{ "id": 4240903, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. TREVOR M., Child-Appellant", "name_abbreviation": "State v. Trevor M.", "decision_date": "2014-10-16", "docket_number": "Docket No. 32,905", "first_page": "189", "last_page": "196", "citations": [ { "type": "official", "cite": "2015-NMCA-009" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "109 N.M. 177", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590303 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0177-01" ] }, { "cite": "1989-NMCA-090", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0 }, { "cite": "120 N.M. 191", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558827 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/120/0191-01" ] }, { "cite": "1995-NMCA-064", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 1" } ], "opinion_index": 0 }, { "cite": "106 N.M. 753", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708555 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/106/0753-01" ] }, { "cite": "1988-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 10-11" } ], "opinion_index": 0 }, { "cite": "79 N.M. 697", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2738241 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0697-01" ] }, { "cite": "1968-NMSC-185", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0 }, { "cite": "1997-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 142281 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/123/0640-01" ] }, { "cite": "121 N.M. 77", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566657 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0077-01" ] }, { "cite": "1995-NMCA-127", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0 }, { "cite": "2006-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670050 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0094-01" ] }, { "cite": "2003-NMCA-057", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15581 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0566-01" ] }, { "cite": "2007-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3669946 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 12" }, { "parenthetical": "holding that \"the [witness's] busy schedule and the inconvenience that would be caused by either requiring his testimony or postponing the trial until he was able to testify are just the sort of considerations that do not satisfy the exceptions to the [confrontation [cjlause.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0751-01" ] }, { "cite": "304 P.3d 425", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCERT-006", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "308 P.3d 135", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-081", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4334598 ], "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0506-01" ] }, { "cite": "328 P.3d 1188", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCERT-006", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "327 P.3d 1108", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-066", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4239757 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0212-01" ] }, { "cite": "497 U.S. 836", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6220020 ], "year": 1990, "pin_cites": [ { "page": "844", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/497/0836-01" ] }, { "cite": "2009-NMCA-036", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243360 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 10, 13" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0761-01" ] }, { "cite": "1998-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834273 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 8-9" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0111-01" ] }, { "cite": "1999-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106506 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0454-01" ] }, { "cite": "408 U.S. 471", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782797 ], "year": 1972, "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/us/408/0471-01" ] }, { "cite": "150 N.M. 84", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4251200 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/150/0084-01" ] }, { "cite": "2002-NMCA-058", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260713 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 22" }, { "page": "\u00b6 20" }, { "page": "\u00b6 22" }, { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0258-01" ] }, { "cite": "387 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11333627 ], "year": 1967, "pin_cites": [ { "page": "33-34, 41, 55-56" } ], "opinion_index": 0, "case_paths": [ "/us/387/0001-01" ] }, { "cite": "2010-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250007 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 55" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0022-01" ] }, { "cite": "1997-NMCA-026", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142222 