunity to confront the	13
individual who performed the analysis.	14
{22} 	“[N]ot all foundational evidence implicates the Confrontation Clause.” State	15
v. Anaya, 2012-NMCA-094, 	¶ 21, 287 P.3d 956. The “testimonial 	nature of a	16
statement and its use against the defendant . . . triggers Confrontation Clause	17
protection.” Id. Again, the distinction between foundational evidence and evidence	18
to prove an element of the charge is critical. 	See id. ¶ 19. “[I]ssues that are	19
preliminary and foundational in nature are non-testimonial,” because those issues	20

19
bear “an attenuated relationship to conviction.” Id. ¶ 22. In Anaya, this Court	1
considered whether the foundational evidence required to admit breath test results,	2
regarding the reliability of the breathalyzer, was testimonial. Id. ¶ 25. “Because the	3
underlying 	science 	and functionality 	of the [breathalyzer] 	bears 	only on the	4
measurement to be used in conducting an analytical, scientific process, the scientific	5
aspects of the breathalyzer 	machine are non-testimonial and the Confrontation	6
Clause does not apply.” Id. As a result, “the officer’s testimony regarding [the	7
d]efendant’s act of blowing his breath into the machine . . . constitutes the testimonial	8
evidence that requires the officer who administered the breathalyzer 	test to be	9
present at trial and subject to cross-examination.” Id. ¶ 26. This Court discerned no	10
Confrontation Clause violation because the officer who administered the breath test	11
was a witness at trial. Id. In the present case, Defendant challenges his ability to	12
confront the “computer accusation,” or the Popstats statistical calculations. The	13
statistical 	calculations, 	however, 	like 	the 	“science 	and 	functionality” 	of 	the	14
breathalyzer, bear only on the mathematical process that produces the Probability	15
Conclusions and are therefore not testimonial. 	See id. ¶ 25. Rynas’ testimony	16
regarding the forensic testing of the DNA samples and the Probability Conclusions	17
constitutes the testimonial evidence that requires the analyst to be present at trial and	18
subject to cross-examination. Like the Anaya Court, we see no Confrontation Clause	19

20
violation, because Rynas, who conducted the testing, input the data into Popstats,	1
and provided the associated testimonial evidence, testified at trial.	2
{23} 	We further disagree with Defendant that “[t]he computer output [could] also	3
be considered basis evidence.” Defendant offers the definition for “basis evidence,”	4
derived from State v. Jimenez, 2017-NMCA-039, 392 P.3d 668, but does not analyze	5
or explain why the “computer output” qualifies as basis evidence. The Jimenez Court	6
described the improper admission of “basis evidence” as circumstances in which an	7
individual who collected evidence and created a report was not available at trial, but	8
a different testifying expert based an opinion on the unavailable witness’s evidence	9
and report. Id. ¶ 15. Defendant’s argument suggests that the Popstats software is the	10
necessary (and missing) evidence-collecting witness but expressly maintains that	11
“[t]he argument is not that the computer itself should be carried into the courtroom	12
for cross-examination.” Thus, Defendant has identified no missing witness who	13
should have testified about the statistical 	calculations. 	Rynas did not base her	14
opinion setting forth the Probability Conclusions on statistical calculations gathered	15
by a missing witness. As a result, Jimenez does not apply.	16
{24} 	We also reject Defendant’s claim that Rynas was an “alternative” expert to	17
Popstats, which was the “de facto expert.” Defendant cites Gonzales, 2012-NMCA-	18
034, ¶ 16, to suggest that Rynas improperly parroted the outcome of the statistical	19
calculations 	performed by Popstats. 	In 	Gonzales, however, the district 	court	20

