State v. Tsosie

                                                          Office of the
                                                              Director                    New Mexico
                                                                                          Compilation
                                                   08:25:00 2022.09.27                    Commission
                                                                '00'06-
             IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: July 14, 2022

No. S-1-SC-38418

STATE OF NEW MEXICO,

       Plaintiff Petitioner,

v.

OLIVER TSOSIE, a/k/a
OLIVER O. TSOSIE, a/k/a
OLIVER OLIN TSOSIE,

       Defendant Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Alisa A. Hart, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Appellate Defender
Santa Fe, NM

for Respondent

                                       OPINION

BACON, Chief Justice.

{1}     This case requires that we apply evolving Confrontation Clause jurisprudence
following Crawford v. Washington, 

 (2004), to statements made by an
alleged victim, now unavailable, in the course of a sexual assault nurse examiner
(SANE) exam. On interlocutory appeal, the State challenges the Court of Appeals’
affirmance of the district court’s pretrial ruling that almost all statements made by
Declarant Kimbro Talk to SANE nurse Gail Starr were inadmissible as violating
Defendant Oliver Tsosie’s confrontation rights under the Sixth Amendment. The district
court concluded that Declarant’s statements sought by the State for use at Defendant’s
trial were testimonial in nature, and thus inadmissible, pursuant to Crawford and Davis
v. Washington, 

 (2006). We reverse and, without ruling on other
considerations of admissibility, hold that almost all of the excluded statements are
nontestimonial in nature and thus do not violate Defendant’s rights under the
Confrontation Clause.

I.     BACKGROUND

A.     Factual Background

{2}     Based on events on or about December 18, 2017, Defendant was charged with
kidnapping, criminal sexual penetration, aggravated burglary, aggravated battery,
aggravated assault, and bribery of a witness. The State’s allegations included that
Declarant argued with Defendant after admitting Defendant and an unknown male into
his apartment. Defendant allegedly held a knife from Declarant’s kitchen to Declarant’s
throat, struck and kicked Declarant, and then strangled Declarant to unconsciousness.
Upon regaining consciousness, Declarant allegedly was restrained on the floor by the
unknown male while Defendant was anally penetrating Declarant with his penis.
Defendant and the unknown male allegedly tied up Declarant and then stole some of his
belongings. Before leaving, Defendant allegedly threatened to return with the unknown
male to kill Declarant if he reported the events to police. Declarant subsequently freed
himself and called 911 from his neighbor’s apartment.

{3}   Following treatment that night at the University of New Mexico Hospital (UNMH)
emergency room, Declarant was referred for additional examination and treatment by
the SANE department. Declarant was transported by law enforcement to the Family
Advocacy Center where he underwent the SANE examination conducted by Starr. The
eighteen-page SANE exam report in which Starr recorded Declarant’s statements was
admitted as State’s Exhibit 3 (“SANE exam report”) at a motion hearing on October 9,
2018.

{4}    Because Declarant died in June 2018, he is unavailable to testify, and the record
offers no evidence that Defendant had an opportunity to cross-examine Declarant
regarding his statements recorded in the SANE exam report.

B.     Procedural Background

{5}     Following a pretrial hearing regarding various evidentiary issues, the district court
concluded that it required testimony from Starr before making a determination about the
admissibility of Declarant’s statements in the SANE exam report. Accordingly, the
district court held a hearing for that purpose.

{6}   At the hearing, Starr was qualified as an expert in the area of sexual assault
nurse examinations. Starr’s testimony included the purpose of a SANE exam generally:

       [W]e are a medical exam. It’s very important to treat somebody who has
       been a victim of trauma . . . to give them support and psychosocial support
       . . . to do a safety assessment, make sure they’re not at risk for re-offense,
       re-harm . . . to give them medications to prevent sexually transmitted
       diseases, to help their body and help them feel . . . less dirty . . . to give
       them resources to assist them to heal. We also do forensic photography
       . . . and . . . for sexual assault, we also do the sexual assault evidence kit
       as a part of the exam, as well.

Starr testified as to her specialized training as a SANE nurse, her limited ability to make
a nursing diagnosis rather than a physician’s medical diagnosis, and the circumstances
of the SANE program’s medical clinic. Starr also testified at length as to the underlying
purposes of each portion of the SANE exam report the State sought to admit in the
instant case. We include this testimony below where it is relevant to the analysis.

1.     The district court’s order regarding admissibility of statements in the SANE
       exam report

{7}     Central to this appeal, the district court issued an order recounting Starr’s hearing
testimony. The order specified statements within nine portions of the SANE exam report
which the State intended to elicit at trial through Starr’s testimony. Then, the court set
forth a testimonial analysis under Crawford, stated as findings of fact and conclusions of
law. The court’s order admitted four statements made in the SANE exam that had “an
ascertainable purpose that was primarily for medical treatment.” Eight portions of the
SANE exam report were ruled inadmissible—challenged here by the State—due to
those statements “not [being] made for the primary purpose of seeking medical
treatment and [being] testimonial hearsay and a violation of Defendant’s right to
confrontation.”

{8}     Starr’s testimony as recounted in the order included that she “has received
specialized training to assess genital injuries and injuries caused by strangulation” and
that “[a]s a SANE nurse, she can treat but cannot diagnose a patient.” The order noted
Starr’s testimony that the SANE clinic “is located in the same building” as law
enforcement “but in a separate area” and that Declarant “was brought to the clinic by
law enforcement.” The order also noted that “[a] CT scan of [Declarant] was conducted
by UNMH prior” to the SANE exam. It further noted that “[a] SANE examination will be
performed regardless of whether the patient reports the assault to law enforcement.”
The order included a nonexclusive list from Starr’s testimony as to underlying medical
purposes for Declarant’s statements sought by the State for use at trial.

{9}    For legal authorities guiding its analysis, the district court quoted portions of State
v. Romero regarding testimonial analysis. See Romero, 

, 

, 

 (“‘Statements are . . . testimonial when the circumstances objectively
indicate that there is no . . . ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal
prosecution.’” (quoting Davis, 

)); id. ¶ 21 (“[T]he level of formality of the
interrogation is a key factor in determining whether statements are ‘testimonial’ within
the meaning of Crawford.” (citing Davis, 

)). The district court also cited
State v. Largo for the proposition that “[t]he actions and statements of both the
interrogator and the declarant may illuminate the primary purpose of the interrogation.”
See 

, 

. The district court did not cite United States
Supreme Court confrontation jurisprudence subsequent to Davis.

{10} The district court set out six findings of fact. These findings provided that “[t]he
examination occurred in a structured setting,” that the SANE exam report’s multiple
“forms suggest[ed] structured questioning,” that Declarant “consent[ed] to release all
records and evidence to law enforcement,” that Declarant “had been seen and treated
at UNMH emergency room prior to” the SANE exam, that “[a]lthough [Declarant had
been] seen at UNMH and received a CT scan, genital examinations are referred to [the]
SANE” program, and that “[a]lthough there is a dual purpose in a SANE examination,
including a medical evaluation and police investigation, the majority of statements by
[Declarant] recount[ed] what the abusers did, who did it, and what [Declarant] did that
might affect collection of evidence in the Post-Assault Hygiene Activity section of the
structured [SANE exam report] form” on page 3.

{11}   The order’s analysis then set out four apparent legal conclusions:

       [1] The primary purpose of a majority of the examination by the SANE
       nurse was not for medical treatment of [Declarant] but for purposes of
       forensic investigation, collection of physical evidence, and to ascertain the
       identity of the assailants.

       [2] Other than the genital examination, the primary purpose of the SANE
       examination was to prove some past fact for use in criminal trial rather
       than to meet an ongoing emergency making the majority of [Declarant’s]
       statements to the SANE nurse testimonial in nature.

       [3] Viewed objectively, the majority of statements given to the SANE nurse
       were not given for the primary purpose of medical diagnosis. The SANE
       nurse testified she is not able to make a diagnosis. [Declarant] had
       already been seen at UNMH and there was no indication that UNMH
       lacked necessary medical equipment for proper medical examination,
       diagnosis, and treatment.

       [4] Because the SANE nurse receives specialized training in assessing
       genital injuries and it is not uncommon for a SANE nurse to receive a
       referral from emergency rooms for genital examinations, limited
       statements made by [Declarant] to the SANE nurse would qualify as
       nontestimonial hearsay falling under the exception in Rule 11-803(4)
       [NMRA].

{12} The district court’s order then set out the four statement categories ruled both as
admissible under the Confrontation Clause and as exceptions to hearsay, accompanied
by the court’s reasoning. Declarant’s statements regarding not having prior genital
symptoms were admitted, because “[a]lthough [Declarant] had been seen at UNMH
prior to the SANE exam, [Declarant] was referred to [the] SANE [program] for the genital
exam.” Declarant’s statements were admitted regarding both “penile penetration of the
anus and ejaculation inside a body orifice.” The former statement was admitted
regarding “[t]he [bodily] location of penetration and the object used” because,
“[a]lthough it is a statement of a past event,” Declarant “had been referred for a genital
examination that was being conducted by” Starr. The latter statement was admitted
because Starr “testified that this question is asked to address a concern about illness
and disease, making the primary purpose for this statement for medical treatment.”
Finally, Declarant’s statements describing his pain and the level of pain were admitted,
because neither statement regarded past events and both “directly relate[d] to
[Declarant’s] medical treatment.”

{13} The district court’s order ruled statements in eight portions of the SANE exam
report inadmissible under the Confrontation Clause:

        a.      Statements regarding consent for services [in the page 1] Albuquerque
                SANE Collaborative Exam Consent Form.

        b.      Statements contained in the top portion of the [page 2] Sexual Assault
                Intake form.

        c.      Statements contained in the page 3 [History form,] . . . except for the
                statement that [Declarant] had no prior genital symptoms prior to the
                assault.

        d.      Statements contained in [the] page 5 . . . Strangulation Documentation.
                The State seeks to introduce the statements of [Declarant] describing
                method and manner of strangulation. Although[] [Starr] has specialized
                training in injuries caused by strangulation, objectively, the primary
                purpose of these structured questions [is] not for medical treatment and
                focus[es] on past events, not current symptoms.

        e.      Statements contained in [the] page 7 . . . Patient Narrative.

        f.      Statements contained in [the] page 8 . . . Acts Described by Patient . . .
                except . . . penile penetration of the anus and ejaculation inside a body
                orifice.

        g.      Statements contained in [the] page 9 . . . Physical Exam . . . except for the
                description of [Declarant’s] level of pain.

        h.      Statements contained [in the page] 11 . . . Body Map – Physical
                Exam/Assessment [that explain how the injuries noted on the page 10
                SANE Body Map occurred]. 1


1We note that the fourth and fifth actual pages of the SANE exam report were not numbered in the
document’s numbering sequence at the bottom left margin, leading to the sixth actual page being
identified at its bottom left margin as “Page 4 of 13,” and all subsequent pages being numbered
correspondingly. In accordance with the district court’s order, we refer to each page by the sequence
number of the actual page.
These constitute the statements challenged by the State before this Court.

2.     The Court of Appeals’ opinion

{14} In a memorandum opinion, the Court of Appeals agreed with the district court
that admission of the challenged statements would violate Defendant’s Sixth
Amendment right to confrontation. State v. Tsosie, A-1-CA-37791, mem. op. ¶ 1 (N.M.
Ct. App. July 21, 2020) (nonprecedential).

{15} For its legal framework, the Court of Appeals relied on the seven principles we
articulated in State v. Navarette, 

, 

, as
“‘essential’ to an analysis under the Confrontation Clause.” Tsosie, A-1-CA-37791,
mem. op. ¶ 13 (quoting Navarette, 

 (citing Crawford, 

)). Relevant here is the second Navarette principle that “‘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.’”

 (quoting Navarette, 

, ¶ 8). The Court also cited, among others, Ohio
v. Clark, 

, 249 (2015), and State v. Mendez, 

, 

, 

. Tsosie, A-1-CA-37791, mem. op. ¶ 13. The Court concluded
from the foregoing authorities that it should apply “a totality of the circumstances
approach: interpreting the testimonial nature of each statement individually, guided by
the circumstances in which it was made, and evaluating both the intent of the declarant
and the interviewer.” Tsosie, A-1-CA-37791, mem. op. ¶ 14.

{16} The Court of Appeals rejected the State’s argument that a SANE nurse’s
questioning is sufficiently distinct from a law enforcement officer’s “‘interrogat[ion]’” to
preclude the primary purpose of a SANE exam being “‘to establish or prove past events
potentially relevant to later criminal prosecution.’” 

 ¶ 15 (quoting Davis, 

). The Court agreed that a SANE nurse is “‘not principally charged with uncovering
and prosecuting criminal behavior,’” 

 (quoting Clark, 576 U.S. at 249), but cited their
“‘dual role’” against a presumption that statements made to a SANE nurse must be
nontestimonial, id. (quoting Mendez, 

).

{17} Analyzing the surrounding circumstances, the Court of Appeals concluded “that
[Declarant] understood that at least some of his statements would be used to prosecute
Defendant.” Id. ¶ 16. The key circumstances considered in the Court’s analysis were
that Declarant “was taken . . . by law enforcement” to the SANE exam, “was asked in
detail about the assault during the examination, was asked to provide forensic genital
and anal swabs, and consented to the release of information to law enforcement.” Id. ¶
16.

{18} Applying its analysis above “to each individual statement,” the Court of Appeals
held that Declarant’s “narrative account of the encounter” and his “description of the
method and manner of strangulation” are “testimonial in that [they] identif[y] Defendant
and accuse[] him of specific acts.” Id. ¶ 17. The Court also held that “the remaining
statements the district court excluded are testimonial because they focus on past events
rather than current symptoms.” Id.
{19} Finally, the Court of Appeals rejected the State’s argument that, based on the
district court’s failure to indicate its rejection of uncontradicted evidence, the district
court disregarded Starr’s uncontradicted testimony. Id. ¶ 18 n.1. The Court stated that
“[i]n cases such as this where a district court does not explicitly make any findings
regarding the credibility of a witness, ‘[a]ll reasonable inferences in support of the district
court’s decision will be indulged in, and all inferences or evidence to the contrary will be
disregarded.’” Id. (quoting State v. Jason L., 

, ¶ 10, 

, 

).

{20} Pursuant to the State’s petition in compliance with Rule 12-502 NMRA, we
issued a writ of certiorari to review this case. On appeal to this Court, the State
advances three primary arguments in support of the admissibility of the challenged
statements. First, no prior New Mexico law governs here, thus rendering admissibility of
statements to the SANE nurse in this case an issue of first impression. Second, a trend
in confrontation caselaw from other jurisdictions supports the admissibility of statements
made in the course of a SANE exam. Third, the district court and the Court of Appeals
in this case improperly disregarded Starr’s uncontradicted testimony concerning the
primary purpose of the SANE exam.

II.    DISCUSSION

{21} Because Crawford fundamentally altered Confrontation Clause jurisprudence
regarding the admissibility of statements made by unavailable declarants, we first
discuss relevant admissibility standards developed under Crawford and its progeny.
Because the United States Supreme Court has not applied those standards to
statements made in the course of a SANE exam, we turn also to New Mexico caselaw,
which is consistent with Crawford and its progeny. Finally, we apply these
considerations to the instant case and analyze the rulings of the courts below.

{22} We note as a preliminary matter that constitutional confrontation analysis is
merely the threshold consideration for admissibility in this circumstance. Cf. State v.
Attaway, 

, ¶ 8, 

, 

 (recognizing “threshold
constitutional issues” that require determination before other considerations). The
admissibility of any statement that survives confrontation analysis remains subject to
state and federal rules of evidence, including hearsay and balancing of probative value
versus prejudicial effect. See Michigan v. Bryant, 

, 370 n.13, 378 (2011);
cf. Mendez, 

 (“The hearsay rule and the Confrontation Clause are
not co-extensive and must remain distinct.”); Giles v. California, 

(2008) (distinguishing between Confrontation Clause analysis and state law
considerations).

