February 18, 2015 – State of New Mexico v. Jackie Winters, No. 32,669

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	February 18, 2015
NO. 32,669
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JACKIE WINTERS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
William G. W. Shoobridge, District Judge
Mark Sanchez, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Kenneth H. Stalter, Assistant Attorney General
Albuquerque, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Sergio Viscoli, Appellate Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
FRY, Judge.
{1} 	Defendant appeals his convictions for larceny and criminal damage to property.
The convictions arose out of the same incident, although the charges were not joined
for trial. In his larceny trial, Defendant unsuccessfully challenged testimony by a
sheriff’s deputy that shoe prints found at the scene were similar to shoe prints found
outside Defendant’s residence. He was subsequently found guilty. Following his
conviction for larceny, Defendant conditionally pleaded no contest to the charge of
criminal damage to property (CDP), reserving an unstated issue for appeal. On appeal
from both convictions, Defendant argues that Deputy Jason Daugherty’s shoe print
testimony was improper lay witness testimony. We conclude that because Deputy
Daugherty did not provide a foundation for his opinion that the shoe prints at issue
were similar, the district court abused its discretion in allowing him to give this
opinion. We therefore reverse his conviction for larceny. Defendant further argues that
reversal of his larceny conviction requires reversal of his conditional plea in the CDP
case. However, because Defendant neither reserved nor preserved an issue for appeal
during his no contest plea in the CDP case, we uphold the plea.

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BACKGROUND
{2} 	Late one evening, the foreman of an oil extraction company operating in Lea
County, New Mexico, received an alert that one of the company’s pumps had stopped
running. Upon arriving at the scene, a company employee discovered that the “fluid
end” of an injection pump had been removed and was in the bed of a pick-up truck on
site. The pick-up truck did not belong to any of the employees of the company. In
addition to the theft of the fluid end, the instrument panel of a company backhoe
nearby was damaged.
{3} 	The company reported the theft, and Deputy Daugherty of the Lea County
Sheriff’s Department arrived to investigate. Although the keys to the truck were in the
ignition, the truck was inoperable. Deputy Daugherty ran the license plate number of
the truck and determined that it belonged to Defendant. Deputy Daugherty also took
photos of different sets of shoe prints at the scene that he believed were potentially
associated with suspects of the crime. He believed they were associated with the
suspects because he eliminated shoe prints he believed matched other employees and
law enforcement officials at the crime scene and because the shoe prints were in close
proximity to the truck.
{4} 	Deputy Daugherty then drove to Defendant’s residence to secure the area
pending the issuance of a search warrant. While at the residence, Deputy Daugherty

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observed shoe prints outside the residence that he believed were similar to the shoe
prints he photographed at the crime scene. Deputy Daugherty did not take photos of
the shoe prints at the residence, but other investigators on site did. Defendant was
subsequently arrested and charged with one count of larceny and one count of CDP.
Procedural History
{5} 	For unknown reasons, Defendant’s charges were separated into two cases
before two different judges in district court. The larceny case went to trial first.
Before trial, Defendant argued that Deputy Daugherty should be precluded from
testifying as to the similarity between the shoe prints at the crime scene and those he
observed at Defendant’s residence because the evidence was irrelevant without expert
testimony establishing any alleged similarities between the prints. The district court
denied the motion. Defendant also objected to the testimony at trial because there was
no 	foundation 	for 	Deputy 	Daugherty’s 	testimony 	that 	the 	shoe 	prints 	were
“substantially the same.” The jury convicted Defendant on the larceny charge.
{6} 	A few days after his conviction in the larceny case, Defendant pleaded no
contest to the charge of CDP. During the plea hearing, Defendant indicated that he
wished to enter into a conditional no contest plea to reserve an issue for appeal. When
asked what particular issue he was reserving, Defendant stated that while he believed
that there was an appealable issue, he did not want to single out one particular issue