21
excluded the testimony of an “alternative witness,” because the witness had not	1
conducted the autopsy in question. Id. ¶ 6. As Defendant notes, in a case involving	2
an alternative expert witness, the controlling question, “is whether the analyst’s	3
testimony was an expression of his own opinion or whether he was merely parroting	4
or merely repeating the contents of the report or the opinion of the analyst who is	5
unavailable for cross-examination.” Id. ¶ 16 (alteration, internal quotation marks,	6
and citation omitted). Defendant offers no authority to support a conclusion that a	7
computer program is the equivalent of another, unavailable analyst. As discussed	8
above, Rynas conducted the forensic testing, inputted the results into Popstats, and	9
provided an explanation for the resulting Probability Conclusions to the jury. The	10
present case does not involve parroting by Rynas, nor does it involve the opinion of	11
any other analyst, and Gonzales therefore does not apply.	12
{25} 	Defendant last argues that the ubiquity of computers in modern society has	13
muddied previously “clear legal distinctions, such as that between human witnesses	14
and computers.” Our courts, however, have continually applied the confrontation	15
analysis to account for developing technologies in order to ensure that Constitutional	16
protections are honored. See, e.g., Anaya, 2012-NMCA-094, ¶¶ 14-27 (applying the	17
confrontation analysis to the breathalyzer); see also Imperial, 2017-NMCA- 040,	18
¶¶ 37-40 (applying the confrontation analysis 	to the admission of surveillance	19
videos). Having applied that analysis to the facts of the present case, we hold that	20

22
the evidence did not violate Defendant’s right to confrontation and therefore no	1
fundamental error occurred.	2
II. 	The Testimony of the State’s Behavioral Expert	3
{26} 	Defendant argues that (1) the district court should not have qualified Vigil-	4
Romero as an expert in “the dynamics of child sexual abuse within the family and	5
in observed behavioral manifestations of the impacts of sex abuse on children and	6
adolescents”; and (2) Vigil-Romero’s 	testimony improperly bolstered Victim’s	7
credibility. We first address Vigil-Romero’s qualifications and second consider the	8
bolstering argument.	9
A. 	Expert Qualifications	10
{27} 	Whether an expert has the necessary qualifications to testify on any given	11
proposition is within the “wide discretion” of the district court and any ruling will	12
not be disturbed on appeal unless that discretion has been abused. Am. Nat’l Prop.	13
& Cas. Co. v. Cleveland, 2013-NMCA-013, ¶ 26, 293 P.3d 954. This Court “should	14
be wary of substituting its judgment for that of the [district] court” in considering a	15
witness’s qualifications. Alberico, 1993-NMSC-047, ¶ 63. An expert is qualified to	16
testify under Rule 11-702 by “knowledge, skill, experience, training, or education.”	17
Yepez, 2021-NMSC-010, ¶ 19. The State proffered Vigil-Romero’s testimony, based	18
on her training and experience, to provide an opinion about whether Victim’s	19
behaviors (including promiscuity, mental health issues, and outward expressions of	20

23
coping difficulties) were common traits in a person who has been sexually abused.	1
We consider whether this proffered testimony fell within Vigil-Romero’s training	2
and experience.	3
{28} 	Vigil-Romero testified to her education and background in early childhood	4
development, her multiple certifications, and her memberships in various groups that	5
advocate for children. Before she became a forensic interviewer, Vigil-Romero	6
worked as a liaison with the Children, Youth, and Families Department and made	7
referrals to interviewees and their families for services after domestic violence or	8
sexual abuse allegations. As a forensic interviewer, Vigil-Romero received referrals	9
to conduct investigations in order to obtain information about abuse allegations. As	10
part of her associate’s 	degree in early 	childhood development, Vigil-Romero	11
explained that her studies ranged from and included children’s development, growth,	12
disabilities, demeanor, and learning. Vigil-Romero had nearly completed a family-	13
studies bachelor’s degree, which involves the study of family units and behaviors	14
that can occur in family units. Vigil-Romero calculated that throughout her career,	15
she had received 1,039.20 hours of particularized training in child sexual abuse and	16
incest, including “the signs and symptoms that children display when they are being	17
abused—so, some of the behaviors, some of the things you might pick up on as an	18
individual when there is a child being sexually abused.” Throughout her career,	19
Vigil-Romero estimated that she had been involved with 1,600 cases involving child	20

