State v. Lea

                                                                Office of the Director
                                                                 10:47:12 2023.09.27         New Mexico
                                                                                             Compilation
                                                                               '00'06-       Commission
                                                                     2020.005.30524
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: June 29, 2023

No. A-1-CA-39585

STATE OF NEW MEXICO,

      Plaintiff-Appellant,

v.

ERIK LEA,

      Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Courtney Weaks, District Court Judge

Raúl Torrez, Attorney General
Laurie Blevins, Assistant Attorney General
Santa Fe, NM

for Appellant

Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Mark A. Perlata-Silva, Assistant Appellate Defender
Albuquerque, NM

for Appellee

                                        OPINION

HANISEE, Judge.

{1}     In this interlocutory appeal, the State challenges the district court’s grant of a
motion to suppress DNA evidence collected by a sexual assault nurse examiner (SANE)
who passed away between the time of examination and testing. We first addressed this
topic, regarding the same deceased SANE, in State v. Carmona, 

, 

, cert. denied, S-1-SC-35851 (N.M. May, 11, 2016), in which, guided
by our New Mexico Supreme Court’s holding in State v. Navarette, 

,

, this Court held that “the Confrontation Clause prohibits the admission of
DNA evidence collected by an unavailable SANE and any expert testimony based
thereon when the primary purpose animating the SANE’s collection of such evidence is
to assist in the prosecution of an individual identified at the time of the collection.”
Carmona, 

, 

 (emphasis added). Applying
Carmona, the district court suppressed the DNA evidence on Confrontation Clause
grounds. The State appeals, arguing that Carmona does not control this case because
the perpetrator was unknown at the time of the SANE exam. The State further contends
the evidence was gathered during an ongoing emergency and thus excluded from the
right of confrontation. Still guided primarily by Navarette, we hold there to be no
constitutional distinction between the contemporaneous statements made by a SANE
nurse collecting DNA evidence from an assault victim of an unidentified rapist versus
those made when the rapist’s identity is known. As such, the right to confront applies to
those statements. Concluding as well that the evidence gathered herein reflects the
product of investigative steps and not the sort of law enforcement action that our
jurisprudence characterizes to be the product of an ongoing emergency, we affirm.

BACKGROUND

{2}    Defendant was indicted on one count of kidnapping and two counts of criminal
sexual penetration against M.F. (Victim). The State alleges that in June 2006, Victim
was attempting to get into her car when a man that she did not know pushed her in and
got into the back seat of the vehicle. The unknown man forced her to drive to a more
secluded location, then sodomized her. Although the man threated to kill Victim if she
went to the police, she quickly reported the attack and underwent a SANE examination
at the Albuquerque SANE Collaborative. A rape kit was collected during the exam,
including swabs potentially containing DNA material from the rapist. The rape kit was
processed in 2017—eleven years after the attack—and identified Defendant as the DNA
match for the unknown rapist. During the intervening decade, the SANE nurse that
conducted the examination, Lydia Vandiver, died.

{3}    Upon indictment, the State asked the district court for a pretrial ruling on the use
of SANE Vandiver’s statements in the test kit, which included Vandiver’s affirmative
statements on the packaging that the contents were collected from Victim shortly after
the assault. The State concedes that SANE Vandiver’s act of placing the swabs in a
labeled collection bag constituted her affirmative statement for purposes of hearsay.
See Rule 11-801(A) NMRA (defining a hearsay statement as “a person’s oral assertion,
written assertion, or nonverbal conduct, if the person intended it as an assertion”). The
State argued, however, that neither the United States Constitution’s Confrontation
Clause nor our decision in Carmona precluded admission of SANE Vandiver’s hearsay
statements in this instance. See U.S. Const. amend. VI; Carmona, 

.

{4}     The district court held a hearing on the motion, where the State called as a
witness the former executive director of the Albuquerque SANE Cooperative. She was
the executive director during the time of Victim’s exam in 2006, though she did not
participate in the exam itself. The executive director testified that her duties included
transferring “evidence that the nurses collected to the Albuquerque Police Department
Crime Lab.” Once collected, the executive director described how materials collected
during exams were stored in locked “evidence lockers.” With the materials from Victim’s
exam, the executive director described SANE Vandiver’s signature on the “chain of
custody.” Both the prosecutor and the executive director referred to the documentation
on bags of collected material as an “evidence tag.”