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0206-01" ] }, { "cite": "1998-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834365 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 1, "case_paths": [ "/nm/125/0721-01" ] }, { "cite": "1998-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834273 ], "opinion_index": 1, "case_paths": [ "/nm/125/0111-01" ] } ], "analysis": { "cardinality": 996, "char_count": 23653, "ocr_confidence": 0.774, "pagerank": { "raw": 4.643594115661138e-08, "percentile": 0.2913498045638954 }, "sha256": "a2bbd268b047dcd9e4955b15230aac3c468664d6f889b3add6752a6691e5195d", "simhash": "1:95669d0c01ba1c59", "word_count": 3792 }, "last_updated": "2023-07-14T17:10:55.229683+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL D. BUSTAMANTE, Judge", "MICHAEL E. VIGIL, Judge", "M. MONICA ZAMORA, Judge (specially concurring).", "M. MONICA ZAMORA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. TREVOR M., Child-Appellant." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\nChild appeals the revocation of his probation. We conclude that Child had a statutory right to confront the witnesses against him that was violated when the district court permitted a witness to testify by telephone without determining that telephonic testimony was necessary to further an important public interest. We also conclude that the admissible evidence was insufficient to support a conclusion that Child willfully violated his conditions of probation. We reverse and remand.\nBACKGROUND\nChild pled guilty to residential burglary and was sentenced to supervised probation for two years. Roughly six months later, Child admitted that he violated the conditions of probation and was sentenced to one year commitment to the Children, Youth and Families Department, which was suspended in favor of a new two-year term of supervised probation. One of the terms of the probation agreement signed by Child required him to \u201c[ajttend and successfully complete an [o]ut[]of[-h]ome [placement.\u201d Child was placed with New Visions Group Home in Clovis, New Mexico.\nAfter New Visions staff suspected Child of taking drugs or alcohol, they decided to discharge him from the program. While Child was being discharged, he walked out of the group home, and a warrant was issued for his arrest. Child was arrested nine days later. The State filed a petition to revoke Child\u2019s probation based on his failure to complete the out-of-home placement. An adjudicatory hearing on the petition was held before a special master. The State presented testimony of a social worker at New Visions Group Home and the juvenile probation officer (JPO) assigned to Child\u2019s case. The social worker testified by telephone over Child\u2019s objection.\nThe special master found that Child had willfully violated the probation agreement by failing to successfully complete the out-of-home placement, and the district court adopted the special master\u2019s findings and revoked Child\u2019s probation. Child\u2019s exceptions to the special master\u2019s report were denied. Additional facts are provided as necessary to our discussion.\nDISCUSSION\nChild makes four arguments for reversal of the district court\u2019s ruling and/or for a new hearing. First, Child maintains that his right to confront witnesses against him was violated when the social worker testified by telephone. See U.S. Const, amends. VI, XIV. Second, he contends that the State failed to demonstrate that he willfully violated his probation conditions. Third, he argues that the district court erred in admitting hearsay testimony by both of the State\u2019s witnesses. Finally, Child argues that the hearing was faulty because he did not consent to the appointment of a special master as required by the Children\u2019s Code. We conclude that Child\u2019s confrontation rights were violated and that there was insufficient evidence supporting the special master\u2019s determination that Child willfully violated his probation conditions. We address Child\u2019s evidentiary arguments in our discussion of the sufficiency of the evidence. Because it was not preserved for appeal, we do not consider Child\u2019s argument as to the appointment of a special master. We reverse and remand for a new hearing.\n\u201cThe . . . issue of whether the admission of evidence violates an accused\u2019s rights under the [Sixth Amendment] is a question of law which is reviewed de novo on appeal.\u201d In re Darcy S., 1997-NMCA-026, \u00b6 13, 123 N.M. 206, 936 P.2d 888. Child argues that (1) the Sixth Amendment\u2019s guarantee of the right to confrontation applies to juvenile probation revocation hearings; (2) he is entitled to due process of law \u2014 including confrontation of witnesses \u2014 by the Fourteenth Amendment; and (3) regardless of whether the Sixth Amendment applies here as a matter of constitutional law, the Legislature has guaranteed the right to confrontation through NMSA 1978, Section 32A-2-24(B) (2009). See U.S. Const, amends. VI, XIV. Because we agree with the latter argument, we need not address the first two.