A.     Standard of Review

{23} “[W]hether out-of-court statements are admissible under the Confrontation
Clause is a question of law, subject to de novo review.” Largo, 

;
State v. Lasner, 

, ¶ 24, 

, 

.
B.     The Confrontation Clause Under Crawford and Its Progeny

1.     Crawford v. Washington

{24} The Confrontation Clause of the Sixth Amendment to the United States
Constitution, binding on the states through the Fourteenth Amendment, provides, “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amends. VI, XIV; Bryant, 

; Clark,
576 U.S. at 243. Under the Confrontation Clause standard announced in Crawford,
“‘witnesses’ . . . are those ‘who bear testimony,’ and [Crawford] defined ‘testimony’ as ‘a
solemn declaration or affirmation made for the purpose of establishing or proving some
fact.’” Clark, 576 U.S. at 243 (quoting Crawford, 

). “The Sixth Amendment
. . . prohibits the introduction of testimonial statements by a nontestifying witness,
unless the witness is ‘unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.’” 

 (quoting Crawford, 

); accord
Navarette, 

. Under Crawford and its progeny, “a statement cannot
fall within the Confrontation Clause unless its primary purpose was testimonial.” Clark,
576 U.S. at 245.

{25} Examining the historical background of the Confrontation Clause, the Crawford
Court identified “testimonial hearsay” as the “primary object” of the Sixth Amendment,

, and identified “ex parte examinations as evidence against the accused”
as “the principal evil at which the Confrontation Clause was directed,” 

. The
Crawford Court “noted that in England, pretrial examinations of suspects and witnesses
by government officials ‘were sometimes read in court in lieu of live testimony.’” Bryant,

 (quoting Crawford, 

). Such pre-Constitutional ex parte
examinations were conducted by justices of the peace who “had an essentially
investigative and prosecutorial function.” Crawford, 

. Such “investigative
functions [are] now associated primarily with the police,” and today “[t]he involvement of
government officers in the production of testimonial evidence presents the same risk,
whether the officers are police or justices of the peace.” 

{26} “Crawford did not offer an exhaustive definition of ‘testimonial’ statements [but]
. . . stated that the label ‘applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police interrogations.’” Clark, 576
U.S. at 243-44 (quoting Crawford, 

). “These are the modern practices
with closest kinship to the abuses at which the Confrontation Clause was directed.”
Crawford, 

. Accordingly, the statements in question in Crawford—made in
the course of a station house police interrogation—were ruled testimonial and thus
inadmissible under the Confrontation Clause. 

. “Statements taken by
police officers in the course of interrogations are also testimonial under even a narrow
standard,” Crawford, 

, where such “interrogations [are] solely directed at
establishing the facts of a past crime, in order to identify (or provide evidence to convict)
the perpetrator,” Davis, 

 (stating that the Crawford Court “had [such
interrogations] immediately in mind (for that was the case before us)”).
2.      Davis v. Washington and Hammon v. Indiana

{27} In Davis, the United States Supreme Court addressed two domestic violence
cases (Davis v. Washington, No. 05-5224 and Hammon v. Indiana, No. 05-5705) in a
single opinion. In doing so, the United States Supreme Court “took a further step to
‘determine more precisely which police interrogations produce testimony’ and therefore
implicate a Confrontation Clause bar.” Bryant, 

 (quoting Davis, 

). The Davis Court considered the testimonial nature of the Davis declarant’s
statements that specified the identity and continuing assaultive actions of her former
boyfriend to a 911 operator deemed an “agent[] of law enforcement.” 

-
18, 823 n.2. Concurrently, the Davis Court considered the testimonial nature of the
Hammon declarant’s statements that specified her husband’s earlier-occurring violent
actions to a police officer taking notes while another officer required her husband to
remain in a separate room. 

.

{28} Applying Crawford to these disparate factual circumstances, the Davis Court
announced what has become known as the “primary purpose” test:

        Statements are nontestimonial when made in the course of police
        interrogation under circumstances objectively indicating that the primary
        purpose of the interrogation is to enable police assistance to meet an
        ongoing emergency. They are testimonial when the circumstances
        objectively indicate that there is no such ongoing emergency, and that the
        primary purpose of the [police] interrogation is to establish or prove past
        events potentially relevant to later criminal prosecution.

 (emphasis added); 2 Clark, 576 U.S. at 244. The Davis Court made clear that
these primary purpose conclusions were a sufficient approach for both Davis and
Hammon “[w]ithout attempting to produce an exhaustive classification of all conceivable
statements—or even all conceivable statements in response to police interrogation—as
either testimonial or nontestimonial.” Davis, 

. However, other than
providing the key factors underlying the Davis and Hammon holdings, the Davis Court
did not further define the testimonial nature of statements falling outside those cases’
factual circumstances.

{29} In Davis, the key factors rendering the statements to police nontestimonial, and
thus in harmony with the Confrontation Clause, included that the victim “was speaking
about events as they were actually happening, rather than describing past events, that
there was an ongoing emergency, that the elicited statements were necessary to be
able to resolve the present emergency, and that the statements were not formal.”

2We note that some courts, including the district court in this case, quote the second sentence of this
Davis excerpt in isolation, without acknowledgement that “Davis confined its discussion of interrogation to
situations involving law enforcement officers and their agents.” Romero, 

; see
Bryant, 

 (quoting Davis, 

). By recognizing that the holding in Davis focused
on police interrogation, however, we do not suggest that the principles of testimonial analysis in Davis
must be applied only to police interrogations. See Davis, 

 (“[T]hese cases require us to
determine more precisely which police interrogations produce testimony.”).
Bryant, 

 (text only) (citation omitted). 3 The Davis Court noted that “a
911 call[] is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but
to describe current circumstances requiring police assistance.” Davis, 

(second and third alterations in original).

{30} In Hammon, the following were key factors rendering the statements to police
testimonial and thus in violation of the Confrontation Clause:

        There was no emergency in progress. The officer questioning [the
        declarant] was not seeking to determine what is happening, but rather
        what happened. It was formal enough that the police interrogated [the
        declarant] in a room separate from her husband where, some time after
        the events described were over, she deliberately recounted, in response
        to police questioning, how potentially criminal past events began and
        progressed.

Bryant, 

 (ellipsis, internal quotation marks, and citation omitted).

{31} Davis contemplated that a police “interrogation to determine the need for
emergency assistance” could “evolve into testimonial statements once that purpose has
been achieved.” Davis, 

 (internal quotation marks and citation omitted).
The Davis Court recognized that “after the [911] operator gained the information needed
to address the exigency of the moment,” answers to the operator’s subsequent
questions may have become testimonial. 

. The Court advised,

        This presents no great problem. . . . [T]rial courts will recognize the point
        at which, for Sixth Amendment purposes, statements in response to
        interrogations become testimonial. Through in limine procedure, they
        should redact or exclude the portions of any statement that have become
        testimonial, as they do, for example, with unduly prejudicial portions of
        otherwise admissible evidence.

; see Bryant, 

 n.10 (affirming Davis’s recognition of “the
evolutionary potential of a situation in . . . the Confrontation Clause context”).

3.      Michigan v. Bryant

{32} In Bryant, five years after Davis, the United States Supreme Court further
expounded on the primary purpose test, directing that “when a court must determine
whether the Confrontation Clause bars the admission of a statement at trial, it should
determine the ‘primary purpose of the interrogation’ by objectively evaluating the
statements and actions of the parties to the encounter, in light of the circumstances in
which the interrogation occurs.” 

 (quoting Davis, 

).

3The “text only” parenthetical used herein indicates the omission of any of the following⸻internal
quotation marks, ellipses, and brackets⸻that are present in the text of the quoted source, leaving the
quoted text itself otherwise unchanged.
Bryant specified that a court conducting this objective inquiry should “beg[i]n its analysis
with the circumstances in which” the parties interacted, id. at 362, then conduct “a
combined inquiry that accounts for [the statements and actions of] both the declarant
and the interrogator,” id. at 367. 4 As we discuss below, the Bryant Court applied these
principles to the victim’s statements to police officers who discovered him in a gas
station parking lot mortally wounded by a gunshot. Id. at 370-78. Despite identifying and
describing the shooter and the location of the shooting, the statements of the declarant
were held to be nontestimonial, and their admission in the defendant’s trial, therefore,
did not violate the Confrontation Clause. Id. at 377-78.

{33} Noting that Davis did not define “‘ongoing emergency,’” id. at 363, the Bryant
Court analyzed that factor at length, id. at 359-78, as “among the most important
circumstances informing the ‘primary purpose’ of an interrogation” “between an
individual and the police,” id. at 361 (quoting Davis, 

) (citing
Crawford, 

). The Bryant Court stated that “[w]hen, as in Davis, the
primary purpose of an interrogation is to respond to an ongoing emergency, its purpose
is not to create a record for trial and thus is not within the scope of the [Confrontation]
Clause.” Id. at 358 (internal quotation marks omitted). “The existence of an ongoing
emergency . . . focuses the participants on something other than ‘proving past events
potentially relevant to later criminal prosecution.’ Rather, it focuses them on ‘ending a
threatening situation.’” Id. at 361 (brackets, footnote, and citation omitted) (quoting
Davis, 

). 5

{34} In overturning the ruling of the Michigan Supreme Court that statements of the
declarant were testimonial, the Bryant Court stated that the Michigan Supreme Court,
under its misreading of Davis, “failed to appreciate that whether an emergency exists
and is ongoing is a highly context-dependent inquiry.” Id. at 363. The Bryant Court
cautioned against “employ[ing] an unduly narrow understanding of ongoing emergency
that Davis does not require.” Id. at 362 (internal quotation marks omitted).

{35}    The Bryant Court further cautioned that its




4We note that the Bryant Court considered the responding officers’ subsequent testimony in its objective
inquiry. 

. Contrary to the dissent’s suggestion, dissent ¶ 155, consideration
of such testimony from the participants does not render the inquiry subjective, as we discuss further
below.
5Regarding the importance of emergency to the testimonial inquiry, we note that elsewhere Bryant
equated “[t]he existence of an emergency” with “parties’ perception that an emergency is ongoing.” 

 (emphasis added). The Court also stated,
         The existence of an ongoing emergency must be objectively assessed from the
         perspective of the parties to the interrogation at the time, not with the benefit of hindsight.
         If the information the parties knew at the time of the encounter would lead a reasonable
         person to believe that there was an emergency, even if that belief was later proved
         incorrect, that is sufficient for purposes of the Confrontation Clause. The emergency is
         relevant to the primary purpose of the interrogation because of the effect it has on the
         parties’ purpose, not because of its actual existence.

 at 361 n.8 (emphasis added) (internal quotation marks omitted).
       discussion of the Michigan Supreme Court’s misunderstanding . . . should
       not be taken to imply that the existence vel non of an ongoing emergency
       is dispositive of the testimonial inquiry. As Davis made clear, whether an
       ongoing emergency exists is simply one factor . . . that informs the
       ultimate inquiry regarding the primary purpose of an interrogation.

 (internal quotation marks omitted). Additionally, the Court noted that “there
may be other circumstances, aside from ongoing emergencies, when a statement is not
procured with a primary purpose of creating an out-of-court substitute for trial
testimony.” 

. Moreover, in determining whether a statement is testimonial,
“standard rules of hearsay, designed to identify some statements as reliable, will be
relevant.” 

{36} In arriving at its testimonial ruling, the Bryant Court emphasized that the primary
purpose “inquiry is objective.” 

 (“Davis uses the word ‘objective’ or ‘objectively’
no fewer than eight times in describing the relevant inquiry.”). The Court noted that the
objective test applies even to determining the purposes of a severely injured victim in
making statements to police. 

. “The inquiry is still objective because it
focuses on the understanding and purpose of a reasonable victim in the circumstances
of the actual victim—circumstances that prominently include the victim’s physical state.”

. Under the circumstances in Bryant, including the ongoing emergency and
need for medical treatment, the Court could not “say that a person in the [the victim’s]
situation would have had a ‘primary purpose’ ‘to establish or prove past events
potentially relevant to later criminal prosecution.’” 

 at 375 (quoting Davis, 

).

{37} In relation to its ongoing emergency analysis, Bryant also addressed the relative
“importance of informality in an encounter between a victim and police.” Id. at 366. The
Court noted that “although formality suggests the absence of an emergency and
therefore an increased likelihood that the purpose of the interrogation is” testimonial,
“informality does not necessarily indicate the presence of an emergency or the lack of
testimonial intent.” Id. (citing Davis, 

). The informality of the parking
lot police interrogation in Bryant, however, made that case “distinguishable from the
formal station-house interrogation in Crawford” and weighed toward the Court’s
nontestimonial ruling. Id. at 366.

{38} Under the foregoing analysis of the encounter’s circumstances, the Bryant Court
then conducted its inquiry into the statements and actions of the parties to the
encounter. Id. at 367-68. “Davis requires a combined inquiry that accounts for both the
declarant and the interrogator,” as “the contents of both the questions and the answers”
are relevant to ascertaining the primary purpose. Id. at 367-68. The Court stated that
such a “combined approach also ameliorates problems that could arise from looking
solely to one participant,” such as “the problem of mixed motives on the part of both
interrogators and declarants.” Id. at 368. Police officers’ “dual responsibilities” “as both
first responders and criminal investigators . . . may mean that they act with different
motives simultaneously or in quick succession.” Id. Similarly, “[v]ictims are also likely to
have mixed motives when they make statements to the police . . . [or] may have no
purpose at all in answering questions posed.” Id. at 368-69. “[C]ourts making a primary
purpose assessment should not be unjustifiably restrained from consulting all relevant
information, including the statements and actions of interrogators.” Id. at 369-70.

{39} Under this combined approach, the statements and actions of the gunshot victim
and the law enforcement officers in Bryant supported the conclusion that “the primary
purpose of the interrogation was to enable police assistance to meet an ongoing
emergency.” Id. at 378 (internal quotation marks and citation omitted). The injured
declarant “was obviously in considerable pain and had difficulty breathing and talking”
but answered police questions and asked when medical services would arrive. Id. at
375. “The questions [police] asked—what had happened, who had shot him, and where
the shooting had occurred—were the exact type of questions necessary to allow the
police to assess the situation, the threat to their own safety, and possible danger to the
potential victim.” Id. at 376 (internal quotation marks and citations omitted). “In other
words, they solicited the information necessary to enable them ‘to meet an ongoing
emergency.’” Id. (quoting Davis, 

). Weighing the “circumstances of the
encounter,” the Bryant Court held the challenged statements to law enforcement to be
nontestimonial. Id. at 377-78.

4.     Ohio v. Clark

{40} The United States Supreme Court applied and refined the primary purpose test
next in Clark, four years after Bryant. In Clark, a three-year-old victim’s statements to
his preschool teachers that identified the child’s adult assailant were ruled
nontestimonial under the primary purpose test. 576 U.S. at 240. Because of the
interrogators’ identity as teachers, the Clark Court addressed for the first time a
question the United States Supreme Court had “repeatedly reserved: whether
statements to persons other than law enforcement officers are subject to the
Confrontation Clause.” Id. at 246; cf. Davis, 

 n.2 (considering 911
operators’ interrogations of 911 callers as “acts of the police”); Bryant, 

n.3 (same). The Court “decline[d] to adopt a categorical rule excluding [such
statements] from the Sixth Amendment’s reach” but stated that “such statements are
much less likely to be testimonial than statements to law enforcement officers.” Clark,
576 U.S. at 246. “In the end, the question is whether, in light of all the circumstances,
viewed objectively, the ‘primary purpose’ of the conversation was to ‘create an out-ofcourt substitute for trial testimony.’” Id. at 245 (brackets omitted) (quoting Bryant, 

).

