State v. Godinez

                                                                 Office of the
                                                                                    New Mexico
                                                                     Director       Compilation
                                                                                    Commission
                                                                  2025.02.05
                                                             '00'07- 09:31:41
             IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: October 21, 2024

No. S-1-SC-39151

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

LUCIO GODINEZ JR.,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
James W. Counts, District Judge

Hector H. Balderas, Attorney General
John Kloss, Assistant Attorney General
Albuquerque, NM

for Petitioner

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Respondent

                                         OPINION

ZAMORA, Justice.

{1}     The question presented in this appeal is whether the Court of Appeals misapplied
State v. Guthrie, 

, 

, 

, when it held that
Defendant Lucio Godinez Jr.’s right to due process was violated by the admission of
testimonial evidence at his probation revocation hearing, without an opportunity for
Defendant to cross-examine the declarant. See State v. Godinez, 

, 

. The district court revoked Defendant’s probation, based in part on
out-of-court statements made by his adult daughter (Daughter) during a forensic
interview. The Court of Appeals reversed, announcing a bright-line rule requiring
confrontation when testimonial hearsay is admitted accusing a probationer of a new
crime, unless the hearsay is not only reliable, but supported by “unequivocal”
corroborating evidence. Id. ¶ 19.

{2}     We agree with the Court of Appeals that the challenged testimony violated
Defendant’s right to due process, and we therefore affirm. But we disavow the Court of
Appeals’ bright-line rule and clarify that due process in a probation revocation hearing
requires a case-by-case analysis of “the need for, and the utility of, confrontation of a
live witness in the context of a particular case.” Guthrie, 

.

I.      BACKGROUND

{3}     Defendant began serving a five-to-twenty-year probation sentence in August
2014 1 as a result of a no-contest plea to two counts of second-degree criminal sexual
contact of a minor. Approximately four years later and while Defendant was still on
probation, the State arrested and indicted him on two counts of second-degree criminal
sexual penetration of his adult Daughter. The State also petitioned to revoke his
probation for violating two conditions of his supervised release: (1) “violat[ing] any of the
laws . . . of the State of [New Mexico]” by sexually assaulting Daughter during an
authorized visit to his home and (2) failing to inform his probation officer before
Daughter’s visit that she has autism and the “mind of a 10 year old.” Upon arrest,
Defendant denied the accusations and called Daughter a liar.

{4}    The district court held an adjudicatory hearing on the State’s petition for
probation revocation at which the State called the following witnesses to testify:
Daughter’s mother (Mother), the sexual assault nurse examiner (SANE) who performed
Daughter’s examination, the forensic interviewer who interviewed Daughter about the
alleged assault, and the New Mexico State Police agent who investigated the report of
Daughter’s sexual assault. 2 Defendant did not call any witnesses or testify on his own
behalf. Daughter did not testify.

{5}    Mother, who was the State’s first witness, testified as follows. Daughter has
autism and functions “at a first-grade level.” At the time of the hearing, Daughter had
been in counseling on and off for approximately three years for reasons unrelated to her
developmental delay. After the alleged assault, Daughter’s counselor recommended to
Mother that Daughter not be called to testify because she “couldn’t stand trial, that she
would go bad.” According to Mother, Daughter is afraid of Defendant and said that “he
had hit her.”

{6}    At the time of the alleged assault, Daughter was twenty-two years old and was
staying with Defendant during a planned two-week visit. Daughter had stayed with
Defendant two or three times in the past and always returned happy and told Mother

1The record contains a discrepancy as to when Defendant began his probation. For purposes of this
Opinion, we adopt the date established by the testimony of the probation-parole officer, August 29, 2014.
2The State also called Defendant’s probation officer as a witness, who testified primarily in support of
Defendant’s alleged violation for failing to disclose Daughter’s autism and developmental delay. The
district court did not find a violation based on that accusation, and we do not discuss it further in this
appeal.
everything she had done on her visits. This time, Daughter called Mother daily and was
happy, including on Sunday evening, two days before her visit was scheduled to end.
Daughter did not call Mother the next morning, so Mother attempted to call her instead.
After receiving no answer, Mother called Defendant and demanded to speak to
Daughter. When Daughter got on the phone, she was hysterical and told Mother to pick
her up.

{7}    Mother picked up Daughter that same day (Monday) around lunchtime and
noticed that she was crying and did not hug Defendant or say goodbye, which was
unusual. Daughter said she was tired and “that she never wanted to go back with her
dad.” When Daughter got home, she was “distraught” and continued to behave
unusually. Instead of watching television or playing with dolls, she followed Mother
around the house or sat on the couch. Daughter would also cry loudly in the shower and
wake up at night, hit the table, scream, and say “why, why, why Dad?” Mother
eventually asked, “did your dad do anything to you?” Daughter “pointed to her behind”
and asked to talk to the police. Later, Daughter told Mother that “it” had happened “two
times,” that Defendant had “hit her,” and that Defendant had told her that she could not
call Mother. Defendant did not object to Mother’s testimony about these interactions
with Daughter.

