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

 2 Opinion Number: __________

 3 Filing Date: February 14, 2017

 4 NO. 34,277

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 CHRISTINE IMPERIAL,

 9         Defendant-Appellant.


10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Brett R. Loveless, District Judge


12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   Jacqueline R. Medina, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17   Bennett J. Baur, Chief Public Defender
18   Sergio Viscoli, Appellate Defender
19   B. Douglas Wood III, Assistant Appellate Defender
20   Santa Fe, NM

21 for Appellant
 1                                        OPINION

 2 WECHSLER, Judge.

 3   {1}   Defendant Christine Imperial was convicted of three counts of forgery, contrary

 4 to NMSA 1978, Section 30-16-10 (2006), and three counts of identity theft, contrary

 5 to NMSA 1978, Section 30-16-24.1 (2009). On appeal, Defendant raises two primary

 6 claims: (1) that the district court erred in admitting certain testimony and evidence

 7 related to the transactions at issue in the case and (2) that the district court erred in

 8 admitting surveillance videos from Wal-Mart’s security system. Because we conclude

 9 that the district court’s rulings were not erroneous, we affirm.

10 BACKGROUND

11   {2}   In September 2010, Albuquerque Police Department Detective Tyrone

12 Chambers began investigating allegations of check fraud at a Wal-Mart in

13 Albuquerque, New Mexico. As part of his investigation, Detective Chambers

14 contacted Certegy, a company that performs check verification for retail businesses,

15 including Wal-Mart. Certegy fraud investigator Christopher Jacobson provided

16 Detective Chambers with information related to certain allegedly fraudulent

17 transactions, which Detective Chambers incorporated into his investigation. This

18 information included the dates, times, check numbers, account numbers, routing
 1 numbers, social security numbers, names, and store locations associated with the

 2 allegedly fraudulent transactions.

 3   {3}   After isolating certain transactions suspected to involve Defendant, Detective

 4 Chambers contacted the Wal-Mart located on Wyoming Boulevard in northeast

 5 Albuquerque to request surveillance videos taken at the store’s money center.

 6 Detective Chambers provided dates and times of the allegedly fraudulent transactions

 7 to Wal-Mart’s loss prevention department. He received surveillance videos depicting

 8 transactions on August 27, 2010, August 28, 2010, and September 6, 2010. Detective

 9 Chambers identified Defendant in these surveillance videos by reference to a

10 photograph in a police database. Each surveillance video showed Defendant present

11 a check to a Wal-Mart employee. In each instance, the employee attempted to process

12 the transaction and returned the check to Defendant. Each surveillance video also

13 contained a computer-generated graphic indicating the date and time of the

14 transaction.

15   {4}   Defendant was indicted for forgery and identity theft in December 2010. On

16 May 3, 2011, the State filed a witness list that included Jacobson. On June 25, 2013,

17 the State filed an amended witness list that again included Jacobson.

18   {5}   In October 2013, the State provided discovery to defense counsel that included

19 Detective Chambers’ police report. Detective Chambers’ police report contained a


                                              2
 1 thirty-six page spreadsheet created by Jacobson that detailed numerous allegedly

 2 fraudulent transactions involving Defendant and other individuals. At trial, defense

 3 counsel acknowledged not “understand[ing] the significance” of the spreadsheet.

 4   {6}   On March 17, 2014, the State filed a second amended witness list noticing

 5 “Christopher Jacobson/designee, c/o Certegy Check Systems.” One week later,

 6 Defendant filed a motion for a continuance based on a general lack of preparedness

 7 for trial. The district court denied this motion.

 8   {7}   Defendant did not subpoena Jacobson to a pre-trial interview. Nor did

 9 Defendant respond to requests for dates for pre-trial interviews. At some unknown

10 date after the March 26, 2014 scheduling conference, Jacobson determined that he

11 would be unavailable to appear at the trial setting. Jacobson did not appear for his

12 scheduled interview on April 4, 2014.

13   {8}   Due to Jacobson’s unavailability, the State substituted another Certegy fraud

14 investigator, Michael Baracz, as a witness the week before trial. The State noticed a

15 pre-trial interview with Baracz and conducted this interview by telephone on April

16 14, 2014. Defense counsel declined to interview this “new witness[].” During this

17 interview, Baracz informed the State that he had generated a new spreadsheet

18 depicting only transactions appearing to involve Defendant. The State sent this

19 spreadsheet to defense counsel by email the next day.