{41} Following Bryant, the Clark Court objectively evaluated the surrounding
circumstances of the encounter and the statements and actions of the parties. Id. at
246-49; see Bryant, 

. Based on the victim’s visible injuries, “the teachers
needed to know whether it was safe to release [the child] to his guardian at the end of
the day, [and thus] they needed to determine who might be abusing the child.” Clark,
576 U.S. at 246. The Court noted, “As in Bryant, the emergency in this case was
ongoing, and the circumstances were not entirely clear. [The] teachers were not sure
who had abused him[,] . . . how best to secure his safety[, and] . . . whether any other
children might be at risk.” Id. at 247. The Court determined that the teachers’ questions
and the victim’s answers “were primarily aimed at identifying and ending the threat.” Id.
Additionally, the Court noted that the conversation between the parties “was informal
and spontaneous . . . in the informal setting of a preschool lunchroom and classroom,
and [thus] . . . nothing like the formalized station-house questioning in Crawford or the
police interrogation and battery affidavit in Hammon.” Id.

{42} Concluding its testimonial analysis, the Clark Court reiterated that the
questioners being “individuals who are not law enforcement officers . . . remains highly
relevant” to Sixth Amendment analysis. Id. at 249. Citing Bryant, 

, the
Court noted a “questioner’s identity” as part of the context in which statements must be
evaluated when challenged under the Confrontation Clause. Clark, 576 U.S. at 249.
“Statements made to someone who is not principally charged with uncovering and
prosecuting criminal behavior are significantly less likely to be testimonial than
statements given to law enforcement officers.” Id. (“It is common sense that the
relationship between a student and his teacher is very different from that between a
citizen and the police. We do not ignore that reality.”) (citing Giles, 

(classifying “[s]tatements to friends and neighbors about abuse and intimidation and
statements to physicians in the course of receiving treatment” as nontestimonial)).

C.      Testimonial Inquiry into Statements Made in the Course of a SANE Exam

{43} Because the identity of the questioner is a relevant surrounding circumstance
under Bryant, we next discuss the testimonial relevance of the identity of a SANE nurse
as questioner and the testimonial context of a SANE exam. See 

(noting that the identity of the interrogator “can illuminate” a primary-purpose
assessment). Because the United States Supreme Court has not applied testimonial
inquiry to statements made in the course of a SANE exam—see State v. Burke, 

, 1102 (Wash. 2021) (holding under the circumstances of a SANE “exam with
both medical and forensic purposes” that “the primary purpose of nearly all of the
statements [made in the course of the SANE exam] was to guide the provision of
medical care, not to create an out-of-court substitute for trial testimony”), cert. denied,
Burke v. Washington, 

 (2021)—we analyze the testimonial relevance of
the identity of a SANE nurse as questioner under New Mexico caselaw.

1.      The dual role of a SANE nurse and its testimonial implications

{44} We note at the outset that the complexity of testimonial analysis is further
complicated by the “dual role” of a SANE nurse, which we have recognized in the
hearsay context. 6 See Mendez, 

, 46 n.5. This dual role consists


6We cite Mendez, a hearsay case, for its reasoning where relevant, while mindful of its admonition not to
conflate “[t]he hearsay rule and the Confrontation Clause [as they] are not co-extensive and must remain
distinct.” 

. The Court of Appeals was correct to recognize “the importance of
separating these analyses in cases where both rules are implicated by the nature or source of the
evidentiary material.” Tsosie, A-1-CA-37791, mem. op. ¶ 7.
We disagree with the dissent’s contention that this opinion conflates confrontation and hearsay analysis
notwithstanding our statements otherwise. See dissent ¶¶ 164-65. To be sure, a statement may be
of “the provision of medical care and the collection and preservation of evidence.” Id. ¶
42. On the one hand, the medical care role includes a SANE nurse’s professional “‘role
as a nurse, in a [medical care setting], performing a medical examination of a victim of a
sexual assault.’” Id. ¶ 45 (quoting United States v. Gonzalez, 

 (9th
Cir. 2008)). A SANE nurse under this medical care role retains their medical care role
as a nurse generally, cf. 

 (“SANE nurses regularly treat victims of sexual abuse that
require critical medical attention.”); accordingly, a SANE nurse’s identity under this
medical care role weighs toward a nontestimonial ruling, see Giles, 

(classifying “statements to physicians in the course of receiving treatment” as
nontestimonial). On the other hand, the SANE nurse’s forensic role in “collecting and
preserving evidence of value to the legal system,” “[w]hen compared with [the roles of]
other medical providers, . . . can [thus] seem more closely aligned with law
enforcement,” Mendez, 

 (internal quotation marks and citation
omitted), and accordingly a SANE nurse’s identity under this forensic role weighs
toward a testimonial ruling. See Clark, 576 U.S. at 249. As we have recognized, “SANE
nurses . . . provid[e] critical treatment to patients at a time of great physical, emotional,
and psychological vulnerability . . . [b]ut they also have special expertise in gathering
evidence for subsequent prosecution of the offender, which raises appropriate concerns
about whether the statement was made for the purposes of seeking medical care.”
Mendez, 

, ¶ 41.

{45} Since Bryant, our discussion in Mendez of a SANE nurse’s dual role has been
cited favorably by other jurisdictions. E.g., State v. Miller, 

 (Kan.
2011) (applying the reasoning of Mendez to confrontation analysis where a SANE
nurse’s medical and forensic purposes “[o]ften . . . will require examination of individual
questions and responses”). A SANE nurse’s dual role has been otherwise recognized
by additional courts in the confrontation context. E.g., Thompson v. State, 

, 

 (“SANE nurses perform both a medical and investigatory function
in almost every interaction with an alleged sexual assault victim.”).

{46} In the confrontation context, New Mexico courts have implicitly recognized the
dual role of a SANE nurse in two pre-Bryant cases, the precedential value of which we

admissible under both analyses where a statement in response to a question from a SANE nurse in her
medical care role contains medically relevant information. Nonetheless, the two analyses are distinct
even if the results coincide. “The touchstone of admissibility under Rule 11-803([4]) [NMRA] is the
trustworthiness of each statement.” Mendez, 

 (heading). Admissibility under the
Confrontation Clause, in contrast, requires that a statement’s primary “purpose is not to create a record
for trial,” regardless of the statement’s degree of trustworthiness. Bryant, 

; cf. Crawford,

.
In applying Rule 11-803(4), trustworthiness sufficient for admissibility is predicated on the content of the
statement, without regard to the primary purpose of the encounter. Mendez, 

(“Surrounding circumstances are certainly relevant, but the focus must center on the individual
statement”: “under Rule 11-803([4]), a declarant could make a statement for entirely medical purposes
even if the primary purpose of the interview has become forensic. The converse is also true.”). In applying
confrontation analysis, however, admissibility is more contextual. Bryant, 

 (“An objective
analysis of the circumstances of an encounter and the statements and actions of the parties to it provides
the most accurate assessment.”). Stated differently, application of Rule 11-803(4) focuses primarily on
“close[] examin[ation of] the substance of the statement,” whereas under testimonial inquiry the content of
the statement is only part of the analysis. Mendez, 

.
discuss below. Romero, 

, and State v. Ortega, 

, 

, 

, overruled on other grounds by Mendez, 

.
The courts in both Romero and Ortega reached testimonial rulings based upon distinct
forensic facts while in the process impliedly recognizing that the roles of a SANE nurse
typically include both medical care and forensic purposes. See Romero, 2007-NMSC-
013, ¶¶ 12-18; Ortega, 

.

{47} In Romero, this Court affirmed the Court of Appeals’ exclusion under the
Confrontation Clause of narrative statements made by the victim when “asked to tell the
SANE nurse what happened, so the SANE nurse would know how to proceed.” 2007-
NMSC-013, ¶¶ 16, 17. Prominent to the Court’s testimonial ruling, the SANE exam in
question “occurred several weeks after the assault” and with significant “assistance and
encouragement” from law enforcement. Id. ¶ 17. We recognized there that the “victim’s
narrative” included portions that both “accuse[d the d]efendant of specific criminal acts”
and were “relevant to medical treatment” or “could be viewed as relevant to seeking
medical treatment.” Id. ¶ 15. Impliedly, the challenged statements elicited by the SANE
nurse potentially served both a forensic purpose and a medical care purpose. See id. ¶¶
15, 17. Based on “[t]he [forensic] facts in th[e] record” regarding the elapsed time and
the role of law enforcement, we rejected the state’s argument that the primary purpose
of the victim’s statements was for the purposes of medical treatment. Id. ¶¶ 13, 17. Our
recognition, despite those forensic facts that the challenged statements held potential
medical relevance, impliedly points to “an examination by a SANE nurse” typically
including a medical care purpose. See id. ¶¶ 14-15, 17.

{48} Our implicit recognition in Romero of the SANE nurse’s medical care role is
bolstered by three other points. First, we recognized there that “Davis confined its
discussion of interrogation to situations involving law enforcement officers and their
agents” and did not consider “‘when statements made to someone other than law
enforcement personnel are testimonial.’” Romero, 2007 NMSC-013, ¶ 7 (quoting Davis,

 n.2). This recognition would have been immaterial had the Romero
Court viewed a SANE nurse’s identity as simply forensic or as an agent of law
enforcement. Second, we recognized there that a SANE exam does not resemble the
police interrogations envisioned by Crawford, as it “is not typically ‘designed primarily to
establish or prove some past fact, but to describe current circumstances requiring
[medical] assistance.’” Romero, 2007 NMSC-013, ¶ 14 (quoting Davis, 

).
Third, we agreed in Romero with the state that nontestimonial portions of the narrative
could have survived redaction had the state advanced a proper basis for redaction of
the testimonial portions. Id. ¶ 18; see also Ortega, 

 (citing the
Romero Court’s “suggestion that medical portions might be separated from testimonial
portions in the victim’s narration”).

{49} In Ortega, our Court of Appeals affirmed the district court’s exclusion under the
Confrontation Clause of statements transcribed in a SANE exam where the victim “was
not provided medical treatment.” Id. ¶ 5. Analogizing the forensic facts there to those in
Romero, the Ortega Court described the SANE exam there as “nothing more than a
description of the sexual abuse [the victim] suffered, with no medical purpose behind it.”

. Additionally, the Ortega Court appears to have reached a legal
conclusion that a SANE exam is “[c]learly . . . geared for” and “exists in concert with”
forensic purposes. See id. ¶ 21. However, Ortega’s discussion in support of that
conclusion nonetheless identified several aspects of a SANE nurse’s medical care role:
(1) “first assess the victim’s need for emergency medical care and ensure that serious
injuries are treated,” (2) possibly “treat medical conditions requiring immediate attention
for a victim’s safety,” (3) possibly provide medications to the victim which are
“prophylactic . . . for the prevention of sexually transmitted diseases . . . and other care
needed as a result of the crime,” and (4) provide medical treatment “relative to the
patient being a victim of a sexual crime.” Id. (omissions in original) (internal quotation
marks and citation omitted). The Court also acknowledged that “cases [may] arise
where identifying an offender or searching for physical evidence of sexual victimization”
is “secondary to an overarching medical purpose in obtaining a victim’s statement.” Id. ¶
34.

{50} We conclude that the foregoing supports our recognition in Mendez of a SANE
nurse’s dual role, and we adopt this standard to guide a district court’s analysis of SANE
nurse testimony where applicable.

2.     The surrounding circumstance of a SANE nurse’s identity may shift
       consistent with their dual role

{51} The foregoing establishes that either of the dual roles of a SANE nurse may be
present when eliciting an individual statement in the course of a typical SANE exam.
Further complicating testimonial analysis, which of the dual roles is more present is
likely to change multiple times over the course of a SANE exam, as a typical SANE
exam is not partitioned into one medical care component and one forensic component.
Under this reality, a court cannot indulge either testimonial or nontestimonial
presumptions based on the identity of a SANE nurse regarding the primary purpose of
statements made in the course of a SANE exam.

{52} Regardless of which role is more present in eliciting an individual statement, the
identity of a SANE nurse is merely one of the surrounding circumstances to be weighed
by a district court and thus is not dispositive of the testimonial nature of the resulting
statement. In mischaracterizing this opinion’s logic as “circular,” the dissent conflates a
SANE nurse’s questions with a declarant’s responses. See dissent ¶ 163. We do not
assert that “the statements Starr elicits [in her role] as a medical caregiver” are
necessarily nontestimonial. Id. (emphasis added). To the contrary, we recognize that a
responding statement may be testimonial notwithstanding the nontestimonial character
of the question eliciting that statement where a SANE nurse is acting in their medical
care role, as we discuss further below.

3.     Under Davis, district courts must redact testimonial portions of otherwise
       nontestimonial statements

{53} Notwithstanding such complications, Davis made clear that district courts bear
the responsibility to “recognize . . . point[s] at which, for Sixth Amendment purposes,
statements in response to interrogations” evolve or change in their testimonial nature.
Davis, 

; see also Bryant, 

.

{54} We note that Davis and Bryant envisioned a clear point of demarcation at which
the circumstance of law enforcement needing to resolve an emergency might end,
thereby signaling a distinct transition from nontestimonial statements to testimonial
statements. See Davis, 

; Bryant, 

. While, in
contrast, the circumstance of a SANE nurse’s identity pursuant to a dual role may shift
multiple times within a SANE exam, the burden of determining that circumstance’s
proper weight within primary purpose analysis nonetheless remains with our district
courts. See Davis, 

; see also Mendez, 

. We
agree with the Supreme Court of Kansas, quoting Mendez, 

, in
the confrontation context, that “New Mexico [district] courts must ‘shoulder the heavy
responsibility of sifting through statements, piece-by-piece, making individual decisions
on each one.’” Miller, 

.

{55} We note also that, contrary to the dissent’s reading, dissent ¶ 154, nothing in
Davis supports the proposition that Sixth Amendment redaction by a district court is only
proper where an encounter begins with a clearly nontestimonial primary purpose and
then “evolves” into testimonial statements. See Davis, 

. To the contrary,
Davis’s direct analogy of Sixth Amendment redaction to a district court’s well-established role in redacting unduly prejudicial evidence counsels that such exercise
may be proper regardless of whether the primary purpose of an encounter has evolved
or shifted. 

. The fact that no such shift occurred in Hammon does not preclude
the possibility that a nontestimonial purpose could arise even in such an encounter
involving law enforcement, much less an encounter not involving law enforcement. Cf.
Clark, 576 U.S. at 246.

{56} Concurrent with the foregoing responsibilities, a district court must also be
vigilant that a SANE nurse’s dual role is not used by the prosecution to end-run the
Confrontation Clause by introducing SANE exam statements made for a testimonial
primary purpose under the guise of having been made for a medical care primary
purpose. This concern is heightened in cases where, as here, the SANE nurse is
admitted as an expert witness and so could be “used as little more than a conduit or
transmitter for testimonial hearsay, rather than as a true expert whose considered
opinion sheds light on some specialized factual situation.” United States v. Gomez, 

 (9th Cir. 2013) (describing other circuits’ confrontation concerns
regarding a testifying expert witness).

{57} District courts must be mindful of their role in preventing such potential abuses. A
district court “has the prerogative to insist that all facts be presented that will insure a
fair trial.” State v. Crump, 

, ¶ 12, 

, 

. If facts
necessary for the testimonial inquiry are not elicited by direct examination or cross-examination during the admissibility hearing, “[t]he court may examine a witness” to
complete the record. See Rule 11-614(B) NMRA; State v. Paiz, 

,

, 

. Such material facts may include circumstances
surrounding the SANE exam or underlying purposes of individual questions that elicited
challenged statements.

{58} In addition, as discussed above, Bryant directs that “standard rules of hearsay,
designed to identify some statements as reliable, will be relevant.” 

. It
follows from this direction that a district court should be alert to considerations of a
SANE nurse’s testimony that raise credibility concerns, especially where such testimony
is uncontradicted and is the sole evidence regarding the testimonial nature of an
unavailable declarant’s statements. Accordingly, we hold that a district court must
articulate any credibility concerns regarding a SANE nurse’s uncontradicted testimony
where the district court determines that testimony regarding the SANE nurse’s medical
care role is pretextual in masking a forensic primary purpose. See Medler v. Henry,

, ¶ 20, 

, 

 (rejecting uncontradicted testimony
as allowable only under certain circumstances).

