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

 2 Opinion Number:

 3 Filing Date: February 18, 2015

 4 NO. 32,669

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 JACKIE WINTERS,

 9         Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
11 William G. W. Shoobridge, District Judge
12 Mark Sanchez, District Judge

13   Hector H. Balderas, Attorney General
14   Santa Fe, NM
15   Kenneth H. Stalter, Assistant Attorney General
16   Albuquerque, NM

17 for Appellee

18   Jorge A. Alvarado, Chief Public Defender
19   Sergio Viscoli, Appellate Defender
20   B. Douglas Wood III, Assistant Appellate Defender
21   Santa Fe, NM

22 for Appellant
 1                                       OPINION

 2 FRY, Judge.

 3   {1}   Defendant appeals his convictions for larceny and criminal damage to property.

 4 The convictions arose out of the same incident, although the charges were not joined

 5 for trial. In his larceny trial, Defendant unsuccessfully challenged testimony by a

 6 sheriff’s deputy that shoe prints found at the scene were similar to shoe prints found

 7 outside Defendant’s residence. He was subsequently found guilty. Following his

 8 conviction for larceny, Defendant conditionally pleaded no contest to the charge of

 9 criminal damage to property (CDP), reserving an unstated issue for appeal. On appeal

10 from both convictions, Defendant argues that Deputy Jason Daugherty’s shoe print

11 testimony was improper lay witness testimony. We conclude that because Deputy

12 Daugherty did not provide a foundation for his opinion that the shoe prints at issue

13 were similar, the district court abused its discretion in allowing him to give this

14 opinion. We therefore reverse his conviction for larceny. Defendant further argues

15 that reversal of his larceny conviction requires reversal of his conditional plea in the

16 CDP case. However, because Defendant neither reserved nor preserved an issue for

17 appeal during his no contest plea in the CDP case, we uphold the plea.
 1 BACKGROUND

 2   {2}   Late one evening, the foreman of an oil extraction company operating in Lea

 3 County, New Mexico, received an alert that one of the company’s pumps had stopped

 4 running. Upon arriving at the scene, a company employee discovered that the “fluid

 5 end” of an injection pump had been removed and was in the bed of a pick-up truck

 6 on site. The pick-up truck did not belong to any of the employees of the company.

 7 In addition to the theft of the fluid end, the instrument panel of a company backhoe

 8 nearby was damaged.

 9   {3}   The company reported the theft, and Deputy Daugherty of the Lea County

10 Sheriff’s Department arrived to investigate. Although the keys to the truck were in

11 the ignition, the truck was inoperable. Deputy Daugherty ran the license plate number

12 of the truck and determined that it belonged to Defendant. Deputy Daugherty also

13 took photos of different sets of shoe prints at the scene that he believed were

14 potentially associated with suspects of the crime. He believed they were associated

15 with the suspects because he eliminated shoe prints he believed matched other

16 employees and law enforcement officials at the crime scene and because the shoe

17 prints were in close proximity to the truck.

18   {4}   Deputy Daugherty then drove to Defendant’s residence to secure the area

19 pending the issuance of a search warrant. While at the residence, Deputy Daugherty


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 1 observed shoe prints outside the residence that he believed were similar to the shoe

 2 prints he photographed at the crime scene. Deputy Daugherty did not take photos of

 3 the shoe prints at the residence, but other investigators on site did. Defendant was

 4 subsequently arrested and charged with one count of larceny and one count of CDP.

 5 Procedural History

 6   {5}   For unknown reasons, Defendant’s charges were separated into two cases

 7 before two different judges in district court. The larceny case went to trial first.

 8 Before trial, Defendant argued that Deputy Daugherty should be precluded from

 9 testifying as to the similarity between the shoe prints at the crime scene and those he

10 observed at Defendant’s residence because the evidence was irrelevant without expert

11 testimony establishing any alleged similarities between the prints. The district court

12 denied the motion. Defendant also objected to the testimony at trial because there was

13 no foundation for Deputy Daugherty’s testimony that the shoe prints were

14 “substantially the same.” The jury convicted Defendant on the larceny charge.

15   {6}   A few days after his conviction in the larceny case, Defendant pleaded no

16 contest to the charge of CDP. During the plea hearing, Defendant indicated that he

17 wished to enter into a conditional no contest plea to reserve an issue for appeal.