24
sexual abuse, the majority occurring within a family unit. Vigil-Romero testified	1
further why she could explain misconceptions about child abuse:	2
I think that I can speak about child abuse because that is my job and	3
that is what I have been working with and on for the past fifteen years.	4
I’ve been working and providing forensic interviews to children who	5
are victims, also to adults who are developmentally delayed who are	6
abused, as well as learning new information. It’s constantly evolving—	7
there’s always new research out there in regards to child abuse and	8
forensic interviewing and I’ve dedicated fifteen years of my life to that.	9
Specifically, 	Vigil-Romero 	explained that lay people might not understand the	10
“myths and facts about child abuse, . . . signs and symptoms, . . . the impact of child	11
abuse on children, what happens to children when they have been abused, and how	12
it affects them.”	13
{29} 	Defendant contends that at most, Vigil-Romero was qualified as a “skilled	14
witness” and not an expert, because she had not completed her bachelor’s degree	15
and many of her certifications were not applicable to the proffered testimony.	16
Defendant acknowledges that New Mexico law does not distinguish between a	17
“skilled” witness and an expert witness, but maintains that the failure to do so	18
permits the State to bolster the witness’s credibility with the jury. Defendant does	19
not explain why qualifying a witness as “skilled” rather than as an “expert” would	20
impact the jury differently. We are satisfied with the well-established standard for	21
expert qualifications: “knowledge, skill, experience, training, or education.” Rule	22
11-702. It is the role of the jury or the trier of fact to ascertain the weight of expert	23

25
opinion testimony, 	and the “judgments 	of experts 	or the inferences of skilled	1
witnesses, even when unanimous and uncontroverted, are not necessarily conclusive	2
on the jury, but may be disregarded by it.” Alberico, 1993-NMSC-047, ¶ 36 (internal	3
quotation marks and citation omitted); see also State v. Duran, 1994-NMSC- 090,	4
¶ 9, 118 N.M. 303, 881 P.2d 48 (holding that the jury is free to believe or disbelieve,	5
and weigh disputes between, experts regarding the calculation of the results of DNA	6
typing evidence).	7
{30} 	We find no abuse of discretion in qualifying Vigil-Romero as an expert in the	8
dynamics of child sexual abuse within the family and in the observed behavioral	9
manifestations of the impacts of sexual abuse on children and adolescents.	10
B. 	Bolstering Testimony	11
{31} 	Defendant 	contends 	that 	Vigil-Romero 	improperly 	bolstered 	Victim’s	12
testimony when Vigil-Romero stated that had she been involved, she “would have	13
made a referral for [a SANE] or a rape kit.” Defendant acknowledges that this	14
assertion of error is unpreserved, and seeks review for plain or fundamental error.	15
See State v. Barraza, 1990-NMCA-026, ¶ 17, 110 N.M. 45, 791 P.2d 799. Both plain	16
and fundamental error require that this Court “be convinced that admission of the	17
testimony constituted an injustice that creates grave doubts concerning the validity	18
of the verdict.” Id. We consider “the alleged errors in the context of the testimony as	19
a whole.” Id. ¶ 18. First, however, we examine the different contexts in which New	20

26
Mexico 	courts have considered the balance between contextualizing 	an alleged	1
victim’s testimony and improperly bolstering that witness’s credibility.	2
{32} 	The Alberico Court held that testimony about posttraumatic stress disorder	3
(PTSD) “may be offered to show that [an alleged] victim suffers from symptoms	4
that are consistent with sexual abuse.” 1993-NMSC-047, 	¶ 84. 	Admissibility,	5
however, involves careful examination. The testimony “may not be offered to	6
establish 	that 	[an] 	alleged 	victim 	is 	telling 	the 	truth,” 	id., 	but “[i]ncidental	7
verification of [an alleged] victim’s story or indirect bolstering of [their] credibility	8
. . . is not by itself improper.” Id. ¶ 89. In Barraza, this Court considered an expert’s	9
testimony that the symptoms described by the victim were consistent with rape	10
trauma syndrome (RTS) based on scientific studies. 1990-NMCA-026, ¶ 10. The	11
Barraza Court noted that “it might be improper for the jury to infer from such studies	12
that one suffering those symptoms is actually a victim of rape.” Id. But the expert	13
did not testify that the victim had been raped—previous testimony referred to the	14
“alleged rape”—and the risk that the jury would improperly conclude that someone	15
with RTS symptoms in fact was a rape victim was not substantial enough to result	16
in plain or fundamental error. Id. ¶18. The facts in Barraza were distinguished by	17
our Supreme Court in State v. Lucero, 1993-NMSC-064, 116 N.M. 450, 863 P.2d	18
1071. In Lucero, the challenged expert testimony repeated the victim’s statements	19
regarding the alleged sexual abuse, and the expert directly and indirectly commented	20

