 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 30,981

10 KEVIN JIM,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
13 Grant Foutz, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Liane E. Kerr
18 Albuquerque, NM

19 for Appellant

20                                 MEMORANDUM OPINION

21 VIGIL, Judge.

22          Defendant appeals from the district court’s judgment and sentence, convicting

23 him for second degree murder by aiding and abetting. The jury acquitted Defendant

24 for the charges of first degree murder, aggravated assault with a deadly weapon, and
 1 conspiracy to commit first degree murder, in this allegedly gang-related homicide by

 2 stabbing. Unpersuaded that Defendant demonstrated error in the admission of

 3 statements he made to police and evidence of his gang affiliation, we issued a notice

 4 of proposed summary disposition, proposing to affirm. Defendant has responded to

 5 our notice with a memorandum in opposition. We have considered Defendant’s

 6 response and remain unpersuaded that the statements and evidence were erroneously

 7 admitted. Therefore, we affirm.

 8        Defendant argues that the district court erred by admitting a portion of his

 9 recorded statement made to police and some of the officer’s statements during his

10 custodial interrogation under the hearsay exception for statements against interest

11 found in Rule 11-804(B)(3) NMRA. [DS 3-4; MIO 2-3] Defendant argues that the

12 recorded statements were not statements against interest and that most of the

13 statements admitted were those of the police officers trying to coax admissions from

14 Defendant. [MIO 3-4, 6-11] He also contends that the State did not prove that the

15 prior stabbing incident was connected to the current case or that the stabbing in the

16 current case was related to gang activity in any way. [DS 3-5; MIO 4-5, 10-11] Thus,

17 Defendant argues that the statements do not qualify as admissible statements against

18 interest and that the prejudicial effect of the statements far outweigh their probative




                                              2
 1 value because evidence of his gang affiliation under the circumstances constitutes

 2 improper propensity evidence. [Id.; MIO 11-17]

 3        We review the district court’s admission of the hearsay as a statement against

 4 interest for an abuse of discretion. See State v. Torres, 1998-NMSC-052, ¶ 15, 126

 5 N.M. 477, 971 P.2d 1267.

 6        Defendant’s arguments seem to presume that a statement against interest must

 7 rise to the level of a confession to fall under the hearsay exception or to even be

 8 relevant. [MIO 9-10] This is not the case. The Rules of Evidence permit admission

 9 of

10        A statement which was at the time of its making so far contrary to the
11        declarant’s pecuniary or proprietary interest, or so far tended to subject
12        the declarant to civil or criminal liability, or to render invalid a claim by
13        the declarant against another that a reasonable person in the declarant's
14        position would not have made the statement unless believing it to be
15        true.

16 Rule 11-804(B)(3). “[T]he analysis regarding statements against penal interests

17 involves a fact-intensive inquiry that can only be answered in light of all the

18 surrounding circumstances.” Torres, 1998-NMSC-052, ¶ 15 (internal quotation marks

19 and citation omitted). In order to determine whether a statement was made against the

20 declarant’s own penal interest, we view the statement in context. See id. ¶ 14. Thus,

21 a facially neutral statement may be admissible under this hearsay exception where




                                               3
 1 under the circumstances it implicates the declarant, even if it inculpates another as

 2 well. See id. ¶¶ 16-19.

 3        In the current case, Defendant’s statements that were provided in the

 4 memorandum in opposition, when read in response to the officer’s questions, made

 5 several admissions. [MIO 6-8] Defendant’s statements conceded his membership in

 6 a gang, placed Defendant at the scene of the crime, acknowledged that he was out

 7 looking for three rival gang members because of a gang-related incident that occurred

 8 two months before the current stabbing, and acknowledged that Defendant was

 9 stabbed by a rival gang member in the two-month-old incident. [DS 4; MIO 6-8] In

10 the factual context set forth in our notice, these statements clearly were made against

11 Defendant’s interests at the time they were given.

12        Also, for the many reasons stated in our notice, we are not persuaded by

13 Defendant’s assertion that there was no evidence the killing was gang-related.

14        As a result, we hold that Defendant’s statements constituted statements against

15 interests and were relevant to explain the motive behind the killing, however senseless

16 and misdirected that motive and killing may have been.

17        Lastly, we are not persuaded by Defendant’s arguments that the admission of

18 evidence of Defendant’s gang affiliation was more prejudicial than probative and

19 constituted impermissible propensity evidence under our case law. In contrast to the



                                              4
 1 current case, in State v. Torrez, 2009-NMSC-029, ¶ 28, 146 N.M. 331, 210 P.3d 228,

 2 our Supreme Court reversed the defendant’s conviction and ordered a retrial where the

 3 expert testimony on gang culture was not supported by any evidence that the shooting

 4 was “related to gang rituals, rivalries, procedures, or other aspects of gang culture”

 5 and there was no evidence that the “[d]efendant was in fact a gang member at the time

 6 of the shooting.” As we have indicated above and in our notice, the evidence of

 7 Defendant’s gang affiliation was not introduced to show propensity for crime or to

 8 negatively influence the jury. Rather, Defendant’s gang affiliation was relevant to

 9 explain the motive behind the stabbing. We see no abuse of discretion in the district

10 court’s admission of the statements and evidence of gang affiliation.

11        For the reasons stated in this opinion and in our notice, we affirm the district

12 court’s judgment and sentence.

13        IT IS SO ORDERED.


14                                                _______________________________
15                                                MICHAEL E. VIGIL, Judge

16 WE CONCUR:


17 _________________________________
18 JAMES J. WECHSLER, Judge




                                              5
1 _________________________________
2 LINDA M. VANZI, Judge




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