{5}    The district court denied the State’s motion, suppressing the evidence because it
constituted testimonial hearsay. The district court found that the labelled swabs
collected during the SANE exam constituted SANE Vandiver’s testimonial statements
that the evidence was what it claimed to be—DNA evidence collected from Victim. The
court found that those testimonial statements were subject to a Confrontation Clause
analysis under Carmona, which the State could not satisfy as SANE Vandiver was not
available for cross-examination at trial nor at a previous opportunity. The court declined
the State’s suggestion that this case fell into an ongoing emergency exception to the
Confrontation Clause.

DISCUSSION

{6}    The State appeals from the district court’s order suppressing the statements of
SANE Vandiver contained within the SANE test kit. We first address the State’s
argument that Carmona does not apply in circumstances of an unknown perpetrator,
then turn to the argument that the evidence was collected for the primary purpose of
solving an ongoing emergency. We review a district court’s determination that evidence
is inadmissible under the Confrontation Clause de novo. State v. Zamarripa, 2009-
NMSC-001, ¶ 22, 

, 

.

{7}     The Confrontation Clause of the United States Constitution states that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him [or her].” U.S. Const. amend. VI. Accordingly, courts cannot
admit into evidence any “out-of-court statement that is both testimonial and offered to
prove the truth of the matter asserted . . . unless the declarant is unavailable and the
defendant had a prior opportunity to cross-examine the declarant.” Navarette, 2013-
NMSC-003, ¶ 7 (citing Crawford v. Washington, 

 (2004)). Defining a
statement as testimonial requires analyzing it under the “primary purpose” test: “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.” Id. ¶ 8. “[T]he Confrontation Clause is violated only if the
testimonial statement is offered to prove the truth of the matters asserted.” Id. ¶ 12.

{8}     Especially relevant for cases such as this and Carmona, “an out-of-court
statement that is disclosed to the fact-finder as the basis for an expert’s opinion is
offered for the truth of the matter asserted.” Navarette, 

. To
reiterate then, the declarant of some determinative fact on which an expert opinion turns
“must testify at trial and be subject to cross-examination, or alternatively must be
unavailable, and the defendant must have had a prior opportunity to cross-examine the
declarant.” 

{9}     In Carmona, we contemplated a set of facts very similar to those presented here.
The state sought admission of DNA evidence collected from a minor victim in a SANE
exam—again performed by SANE Lydia Vandiver—following Vandiver’s passing,
depriving the defendant of an opportunity to cross-examine her at his ensuing trial. See
Carmona, 

. In the suppression hearing, the former director of
the Albuquerque SANE Collaborative testified to the process Vandiver would have used
to collect the evidence. Id. ¶¶ 5-9. The state offered testimony of chain of custody
witnesses regarding the subsequent DNA testing. Id. ¶ 10. This Court upheld the district
court order suppressing the DNA expert’s opinion because the basis for that opinion
included testimonial statements from SANE Vandiver that upon admission at the
defendant’s trial would violate the Confrontation Clause. Id. ¶ 42. We concluded that the
plainly stated principles in Navarette indicate that “the Confrontation Clause prohibits
the admission of DNA evidence collected by an unavailable SANE and any expert
testimony based thereon when the primary purpose animating the SANE’s collection of
such evidence is to assist in the prosecution of an individual identified at the time of the
collection.” Carmona, 

. The only factual distinction of
consequence is that in Carmona, the perpetrator was known at the time of the SANE
exam. Id. ¶ 2.

Unidentified Perpetrator

{10} The State argues that Carmona does not apply to this case because the
perpetrator in the instant case was unknown at the time of DNA collection, unlike in
Carmona—a status directly observed to be of import in Carmona’s holding. The State
points out that in both Navarette and Carmona, the perpetrator was known at the time of
the autopsy and SANE exams. See Navarette, 

; Carmona,

. In the State’s view, Carmona only directly applies to cases where
the perpetrator is “identified at the time of the collection.” 

. The
State also looks to Navarette for support, relying on our Supreme Court’s clarifications
of the United States Supreme Court’s fractured opinion in Williams v. Illinois. 