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until he reviewed the record. Defendant further indicated that he wished to join the
larceny and CDP cases on appeal. The prosecution did not object to Defendant’s
conditional plea. The district court accepted Defendant’s no contest plea, noting that
the plea was “conditioned upon successful prosecution of an appeal reversing an
unstated issue.” Defendant now appeals.
DISCUSSION
Deputy Daugherty’s Opinion Testimony was Improper
{7} 	Defendant argues that Deputy Daugherty’s testimony regarding the similarity
between shoe prints found at the scene of the theft and shoe prints found outside
Defendant’s residence was improper lay witness opinion testimony. We review this
issue for abuse of discretion. See State v. Luna, 1979-NMCA-048, ¶ 18, 92 N.M. 680,
594 P.2d 340. We conclude that because no foundation was laid for Deputy
Daugherty’s opinion that shoe prints found at the scene were substantially the same
to shoe prints found near Defendant’s residence, his opinion constituted improper lay
witness opinion testimony.
{8} 	Rule 11-701 NMRA governs the admission of opinion testimony by lay
witnesses. The Rule states,
If a witness is not testifying as an expert, testimony in the form of
opinion is limited to one that is
A. 	rationally based on the witness’s perception,

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B. 	helpful to clearly understanding the witness’s testimony or to
determining a fact in issue, and
C. 	not based on scientific, technical or other specialized knowledge
within the scope of Rule 11-702 NMRA.
{9} 	Generally 	speaking, 	our 	Supreme 	Court 	has 	recognized 	that 	in 	some
circumstances shoe print comparison is within the purview of permissible lay witness
opinion testimony. See State v. Rondeau, 1976-NMSC-044, ¶¶ 42-43, 89 N.M. 408,
553 P.2d 688 (holding that a detective could provide non-expert opinion testimony
regarding similarities between shoe prints found at the scene and shoes seized from
the defendant); State v. Martinez, 1932-NMSC-051, ¶¶ 7-9, 36 N.M. 360, 15 P.2d 685
(holding that lay witness testimony comparing tracks found at the crime scene with
the defendant’s shoes was admissible); State v. Ancheta, 1915-NMSC-003, ¶ 10, 20
N.M. 19, 145 P. 1086 (holding that testimony by lay witness regarding his
observations of tracks at the crime scene with tracks known to be the defendant’s was
proper lay witness opinion testimony). While these cases engage in a somewhat
cursory analysis of the issue, we glean from them that, at least, the lay witness’s
opinion regarding the similarities between the prints or shoes at issue must derive
from personal observation or examination of the similarities of the tracks believed to
be the suspect’s and a shoe or print known to be the defendant’s. See Rondeau, 1976-
NMSC-044, ¶ 43 (“[A] witness who has made measurements of the tracks, and the

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foot or shoe of the defendant, or who has made some such comparison between the
tracks and the shoes of the defendant, [such] as placing the shoe in the tracks, or who
has detailed peculiarities in the tracks on the ground which correspond with the shoes,
or with the proven or admitted tracks of the defendant, that in either of these cases .
. . the witness may give his opinion as to the similarity of the tracks.” (internal
quotation marks and citation omitted)); Martinez, 1932-NMSC-051, ¶ 9 (“[A] witness
who has measured the tracks and compared his measurement with the shoes of the
accused may testify to the results and that a correspondence exists in size and shape.”
(internal quotation marks and citation omitted)).
{10} 	This principle appears rooted in the concept that “opinion testimony of lay
witnesses is generally confined to matters which are within the common knowledge
and experience of an average person.” Garcia v. Borden, Inc., 1993-NMCA-047, ¶10,
115 N.M. 486, 853 P.2d 737. That is, certain similarities between shoe prints,
including tread features and size, can be considered, in some instances, distinctive
enough to be readily apparent to an average observer. See Luna, 1979-NMCA-048,
¶ 19 (stating that for a lay witness’s opinion to be based on the witness’s perception,
the opinion must be one a “normal person would form on the basis of the observed
facts”); People v. Maglaya, 6 Cal. Rptr. 3d 155, 158 (Ct. App. 2003) (stating that
when “shoeprints are so large and the points of similarity so obvious, the comparison