                                              3
 1   {9}    On the first day of the trial, April 16, 2014, Defendant filed a motion in limine

 2 to exclude: (1) Baracz as a witness, (2) the spreadsheet Baracz generated, and (3)

 3 surveillance videos from Wal-Mart. The district court ruled that Baracz was a records

 4 custodian and did not need to be specifically disclosed. The district court also stated

 5 that Defendant could interview Baracz prior to his scheduled testimony the next day.

 6   {10}   Outside the presence of the jury, Baracz testified as to Certegy’s role in

 7 verifying checks for Wal-Mart, including a step-by-step description of a transaction

 8 and the process by which transactional data is generated. Baracz also testified that he

 9 did not consult the spreadsheet originally generated by Jacobson but instead

10 generated a new spreadsheet depicting only transactions appearing to involve

11 Defendant. Baracz’s spreadsheet did not contain any new information not included

12 in Jacobson’s spreadsheet. This spreadsheet was introduced as State’s Exhibit Three

13 and contained thirty-seven transaction records. Baracz also provided a second

14 spreadsheet, State’s Exhibit One, which was a redacted version of State’s Exhibit

15 Three and contained only six transaction records. Over objection, the district court

16 admitted State’s Exhibits One and Three (the Exhibits), ruling that: (1) the

17 information in the spreadsheets “was provided to counsel for the defense in the initial

18 discovery,” (2) the transaction records are business records under Rule 11-803(6)




                                                4
 1 NMRA, and (3) the transaction records are non-testimonial. Only State’s Exhibit One

 2 was published to the jury.

 3   {11}   Baracz’s testimony before the jury centered on the process Certegy undertakes

 4 to verify a transaction originating at a Wal-Mart money center. As part of this

 5 testimony, Baracz discussed the origin, the data storage process, and the meaning of

 6 the data included in the Exhibits.

 7   {12}   Wal-Mart Asset Protection Associate Kesha Pendleton also testified as a

 8 foundational witness outside the presence of the jury. The purpose of her testimony

 9 was to authenticate the surveillance videos obtained by Detective Chambers.

10 Pendleton testified that (1) the transactions depicted on the surveillance videos at

11 issue occurred at the money center inside the Wal-Mart at which she is employed, (2)

12 the surveillance system operates twenty-four hours a day and cannot be manipulated

13 by local employees, (3) the same surveillance system has been in place for at least

14 five years, (4) the surveillance system allows local employees to download

15 surveillance videos taken at specific dates and times, and (5) the computer-generated

16 graphic indicating the date and time is programmed remotely. Following foundational

17 testimony by Pendleton and Detective Chambers, the district court received the

18 surveillance videos in evidence over Defendant’s objection.




                                              5
 1   {13}   Defendant was convicted on three counts of forgery and three counts of identity

 2 theft. This appeal resulted.

 3 ADMISSIBILITY OF EVIDENCE

 4   {14}   The district court allowed the testimony of Baracz as a records custodian and

 5 received in evidence the Exhibits as business records under Rule 11-803(6). On

 6 appeal, Defendant argues that this ruling was erroneous, both under our rules of

 7 evidence and as a violation of Defendant’s right to confront witnesses against her.

 8 Defendant also argues that insufficient evidence supported the authentication of, and

 9 chain of custody related to, the Wal-Mart surveillance videos. We review a district

10 court’s admission of evidence for an abuse of discretion. State v. Cofer, 2011-NMCA-

11 085, ¶ 7, 150 N.M. 483, 261 P.3d 1115. A court abuses its discretion when its “ruling

12 is clearly against the logic and effect of the facts and circumstances of the case.” Id.

13 (internal quotation marks and citation omitted).

