State v. Krcelic, A-1-CA-38054

• Citation: NO. A-1-CA-38054
• Case Date: February 17, 2020
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JASON KRCELIC, Defendant-Appellant.

NO. A-1-CA-38054

COURT OF APPEALS OF THE STATE OF NEW MEXICO

February 17, 2020

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James W. Counts, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee

Louis E. Lopez
El Paso, TX

Mary Stillinger
El Paso, TX

for Appellant

MEMORANDUM OPINION

VANZI, Judge.

{1} Defendant appeals from the district court's judgment and sentence, convicting him for kidnapping, armed robbery, conspiracy to commit armed robbery, three counts of child abuse, and three counts of aggravated assault with a deadly weapon. Unpersuaded that Defendant demonstrated error, we issued a notice of proposed summary disposition, proposing to affirm. Defendant has responded to our notice with a memorandum in opposition. We remain unpersuaded and affirm.

Page 2

{2} On appeal, Defendant has challenged the district court's admission of text messages found on a cell phone located at the scene of the crime. Our notice proposed to reject Defendant's theories that the text messages constituted inadmissible hearsay and violated his confrontation right. In response to our notice, Defendant abandons his challenge to the admission of all text messages except those purported to be from Defendant's mother to Defendant. We limit our analysis accordingly. Defendant's response further asks us to consider that this cell phone and the text messages retrieved therefrom constitute the only evidence linking Defendant to the crimes charged. [MIO 1-2] We agree that this evidence appears critical to identifying Defendant as one of the perpetrators of this incident.

{3} "Hearsay is an out-of-court statement offered to prove the truth of the matter asserted." State v. Saiz, 2017-NMCA-072, ¶ 34, 404 P.3d 422 (internal quotation marks and citation omitted); see Rule 11-801(C) NMRA. " 'Statement' means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." Saiz, 2017-NMCA-072, ¶ 34 (quoting Rule 11-801(A)). An assertion is a statement that may either be true or false. Id. "[S]tatements or conduct which are non-assertive are not hearsay." Id. (internal quotation marks and citation omitted).

{4} Defendant represents the challenged text conversation between Defendant and his mother to be as follows:

Mother: "You could have at least said bye. Also hope you aren't going to do nothing dumb. Only because the bandana, gun, and tee shirt,

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