July 18, 2016 – State v. Matias Loza, No. 34,182

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	July 18, 2016
NO. 34,182
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MATIAS LOZA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Mark T. Sanchez, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM
for Appellee
Alderman Law Firm
Kimberly L. Alderman-Penix
Denver, CO
for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Matias Loza appeals his convictions for racketeering, contrary to
NMSA 1978, Section 30-42-4(C) (2002, amended 2015), and conspiracy to commit
racketeering, contrary to Section 30-42-4(D). On appeal, Defendant first argues that
the district court improperly admitted evidence of uncharged crimes, wrongs, or other
acts. However, when, as here, the uncharged crimes, wrongs, or other acts are the
predicate offenses to charges of racketeering and conspiracy to commit racketeering,
Rule 11-404(B) NMRA is inapplicable. Defendant additionally argues that the district
court improperly admitted the transcript of an audio recording in which a sheriff’s
office detective identified four distinct voices, including Defendant’s. We conclude,
however, that the detective was sufficiently familiar with the recorded voices to make
identification under New Mexico law. We therefore affirm.
BACKGROUND

1During the course of Defendant’s trial, the State offered a substantial amount
of testimony and evidence to demonstrate (1) the AZ Boys’ status as a criminal
enterprise, (2) Defendant’s affiliation with the AZ Boys, and (3) Defendant’s
participation in a pattern of racketeering activities. See State v. Crews, 1989-NMCA-
088, ¶ 47, 110 N.M. 723, 799 P.2d 592 (describing the essential elements of
racketeering). This opinion discusses only the testimony and evidence necessary to
resolve the legal issues raised on appeal.
2
{2} 	Defendant was indicted for statutory violations allegedly committed during his
association with an organization referred to as the AZ Boys.1 The principal criminal
enterprise of the AZ Boys was the distribution of methamphetamine.
{3} 	In the early morning hours of November 1, 2011, Otero County Sheriff’s Office
Sergeant Geraldine Martinez was on routine patrol on Taylor Ranch Road near
Alamogordo, New Mexico. At approximately 3:30 a.m., Sergeant Martinez was
dispatched to investigate a possible home invasion on San Pedro Drive. While
proceeding to San Pedro Drive, Sergeant Martinez observed a vehicle completely
engulfed in flames near the intersection of San Pedro Drive and Hamilton Road.
Sergeant Martinez attempted to determine if the vehicle was occupied, but she was
unable to do so. She then proceeded as dispatched.
{4} 	Upon her arrival, Sergeant Martinez made contact with the homeowner who
directed her to a shed on the southwest portion of the property. While searching in and
around the shed, Sergeant Martinez observed Defendant lying under a trailer. She
instructed Defendant to exit. After exiting, Defendant was “sweating heavily, and

3
appeared to be really nervous, and smelled of gas.” Defendant was taken into custody
and transported for medical evaluation.
{5} 	At approximately the same time, the Otero County Fire Department responded
to the vehicle fire observed by Sergeant Martinez. Fire department personnel
extinguished 	the 	fire 	and 	discovered 	a 	deceased 	person 	inside 	the 	vehicle.
Investigation indicated that the fire was intentionally ignited by use of an ignitable
liquid. The deceased person was subsequently identified as Richard Valdez, and the
cause of death was determined to be homicidal violence. The vehicle was identified
as a 2006 Suzuki station wagon purchased by a member of the AZ Boys.
{6} 	After being identified as a suspect in Valdez’s death, Defendant was transported
to Gerald Champion Regional Medical Center by Otero County Sheriff’s Office
Deputy Edward Garcia to have a blood sample drawn. While at the hospital,
Defendant offered Deputy Garcia $40,000 if Deputy Garcia would release Defendant
from custody. Deputy Garcia refused. Defendant then offered Deputy Garcia $50,000.
Deputy Garcia again refused. Deputy Garcia recorded this interaction on his pocket
recorder and reported it to his supervisor.
{7} 	Defendant was initially charged with racketeering, conspiracy to commit
racketeering, arson, two counts of tampering with evidence, and bribery of a public
official. With the exception of racketeering and conspiracy to commit racketeering,