14 Alleged Discovery Violations

15   {15}   Defendant argues that the late disclosure of Baracz and the Exhibits (1)

16 constituted a violation of Defendant’s right to confront witnesses against her and (2)

17 should have resulted in sanctions for discovery violations. A Confrontation Clause

18 violation occurs when a defendant is unable to confront testimony against the

19 defendant. See State v. Ortega, 2014-NMSC-017, ¶ 18, 327 P.3d 1076 (“This clause


                                               6
 1 bars the admission of out-of-court statements that are both testimonial and offered to

 2 prove the truth of the matter asserted, unless the declarant is unavailable and the

 3 defendant had a prior opportunity to cross-examine the declarant.” (alteration,

 4 omission, internal quotation marks, and citation omitted)). Baracz testified at trial and

 5 was cross-examined by Defendant. We therefore address Defendant’s arguments on

 6 appeal in the context of our rules of criminal procedure—specifically Rule 5-501

 7 NMRA (2007) and Rule 5-505 NMRA.

 8   {16}   Rule 5-501(A)(5) provides that “the state shall disclose . . . a written list . . . of

 9 all witnesses which the prosecutor intends to call at the trial[.]” Rule 5-505(A) creates

10 an ongoing duty to “promptly give written notice to the other party or the party’s

11 attorney of the existence of the additional material or witnesses.” However, to justify

12 sanctions for the late disclosure of witnesses or documents, a defendant must

13 demonstrate that he or she “was prejudiced by the untimely disclosure.” State v.

14 Duarte, 2007-NMCA-012, ¶¶ 15, 19, 140 N.M. 930, 149 P.3d 1027 (internal

15 quotation marks and citation omitted). “[P]rejudice does not accrue unless the

16 evidence is material and the disclosure is so late that it undermines the defendant’s

17 preparation for trial.” State v. Harper, 2011-NMSC-044, ¶ 20, 150 N.M. 745, 266

18 P.3d 25. Evidence is material if “there is a reasonable probability that, had the

19 evidence been disclosed to the defense, the result of the proceeding would have been


                                                  7
 1 different.” Duarte, 2007-NMCA-012, ¶ 15 (internal quotation marks and citation

 2 omitted). “Prejudice must be more than speculative; the party claiming prejudice must

 3 prove prejudice—it is not enough to simply assert prejudice.” Harper, 2011-NMSC-

 4 044, ¶ 16.

 5   {17}   With respect to the late disclosure of Baracz, Baracz and Jacobson were

 6 functionally equivalent for purposes of determining the evidentiary significance of

 7 the discovery materials. See, e.g., Parks v. State, 348 S.E.2d 481, 482 (Ga. Ct. App.

 8 1986) (“No harm is shown to have resulted from the substitution of one records

 9 custodian for another[.]”). Both are fraud investigators for Certegy. Both conducted

10 database searches for transactions appearing to involve Defendant. Neither was in a

11 position to offer substantive testimony that Defendant herself had violated or

12 attempted to violate the law. Jacobson appeared on various iterations of the State’s

13 witness list for years and was never subpoenaed for an interview by Defendant. Under

14 these circumstances, the substitution of one records custodian for another does not

15 constitute a late disclosure that “undermines the defendant’s preparation for trial.”

16 Harper, 2011-NMSC-044, ¶ 20. Baracz’s spreadsheet did not contain any new

17 information not included in Jacobson’s spreadsheet. Furthermore, Defendant was not

18 deprived of the opportunity to conduct an interview. Baracz was first made available

19 for a telephonic interview on April 14, 2014, and Defendant declined to participate.


                                             8
 1 Defendant then interviewed Baracz on the morning of April 17, 2014. We cannot

 2 discern, and Defendant does not specifically assert in her appellate briefing, how the

 3 timing of her interview with Baracz prejudiced her defense. See id. ¶¶ 22, 24 (holding

 4 that the defendant did not demonstrate prejudice when he had the opportunity to

 5 interview late-disclosed witnesses prior to trial); State v. McDaniel, 2004-NMCA-

 6 022, ¶ 14, 135 N.M. 84, 84 P.3d 701 (holding that prejudice is demonstrated by a

 7 showing that the defendant’s “cross-examination would have been improved by an

 8 earlier disclosure or [that the defendant] would have prepared differently for trial”).

 9 The key question—left unanswered in Defendant’s briefing—is how Defendant

10 would have prepared for trial differently in light of the substitute witness.