 (2012). “[E]ven if a statement . . . does not target a specific individual, the statement
may still be testimonial.” Navarette, 

 (emphasis added). The State
posits that the word “may” is permissive, so statements targeting nonidentified
individuals are not necessarily testimonial.

{11} The State is correct in that neither Navarette nor Carmona produce a bright-line
rule for whether statements made by a SANE examiner against unidentified individuals
are testimonial for Confrontation Clause purposes. But that alone does not mean that
the constitutional principles at play within those cases are not equally applicable here.
As was the case in Carmona, Navarette again guides our analysis on what constitutes
testimonial evidence: “Statements are testimonial when the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal
prosecution.” Navarette, 

 (alteration, omission, internal quotation
marks, and citation omitted). In Carmona, we held that there was “no doubt that the
[SANE nurse’s] statements were made with the primary purpose of establishing a fact—
that [the d]efendant’s DNA was found on [the victim]—for use in a future criminal
proceeding against [the d]efendant.” 

, ¶ 38. In the recent case of State
v. Tsosie, our Supreme Court agreed with our assessment that “statements relating to
the requested swabs [in a SANE exam] were clearly for forensic purposes,” even when
the primary holding of that case permitted many victim statements to a SANE to be
admitted for nontestimonial purposes. 

, ¶¶ 112, 114, 

.
Tsosie too, however, related to a known defendant at the time the SANE exam was
conducted. Id. ¶ 18.

{12} Here, testimony from the former SANE executive director indicated that SANE
Vandiver placed an evidence tag on this rape kit, placed it in an evidence locker, and
that a chain of custody identified who had possession of the kit. The former executive
director referred to SANE exam kits as “evidence.” Regardless of whether the
perpetrator’s identity was known or not, the clinic used the same basic terms to refer to
the rape kit as if they were preparing for a future criminal proceeding. SANE Vandiver’s
DNA collection process described by the director was meant to collect evidence and
relay it to law enforcement officials. Indeed, nothing about the process, SANE
Vandiver’s statements, or anything related to the test kit was meaningfully different from
the acquisition of the same evidence in Carmona. More notably, nothing was done
differently based upon the absence of a known individual or suspected perpetrator.
Thus, in all applicable respects, we find this factual scenario to be analogous to
Carmona. Regardless of whether the perpetrator was known, a SANE examination was
conducted primarily to produce admissible evidence so that the perpetrator would
eventually be prosecuted for the alleged crime.

{13} This outcome comports with our Supreme Court’s guidance in Navarette under
the seventh principle gleaned from Williams: “[A]n out-of-court statement that is
disclosed to the fact-finder as the basis for an expert’s opinion is offered for the truth of
the matter asserted.” Navarette, 

. The Court distilled this principle
from the four dissenting justices in Williams, combined with Justice Thomas’s
concurrence with the judgment: “‘[t]here is no meaningful distinction between disclosing
an out-of-court statement so that the fact[-]finder may evaluate the expert’s opinion and
disclosing that statement for its truth.’” Navarette, 

 (quoting
Williams, 

 (Thomas, J., concurring in the judgment)). Offering the rape
kit swabs in this case as the basis of an expert witness’s testimony for a DNA
comparison—like in Carmona—effectually would offer the swabs for the truth of the
matter asserted, that they contained DNA from Victim’s SANE examination. Otherwise,
the expert’s testimony would be irrelevant to the case at hand. See Carmona, 2016-
NMCA-050, ¶ 37. Unlike a circumstance where the item tested for DNA evidence had
characteristics independently identifiable by a victim, such as a piece of the victim’s
clothing, the swabs in this case are nondescript medical objects that are irrelevant
without the testimony of SANE Vandiver.

