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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from 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. 33,507 4 SERGIO JAMES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Teddy L. Hartley, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Law Offices of the Public Defender 12 Jorge A. Alvarado, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 HANISEE, Judge. 182 {1} Defendant has appealed from a convi ction 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. De fendant has filed a combined memorandum 3 in opposition and motion to amend the docketi ng statement. After due consideration, 4 we remain unpersuaded. We therefore affirm. 5 {2} The pertinent background information was previously set forth in the notice of 6 proposed summary disposition. We will avoid undue reiteration here, focusing instead 7 on the content of the memorandum in opposition. 8 {3} First, Defendant renews hi s challenge to the admissib ility of a video recording 9 of a controlled buy. In the notice of propos ed summary disposition, we observed that 10 the State made an adequate foundational showing. See generally State v. Glen 11 Slaughter & Assocs. , 1994-NMCA-169, ¶¶ 5-6, 119 N.M. 219, 889 P.2d 254. 12 Defendant does not appear to challenge this aspect of our analysis. However, he 13 continues to argue that his constitutional right to confront and cross-examine the 14 confidential informant was violated. [MIO 8-15] 15 {4} We previously observed that “[the d]efendant’s own [recorded] 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 State v. Hernandez , 2009-NMCA-096, ¶¶ 7, 16, 147 N.M. 1, 216 P.3d 193 251 (recognizing that a defendant’s own admissions generally do not present 1 Confrontation Clause concerns as long as they are authenticated and admitted through 2 a proper vehicle). To the extent that Defe ndant and the confidential informant “talked 3 freely with one another without police que stioning,” we similarly proposed to hold 4 that any 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. 7 {5} In his memorandum in opposition Defendant clarifies that while he is visible 8 at the beginning of the drug transaction, the image subseque ntly “shows only the 9 ceiling[,]” until the confidential informant departs. [MIO 5] Relative to the drug 10 transaction, the audio portion of the recording contains only “a one-sided 11 conversation” in the course of which th e confidential informant makes statements 12 about “not having plastics and needing zipl ocks, not having money and needing to go 13 to the bank.” [MIO 5] Th ere was also a significant amount of audio and video 14 interference after the confidential info rmant left the residence. [MIO 5] 15 {6} Defendant contends that the confidential informant’s recorded “statements and 16 conduct” [MIO 9] should be regarded as te stimonial in nature, such that his rights 17 under the Confrontation Clause are impli cated. [MIO 8, 10-13] While acknowledging 18 that no comprehensive definition of “testimonial” statements has been articulated, 194 [MIO 10] Defendant argues th at insofar as the confiden tial informant assuredly knew 1 or should have known that his statements and actions, as reflectedin the recording, 2 would be used against Defendant in the c ourse of the ensuing criminal prosecution, 3 they should be regarded as testimonial. [MIO 11-12] 4 {7} As we previously observed, visual reco rdings are “not testimonial evidence but 5 a species of real evidence.” Glen Slaughter & Assocs. , 1994-NMCA-169, ¶ 5. Insofar 6 as the visual portion of the recording is not classifiable as a testimonial statement, we 7 disagree with Defendant’s suggestion th at the confidential informant’s actions 8 implicate his constitutional right to confrontation. 9 {8} With respect to the audio portion of th e recording, we note that Defendant’s 10 argument appears to correlate with the “pri mary purpose test,” by which “a statement 11 can only be testimonial if the declarant made the statement primarily intending to 12 establish some fact with the understanding that the statement may be used in a 13 criminal prosecution.” State v. Navarette , 2013-NMSC-003, ¶ 8, 294 P.3d 435. It is 14 not at all clear that the recorded statements at issue in this case satisfy the primary 15 purpose test. See, e.g., Telles , 2011-NMCA-083, ¶ 20 (holding that where the 16 defendant and a confidential informant “talked freely with one another without police 17 questioning,” the audible statements by the confidential informant were non18 testimonial for Confrontation Clause purposes, notwithstanding the clandestine 195 recording). For the present purposes we are willing to assume that the confidential 1 informant’s statements fall within this category. However, the analysis does not end 2 there. “The Confrontation Clause is viol ated only if the testimonial statement is 3 offered to prove the truth of the matters asserted.” Navarette , 2013-NMSC-003, ¶ 12. 