{8}    Mother also testified that, after Daughter asked to talk to the police, Mother
contacted Daughter’s counselor, who helped arrange an interview at the Kid’s Inc. safe
house and a sexual assault examination for Daughter. When Mother and Daughter
arrived at the safe house, a State Police agent was there and asked Mother if she had
any clothing from Daughter’s visit with Defendant. The agent later went to Mother’s
house and took Daughter’s suitcase, which Daughter had not unpacked yet. When the
agent looked through the suitcase, Mother noticed that Daughter’s underwear “was
bloody.” According to Mother, Daughter was not on her period while she was with
Defendant. Mother testified that the blood could not have been the result of Daughter’s
period because her period came at the end of the month, after she returned home.

{9}    The State next called the SANE, who testified about her examination of Daughter
four days after she returned home from Defendant’s house. Daughter did not provide a
narrative of what had happened, but she nodded “yes” that the assault had occurred on
Sunday. Daughter also said that she had menstruated on Sunday, the day of the
alleged assault. Daughter cried throughout the exam and “trembled” during the anal
exam. Daughter had faint bruising near her genitals and light or yellow bruises on her
buttocks and thighs, areas where the SANE had seen bruising in other sexual assault
exams. In addition, Daughter had vaginal redness, vaginal discharge that appeared to
be from a yeast infection, and excoriated skin around the anus, which also could have
been from a yeast infection. Daughter had no visible injuries to her vaginal or anal
areas, where the skin tends to heal within forty-eight hours of injury.

{10} The State next called the forensic interviewer to testify about Daughter’s
interview, which took place on the same day as the SANE exam. When the interviewer
began to testify about what Daughter had told her during the interview, Defendant
objected on hearsay grounds and because he would not have an opportunity to cross-
examine Daughter at the hearing. The district court overruled both objections, reasoning
that the Rules of Evidence and the Sixth Amendment right to confrontation do not apply
in probation revocation hearings and because Daughter’s out-of-court statements were
supported by corroborating evidence.

{11} The forensic interviewer then gave the following summary of Daughter’s
interview:

        A: Ultimately [Daughter] said that her butt got hurt. I asked her how her
        butt got hurt. We had to walk through it basically like I would probably a
        five or six year old. I had to ask her . . . she told me about two different
        incidents. I asked her if it happened one time or more than one time; she
        said “two.” I asked her where it happened: “in the living room and in her
        room.” I had to go through the whole, were your pants on or were your
        pants off; she said “off.” I said were your panties on or were they off, and
        they were off. We talked about how dad was. Dad’s pants were off. Dad’s
        underwear were off. The instance she was laying face down and he was
        behind her and she said that he was spanking her.

        Q: Was she able to explain what she meant by that?

        A: She said it hurt. But when I said on the outside or on the inside she said
        it hurt on the inside. I said who said it was a spanking and she said her
        dad called it a spanking.

The forensic interviewer continued, saying that she had asked Daughter to identify what
body parts Defendant had used to “spank” her and what body parts had been hurt.
Daughter circled the penis on a male diagram and underlined the buttocks on a female
diagram. The district court admitted both diagrams into evidence. Daughter also said
that the two incidents had happened on different days and that when “her butt got hurt,
no one was home but her and Dad.” 3

{12} The last witness to testify was the State Police agent who investigated the
alleged assault. The agent responded to a phone call from the forensic interviewer
informing the agent that she was about to interview Daughter about an incident that had
not yet been reported to law enforcement. The agent went to the safe house and, after
Daughter’s interview, asked Mother where the clothing was that Daughter had worn at
Defendant’s house. The agent later went to Mother’s house and picked up the clothing,
which Mother said had not been washed, and sent it to the state crime lab for DNA
testing. 4 According to the lab report, no semen was detected, but unidentified male DNA

3The district court also admitted an audio-visual recording of the forensic interview but did not view the
recording before rendering a decision. We therefore do not consider it in our analysis.
4Defendant objected to this evidence on confrontation grounds in the Court of Appeals. The Court of
Appeals assumed “without deciding that there was good cause to dispense with confrontation as to the
crime lab analyst” who performed the analysis of the underwear for the purpose of analyzing Daughter’s
statements to the forensic interviewer. Godinez, 

, ¶ 20 n.6. Defendant did not challenge
admission of DNA evidence in this Court. See State v. Sanchez, 

, 

,
was found on four pairs of Daughter’s underwear, including in the “inside crotch area.”
Although most of the DNA was insufficient for conventional testing, DNA from two pairs
of the underwear might have been sufficient for advanced testing, and a sample of
Defendant’s DNA had been taken and sent to the crime lab for that purpose. But at the
time of the revocation hearing, no other DNA test results were available.