\nIt is well established that juveniles have the same rights at trial as adults, including the \u201cright to notice of charges, to counsel, to confrontation and to cross-examination of witnesses, and to the privilege against self-incrimination [.]\u201d State v. Rudy B., 2010-NMSC-045, \u00b6 55, 149 N.M. 22, 243 P.3d 726 (emphasis added) (citing In re Gault, 387 U.S. 1, 33-34, 41, 55-56 (1967)); see NMSA 1978, \u00a7 32A-2-14(A) (2009) (\u201cA child subject to the provisions of the Delinquency Act is entitled to the same basic rights as an adult, except as otherwise provided in the Children\u2019s Code, including rights provided by the Delinquency Act[.]\u201d); \u00a7 32A-2-1 (2007) (stating that \u201cChapter 32A, Article 2 NMSA 1978 may be cited as the \u2018Delinquency Act.\u2019 \u201d); Form 10-424 NMRA (\u201cAdvice of rights by judge\u201d form listing the rights a child gives up by entering a plea or consent decree, including \u201cthe right to confront the witnesses against the child and to cross-examine them\u201d). Unlike adult probation revocations, which are decidedly different from trials, \u201c[a]n allegation of a juvenile probation violation is treated as if it were a charge brought in a delinquency proceeding.\u201d State v. Erickson K., 2002-NMCA-058, \u00b6 15, 132 N.M. 258, 46 P.3d 1258; see State v. Guthrie, 201 l-NMSC-014, \u00b6 10, 150 N.M. 84, 257 P.3d 904 (discussing adult probation revocation hearings and stating that \u201c[bjecause loss of probation is loss of only conditional liberty, \u2018the full panoply of rights due a defendant in a [criminal trial] do [ ] not apply\u2019 \u201d (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). This approach to probation revocation hearings is reflected in the Children\u2019s Code and Children\u2019s Court rules. For instance, Section 32A-2-24(B) provides that \u201cproceedings to revoke probation shall be governed by the procedures, rights and duties applicable to proceedings on a delinquency petition.\u201d Similarly, Rule 10-261(C) NMRA provides that \u201c[proceedings to revoke probation shall be conducted in the same manner as proceedings on petitions alleging delinquency. The child whose probation is sought to be revoked shall be entitled to all rights that a child alleged to be delinquent is entitled to under law and these rules[.]\u201d The effect of this language is plain: since juveniles have the right to confront witnesses during delinquency proceedings, they must be accorded that right in probation revocation hearings.\nThe State concedes that \u201c[b]y virtue of the [fact that] Section 32A-2-24[(B)] [provides] that a juvenile has the same rights at a probation revocation hearing as an adjudication of delinquency, Child undoubtedly had a statutory right to face-to-face confrontation at the hearing.\u201d The State maintains, however, that this Court should not address Child\u2019s statutory argument because Child failed to preserve it. In response to the State\u2019s motion'for permission for its witness to testify by telephone, Child filed a written objection citing his right to confront witnesses under the Sixth Amendment. The objection did not mention the Children\u2019s Code or Section 32A-2-24(B). The district court granted the State\u2019s motion without a hearing. At the probation revocation hearing before the special master, Child objected again on confrontation grounds but did not specify the basis for the right asserted. The State argues that because Child did not cite Section 32A-2-24(B), his objection was insufficient to alert the district court or special master to the argument that his right to confrontation derives from statute. See State v. Varela, 1999-NMSC-045, \u00b6 25, 128 N.M. 454, 993 P.2d 1280 (\u201cIn order to preserve an error for appeal, it is essential that the ground or grounds of the objection or motion be made with sufficient specificity to alert the mind of the trial court to the claimed error or errors, and that a ruling thereon then be invoked.\u201d (internal quotation marks and citation omitted)). We disagree.\nHere, inherent in Child\u2019s invocation of the Sixth Amendment were two questions: (1) whether Child had a right to Sixth Amendment-like confrontation in a probation revocation hearing, and (2) whether the right would be violated by telephonic testimony. In our view, it was thus not necessary to refer specifically to the statute to raise the first question because, although in this context the specific source of the right is statutory, the nature and scope of the right is the same as that under the Sixth Amendment.\nThe State cites State v. Jason F., 1998-NMSC-010, \u00b6\u00b6 8-9, 125-N.M. 111, 957 P.2d 1145 for the proposition that \u201c[w]hen a statute or rule provides greater protection than the constitution, an appellant does not fairly invoke a ruling on the greater protection by exclusively arguing a constitutional violation.