4 In this case, the only matters asserted by the confidential informant involved “a 5 football injury, a woman buying him a television, not having plastics and needing 6 ziplocks, not having money and needing togo to the bank.” [MIO 5] Clearly, the 7 recording was not offered to prove the truth of any of those assertions. As a result, we 8 remain unpersuaded that the recording is testimonial in nature, such that the 9 Confrontation Clause applies. 10 {9} Finally, we address the motion to amend, by which De fendant seeks to 11 challenge the sufficiency of the evidence to support his conviction. [MIO 15-19] Such 12 a motion will only be granted if the argument is viable. See State v. Sommer , 13 1994-NMCA-070, ¶ 11, 118 N.M. 58, 878 P.2d 1007. For the reasons that follow, we 14 conclude that the issue Defendant seeks to raise is not viable. We therefore deny the 15 motion. 16 {10} When considering a challenge to the sufficiency of the evidence to support a 17 conviction, “we must view the evidence in the light most favorable to the guilty 18 verdict, indulging all reasonable inferences and resolving all conflicts in the evidence 196 in favor of the verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 1 998 P.2d 176. 2 {11} To obtain a conviction, the State wa s required to prove that Defendant 3 transferred cocaine to another, he knew it was cocaine, and he committed the offense 4 within New Mexico on or about th e alleged date. [MIO 16; RP 127] SeeNMSA 1978, 5 § 30-31-20(A)(2) (2006); UJI 14-3110 NMRA. Insatisfaction of these requirements, 6 the State presented the recording discussed above, together with the testimony of the 7 narcotics agents who organized the c ontrolled buy and accepted the drugs from the 8 confidential informant at the conclusion of the transaction. [MIO 16-17] The agents’ 9 testimony established that the confidential informant was given specific instruction 10 to purchase crack cocaine from Defendant at 817 Edwards Street in Clovis, that the 11 recording device was placed on the confidential informant by the n acrotics agents, and 12 that the confidential informant and his vehicl e were searched both before and after the 13 transaction. [MIO 4-5] As previously me ntioned, the recording reflects that the 14 confidential informant drove to the locati on, where he met Defendant in a bedroom 15 and conversed about money, as well as “p lastics,” and “ziplocks,” which the agents 16 correlated with drug packaging. [MIO 4, 6] The recording then reflects that the 17 confidential informant left the residence and drove to meet the agents, to whom he 18 presented a substance which subsequently proved to be cocaine. [MIO 5-6] Succinctly 197 stated, we conclude that this evidence, together with reasonable inferences drawn 1 therefrom, was sufficient to support th e jury’s determination that Defendant 2 transferred cocaine to the confidential in formant on the date inquestion, knowing it 3 to be cocaine. 4 {12} Defendant contends that the State’s ev idence should be deemed insufficient in 5 light of the informational gaps caused by audio and visual interference with the 6 recording, as well as the officers’ lack of firsthand knowledge about the transaction 7 and the confidential informant’s motive and opportunity to falsely incriminate 8 Defendant. [MIO 16-19] We acknowledge the circumstantial nature of the evidence 9 presented below, as well as the fact that a different result might have been reached. 10 However, these countervailing considerations do not render the verdict unsupported. 11 “The finding of facts frequently involves se lecting which inferences to draw. The 12 possibility that on similar facts another trial court may have draw n different inferences 13 and found the consent in this case voluntary does not mean that we must reverse 14 here.” State v. Anderson , 1988-NMCA-033, ¶ 8, 107 N.M . 165, 754 P.2d 542. We are 15 similarly unpersuaded by Defendant’s a ssertion that the evidence “is equally 16 consistent” with a hypothesi s of innocence. [MIO 18] See generally State v. Chandler , 17 1995-NMCA-033, ¶ 15, 119 N.M. 727, 895 P.2d 249 (stating that when a criminal 18 defendant urges the equal hypothe ses argument, an appellate c ourt’s answer is that the 198 jury, by its verdict, demonstrated that it considered the hypothesis it found to be more 1 reasonable). 2 {13} Accordingly, for the reasons statedabove and in the notice of proposed 3 summary disposition, we affirm. 4 {14} IT IS SO ORDERED. 5

6 J. MILES HANISEE, Judge 7 WE CONCUR: 8

9 JAMES J. WECHSLER, Judge 10

11 LINDA M. VANZI , Judge 12