IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO , 2 Plaintiff-Appellee, 3

v. NO. 27,796 4 DUANE HADLEY, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Thomas J. Hynes, District Judge 8 Gary K. King, Attorney General 9 Katherine Zinn, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Hugh W. Dangler, Chief Public Defender 13 Karl Erich Martell, Assi stant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 WECHSLER, Judge. 18 Defendant Duane Hadley challenges the district court’s revocation of his 19 probation. Defendant argues that (1) he was denied due process when the district 20 court revoked his probation base d, in part, on the hearsay testimony of his probation 212 officer regarding the contents of a poli ce report and (2) this Court’s decision in State 1 v. Phillips , 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546, requires the reversal of 2 the district court’s order. We conclude that Defendant failed to adequately preserve 3 in the district court the argument that he now makes on appeal and affirm. 4 BACKGROUND 5 On May 31, 2005, Defendant pleaded guiltyto two fourth-degree felonies for 6 contributing to the delinquency of minors. The district court subsequently suspended 7 Defendant’s sentence and ordered Defendant to serve three years of probation. The 8 conditions of Defendant’s probation include d, among other things, (1) “successfully 9 completing any level of supervision and/or treatment program . . . as deemed 10 appropriate by the Probation/Parole Officer,” (2) not possessing or consuming alcohol, 11 and (3) not having contact with anyone under the age of eighteen. On December 5, 12 2006, the State filed a motion to revoke Defe ndant’s probation in the district court. 13 In its motion, the State alleged that Defendant had been a passenger in a car that was 14 stopped by the police in the early hours of one October 2006 morning. The State 15 further alleged that the driver of the car was a fourteen-year-old girl and that 16 Defendant was in possession of a bottle of malt liquor. 17 On January 18, 2007, the matter came before the district court for a hearing. 183 The only witness who testified at the h earing was Defendant’s probation officer, 1 Patricia Fordyce. Ms. Fordyce first testifie d that Defendant had arrived at one of his 2 mandatory counseling sessions appearing to be under the influence of alcohol. 3 Defendant objected to that testimony, arguing that it was inadmissible hearsay 4 evidence and that it violated the Confrontation Clause. The district court responded 5 by stating that the Confrontation Clause did not apply to probation revocation hearings 6 and that it was permissible to offer hear say evidence at such proceedings. Shortly 7 thereafter, the State shifted its focus to the October 2006 incident and requested that 8 the police report pertaining to it be entered into evidence. Defendant then made a 9 “foundation” objection. The district c ourt asked Ms. Fordyce to explain her 10 foundation, and when the State made a sec ond attempt to offer the police report into 11 evidence, Defendant again objected. Defendant protested the fact that there was no 12 testimony offered by the police officer who draf ted the police report. In response, the 13 district court again explained that hearsay evidence may be admitted at probation 14 revocation hearings. Ultimately, Defendant and the district court came to an 15 agreement that Ms. Fordyce would be allowed to testify as to what was written in the 16 police report but that the report itself w ould not be admitted into evidence. The 17 district court then instructed Ms. Fordy ce, without further objection by Defendant, to 184 testify as to what the polic e officer wrote in the report. Accordingly, Ms. Fordyce 1 testified that the police report included the following statements: (1) on the night in 2 question, a vehicle driven by an intoxicated fourteen-year-old girl , in which Defendant 3 was a passenger, was pulled over by a police officer; (2) after pulling the vehicle over, 4 the police officer observed Defendant in the back seat attempting to hide a bottle of 5 malt liquor from the officer’s view; and (3) the officer then identified Defendant as 6 being on probation and subsequently contacted Ms. Fordyce. Next, Ms. Fordyce 7 testified that she then, after the police officer contacted her about the incident, 8 “authorized a probation hold on [Defendant]”. 9 Following the testimony of Ms. Fo rdyce, Defendant renewed his 10 “Confrontation Clause” objection, stating that, although hearsay was admissible, he 11 still had the right to confront the arresting officer. The district court responded by 12 stating, “I don’t think the Confrontati on Clause applies in probation revocation 13 hearings.” Based on that legal conclusion, the district court overruled the objection, 14 and Defendant did not make any further argument regarding his right to confront 15 witnesses at the hearing. Ultimately, th e district court ordered the revocation of 16 Defendant’s probation. In so ruling, the district court specifically noted, among other 17 things, that Defendant had violated the terms of his probation agreement by being in 185 the car with the fourteen-year-old girl, as was stated in the October 2006 police report. 1 Defendant appeals from that order. 2 CONSTITUTIONAL RIGHT TO CONF RONT WITNESSES AT PROBATION 3 REVOCATION HEARINGS 4 In making his argument that the distri ct court erred in revoking his probation, 5 Defendant principally relies on Phillips . In Phillips , we considered the revocation of 6 a defendant’s probation when “[t]he [s]t ate’s only witness at the hearing was a 7 probation officer who relied solely upon statements made in unauthenticated 8 documents in her file.” Id