{13} The agent also testified that he had interviewed and arrested Defendant a few
days after Daughter’s forensic interview. Defendant admitted that he was home alone
with Daughter on Sunday because his fiancée had been bitten by a stray dog and
hospitalized on Saturday evening for the next four days. He also said that Daughter had
not been left alone with anyone else after his fiancée was hospitalized. Defendant
noticed a change in Daughter’s demeanor on Sunday, but he did not know what was
going on with her or what had happened. Defendant said he never hit Daughter.

{14} The district court revoked Defendant’s probation based on a reasonable certainty
that Defendant had violated his probation by sexually assaulting Daughter, by “criminal
sexual contact at minimum, more likely penetration.” As part of that determination, the
district court found that Daughter’s “mental capacity was not such that she could give
consent.” The district court reiterated that the Confrontation Clause does not apply to
probation revocation proceedings and that none of the testimony required an
opportunity to cross-examine Daughter. The district court also emphasized that, even if
it were wrong and confrontation was required, “there were a number of statements that
were nontestimonial in nature—spontaneous statements by [Daughter]—that would not
invoke the Confrontation Clause even if it were available in this case.”

{15} The district court then summarized the evidence that corroborated Daughter’s
statements to the forensic interviewer, including the “night and day change” in
Daughter’s demeanor between her phone calls with Mother on Sunday and Monday; the
blood in her underwear that, based on Mother’s credible testimony, was not likely the
result of Daughter’s menstrual cycle and could be explained by sexual assault; the male
DNA found in four pairs of Daughter’s underwear when no male other than Defendant
was alone with Daughter “during the relevant times”; and Daughter’s physical injuries as
reported by the SANE, including bruises of various colors on her genitals, buttocks, and
thighs. The district court revoked Defendant’s probation and ordered Defendant to serve
the sixteen-year suspended period of his original prison sentence. The State
subsequently dismissed without prejudice the two counts of second-degree criminal
sexual penetration against Defendant.

{16} Defendant appealed his probation revocation, arguing under Guthrie that
admission of Daughter’s out-of-court statements to the forensic interviewer, without an
opportunity to cross-examine Daughter, violated his right to due process. The Court of
Appeals agreed and reversed. Godinez, 

. Recognizing that Guthrie
requires a case-by-case analysis of the need for, and utility of, confrontation, the Court
of Appeals nonetheless announced a bright-line rule for cases in which (1) revocation is

 (holding that laboratory reports are admissible in probation revocation hearings if the State
complies with certain procedural requirements).
sought for the commission of an unadjudicated crime, (2) the challenged hearsay
statements “are central to the state’s case [and] not inherently reliable,” and (3) the truth
of the statements depends on “a subjective judgment of the declarant’s credibility.” Id.
¶¶ 14, 19. In these specific circumstances, confrontation is required unless the State
introduces “unequivocal and reliable corroborating evidence . . . [that] compellingly
establishes that the crime occurred and that the probationer committed it.” Id. Applied to
this case, the Court of Appeals reviewed the corroborating evidence cited by the district
court and held that, because all of it was “subject to conflicting interpretations,” the
evidence did not “compellingly establish the truth of the allegation so as to render
confrontation unnecessary.” Id. ¶ 20. Accordingly, Defendant’s right to due process was
violated by admitting Daughter’s out-of-court statements without an opportunity for
cross-examination. Id. ¶ 23. We granted certiorari and affirm for the reasons set forth in
this opinion.

II.    DISCUSSION

A.     Standard of Review

{17} A probationer’s right to confrontation is a legal question that we review de novo,
while deferring to the district court’s factual findings if supported by substantial
evidence. See Guthrie, 

; see also State v. Almanzar, 2014-
NMSC-001, ¶ 9, 

 (“This Court reviews factual matters with deference to the
district court’s findings if substantial evidence exists to support them, and it reviews the
district court’s application of the law de novo.” (citation omitted)). The State bears the
burden of proving a probation violation to a reasonable certainty, a determination that
we review for an abuse of discretion. See, e.g., State v. Aslin, 

, ¶ 8,

, reversed on other grounds, 

, 

.

B.     Guthrie Requires a Case-by-Case Determination of Whether Due Process
       Requires Confrontation in a Probation Revocation Proceeding

{18} The State seeks reversal of the Court of Appeals, arguing that the district court
properly concluded that it had sufficient corroborating evidence to “dispense with
confrontation in this case” without violating due process. The State also argues that the
Court of Appeals misapplied Guthrie and “conducted a divide-and-conquer analysis of
the various pieces of corroborating evidence in which it reweighed that evidence and
substituted its judgments on credibility and reliability for those of the district court.”
Because Guthrie is central to our analysis in this opinion, we first review its facts and
holding before we consider the State’s arguments.