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is a matter of nonexpert rather than of expert testimony.” (emphasis, alteration,
internal quotation marks, and citation omitted)). However, because this will not
always be the case, we agree with jurisdictions that require a foundation to be laid
before a lay witness may testify to the purported similarities between prints. In such
a case, a “lay witness may be permitted to express his or her opinion as to the
similarity of footprints if it can be shown that his or her conclusions are based on
measurements or peculiarities in the prints that are readily recognizable and within the
capabilities of a lay witness to observe.” State v. Jells, 559 N.E.2d 464, 471 (Ohio
1990). As the court in Jells explained, “This means that the print pattern is sufficiently
large and distinct so that no detailed measurements, subtle analysis or scientific
determination is needed.” Id. Without such a foundation, the lay witness’s opinion
testimony is outside the bounds of Rule 11-701.
{11} 	In this case, Defendant objects to Deputy Daugherty’s opinion that shoe prints
photographed at the scene were substantially similar to shoe prints photographed
outside Defendant’s residence. At trial, Deputy Daugherty testified that he observed
shoe prints at the scene and at Defendant’s residence and, based on his observations,
the shoe prints were “substantially the same.” No other foundation for the admission
of this opinion was given. The State later moved to admit photographs of three

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different shoe prints taken by Deputy Daugherty at the scene but not photographs
taken at the residence.
{12} 	The foundation laid for Deputy Daugherty’s opinion regarding the similarities
between the shoe prints was insufficient. Deputy Daugherty did not testify to the
observations he made regarding the similarities in the prints or any other peculiarities.
He merely testified that he observed shoe prints in both places and that they were
“substantially the same.” Indeed, not only did Deputy Daugherty fail to state the
observations that supported his opinion, his testimony failed to specify which of the
three shoe prints—photographs of which were later published to the jury—he believed
matched shoe prints later observed outside Defendant’s residence. This is problematic
because it does not establish that his opinion was “rationally based on [his]
perception[s]” or “helpful to clearly understanding [his] testimony[.]” 	Rule 11-
701(A), (B).
{13} 	Furthermore, Deputy Daugherty’s testimony failed to establish a foundation
linking the shoe prints he observed outside Defendant’s residence with Defendant. In
People v. Zismer, the court stated that “[t]here is a sound policy for requiring
foundational evidence that the footprint matches [the] defendant’s shoes.” 80 Cal.
Rptr. 184, 190 (1969). While the court noted that such a link may not always be
required when there is “independent evidence linking [the] defendant with the tracks

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. . . where the fact that [the] defendant made the tracks can only be established by a
comparison of the tracks with [the] defendant’s shoes . . . [s]ufficient foundational
evidence should be required to support a logical inference of identity from the
common distinctive features of the footprint and the [defendant’s] shoes.” Id.
Although this specific issue has not been analyzed by a New Mexico appellate court,
this requirement has been generally acknowledged in our Supreme Court’s decisions
on this issue. See Rondeau, 1976-NMSC-044, ¶ 43 (stating that a witness may testify
to similarities between tracks found and the shoes or shoe prints of the defendant);
Martinez, 1932-NMSC-051, ¶ 9 (stating that “a witness who has measured the tracks
and compared his measurement with the shoes of [the] accused may testify to the
results and that a correspondence exists in size and shape” (emphasis added) (internal
quotation marks and citation omitted)). In this case, aside from the fact that shoe prints
were found near Defendant’s residence, there was no other testimony or independent
evidence linking the shoe prints found outside Defendant’s home with Defendant.
Therefore, Deputy Daugherty’s testimony failed to provide a sufficient foundation for
his opinion.
{14} 	In sum, Deputy Daugherty’s testimony, when considered as a whole, amounts
to a cursory opinion that three different shoe prints found at the scene were
substantially like some unknown shoe prints he observed outside Defendant’s