{14} The State’s interpretation of Carmona emphasizes that we relied on the fact that
the individual was identified to support the holding that the statements were testimonial
in nature, but we do not view our holding so narrowly. See id. ¶ 38. Rather, in analyzing
the context of the statements for their primary purpose, we also considered that the
DNA expert testified that the SANE exam’s primary purpose was for use in future
criminal prosecution and that the victim did not require additional medical attention. Id.
The evaluation in Carmona was not an elemental analysis, but rather a set of collective
circumstances this Court identified. The suspect’s identity, the expert testimony, and the
lack of medical necessity were among countless considerations that could be analyzed
in a highly fact-dependent determination such as the primary purpose test. Regardless
of whether the perpetrator’s identity was known, the SANE examination was conducted
with the primary purpose that the person whose DNA contributed to that present on the
swab could be prosecuted for the alleged crime. It is apparent to us that SANE Vandiver
made the statements associated with her use of the swab during Victim’s exam
“primarily intending to establish some fact with the understanding that the statement
may be used in a criminal prosecution.” See Navarette, 

. That
Defendant’s identity was unknown at the time of the SANE examination does not
change enough to justify a departure from the outcome in Carmona.

{15} Insofar as the State argues that the district court misinterpreted Navarette,
Carmona, or Williams, we are unconvinced. Foremost, applying the principles of New
Mexico Confrontation Clause jurisprudence as already described, SANE Vandiver’s
statements comfortably fall within the boundaries of Confrontation Clause material. The
State’s attempts to distinguish Navarette by claiming it is unsupported by a sufficient
number of justices in Williams appears to ask us to overrule our Supreme Court’s
decision, which we cannot do. “Appeals in this Court are governed by the decisions of
the New Mexico Supreme Court—including decisions involving federal law, and even
when a United States Supreme Court decision seems contra.” Dalton v. Santander
Consumer USA, Inc., 

, 

 (internal quotation marks
and citation omitted), rev’d on other grounds, 

, 

. To find
that the State’s articulation of the holding in Williams controls in this case would
contradict the seventh principle espoused in Navarette, which we cannot and will not
consider. See State ex rel. Martinez v. City of Las Vegas, 

, 

, 

 (stating that the Court of Appeals is bound by Supreme Court
precedent). It is apparent to us that the established Confrontation Clause jurisprudence
of New Mexico indicates that these statements are testimonial hearsay that cannot be
subject to cross-examination to satisfy the Confrontation Clause. If change is to come to
this analytic framework established in New Mexico jurisprudence, it begins with
Navarette and therefore must come from our Supreme Court. Until then, we must
conclude the district court did not err in suppressing SANE Vandiver’s statements as to
the evidence swabs.

Ongoing Emergency Exception

{16} We next turn to the State’s argument that the district court erred in suppressing
SANE Vandiver’s statements because they fall into the ongoing emergency exception to
the Confrontation Clause analysis. The State argues that Vandiver’s statements were
made to assist law enforcement in protecting both Victim and the public from a serial
stranger-rapist. “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.” Davis v.
Washington, 

 (2006). “The existence of an ongoing emergency is
relevant to determining the primary purpose of the interrogation because an emergency
focuses the participants on something other than proving past events potentially
relevant to later criminal prosecution.” Michigan v. Bryant, 

 (2011)
(alteration, internal quotation marks, and citation omitted). “Rather, [the emergency]
focuses [participants] on ending a threatening situation.” 

 (internal quotation marks
and citation omitted). “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-of-court substitute for trial testimony.” Ohio v. Clark, 

(2015) (alteration, internal quotation marks, and citation omitted).

{17} In Bryant, the United States Supreme Court determined there to be an ongoing
emergency when “an armed shooter, whose motive for and location after the shooting
were unknown, had mortally wounded [the victim] within a few blocks and a few minutes
of the location where police found [the victim].” 

. As our Supreme Court
described Bryant, “the Court first looked to the circumstances surrounding the
interrogation to determine if there was an ongoing emergency, then viewed the conduct
of the interrogators and the declarant in light of that determination.” State v. Largo,

, 

. “In Bryant, the Court looked to the type and
scope of the danger posed to the victim, to the public, and the police to determine the
existence of an ongoing emergency.” Largo, 

. The Court also
looked to the existence of the suspect’s known motives, use of a weapon, physical
separation from attacker, and the formality of the interrogation. Id. ¶¶ 13-14.
Accordingly, the Court found that a mortally wounded victim’s statements to a 911
operator about the identity of an armed shooter a few minutes after the attack were
“nearly identical” to the relevant circumstances in Bryant. Largo, 

.

