State v. Wills ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39626
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
GINGER WILLS,
Defendant-Appellant.
APPEAL FROM THE METROPOLITAN COURT OF BERNALILLO COUNTY
Felicia Blea-Rivera, Metropolitan Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
BACA, Judge.
{1} Ginger Wills (Defendant) was convicted at a bench trial in the metropolitan court
of driving while under the influence of intoxicating liquor/drugs (DWI), first offense,
contrary to NMSA 1978, Section 66-8-102(B) (2016); and driving on roadways laned for
traffic, contrary to NMSA 1978, Section 66-7-317 (1978). Defendant appeals her
convictions to this Court, arguing that (1) admission of the results of an analysis of her
blood performed by the Scientific Laboratory Division (SLD) violated the Confrontation
Clause of the Sixth Amendment of the United States Constitution; (2) the trial court
erred in allowing the State to amend the charge from a DWI-alcohol theory to a DWI-
drug theory; (3) there was insufficient evidence to convict Defendant of DWI; and (4) the
remote bench trial violated her right to an in-person trial. Unpersuaded, we affirm.
BACKGROUND
{2} Because this is a memorandum opinion and the parties are familiar with the facts
and procedural history of the case, we omit a background section but we reserve
discussion of facts relevant to Defendant’s appeal where appropriate in our analysis.
DISCUSSION
I. Admission of the State’s Expert Testimony, Opinion, and Toxicology
Report
{3} Defendant argues that her right to confrontation was violated when the
metropolitan court admitted the toxicology report through the testimony of the State’s
expert, Ms. Protiti Sarker, who “did not personally handle [Defendant’s] blood sample or
conduct the [gas chromatograph mass spectrometer (GCMS)] testing.” The State
responds that the “Confrontation Clause was not implicated and therefore not violated”
because the blood test results testified to by Ms. Sarker did not “relay[] out-of-court
testimonial hearsay to the fact[-]finder.” Additionally, the State argues on appeal that a
technical Confrontation Clause challenge was not properly preserved. Thus, to reach
the Confrontation Clause issue, we consider whether this issue was preserved for our
review and, as we explain, conclude that it was properly preserved.
A. Preservation
{4} The State argues that Defendant failed to preserve the particular Confrontation
Clause argument on whether State v. Huettl, 2013-NMCA-038, 305 P.3d 956, applies to
GCMS testing.
{5} First, we point out that Rule 12-321(A) NMRA states that “[t]o preserve an issue
for review, it must appear that a ruling or decision by the trial court was fairly invoked.”
See State v. Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (stating that “[i]n order to
preserve an issue for appeal, a defendant must make a timely objection that specifically
apprises the trial court of the nature of the claimed error and invokes an intelligent ruling
thereon.” (internal quotation marks and citation omitted))
{6} Defendant objected to the admission of the toxicology report on Confrontation
Clause grounds and argued that “this evidence . . . is testimonial and subject to the
Confrontation Clause.” Furthermore, there was briefing on the issue of confrontation
and the metropolitan court formally ruled on the issue. Thus, Defendant invoked a ruling
from the trial court on the Confrontation Clause as it relates to the admissibility of
Defendant’s blood test results. See State v. Lopez, 2000-NMSC-003, ¶ 11, 128 N.M.
410, 993 P.2d 727 (holding that objection on the grounds of “inability to cross[-]examine
or confront the witness” was adequate to raise Confrontation Clause claims even
though the defendant did not mention the Sixth Amendment); see also State v.
Moncayo, 2012-NMCA-066, ¶ 6, 284 P.3d 423 (holding that the district court was
properly alerted to the defendant’s argument because “both the [s]tate and [the
d]efendant engaged in arguments regarding the consequences of admitting the report
under the Confrontation Clause”).
{7} Therefore, Defendant’s Confrontation Clause argument is preserved for our
review.