2Defendant objected to the admission of audio recordings downloaded from his
cellular telephone on the ground that the State failed to obtain an independent search
warrant for the contents of his cellular telephone. Defendant did not raise this
argument on appeal.
4
the charges against Defendant were dismissed without prejudice and re-filed as a
separate cause of action. Prior to trial, the State filed notice of its intent to introduce
Rule 11-404(B) evidence, including evidence of murder, arson, and bribery.
{8} 	Included in this evidence and introduced at trial was an audio recording
downloaded from one of Defendant’s cellular telephones in which various members
of the AZ Boys discussed the disposal of a dead body. The disposal mechanism
discussed was to “torch” a car with the body inside. Otero County Sheriff’s Office
Detective Fabian Picazo identified the voices on the recording as those of Defendant
and AZ Boys members Bob Chavez, Joe Chavez, and Joe Chavez Jr. The audio
recording and a transcript of the discussion, which identified the individual speakers,
were admitted into evidence over objection.2
{9} 	Defendant was convicted in a jury trial of racketeering and conspiracy to
commit racketeering. This appeal followed.
STANDARD OF REVIEW
{10} 	We review a district court’s admission of evidence for an abuse of discretion.
State v. Jaramillo, 2012-NMCA-029, ¶ 17, 272 P.3d 682. “An abuse of discretion

5
occurs when the ruling is clearly against the logic and effect of the facts and
circumstances of the case.” State v. Thompson, 2009-NMCA-076, ¶ 11, 146 N.M. 663,
213 P.3d 813 (internal quotation marks and citation omitted).
RULE 11-404(B)
{11} 	As a general rule, evidence of uncharged crimes, wrongs, or other bad acts is
referred to as character evidence or propensity evidence, and is inadmissible in
criminal trials. See Rule 11-404(B)(1) (“Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”); see State v. Beachum,
1981-NMCA-089, ¶ 6, 96 N.M. 566, 632 P.2d 1024 (“Under Rule [11-]404[(B)],
evidence of other crimes, wrongs, or acts is not admissible to show that the defendant
had a propensity to commit those crimes.”). This rule is expressly limited by Rule 11-
404(B)(2), which allows the admission of character evidence if the evidence is offered
for “another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” For character evidence
to be admissible in a criminal trial, the state must “provide reasonable notice of the
general nature of any such evidence[.]” Rule 11-404(B)(2)(a).
{12} 	New Mexico’s Rule 11-404(B)(1) mirrors Rule 404(b)(1) of the Federal Rules
of Evidence and was adopted in 2012 “to be consistent with the restyling of the

3
Otero County District Court Cause Nos. D-1215-CR-2011-00467 and D-1215-
CR-2014-00063.
6
Federal Rules of Evidence[.]” Rule 11-404 comm. cmt. Since the language of our Rule
11-404(B)(1) is identical to that of federal Rule 404(b)(1), we may look to the federal
courts for guidance as to the proper application of the rule. See Kipnis v. Jusbasche,
2015-NMCA-071, ¶ 7, 352 P.3d 687 (“When the state and federal evidence rules are
identical, we may rely on interpretations of the federal rule as persuasive authority.”),
cert. granted, 2015-NMCERT-006, 367 P.3d 852.
Inapplicability of Rule 11-404(B) to Charges of Racketeering and Conspiracy to
Commit Racketeering
{13} 	Defendant was tried on charges of racketeering, contrary to Section 30-42-4(C),
and conspiracy to commit racketeering, contrary to Section 30-42-4(D). Defendant
argues on appeal that the district court’s admission of evidence of “other” crimes
including murder, arson, and bribery was error. Specifically, Defendant claims that
“the State used evidence of the alleged homicide, arson, and bribery to show that
[Defendant] committed the charged offenses because he committed the other similar
acts.”
{14} 	Although Defendant was additionally charged with murder, arson, and bribery
in separate criminal proceedings,3 Rule 11-404(B), if applicable, would limit the
State’s ability to introduce evidence of these crimes in the current case. See State v.