{19} “[T]he revocation of parole [or probation] is not part of a criminal prosecution and
thus the full panoply of rights due a defendant in such a proceeding does not apply to
parole [or probation] revocations.” Morrissey v. Brewer, 

 (1972)
(citation omitted); see also Gagnon v. Scarpelli, 

 (1973)
(perceiving no “difference relevant to the guarantee of due process between the
revocation of parole and the revocation of probation”). In particular, a probationer’s right
to confrontation is not the inflexible right “guaranteed every accused in a criminal trial”
under the Sixth Amendment. Guthrie, 

; see also, e.g., Bullcoming
v. New Mexico, 

 (2011) (“[T]he [Confrontation] Clause does not
tolerate dispensing with confrontation simply because the court believes that
questioning one witness about another’s testimonial statements provides a fair enough
opportunity for cross-examination.”). Rather, a probationer’s confrontation right arises
under the Fourteenth Amendment as a matter of due process. Guthrie, 2011-NMSC-
014, ¶ 12 (discussing Morrissey, 

). Due process “is flexible and
calls for such procedural protections as the particular situation demands.” Guthrie,

 (internal quotation marks and citation omitted). As a general rule
however, due process guarantees a probationer “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for
not allowing confrontation).” 

 ¶ 12 (quoting Gagnon, 

 (internal
quotation marks omitted)).

{20} Guthrie considered whether the good-cause exception for not requiring
confrontation of the defendant’s accuser was satisfied in that case. 

. At issue was whether the defendant’s confrontation right was violated by the
admission of the probation supervisor’s testimony about a facsimile transmission from a
residential treatment center saying that the defendant had failed to complete treatment,
a required condition of his probation. Id. ¶ 46. Though the probation supervisor did not
have personal knowledge of the alleged violation, the defendant’s probation officer was
not available to testify. Id. ¶¶ 1, 46. The district court admitted the fax through the
testimony of the supervisor of the defendant’s probation officer, without requiring live
testimony from a treatment-center representative or the probation officer himself. Id. ¶¶
1, 47.

{21} To decide Guthrie and “guide the due process inquiry” in future cases, id. ¶ 2, the
Court adopted a practical, “need-for-confrontation analysis,” which it described as a
“spectrum or sliding scale with extremes at either end and much balancing and
weighing of competing interests in between.” Id. ¶ 40. At the “‘no good cause’ end of the
spectrum,” where confrontation must be allowed, the evidence is “contested by the
defendant, unsupported or contradicted, and its source has a motive to fabricate,” and
“it is about a subjective, judgment-based observation that is subject to inference and
interpretation, and makes a conclusion that is central to the necessary proof that the
defendant violated probation.” Id. ¶ 41. At the other end of the spectrum, where there is
good cause to not require confrontation, “the [s]tate’s evidence is uncontested,
corroborated by other reliable evidence, and documented by a reliable source without a
motive to fabricate,” or it “is about an objective conclusion, a routine recording, or a
negative fact, making the demeanor and credibility of the witness less relevant to the
truth-finding process.” Id. ¶ 40.

{22} The facts in Guthrie fell “decisively” on the good cause end of the spectrum, such
that confrontation was unnecessary. Id. ¶ 45. The need for, and utility of, confrontation
was de minimis in that case because (1) the primary allegation at issue—that the
probationer failed to complete residential treatment—was uncontested, see id.; (2) the
allegation concerned “an objective, negative, and rather routine fact [that] was easily
and reliably established to a reasonable degree of certainty by a written statement,” id.
¶ 46; (3) “little to nothing could be gained by [live] testimony” when neither declarant
associated with the fax “had any known motive to fabricate or deceive” about the
allegation, id. ¶ 47; and (4) the truth of the allegation was self-evident from the time and
place of the probationer’s arrest, which was during the treatment period and away from
the treatment center, id. ¶ 48. Under these circumstances, including that proof of the
violation was “incontrovertibl[e],” good cause supported admitting the fax without
requiring confrontation. Id. ¶ 49.

{23} Guthrie was also careful to illustrate the counter-example, when confrontation
must be required. 5 The Court agreed with the result in State v. Vigil, in which the Court
of Appeals reversed an order revoking probation based solely on a confidential
informant’s “sworn, out-of-court statements accusing [the] probationer . . . of having
committed a new crime—possessing stolen property—while on probation.” Guthrie,

 (citing State v. Vigil, 

, ¶¶ 3-4, 

, 

). Because the defendant in Vigil was “unable to cross-examine his accuser,”
Guthrie, 

, the right to confrontation was “‘violated to the extent the
trial court relied on the informant’s sealed answers in revoking probation.’” 

 (quoting
Vigil, 

, ¶ 11). Guthrie emphasized that, when revocation is sought
based on an out-of-court accusation of a new, unadjudicated crime, “we would be hard
pressed to envision a situation in which personal testimony and confrontation would not
be required.” Id. ¶ 38.