B. Admission of the Toxicology Report and the State’s Expert’s Testimony
and Opinion Concerning the Results of Defendant’s Blood Test Do Not
Violate Defendant’s Right to Confrontation
{8} The Confrontation Clause of both the United States and New Mexico
constitutions provide that “[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him.” U.S. Const. amends. VI; N.M.
Const. art. II, § 14 (same). The Confrontation Clause applies to witnesses against the
accused who provide testimony to establish or prove some fact. See State v. Tollardo,
2012-NMSC-008, ¶ 15, 275 P.3d 110. Claimed violations of the right to confrontation
are reviewed de novo. Id.{9} A defendant’s right to confrontation is violated when an out-of-court statement
that is testimonial is introduced against the accused at trial “‘unless the witness who
made the statement is unavailable, and the accused has had a prior opportunity to
confront that witness.’” State v. Dorais, 2016-NMCA-049, ¶ 26, 370 P.3d 771 (quoting
Bullcoming v. New Mexico, 564 U.S. 647, 657 (2011)).
{10} Regarding expert witness testimony, this Court has held that the Confrontation
Clause is not offended when “an expert who has analyzed the raw data generated by
another analyst and who has formed independent conclusions based upon that analysis
. . . testif[ies] as to those conclusions.” Huettl, 2013-NMCA-038, ¶ 36; see State v.
Navarette, 2013-NMSC-003, ¶ 22, 294 P.3d 435 (“[A]n expert witness may express an
independent opinion regarding his or her interpretation of raw data without offending the
Confrontation Clause.”). Expert testimony violates the Confrontation Clause when the
opinion of the testifying expert “is based solely upon a non-testifying analyst’s analysis
and conclusions.” Huettl, 2013-NMCA-038, ¶ 37. In those instances, “the expert will
have failed to form an independent opinion and is merely acting as a conduit for the
presentation of a non-testifying witness’s testimonial hearsay.” Id. ¶¶ 37-38.
{11} Preliminarily, Defendant invites this Court to reconsider our Confrontation Clause
analysis based on the complexity of GCMS testing. Defendant argues that, because
GCMS testing is complex, the data cannot be considered “raw,” therefore, Huettl cannot
control the instant case. We see no reason to make admission of blood or other testing
dependent on the complexity of the testing method employed. In reaching this
conclusion, we observe that Defendant has not referred us to any authority or any
jurisdiction which supports this proposition and which has implemented such a
requirement. See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129(“[A]ppellate courts will not consider an issue if no authority is cited in support of the
issue and that, given no cited authority, we assume no such authority exists.”).
{12} Next, we turn to the admission of the testimony of the State’s expert witness and
toxicology report in this case. Our review of the record reveals that the State’s expert,
Ms. Sarker, reviewed the raw data, reached her own independent opinion and
conclusions concerning the blood test results of Defendant’s blood, and prepared and
signed the toxicology report issued by SLD, which was admitted as State’s Exhibit 4 at
Defendant’s trial. See Huettl, 2013-NMCA-038, ¶¶ 35-37. Consequently, we hold that
the admission of Ms. Sarker’s testimony concerning the results of Defendant’s blood
test was not error. We, likewise, hold that the admission of the toxicology report
containing the results of Defendant’s blood test was not error. We begin with Huettl.
{13} In Huettl, “no inculpating report of the testing process or conclusions of non-
testifying analyst were offered or admitted into evidence.” Id. ¶ 29. The defendant in
Huettl argued that the State’s failure to call the analyst who placed the seized substance
in the spectrophotometer machine for testing violated his right to confrontation. Id. ¶ 1.
However, the data from the missing analyst was not independently offered or admitted
into evidence and “even had it been admitted, there would be no confrontation concern
because the spectrophotometer-generated graph was not a testimonial statement that
would give rise to a confrontation right.” Id. ¶ 26. Furthermore, because the State “did
not seek to admit, any formal statements or declarations as to [the analyst’s] testing
process or as to her conclusions” the Confrontation Clause was not implicated. See id.