{18} We acknowledge the complexity of applying the ongoing emergency exception to
statements by a SANE examiner when the doctrine primarily has been applied to
conversations between victims and first responders. It is true that the United States
Supreme Court has noted that statements made to individuals who are not law
enforcement officers “are much less likely to be testimonial than statements to law
enforcement officers.” Clark, 

. For example, in evaluating whether a
child’s comments to a teacher were testimonial, the Court looked to the ongoing nature
of the potential abuse, the imminent release of the child to a potential abuser, the child’s
security, and the risk to other children. See 

. Still, the Court’s inquiry focused
on whether the statements were taken for the primary purpose of gathering evidence.
See 

 Our Supreme Court recently clarified the dual nature of a SANE exam—both for
medical care and forensic investigation—in Tsosie. See 

. In Tsosie, the
Court explained that many statements a victim makes to a SANE nurse do circumvent
the Confrontation Clause analysis because they are made for medical diagnosis and
thus not testimonial hearsay. Id. ¶ 114. But the Court was clear that the admission of
evidence considered in Tsosie was not a “statement[] relat[ed] to the requested swabs,”
which were instead “clearly for forensic purposes.” Id. ¶ 112.
{19} The State asserts SANE Vandiver’s statements associated with the swabs were
collected to protect both Victim and the public from a likely serial stranger-rapist.
Starting with the formality of the declarant’s conduct, we note that evidence proffered in
this case was from a formal process of evidence collection, more akin to questioning in
a police station than the other statements made by Victim in the SANE exam for
medical diagnosis. See id. ¶¶ 37, 78. The emergency associated with the crime in this
case—despite its violence—had very likely ended if SANE Vandiver was attesting to
statements that warranted inclusion on evidence tags. Such statements suggest that the
emergency had ended, and the statements were “to establish or prove past events
potentially relevant to later criminal prosecution.” See Davis, 

. By the
time of the SANE exam, Victim had already physically removed herself from the location
of the assault and gone to the police. Moreover, the physical and temporal separation
informs our perspective that the emergency to some extent had ended, even if there
was a potential for the rapist to confront Victim or another member of the public at some
unknown point in the future. Although a stranger-rapist on the loose decidedly presents
a threat to the community, the risk does not present the same threatening situation as
Bryant or Largo. See Bryant, 

; Largo, 

.

{20} Although SANE nurses do function in a dual role, this case presents only
statements made in SANE Vandiver’s forensic role of “collecting and preserving
evidence of value to the legal system.” See Tsosie, 

, ¶ 44 (internal
quotation marks and citation omitted). The specific statements that the State is trying to
submit to the district court include evidence tags. SANE Vandiver’s statements
contained information to establish a chain of custody over a perpetrator’s DNA primarily
for authenticating evidence in a criminal prosecution. Especially in light of how the
SANE clinic describes the exam kits, we hold that SANE Vandiver’s statements were
made to collect evidence for the future prosecution of the unknown and yet
unapprehended rapist and not as a communication made during an ongoing
emergency. While the unknown identity of the perpetrator in this case likely did motivate
an urgency to find the perpetrator and prevent future harm to Victim or other potential
victims, it cannot be said that these statements were made with any primary purpose
other than future prosecution.

{21} The State should use every tool in its arsenal to identify and apprehend unknown
assailants, but that does not mean that the constitutional standards for introducing
testimony at trial are waived merely because of the degree of difficulty facing
investigators at the onset of investigation. We are unpersuaded that the unknown
identity of the perpetrator at the time of Victim’s examination changes the purpose for
why SANE Vandiver collected the DNA evidence in this case. It is only logical to infer
that when SANE Vandiver placed the swabs from Victim’s exam into the collection
bags, she did so with the apparent purpose to prepare the evidence for later use in a
subsequent criminal prosecution. Now, the State wishes to offer these out-of-court
statements for the truth of the matter asserted. Without Defendant having an opportunity
to cross-examine SANE Vandiver, applicable precedent compels upholding the
suppression of SANE Vandiver’s statements associated with the collected swabs of
DNA evidence.
CONCLUSION

{22}   For the above reasons, we affirm.

{23}   IT IS SO ORDERED.

J. MILES HANISEE, Judge

WE CONCUR:

JACQUELINE R. MEDINA, Judge

MEGAN P. DUFFY Judge, specially concurring

DUFFY, Judge (specially concurring).