7
Gallegos, 2007-NMSC-007, ¶ 21, 141 N.M. 185, 152 P.3d 828 (describing the
prejudicial effect of propensity evidence and the proper application of Rule 11-
404(B)). Therefore, the applicability of Rule 11-404(B) to the racketeering and
conspiracy to commit racketeering charges against Defendant is central to our inquiry.
{15} 	Section 30-42-4(C) provides that “[i]t is unlawful for a person employed by or
associated with an enterprise to conduct or participate, directly or indirectly, in the
conduct of the enterprise’s affairs by engaging in a pattern of racketeering activity.”
Section 30-42-4(D) provides that “[i]t is unlawful for a person to conspire to violate
the provisions . . . of this section.” The racketeering statute defines “pattern of
racketeering activity” as “engaging in at least two incidents of racketeering with the
intent of accomplishing any of the prohibited activities set forth in [Section 30-42-
4(A)-(D)].” 	NMSA 	1978, 	§ 	30-42-3(D) 	(2009). 	The 	statute 	further 	defines
“racketeering” in terms of twenty-five distinct predicate offenses, including murder,
arson, and bribery. Section 30-42-3(A).
{16} 	Because New Mexico’s racketeering statute defines violations by reference to
predicate offenses, the predicate offenses are essential components of a racketeering
offense. Evidence of the predicate offenses is, therefore, intrinsic rather than extrinsic
to a racketeering charge. United States circuit courts have held that federal Rule
404(b) does not apply to such intrinsic evidence. See United States v. Parker, 553 F.3d

8
1309, 1314 (10th Cir. 2009) (“Because Rule 404(b) only limits evidence of ‘other’
crimes—those extrinsic to the charged crime—evidence of acts or events that are part
of the crime itself, or evidence essential to the context of the crime, does not fall under
the other crimes limitations of Rule 404(b).”); see also United States v. Green, 617
F.3d 233, 249 (3rd Cir. 2010) (“If uncharged misconduct directly proves the charged
offense, it is not evidence of some ‘other’ crime.”); see also Black’s Law Dictionary
899 (9th ed. 2009) (defining “intrinsic” as “[b]elonging to a thing by its very nature;
not dependent on external circumstances; . . . essential”).
{17} 	While this Court has not previously determined the applicability of Rule 11-
404(B) to the predicate offenses of a racketeering charge, our appellate court opinions
determining the applicability of Rule 11-404(B) to “other” and “extrinsic” acts are in
accord with the United States Circuit Court holdings cited above.
{18} 	For example, in State v. Ruiz, the defendant was charged with multiple counts
of criminal sexual penetration of a minor and criminal sexual contact with a minor.
2007-NMCA-014, ¶ 1, 141 N.M. 53, 150 P.3d 1003. The victim was a friend of one
of the defendant’s daughters, and she frequented the defendant’s home. Id. ¶ 2. The
defendant was charged with five offenses, including one in July 1997, based upon the
victim’s ability to distinguish the general nature and timing of the assaults. Id. ¶ 29.
At trial, the state offered testimony from the defendant’s eldest daughter in which she

9
described witnessing the defendant touching the victim’s genital area in July 1997. Id.
¶ 27. The defendant argued that such testimony constituted evidence of “prior bad
acts” and was subject to exclusion under Rule 11-404(B). Ruiz, 2007-NMCA-014,
¶ 27. This Court, after determining that the witness’s testimony corroborated the July
1997 charged offense, disagreed with the defendant’s interpretation of Rule 11-404(B)
and held that “[t]he inclusion of the word ‘other’ [in Rule 11-404(B)] connotes crimes,
wrongs, or acts that are not the subject of the [current] proceedings[.]” Ruiz, 2007-
NMCA-014, ¶¶ 27-28.
{19} 	In State v. Gallegos, our Supreme Court applied a similar rationale in arriving
at the opposite conclusion. 2007-NMSC-007, ¶ 28, 141 N.M. 185, 152 P.3d 828. The
defendant was indicted on seven counts of criminal sexual contact of a minor (CSCM)
and three counts of aggravated indecent exposure stemming from incidents while he
was a guard at the Youth Diagnostic and Detention Center (YDDC). Id. ¶ 4. The
CSCM charges arose from conduct with a female YDDC resident, J.S. Id. The
indecent exposure charges arose from separate conduct with another female resident,
U.C. Id. ¶ 5. The district court denied the defendant’s motion to sever the two trials.
Id. ¶ 2. The defendant was convicted on one charge of CSCM and two charges of
aggravated indecent exposure. Id. ¶¶ 4, 6. On certiorari from this Court, our Supreme
Court reversed the defendant’s CSCM conviction, concluding that “we are not