11   {18}   With respect to the Exhibits, Defendant was in possession of all the

12 information contained in them far in advance of trial. The reformatting of previously

13 disclosed discovery materials for trial purposes does not constitute a new, and

14 therefore late, disclosure. Cf. Harper, 2011-NMSC-044, ¶ 20 (“[W]hen . . . the

15 defendant has knowledge of the contents of the unproduced evidence, [a]

16 determination of prejudice is more elusive.”). Nor does the redaction of irrelevant

17 information from the initially provided discovery materials result in prejudice to

18 Defendant’s defense. Defendant claims that an alternate presentation of the data

19 “stood to affect . . . trial counsel’s cross-examination.” The redaction of irrelevant


                                              9
 1 information, however, would, if anything, simplify Defendant’s cross-examination

 2 of Baracz if, as contended in her briefing, she “was prepared to cross-examine a

 3 witness from the same company who had compiled a separate exhibit.”

 4   {19}   Defendant additionally argues, citing Harper, that the district court erred by

 5 failing to consider lesser sanctions after denying her motion to exclude Baracz and

 6 the Exhibits. However, our review of Defendant’s briefing and the record proper does

 7 not indicate that Defendant argued for lesser sanctions at trial. To preserve an issue

 8 for appeal, a party must allege error and invoke a ruling from the district court. State

 9 v. Lucero, 1993-NMSC-064, ¶ 11, 116 N.M. 450, 863 P.2d 1071. In the absence of

10 preservation, we decline to consider the appropriateness of lesser sanctions.

11   {20}   Defendant has not demonstrated that she was prejudiced by the district court’s

12 admission of Baracz and the Exhibits. As a result, we find no abuse of discretion in

13 these evidentiary rulings.

14 Alleged Hearsay Evidence

15   {21}   Defendant further argues that the Exhibits constitute inadmissible hearsay. We

16 review a district court’s application of exceptions to the rule against hearsay for an

17 abuse of discretion. State v. Benavidez, 1999-NMSC-041, ¶ 4, 128 N.M. 261, 992

18 P.2d 274. Hearsay is an out-of-court statement offered for the truth of the matter

19 asserted and is inadmissible at trial except as allowed by exclusions or enumerated


                                              10
 1 exceptions. State v. Largo, 2012-NMSC-015, ¶ 24, 278 P.3d 532; Rule 11-801(C)

 2 NMRA (defining “hearsay” as “a statement that (1) the declarant does not make while

 3 testifying at the current trial or hearing, and (2) a party offers in evidence to prove the

 4 truth of the matter asserted in the statement”). Rule 11-803(6) is such an exception

 5 and provides for the admission of:

 6        A record of an act, event, condition, opinion, or diagnosis if

 7        (a) the record was made at or near the time by—or from information
 8        transmitted by—someone with knowledge,

 9        (b) the record was kept in the course of a regularly conducted activity
10        of a business, institution, organization, occupation, or calling, whether
11        or not for profit,

12        (c)    making the record was a regular practice of that activity, and

13        (d) all these conditions are shown by the testimony of the custodian
14        or another qualified witness, or by a certification that complies with
15        Rule 11-902(11) or (12) NMRA or with a statute permitting
16        certification.

17 Rule 11-803(6) is commonly referred to as the “business records exception.” Cofer,

18 2011-NMCA-085, ¶ 9. At issue in this case is whether instantaneously recorded data

19 related to retail transactions, which are later compiled for utilization in criminal

20 investigations and at trial, fall within the Rule 11-803(6) requirements for

21 admissibility.




                                               11
 1   {22}   The Exhibits are distillations of data related to literally millions of transactions

 2 conducted at Wal-Mart money centers around the country. The data contained within

 3 the Exhibits were recorded in real time, thus satisfying the requirement of Rule 11-

 4 803(6)(a), and were kept for every Wal-Mart money center transaction in the regular

 5 course of business, thus satisfying the requirements of Rule 11-803(6)(b) and (c).

 6   {23}   Defendant argues that, because the Exhibits were “assembled” as part of the

 7 case against her, they cannot be admitted into evidence under the business record

 8 exception. We disagree.