18 When asked what particular issue he was reserving, Defendant stated that while he

19 believed that there was an appealable issue, he did not want to single out one


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 1 particular issue until he reviewed the record. Defendant further indicated that he

 2 wished to join the larceny and CDP cases on appeal. The prosecution did not object

 3 to Defendant’s conditional plea. The district court accepted Defendant’s no contest

 4 plea, noting that the plea was “conditioned upon successful prosecution of an appeal

 5 reversing an unstated issue.” Defendant now appeals.

 6 DISCUSSION

 7 Deputy Daugherty’s Opinion Testimony was Improper

 8   {7}   Defendant argues that Deputy Daugherty’s testimony regarding the similarity

 9 between shoe prints found at the scene of the theft and shoe prints found outside

10 Defendant’s residence was improper lay witness opinion testimony. We review this

11 issue for abuse of discretion. See State v. Luna, 1979-NMCA-048, ¶ 18, 92 N.M. 680,

12 594 P.2d 340. We conclude that because no foundation was laid for Deputy

13 Daugherty’s opinion that shoe prints found at the scene were substantially the same

14 to shoe prints found near Defendant’s residence, his opinion constituted improper lay

15 witness opinion testimony.

16   {8}   Rule 11-701 NMRA governs the admission of opinion testimony by lay

17 witnesses. The Rule states,

18               If a witness is not testifying as an expert, testimony in the form of
19         opinion is limited to one that is

20               A.    rationally based on the witness’s perception,

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 1               B.    helpful to clearly understanding the witness’s testimony or to
 2         determining a fact in issue, and

 3               C.     not based on scientific, technical or other specialized knowledge
 4         within the scope of Rule 11-702 NMRA.

 5   {9}   Generally speaking, our Supreme Court has recognized that in some

 6 circumstances shoe print comparison is within the purview of permissible lay witness

 7 opinion testimony. See State v. Rondeau, 1976-NMSC-044, ¶¶ 42-43, 89 N.M. 408,

 8 553 P.2d 688 (holding that a detective could provide non-expert opinion testimony

 9 regarding similarities between shoe prints found at the scene and shoes seized from

10 the defendant); State v. Martinez, 1932-NMSC-051, ¶¶ 7-9, 36 N.M. 360, 15 P.2d 685

11 (holding that lay witness testimony comparing tracks found at the crime scene with

12 the defendant’s shoes was admissible); State v. Ancheta, 1915-NMSC-003, ¶ 10, 20

13 N.M. 19, 145 P. 1086 (holding that testimony by lay witness regarding his

14 observations of tracks at the crime scene with tracks known to be the defendant’s was

15 proper lay witness opinion testimony). While these cases engage in a somewhat

16 cursory analysis of the issue, we glean from them that, at least, the lay witness’s

17 opinion regarding the similarities between the prints or shoes at issue must derive

18 from personal observation or examination of the similarities of the tracks believed to

19 be the suspect’s and a shoe or print known to be the defendant’s. See Rondeau, 1976-

20 NMSC-044, ¶ 43 (“[A] witness who has made measurements of the tracks, and the


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 1 foot or shoe of the defendant, or who has made some such comparison between the

 2 tracks and the shoes of the defendant, [such] as placing the shoe in the tracks, or who

 3 has detailed peculiarities in the tracks on the ground which correspond with the shoes,

 4 or with the proven or admitted tracks of the defendant, that in either of these cases

 5 . . . the witness may give his opinion as to the similarity of the tracks.” (internal

 6 quotation marks and citation omitted)); Martinez, 1932-NMSC-051, ¶ 9 (“[A] witness

 7 who has measured the tracks and compared his measurement with the shoes of the

 8 accused may testify to the results and that a correspondence exists in size and shape.”

 9 (internal quotation marks and citation omitted)).