{24} Between the two extremes exemplified in Guthrie, “there is no bright-line rule for
determining good cause” to not require confrontation. Id. ¶ 41. While a probationer has
a presumptive right to confrontation, the issue must be decided on a case-by-case
basis, guided by the due-process command of fundamental fairness under the
circumstances of each case. Guthrie, 

; accord State v.
Wheeler, S-1-SC-37709, dec. ¶ 17 (N.M. June 10, 2021) (nonprecedential) (“[T]here is a
rebuttable presumption that a probationer has the right of confrontation.”). The analysis
must focus “on the relative need for confrontation to protect the truth-finding process
and the substantial reliability of the [challenged] evidence.” Guthrie, 

. Guthrie thus requires a practical inquiry, keeping in mind that “‘the process should
be flexible enough to consider evidence including letters, affidavits, and other material
that would not be admissible in an adversary criminal trial.’” 

 ¶ 33 (quoting Morrissey,

). At bottom, a court must determine “the need for, and utility of,
confrontation with respect to the truth-finding process and in light of the particular case
at hand, including the specific charge pressed against the probationer.” Id. ¶ 43.




5We disagree with the Court of Appeals that this case presents “a set of facts not clearly contemplated by
the governing framework that Guthrie created.” Godinez, 

. Guthrie went to great
lengths to articulate a comprehensive framework for analyzing the need for confrontation—including in
cases where confrontation must be required—despite the straightforward inquiry in Guthrie where the
violation itself was uncontested. See 

 (“[The probationer] did not contest
the allegation that he failed to complete his treatment at the rehabilitation center, thus precluding a due
process complaint under Morrissey’s requirement for a hearing on contested facts.” (citation omitted)).
C.     Guthrie Requires Confrontation in This Case

{25} Applying Guthrie to this case, we first observe that Daughter’s statements during
the forensic interview were testimonial and would trigger a Sixth Amendment right to
confrontation were this a criminal trial. See, e.g., State v. Tsosie, 

, ¶
28, 

 (“‘[Statements] are testimonial when . . . the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal
prosecution.’” (quoting Davis v. Washington, 

 (2006) (alterations
omitted)); see also, e.g., Bobadilla v. Carson, 

 (8th Cir. 2009) (holding
that statements made during a forensic interview were testimonial when the interviewer
was acting as a “surrogate interviewer for the police” (internal quotation marks omitted)).
We therefore start with the presumption that Defendant has a due process right to
confront Daughter about her out-of-court statements to the forensic interviewer, unless
there is good cause for not requiring confrontation. See Guthrie, 

.
We also are mindful that the State sought revocation based on the accusation of a new,
unadjudicated crime. See id. ¶ 38. Accordingly, we begin our need-for-confrontation
inquiry skeptical of dispensing with confrontation in this case. Accord Wheeler, S-1-SC-
37709, dec. ¶ 21.

{26} Under our sliding-scale analysis, we look to the following list of non-exhaustive
factors in relation to the challenged evidence: (1) whether it is contested or uncontested;
(2) whether it is central or collateral to proving the alleged violation; (3) whether “it is
about a subjective, judgment-based observation that is subject to inference and
interpretation,” making the witness’s demeanor and credibility highly relevant to the
truth-finding process, or “about an objective conclusion, a routine recording, or a
negative fact, making the demeanor and credibility of the witness less relevant to the
truth-finding process”; (4) whether its source is reliable or unreliable because the source
does or does not have a motive to fabricate; and (5) whether it is corroborated by a
reliable source or is unsupported or contradicted. Guthrie, 

.

{27} The evidence challenged in this case is the forensic interviewer’s testimony
recounting Daughter’s statements during the interview. According to the interviewer,
Daughter said Defendant “spank[ed]” her on two occasions when neither was wearing
pants or underwear, that she was lying face down and Defendant was behind her, and
that her “butt got hurt,” “on the inside.” Daughter also said that Defendant had called it
“a spanking,” and she indicated on diagrams admitted into evidence that Defendant had
used his penis to “spank[]” her on the buttocks.

1.     Four Guthrie factors are supportive or neutral in relation to the
       presumptive right to confrontation

{28} Applied to this evidence, three of the factors require little analysis. First, unlike
the uncontested evidence in Guthrie, Defendant contests the truth of Daughter’s
statements to the forensic interviewer, presumptively requiring confrontation absent a
showing of good cause. Id. ¶ 35 (“[C]onfrontation[ is] only necessary when the truth of
the state’s allegations is challenged.”). Second, Daughter’s statements to the
interviewer are highly probative of the State’s accusation that Defendant sexually
assaulted Daughter, making her first-hand account “central to the necessary proof that
[D]efendant violated probation.” Id. ¶ 41. Third, far from proving “an objective, negative,
and rather routine fact” like the failure to complete residential treatment in Guthrie, id. ¶
46, Daughter’s statements to the forensic interviewer are “about [Daughter’s] subjective,
judgment-based observation[s] that [are] subject to inference and interpretation” about
what transpired. Id. ¶ 41. Her demeanor and credibility are relevant to the truth-finding
process, see id. ¶ 40, and her allegations are precisely the kind that ordinarily “must be
tested in the crucible of cross examination.” Id. ¶ 36. These factors weigh against a
finding of good cause for not requiring confrontation in this case.