¶ 28. Most importantly, for our purposes here, this Court held in Huettl that the
Confrontation Clause is not offended when “an expert who has analyzed the raw data
generated by another analyst and who has formed independent conclusions based
upon that analysis . . . testif[ies] as to those conclusions.” Id. ¶ 36
{14} Such is the case here. The State did not call the analyst who tested the blood.
Instead, the State called Ms. Sarker, an expert witness who was the staff manager of
the SLD toxicology bureau, confirmation section. Ms. Sarker testified that, while she did
not handle the blood in the laboratory, she reviewed the raw data generated by the
GCMS and came to an independent opinion about the results. Ms. Sarker further
testified that there are two components to her review, a technical and administrative
review. There are multiple steps where quality control occurs, including accuracy-
ensuring control samples to test the machine’s performance. Following the technical
and administrative review to verify compliance with quality control and assurance
requirements, as well as her review of the raw data, and the formation of her
independent conclusions of the results of the blood test, she prepared and signed the
SLD report containing the results of the testing to which Defendant’s blood was
subjected.
{15} Consequently, we conclude that Ms. Sarker’s testimony did not merely parrot the
conclusions from a non-testifying analyst and the SLD toxicology report but provided her
own conclusions based on her review of the underlying raw data produced by the
GCMS. See id. ¶¶ 35-37 (observing that expert testimony based on raw data generated
by another is permissible so long as the expert testifies to their own independently
derived opinion). Similarly, we cannot conclude that Ms. Sarker was a substitute or
surrogate witness because of the independent conclusions she reached and to which
she testified. See State v. Gonzales, 2012-NMCA-034, ¶ 12, 274 P.3d 151 (stating that
Bullcoming concluded “the introduction of testimony through a substitute or surrogate
witness attesting to [an] original analyst’s report violate[s] the defendant’s right to
confrontation”); see also Huettl, ¶ 34 (explaining that where an expert “testifies to [their]
independent judgment, derived from an independent evaluation of [the] evidence, there
will typically be no confrontation problem because the expert’s opinion will be an original
product that can be tested through cross-examination” (internal quotation marks and
citation omitted)). Thus, we conclude that Ms. Sarker’s testimony did not violate the
Confrontation Clause and we affirm the metropolitan court’s decision to allow this
testimony. We now turn to the admission of the toxicology report, State’s Exhibit 4.
{16} Again, Defendant argues that the admission of the toxicology report violated her
right to confront the witnesses against her. Her arguments as to the admission of the
report are the same arguments upon which she relies to challenge the admission of the
State’s expert witness testimony and opinion. Consequently, for the reasons we
concluded that the admission of the State’s expert witness testimony and opinion did
not violate Defendant’s confrontation rights, and because Ms. Sarker prepared and
signed the toxicology report as the “reviewer,” we hold that the admission of the
toxicology report was not error and did not violate Defendant’s confrontation rights.
II. Amendment of the DWI Charge
{17} Defendant next argues that allowing the State to amend the DWI charge from an
alcohol theory to a drug theory resulted in a new charge. Defendant specifically argues
that these two charges require proof of different substances, therefore, allowing the
State to amend these charges violates Defendant’s due process rights.
{18} We review a trial court’s application of Rule 7-303 NMRA de novo. See State v.
Roman, 1998-NMCA-132, ¶ 8, 125 N.M. 688, 964 P.2d 852 (reviewing the district
court’s interpretation and application of a rule of criminal procedure de novo). Rule 7-
303(A) states in relevant part that, “the [metropolitan] court may at any time prior to a
verdict cause the complaint or citation to be amended with respect to any such defect,
error, omission, imperfection or repugnancy if no additional or different offense is
charged and if substantial rights of the defendant are not prejudiced.” (Emphasis
added.) Amending is permissible “to conform to evidence introduced in support of the
charge made in the information.” Roman, 1998-NMCA-132, ¶ 11. However, if the
amendment raises an “entirely new offense with elements separate and apart from
those in the original criminal information,” the amendment will have been error. Id. ¶ 14.