 9   {24}   In State ex rel. Electric Supply Co. v. Kitchens Constructions, Inc., our

10 Supreme Court conducted a similar analysis and held that the computer-generated

11 records at issue were admissible. In that case, the plaintiff sued for recovery of

12 $61,124.53—the value of materials provided to a subcontractor on a state

13 construction project. 1988-NMSC-013, ¶ 1, 106 N.M. 753, 750 P.2d 114. At trial, the

14 plaintiff introduced “unpaid computerized invoices” for materials provided to

15 subcontractors as evidence of the amount due. Id. ¶ 3. The defendant argued that the

16 plaintiff’s invoices were inadmissible “because the invoices were produced especially

17 for this litigation[.]” Id. ¶ 4. In finding the invoices admissible, our Supreme Court

18 held,

19          [U]nder Rule 803[,] computer data compilations may be construed as
20          business records themselves, and they should be treated as any other

                                                 12
 1          record of regularly conducted activity. Although a computer
 2          printout . . . is made after completion of all regular dealings with a party,
 3          the printout is admissible if its contents were stored and compiled at the
 4          time of the underlying transactions.

 5 Id. ¶ 10 (citation omitted).

 6   {25}   Kitchens is closely analogous to this case. Certegy vets each attempt to cash a

 7 check at a Wal-Mart money center in real time. It instantaneously stores a record of

 8 each transaction in a database and retains it for a minimum of seven years. As a result,

 9 each line of data, which is “stored and compiled at the time of the underlying

10 transactions[,]” is its own individual business record and is admissible under Rule 11-

11 803(6). Kitchens, 1988-NMSC-013, ¶ 10. That the data are not instantaneously

12 compiled into a form that is convenient for evidentiary purposes is of no

13 consequence. The rules of evidence allow for the compilation of otherwise admissible

14 business records for the purpose of prosecution or civil litigation. See, e.g., United

15 States v. Keck, 643 F.3d 789, 797 (10th Cir. 2011) (“In the context of

16 electronically-stored data, the business record is the datum itself, not the format in

17 which it is printed out for trial or other purposes.”).

18   {26}   Because each line of data contained within the Exhibits constitutes an

19 admissible business record under Rule 11-803(6), the district court’s admission did

20 not constitute an abuse of discretion. Given this conclusion, we decline to explore



                                                 13
 1 Defendant’s argument that the Exhibits are instead summaries subject to the

 2 requirements of Rule 11-1006 NMRA.

 3 Authentication of Evidence

 4   {27}   The Wal-Mart surveillance videos included computer-generated graphics

 5 indicating the date and time of the transactions. Defendant argues that Pendleton’s

 6 testimony did not sufficiently describe the process by which the date and time stamps

 7 are generated and that, therefore, the surveillance videos were not properly

 8 authenticated.

 9   {28}   Evidence is properly authenticated by the production of foundational evidence

10 “sufficient to support a finding that the item is what the proponent claims it is.” Rule

11 11-901(A) NMRA. With respect to the question of authentication, the computer-

12 generated graphics indicating the date and time of the transactions are not subject to

13 greater scrutiny than the other content observed in the surveillance video.

14   {29}   In State v. Henderson, this Court articulated a low bar for authentication of

15 photographic evidence created through automated processes. 1983-NMCA-094, 100

16 N.M. 260, 669 P.2d 736. Such photographic evidence is admissible under the “silent

17 witness” theory, which requires that the evidence be authenticated by the testimony

18 of “a witness with knowledge . . . that the thing is what it purports to be.” Id. ¶¶ 8, 11.




                                               14
 1   {30}   In Henderson, the defendant conducted a transaction at an automated teller

 2 machine on the same date as the alleged crime. Id. ¶ 7. The automated teller machine

 3 was programmed to “make[] written records of all transactions, and . . . take[] a

 4 picture of the person making the transaction.” Id. At trial, the state introduced a

 5 photograph of the defendant taken by the automated teller machine. Id. ¶ 12. The

 6 purpose of this evidence was to establish, consistent with other physical evidence,

 7 that the defendant was wearing certain clothing on the date of the alleged crime. Id.

 8 ¶ 7. A foundational witness testified as to the film developing procedure “and that she

 9 had requested that the film for August 9, 1982 at 10:22 a.m. be developed.”1 Id. ¶ 12.