{24} I concur with today’s opinion, but write separately because New Mexico’s body of
confrontation jurisprudence since Carmona was decided leaves me with reservations
about its continued application.

{25} Carmona held that a SANE nurse’s act of placing swabs in pre-marked
envelopes indicating the location of the body from which they were taken constitutes
testimonial hearsay. 

, ¶¶ 7, 40. The import of this holding is that the
SANE nurse who collected the swabs must appear and testify, otherwise the DNA
analysis developed from the swabs is inadmissible. Because the SANE nurse who had
conducted the examination in Carmona had passed away before the case went to trial,
the State was effectively prohibited from introducing DNA evidence linking the
defendant to his alleged victim.

{26} Carmona’s rationale was grounded in general principles distilled from then-recent
United States Supreme Court Confrontation Clause cases, and from our Supreme
Court’s opinion in Navarette, which similarly went to great lengths to make sense of the
fractured federal cases. It was no easy task to unearth general principles that received
the support of at least five justices. That notwithstanding, there is one common thread
among all of the federal cases: they involved testimony from an analyst who developed
a report based on samples gathered from another source, and not, as here, the person
who collected the original sample. See Melendez-Diaz v. Massachusetts, 

(2009) (addressing laboratory technician’s report certifying chemical analysis of cocaine
found on the defendant); Bullcoming v. New Mexico, 

 (2011) (addressing
certificate of analysis containing statements from lab technician who certified the blood
alcohol content in the defendant’s blood sample); Williams, 

 (addressing
a laboratory report containing a DNA profile developed from samples collected from
swabs taken from the victim).

{27} Since Carmona, New Mexico courts have decided that a phlebotomist who
collects a blood sample need not testify at a DWI trial in order to admit the laboratory’s
blood-alcohol report. See State v. Franklin, 

, 

; State
v. Costello, A-1-CA-35091, mem. op. ¶ 12 (N.M. Ct. App. Feb. 19, 2018)
(nonprecedential) (“[T]he blood-draw procedures and qualifications of the phlebotomist
are non-testimonial facts that do not implicate the Confrontation Clause.”). We
recognized that the phlebotomist would offer nothing more than “preliminary factual
evidence to establish a foundation for the admission of evidence to be used at trial,”
Costello, A-1-CA-35091, mem. op. ¶ 15, and “once the state ha[s] satisfied the
foundation requirements, ‘the need to cross-examine the blood drawer is reduced to
questions of the chain of custody,’ which ‘does not provide grounds for a confrontation
objection to the admissibility of a blood-alcohol report.’” Franklin, 

(quoting State v. Nez, 

, 

, 

).
Rather than requiring the phlebotomist’s testimony, we have said that a police officer
who witnessed the administration of the blood draw can establish the necessary
foundation. Franklin, 

.

{28} It is not apparent what distinction we could draw that would compel a different
result for swabs collected by a SANE nurse. Both a blood sample and swabs collected
during a SANE exam contain “statements” identifying the source of the evidence. See
Carmona, 

. Given this, it is unclear why information identifying the
source of the sample would amount to testimonial hearsay in the case of a SANE exam,
but not for a blood draw in a DWI case. Rather, the identifying information on the
envelopes containing the swabs implicates the authenticity of the sample—a
foundational matter. And if the SANE nurse is unavailable to testify, the victim could
establish the foundation necessary for admission based on personal observation, much
like a police officer in the blood-draw scenario. This approach is in keeping with the
plurality’s observation in Melendez-Diaz, that not everyone “whose testimony may be
relevant to establishing the chain of custody, authenticity of the sample, or accuracy of
the testing device, must appear in person as part of the prosecution’s case.” 

 n.1.

{29} Since Carmona, this same issue involving the same SANE nurse has come up
again and again. Cf. Carmona, 

 (noting that this particular SANE
nurse performed a third of the total examinations in any given month). Early on, the
State asked this Court to revisit and overturn Carmona, but this Court continues to
adhere to its precedent, and the State now seems to have abandoned that effort. See,
e.g., State v. Martinez, A-1-CA-35640, mem. op. ¶¶ 11-16 (N.M. Ct. App. May 15, 2019)
(nonprecedential). However, in light of our more recent Confrontation Clause case law,
it is perhaps time that Carmona received another look.

MEGAN P. DUFFY, Judge