State v. Delgado ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 27,192
10 PABLO DELGADO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Silvia Cano-Garcia, District Judge
14 Gary K. King, Attorney General
15 Ann M. Harvey, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender
19 Kathleen T. Baldridge, Assistant Appellate Defender
20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 WECHSLER, Judge.
24 Defendant appeals his convictions for possession of cocaine and tampering with
1 evidence. In our third summary calendar notice, we proposed to reverse and remand
2 for a new trial on the charges because of improperly admitted forensic evidence. We
3 addressed sufficiency of the evidence as it would grant Defendant greater relief, but
4 proposed to conclude that the evidence was sufficient. Both Defendant and the State
5 have timely responded to our proposal. Having considered the arguments, we reverse
6 and remand for a new trial.
7 In our notice, we proposed to conclude that the forensic report prepared by Mr.
8 Young could not be admitted into evidence without his testimony to support it. State
9 v. Aragon, 2010-NMSC-008, ¶ 19, 147 N.M. 474, 225 P.3d 1280. We proposed to
10 conclude that the testimony of Ms. Elenbaas about that report was likewise
11 inadmissible. The State argues that her testimony was sufficient to conclude that she
12 reached an independent conclusion based on her own review of the data and results.
13 [SMIO 5-6] We disagree. Ms. Elenbaas’s testimony was similar to Mr. Young’s
14 testimony in Aragon: an explanation regarding how the test was performed and
15 approval of the testing chemist’s results. The record before us does not indicate
16 anything in Ms. Elenbaas’s testimony indicating that she relied on her own analysis
17 to arrive at her own conclusion. Rather, she was simply explaining her approval of
18 Mr. Young’s conclusion. It is not clear that she was stating her own opinion based on
19 the underlying data and Mr. Young’s notes, but rather relaying Mr. Young’s opinion
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1 and stating her approval of it. We conclude that Ms. Elenbaas’s testimony regarding
2 Mr. Young’s opinion that what he tested was cocaine was improperly admitted.
3 The State argues that even if the report and testimony were improperly
4 admitted, it was harmless error. [SMIO 6-8] The State argues that there was other
5 admissible evidence that the substance was cocaine. This evidence consisted of the
6 testimony of a police detective who performed a field test on the substance. [SMIO
7 7] This Court has previously held that the State must prove the scientific reliability
8 of a drug field test in order for it to be admissible. State v. Morales, 2002-NMCA-
9 052, ¶ 23, 132 N.M. 146, 45 P.3d 406. It does not appear that there was such proof
10 in this case. Thus, we cannot rely on a field test of the substance to conclude that
11 there was a disproportionate volume of permissible evidence to support a finding that
12 the substance was cocaine. We conclude that the erroneous admission of the forensic
13 report and testimony was not harmless.
14 In our notice, we proposed to conclude that the evidence was sufficient to
15 support the conviction. See State v. Santillanes, 109 N.M. 781, 782, 790 P.2d 1062,
16 1063 (Ct. App. 1990) (noting that court addresses substantial evidence issue because
17 that would afford greater relief). Defendant’s response points us to evidence that is
18 simply conflicting. As we have often stated, it is for the jury to resolve the conflicts
19 in the evidence. Further, our review is for sufficient evidence to support the
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1 conviction, not for whether the finder of fact could have reached a different result. In
2 re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. We
3 conclude that the evidence presented at the trial was sufficient for a reasonable jury
4 to conclude that Defendant possessed cocaine and that he discarded it intending to
5 prevent his prosecution for such possession. See State v. Cunningham, 2000-NMSC-
6 009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (stating the standard of review for sufficiency
7 of the evidence). Thus, Defendant is not entitled to dismissal of the charges, but
8 rather remand for a new trial.
9 For the reasons stated herein and in the third notice of proposed disposition, we
10 reverse the convictions and remand for a new trial.
11 IT IS SO ORDERED.
12 _______________________________
13 JAMES J. WECHSLER, Judge
14 WE CONCUR:
15 ______________________________
16 CYNTHIA A. FRY, Chief Judge
17 ______________________________
18 LINDA M. VANZI, Judge
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