State v. Jesenya O.

Decision Date11 March 2021
Docket NumberNo. A-1-CA-39148,A-1-CA-39148
Citation493 P.3d 418
CourtCourt of Appeals of New Mexico
Parties STATE of New Mexico, Plaintiff-Appellee, v. JESENYA O., Child-Appellant.

Hector H. Balderas, Attorney General, Benjamin Lammons, Assistant Attorney General Santa Fe, NM, for Appellee

Liane E. Kerr, Albuquerque, NM, for Appellant

MEDINA, Judge.

{1} Jesenya O. (Child) appeals her adjudications of delinquency for unlawful taking of a motor vehicle, contrary to NMSA 1978, Section 30-16D-1 (2009), and reckless driving, contrary to NMSA 1978, Section 66-8-113 (1987). On appeal, Child raises a number of issues, which we address in the following order: (1) the district court abused its discretion when it admitted Facebook messages; (2) there is insufficient evidence to support her delinquency adjudications; (3) the district court violated her constitutional rights when it denied her motion to allow witnesses to testify without face masks or, alternatively, to allow witnesses to wear plastic face shields rather than face masks; and (4) the district court abused its discretion when it denied her motion to continue her adjudicatory hearing. We reverse and remand.


{2} Late one night, Officer Andrew Olivas of the Portales Police Department responded to the Ashley Furniture store to investigate a report of a stolen vehicle. Upon arrival, Officer Olivas spoke with Jeremiah Erickson who identified Child as the culprit. The State subsequently filed a delinquency petition alleging, in relevant part, that Child committed the delinquent acts of unlawful taking of a motor vehicle and reckless driving.

{3} On the morning of the adjudicatory hearing, Child's counsel objected to the requirement that witnesses wear face masks, asserting that the requirement violated Child's state and federal right of confrontation. Child's counsel argued that not being able to see each witness's entire face would prejudice Child as it would make it difficult for the jury to determine credibility by limiting important non-verbal communication cues.1 Counsel asked the district court to either allow witnesses to testify wearing plastic face shields rather than face masks, or in the alternative, to continue the trial until such time as face masks were not required.

{4} The district court denied Child's motions and explained that the adjudicatory hearing was proceeding pursuant to the New Mexico Supreme Court's current COVID-19 operating procedures (Supreme Court COVID-19 Order), which required that—with limited exceptions—"the use of a mask or other protective face covering that covers the nose and mouth shall be required by anyone entering and while in a courthouse, judicial building, or other physical space used, occupied, or operated by the New Mexico Judiciary[.]" Supreme Court Order No. 20-8500-17 (May 15, 2020), The district court further stated that it had directly clarified with our Supreme Court that witnesses were in fact required to wear face masks.

{5} Erickson, age nineteen, testified at the adjudicatory hearing that he knew Child from high school and that they communicated with each other through Facebook Messenger. On the evening of February 25, 2020, Erickson picked Child up at her house in his parents’ white Dodge Durango so they could hang out at his friend's apartment.

{6} According to Erickson, he, Child, and his friend hung out in the apartment and listened to music. Erickson testified that neither he nor Child drank any alcohol at the apartment. As the evening progressed, Erickson noticed that Child started "kinda acting really weird." Around 11:00 p.m., Child announced that she was "going to go smoke with one of her friends outside," which Erickson interpreted to mean she was going to smoke marijuana. Child left the apartment and returned about fifteen to twenty minutes later.

{7} Child asked Erickson to take her home sometime between midnight and 1:00 a.m. During the ride home, Child directed Erickson to drive to an alley behind Ashley Furniture, which he did. Erickson described Child as "high and [that] she looked drunk" as he drove to the alley.

{8} When he got to the alley, Erickson saw a couple of houses nearby. Erickson and Child got out of the Durango—which was still running—to hug one another goodbye. Child walked around the vehicle to the driver side, hugged Erickson, and then pushed him aside and jumped into the open Durango. Child locked the doors of the Durango and drove northbound down the alley.