4.     The precedential value of Romero and Ortega

{59} The State argues that the instant case is one of first impression, asserting that
“there is no prior controlling New Mexico authority.” The State argues that Romero,

, and Ortega, 

, are distinguishable on their facts and
that therefore the testimonial rulings in those cases do not direct the result here. The
State specifically points to the SANE exam in this case “occur[ring] on the same night
as the assault” and including medical treatment whereas, in Romero, “several weeks”
elapsed between the assault and the SANE exam while, in Ortega, the SANE exam
occurred four days after the initial physical examination and included no medical
treatment. See 

; 

. In both prior cases, the
State argues, “‘any necessity for medical treatment as a result of the abuse had ended’
by the time the [SANE] examination took place” (quoting Ortega, 

), in contrast to the instant case.

{60} Defendant, while conceding some factual distinction, argues that Romero and
Ortega nonetheless “provide the controlling legal analysis” by “apply[ing] the primary
purpose test to statements made to a SANE nurse.” Defendant argues that factual
distinctions “do[] not prevent a court from reasonably and judiciously applying
established legal principles.” Defendant argues that the “more immediate” timing in this
case “does not establish an overriding medical purpose,” as “[i]t equally reflects a desire
for prompt evidence gathering to avoid the spoliation of physical evidence and ensure
an accurate memory of events.” Defendant suggests that Declarant’s statements here
“‘accus[ing] [D]efendant of specific criminal acts’” (quoting Romero, 

), “are functionally indistinguishable from those in Romero.”

{61} We hold that Romero is precedential for the instant case. We read Romero to
abide with Bryant in “objectively evaluating the statements and actions of the parties to
the encounter, in light of the circumstances in which the interrogation occur[red].” 

.
{62} In Romero, we applied Crawford and Davis to determine the testimonial nature of
two narrative statements made in the course of the assault victim’s SANE exam. 2007-
NMSC-013, ¶¶ 1, 12. The facts central to our testimonial ruling on those statements
included that (1) approximately three weeks elapsed between the assault and the SANE
exam and (2) the SANE exam “occurred . . . with the assistance and encouragement” of
law enforcement. Romero, 

 (“The facts underlying this appeal
are stated clearly and thoroughly in the Court of Appeals’ Opinion. We do not restate
them.” (citation omitted)); State v. Romero, 

, 

,

.

{63} The statements in question were included within a larger narrative statement to
the SANE nurse that “recounted the entire incident.” Romero, 

.
We concluded that under the circumstances of the time elapsed between the assault
and the SANE exam and of the degree of involvement of the law enforcement officer,
“the portions of the victim’s narrative specifically accusing Defendant of sexual assault
and other charges should have been excluded.” Romero, 

. We
further analogized the testimonial facts there as closer to the “after-the-fact inquiry” in
Hammon than the “ongoing emergency” in Davis. 

 As previously discussed, “[w]e
agree[d] with the [s]tate that redaction of [testimonial] portions of the narrative might
have been appropriate” had the state “identified portions of the narrative that might have
been likely candidates for redaction.” Id. ¶ 18. In the absence of such a basis for
specific redaction, however, we affirmed the Court of Appeals’ exclusion of the entire
narrative. Id.

{64} For these reasons, we conclude that Romero, 

, is precedential
in applying the primary purpose test of Davis to statements made in the course of a
SANE exam and in providing guidance for redaction of testimonial portions of such
statements. Because of our conclusion, the instant case is not a matter of first
impression, and thus we need not further address the precedential nature of Ortega.
Accordingly, we also need not further consider the State’s arguments regarding the
persuasive value of other jurisdictions’ cases concerning the issues before us. 7

5.     SANE exam statements do not require emergency or informality to be
       nontestimonial

{65} Crawford’s progeny have focused on the existence of an ongoing emergency as
an important contextual circumstance that “focuses the participants on something other
than ‘proving past events potentially relevant to later criminal prosecution.’” Bryant, 

 (brackets omitted) (quoting Davis, 

); see also Davis, 

; Bryant, 

; Clark, 576 U.S. at 246-47. As discussed
above, Bryant recognized that “there may be other circumstances, aside from ongoing
emergencies, when a statement is not procured with a primary purpose of creating an
out-of-court substitute for trial testimony.” 

. We hold that where it centers


7We nevertheless recognize the weight of persuasive post-Romero authorities that have held statements
made in the course of a SANE exam to be nontestimonial. E.g. Burke, 478 P.3d at 1102; United States v.
Barker, 

 (5th Cir. 2016); Miller, 

.
on the provision of medical care, a SANE exam similarly “focuses the participants on
something other than ‘proving past events potentially relevant to later criminal
prosecution.’” See id. at 361 (brackets omitted) (quoting Davis, 

). 8

{66} We apply Davis, Bryant, and Clark in support of our conclusion. In each of those
cases, nontestimonial statements given during an ongoing emergency included
identification of defendants and accusations regarding specific criminal acts. Davis, 

; Bryant, 

; Clark, 576 U.S. at 241, 249.
Clearly, then, the testimonial inquiry cannot turn simply on the content of the statements
as relating to identification or accusations of criminal acts. Instead, these cases
represent that the focus or motive of the participants is a relevant factor in determining
whether the primary purpose of challenged statements was to “creat[e] an out-of-court
substitute for trial testimony.” Bryant, 

.

{67} In the process of clarifying Davis, the Bryant Court recognized that a law
enforcement officer’s first responder responsibility correlates to the nontestimonial
motive of responding to or resolving an emergency situation. Cf. 

. The
Bryant Court also recognized that nontestimonial motives are likely to be present in
victims in an emergency situation. 

.

{68} The Bryant Court’s recognition that an ongoing emergency can provide a
nontestimonial focus for participants abides with Davis’s explanation of differences
between the nontestimonial 911 call there and the testimonial station house
interrogation in Crawford. See Davis, 

. The Davis participants’
nontestimonial focus was bolstered by the informality of the situation, indicated by the
victim’s “frantic answers . . . in an environment that was not tranquil, or even safe.” Id.;
see Bryant, 

. These factors presumably contributed to the participants
being focused on the emergency situation rather than on creating an out-of-court
substitute for trial testimony.

{69} Our conclusion regarding the possible nontestimonial focus of a SANE exam also
abides with the proposition consistently supported by the United States Supreme Court
in dicta, as noted by the Washington Supreme Court, “that statements made to medical
providers for the purpose of obtaining treatment have a primary purpose that does not
involve future prosecution and that such statements are therefore nontestimonial.” State
v. Scanlan, 

 (2019) (citing Giles, 

; Melendez-Diaz v.
Massachusetts, 

, 312 n.2 (2009); Bullcoming v. New Mexico, 

 (2011) (Sotomayor, J., concurring in part)). It follows from this proposition that
an encounter directed at the provision of medical care can focus the participants on
something other than proving past events potentially relevant to later criminal
prosecution. However, it does not follow that the factors necessary for participants’
nontestimonial focus on medical care are the same as the factors necessary for
participants’ nontestimonial focus on emergency. Applying the reasoning in Davis, we

8The State’s central argument for the challenged statements being nontestimonial is that “the primary
purpose of [Starr’s] examination was medical.” Under this argument, we need not and do not address
whether the unresolved medical issues facing a SANE examinee also constitute an ongoing emergency
under Davis and Bryant.
hold that a significant factor for the former is whether the information sought was
important to enable the provision of medical care. See Davis, 

. Where
the objective circumstances demonstrate the information sought was indeed important
in that regard, the focus of the participants is likely to have been on something other
than creating an out-of-court substitute for trial testimony. We also recognize that,
whereas formality in a law enforcement encounter may suggest a testimonial purpose,
Bryant, 

, formality in a medical care encounter may enable the provision
of medical care.

{70} We recognize that Clark applied emergency and formality analysis to statements
made to individuals who were not law enforcement officers. See 576 U.S. at 246-47.
Such analysis was clearly warranted there, given the circumstances under which the
victim’s statements were made to his preschool teachers. However, Clark does not
establish that those factors are dispositive, nor that they are required elements for a
nontestimonial finding. Clark affirmed without reference to emergency or formality that
“[s]tatements made to someone who is not principally charged with uncovering and
prosecuting criminal behavior are significantly less likely to be testimonial than
statements given to law enforcement officers.” Id. at 249; see United States v. Barker,

 (5th Cir. 2016) (“A nurse, unlike a police officer, is principally tasked
with providing medical care, not ‘uncovering and prosecuting criminal behavior.’”
(quoting Clark, 576 U.S. at 249)). We agree with our Court of Appeals in the instant
case that a SANE nurse, like the teachers in Clark, “is ‘not principally charged with
uncovering and prosecuting criminal behavior.’” Tsosie, A-1-CA-37791, mem. op. ¶ 15
(quoting Clark, 576 U.S. at 249).

{71} Our holding abides with our recognition in Romero that a SANE exam, while not
necessarily analogous to a 911 call, similarly “is not typically ‘designed primarily to
establish or prove some past fact, but to describe current circumstances requiring . . .
assistance.’” 

 (quoting Davis, 

). This recognition
suggests the potential of a typical SANE exam to include participants’ nontestimonial
focus on the provision of medical care. As we have discussed, the Romero Court made
this distinction while also recognizing that “Davis confined its discussion of interrogation
to situations involving law enforcement officers and their agents.” Romero, 2007-NMSC-
013, ¶ 7. Because the testimonial facts in Romero cast doubt on whether medical care
was actually provided in the SANE exam, the testimonial ruling in Romero does not
conflict with our holding here.

{72} In sum, we conclude that a declarant’s statements to someone other than law
enforcement do not require circumstances of ongoing emergency or informality to be
nontestimonial if creating a record for future prosecution is not the primary purpose of
the interaction. Cf. Burke, 478 P.3d at 1111 (“[W]hen declarants speak to someone
other than law enforcement, there may be a multitude of purposes for the statements.”).

D.     Application

{73} We next apply the foregoing to the facts of the instant case. In the course of our
application, we address the parties’ remaining arguments and the approaches of the
courts below. Objectively viewing the statements and actions of Declarant and Starr in
light of the surrounding circumstances of the SANE exam, we hold as nontestimonial
almost all of the challenged statements. On remand, those nontestimonial statements
must still survive state and federal evidentiary considerations in order to be admissible
at Defendant’s trial.

{74} In its remaining argument, the State contends that the district court and the Court
of Appeals improperly disregarded Starr’s uncontradicted testimony regarding the SANE
exam. The State contends that “[w]hen a court makes no finding that any part of a
witness’[s] testimony is incredible and there is no other evidence, but then disregards
that testimony, its decision is not supported by substantial evidence.” Defendant
contends that the courts below properly considered Starr’s testimony.

{75} As required by Bryant, we begin our “highly context-dependent inquiry” with
objective analysis of the circumstances in which the parties interacted, then conduct an
objective and combined inquiry into the parties’ statements and actions. See 

. The relevant surrounding circumstances here include the time elapsed
between the alleged assault and the SANE exam, the location of the SANE exam, the
role of law enforcement in the SANE exam, and the identity of the SANE nurse as
Starr’s dual role bears on the challenged statements.

1.     The circumstance of the time elapsed between the alleged assault and the
       SANE exam

{76} In this case, the close proximity in time of the SANE exam to the alleged
predicate assault weighs toward a nontestimonial primary purpose. As we have
discussed, the separation of the exam and assault events by several weeks in Romero
and by several days in Ortega weighed significantly toward the testimonial rulings in
those cases: the time elapsed suggested that any necessity for medical treatment
pursuant to the assault had ended by the time of the SANE examination. See 2007-
NMSC-013, ¶ 17; 

. In contrast, the SANE exam here, on
referral from UNMH, occurred in the same night as the alleged assault, thereby
supporting the relevance of the exam to the provision of medical care. Starr testified that
she assessed multiple considerations of Declarant’s medical situation—including
prophylaxis, safety plan, suicide assessment, and homicide assessment—that
objectively suggest the relevance of recency of the assault to the medical purposes of
the SANE exam.

{77} We agree with Defendant that the “more immediate” timing here compared to
that in Romero is not dispositive of “an overriding medical purpose,” as forensic goals
are also served by gathering evidence promptly. Nonetheless, we conclude that the
evidence regarding this timing circumstance supports the primary purpose of the SANE
exam being nontestimonial.
2.      The circumstance of the location of the SANE exam

{78} The location of the SANE exam also weighs toward a nontestimonial primary
purpose, as the clinic at the Family Advocacy Center is a setting conducive to providing
trauma-informed medical treatment. Starr testified that SANE exams can be done in a
hospital setting but that the clinic setting is “absolutely” better in allowing the examinee
to “be really relaxed and comfortable” for the exam. While we agree with the district
court’s finding that “[t]he examination occurred in a structured setting,” we recognize the
medical care purposes that are served by the deliberate conditions of the clinical
setting. As we have discussed, informality is not a requirement for a medical care
purpose to weigh toward statements being nontestimonial.

{79} The district court and the Court of Appeals noted Starr’s testimony that the clinic
“is located in the same building” as law enforcement “but in a separate area.” Without
more, however, we conclude that law enforcement’s presence within a separate area of
the same building does not dissipate the medical care relevance of the clinic location as
a circumstance weighing toward the primary purpose of the SANE exam being
nontestimonial.

3.      The circumstance of law enforcement involvement in the SANE exam

{80} Relatedly, the degree of involvement of law enforcement in the SANE exam here
does not weigh toward a testimonial primary purpose. While it is noteworthy that
Declarant was transported to the clinic by law enforcement, the record does not
demonstrate significant further involvement to support Defendant’s claim that “the
statement was the product of an investigation by the authorities” “[involving] government
officers” or that the “SANE interview [was] taken at police instigation.” 9 Relevant to our
analysis, Starr testified that law enforcement officers are not allowed in the SANE exam,
that APD detectives are housed in a different area of the building, that SANE nurses “do
not work for the police,” and that the Family Advocacy Center is a “nonprofit and . . .
separate” from the police. See Mendez, 

 (stating in the hearsay
context that “[a]bsent some evidence that the police were attempting to manipulate the
[SANE] examination, we would not place dispositive weight on their presence on the
premises or even in the examination room”).

{81} Also unpersuasive is Defendant’s argument that law enforcement involvement is
established by Declarant “having filed a police report and [having] authorized the
release of evidence . . . to the police.” Nothing in Crawford or its progeny supports the
proposition that filing a police report can be viewed as a fact transforming the actions
taken by a purported victim of sexual assault into testimonial actions. While consenting
to the release of evidence to law enforcement is noteworthy, Starr testified that she
conducts the SANE exam regardless of whether a patient wants to report to police. In
addition, the release in question was one of two sections signed by Declarant in the

9We note that here Defendant’s citations of Crawford, 

 n.7, and Lilly v. Virginia, 

 (1999) (plurality opinion) are inapposite. Both cases specifically considered police
interrogations. In addition, as a pre-Crawford case, Lilly, 

, applied the indicia of reliability
standard for confrontation under Ohio v. Roberts, 

 (1980), which Crawford overturned.
SANE exam consent form, the other of which included his consent to multiple medical
care and forensic components of the exam. Under Bryant’s objective test, the question
for this circumstance is whether a reasonable declarant signing the two portions of the
consent form would have understood that law enforcement was so involved in the
SANE exam as to render the primary purpose of his statements to be the creation of
evidence for Defendant’s prosecution. See Clark, 576 U.S. at 245-46. Given the mixed
nature of the matters consented to by Declarant therein, we disagree with Defendant
that, due to his signed release, a reasonable person in Declarant’s position would have
known that his statements were testimonial in nature.

{82} In sum, we conclude that the level of involvement of law enforcement in the
SANE exam here does not implicate the “assistance and encouragement” concerns
recognized in Romero. See 

.

