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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 v.                                                                            NO. 31,666

 5 JOSHUA MAESTAS,

 6          Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Reed S. Sheppard, District Judge


 9 Gary K. King, Attorney General
10 James W. Grayson, Assistant Attorney General
11 Santa Fe, NM

12 for Appellant

13 León Felipe Encinias, Attorney at Law
14 León Felipe Encinias
15 Albuquerque, NM

16 for Appellee


17                                 MEMORANDUM OPINION
 1 KENNEDY, Chief Judge.

 2   {1}   The State of New Mexico appeals an order dismissing the criminal case against

 3 Joshua Maestas (Defendant) for failure to prosecute, based on the State’s

 4 representation that it could not proceed to trial in the absence of an unavailable

 5 witness. The district court held that the State’s primary witness was unavailable to

 6 testify at trial, owing to her assertion of her Fifth Amendment right against self-

 7 incrimination, but found that her unavailability was not the product of Defendant’s

 8 wrongdoing. We affirm the district court.

 9 I.      FACTS AND PROCEDURAL HISTORY

10   {2}   Defendant was charged with, among other things, aggravated battery against a

11 household member and intimidation of a witness. His arrest and indictment were

12 based upon a 911 call and later grand jury testimony from his girlfriend, Juliana

13 Barela.

14   {3}   Defendant and Barela remained in contact through numerous phone calls. As

15 trial approached, Barela executed an affidavit of non-prosecution, stating that (1) her

16 previous statements to the police had been the product of police pressure, (2)

17 Defendant had not committed the crimes with which he had been charged, and (3)

18 those statements and her testimony before the grand jury had been in error. She was

19 subpoenaed to appear at an interview at the district attorney’s office and appeared with

20 counsel and asserted her Fifth Amendment right against self-incrimination. The State

                                              2
 1 filed a motion to compel Barela’s testimony. Barela was brought before the court,

 2 placed under oath, and again asserted her Fifth Amendment right not to testify.         {4}


 3         The State next filed a motion to have Barela found to be unavailable to testify

 4 at trial and to admit her previous statements at trial, under the doctrine of forfeiture

 5 by wrongdoing, because they claimed that she was only unavailable because

 6 Defendant threatened her over the phone. The district court granted the motion in part

 7 by finding that she was unavailable because of her assertion of her Fifth Amendment

 8 privilege against self-incrimination, but denied it in part when it found that the State

 9 had failed to prove that Barela’s unavailability was the product of Defendant’s actions

10 or that he intended to prevent her testimony.

11   {5}   The State indicated that it would be unable to proceed at trial without Barela’s

12 testimony. The State filed a motion for reconsideration of the district court’s order on

13 Barela’s unavailability, which was denied. The district court then found that without

14 Barela’s testimony, the State was unable to proceed to trial and, noting that the State

15 had declined to file a nolle prosequi, dismissed the case for failure to prosecute. The

16 State was aware that it needed to consider its options between a voluntary dismissal

17 by nolle prosequi, an interlocutory appeal, or a firm trial date a week later. We view

18 the district court’s instructions setting a trial date as sufficiently communicating the

19 court’s expectations to the State. The district court dismissed the case, stating that “the

20 State has been slow to dismiss this case or do anything for various reasons.” The State

                                                3
 1 appeals from three orders: (1) the denial of the portion of the State’s motion to admit

 2 Barela’s statements under the forfeiture by wrongdoing doctrine, (2) the denial of the

 3 reconsideration of that order, and (3) the order of dismissal.

 4 II.     DISCUSSION

 5 A.      Standard of Review

 6   {6}   The district court’s factual determination that Defendant did not cause Barela’s

 7 unavailability1 is a preliminary question governed by Rule 11-104(A) NMRA. See

 8 State v. Romero, 2006-NMCA-045, ¶ 45, 139 N.M. 386, 133 P.3d 842, aff’d, 2007-

 9 NMSC-013, 141 N.M. 403, 156 P.3d 694; see also State v. Alvarez-Lopez, 2004-

10 NMSC-030, ¶ 10, 136 N.M. 309, 98 P.3d 699. It is the State’s burden to prove the

11 necessary foundation for admission of Barela’s statements by a preponderance of the

12 evidence. Alvarez-Lopez, 2004-NMSC-030, ¶ 10. Where “the district court acts

13 within its authority as fact finder by weighing and drawing its own conclusions from

14 the evidence presented[,]” we review the court’s decision for an abuse of discretion.

15 State v. Garcia, 2000-NMCA-014, ¶ 23, 128 N.M. 721, 998 P.2d 186. Preliminary

16 questions on admissibility of evidence are determined by the trial judge. See Rule 11-

17 104(A). We also review a district court’s decision whether to admit or exclude


          1
18          The parties agree that Barela’s statement to the police and her sworn testimony
19 were testimonial for Confrontation Clause purposes, and she was unavailable for trial
20 by virtue of her having asserted her Fifth Amendment right not to testify. We are not
21 reviewing the district court’s ruling for constitutional error.