10   {10}   This principle appears rooted in the concept that “opinion testimony of lay

11 witnesses is generally confined to matters which are within the common knowledge

12 and experience of an average person.” Garcia v. Borden, Inc., 1993-NMCA-047, ¶10,

13 115 N.M. 486, 853 P.2d 737. That is, certain similarities between shoe prints,

14 including tread features and size, can be considered, in some instances, distinctive

15 enough to be readily apparent to an average observer. See Luna, 1979-NMCA-048,

16 ¶ 19 (stating that for a lay witness’s opinion to be based on the witness’s perception,

17 the opinion must be one a “normal person would form on the basis of the observed

18 facts”); People v. Maglaya, 6 Cal. Rptr. 3d 155, 158 (Ct. App. 2003) (stating that

19 when “shoeprints are so large and the points of similarity so obvious, the comparison


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 1 is a matter of nonexpert rather than of expert testimony.” (emphasis, alteration,

 2 internal quotation marks, and citation omitted)). However, because this will not

 3 always be the case, we agree with jurisdictions that require a foundation to be laid

 4 before a lay witness may testify to the purported similarities between prints. In such

 5 a case, a “lay witness may be permitted to express his or her opinion as to the

 6 similarity of footprints if it can be shown that his or her conclusions are based on

 7 measurements or peculiarities in the prints that are readily recognizable and within

 8 the capabilities of a lay witness to observe.” State v. Jells, 559 N.E.2d 464, 471 (Ohio

 9 1990). As the court in Jells explained, “This means that the print pattern is

10 sufficiently large and distinct so that no detailed measurements, subtle analysis or

11 scientific determination is needed.” Id. Without such a foundation, the lay witness’s

12 opinion testimony is outside the bounds of Rule 11-701.

13   {11}   In this case, Defendant objects to Deputy Daugherty’s opinion that shoe prints

14 photographed at the scene were substantially similar to shoe prints photographed

15 outside Defendant’s residence. At trial, Deputy Daugherty testified that he observed

16 shoe prints at the scene and at Defendant’s residence and, based on his observations,

17 the shoe prints were “substantially the same.” No other foundation for the admission

18 of this opinion was given. The State later moved to admit photographs of three




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 1 different shoe prints taken by Deputy Daugherty at the scene but not photographs

 2 taken at the residence.

 3   {12}   The foundation laid for Deputy Daugherty’s opinion regarding the similarities

 4 between the shoe prints was insufficient. Deputy Daugherty did not testify to the

 5 observations he made regarding the similarities in the prints or any other peculiarities.

 6 He merely testified that he observed shoe prints in both places and that they were

 7 “substantially the same.” Indeed, not only did Deputy Daugherty fail to state the

 8 observations that supported his opinion, his testimony failed to specify which of the

 9 three shoe prints—photographs of which were later published to the jury—he

10 believed matched shoe prints later observed outside Defendant’s residence. This is

11 problematic because it does not establish that his opinion was “rationally based on

12 [his] perception[s]” or “helpful to clearly understanding [his] testimony[.]” Rule 11-

13 701(A), (B).

14   {13}   Furthermore, Deputy Daugherty’s testimony failed to establish a foundation

15 linking the shoe prints he observed outside Defendant’s residence with Defendant.

16 In People v. Zismer, the court stated that “[t]here is a sound policy for requiring

17 foundational evidence that the footprint matches [the] defendant’s shoes.” 80 Cal.

18 Rptr. 184, 190 (1969). While the court noted that such a link may not always be

19 required when there is “independent evidence linking [the] defendant with the tracks


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 1 . . . where the fact that [the] defendant made the tracks can only be established by a

 2 comparison of the tracks with [the] defendant’s shoes . . . [s]ufficient foundational

 3 evidence should be required to support a logical inference of identity from the

 4 common distinctive features of the footprint and the [defendant’s] shoes.” Id.

 5 Although this specific issue has not been analyzed by a New Mexico appellate court,

 6 this requirement has been generally acknowledged in our Supreme Court’s decisions

 7 on this issue. See Rondeua, 1976-NMSC-044, ¶ 43 (stating that a witness may testify

 8 to similarities between tracks found and the shoes or shoe prints of the defendant);

 9 Martinez, 1932-NMSC-051, ¶ 9 (stating that “a witness who has measured the tracks

10 and compared his measurement with the shoes of [the] accused may testify to the

11 results and that a correspondence exists in size and shape” (emphasis added) (internal

12 quotation marks and citation omitted)). In this case, aside from the fact that shoe

13 prints were found near Defendant’s residence, there was no other testimony or

14 independent evidence linking the shoe prints found outside Defendant’s home with

15 Defendant. Therefore, Deputy Daugherty’s testimony failed to provide a sufficient

16 foundation for his opinion.