{29} The fourth factor, whether the source of the evidence is reliable or unreliable
depending on the presence or absence of a motive to fabricate, weighs neutrally. As the
purported victim of a contested crime, Daughter is not a neutral or disinterested witness
whose reliability may be assumed absent evidence to the contrary. Cf. Guthrie, 2011-
NMSC-014, ¶ 27 (discussing Bailey v. State, 

, 

(1992), in which “the source of the information (the treatment center) was reliable
because it was ‘duty-bound to report . . . any failure of the probationer to comply with its
conditions for the completion of its program’”); cf. also Strickland v. Roosevelt Cnty.
Elec. Coop., 

, ¶ 24, 

, 

 (“The general rule is
that evidence given by an interested witness, even though uncontradicted, presents an
issue to be determined by the jury.”). However, we have no reason to suspect that
Daughter has a motive to fabricate, nor has the State argued that she is particularly
trustworthy. This factor thus does little to inform our analysis.

2.     While the evidence was neither unsupported nor contradicted under the
       fifth Guthrie factor, it was also not sufficiently corroborated to overcome
       the right to confrontation as to the sexual assault allegations

{30} If good cause is to be found for not requiring confrontation in this case, it must
come from the last Guthrie factor, whether the challenged evidence is corroborated by a
reliable witness or whether it is unsupported or contradicted. The State argues that
confrontation was unnecessary because of the “considerable amount of additional
evidence corroborating that [Defendant] had committed a sexual assault on [Daughter]
during his time alone with her.” Defendant argues that he denied the truth of Daughter’s
statements to the interviewer and that the other evidence was not “inherently reliable” or
sufficient to corroborate Daughter’s statements and obviate the need for confrontation.

{31} We agree that the State introduced a considerable amount of additional evidence
to support revocation, beyond Daughter’s statements to the interviewer. We also do not
reweigh or second-guess the district court’s factual findings based on that evidence,
including that there was a “night and day change” in Daughter’s demeanor, that the
blood in Daughter’s underwear was not a result of her menstrual cycle and could be
explained by sexual assault, that Daughter had physical injuries that similarly could be
explained by sexual assault, and that male DNA was found in four pairs of Daughter’s
underwear with no male other than Defendant identified as a potential source.
{32} These findings have not been challenged on appeal. 6 They also are wellsupported by other evidence not cited by the district court, including that Daughter said
Defendant hit her and that it happened two times; that Daughter would cry in the
shower, wake up screaming, hit the table, and say, “why, why, why Dad?”; that
Daughter pointed to “her behind” and asked to contact the police when Mother asked
whether anything happened at Defendant’s house; that Daughter nodded “yes” when
asked by the SANE if the assault had occurred on Sunday; that Daughter was “very
withdrawn, very upset” during the forensic interview; and that Defendant admitted he
was alone with Daughter on Sunday and that no one else was alone with her during that
time. This evidence was admitted without objection and, when combined with the
bruising observed during the SANE examination, supports an inference that Defendant
inflicted some form of physical abuse on Daughter, likely amounting to a battery. See
NMSA 1978, § 30-3-4 (1963) (“Battery is the unlawful, intentional touching or application
of force to the person of another, when done in a rude, insolent or angry manner.”). Had
the district court revoked Defendant’s probation on that basis, which also would have
been a probation violation of “any of the laws . . . of the State of [New Mexico],”
confrontation likely would not have been required. The other evidence before the district
court strongly corroborated Daughter’s statements to the interviewer for the purpose of
proving a battery.

{33} But the district court revoked probation based on a finding of “criminal sexual
contact at minimum,” and the State does not seek reversal based on evidence of a
lesser offense such as battery. The specific basis for revocation in this case is therefore
significant, given the broad discretion afforded the district court when a violation has
been established. See NMSA 1978, § 31-21-15(B) (2016) (“If the violation is
established, the court may continue the original probation or revoke the probation and
either order a new probation with any condition provided for [by statute] or require the
probationer to serve the balance of the sentence imposed or any lesser sentence.”).
Accordingly, we limit our analysis to whether the other evidence introduced by the State
rendered Daughter’s statements to the interviewer sufficiently reliable to prove the
offense of criminal sexual contact, the lowest level of offense actually found by the
district court.