{9} Erickson chased after Child on foot, pounded on the driver side window, and yelled at Child to stop. Instead of stopping, Child continued to drive, jumped a curb, and crashed through a chain-link fence. Child paused briefly before turning the Durango around and driving back over the downed fence and toward the alley. Erickson saw Child drive southbound down the alley and heard the Durango strike a dumpster before he lost sight of the vehicle. Erickson immediately called and messaged Child through Facebook Messenger "over and over again" but she did not respond to Erickson until the following day.

{10} Child testified on her own behalf at the adjudicatory hearing. According to Child, there were five people at the apartment (not three as Erickson testified to), and she claimed that everyone at the apartment—including Erickson and Child—had been drinking alcohol. Child denied having smoked marijuana that evening.

{11} As to the ride home, Child testified that Erickson was driving erratically, that he tried to kiss her, and that she told him to pull over and let her drive because he was drunk. According to Child, Erickson eventually pulled over behind the Ashley Furniture store. Both Child and Erickson got out of the Durango, and after arguing about whether it was safe for Erickson to drive, Child told Erickson she was going to walk home. Child testified that Erickson started to follow her as she began to walk home and that she was afraid Erickson would hurt her.

{12} Child testified that it took her approximately twenty-eight minutes to walk home from the alley. Child's mother, Jennifer Baca, testified that Child arrived home at approximately 1:03 a.m.

{13} Erickson's Durango was located shortly before 2:30 a.m. by the Clovis Police Department after investigating a report about a vehicle that crashed into a fence. The vehicle was totaled.

{14} A jury determined that Child committed the acts of unlawful taking of a motor vehicle and reckless driving. This appeal followed. We reserve discussion of additional facts where necessary to our analysis.

A. The Facebook Messages Were Not Properly Authenticated

{15} During the adjudicatory hearing, Erickson testified that he and Child communicated on their cellphones exclusively using Facebook Messenger. Erickson further testified that, although Child did not respond to his messages after she stole his Durango, she did message him the following day. The State then provided Erickson with printouts of the messages Child reportedly sent him; however, as Erickson attempted to read the messages, Child's counsel objected, arguing a lack of foundation. In response, the State attempted to lay further foundation, and Erickson confirmed that the State's exhibits were fair and accurate accounts of the Facebook messages he and Child exchanged the day after she stole the Durango. Child's counsel responded that the evidence did not demonstrate that the messages came from Child's Facebook account and argued that laying a foundation for the admission of Facebook messages is difficult "because anybody can have access to [an individual's] phone or Facebook account." The district court overruled the objection and admitted the exhibits, after which Erickson read the Facebook messages—which contained incriminating statements—to the jury.

{16} On appeal, Child argues that the district court erred in admitting the Facebook messages. Specifically, Child argues (1) Erickson did not, and could not, verify that Child was in fact the author of the Facebook messages; (2) there was no evidence presented that Child sent the Facebook messages from her personal Facebook account; and (3) the Facebook messages were not capable of self-authentication.

{17} Rule 11-901(A) NMRA of the New Mexico Rules of Evidence addresses the authentication of evidence and requires that the proponent of an item of evidence "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Id. ; see State v. Imperial , 2017-NMCA-040, ¶ 28, 392 P.3d 658 ("Evidence is properly authenticated by the production of foundational evidence ‘sufficient to support a finding that the item is what the proponent claims it is.’ " (quoting Rule 11-901(A) )). The standard for authentication is low, and "[a]s a general rule, the admission of evidence is entrusted to the discretion of the trial court, and rulings of the trial judge will not be disturbed absent a clear abuse of discretion." State v. Trujillo , 2002-NMSC-005, ¶ 15, 131 N.M. 709, 42 P.3d 814 (alteration, internal quotation marks, and citation omitted). "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case." State v. Maples , 2013-NMCA-052, ¶ 13, 300 P.3d 749 (internal quotation marks and citation omitted). "We will not presume that the district court abused its discretion, but will instead presume the rectitude and regularity of the proceedings[.]" Salehpoor v. N.M. Inst. of Mining & Tech. , 2019-NMCA-046, ¶ 26, 447 P.3d 1169 (internal quotation marks and citations omitted).

{18} Rule 11-901(B) illustrates several ways to authenticate evidence, including through testimony of a witness with knowledge, distinctive characteristics of the item of evidence, and other evidence about a process or system. Depending...

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