10 This Court concluded that such testimony was sufficient to authenticate the

11 photograph under Rule 11-901. Id. ¶ 11.

12   {31}   Similar testimony was offered in this case. Pendleton testified that (1) the

13 images on the surveillance video were from the Wal-Mart location at which she

14 works, (2) the date and time information is programmed remotely, (3) local

15 employees do not have the ability to manipulate that information, and (4) she is able

16 to download surveillance video from specific dates and times for up to ninety days.




         1
17         Though it is unclear from the opinion, we assume that the requested date and
18 time were connected to the written record of the defendant’s transaction.

                                             15
 1 Additionally, Detective Chambers testified that the surveillance video was

 2 downloaded in response to his request for recordings of specific dates and times.

 3   {32}   Certainly, with respect to the location and presence of Defendant, the State

 4 offered sufficient evidence to authenticate the surveillance video under Rule 11-901.

 5 With respect to the computer-generated graphics indicating the date and time, “[b]asic

 6 computer operations relied on in the ordinary course of business are admitted without

 7 an elaborate showing of accuracy.” 2 Broun, McCormick on Evidence, § 227 (7th ed.

 8 2013); see also United States v. Rembert, 863 F.2d 1023, 1028 (D.C. Cir. 1988)

 9 (holding that “circumstantial evidence . . . as to the occurrences at the ATM

10 machines, . . . coupled with the internal indicia of date, place, and event depicted in

11 the evidence itself” was sufficient to authenticate photographic evidence). As

12 Pendleton’s testimony indicated, Wal-Mart’s surveillance system operates

13 continuously in the ordinary course of business.

14   {33}   Detective Chambers requested that Wal-Mart loss prevention officers provide

15 segments of surveillance video for certain dates and times based upon the information

16 contained in the spreadsheet created by Jacobson. The segments of surveillance video

17 for the requested times showed Defendant attempting transactions. These attempts

18 were unsuccessful. That the dates and times requested by Detective Chambers overlap

19 with Defendant’s attempted transactions is strong circumstantial evidence that the


                                             16
 1 computer-generated graphics indicating date and time are accurate. Furthermore,

 2 neither the record proper nor Defendant’s appellate briefing suggest that the

 3 surveillance videos, including the computer-generated graphics indicating date and

 4 time, were materially altered or incorrect in any way.

 5   {34}   We decline, in the absence of a specific challenge to the accuracy of such

 6 information, to require higher requirements for authentication of surveillance video

 7 containing computer-generated graphics indicating the date and time simply because

 8 such graphics could theoretically be manipulated. Cf., e.g., People v. Goldsmith, 326

 9 P.3d 239, 248 (Cal. 2014) (“We decline to require a greater showing of authentication

10 for the admissibility of digital images merely because in theory they can be

11 manipulated.”). Because the record evidence satisfies the authentication requirements

12 of Rule 11-901, the district court’s admission of the surveillance video did not

13 constitute an abuse of discretion.

14 Chain of Custody

15   {35}   Defendant’s final evidentiary argument relates to the chain of custody of the

16 Wal-Mart surveillance video. Defendant bases this argument upon her contention that

17 no witness testified that the surveillance video “had not been tampered with.”

18 However, as this Court has previously held, “[t]he [s]tate is not required to establish




                                              17
 1 the chain of custody in sufficient detail to exclude all possibility of tampering.” State

 2 v. Peters, 1997-NMCA-084, ¶ 26, 123 N.M. 667, 944 P.2d 896.

 3   {36}   “Questions concerning a possible gap in the chain of custody affect[] the

 4 weight of the evidence, not its admissibility.” Id. There is no abuse of discretion

 5 when, as here, a preponderance of the evidence shows that the evidence at issue is

 6 what the proponent purports it to be. Id.