“A variance is not fatal unless the accused cannot reasonably anticipate from the
indictment what the nature of the proof against [them] will be.” State v. Marquez, 1998-
NMCA-010, ¶ 20, 124 N.M. 409, 951 P.2d 1070.
{19} Defendant argues that the metropolitan court erred by allowing the State to
amend the charges at the directed verdict stage and convict Defendant under the drug-
based DWI theory, pursuant to Section 66-8-102(B), when the State only charged her
under the impaired to the slightest degree theory, pursuant to Section 66-8-102(A).
Defendant contends that the different subsections represent distinct means of
committing the crime of DWI and therefore constitute different offenses. Defendant also
argues her due process rights were violated as a result of the amendment.
{20} Assuming, without deciding, that Defendant is correct that the amendment to the
charge of DWI was improper for the reasons she argues, Defendant still cannot prevail
because she fails to point to any prejudice resulting from the amendment that would
justify reversal. See State v. Fernandez, 1994-NMCA-056, ¶ 13, 117 N.M. 673, 875
P.2d 1104 (“In the absence of prejudice, there is no reversible error.”); State v.
Fairweather, 1993-NMSC-065, ¶ 31, 116 N.M. 456, 863 P.2d 1077 (“The mere
assertion of prejudice, without more, is insufficient to establish prejudicial error
warranting reversal of a conviction.”). Here, although the complaint alleged a DWI by
alcohol offense, contrary to Section 66-8-102(A), Defendant was on notice that the
State would pursue a DWI by drug theory pursuant to Section 66-8-102(B). Defendant
was on notice of the DWI-drug theory because (1) at the time of her arrest, following a
breath alcohol test which revealed a blood alcohol concentration (BAC) of 0.00,
Defendant consented to a blood test due to her admission to the officer that she had
taken prescription medications earlier; and (2) the State provided an exhibit list with
Defendant’s toxicology report, which included the levels of oxycodone in Defendant’s
blood sample. Because Defendant could have reasonably anticipated a DWI by drug
theory before trial she was not prejudiced by the amendment. See Marquez, 1998-
NMCA-010, ¶ 20.
{21} We now turn to Defendant’s sufficiency of the evidence argument.
III. Sufficiency of Evidence
{22} “The test for sufficiency of the evidence is whether substantial evidence of either
a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable
doubt with respect to every element essential to a conviction.” Montoya, 2015-NMSC-
010, ¶ 52 (internal quotation marks and citation omitted). “In reviewing the sufficiency of
the evidence, we must view the evidence in the light most favorable to the guilty verdict,
indulging all reasonable inferences and resolving all conflicts in the evidence in favor of
the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.
“The relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” State v. Galindo, 2018-NMSC-021, ¶ 12, 415
P.3d 494 (internal quotation marks and citation omitted).
{23} Under Section 66-8-102(B), the State had to prove that Defendant was “under
the influence of any drug to a degree that renders the person incapable of safely driving
a vehicle.” To support that Defendant could not safely drive a vehicle, the State relied
upon (a) the traffic offense for failure to maintain a lane, (b) Defendant’s inability to
properly perform field sobriety tests, and (c) Ms. Sarker’s expert opinion that Defendant
was incapable of safely driving a vehicle based on the toxicology report and police
report. We conclude there was substantial evidence to support this conviction.
{24} In this case, the evidence and testimony established that Officer Lujan stopped
Defendant for failure to maintain a lane. Defendant did poorly on the standard field
sobriety tests, exhibiting signs of impairment. On an alternative test, Defendant had to
stop and restart the alphabet test, after being reminded of what letter she had to stop,
which she subsequently performed properly. After blowing a BAC of 0.00, Defendant
admitted to taking prescription oxycodone and consented to a blood draw that revealed
oxycodone.