\u201d Jason F. is inapposite. In that case, the child objected to appointment of a special master on constitutional grounds. Id. \u00b6 8. On appeal, he argued that appointment of the special master was error because the appointment did not comply with the rule governing such matters. Id. \u00b6 7. The Court held that \u201c[the child] did not invoke a ruling on the application of [the rule]\u201d and therefore the issue was not preserved. Id. \u00b6 9. The distinguishing feature between Jason F. and the present case is that the child\u2019s constitutional objection at trial was entirely unrelated to his rule-based argument on appeal. In contrast, here, the right provided by Section 32A-2-24(B) is the right guaranteed by the Sixth Amendment and, consequently, the analysis of an alleged violation of the right is the same whether Child invoked the Sixth Amendment alone or Section 32A-2-24(B). Cf. State v. Guthrie, 2009-NMCA-036, \u00b6\u00b6 10, 13, 145 N.M. 761, 204 P.3d 1271 (recognizing that the confrontation rights guaranteed under the Sixth Amendment and Fourteenth Amendments differ, distinguishing between an objection based on the confrontation clause and one based on a \u201cmore general constitutional argument regarding confrontation,\u201d and holding that the latter was sufficient to preserve a due process challenge for appeal), rev\u2019d on other grounds, 2011-NMSC-014. We conclude that the district court was sufficiently apprised of Child\u2019s argument.\nHaving concluded that Child was entitled to confront the State\u2019s witnesses, we turn now to whether that right was violated when the social worker testified by telephone. \u201c[T]he [confrontation [c]lause [of the Sixth Amendment] guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.\u201d Maryland v. Craig, 497 U.S. 836, 844 (1990) (internal quotation marks and citations omitted). The right is not absolute and deviation from live, face-to-face testimony may be permitted when an \u201cexception is necessary to further an important public policy.\u201d State v. Schwartz, 2014-NMCA-066, \u00b6 6, 327 P.3d 1108, cert. denied, 2014-NMCERT-006, 328 P.3d 1188 (internal quotation marks and citation omitted). Any exception must be supported by \u201ca particularized showing of necessity [by the district court].\u201d State v. Smith, 2013-NMCA-081, \u00b6 8, 308 P.3d 135, cert. denied, 2013-NMCERT-006, 304 P.3d 425. \u201cWhere there are requirements of important public policy and showing of necessity, mere inconvenience to the witness is not sufficient to dispense with face-to-face confrontation.\u201d State v. Almanza, 2007-NMCA-073, \u00b6 12, 141 N.M. 751, 160 P.3d 932.\nHere, the district court did not make any findings on the necessity of telephonic testimony. Moreover, the State\u2019s motion stated only that telephonic testimony was \u201cin the best interest of judicial economy.\u201d The State advised the court at the probation revocation hearing that, if the motion was not granted, it would need a continuation to a later date in order to have the social worker present. This position implies that the witness could be present but just not on the day of the hearing and amounts to \u201cmere inconvenience.\u201d Id. There being no particularized findings of necessity and the State\u2019s justification being insufficient, we conclude that the social worker\u2019s testimony by telephone violated Child\u2019s right to confront the witness. See id. (holding that \u201cthe [witness\u2019s] busy schedule and the inconvenience that would be caused by either requiring his testimony or postponing the trial until he was able to testify are just the sort of considerations that do not satisfy the exceptions to the [confrontation [cjlause.\u201d).\n\u201cA violation [of the right to confrontation] alone, however, does not require a new trial. Rather, only when a violation of the confrontation clause is harmful to the defendant does the violation require anew trial.\u201d Schwartz, 2014-NMCA-066, \u00b6 15. The burden is on the state to demonstrate that admission of the telephonic testimony was harmless. Id. Here, the State\u2019s only arguments related to the confrontation clause are that it does not apply in juvenile probation revocation hearings and that Child failed to preserve the issue properly. The State did not address whether any violation was harmless and therefore failed to meet its burden.\nWe next address Child\u2019s contention that there was insufficient evidence that he willfully violated the conditions of his probation. More specifically, Child maintains that the State failed to prove that it was Child\u2019s willful behavior that caused him to be discharged from New Visions Group Home. See In re Bruno R., 2003-NMCA-057, \u00b6 11, 133 N.M. 566, 66 P.3d 339 (\u201cTo establish a violation of a probation agreement, the obligation is on the [sjtate to prove willful conduct on the part of the probationer so as to satisfy the applicable burden of proof.\u201d). \u201cThe test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.\u201d State v. Duran, 2006-NMSC-035, \u00b6 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). We examine the evidence in the light most favorable to the district court\u2019s ruling. See id. In our analysis, we focus only on admissible evidence. See Erickson K., 2002-NMCA-058, \u00b6 22.