State v. Lopez, 34,095

Defendant Michael Lopez appealed convictions for shoplifting, auto burglary, and larceny following a Grant County trial.
Co-defendant Yolanda Sombrano testified at trial and made prior out-of-court statements to investigators that the defense challenged as hearsay.
A Wal-Mart loss-prevention employee identified Lopez in a surveillance videotape and testified he knew Lopez prior to the incident.
The videotape was admitted at trial; the employee provided foundation/authentication and described its contents to the jury.
The court of appeals issued a calendar notice proposing affirmance; Lopez filed a memorandum in opposition and the court issued this memorandum opinion affirming.

Issue	State's Argument	Lopez's Argument	Held
Admissibility of Sombrano's out-of-court statements	Statements consistent with witness's trial testimony and refute suggestion she was untruthful; thus not hearsay under Rule 11-801(D)(1)(b)	Statements were hearsay and should be excluded; alternatively admissible only under penal-interest exception	Court: Statements were not hearsay because they were prior consistent statements of a testifying witness; no need to reach penal-interest exception; admission affirmed
Sufficiency/Identity proof	Identity proved by Sombrano's identification and loss-prevention employee's identification from video; video itself admitted	Employee lacked personal knowledge to describe video contents and thus identification was unreliable	Court: Videotape authenticated under "silent witness" doctrine; employee had independent knowledge and identification was sufficient; evidence sufficient to support convictions

State v. Sarracino, 125 N.M. 511, 964 P.2d 72 (1998) (standard for appellate review of evidentiary rulings — abuse of discretion)
State v. Apodaca, 118 N.M. 762, 887 P.2d 756 (1994) (standard for sufficiency of the evidence review — view evidence in light most favorable to verdict)
State v. Henderson, 100 N.M. 260, 669 P.2d 736 (1983) (authentication of photographic/video evidence under the "silent witness" theory)
State v. Crain, 124 N.M. 84, 946 P.2d 1095 (1997) (erroneously admitted cumulative evidence is not prejudicial)