                                               4
 1 evidence for abuse of discretion. Ruiz v. Vigil-Giron, 2008-NMSC-063, ¶ 7, 145 N.M.

 2 280, 196 P.3d 1286 (per curiam).

 3   {7}   When reviewing for an abuse of discretion, we view the evidence in the light

 4 most favorable to the district court’s decision. State v. Candelaria, 2008-NMCA-120,

 5 ¶ 12, 144 N.M. 797, 192 P.3d 792. Discretionary determinations will be affirmed if

 6 they are supported by substantial evidence in the record. State v. Lavone, 2011-

 7 NMCA-084, ¶ 5, 150 N.M. 473, 261 P.3d 1105. Accordingly, we will examine the

 8 district court’s factual findings to determine their support in the record.

 9   {8}   District courts have inherent power to dismiss a case for failure to prosecute.

10 Smith v. Walcott, 1973-NMSC-074, ¶ 12, 85 N.M. 351, 512 P.2d 679. We review

11 such dismissals for abuse of discretion. See Stoll v. Dow, 1986-NMCA-134, ¶ 10, 105

12 N.M. 316, 731 P.2d 1360; see also State v. Esparza, 2003-NMCA-075, ¶ 45, 133

13 N.M. 772, 70 P.3d 762.

14 B.      The Doctrine of Forfeiture By Wrongdoing

15   {9}   The State sought to use prior testimonial statements made by Barela when her

16 assertion of Fifth Amendment privilege rendered her unavailable to testify. The State

17 argues that Defendant wrongfully procured Barela’s unavailability by telling her to

18 lie for him and threatening her mother. Defendant counters that the State failed to

19 prove that he threatened Barela or otherwise caused her to assert the privilege. The



                                              5
 1 cause and underlying intent to cause her unavailability are the sole issues in this

 2 appeal.

 3   {10}   The forfeiture by wrongdoing doctrine is an outgrowth of the Confrontation

 4 Clause of the United States Constitution’s Sixth Amendment. Ordinarily, “the

 5 Confrontation Clause bars the use of out-of-court statements made by witnesses that

 6 are testimonial, unless the witness is unavailable, and the defendant had a prior

 7 opportunity to cross-examine, regardless of whether such statements are deemed

 8 reliable.” Romero, 2007-NMSC-013, ¶ 6. However, a defendant can forfeit his right

 9 to object to the use of out-of court testimonial statements against him that would

10 otherwise be inadmissable if the defendant causes the unavailability of the witness by

11 some form of wrongdoing. Id. ¶ 28. In proving a defendant’s wrongdoing, “the

12 prosecution is required to prove [the defendant’s] intent to procure the witness’s

13 unavailability in order to bar a defendant’s right to confront that witness.” Id. ¶ 37.

14 New Mexico thus requires the State to prove that, by a preponderance of the evidence,

15 the defendant both caused the witness’s unavailability and intended that the witness

16 be unavailable. Id. ¶ 38; Alvarez-Lopez, 2004-NMSC-030, ¶ 10 (“The elements that

17 must be shown for [Federal Rules of Evidence] Rule 804(b)(6) to apply are: (1) the

18 declarant was expected to be a witness; (2) the declarant became unavailable; (3) the

19 defendant’s misconduct caused the unavailability of the declarant; and (4) the



                                              6
 1 defendant intended by his misconduct to prevent the declarant from testifying.”).

 2 Using this matrix, we now assess whether the district court abused its discretion.

 3 C.       The District Court Did Not Abuse Its Discretion

 4   {11}   The district court’s order on the State’s motion in limine correctly stated the

 5 legal requirements of proof of forfeiture by wrongdoing as described above. The

 6 district court found that the State had established that, by a preponderance of evidence,

 7 Barela became unavailable when she asserted her Fifth Amendment privilege against

 8 self-incrimination, but had failed to prove that Defendant’s misconduct caused her

 9 unavailability or that he intended by his conduct to cause her unavailability. In so

10 ruling, the district court also made a number of verbal findings that we consider to be

11 relevant and supplementary to its written order and which we will discuss as needed.

12 Ledbetter v. Webb, 1985-NMSC-112, ¶ 34, 103 N.M. 597, 711 P.2d 874 (stating that

13 a district court’s verbal comments can be used to clarify written findings); State v.

14 Roybal, 2006-NMCA-043, ¶ 9, 139 N.M. 341, 132 P.3d 598 (same). We assess the

15 State’s proof in the light most favorable to affirmance, and we review the court’s

16 findings to see if they are supported by substantial evidence. State v. Aragon, 1999-

17 NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211.

18   {12}   The State’s evidence in support of its motion involved no testimony. The

19 written motion in limine cited broadly to a “CD of phone calls from [the] jail phone”

20 without any citations to the location of any specific, germane evidence. Although the

                                               7
 1 State cites the fact that Defendant was indicted because he had threatened to kill

 2 Barela if she reported the assault, which she refuted in her later affidavit, and the fact

 3 that Defendant violated his conditions of release by living with Barela for some

 4 months before being re-committed to custody after being found dangerous, these facts

 5 are not relevant in determining whether he procured her unavailability. The State

 6 argues that facts regarding Defendant’s overall dangerousness and his assault on

 7 another woman were found by the district court “in reference to other matters” in

 8 previous hearings and provide context for the problem before us.