17   {14}   In sum, Deputy Daugherty’s testimony, when considered as a whole, amounts

18 to a cursory opinion that three different shoe prints found at the scene were

19 substantially like some unknown shoe prints he observed outside Defendant’s


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 1 residence, without any specification regarding their similarities, much less which shoe

 2 prints he was actually comparing. Accordingly, his testimony failed to lay a

 3 foundation under Rule 11-701 and was impermissible lay witness opinion testimony.

 4 Defendant Did Not Properly Enter Into a Conditional Plea

 5   {15}   Because we conclude that Deputy Daugherty’s opinion testimony was

 6 improper, we also address Defendant’s argument that he properly preserved the issue

 7 challenging the testimony in his conditional no contest plea in the CDP case.

 8 Defendant argues that if he had, in fact, proceeded to trial on this charge, it is likely

 9 that Deputy Daugherty’s opinion regarding the shoe prints would have been admitted

10 at this trial. Therefore, he claims that reversal on this point in the larceny case

11 requires a reversal of his conviction for CDP. We disagree.

12   {16}   “[A] voluntary guilty plea ordinarily constitutes a waiver of the defendant’s

13 right to appeal his [or her] conviction on other than jurisdictional grounds.” State v.

14 Hodge, 1994-NMSC-087, ¶ 14, 118 N.M. 410, 882 P.2d 1. A conditional plea,

15 however, is a procedure that “enable[s] a defendant to reserve a significant pretrial

16 issue for appeal in a case in which conviction seems certain unless the defendant

17 prevails on the pretrial issue.” State v. Celusniak, 2004-NMCA-070, ¶ 7, 135 N.M.

18 728, 93 P.3d 10. Rule 5-304(A)(2) NMRA governs conditional pleas. The Rule states,

19 “With the approval of the court and the consent of the state, a defendant may enter a


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 1 conditional plea of guilty or no contest, reserving in writing the right, on appeal from

 2 the judgment, to review of the adverse determination of any specified pre-trial

 3 motion.” Id. Thus, a “defendant enters a valid conditional plea by (1) preserving the

 4 error through a pretrial motion, (2) obtaining consent of the prosecution, and (3)

 5 obtaining approval of the court.” Celusniak, 2004-NMCA-070, ¶ 7.

 6   {17}   Apart from the consent requirements, the rule embodies two other principles:

 7 preservation and reservation. First, the rule requires that there be an “adverse

 8 determination of any specified pre-trial motion.” Rule 5-304(A)(2). Therefore, a

 9 defendant must have preserved the issue for appellate review. Second, the defendant

10 must specify the specific issue or issues that he or she is reserving for appellate

11 review. That is, the defendant must “express an intention to reserve a particular

12 pretrial issue for appeal.” State v. Handa, 1995-NMCA-042, ¶ 12, 120 N.M. 38, 897

13 P.2d 225 (internal quotation marks and citation omitted).

14   {18}   In this case, Defendant did neither. Defendant did not file any motion

15 challenging Deputy Daugherty’s testimony in the CDP case. Without such an adverse

16 determination ruling the testimony admissible, there is no alleged error on which to

17 base appellate review. Furthermore, Defendant did not reserve an issue for appellate

18 review. Defendant did not specify an issue when entering his conditional plea, and,

19 in fact, declined to do so. Such failures are not inconsequential. Without preserving


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 1 an issue for review or indicating what issue the defendant is reserving, neither the

 2 prosecutor nor the district court can properly grant their respective consent or

 3 approval of the conditional plea. See Hodge, 1994-NMSC-087, ¶ 20 (stating that both

 4 the prosecutor and the court should ensure that issues reserved in conditional pleas

 5 are case-dispositive). Accordingly, we conclude that Defendant did not enter a valid

 6 conditional plea reserving his right to appeal the admissibility of Deputy Daugherty’s

 7 testimony in his CDP case.

 8 CONCLUSION

 9   {19}   For the foregoing reasons, we reverse Defendant’s conviction for larceny and

10 affirm his plea of no contest to the CDP charge.

11   {20}   IT IS SO ORDERED.


12
13                                         CYNTHIA A. FRY, Judge


14 WE CONCUR:


15
16 MICHAEL E. VIGIL, Chief Judge


17
18 J. MILES HANISEE, Judge



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