Opinion
No. A-1-CA-36258
12-11-2017
STATE OF NEW MEXICO, Plaintiff-Appellee, v. DEVIN BRANCH, Defendant-Appellant.
Hector H. Balderas, Attorney General Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender C. David Henderson, Appellate Defender Matthew J. Edge, Assistant Appellate Defender Santa Fe, NM Appellant
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Fred T. Van Soelen, District Judge Hector H. Balderas, Attorney General
Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender
C. David Henderson, Appellate Defender
Matthew J. Edge, Assistant Appellate Defender
Santa Fe, NM Appellant
MEMORANDUM OPINION
HANISEE, Judge. {1} Defendant has appealed from a conviction for trafficking a controlled substance. We issued a notice of proposed summary disposition in which we proposed to uphold the conviction. Defendant has filed a memorandum in opposition. After due consideration, we affirm. {2} The relevant background information has previously been described. We will avoid undue reiteration here, focusing instead on the content of the memorandum in opposition. {3} Defendant continues to argue that the statements of a co-conspirator were admitted in derogation of his right to confrontation. [MIO 4-6] We remain unpersuaded. The Confrontation Clause is only implicated where testimonial statements are at issue. See State v. Carmona, 2016-NMCA-050, ¶ 15, 371 P.3d 1056. Testimonial statements include "formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[,]" as well as "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." State v. Gurule, 2013-NMSC-025, ¶ 35, 303 P.3d 838 (internal quotation marks and citation omitted). In this case, the challenged statements were made by Defendant's co-conspirator to a confidential informant in the course of arranging a drug transaction. The co-conspirator was unaware that the purchaser was a confidential informant who was participating in a controlled buy. Under the circumstances, the statements cannot be characterized as testimonial in nature. See State v. Telles, 2011-NMCA-083, ¶ 20, 150 N.M. 465, 261 P.3d 1097 (observing that statements made unwittingly to government agents are not testimonial, and holding that a co-conspirator's statements that were clandestinely recorded were non-testimonial in nature). Insofar as the informant was not a police officer and the declarant had no reason to believe that his statements would be used in a subsequent prosecution, we reject the suggested analogy to testimonial statements elicited in the course of police interrogations. [MIO 5-6] See generally State v. Navarette, 2013-NMSC-003, ¶ 8, 294 P.3d 435 ("[A] statement can only be testimonial if the declarant made the statement primarily intending to establish some fact with the understanding that the statement may be used in a criminal prosecution."). {4} Defendant also renews his challenge to the sufficiency of the evidence. [MIO 6-7] However, the evidence supplied by the confidential informant and the eyewitness account of the law enforcement officer who observed the transaction supplied sufficient direct and indirect proof of all of the essential elements. Although Defendant continues to argue that additional evidence should have been required to establish his possession of the controlled substance, such as fingerprint or DNA evidence, [MIO 6-7] we disagree. The circumstantial evidence, including Defendant's observed actions, was sufficient to support the conviction. See generally State v. Barber, 2004-NMSC-019, ¶ 27, 135 N.M. 621, 92 P.3d 633 ("Proof of possession in controlled substances cases may be established by evidence of the conduct and actions of a defendant, and by circumstantial evidence connecting [the] defendant with the crime."). {5} Accordingly, for the reasons previously stated, we affirm.
{6} IT IS SO ORDERED.
/s/ _________
J. MILES HANISEE, Judge
WE CONCUR:
/s/ _________
M. MONICA ZAMORA, Judge /s/ _________
STEPHEN G. FRENCH, Judge