 9   {13}   The State also makes much of Defendant’s threats to harm Barela’s mother.

10 The district court ruled that the threats against Barela’s mother did not show that

11 Defendant acted with intent to procure Barela’s unavailability. The CD that the State

12 relied on was more than fifty-five hours long, comprising 588 calls. The State

13 provided no transcripts of the recordings. The court listened to a sample hour of calls,

14 noting that the State had failed to specifically point to any threats within the numerous

15 hours of phone records, and found nothing that constituted a threat or intention to keep

16 Barela from testifying.

17   {14}   The district court found that Barela seemed to agree with Defendant’s

18 characterizations of her mother. Her behavior on the phone also indicated to the

19 district court that any of Defendant’s threats concerning her mother would not affect

20 her availability to testify. The district court noted Defendant’s invective and profanity

                                               8
 1 regarding Barela’s mother, but did not find that they constituted anything that would

 2 influence Barela to refrain from testifying.

 3   {15}   The State’s motion in limine cites to a call where Defendant “called [Barela] a

 4 ‘rat’ and told [Barela she] should . . . go to court and lie for him[,]” but no specific

 5 reference to the statements, nor any citation beyond “CD of phone calls from [the] jail

 6 phone” was provided in the motion. The district court found that of the hour or so of

 7 calls it listened to on its own, the court heard no instructions to Barela that she not

 8 testify, or threats against her or her family if she either testified or failed to file an

 9 affidavit of non-prosecution. The district court also noted that Barela, week-after-

10 week, paid for Defendant to make those phone calls. More to the point, the district

11 court stated:

12          [N]o single call has been pointed out to the [c]ourt wherein [procuring
13          unavailability of an affidavit of non-prosecution is] the subject of the
14          conversation. They talk about all sorts of things. But I found no threats
15          that[,] under the Forfeiture by Wrongdoing Doctrine[,] would indicate
16          that [Defendant] has done anything—and this is very important—with
17          the intent to keep . . . Barela from testifying.

18   {16}   Although the State claims that threatening Barela’s family could have prevented

19 her testimony, it is up to the district court to evaluate the weight of the evidence and

20 resolve conflicting interpretations of the evidence in reaching its decision. Under our

21 deferential standard of review, we are loath to substitute our judgment for the district




                                               9
 1 court’s or reweigh the evidence. State v. Rael-Gallegos, 2013-NMCA-092, ¶ 8, 308

 2 P.3d 1016, cert. denied, 2013-NMCERT-009, 311 P.3d 452.

 3   {17}   The State filed a witness list for the hearing on its motion, but called no

 4 witnesses to testify to the effect of Defendant’s actions on Barela. None of Barela’s

 5 statements indicate that Defendant played a role in keeping her from testifying at trial.

 6 Where evidence introduced by a party shows only the possibility of the required fact

 7 to be proven, it requires the fact finder to speculate in order to draw a reasonable

 8 inference. In such a case, the party has failed to make a prima facie case. Smith v.

 9 Ferguson Trucking Co., 1954-NMSC-115, ¶ 7, 58 N.M. 779, 276 P.2d 911 (holding

10 that speculation as to cause is not evidence upon which a verdict can be based).

11 D.       Excluding Evidence Was Proper

12   {18}   The State asserts that the district court erred and prevented the State from

13 making a complete offer of proof by excluding various statements and recordings

14 from early in the case. When the district court was determining forfeiture by

15 wrongdoing, the State attempted to tender for admission at trial the 911 tape

16 concerning the initial incident made by Barela’s mother and early statements made by

17 Barela, including her written statement to the police and her grand jury testimony.   {19}


18          The district court denied the request to hear the 911 tape at the hearing as

19 irrelevant. The four statements of Barela to the police and the grand jury were sought

20 to be admitted to show the nature of her accusations and as “based upon the fact that

                                              10
 1 . . . Barela was cooperative at that time.” The State did not further pursue the matter

 2 of admitting the statements. The State did not request the further opportunity to make

 3 an offer of proof at that time. See Rule 11-103 (A)(2) NMRA. The district court

 4 found that the 911 call and the early statements were irrelevant to the question of

 5 forfeiture by wrongdoing. We find no abuse of discretion in the district court decision

 6 declining to hear or view the profferred evidence.

 7 III.     CONCLUSION

 8   {20}   We affirm the district court’s orders denying the State’s motion in limine and

 9 its order of dismissal of the case.

10   {21}   IT IS SO ORDERED.



11                                          ____________________________________
12                                          RODERICK T. KENNEDY, Chief Judge


13 WE CONCUR:



14 ___________________________
15 CYNTHIA A. FRY, Judge



16 ___________________________
17 TIMOTHY L. GARCIA, Judge



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