This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 33,488 4 CHARLES LOPEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 7 Donna J. Mowrer, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Santa Fe, NM 13 Steven J. Forsberg, Assistant Public Defender 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 ZAMORA, Judge. 182 {1} Defendant has appealed from a conviction for trafficking a controlled 1 substance. We previously issued a noti ce of proposed summary disposition in which 2 we proposed to uphold the conviction. Defendant has filed a memorandum in 3 opposition. After due consideration, we remain unpersuaded. We therefore affirm. 4
{2} The pertinent background information was previously set forth in the notice of 5 proposed summary disposition. We w ill avoid undue reiteration here, focusing 6 instead on the content of the memorandum in opposition. 7
{3} Defendant renews his challenge to the admissibility of a video recording of a 8 controlled buy. Insofar as this issue was originally presented by reference to our 9 “silent witness” jurisprudence, we origin ally proposed to affirm on grounds that the 10 State made an adequatefoundational showing, see generally State v. Glen Slaughter 11 & Assocs. , 1994-NMCA-169, ¶¶ 5-6, 119 N.M . 219, 889 P.2d 254, and on grounds 12 that in the absence of audio content, con cerns would not arise under the Confrontation 13 Clause. In his memorandum in opposition Defendant now indicates that there was 14 some audio content. [MIO 1] However, this does not alter our assessment. With 15 respect to the audible content of the reco rding, we note that “[d]efendant’s own 16 statements . . . were non-testimonial and [a s such, their admission does] not violate the 17 Confrontation Clause.” State v. Telles , 2011-NMCA-083, ¶ 19, 150 N.M. 465, 261 18 P.3d 1097; see also State v. Hernandez , 2009-NMCA-096, ¶¶ 7, 16, 147 N.M. 1, 216 193 P.3d 251 (recognizing that a defendant’s ow n admissions generally do not present 1 Confrontation Clause concerns as long as they are authenticated and admitted through 2 a proper vehicle). To the exte nt that Defendant and the c onfidential informant “talked 3 freely with one another without police que stioning,” we similarly posit that any 4 audible statements by the confidential informant were non-testimonial for 5 Confrontation Clause purposes, notwith standing the clandestine recording. Telles , 6 2011-NMCA-083, ¶ 20. Nor do hearsay concerns arise. Defendant’s own statements 7 would fall within the exception for admissions by a party. See generallyRule 8 11-801(D)(2)(a) NMRA (stating that a party’s own admission is admissible 9 non-hearsay); see also Telles , 2011-NMCA-083, ¶ 24 (recognizing that a defendant’s 10 own statements in recorded conversations implicating himself in criminal conduct 11 were properly admitted under Rule 11-801( D)(2)(a)). Similarly, any recorded 12 statements by the confidential informant w ould appear to have been admissible to 13 provide context. See Telles , 2011-NMCA-083, ¶ 24; see also State v. 14 Castillo-Sanchez, 1999-NMCA-085, ¶ 23, 127 N.M. 540, 984 P.2d 787 (recognizing 15 that the other party’s statements in a conversation containing an admission by the 16 defendant were admissible since they were necessary to put the defendant’s statements 17 in context). As such, we remain unpersuade d that the admission of the recording was 18

erroneous. 194 {4} Defendant also renews his challenge tothe fundamental fairness of the trial, 1 based on the State’s failure to secure the appearance of the conf idential informant as 2 a witness. [MIO 2-3] In the notice of pr oposed summary disposition we suggested that 3 Defendant should have subpoenaedthe witness if he wishedto ensure her appearance. 4 Defendant asserts that insofar as he lacked a current a ddress, this was not a viable 5 avenue. [MIO 2-3] Assuming this to betrue, we remain unpersuaded that the 6 prosecutor violated his or her duty to see thatDefendant received a fair trial. Insofar 7 as the State did not require her testimony, the State was under no obligation to call her 8 as a witness, and Defendant had no right to cross-examine her. See State v. Savage , 9 1992-NMCA-126, ¶ 12, 115 N.M. 250, 849 P.2d 1073 (observing that a defendant had 10 no right to cross-examine a confidential info rmant who did not appear as a witness). 11 Moreover, as we previously observed, Defe ndant has failed to establish that the 12 State’s conduct prejudiced him. See generally State v. Glasgow, 2000-NMCA-076, 13 ¶ 14, 129 N.M. 480, 10 P.3d 159 (“[T ]he right to a fair trial is not impaired unless the 14 defendant can show prejudice.”), overruled on other grounds by State v. Tollardo , 15 2012-NMSC-008, 275 P.3d 110. 16
{5} Accordingly, for the reasons statedabove and in the notice of proposed 17 summary disposition, we reverse and remand for further proceedings. 18
{6} IT IS SO ORDERED. 195 _______________________________ 1 M. MONICA ZAMORA, Judge 2 WE CONCUR: 3

__________________________________ 4 MICHAEL D. BUSTAMANTE, Judge 5

__________________________________ 6 JONATHAN B. SUTIN, Judge 7