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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO



 2 STATE OF NEW MEXICO,

 3                  Plaintiff-Appellant,

 4          vs.                                                                  No. 33,443


 5 CURTIS JONES,

 6                  Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Jane Shuler-Gray, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellant

12 Jorge A. Alvarado, Chief Public Defender
13 J.K. Theodosia Johnson, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellee


16                                 MEMORANDUM OPINION
 1 HANISEE, Judge.

 2   {1}   The State appeals from the district court’s order requiring that it call the

 3 forensic pathologist that performed the autopsy as a witness or have all evidence from

 4 the Lubbock coroner’s office suppressed. This Court issued a calendar notice

 5 proposing to reverse and remand for the district court to consider whether the

 6 statements at issue are testimonial. Defendant has filed a memorandum in opposition,

 7 which we have duly considered. Because we remain unpersuaded that this Court’s

 8 proposed disposition was in error, we reverse.1

 9   {2}   In this Court’s notice of proposed disposition, we relied on our Supreme

10 Court’s decision in State v. Navarette, 2013-NMSC-003, 294 P.3d 435, to point out

11 that, in order for a violation of the Confrontation Clause to occur, there must be

12 testimonial statements that are offered for the truth of the matter asserted. Id. ¶ 7; see



           1
14             Effective June 17, 2005, NMSA 1978, Section 31-18-15(A)(1) (2005,
15   amended 2007), was amended to provide a sentence of life imprisonment for “a first
16   degree felony resulting in the death of a child[.]” As Defendant points out, cases
17   involving the possibility of life imprisonment must be taken directly from the district
18   court to the New Mexico Supreme Court. [MIO 1] See Rule 12-102 NMRA. However,
19   prior to the 2005 amendment, Section 31-18-15(A)(1) only required a sentence of 18
20   years. See NMSA 1978, § 31-18-15(A)(1) (2003). Defendant is charged with conduct
21   alleged to have occurred in 2004. [RP (D-503-CR-2005-00165) 1; RP (D-503-YR-
22   2004-00001) 1-7] Therefore, Defendant is not subject to the 2005 amendment to
23   Section 31-18-15. See State v. Ordunez, 2012-NMSC-024, ¶ 17, 283 P.3d 282 (“New
24   Mexico courts have long recognized that a statute that increases the punishment
25   allowable for a previously committed offense violates the ex post facto ban.”).
26   Accordingly, the State’s appeal is properly before this Court.

                                               2
 1 id. (stating that “[t]he first principle . . . is that an out-of-court statement that is both

 2 testimonial and offered to prove the truth of the matter asserted may not be admitted

 3 unless the declarant is unavailable and the defendant had a prior opportunity to cross-

 4 examine the declarant”). We also pointed out that, in Navarette, our Supreme Court

 5 acknowledged that “not . . . all material contained within an autopsy file is testimonial

 6 and therefore inadmissible[,]” but that “an expert witness may express an independent

 7 opinion regarding his or her interpretation of raw data without offending the

 8 Confrontation Clause.” Id. ¶ 22. We noted that the State had asserted below that Dr.

 9 Natarajan would not be relying on the subjective observations of Dr. Shrode, but was

10 making his own independent determination as to the cause of death and the injuries

11 based on “the photographs, microscopic glass slides, autopsy report and detail

12 extensive ant[e] mortem medical documentation.” [RP 578-79] We suggested that,

13 based on the State’s argument, the district court was required to conduct an analysis

14 of whether the expert would be relying on and conveying testimonial statements made

15 by another forensic pathologist. [CN 6] We proposed to reverse and remand to the

16 district court for consideration of this issue.

17   {3}   In response, Defendant contends that by ruling that Dr. Shrode had to be

18 present, the district court “implicitly rejected the State’s argument that Dr. Natarajan

19 was merely looking at raw data . . . produced in the autopsy.” [MIO 4] While this

20 Court will, on occasion, interpret a district court order as making an implicit ruling,

21 we decline to do so where the district court’s order appears inconsistent with such a

                                                 3
 1 ruling. Here, the district court’s order only discusses whether Dr. Shrode is available

 2 to testify, stating: “Navarette provides that the ‘first relevant principle’ is to determine

 3 whether or not the witness is unavailable. Obviously, if the witness is available then

 4 the Confrontation Clause mandates that he must testify and be subject to cross-

 5 examination. No further analysis is needed.” [RP 611-12] Because the district court

 6 order indicates that the only analysis conducted was with respect to availability, we

 7 conclude that it is proper for this Court to reverse the district court’s ruling on the

 8 basis that the district court failed to engage in the full inquiry required to determine

 9 a Confrontation Clause Violation. In the event the district court did, in fact, implicitly

10 reject the State’s argument that Dr. Natarajan would only be relying on raw data, the

11 district court can enter an order explicitly ruling on that issue following remand.

12 Having not reviewed the materials that the State purports Dr. Natarajan will be relying

13 on to reach his independent determination, this Court offers no opinion as to whether

14 the information at issue can be characterized as testimonial. Rather, we are remanding

15 for the district court to make that determination in the first instance. Accordingly, to

16 the extent Defendant raises arguments regarding whether the evidence is testimonial,

17 we do not address these arguments.

18   {4}   For the reasons stated above, and in this Court’s notice of proposed disposition,

19 we reverse and remand for further proceedings consistent with this opinion.

20   {5}   IT IS SO ORDERED.



                                                4
1
2                            J. MILES HANISEE, Judge

3 WE CONCUR:



4
5 JAMES J. WECHSLER, Judge



6
7 MICHAEL D. BUSTAMANTE, Judge




                                 5