4.      The circumstance of the SANE nurse’s identity as it bears on the
        challenged statements

{83} Because the SANE nurse’s identity may shift between their dual roles during a
SANE exam, we analyze Starr’s identity in relation to the underlying purposes of each of
the forms of the SANE exam which elicited the challenged statements. For this
circumstance to weigh toward a testimonial primary purpose for an individual statement,
the forensic purpose of the relevant SANE exam question must be more important than
its medical care purpose, thus rendering Starr’s forensic role greater than her medical
care role regarding that question. See Langham v. State, 

 (Tex.
Crim. App. 2010) (“It is . . . likely that, by ‘primary purpose,’ the Supreme Court [in
Davis] meant to convey the purpose that is ‘first’ among all potentially competing
purposes ‘in rank or importance.’” (citing Davis, 

)). In this regard, the
Court of Appeals correctly concluded that “Starr’s identity as a SANE [nurse] . . . as it
has particular relevance in this case” does not establish a presumption either toward
testimonial or nontestimonial weight. Tsosie, A-1-CA-37791, mem. op. ¶ 15.

{84} Starr testified as to the purposes underlying each of the eight SANE exam forms
that elicited the challenged statements. For each form, we consider Starr’s testimony as
relevant to determining what a reasonable SANE nurse’s underlying purpose—and thus
their role—would be for each of the SANE exam forms that elicited challenged
statements. 10

{85} First, regarding the Consent Form, Starr testified that, as discussed above, “the
top part [of the form] is very much all about medical treatment,” an intermediate
paragraph acknowledges “that we shared [with Declarant] a notice of privacy,” and the
final part “is so that we can release this to law enforcement.” She also testified that
Declarant “signed for STI prevention [medical care] and photography [forensics] as well
as talking about what happened and allowing me to do a basic medical assessment on
him.” The foregoing evidence indicates that, as regards the Consent Form as a whole,


10We note that the district court expressed no credibility concerns regarding Starr’s testimony and that
the record does not include contrary evidence for this analysis.
Starr’s identity was informed as much or more by her medical care role than her
forensic role, thus weighing more toward a nontestimonial ruling. As regards the law
enforcement release portion alone, Starr’s identity was forensic.

{86} Second, regarding the Sexual Assault Intake form, Starr testified that its purpose
is to “[g]et a basic medical background . . . [including] statistical data.” She testified that
the information obtained in the form is not different from that obtained in a typical intake
form in a hospital. On cross-examination, Starr testified that the form’s inclusion of the
police report case number was relevant for the forensic purpose of cataloguing
evidence properly. The foregoing evidence indicates that Starr’s medical care role
informed her identity regarding the Sexual Assault Intake form as much as or more than
her forensic role, thus weighing more toward a nontestimonial ruling.

{87}   Third, regarding the History form, Starr testified that its purpose is “[m]edical”:

       to know . . . [his] baseline, how a patient is, if they had any injuries or
       issues . . . prior to the assault that would affect how their body is, what
       medications they’re on, how they’re doing health-wise, . . . basic medical
       background stuff [including] [a]llergies to medications . . . [and] offer[ing]
       the tetanus shot . . . [and] the hepatitis B shot as well.

Starr testified that the History form’s “Past Medical History/Surgeries” question is
potentially relevant to her medical treatment, such as if signs or symptoms were to arise
in relation to Declarant’s reported seizure disorder or back injury. Starr testified that the
History form’s “Post-Assault Hygiene Activity” section is both medically relevant
regarding a patient’s ability to perform activities of daily living and forensically relevant
regarding DNA evidence. Starr testified that the History form’s “Offender Information”
section is medically relevant to her risk assessment:

       It’s very important, safety-wise, to know who was the offender. We’re not
       looking so much for names, in general [beyond state domestic violence
       law requirements]. . . . [F]or our sexual assault [victims], we typically don’t
       have the name. We want to know if the person who assaulted them has
       access to them again. . . . [W]e want our patients to be safe. That’s
       standard medical care.

On cross-examination, Starr confirmed that she had asked Declarant whether
Defendant was a household member. The foregoing evidence indicates that Starr’s
medical care role informed her identity regarding the History form as much as or more
than her forensic role, thus weighing more toward a nontestimonial ruling.

{88} Fourth, regarding the Strangulation Documentation form, Starr testified at length
to its medical importance:

       Strangulation is a very specific kind of assault . . . [and] is very dangerous
       because it’s . . . under-assessed medically. As a [non-SANE] nurse, I
       didn’t learn about strangulation. Doctors are typically not trained around
       strangulation. . . . And medically, it’s very important because it’s highly
       correlated to lethality.

Starr testified that, based on her specialized training in strangulation, the information
regarding its method and manner was relevant to her treatment to “really assess the
neck carefully” and to assess possible brain injury. Starr testified that her ability to
assess injury resulting from strangulation is informed by “symptoms that the patient will
report, and . . . signs that [the SANE nurse] can see, and we want to document both of
those.” It follows logically that in posing the questions in the Strangulation
Documentation form that would elicit information regarding such symptoms and signs,
Starr’s medical care role informed her identity as much as or more than her forensic
role. The evidence here weighs more toward a nontestimonial ruling.

{89} Fifth, regarding the Patient Narrative form, Starr testified that it was medically
necessary to learn “what happened to [Declarant], what happened to his body and how
he felt, [and] how he’s doing.” Starr affirmed that the SANE exam medical history is not
different from taking a general history at a general wellness visit, because “[w]e want to
know . . . what the scenario was when patients are talking about their illness or their
issues.” The foregoing evidence indicates that Starr’s medical care role informed her
identity regarding the Patient Narrative form as much as or more than her forensic role,
thus weighing more toward a nontestimonial ruling.

{90} Sixth, regarding the Acts Described by Patient form, Starr testified that knowing
“what went where” is important for medical purposes relating to prophylaxis and
locations of injuries to treat, as well as for forensic purposes relating to locations to
swab for evidence. Starr testified that ejaculation is medically relevant because “we’re
worried about illness, disease, [and] . . . cleanliness.” The foregoing evidence indicates
that Starr’s medical care role informed her identity regarding the Acts Described by
Patient form as much as or more than her forensic role, thus weighing more toward a
nontestimonial ruling.

{91} Seventh, regarding the Physical Exam form, Starr testified that “[t]his is a basic
medical screen. We want to make sure that the patient is healthy, is safe to go home,
[and] is otherwise medically stable” by assessing factors including blood pressure,
pulse, and ketones. The foregoing evidence indicates that Starr’s medical care role
informed her identity regarding the Physical Exam form as much as or more than her
forensic role, thus weighing more toward a nontestimonial ruling.

{92} Eighth, regarding the Body Map – Physical Exam/Assessment form, Starr
testified to the medical importance of its general descriptions to help assess the injuries
she observed. We note that these descriptions appear to be largely Starr’s statements
of observation but include some statements from Declarant about those injuries. Starr
testified that she treats injuries described in this form “if it’s necessary.” The foregoing
evidence indicates that Starr’s medical care role informed her identity regarding the
Body Map – Physical Exam/Assessment form as much as or more than her forensic
role, thus weighing more toward a nontestimonial ruling.
{93} In sum, Starr’s testimony offers medical care purposes underlying each of the
forms in the SANE exam that elicited the challenged statements. To the extent that the
SANE exam questions reflect Starr’s identity pursuant to her medical care role as a
SANE nurse, we conclude that this circumstance weighs toward the challenged
statements being nontestimonial.

5.      Analysis of the surrounding circumstances by the district court and Court
        of Appeals

{94} The district court seemingly relied on a narrow reading of Davis and did not
consider the implications of Bryant or Clark. Under such a reading, a court can easily
and improperly infer that circumstances supporting a law enforcement officer’s first
responder role are requirements for a SANE nurse’s medical care role. While both roles
are focused on something other than creating an out-of-court substitute for trial
testimony, conflating the factors attendant with these distinct roles results in a stunted
analysis and reliance on presumptions.

{95} The district court’s legal conclusions regarding the surrounding circumstances
appear to have relied on presumptions that (1) emergency or informality is required for a
nontestimonial primary purpose, whereas statements made outside of such
circumstances are categorically testimonial where they refer to past events, 11 and (2)
medical care that is duplicative of prior emergency care weighs toward a testimonial
primary purpose. 12 To the extent that the district court did apply such presumptions, we
clarify that they are improper, as discussed above. To the contrary, Bryant requires that
the primary purpose test be applied objectively, considering “all of the relevant
circumstances,” without applying such presumptions. 

. As to the
majority of the challenged statements, the surrounding circumstances in this case
support the conclusion that the SANE exam was motivated toward the provision of
medical care as a primary purpose.

{96} We conclude that the Court of Appeals applied Navarette’s second confrontation
principle to the surrounding circumstances to determine Declarant’s subjective “level of
understanding of the purpose of his statements to Starr,” rather than applying an
objective test. Tsosie, A-1-CA-37791, mem. op. ¶ 16 (“[W]e conclude that [Declarant]
understood that at least some of his statements would be used to prosecute
Defendant.”). While Bryant expressly requires that the primary purpose test is an
objective test, 

, we recognize that the second Navarette confrontation
principle may appear to require otherwise. See 

 (“[A] statement


11As discussed, the district court cited Romero, 

, for the proposition that “the level
of formality of the interrogation is a key factor” in testimonial analysis. This citation was taken from the
Romero Court’s discussion of the declarant’s statements made to the responding law enforcement officer,
id. ¶¶ 19-22, which followed its discussion regarding statements made to the SANE nurse, id. ¶¶ 12-18.
Romero did not invoke formality in its primary purpose analysis of the statements made in the course of
the SANE exam. See id. ¶¶ 12-18.
12The flaw of the second presumption is demonstrated, albeit anecdotally, by the facts in Burke, 478
P.3d at 1105, 1111, wherein the SANE nurse discovered a cervical laceration in the declarant that had
not been discovered by the emergency department physician.
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.”). We read this principle in Navarette to fit within Bryant’s requirement of an
objective and combined inquiry into the statements and actions of the participants. See
Bryant, 

. We clarify that Navarette’s second confrontation principle
cannot be applied to alter or reduce the requirements of the primary purpose test as
provided in this opinion.

6.     Combined inquiry into the participants’ statements and actions

{97} In light of the foregoing analysis of the surrounding circumstances, we next
analyze the statements and actions of Starr and Declarant to determine the testimonial
nature of each of the challenged statements. The State contends that Declarant’s
statements are all nontestimonial based on the primary purpose of the examination
being medical. Defendant contends that statements accusing Defendant of specific
criminal acts are facially testimonial.

{98} Without repeating our analysis, we incorporate our discussion of Starr’s
questions posed in the SANE exam forms as they related to the surrounding
circumstance of her identity in her dual role as a SANE nurse. We reiterate that medical
care purposes underlay each of the SANE exam forms that elicited the challenged
statements. Logically, in the absence of contrary evidence, Starr’s medical care role
was more present in conveying those questions than was her forensic role. Accordingly,
Starr’s statements conveying those questions generally weigh toward a nontestimonial
result, with the specific exception of the law enforcement release.

{99} Evidence of Declarant’s statements and actions in the SANE exam is limited to
his responses as recorded by Starr in the SANE exam report. The majority of
Declarant’s responses to Starr’s questions provided information that was important to
guide the provision of medical care in relation to the medical care purposes of the
particular questions. As Davis and Bryant demonstrate, statements that identify or
accuse a defendant of specific criminal acts may nonetheless be rendered
nontestimonial by virtue of a primary purpose that “focuses the participants on
something other than ‘proving past events potentially relevant to later criminal
prosecution.’” Bryant, 

 (brackets omitted) (quoting Davis, 

). Declarant’s statements within that scope are nontestimonial. A response by
Declarant exceeding that scope became testimonial where it also identified Defendant
or accused him of specific criminal acts. See Romero, 

. We
identify below those testimonial statements where they appear in each of the eight
relevant SANE exam forms.

{100} First, in the Consent Form, we hold to be testimonial only Declarant’s consent to
release records and evidence to law enforcement, for reasons previously discussed.

{101} Second, in the Sexual Assault Intake form, we hold to be testimonial only
Declarant’s statement that Defendant “stole his phone.” That statement is not important
to the provision of medical care and is accusatory, presumably toward Defendant.
{102} Third, in the History form, we hold to be testimonial only Declarant’s statement
identifying Defendant as “Oliver.” The alleged assailant’s identity was important to the
provision of medical care regarding his relationship and continued access to Declarant
in order for Starr to complete her risk assessment. However, Starr testified that the
scope of such information important to her risk assessment for Declarant did not include
the perpetrator’s name. This statement identifying and accusing Defendant is therefore
testimonial. Apart from that statement, the statements within the History form, including
the remaining statements in the Offender Information section, were within the scope of
information important to guide Starr’s provision of medical care.

{103} Fourth, in the Strangulation Documentation form, we hold all of the relevant
statements to be nontestimonial. We recognize that Declarant’s statements specifying
the alleged method and manner of strangulation might be prejudicial, such as in
specifying that Defendant used two hands and that his grip was “really strong.”
However, we also recognize that Starr logically would use such statements to guide her
discovery and assessment of signs of strangulation, thus rendering the statements
important to her provision of medical care. Because “every strangulation is different,”
Starr logically would rely on all such details to inform her assessment of Declarant’s
injury. Albeit a close call, we deem the method and manner statements to serve a
medical care purpose more than a forensic purpose, thus rendering them
nontestimonial. We also note that any prejudicial nature within such statements is a
matter for the district court’s post-confrontation analysis under Rule 11-403 NMRA.

{104} Fifth, in the Patient Narrative form, we hold the following statements to be
testimonial as exceeding the scope of the medical care purposes underlying the form
and as identifying Defendant or accusing him of specific criminal acts:

      I asked how they got in there. They said they crawled over the gate.

      The way they were saying things to me, trying to make me mad. Things
      like why don’t I let them in, or take their calls. Asking about my “new
      boyfriend” I said he is just a friend, nothing going on.

      I went to the bedroom, then they both came into the bedroom and tied me
      up. They used a trash bag, they used a towel over my mouth so I wouldn’t
      yell . . . They tied my feet too . . . Oliver . . . was trying to get his friend to
      take part, he just watched and held me down. (First and second omissions
      in original.)

      He took my clothes off, I noticed when I got up, I was naked, they stole my
      TV, DVD player, stereo system and my phone. I don’t know what else they
      took.

Apart from those statements, the statements within the Patient Narrative form were
nontestimonial as within the scope of information important to guide Starr’s provision of
medical care.
{105} Sixth, in the Acts Described by Patient form, we hold all of the relevant
statements to be nontestimonial as within the scope of information important to guide
Starr’s provision of medical care.

{106} Seventh, in the Physical Exam form, we hold all of the relevant statements to be
nontestimonial as within the scope of information important to guide Starr’s provision of
medical care.

{107} Eighth, regarding the Body Map – Physical Exam/Assessment form, we hold all
of the relevant statements to be nontestimonial. Declarant’s statements included
accusatory descriptions regarding particular injuries of “where he punched me” and
“where I was tied.” However, those descriptions also convey the nature of the injuries
and thus are within the scope of information that was important to guide Starr’s
provision of medical care.

7.    Analysis of the participants’ statements and actions by the district court
      and Court of Appeals

{108} The district court appears to have attributed undue significance to Starr’s
testimony that she cannot “diagnose,” concluding that “the majority of statements given
[by Declarant] to the SANE nurse were not given for the primary purpose of medical
diagnosis.” The district court appears to have applied the well-established hearsay
exception for medical diagnosis and treatment in calling on Rule 11-803(4) to define
medical care as a nontestimonial purpose under the Confrontation Clause.

{109} Placing Starr’s relevant testimony in context, we take notice of her testimony on
redirect examination distinguishing between her ability to make a limited nursing
diagnosis and a physician’s purview to make an official medical diagnosis. We discern
no legal basis on which to conclude that the limited nature of a nursing diagnosis would
render that diagnosis incapable of enabling the provision of medical care. Our research
reveals no Confrontation Clause cases in which statements were excluded due to being
relevant to a nursing diagnosis but not to a medical diagnosis. Even in the hearsay
context, weighing the medical diagnosis and treatment exception therein, our research
similarly reveals no cases in which statements were excluded due to being elicited in a
nursing diagnosis. To the contrary, courts in multiple cases have accepted statements
under the hearsay exception for medical diagnosis or treatment that were made within
the scope of a nurse’s limited ability to diagnose. E.g., Commonwealth v. Jennings,

, 

.