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residence, without any specification regarding their similarities, much less which shoe
prints he was actually comparing. Accordingly, his testimony failed to lay a
foundation under Rule 11-701 and was impermissible lay witness opinion testimony.
Defendant Did Not Properly Enter Into a Conditional Plea
{15} 	Because 	we 	conclude 	that 	Deputy 	Daugherty’s 	opinion 	testimony 	was
improper, we also address Defendant’s argument that he properly preserved the issue
challenging the testimony in his conditional no contest plea in the CDP case.
Defendant argues that if he had, in fact, proceeded to trial on this charge, it is likely
that Deputy Daugherty’s opinion regarding the shoe prints would have been admitted
at this trial. 	Therefore, he claims that reversal on this point in the larceny case
requires a reversal of his conviction for CDP. We disagree.
{16} 	“[A] voluntary guilty plea ordinarily constitutes a waiver of the defendant’s
right to appeal his [or her] conviction on other than jurisdictional grounds.” State v.
Hodge, 1994-NMSC-087, ¶ 14, 118 N.M. 410, 882 P.2d 1. A conditional plea,
however, is a procedure that “enable[s] a defendant to reserve a significant pretrial
issue for appeal in a case in which conviction seems certain unless the defendant
prevails on the pretrial issue.” State v. Celusniak, 2004-NMCA-070, ¶ 7, 135 N.M.
728, 93 P.3d 10. Rule 5-304(A)(2) NMRA governs conditional pleas. The Rule states,
“With the approval of the court and the consent of the state, a defendant may enter a

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conditional plea of guilty or no contest, reserving in writing the right, on appeal from
the judgment, to review of the adverse determination of any specified pre-trial
motion.” Id. Thus, a “defendant enters a valid conditional plea by (1) preserving the
error through a pretrial motion, (2) obtaining consent of the prosecution, and (3)
obtaining approval of the court.” Celusniak, 2004-NMCA-070, ¶ 7.
{17} 	Apart from the consent requirements, the rule embodies two other principles:
preservation and reservation. First, the rule requires that there be an “adverse
determination of any specified pre-trial motion.” 	Rule 5-304(A)(2). Therefore, a
defendant must have preserved the issue for appellate review. Second, the defendant
must specify the specific issue or issues that he or she is reserving for appellate
review. That is, the defendant must “express an intention to reserve a particular
pretrial issue for appeal.” State v. Handa, 1995-NMCA-042, ¶ 12, 120 N.M. 38, 897
P.2d 225 (internal quotation marks and citation omitted).
{18} 	In this case, Defendant did neither. Defendant did not file any motion
challenging Deputy Daugherty’s testimony in the CDP case. Without such an adverse
determination ruling the testimony admissible, there is no alleged error on which to
base appellate review. Furthermore, Defendant did not reserve an issue for appellate
review. Defendant did not specify an issue when entering his conditional plea, and,
in fact, declined to do so. Such failures are not inconsequential. Without preserving

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an issue for review or indicating what issue the defendant is reserving, neither the
prosecutor nor the district court can properly grant their respective consent or approval
of the conditional plea. See Hodge, 1994-NMSC-087, ¶ 20 (stating that both the
prosecutor and the court should ensure that issues reserved in conditional pleas are
case-dispositive). Accordingly, we conclude that Defendant did not enter a valid
conditional plea reserving his right to appeal the admissibility of Deputy Daugherty’s
testimony in his CDP case.
CONCLUSION
{19} 	For the foregoing reasons, we reverse Defendant’s conviction for larceny and
affirm his plea of no contest to the CDP charge.
{20} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
MICHAEL E. VIGIL, Chief Judge
J. MILES HANISEE, Judge