\nBecause we have already determined that the social worker\u2019s testimony was improperly admitted, we consider only the JPO\u2019s testimony. Child argues that the JPO\u2019s testimony \u201cconsisted largely of inadmissible hearsay, which should have been excluded.\u201d See Rules 11-801, -802 NMRA; Erickson K., 2002-NMCA-058, \u00b6 20 (holding that the rules of evidence apply in the adjudicatory phase of juvenile probation revocation hearings). He points to the JPO\u2019s testimony that she is based in Hobbs while New Visions Group Home is in Clovis, and maintains that the JPO\u2019s testimony about Child\u2019s conduct and discharge was based on what New Visions staff told her. For instance, the JPO testified that\n[her] understanding [] is that the incident occurred while they were trying to take him to school, he got off the van, they found him a short time later under the influence. At that time was when they had informed me about that, and that they were going to discharge him. And I had asked him, I\u2019m like, well, if he\u2019s under the influence of Spice, can you please obtain that UA for me. And shortly after that is when they called me again stating that he left the premises.\n\u2022 The State argues that this argument was not preserved for review. We disagree. Child moved for a directed verdict at the conclusion of evidence. In his motion, he argued that the JPO\u2019s testimony was both nonspecific and \u201csecondhand.\u201d He stated, \u201c[The JPO] was not supervising [Child], so what she presented to you in large part was 1 . . what had been relayed to her from people in Clovis.\u201d These statements are sufficient to alert the district court of the basis of the objection and preserve a hearsay objection for appeal. See State v. Johnson, 1995-NMCA-127, \u00b6 6, 121 N.M. 77, 908 P.2d 770 (holding that even though the defendant did not mention the specific right at issue, the \u201c[defendant\u2019s] arguments... were adequate to alert the tidal court to the basis for [the defendant\u2019s proffer\u201d), rev\u2019d on other grounds, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 869.\nIn what we understand to be a request that we apply the \u201cright for any reason\u201d principle, the State also argues that it \u201clikely would have sought to admit the statements under the business records exception to the hearsay rule\u201d had Child objected during the testimony. See Scott v. Murphy Corp., 1968-NMSC-185, \u00b6 10, 79 N.M. 697, 448 P.2d 803 (\u201cIt is hornbook law that the decision of a trial court will be upheld if it is right for any reason.\u201d); Rule 11-803(6) NMRA. We note, however, that the State did not seek to admit any documents that would fit within the business records exception. See Erickson K., 2002-NMCA-058, \u00b6 22 (\u201c[T]he [s]tate made no attempt to present documentation that might have been admissible under a recognized hearsay exception.\u201d). Nor does it provide on appeal any foundation for admission of any evidence as a business record. See Rule 11-803(6); State ex rel. Elec. Supply Co. v. Kitchens Constr., Inc., 1988-NMSC-013, \u00b6\u00b6 10-11, 106 N.M. 753, 750 P.2d 114 (discussing the foundational requirements for business records). Further, the State does not explainhow the JPO\u2019s statements would have been admissible under the business record exception. This argument is therefore unavailing. Cf. Gracia v. Bittner, 1995-NMCA-064, \u00b6 1, 120 N.M. 191, 900 P.2d 351 (\u201cEvery litigated case is tried at least three times: there is the trial the attorneys intended to conduct; there is the trial the attorneys actually conducted; and there is the trial that, after the verdict, the attorneys wished they had conducted.\u201d).\nAfter a review of the testimony, we agree with Child that the JPO\u2019s testimony as to the events in Clovis was improperly admitted because it was based on what she had been told by others. See Erickson K., 2002-NMCA-058, \u00b6 22 (concluding that the testimony of a juvenile probation officer was insufficient to prove that a juvenile defendant failed to complete an out-of-home placement where the officer did not have firsthand knowledge that the defendant had been discharged and why, and \u201c[t]he [sjtate did not present the testimony of a [group home] staff member who might have had firsthand knowledge of [the defendant's situation\u201d). Thus, since all of the testimony presented by the JPO and the social worker on Child\u2019s conduct before he was discharged from New Visions Group Home was improperly admitted, we conclude that the evidence was insufficient to support a finding that Child\u2019s discharge was the result of willful conduct. See id.\nNevertheless, we remand for a new hearing. \u201cWhile it is true that the State failed to present sufficient admissible evidence to support the revocation of [Child\u2019s] probation, we must consider all of the evidence presented, including the wrongfully admitted evidence, to determine whether to remand for a new hearing.