{110} Concurrently, apart from her ability to diagnose, Starr’s testimony included no
such limitation on her ability to provide medical treatment. Her testimony includes
multiple examples of Starr in fact providing medical treatment to
Declarant⸻specifically, treatment related to physical trauma, sexually transmitted
disease, and safety assessment. It follows reasonably that questions and answers
related to such treatment were provided to assist in the provision of medical care at
least as regards treatment, regardless of the precise definition of diagnosis applied.
Thus, any conclusion that Starr’s provision of medical care did not meet the standard
set by the hearsay exception for medical diagnosis or treatment is improper.

{111} Notwithstanding the foregoing, there is no obvious requirement in law for
applying the hearsay exception for medical diagnosis or treatment to define the medical
content standard for statements satisfying the Confrontation Clause. While we need not
decide whether the two standards are identical, there is no basis for concluding that the
standard for a SANE nurse’s medical care role is narrower than that recognized under
Rule 11-803(4). Therefore, we conclude that Starr’s provision of treatment and nursing
diagnosis—notwithstanding her statement regarding an inability to diagnose—
constitutes medical care for the purposes of confrontation analysis. To the extent that
the district court inferred some limitation on the relevance of Declarant’s statements to
Starr’s provision of medical care in her dual role as a SANE nurse, we reject such an
inference.

{112} The Court of Appeals gave testimonial weight to Declarant being “asked in detail
about the assault during the examination, [and] asked to provide forensic genital and
anal swabs.” Tsosie, A-1-CA-37791, mem. op. ¶ 16. As we have discussed, information
regarding details of a sexual assault can certainly fall within the scope of information
that is important to guide the provision of medical care, and accordingly we do not agree
that questions about the assault were necessarily testimonial. The issue is whether
such questions were important to the SANE nurse’s ability to provide medical care. We
agree with the Court of Appeals that statements relating to the requested swabs were
clearly for forensic purposes, but those statements were not among the statements
sought by the State for use at trial.

{113} The Court of Appeals also appears to have applied a presumption that
statements are testimonial if their content “identifies Defendant [or] accuses him of
specific acts” or “focus[es] on past events rather than current symptoms.” Tsosie, A-1-
CA-37791, mem. op. ¶ 17. However, as we have discussed, Bryant’s context-dependent inquiry requires that the primary purpose test be applied objectively,
considering “all of the relevant circumstances,” without such presumptions. See 

. Under Bryant, the content of a statement does not alone determine its
testimonial nature. 

III.   CONCLUSION

{114} We conclude that the primary purpose of the majority of Declarant’s statements
made in the course of the SANE exam was nontestimonial, and thus admission of those
nontestimonial statements at trial does not violate Defendant’s constitutional right to
confrontation. Accordingly, we reverse and remand to the district court for further
proceedings consistent with this Court’s opinion. We reiterate that testimonial inquiry
merely establishes an analysis threshold for admissibility of Declarant’s statements
sought by the State for use at trial. Where a statement has been determined to be
nontestimonial, “‘the admissibility of [that] statement is the concern of state and federal
rules of evidence, not the Confrontation Clause.’” Clark, 576. U.S. at 245 (quoting
Bryant, 

).
{115} IT IS SO ORDERED.

C. SHANNON BACON, Chief Justice

WE CONCUR:

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice

MICHAEL E. VIGIL, Justice, dissenting

VIGIL, Justice (dissenting).

{116} In my opinion, the majority misapplies the “primary purpose” test to conclude that
the entirety of the SANE examination report is nontestimonial under the Confrontation
Clause of the Sixth Amendment to the United States Constitution. In arriving at its
conclusion, the majority also ignores the “primary purpose” of the SANE report by
looking only at individual parts of the report instead of the objective circumstances
under which it was produced. Finally, viewed in its entirety, the majority opinion
improperly equates the medical diagnosis or treatment exception to the hearsay rule
with confrontation under the Sixth Amendment. Since I cannot agree with these
conclusions, I respectfully dissent.

{117} I conclude, for the reasons set forth herein, that the SANE examination report is
testimonial and that its admission into evidence is barred by the Sixth Amendment. I
therefore join several other courts in arriving at a similar conclusion. See Hartsfield v.
Commonwealth, 

 (Ky. 2009) (“We believe their function of
evidence gathering, combined with their close relationships with law enforcement,
renders SANE nurses’ interviews the functional equivalent of police questioning.”); see
also Medina v. State, 

 (Nev. 2006) (defining a SANE as a “police
operative” because a SANE “gathers evidence for the prosecution for possible use in
later prosecutions,” thus leading “an objective witness to reasonably believe that the
statements would be available for use at a later trial”); see also State v. Cannon, 

 (Tenn. 2008) (excluding statements of an unavailable witness
previously made to a sexual assault nurse as testimonial because emergency room
personnel had examined and stabilized that witness before the nurse conducted the
structured interview). Courts that have declined to adopt a per se rule regarding the
primary purpose of SANE examinations have still found that a SANE acted as a law
enforcement agent when acting in her evidence-collecting role. See, e.g., State v.
Bennington, 

 (Kan. 2011) (explaining that the SANE asked a
victim questions from a state-provided questionnaire as part of completion of the sexual
assault evidence collection kit); State v. Miller, 

 (Kan. 2011) (same);
People v. Vargas, 

 (2009) (concluding that the SANE who
examined a victim hours after an assault did so “for the primary purpose of documenting
the nature of the sexual assault and gathering evidence for transmittal to the police and
for possible later use in court”); State v. Hooper, 

 (Idaho 2007)
(determining several factors indicating that the examiner worked in concert with police);
Hernandez v. State, 

 (Fla. Dist. Ct. App. 2007) (concluding
that the nurse’s questions were the functional equivalent of police interrogation). 13

I.     THE PRIMARY PURPOSE TEST

{118} The Confrontation Clause of the Sixth Amendment directs, “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” When the state seeks to introduce “testimonial evidence” the
Confrontation Clause “demands what the common law required: unavailability and a
prior opportunity for cross-examination.” Crawford v. Washington, 

(2004). The command of the Confrontation Clause is “not that evidence be reliable, but
that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” 

. While Crawford specifically declined to provide a comprehensive
definition of “testimonial,” it stated that “it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.” 

.

{119} Then, in Davis v. Washington, 

 (2006), the United States Supreme
Court elaborated on how to determine a statement’s testimonial nature. The Davis Court
recognized that comprehensively classifying testimonial statements was futile, and
instead established the “primary purpose test”:

       Statements are nontestimonial when made in the course of police
       interrogation under circumstances objectively indicating that the primary
       purpose of the interrogation is to enable police assistance to meet an
       ongoing emergency. They are testimonial when the circumstances
       objectively indicate that there is no such ongoing emergency, and that the
       primary purpose of the interrogation is to establish or prove past events
       potentially relevant to later criminal prosecution.

. By focusing on the “primary purpose” for the interrogation, the test
recognizes that an interrogation is not necessarily limited to a single purpose, and when
other contemporaneous purposes also exist, the “primary purpose” dominates. This test
therefore requires a court to ascertain what the “primary purpose” for the interrogation is
and not focus on any specific question or answer. This is supported by the use of the
word “Statements” in the test. When the “primary purpose” for the interrogation is to
establish or prove past events potentially relevant to a later criminal prosecution, all of
the statements that result are deemed to be “testimonial.” 

 There is no subsequent
line-by-line or word-by-word assessment. Thus, the focus is on the “primary purpose of
the interrogation” and not on any specific question or answer.



13The sources and parentheticals in this paragraph were compiled by Justice Gordon McCloud in her
concurrence in State v. Burke, 

, 1121 n.8, 1123 (Wash. 2021) (Gordon McCloud, J.,
concurring).
{120} The Davis Court also insisted that the “primary purpose” determination must be
made on an objective basis. Id. at 822. This was reiterated in Michigan v. Bryant, when
the United States Supreme Court emphasized that an “objective analysis of the
circumstances of an encounter and the statements and actions of the parties to it
provides the most accurate assessment of the ‘primary purpose of the interrogation.’”

, 360 (2011). First, the circumstances under which the encounter occurs
are “clearly matters of objective fact.” Id. These include whether the encounter is at a
crime scene or during an ongoing emergency or afterwards. Second, in conducting an
objective analysis of the statements and actions of the parties, “the relevant inquiry is
not the subjective or actual purpose of the individuals involved in a particular encounter,
but rather the purpose that reasonable participants would have had, as ascertained
from the individuals’ statements and actions and the circumstances in which the
encounter occurred.” Id. Stated in another way, a court makes this determination “by
objectively evaluating the statements and actions of the parties to the encounter in light
of the circumstances in which the interrogation occurs.” Id. at 370.

{121} Encounters potentially producing testimonial statements are not limited to
encounters with police officers. In Davis, statements were given in response to a 911
operator’s questions. 

. The Court recognized that although not law
enforcement officers themselves, 911 operators “may at least be agents of law
enforcement when they conduct interrogations of 911 callers.” 

 at 823 n.2. Ohio v.
Clark, 

, 240-41 (2015), addressed statements made by a three-year-old
student to his teacher. The United States Supreme Court specifically declined to
categorically exclude statements made to individuals who are not principally charged
with uncovering and prosecuting criminal behavior, while noting that “such statements
are less likely to be testimonial.” Id. at 246.

{122} From this precedent, the following general principles emerge. First, if the “primary
purpose” of the encounter is to identify a perpetrator or to “establish or prove past
events potentially relevant to later criminal prosecution,” then all of the statements
produced during that encounter are testimonial under the Confrontation Clause. Davis.

. The focus is on the primary purpose of the encounter and not on any
individual statement. 

 Second, a proper assessment of the primary purpose of the
encounter is viewed from the objective perspective of a reasonable participant at the
time of the encounter and “not with the benefit of hindsight.” Bryant, 

,
361 n.8.

II.    APPLICATION OF THE PRIMARY PURPOSE TEST

{123} It is clear that the primary purpose of the SANE examination was forensic: to
establish or prove facts relevant to a later criminal prosecution of Defendant. I arrive at
this conclusion by objectively considering (1) the circumstances of the encounter, (2)
Starr’s objective purpose in conducting the examination, (3) Declarant’s purpose in
submitting to the examination, and (4) the formality of the examination.
A.     Circumstances of the Encounter

{124} Critical factors to objectively consider are the circumstances under which the
encounter took place and whether the encounter was to address an emergency. The
facts leading up to the SANE examination are as follows.

{125} On December 18, 2017, at approximately 8:00 p.m., Declarant went to his
neighbor’s home to contact 911. Law enforcement arrived about thirty minutes after the
911 call. Declarant told them that around 7:00 p.m. that night, Defendant and another
man came to his apartment, and Defendant was angry, apparently because he believed
that Declarant had a new boyfriend. Declarant said he was repeatedly punched in the
face, kicked, choked, tied up, threatened with a knife, and penetrated in his mouth and
anus by Defendant with his penis while the other man held him down. Before leaving,
they stole his television, DVD player, stereo system, and phone. Declarant said he then
went to his neighbor’s home to contact 911 after he freed himself.

{126} Declarant initially refused medical attention after law enforcement arrived. Still,
the officers suggested that the paramedics should be called to examine Declarant.
Paramedics subsequently arrived at Declarant’s apartment and treated him. Around
9:00 p.m. the paramedics transported Declarant to the University of New Mexico
Hospital (UNMH). At UNMH, doctors and nurses examined and treated Declarant. He
also received a CT scan apparently because he had a swollen eye.

{127} At 12:35 a.m., Detective Gomez asked Declarant, “I know you had talked to the
officer about it but are you willing to see a sexual assault nurse?” Declarant responded,
“Yes.” The detective then asked, “Is that something you would like to do tonight?”
Declarant said, “Okay.” Around 2:25 a.m. a police officer asked Declarant to sign a
document giving Albuquerque Police Department (APD) officers permission to search
his apartment “for evidence, things that might pertain to this case.” As Declarant signed
that consent-to-search form, the officer stated, “We will get going to the Family
Advocacy Center in just a moment, OK?”

{128} The APD officer then walked with Declarant out of UNMH to his squad car and
drove Declarant to the Albuquerque SANE Collaborative at the Family Advocacy Center
(Center). The Center is located in downtown Albuquerque at 625 Silver Avenue SW.
Offices of APD detectives are in the same building. Gail Starr, a SANE, greeted the
officer and Declarant inside. While riding in the elevator up to the examination rooms,
Starr asked the officer if he knew which detectives were working on the case and if they
were coming to the Center. Before leaving, the officer told Starr, “I will probably meet up
with the detectives and see what else they need.” The SANE examination started at
approximately 3:00 a.m.

{129} Based on the foregoing facts, I conclude Declarant was not facing an ongoing
emergency during his SANE examination. An “ongoing emergency” is an active threat at
the time the statements are made. See, e.g., Bryant, 

 (contemplating an
active shooter whose location and motivations were unknown during the interrogation).
The closer the events of an alleged crime are to the statements describing the events,
the more likely there is an ongoing emergency. See State v. Soliz, 

, 

, 

 (assessing “temporal proximity” to distinguish an
ongoing threat from a past incident). For example, in Hammon—the companion case to
Davis—the Indiana police responded to a “domestic disturbance” that had ended before
their arrival. Davis, 

. Even though the attacker was still in the home, the
victim and the attacker were separated during questioning, and the victim was in no
present danger. 

. Because there was no ongoing emergency, the
questioning was a criminal investigation.

{130} Here, there was no medical emergency. Declarant was able to untie himself and
go to his neighbor to call 911 at around 8:00 p.m. Officers responded, and Declarant
initially refused medical attention, but at the responding officer’s suggestion, Declarant
agreed, and the paramedics were contacted. They responded, treated him, and
transported him to UNMH at around 9:00 p.m. Doctors and nurses at UNMH treated and
released Declarant. The SANE examination commenced at 3:00 a.m. There is no
indication at any time prior to his arrival for the SANE examination that there was a
medical emergency of any sort, and the examination took place around eight hours after
Declarant said he was assaulted, tied up, and robbed. Moreover, there is no suggestion
whatsoever that Declarant was in any danger at the time of the SANE examination. At
around 2:25 a.m. the day after the incident, a police officer transported Declarant from
UNMH to the SANE Collaborative at the Center, which is located inside the same
building on the same floor as APD detectives. Finally, Starr testified that SANEs are
trained to be “very slow and careful with the patient” so that the patients are “really
relaxed and comfortable in [the] space,” spending at least two hours with a patient per
examination.

B.     Starr’s Objective Purpose

{131} Starr’s primary objective purpose in conducting the examination was forensic,
which means “used in legal proceedings or in public discussions.” Webster’s Third New
International Dictionary of the English Language, unabridged (1993) at 889. I begin with
an overview of the role of SANEs, nationally and locally, in sexual assault
investigations. Generally, to become a SANE, registered nurses must complete more
than sixty hours of forensic, medical, and psychological training. New Mexico Coalition
of Sexual Assault Programs (NMCSAP), Roles and Responsibilities of a New Mexico
SANE, 1-2 (Roles and Responsibilities). 14 Together, this training covers assessment of
injuries from sexual assaults, treatment for sexually transmitted diseases, forensic
photography, fact and expert witness testimony skills, and crisis intervention training.
See Julia Chapman, Nursing the Truth: Developing a Framework for Admission of
SANE Testimony Under the Medical Treatment Hearsay Exception and the
Confrontation Clause, 

, 280 (2013); see also Jennifer A. Ort,
The Sexual Assault Nurse Examiner, 102 Am. J. Nursing 24, 24GG (2002). Nationally,
the International Association of Forensic Nurses (IAFN) trains and oversees forensic
assault nurses (or SANEs) for all fifty states. Almost 2,000 SANEs are certified by the

14Available at https://nmcsap.org/wp-content/uploads/Roles_Responsibilities_New_Mexico_SANE.pdf
(last visited July 1, 2022).
IAFN in the United States. IAFN, SANEs Trained and Certified by IAFN in 2020; 15 see
IAFN, Homepage. 16

{132} The SANE Task Force and NMCSAP outline the qualifications for becoming a
New Mexico SANE. Roles and Responsibilities, supra, at 2-4; 17 see NMCSAP,
Homepage. 18 These required qualifications include current New Mexico Registered
Nurse Licensure, a minimum of two years of nursing experience, completion of the
SANE six-day didactic training, and proof of demonstrated competency. Roles and
Responsibilities, supra, at 4. 19 Trainees are expected to obtain courtroom observation
hours of violent crime, sexual assault, homicide, or domestic violence cases and to
understand the chain of custody protocols for forensic evidence. 20

{133} SANEs do not provide general medical diagnoses or care, nor are they first
responders. Starr testified that she could not prescribe medications or diagnose or treat
Declarant beyond the injuries associated with the alleged assault. Instead, SANE
examinations involve a physical assessment of the victim that includes a forensic exam
identifying and recording injuries specifically related to the alleged assault or rape.
NMCSAP, Sexual Assault Evidence Kit (SAEK) Instructions (2005) at 1. 21 Photographs
document visible injuries like bruises, lacerations, and other abrasions; the SAEK
contains swabs and samples of specimens. 22 The SANE turns this evidence over to the
appropriate law enforcement agency if the patient consents to the release of the
records. SANE training objectively suggests a forensic purpose.