10
confident the jury did not misuse the evidence pertaining to [U.C.] to convict [the
defendant] of CSCM.” Id. ¶ 3. Following analysis that resulted in a conclusion that no
Rule 404(B) exception was applicable, our Supreme Court held that “the extrinsic acts
of indecent exposure” committed against U.C. “would not have been cross-admissible
at separate trials[.]” Gallegos, 2007-NMSC-007, ¶¶ 26-36.
{20} 	The crimes of racketeering and conspiracy to commit racketeering are defined
by reference to predicate offenses. Rule 11-404(B) is, therefore, inapplicable to
evidence admitted to demonstrate these predicate offenses. Because admitted evidence
of murder, arson, and bribery related directly to the predicate offenses of racketeering
and conspiracy to commit racketeering, the district court’s admission of this intrinsic
evidence did not constitute an abuse of discretion.
RULE 11-901(B)(5) NMRA
{21} 	In support of its case against Defendant, the State introduced (1) an audio
recording recovered from Defendant’s cellular telephone and (2) a transcript of that
audio recording. Defendant argues that the State’s witness, Detective Picazo, lacked
sufficient familiarity with Defendant’s voice, as well as the voices of other members
of the AZ Boys, to positively identify and differentiate between four otherwise
unidentified voices on the admitted audio recording.

11
{22} 	Rule 11-901(A) provides that “[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” With respect to the
identification of a person’s voice, a witness may offer an opinion “based on hearing
the voice at any time under circumstances that connect it with the alleged speaker.”
Rule 11-901(B)(5). In interpreting Rule 11-901(B)(5), this Court, citing various
federal court opinions, has held that “once a minimal showing has been made that the
witness has some familiarity with the voice he identified, his identification testimony
may be admitted and the jury may then determine the weight to be accorded to that
testimony.” State v. Padilla, 1982-NMCA-100, ¶ 5, 98 N.M. 349, 648 P.2d 807
(emphasis added). As an indication of the low threshold for admissibility established
by Rule 11-901(B)(5), Padilla discussed United States v. Smith, 635 F.2d 716, 719
(8th Cir. 1980), a case in which the testifying witness heard the appellant’s voice on
only two other occasions. Padilla, 1982-NMCA-100, ¶ 5.
{23} 	During the course of his investigation, Detective Picazo heard Defendant’s
voice numerous times. On the day of Defendant’s arrest, Detective Picazo spoke with
Defendant in person on two separate occasions: first, for several minutes at the
hospital and, subsequently, for between sixty and ninety minutes at the Otero County
Sheriff’s 	Office. 	Detective 	Picazo 	also 	monitored 	between 	six 	and 	eight 	of

12
Defendant’s telephone conversations during Defendant’s pre-trial incarceration. These
in-person conversations and monitoring activities provide sufficient foundation for
Detective Picazo to identify Defendant’s voice on the admitted audio recording.
{24} 	Furthermore, Detective Picazo either interviewed, or monitored telephone
conversations involving, the three other individuals on the admitted audio recording:
AZ Boys members Bob Chavez, Joe Chavez, and Joe Chavez Jr. Detective Picazo
conducted an in-person interview with Bob Chavez during the investigation and
monitored between eight and ten of Bob Chavez’s telephone conversations during his
incarceration. Detective Picazo monitored a similar number of Joe Chavez’s telephone
conversations during his incarceration and became familiar with Joe Chavez Jr.’s
voice during these telephone conversations.
{25} 	Defendant calls our attention to certain segments of the transcript in which the
speaker is undetermined, arguing that Detective Picazo’s inability to differentiate
among the speakers in all instances negates his ability to offer an opinion as to
identity. This argument is unpersuasive. Detective Picazo’s exposure to the voices of
Defendant and other members of the AZ Boys is sufficient to make the “minimal
showing” of familiarity required to allow Detective Picazo to offer an opinion as to
the identity of speakers on the admitted audio recording. Id. Any inability to do so
with respect to individual segments of the audio recording goes to the weight of the

13
evidence, not the admissibility. See id. (“The completeness of the identifications goes
to the weight of the evidence and not its admissibility.” (internal quotation marks and
citation omitted)).
{26} 	Because the transcript of admitted audio recordings was admissible under Rule
11-901(B)(5), the district court’s admission of this evidence did not constitute an
abuse of discretion.
CONCLUSION
{27} 	For the foregoing reasons, we affirm.
{28} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
MICHAEL D. BUSTAMANTE, Judge
________________________________
J. MILES HANISEE, Judge