\u201d Id. \u00b6 25; see State v. Post, 1989-NMCA-090, \u00b6 22, 109 N.M. 177, 783 P.2d 487 (\u201cIf all ofthe evidence, including the wrongfully admitted evidence, is sufficient, then retrial following appeal is not barred.\u201d). Here, the social worker testified that Child had \u201cabsconded\u201d from school and was not compliant with the group home\u2019s rules prohibiting substance abuse. This evidence supports a determination that Child willfully violated his conditions of probation. We note that Child argues that there was inadequate foundation for the social worker\u2019s opinion testimony that Child was under the influence of \u201csomething\u201d when he returned to the group home. See Rule 11-701 NMRA. We need not address this contention, however, because, even if that testimony was improperly admitted, we still consider it in our analysis of the appropriateness of remand for a new hearing.\nFinally, we do not address Child\u2019s argument that revocation of his probation should be reversed because he did not consent to appointment of a special master. See Rule 10-163 (C) NMRA (\u201c[T]he special master shall not preside at a[n] ... adjudicatory hearing or dispositional hearing without concurrence of the parties.\u201d). Child did not object to the appointment of the special master when the district court ordered the hearing before a special master, nor at any time before or during the hearing. Child\u2019s failure to object and participation in the hearing without objection is akin to a waiver of any objection to the appointment. See Jason F., 1998-NMSC-010, \u00b6 10 (stating that the child\u2019s failure to object to appointment of a special master based on non-compliance with the rule was a waiver of the objection). In addition, Child objected to the special master only after the hearing was completed and the special master\u2019s report filed. This untimely objection was insufficient to preserve Child\u2019s argument.\nCONCLUSION\nChild\u2019s right to confront the witnesses against him was violated when one ofthe witnesses testified by telephone without the district court\u2019s determination that telephonic testimony was necessary to further an important public interest. In addition, the admissible evidence was insufficient to prove the required elements of a probation violation. We therefore reverse the revocation of Child\u2019s probation. But because the entirety of the evidence supports a conclusion that Child violated his conditions of probation, we remand for a new hearing.\nFinally, both parties agree that the judgment and disposition erroneously included a count that was dismissed pursuant to the plea agreement. On remand, the district court should correct the judgment to reflect the plea agreement.\nIT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nWE CONCUR:\nMICHAEL E. VIGIL, Judge\nM. MONICA ZAMORA, Judge (specially concurring).", "type": "majority", "author": "BUSTAMANTE, Judge." }, { "text": "ZAMORA, Judge\n(specially concurring).\nI concur in Judge Bustamante\u2019s opinion as it pertains to Child\u2019s first three arguments. I understand that Jason F., 1998-NMSC-010, \u00b6 10 is controlling as it applies to Child\u2019s fourth argument that he did not consent to the appointment of a special master to preside over his probation revocation hearing. See Trujillo v. City of Albuquerque, 1998-NMSC-031, \u00b6 33, 125 N.M. 721, 965 P.2d 305 (\u201cStare decisis is the judicial obligation to follow precedent, and it lies at the very core of the judicial process of interpreting and announcing law.\u201d). This special concurrence is for the purposes of requesting that the Supreme Court invite the Children\u2019s Court Rules Committee to modify Children\u2019s Court Rule 10-163(C) to clarify who has the burden of requesting and showing that there was concurrence of the parties allowing a special master to preside over the proceedings. Rule 10-111(C) NMRA (1995) as it applied in Jason F. and its recompilation as Rule 10-163(C) are identical. My concern, in both Jason F. and this case, lies with the Child\u2019s failure to either preserve the issue for appeal or to timely object to the appointment. The question raised is whether a Child\u2019s right to trial by a judge can be so casually waived, where the intent of appointing a special master was for purposes of expeditious handling of children\u2019s court cases and was meant to be the exception rather than the rule.\nM. MONICA ZAMORA, Judge", "type": "concurrence", "author": "ZAMORA, Judge" } ], "attorneys": [ "Gary K. King, Attorney General James W. Grayson, Assistant Attorney General Santa Fe, NM for Appellee", "Law Offices of the Public Defender Jorge A. Alvarado, Chief Public Defender Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-009\nFiling Date: October 16, 2014\nDocket No. 32,905\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. TREVOR M., Child-Appellant.\nGary K. King, Attorney General James W. Grayson, Assistant Attorney General Santa Fe, NM for Appellee\nLaw Offices of the Public Defender Jorge A. Alvarado, Chief Public Defender Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0189-01", "first_page_order": 205, "last_page_order": 212 }