{134} With the foregoing background in mind, I turn to the location of the examination
and its relationship to law enforcement. See Bryant, 

 (“An objective
analysis of the circumstances of an encounter and the statements and actions of the
parties to it provides the most accurate assessment of the ‘primary purpose of the
interrogation.’ The circumstances in which an encounter occurs . . . are clearly matters
of objective fact.”) An APD officer drove Declarant from UNMH to the SANE
Collaborative, which is located in the same building and on the same floor as APD
detectives. This colocation of the examination objectively suggests a forensic purpose.

{135} Objectively, the circumstances surrounding the SANE examination are that there
was no medical necessity for Declarant to see Starr. He first refused medical treatment
and then agreed to medical attention at the suggestion of the police. The paramedics
treated Declarant and took him to UNMH, where he was further treated and released.

15Available at https://rise.articulate.com/share/Dr3MMRtTTQoRrtQAc3iitqCEkaPNy2h#/lessons/9BtMW0qnH-XOW0y6E-1oIg9omDZ052KL (last visited July 1, 2022).
16Available at https://www.forensicnurses.org/ (last visited July 1, 2022).
17Available at https://nmcsap.org/wp-content/uploads/Roles_Responsibilities_New_Mexico_SANE.pdf
(last visited July 1, 2022).
18Available at https://nmcsap.org/ (last visited July 1, 2022).
19Available at https://nmcsap.org/wp-content/uploads/Roles_Responsibilities_New_Mexico_SANE.pdf
(last visited July 1, 2022).
20Id. at 2-4.
21Available at http://www.ncdsv.org/images/SexAssaultEvidenceKitInstructions.pdf (last visited July 1,
2022).
22Id. at 4-6.
The lack of a medical necessity suggests that the SANE examination was for forensic
purposes.

{136} I now turn to the examination itself. Before the actual examination commenced,
Declarant signed a form, the first page of the SANE examination report, giving “consent
to release all records and evidence pertaining to this case to the pertinent law
enforcement agency, Crime Victim Reparation Commission, Children, Youth, & Families
Div., Adult Protective Services, District Attorney’s Office & the APD Crime Lab.” The
examination report’s second page, the Sexual Assault Intake form, notes both the name
of the detective who responded to the sexual assault and the police report case
number. This is consistent with Starr’s testimony, “We work with the police.”

{137} Starr’s questions focused on recording and collecting forensic information.
Declarant was asked to describe in detail the events before the attack began⸻who
was involved, the beating, the sexual assaults, and the robbery⸻which Starr recorded
verbatim as best she could. The narrative included that “offender” performed oral and
anal copulation on Declarant with ejaculation inside Declarant’s anus.

{138} An entire page of the SANE examination report is dedicated to information about
the alleged perpetrator and past abuse. Here Starr noted that Defendant and Declarant
“dated a month,” Defendant “lived [with Declarant for] ~ 2 weeks,” Defendant “was
acting jealous,” and Defendant was “stealing from [Declarant] before—why relationship
ended.” Further questions included, (1) “Does your abuser have access to a gun?” to
which Declarant answered “no”; (2) “Has the violence increased in frequency/severity
over the last year?” where Declarant’s response was “first time”; (3) “Does your abuser
use alcohol or drugs?” to both of which the response was “yes” noting “Meth”; (4) “Have
you been strangled by your abuser in the last year?” where the response was “First
time”; and (5) “Does your abuser have a mental illness?” where the response was
“Think so.”

{139} On a subsequent page with line sketches of human bodies, Starr placed
numbers showing eighteen locations where she observed abrasions, bruises, swelling,
cuts, pain, scratches, and redness that Declarant reported. The numbers were noted on
the front, back, sides, head, and face of the body sketches similar to those on autopsy
reports. Starr then explained each number in greater detail in the corresponding
numbered text on the next sheet. Starr also examined Declarant’s anus and
documented a tear and skin tag at two locations on the anus in a diagram and
description of the diagram. Starr took more than sixty photographs of the areas of
Declarant’s body she examined.

{140} As a result of her examination, Starr put together an SAEK. Starr’s kit included
Declarant’s consent form, the undergarments he was wearing when he was sexually
assaulted (“collected, air dried if necessary, and placed loosely in pre-labeled large
brown bag”), air-dried oral swabs (“collected, air dried and two swabs placed in Oral
envelope”), air-dried anal swabs (“collected, air dried and two swabs placed in Anal
envelope”), skin swabs of hickeys, and photographs.
{141} Special instructions for the SAEK are checked as being followed by Starr. Those
instructions require the following: “All small white envelopes sealed, taped, initialed,
dated, and placed in the large white envelope along with Undergarments small brown
bag, also stapled, taped, with integrity seal. Large white envelope sealed, taped,
initialed, and dated with integrity seal. The information on the front labels of both the
SAEK white envelope and large brown bag is completed and signed by Examiner.
Chain of custody is maintained throughout.” The SAEK was sealed with an integrity
seal, affixed with the police report case number in accordance with evidence collection
protocols, and given to the police along with the SANE examination report.

{142} We have previously observed, “When compared with other medical providers,
the goals of SANE nurses and SANE examinations can seem more closely aligned with
law enforcement . . . .” State v. Mendez, 

, 

, 

. That is decidedly the case here. Starr said she spends at least two hours with
a sexual assault patient. During that two hours, in contrast to all the forensic tasks she
performed during the SANE examination, the only medical treatment Starr provided to
Declarant was an ice pack for his swollen eye and prophylactic vaccinations. Taking all
the circumstances together, I conclude that the primary purpose of Starr’s SANE
examination was to establish or prove past events potentially relevant to a subsequent
criminal prosecution. That is not to suggest in any way that Starr would not treat any
medical conditions she came across during the course of her examination. However,
objectively observed, that was decidedly not her primary purpose.

C.      The Declarant’s Objective Purpose

{143} I now undertake what the facts show the Declarant’s purpose was in submitting
to the SANE examination. While there is no direct evidence as to what Declarant’s
purpose was, “the relevant inquiry is not the subjective or actual purpose of the
individuals involved in a particular encounter,” but rather it is the purpose that a
“reasonable participant[] would have had” in the same situation. Bryant, 

. I conclude that under the circumstances a reasonable participant would have
understood that the process of collecting and preserving evidence was for a potential
criminal case. See Davis, 

.

{144} First, we know that a detective spoke to Declarant at UNMH about seeing a
SANE, and when he was later asked, he said he was willing to do so and assented to
speaking to the SANE later that same night. We also know that a police officer asked
Declarant to sign a form consenting to a search of his apartment for evidence, and as
he signed the form, the officer said the police were going to get Declarant to the Center
“in just a moment.”

{145} Second, a law enforcement officer drove Declarant to the Family Advocacy
Center, an “environment that focuses on the needs of victims of interpersonal crime,” 23




23Available at https://www.cabq.gov/albuquerque-family-advocacy-center (last visited July 1, 2022).
which is colocated in the same building, and on the same floor, that houses APD
detectives.

{146} Third, before Starr began the examination, Declarant had to read and sign the
SANE examination report’s consent form that included a release of information to law
enforcement, the APD crime lab, and the District Attorney’s Office. Then, Declarant
provided a detailed narrative about the assault, which prompted Starr to collect forensic
genital and anal swabs as well as to identify on diagrams his alleged injuries and to take
over sixty photographs of those alleged injuries. When Starr was asked if the purpose of
taking certain swabs was to give them to the police, Starr agreed and added, “And it is
to support the patient’s desire to report this assault to the police.”

{147} Fourth, at the end of the examination, Starr provided Declarant with discharge
instructions that included “Police Investigative Information.” Since Declarant consented
to reporting the alleged sexual assault, the discharge paperwork included instructions
on how to launch an investigation into the alleged crimes, contact information for the
APD, the designated contact agent, and the APD police report case number associated
with the SAEK. While Starr testified, “We work with the police. We do not work for the
police,” the inclusion of law enforcement contact information would lead a reasonable
participant to believe the evidence collected during the exam could serve an evidentiary
purpose.

{148} Thus, the objective circumstances of the exam would have alerted a reasonable
participant to the potential future prosecutorial use of that participant’s statements. The
primary purpose of the examination was to create a record “to establish or prove past
events potentially relevant to later criminal prosecution.” Davis, 

. For
these reasons, Declarant’s primary purpose in submitting to the SANE examination was
to provide “testimony” supporting his allegations rather than to receive medical
attention.

D.     Formality of the Examination

{149} The formality of the SANE examination weighs in favor of concluding that the
SANE examination report is testimonial. Declarant was in a formal, safe, and tranquil
environment during the examination. Formality “is a key factor in determining whether
the statement is testimonial” and suggests the absence of an emergency. State v.
Romero, 

, 

, 

; see Bryant, 

. Formality is a function of the location where the statement was made (for
example, in a courthouse or at a crime scene) and the manner of recording (such as
signing under oath or tape-recording). Compare Crawford, 

 (involving
police interrogations at the police station), with Bryant, 

 (considering the
statement of a gunshot victim in a parking lot).

{150} The formalities and structure surrounding the SANE examination report are more
than adequate to qualify the report—and Declarant’s assertions within it—as
testimonial. Declarant was questioned in a methodical, calm, and structured
examination far-removed from harm. Declarant understood that evidence would be
collected during the SANE examination—and included in an SAEK—and still consented
to the release of records to law enforcement agencies including the District Attorney’s
Office and the APD Crime Lab.

{151} Additionally, the method of recording Declarant’s assertions emphasizes the
examination’s formality. The “core class” of testimonial statements exemplified in
Crawford, 

, is not limited to sworn testimony alone. In Bullcoming v.
New Mexico, 

 (2011), the United States Supreme Court reasoned that
a “certified” unsworn report of the defendant’s blood alcohol levels was testimonial
hearsay because a “document created solely for an ‘evidentiary purpose’ . . . made in
aid of a police investigation ranks as testimonial.” (citing Melendez-Diaz v.
Massachusetts, 

 (2009), for the laboratory report at issue). The
Bullcoming Court used the following factors to support its conclusion: (1) law
enforcement conveyed the evidence to the crime laboratory for testing, (2) a laboratory
analyst tested the evidence and recorded the results in a “formalized” signed document,
and (3) the formal report referred to court rules that provided for the document’s
admission into evidence. Id. at 665.

{152} Similarly, the SANE examination report’s status as a formal statement stems
from the process that created it, despite the absence of an official certification. The
SANE examination occurred after police brought Declarant to the Center. Starr collected
the forensic evidence and recorded medical and forensic information in the structured
and uniform report. Starr was trained to know how evidence is admitted at trial through
her SANE training. The report’s “SAEK Checklist” also contains chain of custody
protocols to be checked off as accomplished. When completed, the report and the
SAEK were shared with APD.

{153} Further, Starr certified the validity of the SANE examination report and the
information therein by initialing each page of the report and signing her name as a
representative of the Albuquerque SANE Collaborative on the report’s consent form,
“Discharge Instructions,” and SAEK Checklist. To certify is to “attest as being true.”
Black’s Law Dictionary (11th ed. 2019) 284, 158 (defining attest as “[t]o bear witness;
testify” or “[t]o affirm to be true or genuine; to authenticate by signing as a witness”).
The SAEK Checklist emphasized the proper collection of evidence stating, “Examiner:
The evidence you collect will be examined by either the New Mexico State Crime Lab or
the Albuquerque Police Dept. Crime Lab. Accurate documentation provided in this
Checklist significantly increases the value of the evidence collected should patient
consent to investigation.” Such formality suggests a forensic purpose.

III.   THE MAJORITY OPINION

{154} The majority provides that because “a SANE nurse’s identity pursuant to a dual
role may shift multiple times within a SANE exam, the burden of determining [a]
circumstance’s proper weight within primary purpose analysis nonetheless remains with
our district courts.” Maj. op. ¶ 54. This statement reflects the primary flaw in the
majority’s reasoning. While it is true that district courts must shoulder the heavy
responsibility of sifting through statements, piece-by-piece, making individual decisions
on each one, such sifting is done only after it has been concluded that the primary
purpose of the encounter is something other than to establish or prove past events
potentially relevant to later criminal prosecution. See Davis, 

(establishing that an interrogation to determine the need for emergency assistance can
evolve into testimonial statements, but only after concluding the circumstances of the
“interrogation objectively indicate its primary purpose was to enable police assistance to
meet an ongoing emergency”). Rather than looking to the primary purpose of the
encounter, the majority looks to each statement made, plus testimony made by Starr
about the statements (testimony that was made after the encounter), to determine the
primary purpose of each statement, and then extracts that information to determine the
primary purpose of the encounter. This is incorrect. Moreover, if what the majority says
in paragraph 55 is correct—that a district court may redact testimonial statements at any
time, regardless of the primary purpose—it eviscerates the primary purpose test. In
other words, simply go and redact any testimonial statements, as the majority does
here.

{155} The majority begins its analysis stating half of the rule for the primary purpose
test, “we begin our ‘highly context-dependent inquiry’ with objective analysis of the
circumstances in which the parties interacted, then conduct an objective and combined
inquiry into the parties’ statements and actions.” Maj. op. ¶ 75 (quoting Bryant, 

). However, this Court must objectively evaluate “the statements and actions of
the parties to the encounter, in light of the circumstances in which the interrogation
occurs.” Bryant, 

 (emphasis added). Further, “the relevant inquiry is not
the subjective or actual purpose of the individuals involved in a particular encounter, but
rather the purpose that reasonable participants would have had, as ascertained from
the individuals’ statements and actions and the circumstances in which the encounter
occurred.” 

 (emphasis added). The majority attempts to cloak its reliance on
Starr’s subsequent testimony and her subjective purpose as being “relevant to
determining what a reasonable SANE nurse’s underlying purpose” would be. Maj. op.
¶¶ 32 n.3, 84.

{156} By examining the statements and actions and circumstances of the encounter,
not testimony made subsequent to the encounter, this Court then determines if the
primary purpose of the encounter is to establish or prove past events potentially
relevant to later criminal prosecution. See Bryant, 

. If it is, there is no
sifting or parsing through statements line-by-line. See Davis, 

. The
entire SANE examination report is deemed testimonial and within the scope of the
Confrontation Clause. See 

 (holding that all the statements of an encounter
are testimonial when the circumstances objectively indicate “that the primary purpose of
the interrogation is to establish or prove past events potentially relevant to later criminal
prosecution”). Thus, this Court must look to the statements made and the actions and
circumstances that occurred during the encounter, not statements from one of the
participants made after the encounter on the “subjective or actual purpose” of the
statements made and the actions that occurred during the encounter. Bryant, 

. This is where I believe the majority goes awry.
{157} The majority concludes that a SANE has dual roles under the examination’s
“medical care component” and its “forensic component.” Maj. op. ¶ 51. The majority
states that because a SANE’s predominant role in an examination “is likely to change
multiple times over the course of a SANE exam,” a court cannot use a SANE’s identity
to presume either the testimonial or nontestimonial primary purpose of the statements.