{34} Focusing on criminal sexual contact, Daughter’s statements to the forensic
interviewer were the only direct evidence offered by the State to prove an essential
element of the offense under either theory set forth in the statute. See NMSA 1978, §
30-9-12(A) (1993) (defining criminal sexual contact as “the unlawful and intentional
touching of or application of force, without consent, to the unclothed intimate parts of
another who has reached his eighteenth birthday, or intentionally causing another who
has reached his eighteenth birthday to touch one’s intimate parts”); see also § 30-9-

6We caution the Court of Appeals to avoid reweighing or substituting its view of the evidence supporting
the district court’s findings when they have not been challenged on appeal. See Godinez, 2022-NMCA-
029, ¶ 20 (reviewing the corroborating evidence and concluding that it was “subject to conflicting
interpretations”). This case presents only the legal question of whether due process requires
confrontation, based on the record and the district court’s unchallenged findings. Cf. Guthrie, 2011-
NMSC-014, ¶ 49 (affirming when the district court “made no explicit findings of good cause” but when the
record supported that the probationer violated the terms of his probation).
12(E) (“‘[I]ntimate parts’ means the primary genital area, groin, buttocks, anus or
breast.”). Specifically, Daughter’s statements that she was not wearing pants or
underwear when the “spanking” occurred was the only direct evidence that Defendant
touched or applied force to her “unclothed intimate parts.” Section 30-9-12(A) (emphasis
added). Alternatively, Daughter’s notation on the male diagram that Defendant had
“spanked” her with his penis was the only direct evidence that he caused her “to touch
[his] intimate parts.” Id.

{35} Based on our de novo review, none of the other evidence reliably corroborates
Daughter’s statements that Defendant applied force to her unclothed buttocks or that he
caused her to touch his penis. The strongest evidence that may have corroborated
either accusation was the district court’s finding that unidentified male DNA was found
on four pairs of Daughter’s underwear without any male besides Defendant identified as
a potential source. But even with full deference to that finding, the probative value of the
DNA evidence was extremely limited. For example, no semen was detected, and there
was no testimony about the type or amount of DNA or how it may have been present in
Daughter’s underwear. There also was no testimony about when Daughter wore the
four pairs of underwear, whether before or after the alleged sexual assault occurred.
The DNA evidence does not sufficiently corroborate Daughter’s out-of-court description
of a touching that would have met the elements of criminal sexual contact.

{36} We have previously held that a child’s out-of-court statements to a forensic
interviewer were sufficiently reliable to be admissible without requiring confrontation
where the right to confrontation similarly arises as a matter of due process. See State
ex rel. Children, Youth & Families Dep’t v. Pamela R.D.G. & Frank G (In re Pamela
A.G.), 

, 

, 

 (“The opportunity to confront
a witness in a civil neglect and abuse proceeding is not an absolute right. Instead the
right requires that parents be given a reasonable opportunity to confront and cross-examine a witness, including a child witness.”). In Pamela A.G., the district court
admitted testimony from four witnesses about statements made by a four-year-old child
that “were unambiguous in both the description of the [sexual] abuse and the identity of
the abuser.” Id. ¶ 16. We agreed that due process did not require confrontation and
highlighted the evidence in the record that provided “the circumstantial guarantee of
trustworthiness” to obviate the need for confrontation, including the consistency of the
child’s multiple statements, the child’s use of age-appropriate language to describe the
abuse, the sexualized behavior, nightmares, and sleep disturbances described by the
child’s therapist that were consistent with child sexual abuse, and the spontaneity of the
child’s identification of her abuser. Id.

{37} Although Pamela A.G. arose in a different context, we find it instructive here. 7
Unlike the child’s multiple, “unambiguous” statements in that case, Daughter’s
statements to the interviewer in this case provide the single detailed description in the
record of the incidents underlying the State’s accusations of sexual assault. In addition,


7We acknowledge that, unlike the abuse and neglect proceeding in Pamela A.G., the Rules of Evidence
do not apply in probation revocation proceedings. See Rule 11-1101(D)(3)(d) NMRA. We nonetheless
find the discussion in Pamela A.G. instructive in this case.
Daughter’s statements are equivocal about whether the abuse amounted to criminal
sexual contact or another form of physical abuse not found by the district court, such as
a battery. And while Daughter’s statements to the interviewer are not entirely
unsupported or contradicted by other evidence, no other evidence in this case
sufficiently provides “the circumstantial guarantee of trustworthiness” of Daughter’s
statements to prove the offense of criminal sexual contact without requiring
confrontation. See Pamela A.G., 

. On balance, the fifth Guthrie
factor therefore slightly weighs against finding good cause for not requiring
confrontation.