27
on the victim’s truthfulness. Id. ¶ 22. Because of this testimony, the Lucero Court	1
had grave doubts concerning the validity of the verdict and the fairness of the trial	2
and reversed and remanded under plain error review. Id.	3
{33} 	In the present case, after denying Defendant’s motion to exclude Vigil-	4
Romero’s testimony, the district court cautioned the State that Vigil-Romero’s	5
testimony would not be unfairly prejudicial “as long as she does not get anywhere	6
near concluding as to whether she thinks the abuse occurred or whether [V]ictim is	7
credible.” The challenged testimony arose during direct examination. The State	8
asked Vigil-Romero whether, after she reviewed the case materials, she “would have	9
made any recommendations for [Victim].” Vigil-Romero responded, “if I had been	10
involved since the initiation [of the investigation] I would have made a referral for a	11
[SANE] 	or a rape kit, and I would have made a referral for the child to get	12
counseling, . . . a mental health assessment and mental health services.”	13
{34} 	Defendant argues that this testimony went “far beyond the more typical	14
question of whether an alleged victim’s PTSD . . . is ‘consistent with’ being sexually	15
abused” and therefore bolstered Victim’s credibility. According to Defendant, Vigil-	16
Romero “would only have made such a referral if she believed [Victim]’s account,	17
and thus was vouching for her credibility.” The State argues that even if the	18
challenged testimony bolstered Victim’s credibility it was not a direct comment—	19
that it at most “inferentially 	suggested that [Vigil-Romero] believed [Victim’s]	20

28
story”—and even if it did bolster, the error falls short of demonstrating plain or	1
fundamental error.	2
{35} 	Evaluating the testimony as a whole, we discern no error. See Barraza, 1990-	3
NMCA-026, ¶ 18 (explaining that alleged errors are considered in the context of the	4
testimony as a whole to determine if there has been plain or fundamental error).	5
Vigil-Romero’s 	testimony is more like the Barraza testimony than the Lucero	6
testimony. The Lucero expert “comment[ed] directly” on the victim’s credibility,	7
named the perpetrator, and testified that the victim’s symptoms “were in fact caused	8
by sexual abuse.” 1993-NMSC-064, ¶¶ 15-17. Vigil-Romero’s testimony had none	9
of these characteristics. She did not testify as to the identity of the perpetrator,	10
directly bolster Victim’s credibility, or state that Victim’s behaviors were caused by	11
sexual abuse.	12
{36} 	Instead, Vigil-Romero’s testimony, like the expert’s testimony in Barazza, did	13
not sufficiently raise the risk that the jury would draw an inappropriate conclusion.	14
Vigil-Romero testified that had she been involved in the investigation, she would	15
have recommended a SANE or a rape kit, and mental health services. Vigil-Romero	16
testified that as a forensic interviewer, part of her job after the interview is to make	17
counseling and medical referrals. The challenged testimony put Vigil-Romero’s	18
opinion in the context of her expertise as a forensic interviewer. Contrary to	19
Defendant’s argument, the testimony did not require an inference that Vigil-Romero	20

29
believed Victim, only that Vigil-Romero would have investigated the matter further.	1
See Alberico, 1993-NMSC-047, ¶ 89 (noting that “indirect bolstering of [a victim’s]	2
credibility . . . is not by itself improper [because a]ll testimony in the prosecution’s	3
case will tend to corroborate and bolster the victim’s story to some extent”); see also	4
Barraza, 1990-NMCA-026, 	¶ 18 (explaining that the risk that the jury would	5
“improperly conclude that someone with the symptoms of RTS in fact is a rape	6
victim” was not sufficiently substantial to demonstrate plain or fundamental error).	7
Accordingly, 	the 	admission 	of 	Vigil-Romero’s 	testimony 	was 	not 	plain 	or	8
fundamental error.	9
CONCLUSION	10
{37} 	For these reasons, we affirm.	11
{38} 	IT IS SO ORDERED.	12
______________________________	13
KATHERINE A. WRAY, Judge	14
WE CONCUR:	15
_________________________________	16
J. MILES HANISEE, Chief Judge	17
_________________________________	18
JANE B. YOHALEM, Judge	19