 Instead, according to the majority, Starr’s identity as a SANE—and in a SANE’s dual
role in general—is informed by the underlying purpose of individual statements in the
SANE examination. See id. ¶¶ 51, 83-93.

{158} So, the majority evaluates to what extent the nature of the questions from the
SANE examination “informed” whether Starr was acting in a medical care role or a
forensic role. Id. ¶¶ 85-93. To determine the primary purpose of a particular statement,
the majority reasons that if the statement is relevant for a medical care component, then
“Starr’s medical care role informed her identity . . . as much as or more than her forensic
role, thus weighing toward a nontestimonial ruling.” Id. ¶ 86. In other words, the
classification of a statement as either medical or forensic determines if Starr was acting
in a “medical care role” or a “forensic role,” thereby determining whether the statement
is nontestimonial or testimonial. Id. ¶ 83.

{159} The majority concludes that each of the eight challenged examination forms
“informed” Starr’s medical care role more than her forensic role. Id. ¶¶ 85-93. The
majority concludes, “To the extent that the SANE exam questions reflect Starr’s identity
pursuant to her medical care role . . . , we conclude that this circumstance weighs
toward the challenged statements being nontestimonial.” Id. ¶ 93. The release of
records portion of the examination form is the only section relative to which the majority
deems Starr’s identity to be forensic. Id. ¶ 85.

{160} Later, the majority purports to engage in a combined analysis of the statements
and actions of the participants⸻Starr and Declarant. Id. ¶¶ 97-107. The majority
incorporates its “discussion of Starr’s questions posed in the SANE exam forms as they
related to the surrounding circumstance of her identity in her dual role as a SANE
nurse.” Id. ¶ 98. The majority concludes that Declarant’s statements that “provided
information that was important to guide the provision of medical care in relation to the
medical care purposes of the particular questions” are nontestimonial. Id. ¶ 99. When
Declarant’s statements exceeded that scope, and identified Defendant or any criminal
acts, the statements became testimonial. See id. Again, the majority evaluates Starr’s
testimony based on her stated subjective reasons for determining the purposes of her
examination questions, rather than from a reasonable participant’s perspective. See id.
¶¶ 102-07.

{161} The United States Supreme Court precedent evaluating the primary purpose of
encounters with state actors is clear and remains unchanged since the creation of the
primary purpose test. See Davis, 

. The analysis does not concern the
subsidiary or corollary purpose of the SANE examination. See 

 The case law
addresses the SANE examination’s primary, or fundamental, purpose. See 

 Instead
of evaluating the totality of an alleged sexual assault encounter, as prescribed by
precedent, the majority opts to segment the encounter and task the district courts with
evaluating each utterance of the encounter. Further, the majority relies entirely on
Starr’s testimony to support its conclusions that the statements are nontestimonial. I
determine the plain language and format of the SANE examination report alone,
beginning with the Sexual Assault Intake form, to be sufficient as evidence of a
testimonial primary purpose of the examination.

{162} I strongly disagree with the majority’s conclusion that the record does not
demonstrate “significant” further involvement by law enforcement to support Declarant’s
claims. See maj. op. ¶ 80. Footage captured on the lapel videos and recorded
interviews with APD demonstrates that Declarant first learned of SANE examinations
from the officers, and the officers coordinated with Starr as to when the examination
would be finished. This footage, combined with Declarant’s signed release of records to
the APD, is evidence a reasonable participant would have understood the depth of
APD’s involvement with the SANE examination and with this case.

{163} I also determine that the majority’s logic is circular in evaluating the relationship
between a SANE’s role and the testimonial nature of the statements. See id. ¶¶ 51, 83-
93. The majority first establishes that statements that are made for the purpose of
medical care or treatment are nontestimonial. See id. ¶ 69. Then, the majority says, a
nontestimonial medical purpose informs Starr’s medical caregiving role as a SANE. See
id. ¶ 85. So, when Starr is acting as a medical provider, her purpose when asking
Declarant questions during the exam cannot be to collect evidence for a forensic
purpose. Since the statements Starr elicits as a medical caregiver do not have a primary
purpose of producing testimonial statements, the reasoning goes, the statements are
nontestimonial.

{164} Finally, while the majority asserts it is not equating its medical diagnosis
Confrontation Clause exception with the medical diagnosis or treatment exception for
hearsay, id. ¶¶ 44 n.5, 108-13, the result it reaches belies that assertion. Rule 11-803(4)
NMRA states, “A statement that (a) is made for—and is reasonably pertinent to—
medical diagnosis or treatment, and (b) describes medical history, past or present
symptoms, pain, or sensations, their inception, or their general cause,” is “not excluded
by the rule against hearsay.”

{165} In Mendez, we held that the “hearsay rule and the Confrontation Clause are not
co-extensive and must remain distinct” when conducting Sixth Amendment testimonial
analysis and considering the admissibility of statements. 

. While
the majority acknowledges this rule, see maj. op. ¶ 44 n.5, the majority proceeds to
conclude that many of the statements made during the SANE examination are
nontestimonial because they “were within the scope of information important to guide
Starr’s provision of medical care.” See maj. op. ¶¶ 101-07. The majority’s focus on the
statements and whether they were important to guide Starr’s “provision of medical
care,” rather than a focus on the primary purpose of the entire encounter, improperly
meshes hearsay analysis under Rule 11-803(4) with Confrontation Clause analysis. See
maj. op. ¶¶ 102-11; see also Mendez, 

 (“[I]f a statement is
pertinent to a medical condition, such that a medical care provider reasonably relies
upon it in arriving at a diagnosis or treatment, the statement is deemed sufficiently
reliable to overcome hearsay concerns.”). Further, the majority supports its reasoning
by citing Miller, 

 (Kan. 2011), a case that erroneously applied our
hearsay rules from Mendez, 

, to its Confrontation Clause
analysis, see maj. op. ¶ 45, and by using the hearsay exception to evaluate a SANE’s
dual role, see maj. op. ¶ 109. The majority overly relies on the hearsay analysis of Rule
11-803(4) in Mendez in direct contradiction of this Court’s precedent.

IV.     CONCLUSION

{166} The Crawford Court described “‘testimonial’” statements as “‘solemn
declaration[s] or affirmation[s] made for the purpose of establishing or proving some
fact.’” 

 (quoting 2 N. Webster, An American Dictionary of the English
Language (1828)). While the Crawford Court specifically declined to provide a
comprehensive definition of testimonial, it created a nonexhaustive list of a “core class
of ‘testimonial’ statements” which trigger Confrontation Clause concerns. 

 This core
class includes “pretrial statements that declarants would reasonably expect to be used
prosecutorially” and “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.” 

.

{167} It is clear from the objective circumstances that the overarching primary purpose
of the SANE examination was to establish past facts potentially relevant to Defendant’s
criminal prosecution. The core characteristic of SANE examinations is the collection and
preservation of evidence irrespective of necessary medical treatment. A sexual assault
victim with no apparent injuries will undergo examination and evidence collection
procedures similar to those of a victim with injuries. Compare State v. Ortega, 2008-
NMCA-001, ¶ 25, 

, 

 (explaining that a child never received
medical treatment during the SANE examination), overruled on other grounds by
Mendez, 

, with Mendez, 

 (describing
the SANE examination of a child who was bleeding vaginally following an alleged
assault). SANEs are trained to follow the same procedures for each patient—
notwithstanding a patient reporting the alleged assault to law enforcement. See SAEK
Instructions, supra, at 2. 24 If a patient does not file a police report at the time of the
SAEK collection, the SAEK will be stored as a “collected . . . but not reported” sexual
assault kit which the patient may eventually choose to report. See id. 25

{168} The primary purpose of the SANE examination was to collect and preserve
statements and corroborating evidence for the purpose of proving Declarant’s claims
made to the police. The SANE examination report is therefore testimonial. Further, it is
the only evidence the State has to prove its case against Defendant, and Defendant has
never had an opportunity to confront and cross-examine Declarant who is deceased.
The Sixth Amendment prohibits this result. Since the majority disagrees, I respectfully
dissent.


24Available at http://www.ncdsv.org/images/SexAssaultEvidenceKitInstructions.pdf (last visited July 1,
2022).
25Id.
MICHAEL E. VIGIL, JUSTICE

                ORDER ON SUGGESTION OF DEATH AND MOTION
                  TO ABATE OR APPOINT SUBSTITUTE PARTY

BACON, Chief Justice.

{1}    WHEREAS, this matter came on for consideration by the Court upon the
Appellate Defender’s Suggestion of Death and Motion to Abate or Appoint Substitute
Party (“the motion”) pursuant to Rule 12-301 NMRA;

{2}     WHEREAS, on July 14, 2022, this Court issued an opinion in State v. Tsosie,

, ___ P.3d ___, resolving pretrial admissibility issues raised on
interlocutory appeal by Plaintiff State of New Mexico concerning felony charges against
Defendant Oliver Tsosie in State v. Tsosie, D-202-CR-2018-00597 (2d. Jud. Dist. Ct.);

{3}    WHEREAS, on July 21, 2022, the motion before the Court informed us that
Defendant had passed away on December 15, 2021, which assertion was later
confirmed by the Office of the Medical Investigator of the State of New Mexico;

{4}    WHEREAS, the circumstance of the death of a party in a case before this Court
is governed by Rule 12-301(A) of our Rules of Appellate Procedure, which provides in
pertinent part:

      If a party dies after notice of appeal is filed or while a proceeding is
      otherwise pending, the personal representative of the deceased party may
      be substituted as a party on motion filed in the appellate court by the
      representative or any other party. . . . If the deceased party has no
      representative, any party may suggest the death on the record and
      proceedings shall then be had as the appellate court directs.

(Emphasis added.)

{5}    WHEREAS, the language in Rule 12-301 of “as the appellate court directs” has
been interpreted by this Court in State v. Salazar, 

, 

,

, as “giv[ing a] court substantial discretion in determining how . . . a
substitution should be conducted after death has been noted on the record”;

{6}      WHEREAS, the motion asks this Court to enter an order abating the proceeding
to its inception (abatement ab initio) or substituting a party for Defendant;

{7}    WHEREAS, the proposed remedy of abatement ab initio would vacate the
opinion, whereas the proposed remedy of substitution of the deceased Defendant would
leave the opinion in place;
{8}      WHEREAS, the Salazar Court recognized that substitution of a deceased party
may serve “the best interests of society” where the resulting nonvacated opinion
“clarifies important issues involving the law . . . in New Mexico,” 

;

{9}   WHEREAS, the opinion clarifies admissibility issues of first impression under the
Confrontation Clause of the Sixth Amendment to the United States Constitution;

{10} WHEREAS, allowing substitution here involves no prejudice suffered by
Defendant or his interests, see Salazar, 

;

{11} WHEREAS, Defendant’s death during pendency of the appeal had no effect on
this Court’s handling of the issues in the opinion, see id.;

{12} WHEREAS, abatement ab initio is “a court-created common law doctrine” applied
by courts where a criminal “defendant’s death . . . occurs while his criminal conviction is
pending on direct appeal,” People v. Griffin, 

, 

 (emphasis
added), and is not applied where there has been no verdict at trial, see Salazar, 1997-
NMSC-044, ¶ 30 (recognizing that substitution is not an available remedy where a
criminal defendant “die[s] during pendency of discretionary post-conviction remedies,” in
which case “the petition will be dismissed as moot, and the verdict will stand” (emphasis
added));

{13} WHEREAS, the issues in the opinion satisfy both of our well-established
exceptions to mootness, said issues being “of substantial public interest, and . . .
capable of repetition yet evad[ing] review.” Jones v. N.M. Dep’t of Pub. Safety, 2020-
NMSC-013, ¶ 30, 

 (internal quotation marks and citation omitted);

{14} WHEREAS, the Court having considered the foregoing and having determined
pursuant to Rule 12-301(A) and Salazar, 

, that substituting a party for
Defendant serves the best interests of society; Chief Justice C. Shannon Bacon, Justice
David K. Thomson, and Justice Julie J. Vargas concurring; Justice Michael E. Vigil
dissenting;

{15} NOW, THEREFORE, IT IS ORDERED that the motion to substitute a party for
Defendant is GRANTED;

{16} IT IS FURTHER ORDERED that we appoint defense counsel of record as
Defendant’s substitute for the remainder of the proceeding.

{17}   IT IS SO ORDERED.

C. SHANNON BACON, Chief Justice

WE CONCUR:

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice
MICHAEL E. VIGIL, Justice, dissenting

VIGIL, Justice (dissenting).

{18} On July 14, 2022, this Court issued an opinion in this criminal case, ordering a
remand to the district court for further proceedings. One week later, appellate counsel
for Defendant filed a suggestion of death, stating she learned that Defendant had
passed away, while the case was pending, on December 15, 2021. Counsel asked this
Court to enter an order abating the proceeding or substituting a party for Defendant. I
respectfully submit that abatement is proper. Since the majority disagrees, I dissent.

{19} There has never been a trial in this case. The alleged victim is deceased. Prior to
trial, the district court entered an order excluding from evidence certain statements
made by the alleged victim to a Sexual Assault Nurse Examiner (SANE) on grounds
that its admission would violate Defendant’s confrontation rights under the Sixth
Amendment to the United States Constitution. The State exercised its right to pursue an
interlocutory appeal under NMSA 1978, Section 39-3-3(B)(2) (1972). The Court of
Appeals affirmed the district court, and after granting certiorari, we issued our opinion
reversing the Court of Appeals and remanding the case to the district court for further
proceedings.

{20} As matters stand, the alleged victim and Defendant are both deceased. With no
alleged victim and no defendant, there is no case. The appeal is absolutely moot. See
Gunaji v. Macias, 

, 

, 

 (“A case is moot
when no actual controversy exists, and the court cannot grant actual relief.” (internal
quotation marks and citations omitted)). Furthermore, as matters stand, if the opinion is
not withdrawn, we leave in place a purely advisory opinion. See City of Las Cruces v. El
Paso Elec. Co., 

, 

, 

 (“We avoid
rendering advisory opinions.”) In addition, by substituting another party for the deceased
Defendant, this Court effectively cuts off and prevents any further review of its opinion.
The United States Supreme Court will not grant certiorari in a criminal case when the
defendant has died. See Dove v. United States, 

 (1976) (dismissing the
petition for certiorari review because the petitioner died).

{21} The general rule is that “the prosecution abates from the inception of the case
upon death of a criminal defendant.” State v. Salazar, 

, 

, 

. I recognize that Rule 12-301(A) NMRA states in part that when the
death of a party is suggested on the record, “proceedings shall then be had as the
appellate court directs.” Exercising this discretion, Salazar modified, but did not
abrogate, the general rule. Salazar only excluded from the general rule cases where the
defendant dies while exercising the constitutional right to a direct appeal as a matter of
right following a conviction. Salazar, 

 (“This holding applies only
to cases involving the death of a defendant who possesses a direct appeal as of right to
a criminal conviction.”); see also N.M. Const. art. VI, § 2 (providing a right of appeal
from a sentence of death or life imprisonment). The case is now before us on a
discretionary grant of certiorari, and not as a matter of right. Salazar does not apply.
Because the direct appeal as of right requirement is not satisfied in this case, the
general rule of abatement ab initio applies. The lack of any conviction weighs heavily in
favor of applying the general rule of abatement ab initio, and I do not see any good
reason for exercising our discretion to issue an advisory opinion in a case that is moot.
Respectfully, asserting that the opinion addresses an issue of first impression is not, by
itself, sufficient.

{22} I respectfully submit that the appropriate course in this case is to withdraw the
opinion and remand the case to the district court to abate the entire proceeding ab initio.
Since the majority disagrees, I dissent.

MICHAEL E. VIGIL, Justice