. ¶ 1. Those statements included “an annotation from 9 another probation officer and some docu ments . . . from Arizona,” where the 10 defendant’s probation had previ ously been transferred. Id . The probation officer who 11 testified was otherwise unfamiliar with the defendant’s case. Id

. ¶ 4. Over objection, 12 the district court concluded that the documents that included the hearsay statements 13 that were offered as testimony “were relevant and kept in the ordinary course of 14 business” and therefore allowed the probati on officer to read the statements into 15 evidence. Id

. ¶¶ 1, 6. Relying on those hearsay statements, the district court 16 concluded that the defendant had violated his probation. Id

. ¶ 8. The defendant 17 subsequently appealed to this Court, arguing that, by relying on those statements as 18 the sole basis upon which to revoke his probation, the district court violated “his 196 confrontation and due process rights.” Id

. ¶¶ 1, 9. 1 In Phillips , we held that, even though the form al rules of evidence do not apply 2 to probation revocation hearings, id . ¶ 11, due process requires the actual presence and 3 testimony of the person whose statements fo rm the basis of a revocation of probation, 4 unless the state makes an adequate showing, and the district court makes a specific 5 finding of “good cause” for not calling such person as a witness. See id

. ¶¶ 12, 16. 6 A showing of “good cause” may include, among other things, a showing regarding the 7 difficulty of securing the pres ence of a particular witness or a showing regarding the 8 particular indicia of reliability or accur acy of the offered hearsay evidence. See State 9 v. Guthrie , 2009-NMCA-___, ¶ 14, ___ N.M. ___, ___ P.3d ___. 10 PRESERVATION 11 It does not appear from the record beforeus that the State made a showing of 12 good cause, or that the district court madea specific finding of good cause, as required 13 by Phillips . However, the State argues that Defe ndant did not preserve this argument 14 for appellate review because Defendant con ceded that Ms. Fordyce could testify about 15 the content of the police report at issue. “I n order to preserve an error for appeal, it 16 is essential that the ground or grounds of the objection or motion be made with 17 sufficient specificity to alert the mind of the trial court to the claimed error or errors, 187 and that a ruling thereon then be invoked.” State v. Varela , 1999-NMSC-045, ¶ 25, 1 128 N.M. 454, 993 P.2d 1280 (internal quotation marks and citation omitted). We 2 agree with the State that Defendant did not adequately preserve his argument that the 3 district court erred in allowing Ms. Fordyce to testify about the content of the police 4 report without affording Defendant the ab ility to confront the police officer who 5 prepared the report. 6 Defendant objected to the receipt of th e police report in evidence, raising the 7 lack of testimony by the police officer who prepared the report. After discussion, 8 Defendant agreed that Ms. Fordyce could te stify to the content of the report without 9 the report being in evidence. He did so without further objection. Even though 10 Defendant again raised his objection in closing argument, the testimony had been 11 received in evidence upon Defendant’s conce ssion and without objection. With that 12 evidence, the availability of the police officer who preparedthe report to testify was 13 no longer significant. Neither the State northe district court was required to show 14 good cause for the receipt of the evidence. 15 CONCLUSION 16 The district court did not improperly re voke Defendant’s probation. We affirm. 178 IT IS SO ORDERED. 1

_______________________________ 2 JAMES J. WECHSLER, Judge 3

WE CONCUR: 4

_________________________________ 5 CYNTHIA A. FRY, Chief Judge 6

_________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8