 7 CONFRONTATION OF WITNESSES

 8   {37}   As discussed above, a criminal defendant is entitled to confront testimony

 9 against him or her. Ortega, 2014-NMSC-017, ¶ 18. Defendant argues that the

10 surveillance video’s computer-generated graphics indicating the date and time are

11 testimonial in nature. Certainly, if the computer-generated graphics are testimonial,

12 Defendant would have certain confrontation rights. “Claimed violations of the Sixth

13 Amendment right to confrontation are reviewed de novo.” State v. Tollardo, 2012-

14 NMSC-008, ¶ 15, 275 P.3d 110.

15   {38}   A defendant’s confrontation rights extend to the “testimonial statements of a

16 witness who did not appear at trial unless [the witness] was unavailable to testify, and

17 the defendant had . . . prior opportunity for cross-examination.” State v. Gurule,

18 2013-NMSC-025, ¶ 33, 303 P.3d 838 (internal quotation marks and citation omitted).

19 A statement is testimonial if its primary purpose “is to establish or prove past events


                                               18
 1 potentially relevant to later criminal prosecution.” State v. Navarette, 2013-NMSC-

 2 003, ¶ 8, 294 P.3d 435 (internal quotation marks and citation omitted). “When the

 3 ‘primary purpose’ of a statement is not to create a record for trial,” the Confrontation

 4 Clause is not implicated. Bullcoming v. New Mexico, 564 U.S. 647, 669 (2011)

 5 (Sotomayor, J., concurring in part) (internal quotation marks and citation omitted).

 6   {39}   Business records, including the surveillance videos at issue in this case, usually

 7 are not testimonial. See Crawford v. Washington, 541 U.S. 36, 56 (2004) (“Most of

 8 the hearsay exceptions covered statements that by their nature were not

 9 testimonial—for example, business records or statements in furtherance of a

10 conspiracy.”). Defendant, however, argued at trial that the Wal-Mart surveillance

11 system functions “purely for prosecution purposes.” She reiterates this argument on

12 appeal. We disagree.

13   {40}   Scholarly articles on this topic indicate numerous non-prosecutorial purposes

14 for surveillance systems in a retail environment. See, e.g., Robert D. Bickel et al.,

15 Seeing Past Privacy: Will the Development and Application of CCTV and Other

16 Video Security Technology Compromise an Essential Constitutional Right in a

17 Democracy, or Will the Courts Strike a Proper Balance?, 33 Stetson L. Rev. 299, 305

18 (2003) (“Cameras are also increasingly used in the workplace to monitor employee

19 productivity, to deter theft, and to enhance workplace security. In addition, cameras


                                                19
 1 are now common in retail establishments to assist in loss prevention and customer

 2 safety.” (footnote omitted)); Christopher S. Milligan, Note, Facial Recognition

 3 Technology, Video Surveillance, and Privacy, 9 S. Cal. Interdisc. L.J. 295, 302 (1999)

 4 (“A large number of companies and businesses use hidden cameras to monitor

 5 employee productivity, to deter theft and fraud, or to ensure safety in the workplace.

 6 Retailers have used video surveillance in their loss-prevention programs for a number

 7 of years.” (footnote omitted)); Alexandra Fiore & Matthew Weinick, Note,

 8 Undignified in Defeat: An Analysis of the Stagnation and Demise of Proposed

 9 Legislation Limiting Video Surveillance in the Workplace and Suggestions for

10 Change, 25 Hofstra Lab. & Emp. L.J. 525, 527 (2008) (“Employers use surveillance

11 to monitor productivity, and to protect property and workers’ safety.”). The

12 arguments of defense counsel are “not to be regarded as evidence.” Miera v.

13 Territory, 1905-NMSC-022, ¶ 17, 13 N.M. 192, 81 P. 586. Despite inferences to be

14 drawn from the above cited articles, Defendant has not directed this Court to any

15 evidence establishing that the primary purpose of Wal-Mart’s surveillance system is

16 to “create a record for trial.” Bullcoming, 564 U.S. at 669. In the absence of such

17 evidence, we decline to conclude that the surveillance videos at issue are testimonial

18 such as to implicate the Confrontation Clause.




                                             20
1 CONCLUSION

2   {41}   For the foregoing reasons, we affirm Defendant’s convictions.

3   {42}   IT IS SO ORDERED.


4                                                ________________________________
5                                                JAMES J. WECHSLER, Judge


6 WE CONCUR:


7 ________________________________
8 MICHAEL E. VIGIL, Judge


 9 ________________________________
10 M. MONICA ZAMORA, Judge




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