{38} We hold that the district court violated Defendant’s right to due process by
admitting Daughter’s statements to the interviewer without good cause for not requiring
confrontation to challenge the allegations of sexual assault. And because the
challenged statements were the only direct evidence of an essential element of the
lowest level of offense found by the district court, criminal sexual contact, we hold that
the error was not harmless. Cf., e.g., State v. Johnson, 

,

, 

 (holding that the admission of testimonial hearsay in a
criminal trial without requiring confrontation was not harmless error because the out-ofcourt statement “provided the only direct evidence of guilt”).

{39} We reiterate that our holding is based on the case-by-case analysis required
under Guthrie. Accordingly, we disavow the Court of Appeals’ attempt to fashion a
bright-line rule to apply in a particular category of cases. See Godinez, 2022-NMCA-
029, ¶ 19 (“Under these circumstances, confrontation is essential to the truth-finding
process unless corroborating evidence compellingly establishes that the crime occurred
and that the probationer committed it.”). We acknowledge that the strength of
corroborating evidence may be a significant factor in the good-cause analysis. See
Guthrie, 

 (noting that the record “incontrovertibly” supports the
finding that the probationer violated the terms of his probation). But the inquiry must
focus on “the need for, and utility of, confrontation with respect to the truth-finding
process and in light of the particular case at hand, including the specific charge pressed
against the probationer.” Id. ¶ 43.

D.     Availability of the Witness

{40} Before we conclude, we briefly address the State’s argument that the district
court properly dispensed with Defendant’s right to confrontation, in part, because of
Daughter’s developmental delay and her potential for regression were she compelled to
testify in court. This argument overlooks our holding in Guthrie that, when the need for
confrontation is significant, “the witness must appear and be subject to confrontation,
regardless of the reasons for his or her absence. . . . Simply put, the reasons for the
witness’s absence are, for the most part, irrelevant to the balancing process we set
forth.” Id. ¶ 43. While we adhere to that view, we emphasize that the due process right
to confrontation is flexible. At the center of the inquiry “are considerations of pragmatism
and fairness and the utility of confrontation in a particular factual context.” Guthrie,

. District courts have wide latitude in how they ensure fairness to
a probationer while considering the rights and circumstances of a particular witness.
See, e.g., Gagnon, 

 n.5 (“Nor did we intend to foreclose the [s]tates . . .
from developing other creative solutions to the practical difficulties of the Morrissey
requirements.”); see also N.M. Const. art. II, § 24(A)(1) (setting forth the rights afforded
to crime victims, including “the right to be treated with fairness and respect for the
victim’s dignity and privacy throughout the criminal justice process”).

{41} In this case, because the district court did not require confrontation, it similarly
did not consider how to ensure fairness to Defendant in light of Daughter’s specific
circumstances. As a result, the district court made no findings about whether or to what
extent Daughter’s developmental delay or potential for regression may have affected
her ability to provide live, in-court testimony. We decline the State’s invitation to make
such findings on appeal. See, e.g., Blaze Constr. Co. v. Tax. & Rev. Dep’t of N.M.,

, ¶ 24, 

, 

 (“It is well established that an
appellate court will not find facts on appeal.” (citation omitted)). We note, however, that
district courts may fashion alternatives to live, in-court testimony and cross-examination
in appropriate circumstances, including when necessary to accommodate a witness
who may be harmed by testifying, or unable to testify effectively, in open court. See,
e.g., NMSA 1978, § 38-6-8(B) (2023) (providing that a district court “may order the use
of . . . alternative procedures . . . for taking the testimony of [a] witness with a
developmental or intellectual disability” when the court finds that testifying in open court
will likely cause the witness “to suffer unreasonable and unnecessary mental or
emotional harm; or . . . a temporary loss of or regression in cognitive or behavioral
functioning or communicative abilities”); § 38-6-8(D) (2023) (listing “alternative
procedures . . . for taking the testimony of [a] witness with a developmental or
intellectual disability”); see also NMSA 1978, § 38-6A-5 (2011) (providing that a child
witness may testify by “alternative method” in criminal and noncriminal proceedings in
certain circumstances); NMSA 1978, § 38-6A-2(A) (2023) (defining “alternative
method[s]” of testimony by a child witness).

{42} Due process “should be flexible enough to consider evidence including letters,
affidavits, and other material that would not be admissible in an adversary criminal trial.”
Morrissey, 

. If there is a new hearing in district court, the parties may
find a solution to the practical difficulties of the confrontation requirement that causes
the least harm to Daughter. See Gagnon, 

 n.5 (“Nor did we intend to
foreclose the [s]tates . . . from developing other creative solutions to the practical
difficulties of the Morrissey requirements.”).

III.   CONCLUSION

{43} We affirm the Court of Appeals for the reasons provided in this opinion. We
remand to the district court for such further revocation proceedings as the State may
choose to pursue.

{44}   IT IS SO ORDERED.

BRIANA H. ZAMORA, Justice
WE CONCUR:

DAVID K. THOMSON, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

JULIE J. VARGAS, Justice