{25} Defendant argues that while the State asked Ms. Sarker her expert opinion, the
State did not present evidence as to what level of oxycodone would render a person
unable to drive safely. However, Ms. Sarker testified on direct examination that
oxycodone has a depressant effect on the central nervous system and can slow down
the user’s brain activity. During cross-examination, Ms. Sarker testified that, even
though Defendant had oxycodone levels in the lower therapeutic range, there are still
side effects from the drugs. She explained that oxycodone can have side effects which
can include impairment such as sedation. During separate questioning by the trial court,
who was acting as the fact-finder here, Sarker testified that she concluded that
Defendant could not drive safely. Viewed in the light most favorable to the State, we
conclude that there was sufficient evidence to support Defendant’s conviction for DWI
(drug), contrary to Section 66-8-102(B). See Cunningham, 2000-NMSC-009, ¶ 26.
IV. The Remote Bench Trial
{26} Finally, Defendant argues that her constitutional right to an in-person bench trial
was violated. Under our Supreme Court’s COVID-19 emergency order, there must be a
compelling need to have an in-person bench trial. The relevant Supreme Court order
states,
All hearings, except for jury trials, shall use telephonic or audio-video
connection for court appearances by all attorneys, litigants, and witnesses,
unless the judge presiding over the bench trial or other hearing makes oral
or written findings of fact and conclusions of law supporting a compelling
need for an in-person appearance that are specific to the particular
circumstances in an individual case.
In the Matter of the Safe and Effective Administration of the New Mexico Judiciary
During the COVID-19 Public Health Emergency, No. 20-8500-025, at 11 (N.M. July 6,
2020).1
{27} Before trial, Defendant filed an objection to trial by video appearance, arguing
that Defendant would be disadvantaged due to difficulty seeing documents and facial
expressions. Defense counsel also argued that Defendant had an older computer that
could not handle a video hearing. The metropolitan court denied Defendant’s motion,
stating there was no showing of a particularized need for an in-person trial in this case.
{28} Defendant urges this court to address the constitutionality of remote proceedings.
However, this court is not the proper venue to address this constitutional concern, as a
court lower in rank cannot deviate from decisions of a higher court. See Alexander v.
Delgado, 1973-NMSC-030, ¶ 9, 84 N.M. 717, 507 P.2d 778 (“The general rule is that a
court lower in rank than the court which made the decision invoked as a precedent
cannot deviate therefrom and decide contrary to that precedent, irrespective of whether
it considers the rule laid down therein as correct or incorrect.” (internal quotation marks
and citation omitted)); see also N.M. Const. art. VI, § 3 (providing that our Supreme
Court is granted “superintending control over all inferior courts”). Thus, because in-
person trials were suspended by our Supreme Court we decline to address the
constitutionality of the Supreme Court Order.
{29} Further, the Supreme Court Order does not require the district court to grant a
defendant’s motion for in-person proceedings where such motion fails to present a
compelling need. Defendant’s motion did not assert a compelling need for Defendant to
appear in person; rather it merely asserted a general constitutional right to appear in
person and potential technological issues. Because Defendant fails to establish that her
motions were supported by a compelling need, we assign no error to the district court’s
compliance with the Supreme Court Order. See State v. Aragon, 1999-NMCA-060, ¶
10, 127 N.M. 393, 981 P.2d 1211 (explaining that “[t]here is a presumption of
correctness in the district court’s rulings” and that it is a defendant’s “burden on appeal
to demonstrate any claimed error below”) (alterations, internal quotation marks, and
citation omitted)).
CONCLUSION
{30} For the reasons stated above, we affirm.
{31} IT IS SO ORDERED.
GERALD E. BACA, Judge
WE CONCUR:
1https://www.nmcourts.gov/wp-content/uploads/2020/12/Order-No_-20-8500-025-Order-Adopting-PHE-
Protocols-for-Safe-and-Effective-Operation-of-NM-Courts-7-6-20-with-PHE-Protocols-Attached-1.pdf.
KRISTINA BOGARDUS, Judge
KATHERINE A. WRAY, Judge