This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 32,717 4 DOMINIC MONTOYA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Fernando R. Macias, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Jacqueline R. Medina, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Mary Barket, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 SUTIN, Judge. 192 {1} Following a jury trial, Defendant Dominic Montoya was convicted of battery 1 upon a peace officer, a fourth degree felony, contrary to NMSA 1978, Section 30-22- 2 24 (1971). Defendant appeals his conviction on two grounds. First, he argues that he 3 was improperly excluded from critical proceedings, including voir dire of the jury 4 panel. Second, he argues that he was prejudiced by an erroneous jury instruction. We 5 reverse Defendant’s convic tion on the basis of his exclusion from voir dire; 6 accordingly, we do not consider Defendant’ssecond argument. We remand for a new 7 trial consistent with this Opinion. 8 BACKGROUND 9 {2} Because this is a memorandum opinion and the parties are familiar with the 10 factual and procedural history of the case, we do not provide a discussion thereof. 11 Factual and procedural details will be di scussed, as required, in the body of this 12 Opinion. 13 DISCUSSION 14 {3} Defendant argues that his constitutional ri ght to be present during the voir dire 15 stage of the criminal proceedings against him was violated and that this deprivation 16 requires reversal of his conviction and remand for a new trial. See State v. Padilla , 17 2002-NMSC-016, ¶ 11, 132 N.M. 247, 46 P.3d 1247 (recognizing that a defendant has 18 a constitutional right to be present and to have the assistance of an attorney during the 193 jury selection). The State concedes th at reversal and remand is warranted; and 1 although we are not bound by the State’s con cession, we conclude that under the 2 circumstance of this case, Defendant ’s conviction must be reversed. See State v. 3 Guerra , 2012-NMSC-027, ¶ 9, 284 P.3d 1076 (stati ng that an appellate court is not 4 bound by the prosecution’s concession of an issue). Our review is de novo. State v. 5 Herrera , 2014-NMCA-007, ¶ 4, 315 P.3d 343 (stating that constitutional issues are 6 reviewed de novo). 7 {4} A defendant may waive his right to be present during critical stages of the 8 proceedings by either a “knowing, intelligent, and voluntary waiver” of his presence 9 “or as an implied waiver when a defendant has forfeited hi s . . . right to presence by 10 conduct.” Padilla , 2002-NMSC-016, ¶ 14. It is incumbent upon the district court to 11 ensure “that the waiver is valid[] and is predicated upon a meaningful decision of the 12 accused[.]” Id. ¶ 19 (internal quotation marks and c itation omitted). Thus, in the case 13 of a knowing, intelligent, and voluntary waiver , the court must engage in “a sufficient 14 colloquy” with the defendant, confirming th at the defendant understands the nature 15 of the right to be present, and the implications of the waiver. Id. ¶¶ 19-20. In a 16 disruptive-behavior circumstance, a defendant can be excluded from the proceedings 17 “if, following the judge’s warning that he will be removed if his disruptive behavior 184 continues, he nevertheless insi sts upon such disruptive conduct.” State v. Corriz , 1 1974-NMSC-043, ¶ 5, 86 N.M. 246, 522 P.2d 793. 2 {5} In the present case, while Defendant was en route from the jail to the 3 courthouse, the district court decided th at Defendant should be excluded from the 4 courtroom during voir dire. The court’s deci sion in that regard was apparently based 5 on Defendant’s “tendency tobe making comments, cons tantly” and on Defendant’s 6 counsel’s acquiescence to the f act that Defendant had engaged in “disruptive behavior 7 in the past[.]” It is clear from the transc ript that the court’s and counsel’s discussion 8 of Defendant’s in-court demeanor was entirely premised on events occurring prior to 9 the day of jury selection in the present case. When Defendant arrived at the 10 courthouse, he was directed to a room fro m which he could observe and listen to the 11 voir dire proceedings via television. 12 {6} The court did not advise Defendant of hi s right to be present for voir dire or 13 otherwise engage in a colloquy with him so as to confirm Defendant’s waiver of his 14 right to be present; nor was Defendant given a warning or an opportunity to behave 15 appropriately before being ex cluded from the proceedings. See Padilla , 2002-NMSC16 016, ¶ 14; Corriz , 1974-NMSC-043, ¶ 5. Thus, Defendant did not knowingly, 17 intelligently, or voluntarily waive his right to be present during voir dire, nor did 18 Defendant forfeit that right by virtue of his behavior. Weconclude that, under these 195 circumstances, Defendant’s constitutional ri ght to be present during voir dire was 1 violated. This violation does not warrant automatic reversal; we mu st consider further 2 whether the error was harmless. See Padilla , 2002-NMSC-016, ¶ 22. 3 {7} Constitutional error is harmless only if there is no reasonable possibility that the 4 error contributed to the defendant’s conviction. State v. Tollardo , 2012-NMSC-008, 5 ¶ 45, 275 P.3d 110. The State bears the burden of demonstrating that the error was 6 harmless. Id. ¶ 46. Here, the State concedes that the error was not harmless and 7 therefore does not attempt to demonstrate otherwise. Accordingly, we conclude that 8 the error was not harmless. 9 {8} In sum, we conclude that Defendant wa s deprived of his constitutional right to 10 be present during voir dire. The error was not harmless. Under these circumstances, 11 reversal of Defendant’s conviction is warranted. See Padilla , 2002-NMSC-016, ¶ 23 12 (reversing the defendant’s conviction for a non-harmless constitutional error related 13 to the defendant’s right to be present at jury selection). 14 CONCLUSION 15 {9} For the foregoing reasons, we reverse Defendant’s convic tion and remand for 16 a new trial. 17 {10} IT IS SO ORDERED. 186 __________________________________ 1 JONATHAN B. SUTIN, Judge 2

WE CONCUR: 3

_______________________________ 4 CYNTHIA A. FRY, Judge 5

_______________________________ 6 MICHAEL E. VIGIL, Judge 7